Renaissance Kithchen, Bath & Flooring v. Szmczyk CA4/3 ( 2021 )

Filed 12/21/21 Renaissance Kithchen, Bath & Flooring v. Szmczyk CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
RENAISSANCE KITHCHEN, BATH &
FLOORING, INC.,
G059557
Plaintiff and Respondent,
(Super. Ct. No. 30-2020-01135422)
v.
OPINION
RHEIA SZYMCZYK et al.,
Defendants and Appellants.
Appeal from an order of the Superior Court of Orange County, Derek W.
Hunt, Judge. Affirmed in part, reversed in part, and remanded.
Law Offices of Andrew D. Weiss and Andrew D. Weiss for Defendants and
Appellants.
Law Office of Mainak D’Attaray, Mainak D’Attaray; Law Offices of
Morteza Aghavali and Morteza Aghavali for Plaintiff and Respondent.
* * *
INTRODUCTION
After a falling out between the parties to a home improvement contract,
homeowners Rheia Szymczyk and David Szymczyk (the Szymczyks) filed a complaint
1
against the contractor, Renaissance Kithchen, Bath & Flooring, Inc. (Renaissance) with
Contractors’ State License Board (the License Board). They also filed an affidavit of loss
against Renaissance’s contractor’s bond issued by Philadelphia Indemnity Insurance
Company (Philadelphia). Renaissance sued the Szymczyks claiming, in part, that the
License Board complaint and the affidavit of loss caused it damage. The Szymczyks
filed a special motion to strike under California’s anti-SLAPP statute, Code of Civil
2
Procedure section 425.16. The trial court granted the motion in part and denied it in
part; the Szymczyks appealed.
We conclude the allegations relating to the License Board complaint arose
from protected activity and lacked minimal merit. Those allegations must be stricken
from Renaissance’s complaint. However, the allegations relating to the affidavit of loss
did not arise from protected activity and therefore are not subject to the anti-SLAPP
motion. Therefore, we (1) affirm the trial court’s order denying the anti-SLAPP motion
as to all references to the affidavit of loss; (2) affirm the trial court’s order granting the
anti-SLAPP motion as to the references to the License Board complaint in the fifth and
sixth causes of action; (3) reverse the trial court’s order denying the anti-SLAPP motion
as to the references to the License Board complaint in the third, fourth, and seventh
causes of action; and (4) remand the matter with directions to strike all references to the
License Board complaint from the third, fourth, fifth, sixth, and seventh causes of action.
1
The complaint uses this spelling of Renaissance’s name, which apparently is also used
in its articles of incorporation.
2
“SLAPP” is an acronym for “strategic lawsuit against public participation.” (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.)
2
The Szymczyks requested attorney fees and costs from the trial court as a
partially prevailing party. The trial court did not address that request. On remand, the
trial court shall determine how much, if any, of the fees and costs the Szymczyks are
entitled to recover.
STATEMENT OF FACTS AND PROCEDURAL HISTORY
By means of three separate written contracts signed on July 20, 2019, the
Szymczyks contracted with Renaissance to perform home improvement work at the
Szymczyks’ house in Lake Forest. The total contracted cost of the improvements was
$54,520. The Szymczyks paid Renaissance a total deposit of $3,000, and separately paid
$18,800 for materials. An amendment to the contract was signed September 13, 2019.
Disagreements arose between the parties. On November 11, 2019, Mehran
Ghassemi, on behalf of Renaissance, sent Rheia Szymczyk an e-mail stating: “I am no
longer interested to continue working for you.” The e-mail claimed the Szymczyks had
made Renaissance’s performance impossible by continually interfering with Renaissance,
modifying the agreement, and demanding that Renaissance perform work not specified in
the contract. Rheia Szymczyk, replying by e-mail, asked Ghassemi to specify how the
Szymczyks had interfered and demanded an apology. Ghassemi sent another e-mail
informing Rheia Szymczyk that Renaissance would like to finish the job. On
November 14, Rheia Szymczyk e-mailed the following message: “As of 11/11/2019,
your permission to enter the property . . . is revoked. All of your property has been
removed from the interior of the house and located outside. You may come to the
property for one day to collect your belong[ing]s and leave the house key in the mail box.
