Judge Kerry Bensinger, Case Number: 21STCV22340, Date: 2025-01-23 Tentative Ruling

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Plaintiff, John Cadusale, initiated this wrongful termination action against Defendants, Alameda Restaurant LLC, Noypitz Bar & Grill LLC, Lauro Calonzo (“Calonzo”), and Wokcano Cerritos, LLC. As relevant here, Calonzo is presently self-represented.

Calonzo filed a Cross-Complaint, and later, his First Amended Cross-Complaint (FACC). Plaintiff moved to strike the entire FACC pursuant to Code of Civil Procedure section 425.16. The court granted Plaintiff’s special motion to strike on October 31, 2023. Judgment was entered on November 15, 2023.

Calonzo filed a motion for reconsideration of the court’s October 31, 2023, order. The court denied the motion for reconsideration on December 13, 2023.

On February 13, 2024, Calonzo filed a Notice of Appeal of the court’s December 13, 2023, order.

On March 15, 2024, the court stayed this action pending the outcome of the appeal.

On September 19, 2024, the Court of Appeal issued a remittitur dismissing Calonzo’s appeal. Pursuant to the remittitur, Cadusale is entitled to costs on appeal.

On October 29, 2024, Cadusale filed this Motion for Attorneys’ Fees and Costs on Appeal, and concurrently filed a Memorandum of Costs.

Cadusale moves the court to recover $11,865 in attorney’s fees and $2,392.34 in costs incurred in connection to Calonzo’s appeal. California Rules of Court (“CRC”), Rule 8.278 provides that “the prevailing party in the Court of Appeal in a civil case . . . is entitled to costs on appeal.” (CRC, rule 8.278(a)(1).) “The prevailing party is the respondent if the Court of Appeal . . . dismisses the appeal.” (CRC, rule 8.278(a)(2).) “Unless specifically provided otherwise, a statute or contract allowing recovery of attorney fees at trial also authorizes attorney fees on appeal.” (Weil & Brown, Cal. Prac. Guide Civ. Trials & Ev. (The Rutter Group 2023) ¶ 17:1022 citing, Serrano v. Unruh (1982) 32 Cal.3d 621, 637; Evans v. Unhoui (1995) 38 Cal.App.4th 1490, 1499; see also Warren v. Kia Motors America, Inc. (2018) 30 Cal.App.5th 24, 46 citing Graciano, supra, 144 Cal.App.4th at p. 165 [“‘Statutory authorization for the recovery of attorney fees incurred at trial necessarily includes attorney fees incurred on appeal unless the statute specially provides otherwise’”]; CRC, rule 8.278.) A defendant who prevails on a special motion to strike is entitled to an award of attorney fees on appeal, pursuant to the anti-SLAPP statute’s attorney fee statute provision. (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1426.)

Here, the Court of Appeal dismissed Calonzo’s appeal of the court’s December 13, 2023, order denying reconsideration of the court’s October 31, 2023, order granting Cadusale’s special motion to strike. Cadusale, as a cross-defendant, is therefore the prevailing party and entitled to an award of attorneys’ fees and costs. Further, given there is no opposition to the motion, the court finds Cadusale’s requested sum of $11,865 in attorney’s fees and $2,392.34 in costs was reasonably incurred in defending Calonzo’s appeal.

Based on the foregoing, the unopposed Motion for Attorneys’ Fees and Costs on Appeal is GRANTED. Plaintiff is awarded $11,865 in attorney’s fees and $2,392.34 in costs for the total sum of $14,257.34.

Kerry Bensinger

Judge of the Superior Court