Having a court reporter can be critically important to create an oral record for an appeal, but it is not always necessary. Anti-SLAPP motions, for example, involve questions of law which are reviewed de novo on appeal, so a reporter's transcript is not strictly necessary. But what about on an appeal of an order of anti-SLAPP fees? The answer given in Beck v. Yozura (D4d2 Nov. 7, 2022) No. B313689 (nonpub. opn.) is: Yes, you need a reporter's transcript.
Even if it really seems kind of silly to require a reporter's transcript, like in Beck.
Cynthia Beck sued alleging that Josh Yorzura broke into her house, filmed the inside of her house as well as financial information personal identifying information about her Beck’s minor children, stole property, started a fire, and encouraged others to do the same. Beck sued for trespass, nuisance, conversion, arson, harassment, negligence, and injunctive relief.
Obviously, breaking and entering, theft, arson, etc. are not protected activity. But because the complaint also alleged he had published video doing it and asked the court to order him to knock it off, Yorzura sought refuge for his tortious conduct in the anti-SLAPP statute.
The judge agreed that the allegation that Yorzura’s videos “caused others to commit wrongful acts” involved protected conduct and did not have minimal merit, so struck it from the complaint. But the rest of the allegations—and every single cause of action—remained.
After this rather trifling anti-SLAPP success, Yorzura filed a motion seeking over $25,000 in anti-SLAPP fees. In opposition, Beck noted that, under Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, Yozura was not entitled to fees his success in striking the video allegations so insignificant that he could not be deemed a "prevailing" defendant. Beck also argued the fees requested were excessive given his limited success.
The trial court granted Yorzura’s motion in its entirety, reasoning there was “no practicable way to apportion fees.” Beck appealed.
The Court of Appeal affirmed. As to entitlement to fees, the court held that Yorzura’s limited victory did yield a practical benefit because striking the video allegations meant Beck would not be able to seek injunctive relief on grounds of likelihood of copycats. (But the court did not address the fact that Beck may still seek injunctive relief to prevent further dissemination of her financial information and her children’s identifying information.)
The hearing on the SLAPP fee motion was not reported. But Beck argued that this did not preclude relief on appeal, for two reasons.
First, Beck argued that the narrow exception she was arguing—i.e., that an anti-SLAPP movant that achieved no practical benefit is not entitled to fees—is a question of law. And on questions of law, a reporter's transcript is not really necessary.
The court rejected this. The court reasoned: “The court's determination that Yozura achieved a practical benefit was necessarily grounded in the factual context of the litigation, which that court was better equipped to assess than we are.”
(Comment: This seems spurious to me. All the evidence the trial and appellate courts considered on this point was the same evidence present in the anti-SLAPP motion itself, which is reviewed de novo. And more to the point, the right to SLAPP fees is defined by statute, which does not suggest it is subject to discretion. The “no practical benefit” exception established by Mann depends on a factual finding, i.e., a finding that there is no practical benefit. The court stated that “the parties disputed facts concerning the scope of the remaining litigation.” But whether there is a benefit of the SLAPP ruling at the pleading stage is defined by the pleadings. (Committee on Children’s Television, Inc. v. General Foods Corp. (1983) 35 Cal.3d 197, 211 [the pleadings in a plaintiff’s complaint frame and limit the issues of the case].) So to this extent, the facts—i.e., what the pleadings says—were undisputed, and so the trial court’s ruling on these undisputed facts should have been reviewed de novo.)
Second, Beck argued the trial court erred by granting Yorzura’s fees in their entirety, when he had only prevailed on a small sliver of his motion. Beck acknowledged that this challenge normally would fail without a reporter's transcript of the fee hearing. (See, e.g., Rhule v. WaveFront Technology, Inc. (2017) 8 Cal.App.5th 1223, 1228-1229.) But here, the trial court had impliedly admitted in its written order that it did not consider the limited nature of Yorzura’s success by stating the court “sees no practicable way to apportion fees.”
The Court of Appeal disagreed that the trial court failed to consider the limited nature of Yorzura’s success. The court noted that the parties’ briefing addressed this issue, and its order cited Mann for the “no practicable benefit” exception.
And even if that were not enough, the court went on to state that “we would presume the court did so at the hearing, in light of Beck's failure to provide a reporter's transcript or authorized substitute.”
(Comment: It is true that a reviewing court reviews the trial court’s ruling, not its reasoning. For this reason, it seems immaterial whether there is a reporter's transcript: the Court of Appeal must affirmed on any available ground, whether or not stated by the trial court. But that rule does not apply where the record affirmatively indicates the trial court did not consider something. That is what Beck argued here. So it seems off the mark for the Court of Appeal to fault Beck for the lack of a transcript. And given the statewide court-reporter shortage, it seems imprudent to force litigants to bring precautionary reporters to hearings involving only questions of law and no testimony.)
As an aside, the court stated that Beck was not entitled to a more detailed discussion of the Mann factors “because she did not request a statement of decision.” Quoting Mann at page 342, note 6, "a trial court is not required to issue a statement of decision with regard to a fee award, unless a party timely requests one.”
Is a statement of decision available on a motion for attorney fees? Courts have been less clear on this subject in other cases. (Compare Maria P. v. Riles (1987) 43 Cal.3d 1281, 1294 [“[W]e have discovered no case requiring a statement of decision for an order on a motion for attorney fees.”] and Abdelqader v. Abraham (2022) 76 Cal.App.5th 186 [absence of findings required by statute held reversible per se despite lack of request for statement of decision].)
(Disclosure: The appellant’s attorney, Jeff Lewis, is co-host of the California Appellate Law Podcast with the author.)
Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes summaries of cases and appellate tips for trial attorneys at www.tvalaw.com/articles. Contact Tim at email@example.com or (714) 641-1232.
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