Thank you.”
3
The Szymczyks submitted an affidavit of loss to Philadelphia seeking to
3
collect on the contractor’s bond. Rheia Szymczyk’s declaration in support of the
anti-SLAPP motion stated: “I submitted an Affidavit of Loss to Philadelphia . . . seeking
to collect $15,000.00 from the contractor’s bond issued by Philadelphia. The Affidavit of
[4]
Loss was submitted electronically on November 11, 2019, and by mail on December
14, 2019. Philadelphia notified me it had received the Affidavit of Loss and assigned a
claim number. However, Philadelphia has not agreed to pay any part of the claim and
had not notified me of any rejection of the claim. The Affidavit of Loss was made in
contemplation of litigation against Philadelphia if Philadelphia failed to pay me the face
amount of the bond.” (Some capitalization omitted.) Renaissance submitted a response
and supporting documents to Philadelphia on January 15, 2020. The Szymczyks also
filed a complaint against Renaissance with the License Board.
On March 2, 2020, Renaissance filed a complaint in the superior court
against the Szymczyks for, inter alia, negligent misrepresentation, intentional
misrepresentation, abuse of process, business defamation, and intentional interference
5
with prospective economic advantage. Neither Philadelphia nor the License Board had
completed its review of the Szymczyks’ claims as of that date. On March 17, 2020, the
Szymczyks filed a cross-complaint against Renaissance and Philadelphia.
The Szymczyks filed an anti-SLAPP motion on May 26, 2020. After
briefing and a hearing, the trial court granted the motion in part and struck the causes of
3
Rheia Szymczyk’s declaration authenticating the affidavit of loss states that the
Szymczyks were seeking to collect $15,000 on the bond, although the affidavit itself
demands $21,800. The parties’ briefs indicate the face amount of the bond is $15,000.
4
The reply to the motion to strike says the affidavit of loss was first filed “on or about
November 19, 2019.”
5
Renaissance also asserted causes of action for breach of contract, breach of the duty of
good faith and fair dealing, and quantum meruit/restitution. These causes of action are
not at issue in the anti-SLAPP motion.
4
action for abuse of process and business defamation, but only to the extent those causes
of action were based on the Szymczyks’ complaint to the License Board. The court
found that the claims regarding the License Board complaint involved the Szymczyks’
petitioning activity. The trial court denied the remainder of the anti-SLAPP motion
because the claims “did not arise out of any acts protected by the anti-SLAPP statute.”
As to the minimal merits, the trial court stated at the hearing that if it “were obliged to go
to step two,” it would “give the benefit of the doubt to the Plaintiff and deny the
anti-SLAPP motion” because the analysis required of the trial court by the minimal
merits prong “exceed[s] my poor powers to apply them.” The minute order nevertheless
granted the motion as to the fifth and sixth causes of action regarding the License Board
complaint; we can infer that the trial court made a determination of minimal merit of
those causes of action.
Although the trial court invited additional briefing on the Szymczyks’
request for attorney fees, it never ruled on that request.
The Szymczyks filed a notice of appeal.
DISCUSSION
I.
STANDARD OF REVIEW
We review an order granting or denying an anti-SLAPP motion de novo.
“We consider ‘the pleadings, and supporting and opposing affidavits . . . upon which the
liability or defense is based.’ [Citation.] However, we neither ‘weigh credibility [nor]
compare the weight of the evidence. Rather, [we] accept as true the evidence favorable
to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has
defeated that submitted by the plaintiff as a matter of law.’” (Soukup v. Law Offices of
Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
5
“Anti-SLAPP motions are evaluated through a two-step process. Initially,
the moving defendant bears the burden of establishing that the challenged allegations or
claims ‘aris[e] from’ protected activity in which the defendant has engaged. [Citations.]
