Filed 8/31/21 Wymont Services Limited v. Handal & Associates 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
WYMONT SERVICES LIMITED et al.,
Plaintiffs and Appellants, G059353
v. (Super. Ct. No. 30-2017-00920613)
HANDAL & ASSOCIATES, INC., et al., OPINION
Defendants and Respondents.
Appeal from an order of the Superior Court of Orange County, Theodore R.
Howard, Judge. Affirmed.
Bremer Whyte Brown & O’Meara, Nicole Whyte and Benjamin J. Price;
Newmeyer & Dillion, Gregory L. Dillion, J. Nathan Owens and Jason Moberly Caruso
for Plaintiffs and Appellants.
Murchson & Cumming, Anton N. Handal; Freeman Mathis & Gary,
Frances M. O’Meara and Diana Leon for Defendants and Respondents.
* * *
Based on events that occurred during an underlying matter, appellants
Wymont Services Limited, et al. (the Wymont entities) sued respondents Handal &
Associates, Inc., and attorney Anton Handal (collectively H&A), for legal malpractice.
H&A cross-complained, seeking $5 million in attorney fees under contractual theories of
relief. In due course, H&A amended their cross-complaint to include a cause of action
for false promise. The Wymont entities demurred successfully, and H&A amended their
complaint again, adding additional facts. The Wymont entities then filed a special
motion to strike under Code of Civil Procedure section 425.161 (the anti-SLAPP statute)
more than three months after H&A had amended their cross-complaint to add a cause of
action for false promise. Pursuant to section 425.16, subdivision (f), anti-SLAPP motions
must be filed within 60 days of service of a challenged pleading. Under relevant case
law, the trial court found appellants’ motion untimely, and we agree. We therefore affirm
the court’s order denying the motion.
H&A also requests attorney fees, which are appropriate if a defendant (or
cross-defendant) files a frivolous appeal solely for the purpose of causing delay. While
we squarely reject the Wymont entities’ argument that such fees are never available on
appeal, we find the appeal, while lacking merit, does not qualify as frivolous, and
therefore deny H&A’s request.
I
FACTS
Background
The underlying case has visited this court twice. (See Lindsey v. Conteh
(2017) 9 Cal.App.5th 1296 (Lindsey I) and Lindsey et al. v. Conteh et al. (Jan. 18, 2019,
G054219) [nonpub. opn.] (Lindsey II).) This court has also decided an anti-SLAPP
1
Subsequent statutory references are to the Code of Civil Procedure unless otherwise
indicated.
2
appeal in a related case (Conteh et al. v. Wymont Services Limited et al. (Nov. 14, 2019,
G057161) [nonpub. opn.] (Conteh)). For brevity’s sake, we provide only the facts critical
to the particular issues in this appeal. A more complete background can be found in the
prior opinions, particularly Lindsey I.
Very briefly, Alieu B. M. Conteh formed African Wireless, Inc. (AWI), in
1990 as a Delaware corporation. In 1997, he formed Congolese Wireless Network SPRL
(Congolese Wireless) under the laws of the Democratic Republic of the Congo. AWI
was principally a holding company for a 60 percent interest in Congolese Wireless.
(Lindsey I, supra, 9 Cal.App.5th at p. 1299.) As of 2018, the Wymont entities, which
was composed of Wymont Services Ltd., James R. Lindsey (as trustee of the Lindsey
Family Trust), William Buck Johns, and Marc Van Antro, were minority shareholders,
represented by Jonathan B. Sandler. (Conteh, supra, G057161.)
In 2017, the Wymont entities and other parties filed the Lindsey action as a
shareholder derivative suit on behalf of AWI as well as on their own behalf, alleging a
long history of malfeasance on Conteh’s part. (Lindsey II, supra, G054219.) H&A
represented the Wymont entities.
To make a very long story short, the case resulted in terminating sanctions
against Conteh and related defendants, resulting in a default judgment of approximately
$93 million and the creation of a constructive trust on behalf of AWI. Conteh and related
defendants were ordered to turn over certain shares and companies. Conteh and the
related defendants appealed, and we ultimately affirmed the judgment. (Lindsey II,
supra, G054219.) Collection efforts, unfortunately, led to more disputes. (Conteh,
supra, G057161.)
