Dowling v. Zimmerman

• Decision Date: 09 January 2001
• Docket Number: No. D032824.,No. D032128.,D032128.,D032824.
• Court: California Court of Appeals Court of Appeals
• Parties: Peter DOWLING, Plaintiff and Appellant, v. Connie ZIMMERMAN, Defendant and Respondent.

103 Cal.Rptr.2d 174

85 Cal.App.4th 1400

Peter DOWLING, Plaintiff and Appellant, v. Connie ZIMMERMAN, Defendant and Respondent.

No. D032128.

No. D032824.

Court of Appeal, Fourth District, Division 1.

January 9, 2001.

Kevin C. Young San Francisco, and John W. Kopp, Jr., Coronado, for Plaintiff and Appellant.

Law Offices of James J. Moneer and James J. Moneer, for Defendant and Respondent.

NARES, J.

Code of Civil Procedure ¹ section 425.16 is California's anti-SLAPP suit (Strategic Lawsuits Against Public Participation) statute (hereafter referred to as section 425.16 or the anti-SLAPP statute).² The anti-SLAPP statute was specifically enacted to provide both a summary disposition and attorney fees and costs to defendants in such actions.³

Plaintiff and appellant Peter Dowling (Dowling) appeals from a judgment dismissing his complaint against defendant and respondent Connie Zimmerman (Zimmerman) under the provisions of section 425.16, and awarding her, under subdivision (c)⁴ of that section, reasonable attorney fees in the amount of $9,300 and costs in the amount of $580. We hold that in order to effectuate the purpose of the anti-SLAPP statute and the Legislature's intent to deter SLAPP suits, a defendant who appears in a SLAPP action in propria persona and later retains specially appearing counsel who successfully brings on behalf of the defendant a special motion to strike the complaint under section 425.16 is entitled to recover an award of reasonable attorney fees under the mandatory provisions of subdivision (c) of that section in order to compensate the retained counsel for the legal services provided in connection with both the special motion to strike, and the recovery of attorney fees and costs under that subdivision. Because we also conclude the court in the instant case properly granted Zimmerman's special motion to strike the complaint under the anti-SLAPP statute, and its modest award of fees in her favor under subdivision (c) of that statute is not excessive in amount,⁵ we affirm the judgment.

In his separate petition, Dowling seeks a writ of supersedeas barring Zimmerman from attempting to enforce the portion of the judgment awarding her attorney fees and costs under the anti-SLAPP statute pending disposition of his appeal in this matter.⁶ Dowling appealed from the judgment without filing an appeal bond or other undertaking. When Zimmerman attempted to enforce the judgment by serving Dowling with a subpoena duces tecum and an order to appear at a judgment debtor's examination, Dowling unsuccessfully moved to quash the subpoena and vacate the debtor's examination, contending that enforcement of the judgment was automatically stayed under section 917.1, subdivision (d), by the perfecting of his appeal. Dowling challenged the court's ruling by filing the instant writ petition. We granted a de facto stay of execution of the judgment by requesting Zimmerman to answer the petition and brief the legal issues presented therein, and by thereafter deferring a ruling on the petition until disposition of the appeal.

The petition presents a question of first impression: Whether a prevailing SLAPP defendant's enforcement of a judgment awarding attorney fees and costs under subdivision (c) of section 425.16 is automatically stayed by the SLAPP plaintiffs perfecting of an appeal from that judgment. We hold that a SLAPP plaintiffs perfecting of an appeal from a judgment awarding attorney fees and costs to a prevailing SLAPP defendant under subdivision (c) of section 425.16 does not automatically stay enforcement of the judgment. We further hold that to stay enforcement of such a judgment, the SLAPP plaintiff must give an appropriate appeal bond or undertaking under the money judgment exception to the automatic stay rule.

The petition for writ of supersedeas and the appeal have been consolidated for disposition.

FACTUAL AND PROCEDURAL BACKGROUND

Appellant Dowling and his wife⁷ (together the Dowlings) owned a townhouse in the Penasquitos Townhouse complex in the City of San Diego. Respondent Zimmerman is an attorney. Edward White and his wife Grace White (together the Whites) lived in the Dowlings' townhouse. Harvey Pollack (Pollack) was the property manager of the Penasquitos Townhouse Owners Association (PTOA). In January 1995, the Dowlings and the Whites entered into an agreement under which the Whites leased the townhouse with intent to purchase it.