If the defendant carries its burden, the plaintiff must then demonstrate its claims have at
least ‘minimal merit.’ [Citations.]” (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1061 (Park).)
An anti-SLAPP motion may be directed to specific allegations of protected
activity which constitute claims for relief but do not constitute an entire cause of action as
pleaded. (Baral v. Schnitt (2016) 1 Cal.5th 376, 393.)
II.
DO THE CHALLENGED ALLEGATIONS ARISE FROM PROTECTED ACTIVITY?
The Szymczyks contend that the relevant causes of action should be
stricken in their entirety because they arise from acts in furtherance of the Szymczyks’
rights of petition and free speech. The Szymczyks rely on subdivision (e)(1) and (2) of
Code of Civil Procedure section 425.16: “‘[A]ct in furtherance of a person’s right of
petition or free speech under the United States or California Constitution in connection
with a public issue’ includes: (1) any written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other official proceeding authorized
by law, [or] (2) any written or oral statement or writing made in connection with an issue
under consideration or review by a legislative, executive, or judicial body, or any other
official proceeding authorized by law.” (Id., § 425.16, subd. (e)(1), (2).) The Szymczyks
contend that the License Board complaint was a written statement made in connection
with an official proceeding authorized by law, and that the affidavit of loss was a covered
prelitigation communication.
“A claim arises from protected activity when that activity underlies or
forms the basis for the claim. [Citations.] Critically, ‘the defendant’s act underlying the
6
plaintiff’s cause of action must itself have been an act in furtherance of the right of
petition or free speech.’ [Citations.] ‘[T]he mere fact that an action was filed after
protected activity took place does not mean the action arose from that activity for the
purposes of the anti-SLAPP statute.’ [Citation.] Instead, the focus is on determining
what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and
whether that activity constitutes protected speech or petitioning.’ [Citation.] ‘The only
means specified in section 425.16 by which a moving defendant can satisfy the [“arising
from”] requirement is to demonstrate that the defendant’s conduct by which plaintiff
claims to have been injured falls within one of the four categories described in
subdivision (e) . . . .’ [Citation.] In short, in ruling on an anti-SLAPP motion, courts
should consider the elements of the challenged claim and what actions by the defendant
supply those elements and consequently form the basis for liability.” (Park, supra,
2 Cal.5th at pp. 1062-1063.)
A.
Statements in the License Board Complaint
The minute order struck references to the License Board complaint from the
fifth cause of action (abuse of process) and the sixth cause of action (business
defamation). The minute order did not address references to the License Board complaint
in the third, fourth, and seventh causes of action for negligent and intentional
misrepresentation and interference with economic advantage.
The License Board is an administrative agency of the State of California
and a part of the California Department of Consumer Affairs. (Bus. & Prof. Code,
§ 7000.5, subd. (a); see Contractors’ State License Board v. Superior Court (1960) 187
Cal.App.2d 557, 560.) The License Board is “charged by law with the duty of
investigating the actions of any contractor within the state and of taking disciplinary
action against any such contractor should its investigation disclose reason to believe that
the contractor has committed any acts which, under the provisions of the statute, are
7
made grounds for disciplinary action.” (Contractors’ State License Board v. Superior
Court, supra, at p. 560.) In Kibler v. Northern Inyo County Local Hospital Dist. (2006)
39 Cal.4th 192, 198, the California Supreme Court held that a hospital’s peer review
committee’s actions constituted an “‘official proceeding’” for purposes of Code of Civil
Procedure section 425.16. Based on these authorities, we conclude the License Board
complaint was an official proceeding for purposes of the anti-SLAPP motion.
