Re: 11/15/01 - [USAV/CPXP] Opinion: Computer Express Inc. v. Lee Jackson et al. (part 3 of 3)
D. Attorney Fees and Costs
The remaining question is whether defendants are entitled to attorney fees and costs pursuant to section 425.16, subdivision (c). That provision states in relevant part that ``a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs.'' Defendants contend this language mandates an award of fees and costs to the defendant any time a SLAPP motion is granted, even in part. ComputerXpress, on the other hand, contends that, because we have concluded defendants' SLAPP motion properly was denied as to four out of the nine causes of action of the complaint, defendants should not be considered to have prevailed on the motion for purposes of section 425.16. Section 425.16, subdivision (c) does not define the term ``prevailing defendant.'' In particular, it does not state whether a defendant is deemed to have prevailed if its SLAPP motion is granted as to some claims and denied as to others. Recently, the court in Shekhter v. Financial Indemnity Company, supra, 89 Cal.App.4th 141 held that, where the defendants successfully argued on appeal that their motion to strike one cause of action as a SLAPP claim should have been granted, they were entitled to attorney fees even though another cause of action remained pending. (Id., at p. 154.) However, the court did not specifically discuss the issue whether the defendants could be considered the prevailing parties under the circumstances.
In the context of contractual fee awards under Civil Code section 1717, the rule is that in cases of ``mixed'' results, where a party ```receives only a part of the relief sought,'''the court may determine there is no prevailing party. (Hsu v. Abbara (1995) 9 Cal.4th 863, 875; accord, Scott Co. v. Blount, Inc. (1999) 20 Cal.4th 1103, 1109; see also Hilltop Investment Associates v. Leon (1994) 28 Cal.App.4th 462, 468 [fees properly denied where result is ```good news and bad news to each of the parties'''].) In deciding whether there is a prevailing party, the court is to ``compare the relief awarded on the contract claim or claims with the parties' demands on those same claims and their litigation objectives as disclosed by the pleadings, trial briefs, opening statements, and similar sources.'' (Hsu, supra, at p. 876.) The court has discretion to find there is no prevailing party even though Civil Code section 1717, subdivision (a) states that the prevailing party ``shall'' be entitled to recover fees.
Civil Code section 1717, unlike section 425.16, expressly provides that the court may determine there is no prevailing party. (Civ. Code, § 1717, subd. (b)(1).) However, courts in cases involving other statutes which provide that the prevailing party ``shall'' recover attorney fees also have concluded that a court has the discretion to find there is no prevailing party, even though the statute does not expressly say so. (See, e.g., Heather Farms Homeowners Assn. v. Robinson (1994) 21 Cal.App.4th 1568, 1574 (Heather Farms) [Civ. Code, § 1354, subd. (f)]; Gilbert v. National Enquirer, Inc. (1997) 55 Cal.App.4th 1273, 1277-1278 Gilbert) [Civ. Code, § 3344, subd. (a)]; Damian v. Tamondong (1998) 65 Cal.App.4th 1115, 1128-1130 (Damian) [Civ. Code, § 2983.4].)
The determination of whether there is a prevailing party is to be made ``on a practical level'' after considering what each party accomplished via the litigation. (Heather Farms, supra, at p. 1574; Gilbert, supra, at p. 1277.) In Coltrain v. Shewalter (1998) 66 Cal.App.4th 94 (Coltrain), this court adopted the discretionary approach set forth in Heather Farms, Gilbert, and Damian for purposes of awarding attorney fees under the SLAPP statute, concluding that the critical issue in determining which party has prevailed is ``which party realized its objectives in the litigation.'' (Id., at p. at p. 107.)