A. The Underlying Unlawful Detainer and Harassment Litigation

In July 1996, after a dispute arose between the Dowlings and the Whites involving the Whites' payment obligations and title to and possession of the subject townhouse, the Dowlings commenced the first of three unsuccessful unlawful detainer actions against the Whites in a four-month period (July-October). The Dowlings were represented by counsel (John W. Kopp, Jr. (Kopp)) in all three actions. The Whites represented themselves in the first two actions. The Dowlings voluntarily dismissed the first action without prejudice.

The Dowlings' second unlawful detainer action against the Whites proceeded to trial. The court found the statutory three-day notice was defective and entered a judgment of dismissal in favor of the Whites.

On October 9, 1996, before the Dowlings filed their third unlawful detainer action, Edward White petitioned for and obtained a restraining order prohibiting Dowling from harassing the Whites for a period of one year.

On October 23, 1996, the Dowlings filed their third unlawful detainer action against the Whites.⁸ Shortly thereafter, Zimmerman agreed to represent the Whites in that action⁹ on a pro bono basis. When the Whites reported to her that Dowling was continuing to harass them, Zimmerman sent several letters to Dowling's attorney, Kopp, between October 31 and November 14 in an effort to investigate the matter and stop the claimed harassment pending the outcome of the unlawful detainer proceeding.

1. The November 15 letter

Eventually, the Whites asked Zimmerman to petition the PTOA board of directors through the PTOA's property manager, Pollack, to investigate the Whites' claims regarding certain disturbances in the neighborhood, and to assist them in stopping the claimed harassment by Dowling so that the Whites could have the quiet use and enjoyment of the townhouse in the PTOA complex.

In her capacity as the Whites' attorney and based on information they provided to her, Zimmerman on November 15, 1996, sent a four-page letter (hereafter referred to as the letter or the November 15 letter) to Pollack, the PTOA's property manager. The Whites had informed Zimmerman that Pollack, as the property manager, was the appropriate person to whom PTOA homeowner complaints should be directed regarding safety concerns, ingress and egress problems, and nuisances in the complex. Based on information provided by the Whites, Zimmerman sent the letter to five other individuals she believed were members of the PTOA board of directors.

In the November 15 letter, Zimmerman identified herself as the Whites' attorney, and explained the purpose of the letter:

"The purpose of this letter is to advise you of certain unusual and even dangerous conditions occurring on the [ ] property and complex, and to give you the opportunity to correct and eliminate them. The situation interferes with the Whites'[ ] use and enjoyment of their property and may very well affect other residents' enjoyment. [¶] ... [¶] This letter is notice to the PTOA, its board of directors, officers, and agents that the safety of your residents and owners may be at risk and we hope you will assist us in our efforts to create a more pleasant environment in the complex."

In the letter, Zimmerman provided information about the dispute between the Dowlings and the Whites, and then made reference to Dowling's harassment of the Whites:

"In July 1996, Mr. Dowling began a concerted plan of harassment against the Whites and entered into a series of behaviors which have now come to the attention of the San Diego Police Department. Mr. Dowling repeatedly tells residents that the Whites are tenants, refuse to pay rent, and refuse to move. This is untrue."

Zimmerman stated in the letter that the July 1996 unlawful detainer action filed by Dowling was dismissed based on evidence he had "rel[ied]" on a "forged document":

¹⁰

"In July 1996, Mr. Dowling filed an unlawful detainer action which his attorney dismissed once it was learned that Mr. Dowling was relying on a forged document to support his case. (Someone forged Mr. White's name on a rental agreement.) ... In September 1996, Mr. Dowling lost the second unlawful detainer action against the Whites even though [or because] he offered the forged rental agreement as evidence." (Italics added.)

Zimmerman also listed various "unusual occurrences" (such as the phone company's disconnecting the Whites' telephone service and the utility company's scheduling of a disconnecting of service at the telephonic direction of an unnamed male, among others), and asserted that Dowling's "continuous threats against the Whites and his daily prowling around their condo creates fear and apprehension" in Grace White.

2. March 1997 stipulation for judgment in the third unlawful detainer action

In March 1997, Dowling and the Whites entered into a stipulated judgment in favor of Dowling in the third unlawful detainer action. Zimmerman, acting as the Whites' counsel, negotiated the stipulated judgment on their behalf. The stipulation required the Whites to return possession of the townhouse to the Dowlings, but contained a provision that the parties reserved the right to recover damages through legal action at a later date.

B. The Instant Litigation

1. Dowling's SLAPP complaint

In November 1997, Dowling filed his SLAPP complaint naming Zimmerman and Edward White¹¹ as the defendants, and alleging 11 causes of action.¹² Of these, the following four were alleged against Zimmerman: defamation ...