The Alleged Malpractice
According to the Wymont entities’ amended complaint in the instant
matter, H&A committed malpractice by filing complaints in the Lindsey action that did
3
not specify the amount of damages, but sought damages in an amount to be proved at
trial. After the default judgment was entered in Lindsey, the court warned the plaintiffs in
the matter “that the relief on default could not exceed the amount demanded in the
complaint.” According to the Wymont entities, H&A did not seek their consent to
proceed without amending the complaint, nor did H&A explain the risks and
consequences of failing to state a specific amount of damages.
The default prove-up proceeded with the complaint that alleged damages
according to proof at trial. Thus, according to the Wymont entities, their judgment
against Conteh and the related parties constituted a constructive trust instead of damages
of at least $530 million, plus costs and attorney fees.
Relevant Procedural History of the Instant Case
On May 16, 2017, while the underlying litigation was still pending, the
Wymont entities filed the instant malpractice case. On August 3, 2017, the trial court
ordered the malpractice action stayed pending this court’s decision in the Lindsey case.
Despite the stay, H&A filed an answer and a cross-complaint on August 9,
2017. As relevant here, the cross-complaint alleged that based on the parties’ retainer
agreement, under either a breach of contract or anticipatory breach theory, the Wymont
entities owed H&A $5 million.
This court decided Lindsey II in January 2019. (Lindsey II, supra,
G054219.) The trial court lifted the stay on May 31. In September 2019, the Wymont
entities filed a first amended complaint, alleging causes of action for negligence and
breach of contract, both on their own behalf and derivatively of AWI. The first amended
complaint demanded “[d]amages according to proof of not less than $599 million” on the
negligence claim and “[d]amages of not less than $521,000” on the breach of contract
claim, representing “fees and costs paid to [H&A] which were higher than the value of
the legal services” received.
4
H&A filed a first amended cross-complaint was filed on December 4, 2019.
The first amended cross-complaint alleged six causes of action, including a cause of
action for false promise. As pertinent here, the false promise claim (which incorporated
facts from elsewhere in the first amended cross-complaint) alleged that as of 2014, H&A
agreed to represent the Wymont entities for a reduced monthly fee plus a percentage of
any recovery, which the first amended cross-complaint referred to as the “Handal Fee.”
According to H&A, it produced numerous drafts of a written fee
agreement, which the Wymont entities did not sign. They nonetheless paid the reduced
fee in the amounts they had agreed to. Eventually, the Wymont entities produced their
own proposed retainer agreement, which incorporated a second document called the
common interest agreement. H&A executed the agreement. H&A alleged that it
vigorously represented the Wymont entities in the Lindsey action, including obtaining
sanctions for discovery abuse, and secured an enforceable judgment for approximately
$93 million. Thereafter, and according to H&A, in anticipation of the almost $5 million
contingency fee owed, the Wymont entities attempted to terminate H&A’s representation.
2
The false promise cause of action alleged:
“35. Handal alleges that the Cross-Defendants fraudulently promised to
compensate it the full amount of the Handal Fee in exchange for Handal agreeing to
represent them in the Underlying Shareholder Derivative Action. Handal alleges that
Cross-Defendants did not intend to perform their promise when they made it. Cross-
Defendants made the alleged false promises with the intent of inducing Handal’s reliance
thereon.
“36. Handal reasonably relied on the Cross-Defendants’ false promise
because of a long relationship it had with Lindsey and the Cross-Defendants’ promise to
2
In the interest of quoting the exact language, we leave the allegations unchanged.
“Cross-Defendants” refers to the Wymont entities, and “Handal” collectively refers to
H&A.
5
make regular maintenance fee payments, which were significantly lower than Handal
would have earned had it undertaken the engagement on its standard hourly rates.
“37. When Handal’s performance was complete, the Cross-Defendants
failed and refused to pay the Handal Fee resulting in harm to Handal.
“38. Handal was damaged as a result of the Cross-Defendants’ false
promise to compensate it the Handal Fee after undertaking to represent them in the
Underlying Shareholder Derivative Action. Handal’s reliance on the Cross-Defendants’
false promise proximately caused it to refuse other business or opportunities and
consequently to lose revenue in addition to not receiving the promised Handal Fee.
Handal’s damages will be proven at trial but is believed to exceed $4,685,000.”
The Wymont entities demurred to the first amended cross-complaint,
including the false promise cause of action. The stated grounds were failure to state a
claim on which relief may be granted and that the cause of action was based on a “sham”
allegation. (§ 430.10, subd. (e).)
The trial court sustained the demurrer to this cause of action, stating: “A
cause of action for promissory fraud (aka false promise) requires the plaintiff to allege (1)
a precise promise to do something in the future, (2) lack of intention to do so at the time
the promise was made, (3) the promise was intended to deceive and induce reliance, (4)
that it did induce reliance, and (5) that this reliance resulted in damages. [Citations.]
