Attorneys for a consumer served on a company a notice required for damages under the Consumers Legal Remedies Act, Civil Code section 1750 et seq. (CLRA), setting forth alleged violations of the CLRA and demanding action. The company then brought a declaratory relief action against the consumer and her attorneys seeking a declaration that it had not violated the CLRA. The consumer and the attorneys moved to strike the complaint under Code of Civil Procedure section 425.16
Laura Nunez (Nunez) retained two law firms, Newport Trial Group (Newport) and Wasserman, Comden, Casselman & Esensten, LPP (Wasserman),
Thereafter, plaintiff's counsel sent an e-mail to Wasserman confirming their telephone conversation that occurred a few days previously, stating that he disagreed with Wasserman's claims for the reasons set forth in plaintiff's earlier reply letter, and stating, "[A]s I mentioned, I almost always consider settlement issues before litigation, so I asked you to propose a settlement offer.... There's no rush, we can talk whenever you are ready." Later that afternoon, an attorney from Wasserman sent an e-mail to plaintiff's counsel, stating, "Given the upcoming holidays, I have not had a chance to talk to all interested parties, much less put together a `settlement offer.'" The e-mail also stated that Wasserman needed information regarding the sale of Amberen before it could propose a settlement demand, but that it would provide
A little over a month later, the attorney from Wasserman sent an 11-page letter to plaintiff's counsel via e-mail and United States mail thanking him for responding to "our [CLRA Notice] on behalf of our client, ... Nunez ... regarding her potential class action claims related to Amberen ...." The letter stated, "In accordance with our November 18th telephone conversation and subsequent email communications, this letter will discuss possible ways to resolve the current dispute concerning our client's false and misleading advertising claims against [plaintiff]. I will not attempt to further address the merits of [Nunez's] claims in this letter. Instead, I will simply outline briefly potential settlement approaches and structures." It set forth possible "ALTERNATIVE SETTLEMENT STRUCTURES," and detailed matters subject to injunctive relief consisting of "PROPOSED ADVERTISING AND MARKETING MODIFICATIONS." The proposed advertising and marketing modifications were matters that, according to Wasserman, plaintiff should "permanently cease" from representing to current and potential purchasers of Amberen, "delete" from all Amberen advertising and labeling, and include in all future Amberen advertising and labeling.
Within two weeks, plaintiff filed a complaint alleging a single cause of action for declaratory relief against defendants. Plaintiff sought a determination regarding "the accuracy and legality" of plaintiff's advertising of Amberen. Plaintiff alleged in its complaint that "[t]his action is being filed because Defendants threaten to file a lawsuit claiming that Plaintiff's advertising violates California's consumer protection statutes, including ... [the CLRA]. However, Defendants' threatened suit lacks any basis ...." Plaintiff alleged in the complaint that "[t]his dispute was originally raised in a [CLRA Notice] claiming that [plaintiff's] advertising for Amberen supposedly violated the CLRA ...." Plaintiff also referred to in the complaint various additional communications the parties had regarding settlement, including Wasserman's letter. Plaintiff also included in the complaint responses to the matters contained in Wasserman's letter.
Nunez and Newport filed an anti-SLAPP motion, in which Wasserman joined. The motions were made on the grounds that plaintiff's claim arose from protected activity — "defendants' CLRA [N]otice regarding plaintiff's deceptive advertising claims about its product Amberen, and related settlement communications" — and plaintiff could not establish a probability of prevailing on its claim.
Plaintiff opposed defendants' anti-SLAPP motions. In support of that opposition, plaintiff provided substantial evidence in support of its contention
The trial court issued a tentative ruling granting the special motions to strike the complaint, finding that defendants met their burden that plaintiff's claim arose from protected activity; plaintiff could not establish a probability of prevailing on its declaratory relief claim because "defendants' notification letter" was absolutely privileged by the litigation privilege of Civil Code section 47; and "in the absence of the notification letter, plaintiff has no evidence that an `actual controversy' exists between [it] and defendants ...." At the conclusion of the hearing on defendants' motions, the trial court adopted its tentative ruling as its final ruling.
Defendants filed motions to recover their attorney fees under section 425.16, subdivision (c). The trial court awarded $104,293.75 in attorney fees to Nunez and Newport, and $57,765.63 in attorney fees to Wasserman. Plaintiff appeals from the orders granting the special motions to strike and awarding attorney fees, asserting that the anti-SLAPP statute did not apply to its declaratory relief claim and challenging the amount of the attorney fees award.
