Legal Question in Appeals and Writs in California

The general rule is that attorney fees are not awarded unless the statute upon which the cause of action is based provides for attorney fees [most sectios do not], the contract among the parties provides for at least one party to collect attorney fees [which triggers every party having the right], or fees ae awrded by the court because the suit or motion was frivolous, intended to delay the litigation, etc. See Cal CPP Sections 128.6 and 116.90. But will the judge award attorney fees for bringing the motion to compel the fees? If not, you may end up spending as much to get the award as the award is. Try making a demand for part of the fees on the other side first, saying you wil file a motion otherwise.

I disagree with Mr. Shers.

Code of Civil Procedure section 128.6 is not applicable during this time period. "This section shall become operative on January 1, 2003, unless a statute that becomes effective on or before this date extends or deletes the repeal date of Section 128.7." (Code of Civ. Proc., sect. 128.6 subd. (f).) Code of Civil Procedure section 128.7's repeal date was deleted, and that is the operative section for sanctions. "Thus, section 128.6 will become operative only if and when section 128.7 is no longer in effect." (Olmstead v. Arthur Gallagher (2004) 32 Cal.4th 804.)

There is no section 116.90 of the Code of Civil Procedure.

The operative statute that provides for attorney's fees in Anti-Slapp motions is Code of Civil Procedure section 425.16. "In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs." (Code of Civ. Proc., sect. 425.16 subd. (c).)

The general rule is that if a statute provides for an award of attorney's fees in the trial court, they may also be recovered for litigating an appeal. A party claiming attorney's fees may either ask for them from the appellate court, or ask for them from the trial court after the appeal is concluded. If a party asked for them from the appellate court, and the appellate court concluded they were not recoverable, then that decision is binding on the trial court. That determination would be in the remittitur or the opinion attached to the remittitur.

If the remittitur is silent, you must file the motion for determination of entitlement and amount of attorney's fees with the trial court. That motion is governed by California Rules of Court, rule 3.1702. I suggest you familiarize yourself with that rule, which is here:

http://www.courtinfo.ca.gov/rules/index.cfm?title=three&linkid=rule3_1702

I love a good debate between LawGuru attorneys, and I disagree with Mr. Shers and also with Mr. Roach. As the prevailing party on an anti-SLAPP motion, you were entitled to attorney fees in the trial court, and presumably you have filed a motion for their reimbursement. You would now be entitled to file a second motion for your attorney fees on appeal, per Mr. Roach's analysis, but what are they? Your attorney never had to prepare a respondent's brief or, as far as you have stated, any other papers for the appellate court. It may be that the trial court judge will rubber-stamp your motion for attorney fees even if the amount is excessive, or your entire fee bill is for the attorney's time spent ruminating about what to write in the respondent's brief, but it's hard to fathom how the attorney could have expended more than an hour or two, if that.