Since Handal concedes that cross-defendants paid $315,000.00 in fees, there is no factual
basis from which to find that cross-defendants had no intention of honoring any
agreement when it was entered. There are no facts alleged to show an absence of intent
to perform.” The court granted leave to amend.
H&A filed its second amended cross-complaint on March 3, 2020, adding
additional facts to its claim for false promise. The false promise claim was amended to
be far more specific and to address the court’s concern regarding prior payments:
6
“30. Handal alleges that in exchange for Handal agreeing to represent them
in the Underlying Shareholder Derivative Action, Cross-Defendants promised to
compensate Handal the Handal Fee, which included monthly maintenance payments on
regular intervals plus contingency fees equal to a percentage of the sale of their individual
ownership interests in AWI or Congolese Wireless Network (‘CWN’) and a percentage
of any net recovery against the Defendants in the Underlying Shareholder Derivative
Action (hereafter ‘the Contingency Fee’). The Cross-Defendants, and each of them, made
their promises and representations to pay the Contingency Fee to Anton Handal on behalf
of H&A on a number of occasions including during meetings between March 30 - 31,
2015, at the AKA Whitehouse, located at 1710 H Street NW, Washington DC. Cross-
Defendants also represented to Anton Handal on behalf of H&A that they would pay the
Contingency Fee on May 6, 2015 in the form of a spreadsheet prepared by Wymont and
Lindsey that set forth the Contingency Fees payable to H&A and again on July 1, 2015 to
Anton Handal at the offices of Haight Brown Bonesteel, in Irvine California.
“31. Handal alleges that Cross-Defendants promises and representations to
pay the Contingency fee were false and that they never intended to perform their promise
to pay the Contingency fee portion of the Handal Fee. Handal further alleges that the
Cross-Defendants made these false promises in order to induce Handal to undertake and
continue to prosecute the Underlying Shareholder Derivative Action for the reduced
maintenance payment instead of taking the case on an agreed hourly rate basis.
“32. Handal reasonably relied on the Cross-Defendants’ false promises
because of a long relationship it had with Lindsey and their partial performance in
making the regular maintenance fee payments, which were significantly lower than
Handal would have earned had it undertaken the engagement on the negotiated and
agreed hourly rates set forth in the Cross-Defendants’ Retainer Agreement.
“33. Handal did not learn the Cross-Defendants’ real intent until a series of
meetings it had with Lindsey and Jonathan Sandler on behalf of Wymont, after H&A had
7
successfully secured a judgment in AWI’s favor. During those meetings, which occurred
during the first week of September 2016, Handal was asked to defraud its malpractice
carrier on behalf of the Cross-Defendants so that the proceeds from a bogus malpractice
claim could be used to pay a portion of the Cross-Defendants’ Contingency Fee
obligation so that the Cross-Defendants would not have to fulfill their promises to Handal
or pay him themselves. Handal refused.
“34. When Handal’s performance was complete, the Cross-Defendants
failed and refused to pay the Contingency Fee portion of the Handal Fee resulting in
harm to Handal. Handal was damaged as a result of the Cross-Defendants false promises
to compensate it the full Handal Fee after undertaking to represent them in the
Underlying Shareholder Derivative Action, because it agreed to forego payments of fees
on the negotiated and agreed hourly rates set forth in the Cross-Defendants’ Retainer
Agreement. H&A believes the fees earned under the agreed hourly rates would have
totaled no less than $4,685,000. Handal’s reliance on the Cross-Defendants’ false
promise also proximately caused it to refuse other business or opportunities and
consequently lose revenue in addition to not receiving the promised Handal Fee.
Handal’s damages will be proven at trial but is believed to exceed $4,685,000.
“35. Cross-Defendants’ conduct was willful, malicious, and fraudulent in
that they intentionally defrauded Handal into prosecuting the Underlying Shareholder
Derivative Claim for what they knew was less than Handal’s regular hourly rates on the
promise that Handal would receive the Contingency Fee. Cross-Defendants’ conduct was
malicious and fraudulent as evidenced by their attempt to conspire with Handal to file a
false insurance claim in violation of California Penal Code § 550 or other applicable
provisions of law. Such conduct justifies an award against the Cross-Defendants of
punitive and exemplary damages in an amount to be proven at trial but not less than 3
times the amount of Handal’s damages.”
