Filed 5/5/20 Westreich v. Higa CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

MEIR J. WESTREICH et al.,

Plaintiffs and Appellants,

v.

RANDALL T. HIGA et al.,

Defendants and Respondents.

B293726

(Los Angeles County

Super. Ct. No. BC578660)

APPEAL from an order of the Superior Court of Los Angeles County, William F. Fahey, Judge. Affirmed.

Meir J. Westreich, in pro. per., for Plaintiffs and Appellants.

Hanger Steinberg Shapiro & Ash, Marc S. Shapiro and Jonathan P. Cyr, for Defendants and Respondents.

Meir Westreich and Maria Ruiz (plaintiffs) appeal from an order awarding Randall and Janice Higa (defendants) attorney fees for prevailing in a prior appeal from an anti-SLAPP order. (Westreich v. Higa (Apr. 16, 2018, B270413) [nonpub. opn.] (Westreich I).) We are asked to decide whether the trial court should have apportioned the attorney fees award so that it reflected only attorney work attributable to the dispositive argument defendants made in Westreich I: that the anti-SLAPP appeal must be dismissed because plaintiffs’ notice of appeal was untimely. We also consider related questions concerning citation of unpublished opinions.

I. BACKGROUND

Plaintiffs sued defendants, their next-door neighbors, to settle a property line boundary dispute. Defendants ultimately prevailed, securing summary adjudication on several claims and then, following a bench trial, winning on plaintiffs’ remaining claim.

While this action was still pending, plaintiffs also filed a second lawsuit against defendants in which they complained, in essence, that photos defendants took to defend against the boundary dispute lawsuit invaded plaintiffs’ privacy, caused them emotional distress, and constituted a trespass. Defendants filed a special motion to strike all three of these causes of action pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute. The trial court granted the anti-SLAPP motion, dismissed plaintiffs’ second lawsuit with prejudice, and awarded defendants attorney fees and costs as required by the anti-SLAPP statute.

Plaintiffs filed separate appeals from the judgment in the property line boundary action and from the order granting the anti-SLAPP motion. We consolidated the appeals for decision in Westreich I. In their consolidated respondents’ brief, defendants argued the anti-SLAPP order should be affirmed because plaintiffs waited too long to file their notice of appeal. Defendants also defended the trial court’s anti-SLAPP order on the merits.

We agreed with defendants that the appeal from the anti-SLAPP order was untimely and dismissed that appeal without need to address any of the parties’ merits arguments. Our disposition in Westreich I stated “[d]efendants are awarded their costs on appeal.” This award of “costs” permits seeking an award of attorney fees where such fees are authorized by statute. (§ 1033.5, subd. (a)(10)(B); Cal. Rules of Court, rules 8.278(a)(1), (d), 3.1702(c).)

Back in the trial court, defendants moved to recover an additional $21,870.09 in appellate attorney fees and costs; this amount was attributable solely to legal work performed in connection with plaintiffs’ appeal of the anti-SLAPP order (not the judgment in the property line boundary dispute) and in opposing an earlier motion for reconsideration of the anti-SLAPP order in the trial court. The motion was supported by a declaration from defendants’ attorney itemizing the fees (tracked to the tenth of an hour) and costs incurred, and attaching copies of the pertinent billing records and invoices.

In opposing the fee request, plaintiffs did not argue the attorney/paralegal time spent on the anti-SLAPP appeal (and trial court motion to reconsider) was excessive, nor did they assert the hourly rates charged by defendants’ anti-SLAPP counsel were unreasonable. Rather, plaintiffs argued the amount of fees defendants sought was too high because defendants’ anti-SLAPP appeal was “resolved entirely on the basis of the untimeliness of the filing of the Notice of Appeal” and defendants could have achieved that result more economically. Specifically, and relying on a single unpublished First District Court of Appeal opinion, plaintiffs argued defendants should have filed a motion to dismiss the anti-SLAPP appeal, which, if granted, would have entailed a fraction of the fees and costs incurred in preparing a full appellate brief responding on the merits. Plaintiffs also argued California rules prohibiting citation to unpublished decisions by the Courts of Appeal abridged their constitutional rights.

In their reply, defendants asserted the decision to consolidate the two appeals made it more “difficult” for them to dispose of only the anti-SLAPP portion of the appeal and, out of “an abundance of caution,” they chose to respond via a consolidated merits brief that “addressed all issues, substantive and procedural.” Defendants noted that because the First District Court of Appeal opinion was unpublished, it was “non-citable . . . and thus . . . uncontrolling.”