The CLRA's purposes "are to protect consumers against unfair and deceptive business practices and to provide efficient and economical procedures to secure such protection." (Civ. Code, § 1760.) Civil Code section 1780, subdivision (a) of the CLRA states that "[a]ny consumer who suffers any damage as a result of the use or employment by any person of a method, act, or practice declared to be unlawful by Section 1770 may bring an action against that person to recover or obtain any of the following: [¶] (1) Actual damages, but in no case shall the total award of damages in a class action be less than one thousand dollars ($1,000). [¶] (2) An order enjoining the methods, acts, or practices. [¶] (3) Restitution of property. [¶] (4) Punitive damages. [¶] (5) Any other relief that the court deems proper." A "consumer" is defined in Civil Code section 1761, subdivision (d), part of the CLRA, as "an individual who seeks or acquires, by purchase or lease, any goods or services for personal, family, or household purposes." "The court shall award court costs and attorney's fees to a prevailing plaintiff in litigation filed pursuant to this section. Reasonable attorney's fees may be awarded to a prevailing defendant upon a finding by the court that the plaintiff's prosecution of the action was not in good faith." (Civ. Code, § 1780, subd. (e).) Civil Code section 1781 provides that the consumer may maintain a class action under the CLRA.
Civil Code section 1770, subdivision (a) of the CLRA, states, inter alia, that "[t]he following unfair methods of competition and unfair or deceptive acts or practices undertaken by any person in a transaction intended to result or which results in the sale or lease of goods or services to any consumer are unlawful: [¶] ... [¶] (5) Representing that goods or services have ... characteristics, ... uses, [or] benefits ... which they do not have .... [¶] ... [¶] (7) Representing that goods or services are of a particular standard, quality, or grade, or that goods are of a particular style or model, if they are of another. [¶] ... [¶] (9) Advertising goods or services with intent not to sell them as advertised."
Plaintiff contends that the trial court erred in granting defendants' special motions to strike its declaratory relief claim because it did not "arise from" a protected activity, the CLRA Notice and correspondence, but rather from a dispute as to whether plaintiff violated the CLRA. According to plaintiff, the CLRA Notice and correspondence were just evidence of the dispute. We disagree.
The parties do not dispute that the CLRA Notice and Wasserman's letter are protected activities and therefore subject to an anti-SLAPP motion. Prelitigation letters demanding that a party cease from doing certain acts or be subject to a lawsuit based on that conduct are in preparation or anticipation of litigation and fall within the protection of section 425.16, subdivision (e)(2) as "written or oral statement[s] or writing[s] made in connection with an issue under consideration or review by a ... judicial body ...." (See Gotterba v. Travolta, supra, 228 Cal.App.4th at pp. 38, 41.) For example, "[S]ervice of a three-day notice to quit ... is [a] protected activity within the meaning of section 425.16 because service of the notice is legally required to file an unlawful detainer action." (Copenbarger v. Morris Cerullo World Evangelism (2013) 215 Cal.App.4th 1237, 1245 [156 Cal.Rptr.3d 70]; see Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1480 [74 Cal.Rptr.3d 1].)
"In general, whether a cause of action is subject to a motion to strike under the SLAPP statute turns on whether the gravamen of the cause of action targets protected activity. [Citation.] ... [¶] Where ... a cause of action is based on both protected activity and unprotected activity, it is subject to section 425.16 `"unless the protected conduct is `merely incidental' to the unprotected conduct."' [Citations.]" (Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th 1539, 1550-1551 [110 Cal.Rptr.3d 129].)
Here, the correspondence clearly arose in connection with the litigation that was contemplated or under serious consideration. Indeed, the CLRA Notice was required under the CLRA before an action for damages could be filed and thus is part of the litigation process. But for the CLRA Notice and demand letters, there would be no dispute. In order to satisfy the first prong, the challenged action must arise from the protected activity. (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at pp. 66-67.) In construing the anti-SLAPP statute broadly, as we must do (id. at p. 60, fn. 3), we believe that the CLRA Notice and correspondence not only preceded and triggered the declaratory relief action, but they were also the basis of the cause of the action. The declaratory relief action therefore arose out of those communications, which are protected activities.