We next turn to whether the Szymczyks’ activity giving rise to their
liability under the relevant causes of action constitutes protected speech. In the causes of
action for intentional and negligent misrepresentation, the alleged misstatements by the
Szymczyks in the License Board complaint form the basis for the claims. Renaissance
alleges it was harmed as a result of the Szymczyks’ misrepresentations. In the fourth
cause of action, Renaissance alleged the Szymczyks made the misrepresentations in the
License Board complaint “to obtain unjust benefits and to intentionally and negatively
affect [Renaissance]’s contractor’s licenses.”
The fifth cause of action alleges abuse of process; the License Board
complaint directly forms the basis for that cause of action. Similarly, the License Board
complaint forms the basis for the sixth cause of action, which alleges the filing of the
License Board complaint resulted in business defamation to Renaissance.
In the seventh cause of action, Renaissance alleges (1) the Szymczyks made
false statements in the License Board complaint and filed false claims with the intent to
disrupt Renaissance’s business relationships with potential and existing customers and
(2) those relationships were in fact disrupted. This cause of action also alleged that the
Szymczyks made the false statements and false claims in the License Board complaint
“to obtain unjust benefits and to intentionally and negatively affect [Renaissance]’s
contractor’s licenses.”
8
We conclude that all references to the License Board complaint in the third,
fourth, fifth, sixth, and seventh causes of action arose from the Szymczyks’ protected
activity and, therefore, are subject to being stricken under the anti-SLAPP statute.
B.
Statements in the Affidavit of Loss
The Szymczyks contend that the affidavit of loss submitted to Philadelphia
is a prelitigation communication and therefore arises from protected activity.
Communications made before litigation is commenced but that are related
to the litigation are covered by the litigation privilege. (Action Apartment Assn., Inc. v.
City of Santa Monica (2007) 41 Cal.4th 1232, 1241.) Protected communications include
those “‘preparatory to or in anticipation of the bringing of an action.’” (Bonni v.
St. Joseph Health System (2021) 11 Cal.5th 995, 1024.) “A prelitigation communication
is privileged only when it relates to litigation that is contemplated in good faith and under
serious consideration.” (Action Apartment Assn., Inc. v. City of Santa Monica, supra, 41
Cal.4th at p. 1251, italics added; see Dickinson v. Cosby (2017) 17 Cal.App.5th 655,
682.) “But such preparatory communications do not qualify as a protected activity if
future litigation is not anticipated, and is therefore only a ‘possibility’—and this is true
even if the communication is a necessary prerequisite to any future litigation.” (Mission
Beverage Co. v. Pabst Brewing Co., LLC (2017) 15 Cal.App.5th 686, 703.) “While not
dispositive, whether a lawsuit was ultimately brought is relevant to the determination of
whether one was contemplated in good faith at the time of the demand letter.”
(Dickinson v. Cosby, supra, 17 Cal.App.5th at p. 683.)
The Szymczyks’ counsel relied on Blanchard v. DIRECTV, Inc. (2004) 123
Cal.App.4th 903 to argue that if there is a prelitigation demand and the subsequent filing
of litigation, an inference is raised that the prelitigation demand was made in good faith
and in serious contemplation of litigation. (Id. at p. 920 [initiation of lawsuit gives rise to
“inference of connectedness” between demand letter and litigation].) Blanchard is
9
distinguishable, however. In that case, DIRECTV sent demand letters to “thousands of
customers” who had been identified as having purchased equipment to decrypt and steal
DIRECTV’s programming. (Id. at p. 909.) These demand letters “provided the
recipients with an opportunity to resolve the matter by way of settlement before
commencement of suit.” (Id. at p. 910.) DIRECTV ultimately filed lawsuits in federal
court against more than 24,000 individuals. (Ibid., fn. 2.)
By contrast, the affidavit of loss here neither threatens litigation against
Philadelphia nor provides Philadelphia with an opportunity to settle any disputes with the
Szymczyks before litigation is initiated. To the contrary, the affidavit of loss makes a
claim against the bond issued by Philadelphia to Renaissance in a specific amount, and
provides the facts supporting that claimed loss.