The trial court held a hearing to consider defendants’ request for attorney fees for prevailing on the anti-SLAPP issue in Westreich I. No reporter’s transcript of the hearing, or a settled or agreed statement, is included in the appellate record. A short written order signed by the trial court states the court granted defendants’ fees request in the full amount sought after considering “the moving papers and all other matters” presented.

II. DISCUSSION

This attorney fees appeal nosedives almost as fast as plaintiffs’ last untimely appeal of the trial court’s anti-SLAPP ruling. Plaintiffs argue the trial court abused its discretion in awarding attorney fees because it “simply ignored the apportionment issue,” i.e., the argument “that fees should be awarded only for those reasonably incurred for addressing the jurisdiction issue[ ] on which [defendants] prevailed . . . .” The appellate record does not bear this out: without a reporter’s transcript of the relevant hearing, we have no reliable means to determine what the trial court did and did not consider. Because plaintiffs bear the burden of providing a record affirmatively demonstrating error, their claim fails. Further, even if we had an adequate record, we would find plaintiffs’ apportionment argument unconvincing; their citations to unpublished cases are of course no match for settled law that treats dismissal of an appeal as an unqualified victory for a respondent. And as to those citations to unpublished cases, we reject plaintiffs’ argument that rules prohibiting their citation are unconstitutional. We also impose modest sanctions on Meir Westreich for citing the unpublished cases (unnecessary to advance his constitutional argument) to remedy an unreasonable violation of the California Rules of Court.

A. The Appellate Record Presented by Plaintiffs Is Inadequate to Warrant Reversal

An appellant bears the burden to affirmatively demonstrate error through an adequate record. (Denham v. Superior Court (1970) 2 Cal.3d 557, 564 (Denham); accord, Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295 (Maria P.).) We presume the trial court’s order is correct, and “‘[a]ll intendments and presumptions are indulged to support it on matters as to which the record is silent, and error must be affirmatively shown. This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.’” (Denham, supra, at 564.)

The California Rules of Court require an appellant to provide a reporter’s transcript if “an appellant intends to raise any issue that requires consideration of the oral proceedings in the superior court . . . .” (Cal. Rules of Court, rule 8.120(b).) Where the standard of review is abuse of discretion, as it is here, a transcript or settled statement is in many cases indispensable. (Southern California Gas Co. v. Flannery (2016) 5 Cal.App.5th 476, 483.)

The record here does not include a reporter’s transcript or a settled or agreed statement memorializing what transpired during the hearing on defendants’ motion for attorney fees incurred in connection with the anti-SLAPP portion of Westreich I. The record instead includes only a 10-line post-hearing order that does not illuminate what was said at the hearing— other than to note the trial court’s ruling was made after consideration of “the moving papers and all other matters presented.”

Without an adequate record affirmatively demonstrating error, there is no basis for holding the trial court abused its discretion in granting defendants’ motion for attorney fees and costs on appeal in the full amount sought. (Maria P., supra, 43 Cal.3d at 1295-1296 [the appellants “should have augmented the record with a settled statement of the proceeding” and “[b]ecause they failed to furnish an adequate record of the attorney fee proceedings, defendants’ claim must be resolved against them”]; see also Rhule v. WaveFront Technology, Inc. (2017) 8 Cal.App.5th 1223, 1229, fn. 5 [when written rulings are “quite succinct,” as is the trial court’s post-hearing order at issue here, “a reliable record of what transpired at the hearings is indispensable” for appellate review].)

B. Even Putting Aside the Record Adequacy Issue, Plaintiffs’ Apportionment Argument Is Still Meritless

As our Supreme Court has explained, “any SLAPP defendant who brings a successful motion to strike is entitled to mandatory attorney fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 (Ketchum).) “‘A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise.’ [Citation.] Because section 425.16, subdivision (c) provides for an award of attorney fees and costs to a prevailing defendant on a special motion to strike, and does not preclude recovery of appellate attorney fees by a prevailing defendant-respondent, those fees are recoverable. [Citation.]” (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785.)

Although a prevailing anti-SLAPP defendant is entitled to his or her attorney fees on appeal, the amount of the award is left to the trial court’s discretion. (Ketchum, supra, 24 Cal.4th at 1134.) “[A]bsent circumstances rendering the award unjust, an attorney fee award should ordinarily include compensation for all the hours reasonably spent, including those relating solely to the fee.” (Id. at 1133.) We review the trial court’s determination of the appropriate fee for abuse of discretion. (Id. at 1130, 1134, 1138.)

