Judge: Keri G. Katz, Case: 37-2022-00032618-CU-OR-CTL, Date: 2023-09-29 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - September 28, 2023

09/29/2023  08:30:00 AM  C-74 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Keri Katz

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Civil - Unlimited  Other Real Property Motion Hearing (Civil) 37-2022-00032618-CU-OR-CTL STOTT VS BROWN [IMAGED] CAUSAL DOCUMENT/DATE FILED:

Defendants/Cross-Complainants Kevin Patrick Brown, Thomas Edward Sterling, Kelly Patricia Sterling and Christopher Cacioppo's unopposed motion for attorney's fees is DENIED.

Defendants/Cross-Complainants argue that 'on June 30, 2023, this Court issued an order that confirmed the tentative ruling that Defendants were the prevailing party and denied Plaintiffs' Motion for Attorney's Fees. (Cervantes Decl. ¶ 19, Ex. C.)' [Amended Memorandum of Points and Authorities, p. 5, ll. 15-17.] Preliminarily, ¶ 19 of the Amended Declaration of Katherine E. Cervantes does not refer to an Exhibit C.

It appears the correct citation is to ¶ 11 of the Cervantes declaration. More importantly, however, the language attorney Cervantes states is contained within Exhibit C is not contained therein. Rather, Exhibit C, this court's minute order on Plaintiffs/Cross-Defendants Steven Stott and Debra Stott's motion for attorneys' fees [ROA 120], states, in part: . . . . Considering these circumstances, and absent any reply argument from the Stotts, the court exercises its discretion in favor of a finding that the Stotts are not prevailing parties under CCP § 425.16.

In light of this ruling the court does not reach the other issues Defendants/Cross-Complainants raise.

The court will address the issue of whether Defendants/Cross-Complainants are entitled to recover CCP § 425.16 attorneys' fees at the September 29, 2023, hearing on Defendants/Cross-Complainants' motion for attorneys' fees.

Thus, the court found only that the Stotts were not prevailing parties and specifically stated that the court would resolve Defendants/Cross-Complainants' claims for attorneys' fees on the motion now before this court. Defendants/Cross-Complainants' argument that this court deemed them prevailing parties on the Stotts' CCP § 425.16 motion to strike is without merit.

The court addresses the other arguments Defendants/Cross-Complainants raise.

Defendants/Cross-Complainants seek relief specifically pursuant to CCP § 425.16(c)(1).

(c)(1) Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover that defendant's attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.

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2964584  2 CASE NUMBER: CASE TITLE:  STOTT VS BROWN [IMAGED]  37-2022-00032618-CU-OR-CTL Defendants/Cross-Complainants argue that they are prevailing parties on the Stotts' CCP § 435.16 motion to strike. However, by its express terms CCP § 425.16(c)(1) only allows for the award of attorneys' fees to a 'prevailing defendant.' The Stotts' motion was brought as to Defendants/Cross-Complainants' cross-complaint. As such, Defendants/Cross-Complainants cannot be a 'prevailing defendant.' Instead, if prevailing, Defendants/Cross-Complainants would be a prevailing plaintiff/cross-complainant. Defendants/Cross-Complainants provide no authority allowing for the award of CCP § 425.16 attorneys' fees to a prevailing plaintiff/cross-complainant based solely on status as a prevailing plaintiff/cross-complainant. To the extent Defendants/Cross-Complainants rely on Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, the language relied on is as to a prevailing defendant and is thus inapplicable to Defendants/Cross-Complainants in this case.

The second sentence of CCP § 425.16(c)(1) is expressly applicable to a prevailing plaintiff/cross-complainant. Although Defendants/Cross-Complainants state that the Stotts' CCP § 425.16 motion to strike 'was made in bad faith, [and] was frivolous and solely intended to cause unnecessary delay to the litigation,' and that 'Plaintiffs knew that the filing of such Motion for Anti-SLAPP was frivolous and lacked any legal merit but pursued such Motion with the intent to stay any discovery,' they raise this argument in only conclusory fashion, and fail to cite to any evidence to support it. Nor do they cite to any authority applying the 'frivolous or is solely intended to cause unnecessary delay' standard, or attempt to show that the facts of this case meet it. To the extent Defendants/Cross-Complainants rely on the Cervantes declaration, the only reference to this issue is in ¶ 14. However, the events described occurred after the hearing on the Stotts' CCP § 425.16 motion to strike. Defendants/Cross-Complainants fail to articulate how such events are sufficient to establish that the Stotts' CCP § 425.16 motion to strike, a motion that was at least partially successful, was frivolous or was filed solely to cause unnecessary delay. In these circumstances, the court finds Defendants/Cross-Complainants fail to establish grounds for the award of CCP § 425.16 attorney's fees.

Defendants/Cross-Complainants raise several other arguments. The court finds Defendants/Cross-Complainants reliance on CCP § 1032 misplaced. Even if Defendants/Cross-Complainants were able to establish that they are prevailing parties for purposes of the award of CCP § 1032 costs, Defendants/Cross-Complainants fail to establish grounds for the award of attorneys' fees as costs under CCP § 1033.5(a)(10) as this section allows attorneys' fees as costs only when authorized by contract, statute or law. Defendants/Cross-Complainants reliance on CCP § 128.5 is without merit absent establishing compliance with the 'safe harbor' provision of CCP § 128.5(f)(1).

If this tentative ruling is confirmed the Minute Order will be the final order of the court and the parties shall not submit any further order on this motion.

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