Prelitigation communications fall along a spectrum. At one end of the
spectrum is the attorney demand letter, which is normally found to be a protected
prelitigation communication. “‘The classic example of an instance in which the privilege
would attach to prelitigation communications is the attorney demand letter threatening to
file a lawsuit if a claim is not settled.’” (Dickinson v. Cosby, supra, 17 Cal.App.5th at
p. 682.)
At the other end of the spectrum are claims for payment to an insurer made
before the commencement of litigation, but within the regular course of business; such
claims have routinely been held to not be protected acts under the anti-SLAPP statute.
(People ex rel. Fire Ins. Exchange v. Anapol (2012) 211 Cal.App.4th 809, 826-827;
Beach v. Harco National Ins. Co. (2003) 110 Cal.App.4th 82, 94-95; Kajima Engineering
& Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 932; People ex
rel. 20th Century Ins. Co. v. Building Permit Consultants, Inc. (2000) 86
Cal.App.4th 280, 285.)
At oral argument, counsel for the Szymczyks attempted to distinguish these
cases involving claims for payment from an insurer from cases involving claims against
10
an indemnitor, such as this case. We perceive no principled distinction between the two.
At root, these are both cases against a third party. A claim for indemnification arising out
of another party’s bad act is treated the same as a claim arising directly out of that bad
act. (Chodos v. Cole (2012) 210 Cal.App.4th 692, 705 [attorney malpractice claim by
client was not protected act for purposes of anti-SLAPP statute, so indemnity claim
against the attorney based on the same malpractice brought by nonclient was also not
protected].)
Not every claim made in an insurance or indemnity context falls outside the
protection of the anti-SLAPP statute. As the appellate court explained in People ex rel.
Fire Ins. Exchange v. Anapol, supra, 211 Cal.App.4th 809: “We can certainly envision
circumstances in which an insurance claim is submitted in anticipation of litigation
contemplated in good faith and under serious consideration. For example, a claim may
be submitted after informal negotiations with the insurance company have proven
unfruitful, and the insured has already decided to bring suit on the policy. In those
circumstances, submission of the claim would be nothing more than the satisfaction of
the statutory prerequisite for a suit. Similarly, an insured that has already been informed
that its claim will be denied may submit the claim in the language of a demand letter,
threatening suit if the claim is not paid in full. There, too, submission of the claim would
qualify as a protected prelitigation statement in furtherance of the right of petition.
“We hasten to add, however, that such circumstances are the exception,
rather than the rule. In most cases, the insurer is not aware that the insured will be
making a claim until the claim is made; thus, the insured will have no reason to believe
the claim will be denied and litigation will follow. In the usual course, while litigation
for failure to pay the claim is a possibility, it is no more of a possibility than in any case
where one party to a contract requests the other party to perform its duties under the
agreement. That possibility of litigation in the event of nonperformance is not enough to
conclude the claim is made in anticipation of litigation contemplated in good faith and
11
under serious consideration.” (People ex rel. Fire Ins. Exchange v. Anapol, supra, at
pp. 827-828.)
The Szymczyks’ anti-SLAPP motion states, in relevant part: “The demand
[in the affidavit of loss] was made in contemplation of litigation if Philadelphia failed to
pay Defendants the face amount of the bond.” (Some capitalization omitted.) The
affidavit of loss was submitted to Philadelphia immediately after Renaissance walked off
the job. Nothing in the motion or its supporting documents shows that Philadelphia had
any notice of the claimed loss before the affidavit of loss was submitted. Although there
is some confusion regarding whether the affidavit of loss was first submitted to
Philadelphia on November 11 or November 19, 2019, at neither point could the
Szymczyks have reasonably believed that Philadelphia had made a decision to deny the
claim and that litigation with Philadelphia was anything more than a future possibility.