8
The Wymont entities filed the instant anti-SLAPP motion on March 25,
2020. They moved to strike both the entire false promise cause of action as well as
paragraphs 33 and 35. The Wymont entities argued H&A’s claims arose from settlement
discussions that took place in September 2016 and were therefore subject to the anti-
SLAPP statute. On July 21, 2020, they filed what they characterized as a “supplemental”
memorandum of points and authorities on the anti-SLAPP motion.
H&A opposed, arguing both the substance as well as that the motion was
untimely. The Wymont entities filed a reply and 18 objections to H&A’s evidence.
The trial court denied the motion on the basis that the motion was untimely.
The Wymont entities now appeal.
II
DISCUSSION
Relevant Law and Standard of Review
The purpose of the anti-SLAPP statute is to dismiss meritless lawsuits
designed to chill the defendant’s free speech rights at the earliest stage of the case. (See
Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815, fn. 2, disapproved on another
ground in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5.)
“An anti-SLAPP motion is not a vehicle for a defendant to obtain a dismissal of claims in
the middle of litigation; it is a procedural device to prevent costly, unmeritorious
litigation at the initiation of the lawsuit.” (San Diegans for Open Government v. Har
Construction, Inc. (2015) 240 Cal.App.4th 611, 625-626.)
“‘The special motion may be filed within 60 days of the service of the
complaint or, in the court’s discretion, at any later time upon terms it deems proper. The
motion shall be scheduled by the clerk of the court for a hearing not more than 30 days
after the service of the motion unless the docket conditions of the court require a later
hearing.’ (§ 425.16, subd. (f).) The purpose of the time limitation is to permit ‘“the
9
defendant to test the foundation of the plaintiff’s action before having to ‘devote its time,
energy and resources to combating’ a ‘meritless’ lawsuit. . . .”’ [Citation.] The statutory
deadline also seeks ‘“to avoid tactical manipulation of the stays that attend anti-SLAPP
proceedings.”’ [Citation.] All discovery is automatically stayed once an anti-SLAPP
motion is filed. (§ 425.16, subd. (g).)” (San Diegans for Open Government v. Har
Construction, Inc., supra, 240 Cal.App.4th at p. 624.)
We review an order granting or denying an anti-SLAPP motion de novo.
(Karnazes v. Ares (2016) 244 Cal.App.4th 344, 351.) This standard also applies to the
question of whether the motion was timely. (Starview Property, LLC v. Lee (2019) 41
Cal.App.5th 203, 208 (Starview Property).)
Timeliness
The anti-SLAPP motion at issue here was filed on March 25, 2020. While
this was within 60 days of the filing of the second amended cross-complaint, which was
filed on March 3, 2020, it was over 90 days from the first time the false promise cause of
action appeared in the first amended cross-complaint, which was filed on December 4,
2019. Thus, we must examine the relevant law to determine which cross-complaint
triggered the 60-day limit.
As noted above, an anti-SLAPP “motion may be filed within 60 days of the
service of the complaint.” (§ 425.16, subd. (f).) The word “complaint,” in this context,
“has been interpreted to include amended complaints.” (Newport Harbor Ventures, LLC
v. Morris Cerullo World Evangelism (2016) 6 Cal.App.5th 1207, 1217) (Newport I).)
The purpose behind this interpretation is “to prevent sharp practice by plaintiffs who
might otherwise circumvent the statute by filing an initial complaint devoid of qualifying
causes of action and then amend to add such claims after 60 days have passed.”
(Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174, 1192, fn. 11.)
10
But not any amendment to the complaint will suffice to restart the 60-day
period during which a defendant may file an anti-SLAPP motion. “a defendant must file
an anti-SLAPP motion within 60 days of service of the first complaint (or cross-
complaint, as the case may be) that pleads a cause of action coming within [the anti-
SLAPP statute] unless the trial court, in its discretion and upon terms it deems proper,
permits the motion to be filed at a later time (§ 425.16(f)).” (Newport I, supra, 6
Cal.App.5th at p. 1219.) “An amended complaint reopens the time to file an anti-SLAPP
motion without court permission only if the amended complaint pleads new causes of
action that could not have been the target of a prior anti-SLAPP motion, or adds new
allegations that make previously pleaded causes of action subject to an anti-SLAPP
motion.” (Ibid.)
In its review of the Newport case, the California Supreme Court agreed:
“[S]ection 425.16, subdivision (f), should be interpreted to permit an anti-SLAPP motion
against an amended complaint if it could not have been brought earlier, but to prohibit
belated motions that could have been brought earlier (subject to the trial court’s
discretion to permit a late motion).” (Newport Harbor Ventures, LLC v. Morris Cerullo
World Evangelism (2018) 4 Cal.5th 637, 645.)