In CKE Restaurants, Inc. v. Moore (2008) 159 Cal.App.4th 262 [70 Cal.Rptr.3d 921], the plaintiff commenced its declaratory relief action in response to a notice that the defendant had served on it pursuant to Proposition 65. (159 Cal.App.4th at pp. 266-267.) In the defendant's Proposition 65 notice, she claimed that the plaintiff served french fries that contained naphthalene, which is known to cause cancer and reproductive toxicity. (159 Cal.App.4th at p. 266, fn. 2.) In its opposition to the defendant's anti-SLAPP motion, the plaintiff claimed that "its lawsuit did not arise from the sending of the notices, but from `the underlying issues raised in [the defendant's] letters — namely the rights and obligations of CKE regarding its French Fries and other Food Products under Proposition 65 ....'" (Id. at p. 266.)
The court in CKE Restaurants, Inc. v. Moore, supra, 159 Cal.App.4th 262, rejected the plaintiff's contention that the lawsuit did not arise from the sending of the Proposition 65 notice. (159 Cal.App.4th at pp. 267, 271.) In upholding the trial court's order granting the defendant's anti-SLAPP motion, the court stated, "In its complaint, [the plaintiff] directly challenged the merits of the 60-day notice by referring to and quoting from the 60-day notice. [The plaintiff] requested a judicial determination that its food products
Although here the record does not provide that plaintiff threatened to sue defendants unless they withdrew the CLRA Notice, plaintiff alleged in its complaint, "This action is being filed because Defendants threaten to file a lawsuit claiming that Plaintiff's advertising violates California's consumer protection statutes, including ... [the CLRA]." Plaintiff referred to the CLRA Notice in the complaint, alleging, "This dispute was originally raised in a [CLRA Notice] claiming that [plaintiff's] advertising for Amberen supposedly violated the CLRA ...." In its complaint, plaintiff also referred to various additional communications the parties had regarding settlement, including Wasserman's letter, and in the complaint plaintiff responded specifically to numerous matters contained in Wasserman's letter. Therefore, the declaratory relief action arose from defendants' protected activities, without which there would have been no dispute.
In Country Side Villas Homeowners Assn. v. Ivie (2011) 193 Cal.App.4th 1110 [123 Cal.Rptr.3d 251], a member of a homeowners association criticized the association's management for its handling of maintenance issues, suggested that its board be recalled, and requested copies of its income and expense reports. (Id. at pp. 1112-1113.) The homeowners association filed an action for declaratory relief against the association member, seeking among other things, a determination that its allocation of funds was consistent with the association's governing documents. (Id. at pp. 1113-1114.)
In affirming the trial court's grant of the anti-SLAPP motion of the association member, the court held that the declaratory relief action arose from a protected activity, stating, "[T]he action in this case was filed after [the homeowners association's] counsel threatened to sue [the association member] if she continued to request the financial documents and refuse to sign the confidentiality agreement. [The association member] did refuse to sign the agreement, and continued to speak out against [the homeowners association]. In response, [the homeowners association] filed suit against her seeking declaratory relief and attorney fees. [¶] It is clear from the evidence that the action in this case arose from [the association member's] exercise of her right of free speech in criticizing and speaking out against the action of [the homeowners association's] board." (Country Side Villas Homeowners Assn. v. Ivie, supra, 193 Cal.App.4th at p. 1118.)
Plaintiff relies on City of Cotati v. Cashman (2002) 29 Cal.4th 69 [124 Cal.Rptr.2d 519, 52 P.3d 695] in contending that its declaratory relief action did not arise from defendants' protected activities, but that case is distinguishable. There, owners of mobilehome parks brought a declaratory relief action against the city in federal court seeking a judicial determination that the city's rent control ordinance constituted an unconstitutional taking. (Id. at pp. 71, 72.) In response, the city sued the park owners in state court, requesting a declaration the rent control ordinance was constitutional, valid, and enforceable. (Id. at p. 72.) The city "concede[d] that its purpose in filing the state court action was to gain a more favorable forum in which to litigate the constitutionality of its mobilehome park rent stabilization ordinance," and that "in filing the state court action it intended subsequently to seek to persuade the federal court to abstain from hearing [the mobilehome park owners'] suit." (Id. at p. 73.)
