Filed 10/9/13 White and Yellow Cab v. Orange Cty. Bd. of Supervisors 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                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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


A WHITE AND YELLOW CAB, INC.,

     Plaintiff and Appellant,                                          G047250

         v.                                                            (Super. Ct. No. 30-2008-00116818)

ORANGE COUNTY BOARD OF                                                 OPINION
SUPERVISORS,

     Defendant and Respondent.



                   Appeal from a judgment of the Superior Court of Orange County, Derek W.
Hunt, Judge. Reversed.
                   Cazzell & Associates and Maryann Cazzell for Plaintiff and Appellant.
                   Michaelis, Montanari & Johnson and Wesley S. Wenig for Defendant and
Respondent.


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              A White and Yellow Cab, Inc. (AWYC), appeals an award of $18,000 in
attorney fees to the Orange County Board of Supervisors (Board). The fee award arose
out of attorney fees incurred by the Board during a prior appeal. (See A White & Yellow
Cab, Inc. v. Orange County Board of Supervisors (July 27, 2011, G043209) [nonpub.
opn.] (AWYC I).) Because the Board “did not ‘prevail’ on appeal” in AWYC I, we
reverse. (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1254
(Maughan).)


                                            FACTS


              In AWYC I, AWYC appealed the court’s grant of the Board’s motion under
Code of Civil Procedure section 415.16 — the anti-SLAPP (strategic lawsuit against
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public participation) statute. The Board cross-appealed the amount of costs and attorney
fees awarded by the court pursuant to section 425.16, subdivision (c)(1). We affirmed,
holding that (1) the court rightly granted the anti-SLAPP motion and (2) the court did not
abuse its discretion by refusing to award the Board all of its requested fees and costs.
Our disposition of the appeal stated, “In the interests of justice, the parties shall bear their
own costs on appeal.” The remittitur issued on September 27, 2011, and it likewise
indicated, “Each party to bear own costs.”
              On March 8, 2012, the Board moved for relief under section 473,
subdivision (b), noting counsel failed to file a timely motion for attorney fees incurred on
appeal (i.e., within 40 days of notice of issuance of the remittitur pursuant to Cal. Rules
of Court, rules 3.1702(c)(1) and 8.278(c)(1)). The basis for the motion was counsel’s
allegedly mistaken initial reading and understanding of AWYC I. Counsel stated in his



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              All statutory references are to the Code of Civil Procedure.

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declaration that he “misread [the disposition and remittitur in AWYC I] as stating that the
parties shall bear their own costs and fees on appeal.”
              The court granted relief to the Board, allowing the untimely motion for
attorney fees to be filed. The Board sought $21,338.50 in attorney fees. The court
ultimately awarded $18,000 in attorney fees to the Board, an amount subsequently
reflected in an “amended judgment” entered by the court.


                                      DISCUSSION


              AWYC challenges the award of attorney fees on three grounds: (1) the
Board was not a “prevailing defendant” (§ 425.16, subd. (c)(1)) in the AWYC I appeal; (2)
the court should not have allowed the Board’s tardy motion for attorney fees; and (3) the
amount of fees awarded was excessive. As we agree with AWYC on its first contention,
we need not address the other two arguments.
              “[A] prevailing defendant on a special motion to strike shall be entitled to
recover his or her attorney’s fees and costs.” (§ 425.16, subd. (c)(1).) “[A]ny SLAPP
defendant who brings a successful motion to strike is entitled to mandatory attorney
fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131; see also Mann v. Quality Old
Time Service, Inc. (2006) 139 Cal.App.4th 328, 339 [“a party need not succeed in striking
every challenged claim to be considered a prevailing” defendant].) The Board was a
“prevailing defendant” with regard to its anti-SLAPP motion and was awarded attorney
fees as described in AWYC I.
              “Since section 425.16, subdivision (c) provides for an award of attorney
fees and costs to a prevailing defendant on a special motion to strike, and does not
preclude recovery of appellate attorney fees by a prevailing defendant-respondent, those
fees are recoverable.” (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47
Cal.App.4th 777, 785.) Had the Board merely defended the judgment in AWYC I, the

