Filed 7/3/14 GetFugu v. Boggs CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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

                                     SECOND APPELLATE DISTRICT

                                                DIVISION THREE



GETFUGU, INC., et al.,                                                   B235138

         Plaintiffs and Appellants,                                     (Los Angeles County
                                                                        Super. Ct. No. BC444530)
         v.

PATTON BOGGS et al.,

         Defendants and Respondents.




         APPEAL from an order of the Superior Court of Los Angeles County,
David L. Minning, Judge. Reversed and remanded with directions.
         McKenna Long & Aldridge, Charles A. Bird and Theona Zhordania; Shepard
Mullin Richter & Hampton and Theona Zhordania for Plaintiffs and Appellants.
         Robie & Matthai, Edith R. Matthai, Kyle Kveton and Natalie A. Kouyoumdjian
for Defendants and Respondents.

                                        _________________________
       Plaintiffs and appellants GetFugu, Inc. (GetFugu), Carl Freer (Freer) and Richard
Jenkins (Jenkins) (collectively, Plaintiffs) appeal an order awarding $120,000 in attorney
fees to defendants and respondents Patton Boggs, LLP (Patton or the Patton firm),
Richard J. Oparil (Oparil), Cummins & White LLP (Cummins or the Cummins firm) and
Iman Reza (Reza) (collectively, the Attorney Defendants) after they prevailed on a
special motion to strike (Code Civ. Proc., § 425.16).1
       In the prior appeal in this matter, GetFugu, Inc. v. Patton Boggs LLP (2013)
220 Cal.App.4th 141 (GetFugu I), this court partially reversed the trial court’s order
granting the special motion to strike. We reversed with respect to a cause of action by
GetFugu and Freer against Oparil and Patton for defamation based on a March 22, 2010
press release; in all other respects the order granting the special motion to strike was
affirmed. However, the partial reversal requires the trial court to revisit the issue of
attorney fees.
       Therefore, the attorney fee order is reversed with directions.
                  FACTUAL AND PROCEDURAL BACKGROUND
       1. The operative complaint.
       Following a shareholder lawsuit against GetFugu, Freer and Jenkins, they filed
this action against two attorneys and their law firms for malicious prosecution and
defamation.
       On September 20, 2010, GetFugu, Freer and Jenkins, filed the operative first
amended complaint against the Attorney Defendants, alleging causes of action for
malicious prosecution and defamation.
       2. Special motion to strike.
       On November 22, 2010, the Attorney Defendants filed a special motion to strike
the first amended complaint. The moving papers asserted, inter alia, the complaint was
subject to a special motion to strike because it was based upon petitioning activity and


1
      All further statutory references are to the Code of Civil Procedure, unless
otherwise specified.
                                              2
statements made by Oparil in anticipation of, or in connection with, an issue pending
before an official proceeding. Further, because the anti-SLAPP statute was implicated,
the burden shifted to Plaintiffs to demonstrate a probability of prevailing on their claims
against the Attorney Defendants.
       With respect to the merits, the Attorney Defendants argued Plaintiffs were
incapable of prevailing on the defamation claim because the allegedly defamatory
statements and writings were shielded by the litigation privilege (Civ. Code, § 47,
subd. (b)), and in any event, either were truthful or consisted of non-actionable opinion.
They also contended Plaintiffs were incapable of prevailing on the malicious prosecution
claim because they could not show a favorable termination of the underlying action.
       3. Trial court’s ruling granting special motion to strike.
       On January 20, 2011, the matter came on for hearing. After taking the matter
under submission, the trial court granted the Attorney Defendants’ special motion to
strike, with respect to both the malicious prosecution claim and the claim for defamation.
       The trial court noted Plaintiffs’ concession that their cause of action for malicious
prosecution was defective. In granting the special motion to strike with respect to the
malicious prosecution claim, the trial court cited Plaintiffs’ admission that “ ‘there has
not yet been a “favorable termination” of the underlying action.’ ”
       As for the defamation claim, the trial court ruled Plaintiffs could not show they
were capable of prevailing because the defamation claim was barred by the litigation
privilege. Further, “ ‘the documents directly attributable to the moving defendants
[a press release and a Tweet] are not defamatory but accurate notifications of RICO
claims and a restatement of the allegations in general form.’ ”
       On March 21, 2011, GetFugu, Jenkins and Freer filed notice of appeal from the
January 20, 2011 order granting the Attorney Defendants’ special motion to strike.
       4. Fee award to Attorney Defendants following the grant of their special
motion to strike.
       On May 5, 2011, during the pendency of the prior appeal, the Attorney
Defendants filed a motion for an award of attorney fees and costs, on the ground they

