Catlin Ins. Co. v. Danko Meredith Law Firm, Inc.

• Decision Date: 11 January 2022
• Docket Number: A160358
• Parties: CATLIN INSURANCE COMPANY, INC., Plaintiff and Respondent, v. DANKO MEREDITH LAW FIRM, INC., et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

73 Cal.App.5th 764

288 Cal.Rptr.3d 773

CATLIN INSURANCE COMPANY, INC., Plaintiff and Respondent,

v.DANKO MEREDITH LAW FIRM, INC., et al., Defendants and Appellants.

A160358

Court of Appeal, First District, Division 4, California.

Filed January 11, 2022

Danko Meredith, Michael S. Danko, Los Angeles, Shawn R. Miller, for Defendant and Appellant Danko Meredith Law Firm, Inc.

Law Offices of Walter C. Cook and Walter C. Cook, for Defendant and Appellant Michael S. Danko.

Clausen Miller, Jay D. Harker, Michael W. Goodin, Mission Viejo, Don R. Sampen, Pro Hac Vice, for Plaintiff and Respondent.

STREETER, Acting P. J.

I. INTRODUCTION

These consolidated appeals present a narrow question of civil procedure: When (1) a defendant files an anti-SLAPP motion that explicitly defers a request for fees to a separate, subsequent motion, and (2) the plaintiff files a voluntary dismissal, thus mooting the entire action, must the trial court rule on the merits of the anti-SLAPP motion as a predicate to an anticipated fees motion, or can it defer consideration of the merits until the defendant actually files a fees motion? The trial court here chose the latter course, declining to address the merits of two anti-SLAPP motions that had been mooted by a voluntary dismissal.

The disappointed anti-SLAPP movants, appellants Michael S. Danko (Danko) and the Danko Meredith Law Firm, Inc. (the Danko Meredith Firm) (collectively, the Danko Appellants), claim this was error. They contend the trial court not only had jurisdiction but also a duty to rule on the merits of their anti-SLAPP motions, despite the absence of any pending fee request. Such a ruling was mandatory, they argue, in order to supply a basis for their entitlement to a fee award in a prospective motion for recovery of fees that they had yet to make. We disagree and affirm.

II. BACKGROUND

Respondent Catlin Insurance Company, Inc. (Catlin) filed a complaint against the Danko Appellants in October 2019, alleging in substance as follows.

In the fall of 2017, Catlin settled one of the claims against its insured, Able Air Corporation, in a wrongful death lawsuit known as the Boolen case. Pursuant to the settlement, Catlin paid $180,000 to the trust account of the Danko Meredith Firm, plaintiffs’ counsel in the Boolen case. Catlin then mistakenly paid the same amount a second time to the same trust account. The Boolen case went to trial in 2018 on other claims, eventually resulting in a defense verdict. Catlin discovered its payment error in July 2019 and requested return of the mistaken overpayment, but Danko, a principal of the Danko Meredith Firm, declined the request. Pointing to a release of future claims as part of the pretrial settlement and to a posttrial waiver of costs and appellate rights, he claimed Catlin had either released or waived any right to return of the overpayment.

Responding to Catlin's complaint seeking return of the mistakenly paid funds in January 2020, the Danko Appellants filed what are commonly known as anti-SLAPP¹ motions under Code of Civil Procedure ² section 425.16. ( South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634, 640, 123 Cal.Rptr.3d 301.) Both motions asked the trial court to strike the complaint and stated they would request attorney fees under section 425.16, subdivision (c), pursuant to a "subsequent, separate motion." On January 17, 2020, Catlin voluntarily dismissed its complaint and a few days later served notice of the dismissal.

After issuing a tentative ruling that Catlin's voluntary dismissal had mooted the action, thereby mooting the anti-SLAPP motions as well, Judge Nancy Fineman held a hearing on March 13, 2020. At the hearing, the Danko Appellants asked Judge Fineman to rule on the anti-SLAPP motions as a "predicate" for going forward with their fee motions. She declined to do so. Using a shorthand reference to both motions in the singular, she explained how the governing rules work. "[Y]ou can either do it two ways, you can either bring it when you bring your [anti-]SLAPP motion, your motion for attorneys’ fees, or you can bring it separately afterwards. You said that you were going to bring it separately. I'm saying if you want me to consider the attorneys’ fees, bring it all together as one motion."

Judge Fineman further explained: "If you want to bring a motion for attorneys’ fees, you can bring a motion for attorneys’ fees that shows why I should grant the [anti-]SLAPP motion, but we're not going to do that extra work until we know for sure you're going to bring a motion for attorneys’ fees. So if you want to bring a motion for attorneys’ fees, show why we should grant the [anti-]SLAPP from A and B because I am not going to do all of the work twice." Danko, appearing for the Danko Meredith Firm, asked Judge Fineman to direct him to file an attorney fees motion, to which the court responded, "I'm not going to [do that] ... because I'm looking at it and I'm trying to tell you without telling you that I'm not sure that you really want to bring a motion for attorneys’ fees."