Here, the trial court was not obliged to apportion defendants’ attorney fees because at each step defendants were completely successful, not partially successful. The trial court granted defendants’ anti-SLAPP motion as to all of plaintiffs’ causes of action. In Westreich I, defendants succeeded in getting the anti-SLAPP portion of the consolidated appeal dismissed in its entirety. That is an unqualified win. (Cal. Rules of Court, rule 8.278(a)(2) [“The prevailing party is the respondent if the Court of Appeal affirms the judgment without modification or dismisses the appeal”].)

Plaintiffs’ Monday morning quarterback argument to the contrary is unpersuasive. With hindsight, and taking the result in Westreich I as a given, a motion to dismiss plaintiffs’ anti-SLAPP appeal would have likely succeeded. But defendants could not be sure of that at the time they filed their consolidated respondents’ brief (even if they had then noticed the untimeliness problem ), and defendants reasonably chose to make a full response on the merits. There is nothing in the record that suggests defendants made a tactical election in bad faith merely to pad their legal bills. The trial court did not exceed the bounds of its discretion in determining defendants were entitled to their full costs—including all attorney fees incurred as a result of plaintiffs’ unsuccessful anti-SLAPP appeal.

C. Plaintiffs Have No Constitutional Right to Cite Unpublished Authority and Meir Westreich’s Decision to Do So Repeatedly Warrants Modest Sanctions

California Rules of Court, rule 8.1115 (Rule 8.1115) prohibits citation to a California Court of Appeal opinion that was not certified for publication even though the opinion is available through online databases. (People v. Williams (2009) 176 Cal.App.4th 1521, 1529 (Williams).) Plaintiffs argue California’s rule against citation to unpublished opinions violates their First Amendment rights. The argument is meritless and we reject it, as have other courts before us. (Schmier v. Supreme Court (2000) 78 Cal.App.4th 703, 712 [rules governing publication of opinions “were established by persons in possession of a public office with authority to do so, and they comport with applicable statutory and constitutional requirements”]; Hart v. Massanari (9th Cir. 2001) 266 F.3d 1155, 1180 [former Ninth Circuit Rule 36-3, which prohibited citation to unpublished decisions, was constitutional]; see also People v. Russo (2001) 25 Cal.4th 1124, 1133-1134, fn. 1 [refusing to consider an unpublished Court of Appeal opinion]; People v. Webster (1991) 54 Cal.3d 411, 428, fn. 4 [declining to take judicial notice of a Court of Appeal unpublished opinion under the predecessor to Cal. Rules of Court, rule 8.1115].)

In addition to wrongly—but properly—arguing Rule 8.1115 is unconstitutional, plaintiffs’ opening brief—improperly—goes further. It cites an unpublished decision as purported support for the argument that the trial court erred in declining to apportion the attorney fees award as plaintiffs desired. Defendants responded in their brief by citing the warning in Alicia T. v. County of Los Angeles (1990) 222 Cal.App.3d 869 that “‘[c]ounsel’s refusal to desist in the citation of an opinion ordered not to be published and failure to address controlling published authority merits’” sanctions. Unchastened, plaintiffs’ reply brief not only cites the same unpublished decision again, but also cites yet another unpublished case.

Published authority already exists warning against citation of unpublished opinions. (Williams, supra, 176 Cal.App.4th at 1529 [“[P]ersistent use of unpublished authority may be cause for sanctions. [Citation.] Counsel would be well served to heed this advice by a leading treatise writer: ‘Do not, under any circumstances, cite to an unpublished or depublished opinion (or any unpublished part of a published opinion) . . . unless . . . one of the narrow exceptions to the noncitation rule applies . . . .’ [Citation]”].) Having disregarded the warnings both in published precedent and from defendants in their brief in this case, we conclude sanctions in the amount of $1,100 are necessary to remedy an unreasonable violation of the Rules of Court and deter future noncompliance.

DISPOSITION

The trial court’s attorney fees order is affirmed. Sanctions are imposed upon Meir Westreich in the amount of $1,100.00 to be paid to the clerk of this court. Defendants’ counsel of record and the clerk of this court are each ordered to forward a copy of this opinion to the State Bar upon return of the remittitur. (Bus. & Prof. Code, §§ 6086.7, subd. (a)(3), 6068, subd. (o)(3).) All sanctions shall be paid no later than 15 days after the date the remittitur is filed. Defendants are awarded costs on appeal.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

BAKER, J.

We concur:

RUBIN, P. J.

KIM, J.