The Supreme Court rejected the argument that the "filing of [the] state court action arose from [the mobilehome park owners'] filing of their earlier federal action and, therefore, fell within the ambit of the anti-SLAPP statute." (City of Cotati v. Cashman, supra, 29 Cal.4th at pp. 72-73.) The Supreme Court explained that although "[i]t is indisputably true ... [the c]ity's action was filed shortly after [the mobilehome park owners] filed their claim in federal court," "the mere fact an action was filed after protected activity took place does not mean it arose from that activity." (Id. at pp. 76-77.) Instead, because the "fundamental basis" for the city's request for relief was the "underlying controversy respecting [the rental control] ordinance," the city's lawsuit "therefore was not one arising from [the mobilehome park owners'] federal suit" and "was not subject to a special motion to strike." (Id. at p. 80.)
Although plaintiff's declaratory relief action here filed after defendant's protected activities does not necessarily establish that the lawsuit arose out of the protected activities; that is not the only factor. As noted above, the complaint refers extensively to the protected activities. And, unlike in City of Cotati v. Cashman, supra, 29 Cal.4th 69, in which the protected activity amounted only to a prior lawsuit, the protected activities here included a CLRA Notice, without which there would be no controversy. (CKE Restaurants, Inc. v. Moore, supra, 159 Cal.App.4th at p. 271.) Unlike the
In Gotterba v. Travolta, supra, 228 Cal.App.4th 35, the court held, as plaintiff argues here, that a declaratory relief complaint did not arise out of the defendant's protected activities, but the protected activities were merely evidence of the parties' dispute. In that case, the defendants' counsel sent to the plaintiff a letter demanding that he stop making statements that were allegedly in breach of a confidentiality agreement. The letter stated that the statements subjected the plaintiff "`to enormous liability and entitle[d] my client to seek tens of millions of dollars in compensatory and punitive damages,'" and that the plaintiff was to "`proceed at [his] peril.'" (Id. at p. 38.) The plaintiff filed an action for declaratory relief, seeking a declaration that the confidentially agreement was unenforceable. The plaintiff alleged that "a judicial declaration is necessary so that he may determine his rights and duties under the agreement and because [the defendants] `ha[d] repeatedly threatened legal action' against him `based upon alleged violations and prospective violations of the purported "confidentiality agreement."'" (Gotterba v. Travolta, supra, 228 Cal.App.4th at p. 39.) The defendants filed an anti-SLAPP motion to strike the declaratory relief action, asserting that the plaintiff "`filed this action to prevent [the defendants] from exercising [their] right to send [prelitigation demand] letters and/or suing to enforce the terms of [a prior agreement].'" (Id. at pp. 39-40.)
In affirming the trial court's order denying the motion, the court stated, "Contrary to [the defendants'] position and arguments, [the plaintiff's] complaint is not based upon [the defendants'] sabre-rattling demand letters. The complaint seeks declaratory relief regarding the validity of the asserted termination agreements and not the propriety of [the defendants'] demand letters. [¶] ... [¶] ... The demand letters do not form the `actual controversy upon which to base the claim for declaratory relief,' but are merely evidence that a controversy between the parties exists. [Citation.] That `protected activity may lurk in the background — and may explain why the rift between the parties arose in the first place — does not transform a [contract] dispute into a SLAPP suit.' [Citation.] [¶] ... The lawsuit also does not seek to curtail [the defendants'] right to send demand letters." (Gotterba v. Travolta, supra, 228 Cal.App.4th at pp. 41-42.)
Here, the protected activities include defendants sending of the CLRA Notice. It is not merely evidence of the dispute. The usual demand letters involving liability are not a prerequisite to filing a lawsuit seeking damages. By contrast, the CLRA Notice here was required to be sent by the consumer before the consumer could file a lawsuit for damages under the CLRA.