On the same day as the hearing, Judge Fineman adopted her tentative ruling, simply stating, "The special motion to strike is MOOT." Danko filed and electronically served a notice of entry of that order on April 17, 2020. Neither Danko nor the Danko Meredith Firm ever filed a subsequent fees motion. The Danko Meredith Firm prepared a judgment of dismissal, which was entered on June 5, 2020. The judgment of dismissal states that it is based on Catlin "having filed with the Clerk of this Court a request for entry of dismissal of the entire complaint, and the Clerk having entered the dismissal pursuant to [Catlin's] request on January 17, 2020."

On June 10, 2020, the Danko Meredith Firm filed its notice of appeal from the March 13, 2020 order declaring the anti-SLAPP motions moot. Danko filed his notice of appeal from the same order eight days later, on June 18, 2020. Notices of the filing of the appeals were served by the trial court clerk, respectively, on June 11, 2020, and June 19, 2020.

III. DISCUSSION

A. Appealability

Before turning to the merits, we must address Catlin's three challenges to our jurisdiction.

First, Catlin claims the Danko Appellants have appealed solely from the ruling on their ability to seek fees, not from the trial court's finding of mootness itself. Their appeals must be dismissed, Catlin argues, because an order granting or denying attorney fees on an anti-SLAPP motion is not appealable. ( Doe v. Luster (2006) 145 Cal.App.4th 139, 145–146, 51 Cal.Rptr.3d 403.) We disagree with that spin on the appeals before us, as the Danko Appellants explicitly contend the court erred in ruling that the anti-SLAPP motions were moot. Moreover, the appealability of an order awarding or denying fees is irrelevant here because Judge Fineman never ruled on the Danko Appellants’ entitlement to fees.

Second, Catlin argues the Danko Appellants forfeited their right to appeal the March 13, 2020 order because they failed to file a separate fees motion. We agree that the Danko Appellants could have simplified matters and avoided the need for these appeals by filing a separate fees motion that included the same arguments from their anti-SLAPP motions on the merits. Indeed, it appears to be common practice for defendants to do so when a plaintiff voluntarily dismisses its action while an anti-SLAPP motion is pending. (See, e.g., Liu v. Moore (1999) 69 Cal.App.4th 745, 749, 81 Cal.Rptr.2d 807 ( Liu ); Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1451, 166 Cal.Rptr.3d 729 ( Tourgeman ).) However practical it might have been to file a separate fees motion, the failure to do so did not forfeit the right to appeal the March 13, 2020 order. Whether the failure to file a timely motion for recovery of fees effected a waiver of any claim to recovery of fees is another matter, as we explain below, but it does not affect our appellate jurisdiction.

Third, Catlin argues the appeals here are moot because the Danko Appellants appealed from the March 13, 2020 order declaring the anti-SLAPP motions moot, rather than from the June 5, 2020 judgment. We disagree. Catlin requested voluntary dismissal of the action on January 17, 2020, and the dismissal was immediately effective upon the tender of the request to the clerk. ( § 581, subd. (b)(1) ; Aetna Casualty & Surety Co. v. Humboldt Loaders, Inc. (1988) 202 Cal.App.3d 921, 926, fn. 4, 931, 249 Cal.Rptr. 175.) The court had no authority and no reason to enter a judgment of dismissal months later, so that judgment was void. ( Gogri v. Jack in the Box Inc. (2008) 166 Cal.App.4th 255, 261, 82 Cal.Rptr.3d 629 ["voluntary dismissal of an entire action deprives the court of both subject matter and personal jurisdiction in that case, except for the limited purpose of awarding costs and statutory attorney fees"]; Paniagua v. Orange County Fire Authority (2007) 149 Cal.App.4th 83, 89, 56 Cal.Rptr.3d 746 [orders after voluntary dismissal are void].)

Although the Danko Appellants had no ability to appeal the January 17, 2020 entry of voluntary dismissal ( Mesa Shopping Center-East, LLC v. O Hill (2014) 232 Cal.App.4th 890, 898, 181 Cal.Rptr.3d 791 [voluntary dismissal is generally not appealable]), the March 13, 2020 order declaring the anti-SLAPP motions moot was equivalent to a denial of the motions, and such denials are appealable postjudgment orders. ( § 425.16, subd. (i) ; White v. Lieberman (2002) 103 Cal.App.4th 210, 220, 126 Cal.Rptr.2d 608.) And the later form of judgment entered on June 5 did not affect the appealability of the trial court's March 13 order. ( Melbostad v. Fisher (2008) 165 Cal.App.4th 987, 994, 997, 81 Cal.Rptr.3d 354 [order granting anti-SLAPP motion is an appealable order, and later judgment of dismissal serves no purpose]; Reyes v. Kruger (2020) 55 Cal.App.5th 58, 70, 269 Cal.Rptr.3d 549 [judgment of dismissal "had no effect on the finality of the underlying anti-SLAPP order"].)

The...