Wilkerson v. Sullivan

Opinion

McINTYRE, J. Marie Wilkerson, Avecita Mucino, Vanessa Ayala, and Planned Parenthood of San Diego and Riverside Counties (collectively Planned Parenthood) filed an action for injunctive relief and compensatory damages against Sylvia Sullivan and others, to prevent or limit anti-abortion demonstrations on and near Planned Parenthood’s facilities. After the trial court issued a temporary restraining order against several of the named defendants, Sullivan successfully moved to strike the complaint under Code of Civil Procedure section 425.16, the anti-SLAPP statute (hereafter section 425.16), and was awarded $11,113.50 in attorney fees incurred in bringing the motion.

Planned Parenthood filed separate notices of appeal from the two rulings, but dismissed the appeal before filing opening briefs. Thereafter, Sullivan sought to recover $12,825.50 in attorney fees incurred in connection with the appeal, the enforcement of the prior attorney fee award and the preparation of the motion itself.

The superior court issued a tentative ruling granting Sullivan $8,392.50 in attorney fees for work done in connection with the appeal and collection efforts. However, after entertaining oral argument, the court reversed course, denying the motion on the ground that it could not determine which party would have prevailed on appeal. It also indicated that, even if Sullivan was presumptively entitled to recover fees, Planned Parenthood had made a sufficient showing of reasons, other than the probability of success on the merits, for the dismissal of the appeal. The court’s final ruling did not address Sullivan’s request for fees incurred for enforcement of the earlier fee award.

[446]Sullivan appeals the order denying her fee motion. She contends that she was the “prevailing party” in the action and thus entitled to recover fees incurred in connection with the appeal under section 425.16, subdivision (c). She also contends that, even if she is not entitled to recover fees on the appeal, she is entitled to fees incurred to collect the initial attorney fee award.

We conclude that Sullivan is entitled to recover attorney fees reasonably incurred in defending against the appeal and thus reverse the trial court’s order and remand the matter for further proceedings.

Discussion

Section 425.16 permits a defendant to seek court dismissal of a SLAPP complaint, which is defined as a nonmeritorious action brought “against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.” (Id., subd. (b)(1); see Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1414 [103 Cal.Rptr.2d 174].) To prevail on an anti-SLAPP motion, the defendant must make an initial prima facie showing that the plaintiff’s suit arises from an act in furtherance of the defendant’s right of petition or free speech. (Dowling, at p. 1417.) If this burden is met, the plaintiff must establish a reasonable probability he or she will prevail on the merits. (Ibid.)