In Copenbarger v. Morris Cerullo World Evangelism, supra, 215 Cal.App.4th 1237, a sublessee of a real property lease filed a lawsuit for, inter alia, declaratory relief against the sublessor after the sublessor served on the sublessee a 30-day notice to cure certain maintenance and other related defaults under the related lease agreements, and a three-day notice required for an unlawful detainer action. (Id. at pp. 1241-1242, 1245.) The sublessee alleged that a controversy existed among the parties "`concerning their respective rights and duties arising under'" the lease agreements and a quitclaim deed, that it had no duty to repair the improvements to the property, that the 30-day notice and the three-day notice were premature and did not comply with the lease agreements, and that it was the owner of the improvements to the property. (Id. at p. 1242.) In reversing the trial court's order granting the sublessor's anti-SLAPP motion, the court held that, "while the three-day notice might have triggered the [declaratory relief] complaint, the evidence in the record demonstrates the complaint was based on an underlying dispute over [sublessee's] repair and maintenance obligations under the sublease and other unprotected activities." (Id. at p. 1240.) In reaching its conclusion, the court emphasized that, "`"[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute."' [Citation.]" (Id. at p. 1245.) The court concluded that the 30-day notice and the sublessee's letter in response constituted evidence that there was a dispute between the parties. (Id. at p. 1245.)
Copenbarger v. Morris Cerullo World Evangelism, supra, 215 Cal.App.4th 1237 is distinguishable. In that case, presumably the dispute between the parties arose before the 30-day notice. Here, the CLRA Notice created the disputes between the parties. Also, unlike in that case, plaintiff here specifically alleged in the declaratory relief action that it was "being filed because Defendants threaten[ed] to file a lawsuit claiming that Plaintiff's advertising violates California's consumer protection statutes, including ... [the CLRA]." And, as noted above, the complaint extensively refers to the protected activities — the CLRA Notice and related correspondence. Thus, the declaratory relief action arose from the protected activities.
Plaintiff contends that it demonstrated a probability of prevailing on its declaratory relief claim. We disagree.
As noted, "`[A]n anti-SLAPP motion may lie against a complaint for declaratory relief [citation] ....' [Citation.] Moreover, `the mere existence of a controversy is insufficient to overcome an anti-SLAPP motion against a claim for declaratory relief. [¶] To defeat an anti-SLAPP motion, the plaintiff
Defendants contend, and the trial court found, that the litigation privilege precludes plaintiff's claim for declaratory relief. That privilege does not.
We can decide a matter on grounds different than that invoked by the trial court. "A reviewing court will uphold a judgment if it is correct for any reason `"regardless of the correctness of [its] grounds ...." [Citation.] "It is judicial action and not judicial reasoning which is the subject of review ...."' [Citation.]" (People ex rel. Gallo v. Acuna (1997) 14 Cal.4th 1090, 1119, fn. 4 [60 Cal.Rptr.2d 277, 929 P.2d 596].) Plaintiff cannot demonstrate a probability of prevailing on its declaratory relief claim because it may not sue for declaratory relief regarding a claim for damages under the CLRA.
Defendants rely on Filarsky, supra, 28 Cal.4th 419, in which a city, after refusing to disclose to a requesting citizen certain documents under the California Public Records Act (Gov. Code, § 6250 et seq.), sought declaratory relief as to the propriety of its refusal. (Filarsky, supra, 28 Cal.4th at pp. 423-424.) In directing the Court of Appeal to issue a writ of mandate compelling the trial court to vacate its order granting declaratory relief and to enter an order sustaining the citizen's demurrer to the complaint, the Supreme Court stated, "[T]here are at least four important distinctions between proceedings arising under the [California Public Records] Act and ordinary declaratory relief actions. First, under the [California Public Records] Act, only a person seeking disclosure — not the public agency in possession of the records — may seek a judicial declaration regarding the agency's obligation to disclose a document. In an ordinary declaratory relief action, however, either party to a controversy may initiate the action. Second, in a proceeding under the [California Public Records] Act, the court must schedule the filing of responsive pleadings and hearings in order to reach a decision as soon as possible. Such a requirement is not imposed upon courts in an ordinary declaratory relief action. Third, if a person initiates a proceeding under the [California Public Records] Act, he or she must be awarded attorney fees and costs if he or she prevails, and the defendant public agency cannot recover fees or costs unless the proceeding is frivolous. In contrast, in a declaratory relief action, a member of the public seeking disclosure cannot recover attorney fees if he or she prevails, and a prevailing public agency may recover costs even if the individual's request for disclosure is not frivolous. Fourth, appellate review of the superior court's ruling in a proceeding under the [California Public Records] Act must be by a petition for writ of mandate filed no more than 40 days after notice of the ruling. On the other hand, a public agency may appeal from a declaratory judgment requiring disclosure of the records, thus delaying disclosure for a significant period of time. [¶] These distinctions establish that permitting a public agency to file a preemptive declaratory relief action to determine its obligation to disclose records to a member of the public would eliminate important incentives and protections for individuals requesting public records. Members of the public could be discouraged from requesting records, because a simple request for disclosure and a denial by the public agency could require the individual to defend a civil action in which he or she would be liable for costs if the agency prevailed, and in which the individual would not recoup attorney fees if he or she succeeded." (Id. at pp. 428-429.)