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Board would have been entitled to attorney fees and costs incurred on appeal. (See, e.g.,
Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1434 [classifying party as
“prevailing defendant” entitled to recovery of attorney fees incurred on appeal].) But the
Board, in AWYC I, unsuccessfully cross-appealed the amount of attorney fees and costs
awarded by the court. What effect did this unsuccessful cross-appeal have on the Board’s
request for attorney fees incurred in successfully responding to AWYC’s appeal in AWYC
I?
              In AWYC I, this court did not specifically address the question of whether
the Board could be considered a “prevailing defendant” (§ 425.16, subd. (c)(1)) based on
its partial victory. Our disposition (denying the recovery of costs by either side) was
addressed to California Rules of Court, rule 8.278 (rule 8.278). “Except as provided in
this rule, the party prevailing in the Court of Appeal in a civil case other than a juvenile
case is entitled to costs on appeal.” (Rule 8.278(a)(1).) “The prevailing party is the
respondent if the Court of Appeal affirms the judgment without modification or dismisses
the appeal. The prevailing party is the appellant if the court reverses the judgment in its
entirety.” (Rule 8.278(a)(2).) “If the Court of Appeal reverses the judgment in part or
modifies it, or if there is more than one notice of appeal, the opinion must specify the
award or denial of costs.” (Rule 8.278(a)(3).) “In the interests of justice, the Court of
Appeal may also award or deny costs as it deems proper.” (Rule 8.278(a)(5).) “Unless
the court orders otherwise, an award of costs neither includes attorney’s fees on appeal
nor precludes a party from seeking them under [California Rules of Court,] rule 3.1702.”
(Rule 8.278(d)(2).) In sum, while AWYC I conclusively established there was no
prevailing party for purposes of a general award of appellate costs (see § 1034, subd. (b)),
AWYC I did not explicitly foreclose an argument that the Board was the “prevailing
defendant” for purposes of appellate attorney fees under section 425.16, subdivision
(c)(1). (See Butler-Rupp v. Lourdeaux (2007) 154 Cal.App.4th 918, 927 [“a decision



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about the entitlement to costs on appeal is entirely separate from a decision about the
entitlement to attorney fees on appeal”].)
              Case law, however, holds that a split decision on appeal like that occurring
here does not entitle a defendant to recover attorney fees incurred on appeal. (Maughan,
supra, 143 Cal.App.4th at p. 1254.) In Maughan, the plaintiff appealed a judgment
which was entered subsequent to the grant of an anti-SLAPP motion; the defendant cross-
appealed the attorney fees and costs award in the judgment, contending the award was
insufficient. (Id. at p. 1246.) The Maughan court held that plaintiff’s appeal was not
cognizable, as plaintiff did not file a timely notice of appeal from the order granting the
anti-SLAPP motion. (Id. at pp. 1246-1247.) The Maughan court affirmed the judgment
in its entirety, rejecting the defendant’s challenge to the amount of attorney fees and
costs. (Id. at pp. 1249-1253.) The Maughan court then explicitly rejected defendant’s
request for “costs and attorney fees on appeal. This request is denied because there is no
‘prevailing’ party on appeal. . . . [Citation.] Although we affirm the judgment against
[plaintiffs], [defendant] did not ‘prevail’ on appeal because we also affirm the judgment
regarding the award of attorney fees and costs under the anti-SLAPP statute.
Accordingly, we conclude there is no prevailing party.” (Id. at pp. 1253-1254.) In its
disposition, Maughan stated, “Each party shall bear own costs on appeal.” (Id. at p.
1254.)
              This case and Maughan, supra, 143 Cal.App.4th 1242 are nearly identical.
Both cases involve plaintiffs appealing the grant of anti-SLAPP motions and defendants
cross-appealing purportedly insufficient awards of attorney fees and costs. In both cases,
the appeal and cross-appeal failed. The plaintiff’s appeal in Maughan was untimely,
whereas we addressed the merits of AWYC’s appeal in AWYC I. But this is a distinction
without a difference in the context of determining whether the anti-SLAPP defendant in
each case should be considered a “prevailing defendant” on appeal. The effective result
was the same in both cases.

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              The only remaining question is whether, notwithstanding Maughan, the
trial court (or this court, had we reached the issue in AWYC I) was entitled to deem the
Board a “prevailing defendant” on appeal in AWYC I. In other words, was the result in
Maughan one of two reasonable outcomes (i.e., the court could have also awarded
attorney fees to the defendant and still been within its discretion) or was it the only
reasonable outcome as a matter of law (i.e., it would have been error to award the
Maughan defendant attorney fees)? (Cf. Mann v. Quality Old Time Service, Inc., supra,
139 Cal.App.4th at p. 340 [in cases where some but not all causes of action are stricken,
determination whether a defendant has prevailed in bringing its anti-SLAPP motion “lies
within the broad discretion of a trial court”].) In our view, Maughan announced a bright
line rule. (Maughan, supra, 143 Cal.App.4th at pp. 1253-1254.) Maughan did not
carefully parse the relative importance of the results achieved on appeal by each of the
parties. The absence of such textured analysis suggests the Maughan court did not
consider its holding to be an exercise of discretion, but rather considered it clear as a
matter of law that the defendant had not prevailed on appeal. We agree with this
interpretation and application of section 425.16, subdivision (c)(1), and reverse the award
of attorney fees to the Board.




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                                   DISPOSITION


             The order awarding $18,000 in attorney fees and the ensuing “amended
judgment” reflecting this award are reversed. AWYC shall recover costs incurred on
appeal.


                                              IKOLA, J.

WE CONCUR:



O’LEARY, P. J.



RYLAARSDAM, J.




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