“By its terms, the anti-SLAPP statute is directed at striking causes of
action, not merely factual allegations.” (Starview Property, supra, 41 Cal.App.5th at
p. 209.) “Assertions that are ‘merely incidental’ or ‘collateral’ are not subject to section
425.16. [Citations.] Allegations of protected activity that merely provide context,
without supporting a claim for recovery, cannot be stricken under the anti-SLAPP
statute.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 394, italics added.)
With these principles in mind, we examine the differences between the
false promise claim in the first and second amended cross-complaints. The first amended
cross-complaint’s false promise claim included few specifics and required a contextual
understanding of the rather complex facts of the case to understand what H&A was
11
attempting to allege. It referred to “the full amount of the Handal Fee,” and claimed the
Wymont entities never intended to pay the full amount, and in fact did not pay it.
Understanding what this meant required referring back to the general factual allegations
at the beginning of the complaint, which explained that fee was comprised of “reduced
fee paid monthly plus a percentage of any recovery.”
The trial court’s ruling on the demurrer to the first amended cross-
complaint reflected the lack of precision in H&A’s pleading, noting that “Since Handal
concedes that cross-defendants paid $315,000.00 in fees, there is no factual basis from
which to find that cross-defendants had no intention of honoring any agreement when it
was entered.” It was unclear that H&A was not alleging that the Wymont entities had not
intended to pay any part of the allegedly agreed-upon fees, but the contingent fee portion
in particular. The court also stated: “There are no facts alleged to show an absence of
intent to perform.”
The second amended cross-complaint set out to fix these deficiencies. It
begins by explaining that the Handal fee “included monthly maintenance payments on
regular intervals plus contingency fees equal to a percentage of the sale of their individual
ownership interests in AWI or Congolese Wireless Network (‘CWN’) and a percentage
of any net recovery against the Defendants in the Underlying Shareholder Derivative
Action (hereafter ‘the Contingency Fee’).” This addressed the first issue raised by the
trial court in its ruling on the demurrer to the first amended cross-complaint.
The rest of the allegations set out to address the second issue specified by
the trial court, the lack of facts alleged to show an absence of intent to perform. H&A
cited meetings on specific dates with named individuals present and set forth facts it
claimed supported the lack of intent to perform. This included the allegation that Handel
was asked to “defraud its malpractice carrier on behalf of the Cross-Defendants so that
the proceeds from a bogus malpractice claim could be used to pay a portion of the Cross-
12
Defendants’ Contingency Fee obligation so that the Cross-Defendants would not have to
fulfill their promises to Handal or pay him themselves.”
The next paragraph specifically alleged the Wymont entities refused to pay
the contingency fee portion of the fee agreement, and the final paragraph alleged the
conduct was so egregious as to warrant punitive damages.
The trial court found these additional facts did not create a new cause of
action. “[T]he first iteration of false promise and basically the same as the second
iteration, particularly because the issue is what was in cross-defendants’ mind when the
promise was made.” We agree. “When a plaintiff has alleged protected activity, but no
corresponding legal theory for relief, there is no claim arising from anything, let alone
one arising from protected conduct.” (Starview Property, supra, 41 Cal.App.5th at
p. 210.)
The additional allegations were merely context, or in the words of the trial
court, “put[ting] more meat on the bone.” The new allegations did not create a cause of
action, nor, despite the Wymont entities claims to the contrary, they did add “new
allegations that make previously pleaded causes of action subject to an anti-SLAPP
3
motion.” (Newport I, supra, 6 Cal.App.5th at p. 1219.)
Further, we reject the Wymont entities’ assertion that a request for punitive
damages is a “cause of action.” Punitive damages are a remedy; they are not a cause of
action, and the Wymont entities provide no contrary authority.
Thus, even assuming the new allegations referred to protected activity
(which is far from clear from the face of the cross-complaint), an anti-SLAPP motion
3
The Wymont entities offer a declaration Handal submitted in opposition to a motion for
summary judgment in another case filed in federal court to buttress its argument. At
most, however, such a declaration can provide only some limited amount of context; it is
not a substitute for what is actually alleged in the second amended complaint. Here, this
declaration is unhelpful, as it simply references the same scheme the second amended
cross-complaint refers to.