Plaintiff cites Baxter Healthcare Corp. v. Denton (2004) 120 Cal.App.4th 333 [15 Cal.Rptr.3d 430] (Baxter), which concerned the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65) (Health & Saf. Code,
In affirming the judgment, the court in Baxter, supra, 120 Cal.App.4th at page 359 held that "OEHHA has failed to establish that Proposition 65 does not allow a business to bring a declaratory relief action under Code of Civil Procedure section 1060 for the purpose of determining whether the business is exempted from the warning requirement of Proposition 65." The court reasoned that the provisions of Proposition 65 do not share the characteristics of the provisions of the California Public Records Act involved in Filarsky, supra, 28 Cal.4th 419, in which the court found persuasive indicators of a legislative intent to exclude declaratory relief actions under section 1060. (Baxter, supra, 120 Cal.App.4th at p. 357.) The court in Baxter stated that, unlike the California Public Records Act, Proposition 65 did not contain specific statutory mechanisms for seeking declaratory relief, nor did it have any "procedural protections"
The court in Baxter, supra, 120 Cal.App.4th at page 359 also held that there was an actual controversy between OEHHA and the plaintiff and, therefore, the trial court did not abuse its discretion in granting declaratory
Plaintiff also relies on American Meat Institute v. Leeman (2009) 180 Cal.App.4th 728 [102 Cal.Rptr.3d 759] (American Meat), in which the defendant sent required notices under Proposition 65 to, inter alia, eight different meat processors and retailers. (180 Cal.App.4th at pp. 738-739.) The notices stated that the meat processors and retailers were selling either ground beef or liver products that contained chemicals identified by the state as being carcinogens and reproductive toxins, without supplying the warnings required by Proposition 65. (180 Cal.App.4th at pp. 738-739.) The eight alleged violators were represented by trade associations. (Id. at p. 738.) The trade associations filed a declaratory relief action against the defendant seeking declaratory relief on behalf of all of the trade associations' members that "`as applied to meat and meat products,'" the warning requirement of Proposition 65 was preempted by the Federal Meat Inspection Act (21 U.S.C. § 601 et seq.). (180 Cal.App.4th at p. 739.)
The trial court overruled the defendant's demurrer on the ground that "`sufficient facts [had] been pled to establish an actual controversy.'" (American Meat, supra, 180 Cal.App.4th at pp. 735, 740.) Subsequently, the trial court granted summary judgment in favor of the trade associations, concluding that under the circumstances, the Federal Meat Inspection Act preempted the warning requirements of Proposition 65. (180 Cal.App.4th at p. 740.)
In affirming the trial court's orders, the court in American Meat, supra, 180 Cal.App.4th at page 742 stated that "the Notices gave rise to an actual controversy between [the defendant] and the Trade Associations' members." (Fn. omitted.) The court stated that because Proposition 65 provided daily penalties, "it was clearly in the interest of the Trade Associations to take action as soon as possible to determine what, if any, obligations were imposed on their members by Proposition 65." (180 Cal.App.4th at p. 742.)