These decisions, however, are of limited assistance in considering the proper application of section 425.16, subdivision (c) in this case. In each of the decisions cited above, the litigation terminated without a court determination of the merits of the suit. In Heather Farms, Gilbert, Damian, the actions were dismissed without prejudice prior to trial. (Heather Farms, supra, 21 Cal.App.4th 1568, 1570-1571; Gilbert, supra, 55 Cal.App.4th 1273, 1275; Damian, supra, 65 Cal.App.4th 1115, 1118.) In Coltrain, similarly, the plaintiffs voluntarily dismissed their complaint without prejudice before any ruling on the defendants' SLAPP motion. (Coltrain, supra, 66 Cal.App.4th 94, 100.) Absent a determination of the merits, it may be difficult or impossible to decide which party has prevailed as a practical matter, and the court may appropriately find there is no prevailing party.
Here, in contrast, we have determined the SLAPP motion was meritorious as to five out of the nine causes of action to which it was directed. As to those five causes of action, at least, defendants clearly prevailed.
The decisions applying Civil Code section 1717 also are of limited assistance in this case. The purpose of section 1717 is ``to establish mutuality of remedy when a contract makes recovery of attorney fees available only for one party and to prevent the oppressive use of one-sided attorney fees provisions. [Citation.]'' (PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1090-1091.) The intent of the Legislature, therefore, was to make attorney fees equally available to both sides where they would not have been equally available under the literal terms of the agreement.
Section 425.16, subdivision (c), however, evidences a legislative intent to do more than make fees and costs equally available to both sides. Instead, the statute reflects a clear preference for awarding fees and costs to prevailing defendants. Section 425.16, subdivision (c) provides that a prevailing defendant on a SLAPP motion to strike ``shall be entitled to recover his or her attorney's fees and costs.'' A prevailing plaintiff, however, can only recover fees and costs ``f the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay . . . .''
This differential standard for awarding fees and costs is in keeping with the statement of legislative purpose in section 425.16, subdivision (a). The Legislature in that provision found ``a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.'' Accordingly, ``it is in the public interest to encourage continued participation in matters of public significance,'' and to insure ``that this participation [] not be chilled through abuse of the judicial process.''
Section 425.16, subdivision (c)'s preference for awarding fees and costs to defendants is analogous to the rule followed in cases arising under the federal civil rights statutes. Title 42 United States Code section 1988 (section 1988) provides that in such cases, ``the court, in its discretion, may allow the prevailing party, other than the United States, a reasonable attorney's fee as part of the costs . . . .'' Despite its seeming neutral language, cases applying section 1988 hold that ``[a] prevailing defendant may recover an attorney's fee only where the suit was vexatious, frivolous, or brought to harass or embarrass the defendant.'' (Hensley v. Eckerhart (1983) 461 U.S. 424, 429, fn. 2 [103 S.Ct. 1933, 76 L.Ed.2d 40] (Hensley); see also Hughes v. Rowe (1980) 449 U.S. 5, 14-15 [101 S.Ct. 173, 66 L.Ed.2d 163].) In contrast, ``a prevailing plaintiff ```should ordinarily recover an attorney's fee unless special circumstances would render such an award unjust.''''' (Hensley, supra, at p. 429.)
A defendant making a SLAPP motion and a plaintiff in a civil rights action thus enjoy the same preference for attorney fees if they are successful. Given this similarity in approach between section 425.16, subdivision (c) and section 1988, authority under section 1988 is particularly helpful in applying section 425.16, subdivision (c).
In Hensley the United States Supreme Court considered the proper application of section 1988 where the plaintiff prevails on some but not all of his or her claims. The court stated that, for purposes of the threshold determination of whether the plaintiff has prevailed at all, ```plaintiffs may be considered ``prevailing parties'' for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.''' (Hensley, supra, 461 U.S. at p. 433.)
However, where the plaintiff in one lawsuit presents ``distinctly different claims for relief that are based on different facts and legal theories,'' he or she cannot recover fees incurred in pursuing an unsuccessful claim. (Id., at pp. 434-435.) On the other hand, if the plaintiff's successful and unsuccessful claims involve a common core of facts or related legal theories, the court should determine ``the significance of the overall relief obtained by the plaintiff in relation to the hours reasonably expended on the litigation.'' (Id., at p. 435.)
``A reduced fee award is appropriate if the relief, however significant, is limited in comparison to the scope of the litigation as a whole.'' (Id., at p. 440.)