The trial court correctly determined that the affidavit of loss was not related
to litigation that was, at the time of the filing of the affidavit, contemplated in good faith
and under serious consideration. The statements in Renaissance’s complaint relating to
the affidavit of loss to Philadelphia are not protected acts for purposes of the anti-SLAPP
statute.
III.
DID RENAISSANCE DEMONSTRATE ITS CLAIMS RELATING TO THE LICENSE BOARD COMPLAINT
HAVE AT LEAST MINIMAL MERIT?
As the second part of the anti-SLAPP analysis, we consider whether
Renaissance demonstrated its claims had at least minimal merit. We do not weigh the
evidence or resolve conflicting factual claims; to the contrary, we accept Renaissance’s
evidence as true, and evaluate the Szymczyks’ evidence only to determine if it defeats
Renaissance’s claim “‘as a matter of law.’” (Sweetwater Union High School Dist. v.
Gilbane Building Co. (2019) 6 Cal.5th 931, 940.) We may consider any evidence “if it is
12
reasonably possible the proffered evidence set out in those statements will be admissible
at trial. Conversely, if the evidence relied upon cannot be admitted at trial, because it is
categorically barred or undisputed factual circumstances show inadmissibility, the court
may not consider it in the face of an objection.” (Id. at p. 949.) We note that neither
party filed any objection to the evidence submitted by the other side in connection with
the anti-SLAPP motion.
A.
Evidence Offered by the Parties
In support of their motion, the Szymczyks filed a declaration from
Rheia Szymczyk attaching the contracts and the written amendment, the e-mail from
Renaissance purporting to quit the job, the affidavit of loss, and the License Board
complaint. Rheia Szymczyk’s declaration contains the following statement: “The
Affidavit of Loss was made in contemplation of litigation against Philadelphia if
Philadelphia failed to pay me the face amount of the bond.” (Some capitalization
omitted.)
The anti-SLAPP motion is also supported by a declaration from the
Szymczyks’ attorney, Andrew Weiss, which states that on March 17, 2020 he
electronically submitted a cross-complaint on behalf of the Szymczyks; the
cross-complaint included a claim against Philadelphia based on the contractor’s bond.
The Szymczyks did not offer any additional evidence in connection with their reply brief.
In opposition to the anti-SLAPP motion, Renaissance submitted the
declarations of its counsel, Morteza Aghavali, and its chief executive officer, Mehran
Ghassemi. Aghavali’s declaration attached his communications with the Szymczyks in
December 2019 in which Aghavali recommended mediating the dispute, and Rheia
Szymczyk declined until the License Board had reviewed the complaint. Aghavali’s
declaration also states that he had no contact with the Szymczyks or their attorneys until
after the complaint was filed in the trial court.
13
Ghassemi’s declaration states that the Szymczyks made false and
fraudulent statements in their affidavit of loss to Philadelphia and in the License Board
complaint. Ghassemi’s declaration also attaches and authenticates the e-mails exchanged
between Rheia Szymczyk and him in November 2019 documenting the end of their
business relationship; the contracts and deposit payments; invoices for products
purchased by Renaissance for use in the Szymczyks’ home improvement project;
inspection records and permit invoices for the property from the City of Lake Forest; and
Renaissance’s response to the affidavit of loss submitted to Philadelphia.
B.
Analysis
Renaissance contends that the License Board complaint and the affidavit of
loss contain “demonstrably false” allegations and are “fraudulent” claims, and its
complaint therefore has the necessary minimal merit to survive the anti-SLAPP motion.
As noted above, the License Board complaint initiated an official
proceeding and is, therefore, absolutely privileged under Civil Code section 47. (Kashian
v. Harriman (2002) 98 Cal.App.4th 892, 912-913 [letter to Attorney General seeking
investigation was covered by litigation privilege]; Lebbos v. State Bar (1985) 165
Cal.App.3d 656, 668 [“any communication with an official agency designed to prompt
investigation by that agency is absolutely privileged”].)