There are various aspects of Filarsky, supra, 28 Cal.4th 419, Baxter, supra, 120 Cal.App.4th 333, and American Meat, supra, 180 Cal.App.4th 728, that both support and undermine the conclusion that a declaratory relief action may not be maintained by a potential defendant in a CLRA damages action to establish that there was no violation of the CLRA. For example, Filarsky, supra, 28 Cal.4th 419, in which the Supreme Court directed the Court of Appeal to issue a writ of mandate compelling the trial court to enter an order sustaining the citizen's demurrer to the declaratory relief complaint, concerned the California Public Records Act. The CLRA, the statutory scheme involved here, provides for an award of attorney fees and costs if the complaining party prevails (Civ. Code, § 1780, subd. (e)),
American Meat, supra, 180 Cal.App.4th 728, and Baxter, supra, 120 Cal.App.4th 333, both concerned Proposition 65. In American Meat, the court
As in Proposition 65, in which the statutory scheme provides for daily penalties that can be imposed on a person who violates Proposition 65, so too would a party expose itself to greater or additional damages claims for violating the CLRA the longer the matter is unresolved. Similar to the plaintiff in Baxter, supra, 120 Cal.App.4th 333, plaintiff here was subject to a Hobson's choice; absent the filing of a declaratory relief action, plaintiff either had to revise its advertising despite believing that it was supported by scientific evidence, or wait to be sued by defendants or other consumers. On the other hand, there is a mandatory attorney fees provision in the CLRA (Civ. Code, § 1780, subd. (e)); there is not a similar provision in Proposition 65.
As noted above, the CLRA, like the California Public Records Act, has a provision to expedite lawsuits brought under its provisions. Moreover, only a consumer may maintain an action under the CLRA. In addition, the declaratory relief action is against one consumer — Nunez — thereby eliminating the class action rights of the consumers who would have been joined in the CLRA class action. Also, under Civil Code section 1784 of the CLRA, it is a defense to a claim for damages if the violation of the CLRA was not intentional, but a declaratory relief action would not address or resolve that issue. Under the CLRA, injunctive relief may be awarded (Civ. Code, § 1781), but injunctive relief is not available in a declaratory relief action under Code of Civil Procedure section 1060. It is true that a cross-complaint can invoke these remedies. But then, there is no reason for declaratory relief. Once a cross-complaint for damages under the CLRA is filed, the declaratory
Plaintiff contends that the trial court erred because it awarded defendants excessive attorney fees on their anti-SLAPP motions. It contended before the trial court that the attorney fees requested were unreasonably inflated and that the time records were inadequate.
Plaintiff relies on Bankes v. Lucas (1992) 9 Cal.App.4th 365, 371-372 [11 Cal.Rptr.2d 723] and Nazemi v. Tseng (1992) 5 Cal.App.4th 1633, 1637-1641 [7 Cal.Rptr.2d 762] (both of which cases were superseded by statute on other grounds as stated in Lee v. Wells Fargo Bank (2001) 88 Cal.App.4th 1187, 1197 [106 Cal.Rptr.2d 726]) in support of its contention that "a lack of evidence [to support a fee award] is a legal defect subject to de novo review." These cases do not support plaintiff's contention. In Nazemi v. Tseng, supra, 5 Cal.App.4th 1633, the court reversed the trial court's award of attorney fees because the trial court "abused its ... discretion" by considering defendant's untimely motion for attorney fees. (Id. at pp. 1640-1641.) In Bankes v. Lucas, supra, 9 Cal.App.4th 365, the court reversed the trial court's award of attorney fees to property owners as prevailing parties because they were not the prevailing parties and, citing Nazemi v. Tseng, supra, 5 Cal.App.4th 1633, their motion for attorney fees was untimely. (Bankes, at pp. 369-371.)
The trial court awarded $104,293.75 in attorney fees to Nunez and Newport, and $57,765.63 in attorney fees to Wasserman, for a total award of $162,059.38. In arriving at the award of attorney fees, the trial court applied a "multiplier of 1.25" to "reflect the contingent nature of the fees."
Plaintiff contends that defendants submitted "block billing" of their attorney fees that did not amount to careful compilations of the time spent. The evidence submitted in support of the motions for attorney fees, however, was sufficient to allow the trial court to determine "whether the case was overstaffed, how much time the attorneys spent on particular claims, and whether the hours were reasonably expended." (Christian Research Institute v. Alnor, supra, 165 Cal.App.4th at p. 1320.)
Plaintiff did not raise before the trial court that any specific items did not relate to the anti-SLAPP motions. (See Christian Research Institute v. Alnor,
The orders granting defendants' anti-SLAPP motions and awards of attorney fees are affirmed. As the prevailing parties on the special motions to strike, defendants are entitled to recover from plaintiff the reasonable amount of attorney fees and costs incurred on appeal pursuant to section 425.16, subdivision (c)(1). We remand the matter to the trial court to determine the reasonable amount of such attorney fees and costs.
Turner, P. J., and Goodman, J.,