California courts applying the private attorney general statute, Code of Civil Procedure section 1021.5, have adopted the same approach. Thus, in cases under section 1021.5, the courts hold that ``a party need not prevail on every claim presented in an action in order to be considered a successful party within the meaning of the section. [Citations.]'' (Wallace v. Consumers Cooperative of Berkeley, Inc. (1985) 170 Cal.App.3d 836, 846.)
Rather, ``when a plaintiff is successful within the meaning of the section, the fact that he or she has prevailed on some claims but not on others is a factor to be considered in determining the amount of the fee awarded.'' (Id., at pp. 846-847, citing Hensley, supra, 461 U.S. 424.)
Earlier this year, the court in Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88 Cal.App.4th 1381 (Los Angeles Times) applied a similar approach in construing the California Public Records Act. (Gov. Code, § 6250 et seq.) Section 6259, subdivision (d) of that act, which provides for attorney fees and costs, is closely analogous to section 425.16, subdivision (c). Government Code section 6259, subdivision (d) provides that the court ``shall award court costs and reasonable attorney fees to the plaintiff should the plaintiff prevail in litigation'' seeking disclosure of records from a public agency. However, the court shall award fees and costs to the public agency only if it finds ``that the plaintiff's case is clearly frivolous . . . .'' (Ibid.)
The court in Los Angeles Times held that a plaintiff who sued to obtain disclosure of two documents, but succeeded in obtaining only one, nonetheless was a prevailing party entitled to attorney fees and costs under the statute. The court acknowledged the possibility that in some cases a plaintiff might obtain documents that are so minimal or insignificant as to justify a finding that it did not prevail. It concluded, however, that absent such circumstances, fees and costs should be awarded. To do otherwise would be inconsistent with the express purpose of the statute, ``to broaden public access to public records,'' and ``would chill efforts to enforce the public right to information.'' (Los Angeles Times, supra, 88 Cal.App.4th at p. 392.)
These authorities support the conclusion that defendants in this case should be considered prevailing parties, and therefore should recover attorney fees and costs, notwithstanding their partial success on their SLAPP motion. As with the federal civil rights statutes and the California Public Records Act, the differential standard for awarding fees reflects a preference for compensating parties who further the public policies underlying the SLAPP statute through their litigation efforts. The approach adopted in the cases applying those analogous statutes, under which partial success reduces but does not eliminate the entitlement to attorney fees, therefore should be applied here.
As discussed previously, the causes of action we have concluded are not subject to being stricken are based on different conduct than the remaining causes of action. Therefore, the problems alluded to in Hensley that may arise where the successful and unsuccessful claims are legally or factually related are not present. Defendants consequently are entitled to recover attorney fees and costs incurred in moving to strike the claims on which they prevailed, but not fees and costs incurred in moving to strike the remaining claims. The trial court may determine the appropriate amount of fees and costs, upon a proper application by defendants. (See Coltrain, supra, 66 Cal.App.4th 94, 108.)
For the guidance of the trial court, we note in closing that, as the parties seeking fees and costs, defendants ``bear[] the burden of establishing entitlement to an award and documenting the appropriate hours expended and hourly rates.'' (Hensley, supra, 461 U.S. at p. 437.) To that end, the court may require defendants to produce records sufficient to provide ```a proper basis for determining how much time was spent on particular claims.''' (Id., at p. 437, fn. 12.) The court also may properly reduce compensation on account of any failure to maintain appropriate time records. (Id., at p. 438, fn. 13.)
III
DISPOSITION
The order denying the motion to strike is affirmed with respect to the first, second, third, and fifth causes of action and reversed as to the remaining causes of action. Upon an appropriate motion and factual showing, defendants may recover attorney fees and costs in connection with their SLAPP motion and on appeal, under section 425.16, subdivision (c), in an amount to be determined by the trial court.
CERTIFIED FOR PUBLICATION
RICHLI
J.
We concur:
RAMIREZ
P.J.
HOLLENHORST
J.
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