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were entitled to such recovery as the prevailing defendants on a special motion to strike.
(§ 425.16, subd. (c).)
       On August 3, 2011, the trial court granted the motion and directed the Plaintiffs to
pay $120,000 to the Attorney Defendants within 10 days.
       On August 11, 2011, GetFugu, Jenkins and Freer filed notice of appeal from the
attorney fee order, which is the subject of the instant appeal. We stayed the briefing of
the attorney fee appeal pending the final outcome of the appeal from the order granting
the special motion to strike.
       5. The previous appeal; partial reversal of order granting special motion
to strike.
       In GetFugu I, supra, 220 Cal.App.4th 141, decided in October, 2013, this court
reversed the order granting the special motion to strike solely with respect to the cause of
action by GetFugu and Freer as against Oparil and Patton for defamation based on the
March 22, 2010 press release.2 We determined the press release was not shielded by the
litigation privilege and that the evidence was in conflict as to whether the gist of the press
release was true. Therefore, the defamation claim by GetFugu and Freer, insofar as it
was based on the press release, possessed sufficient merit to withstand the special motion
to strike. (Id. at pp. 152-154.)
       Unlike the press release, the Tweet by Oparil was merely nonactionable opinion,
and therefore Plaintiffs were incapable of prevailing on that aspect of the defamation
claim. (GetFugu, supra, 220 Cal.App.4th at pp. 155-156.)3
       As for Jenkins, the order granting the special motion to strike was affirmed in full.
We concluded Jenkins failed to meet his burden to show his defamation claim had any


2
       “The gist of the press release [was] that the FBI was conducting a criminal
investigation of GetFugu’s Freer, independent of [a] civil RICO suit . . . .” (GetFugu,
supra, 220 Cal.App.4th at p. 154.)
3
       The Tweet by Oparil, in its entirety, stated as follows: “ ‘GetFugu runs an
organization for the benefit of its officers and directors, not shareholders and employees.
The RICO suit was not frivolous. The 500K lawsuit is frivolous, however, so buyer be
wary.’ ” (GetFugu I, supra, 220 Cal.App.4th at p. 156.)
                                              4
merit; the March 22, 2010 press release by Oparil did not mention Jenkins. (GetFugu I,
supra, 220 Cal.App.4th at p. 152, fn. 11.)
       As for Oparil and Patton’s codefendants, namely, Reza and Cummins, the order
granting the special motion to strike was affirmed in full; none of the allegedly
defamatory statements on which Plaintiffs relied was attributed to Reza or Cummins.
(GetFugu I, supra, 220 Cal.App.4th at p. 150.)
       Lastly, the trial court’s grant of the special motion to strike with respect to the
cause of action for malicious prosecution was not raised on appeal. Plaintiffs limited
their appeal from the order granting the special motion to strike to the viability of their
defamation claim. (GetFugu I, supra, 220 Cal.App.4th at p. 147, fn. 7.)
       Following the issuance of GetFugu I, the parties filed their briefs in the instant
appeal from the attorney fee order, addressing the impact of GetFugu I on this matter.
                                     CONTENTIONS
       In their opening brief, Plaintiffs contend that in light of GetFugu I, this court
should direct the trial court to deny attorney fees to Patton and Oparil against GetFugu
and Freer, and the trial court should be directed to reconsider all other awards in light of
the fees actually incurred by the defendants to the extent of their success against
particular plaintiffs. In their reply brief, Plaintiffs request “a summary reversal setting
the attorney fee matter at large in superior court.”
                                       DISCUSSION
       1. Appealability of attorney fee order.
       The trial court’s January 20, 2011 order granting the special motion to strike,
which effectively disposed of the entire case, amounted to a final judgment. Therefore,
the August 3, 2011 order awarding attorney fees to the Attorney Defendants is appealable
under section 904.1, subdivision (a)(2), as a postjudgment order. (Melbostad v. Fisher
(2008) 165 Cal.App.4th 987, 994-996.)




                                              5
       2. Impact of GetFugu I on Attorney Defendants’ right to attorney fees and costs.
       The controlling statute, section 425.16, states in relevant part at subdivision (c)
that “a prevailing defendant on a special motion to strike shall be entitled to recover his
or her attorney’s fees and costs.” Therefore, the Attorney Defendants are entitled to
recover attorney fees and costs insofar as they prevailed on their special motion to strike.
              a. Reza and Cummins were fully successful on special motion to strike and
therefore are entitled to recover statutory attorney fees and costs.
       Two of the Attorney Defendants, Reza and Cummins, fully prevailed on the
special motion to strike. They defeated both the malicious prosecution and the
defamation claims of GetFugu, Jenkins and Freer.
       Therefore, Reza and Cummins are entitled to recover their reasonable attorney
fees and costs as against GetFugu, Jenkins and Freer.
              b. Oparil and Patton were partially successful on the special motion to
       strike, entitling them to a partial recovery of attorney fees and costs.
       Oparil and Patton were fully successful as against Jenkins. They successfully
moved to strike both of Jenkins’s causes of action -- malicious prosecution and
defamation. Therefore, Oparil and Patton are entitled to recover their reasonable attorney
fees and costs as against Jenkins.
       Oparil and Patton also are entitled to recover reasonable attorney fees and costs as
against GetFugu and Freer insofar as Oparil and Patton successfully moved to strike
GetFugu and Freer’s cause of action for malicious prosecution.
       Following the issuance of GetFugu I, the sole surviving claim is the cause of
action by GetFugu and Freer against Oparil and Patton for defamation. Therefore, Oparil
and Patton are not entitled to recover attorney fees attributable to GetFugu and Freer’s
defamation claim.




                                              6
                                     DISPOSITION
       The August 3, 2011 order is reversed and the matter is remanded for further
proceedings consistent with the principles set forth in section 2 of the Discussion
portion of this opinion. Each party shall bear its own costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                        KLEIN, P. J.


       We concur:



                     CROSKEY, J.




                     KITCHING, J.




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