Renaissance cites Optional Capital, Inc. v. Akin Gump Strauss, Hauer &
Feld LLP (2017) 18 Cal.App.5th 95, 114 and Neville v. Chudacoff (2008) 160
Cal.App.4th 1255, 1262-1263 for the proposition that the litigation privilege does not
contradict the minimal merit Renaissance has shown. These cases explain that the fact
that a statement is covered by the litigation privilege (Civ. Code, § 47, subd. (b)) does not
necessarily mean that the statement is protected activity for purposes of the anti-SLAPP
statute. These cases address the issue of the first prong of the test, not the second prong.
14
(See Flatley v. Mauro (2006) 39 Cal.4th 299, 323 [litigation privilege and anti-SLAPP
statute “are not substantively the same”].)
We therefore conclude that the claims involving the License Board
complaint lack minimal merit. The portions of causes of action three, four, five, six, and
seven that allege claims arising from the License Board complaint are stricken under the
anti-SLAPP statute.
IV.
ATTORNEY FEES
A defendant that prevails on an anti-SLAPP motion may recover its
attorney fees and costs. (Code Civ. Proc., § 425.16, subd. (c).) If that defendant prevails
in part, it is still entitled to fees and costs “unless the results of the motion were so
insignificant that the party did not achieve any practical benefit from bringing the
motion.” (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340
(Mann).) We review the trial court’s ruling for abuse of discretion. (Ibid.)
In determining the portion of the fees and costs incurred to which a
partially prevailing party is entitled, the trial court should “consider the significance of
the overall relief obtained by the prevailing party in relation to the hours reasonably
expended on the litigation and whether the expenditure of counsel’s time was reasonable
in relation to the success achieved.” (Mann, supra, 139 Cal.App.4th at p. 344.) “[T]he
court should first determine the lodestar amount for the hours expended on the successful
claims, and, if the work on the successful and unsuccessful causes of action was
overlapping, the court should then consider the defendant’s relative success on the
motion in achieving his or her objective, and reduce the amount if appropriate. [¶] This
analysis includes factors such as the extent to which the defendant’s litigation posture
was advanced by the motion, whether the same factual allegations remain to be litigated,
whether discovery and motion practice have been narrowed, and the extent to which
15
future litigation expenses and strategy were impacted by the motion. The fees awarded to
a defendant who was only partially successful on an anti-SLAPP motion should be
commensurate with the extent to which the motion changed the nature and character of
the lawsuit in a practical way. The court should also consider any other applicable
relevant factors, such as the experience and abilities of the attorney and the novelty and
difficulty of the issues, to adjust the lodestar amount as appropriate.” (Id. at p. 345.)
The trial court did not address the issue of fees. “The failure to exercise
discretion is an abuse of discretion.” (Pratt v. Ferguson (2016) 3 Cal.App.5th 102, 114.)
On remand, the trial court shall consider the issue of fees, bearing in mind the
above-cited authorities and the disposition of this appeal.
DISPOSITION
The order is affirmed in part, reversed in part, and remanded. The trial
court’s order denying the anti-SLAPP motion as to references to the License Board in the
third, fourth, and seventh causes of action is reversed. In all other respects, the order is
affirmed. The trial court shall enter an order granting the anti-SLAPP motion as to all
references to the License Board complaint in the third, fourth, fifth, sixth, and seventh
causes of action.
We remand for the trial court to determine in the first instance how much, if
any, the Szymczyks should be awarded as attorney fees pursuant to Code of Civil
Procedure section 425.16, subdivision (c)(1).
16
In the interests of justice, because each party succeeded in part on appeal,
neither party shall recover costs.
FYBEL, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
ZELON, J.*
*Retired Justice of the Court of Appeal, Second Appellate District, assigned by the Chief
Justice pursuant to article VI, section 6 of the California Constitution.
17