13
cannot be directed at the type of allegations that were added here. (Baral v. Schnitt,
supra,1 Cal.5th at p. 394.) Nor can it be based on an entirely conclusory allegation
requesting punitive damages. The legal basis for relief has not changed from the first
amended cross-complaint to the second.
The Wymont entities demurred to the first amended cross-complaint on the
grounds that it failed to state facts sufficient to create a cause of action. The trial court
agreed as to the false promise claim, and H&A set out to amend its complaint to remedy
the identified deficiencies. To do so, it added facts intended to support its assertion that
the Wymont entities had no intent fulfill the promises they allegedly made. These are
exactly the type of facts that the Wymont entities claimed were missing in its demurrer.
It is at best disingenuous to complain that H&A subsequently pleaded them. Further,
because they are purely contextual and do not state a cause of action, they do not
constitute grounds for restarting the 60-day clock for filing an anti-SLAPP motion.
Because we find the anti-SLAPP motion was untimely, we need not
consider its merits.
Attorney Fees
In the conclusion to its brief, H&A asked this court to award attorney fees
on appeal. On our own motion, we sent out an order giving the parties the opportunity to
brief this issue or to discuss it at oral argument, and we have considered those arguments.
“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.”
(§ 425.16, subd. (c)(1).) “‘Frivolous’ means totally and completely without merit or for
the sole purpose of harassing an opposing party.” (§ 128.5, subd. (b)(2).)
The Wymont entities argue this court cannot award attorney fees under
sections 425.16 because section 128.5 references the “trial court.” They cite Evans v.
14
Unkow (1995) 38 Cal.App.4th 1490, for the proposition that “the interrelated provisions
of sections 425.16 and 128.5 do not apply to appellate proceedings.” That opinion
actually reaches the opposite conclusion: “The defendants correctly contend that if they
prevail on this appeal they are entitled to recover their appellate attorney fees. A statute
authorizing an attorney fee award at the trial court level includes appellate attorney fees
unless the statute specifically provides otherwise. [Citations.] Under . . . section 425.16,
subdivision (c), a prevailing defendant on a special motion to strike a SLAPP suit ‘shall
be entitled to recover his or her attorney’s fees and costs.’ The statute does not preclude
recovery of appellate attorney fees by a prevailing defendant-respondent; hence they are
recoverable.” (Id. at pp. 1499-1500; see Lucky United Properties Investment, Inc. v.
Lee (2010) 185 Cal.App.4th 125, 139.)
Had the Wymont entities acknowledged this and claimed there is a
meaningful distinction here between prevailing plaintiffs and defendants, we would reject
that argument as well. The statutory entitlement to fees comes from the anti-SLAPP
statute, and it is set forth clearly in section 425.16, subdivision (c), which does not
preclude the recovery of appellate fees. (Evans v. Unkow, supra, 38 Cal.App.4th at pp.
1499-1500.) We do not find that the language “pursuant to Section 128.5” prohibits such
an award. Section 128.5 provides the standard the court is to use to decide if the motion
was frivolous or taken for purposes of delay; it does not provide the substantive remedy.
Moreover, there is no principled reason the anti-SLAPP statute would allow a prevailing
defendant to recover attorney fees on appeal yet preclude fees for a prevailing plaintiff,
when such fees are permitted in the trial court. We decline to interpret the statute in such
an illogical matter.
We also reject the Wymont entities’ contention that any issue of attorney
fees was waived by H&A’s failure to file a cross-appeal of the trial court’s order, which
did not grant attorney fees in the trial court. No cross-appeal is necessary since H&A is
not seeking a reversal of that order; it is seeking fees on appeal only.
15
As to the substance of the request, the relevant standard for assessing
whether a motion is frivolous and without merit is whether any reasonable attorney
would objectively conclude the motion is totally devoid of merit. (Chitsazzadeh v.
Kramer & Kaslow (2011) 199 Cal.App.4th 676, 683-684.) While we decided above that
the Wymont entities were wrong on the timeliness issue, their arguments were not so
misplaced that any reasonable attorney would conclude the appeal lacked merit. We
therefore must find the appeal of the anti-SLAPP does not meet the high standard (or,
perhaps, the low standard) set for frivolousness under section 128.5. Accordingly, we
deny H&A’s request for attorney fees on appeal.
III
DISPOSITION
The order denying the anti-SLAPP motion is affirmed. H&A’s request for
attorney fees on appeal is denied. H&A is entitled to its costs on appeal.
MOORE, ACTING P. J.
WE CONCUR:
FYBEL, J.
THOMPSON, J.
16