Sanderson v. Nerium International CA4/3

Filed 11/6/14 Sanderson v. Nerium International 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

JOHN SANDERSON et al.,

Plaintiffs and Appellants, G049533

v. (Super. Ct. No. 30-2012-00621436)

NERIUM INTERNATIONAL, LLC, et al., OPINION

Defendants and Respondents.

Appeal from an order of the Superior Court of Orange County, Franz E. Miller, Judge. Affirmed. Dorsey & Whitney, Kent J. Schmidt, Karen A. Morao and Lynnda A. McGlinn for Plaintiffs and Appellants. Blank Rome, Mike Margolis and Timothy J. Martin for Defendants and Respondents.

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INTRODUCTION John Sanderson and George Taylor sued Nerium International, LLC (Nerium), and other individuals and entities for defamation and related claims. The trial court denied a special motion to strike (Code Civ. Proc., § 425.16)1 filed by Nerium and its chief executive officer, Jeff Olson. After the motion was denied, Sanderson and Taylor filed a motion to recover their attorney fees incurred in opposing it. (Id., § 425.16, subd. (c)(1).) The trial court denied the motion for attorney fees, and Sanderson and Taylor appeal from that order. The trial court found the special motion to strike was not totally devoid of merit, and was not brought solely for purposes of delay. The denial of attorney fees was not an abuse of discretion. Therefore, we affirm.

STATEMENT OF FACTS AND PROCEDURAL HISTORY Sanderson and Taylor sued Nerium, Olson, and others for defamation. Nerium and Olson filed a special motion to strike the first amended complaint. The trial court denied the motion and, in a separate, unpublished opinion, we affirmed that order. (Sanderson v. Nerium International, LLC (Nov. 6, 2014, G048975) [nonpub. opn.].) Following the denial of the special motion to strike, Sanderson and Taylor filed a motion for attorney fees, pursuant to Code of Civil Procedure section 425.16, subdivision (c)(1), which provides, in relevant part: “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.” The trial court denied the motion for attorney fees, finding “[t]he SLAPP motion was not frivolous and evidence doesn’t show it was brought in bad