AdoptionNetworkLawCenter v. Tayyanipour
Filed 4/10/07 Adoption Network Law Center v. Tayyanipour CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
FOURTH APPELLATE DISTRICT
DIVISION THREE
ADOPTION NETWORK LAW CENTER, INC., et al., Plaintiffs and Appellants, v. DAVID H. TAYYANIPOUR, Defendant and Appellant. | G037650, G037663 (Super. Ct. No. 05CC13094) O P I N I O N |
Appeals from an order of the Superior Court of Orange County, James P. Gray, Judge. Reversed. Motion to dismiss denied.
Fuchs & Associates, Inc., John R. Fuchs and Gail S. Gilfillan for Plaintiffs and Appellants.
Stephan, Oringher, Richman, Theodora & Miller; Theodora, Oringher, Miller & Richman, Robert M. Dato, Lisa M. Barley and Joseph M. Preis for Defendant and Appellant.
* * *
The parties appear before us in round three of their appellate battles. In the second appeal, we reversed an order granting an anti-SLAPP motion. (Adoption Network Law Center, Inc. v. Tayyanipour (January 24, 2007, G036870) [nonpub. opn.].)[1] We now have before us both an appeal and a cross-appeal from the order awarding attorney fees to the prevailing party on the anti-SLAPP motion. The appealing plaintiffs say no attorney fees should have been awarded and the appealing defendant says the amount of the fee award was too low. Inasmuch as the order granting the anti-SLAPP motion has been reversed, the attorney fees award must also be reversed. We deny the motion to dismiss the cross-appeal pertaining to the amount of the award and reverse the order awarding attorney fees.
I
BACKGROUND
Adoption Network Law Center, Inc., Promedia, Inc. formerly known as Adoption Network, Inc., Allan Gindi, Carol Gindi, and Richard Mowery (collectively, the Adoption Network Parties) filed a complaint against David H. Tayyanipour, aka David Tayani (Tayani).[2] The complaint asserted causes of action for, inter alia, libel, slander, intentional and negligent interference with prospective economic advantage, and invasion of privacy.
Tayani filed a motion to strike the complaint pursuant to Code of Civil Procedure section 425.16 (the anti-SLAPP motion). The court granted the anti-SLAPP motion as to the five above-described causes of action. The Adoption Network Parties filed a notice of appeal from the order granting the anti-SLAPP motion.
The trial court subsequently awarded attorney fees to Tayani as the prevailing party on the anti-SLAPP motion. The Adoption Network Parties then filed an appeal from the order awarding attorney fees, on the theory that the award would be erroneous if the order granting the anti-SLAPP motion were reversed. Tayani then filed a cross-appeal from the order awarding attorney fees, claiming the award was too low.
Thereafter, this court filed its opinion in Adoption Network Law Center, Inc. v. Tayyanipour (January 24, 2007, G036870) [nonpub. opn.], wherein we reversed the order granting the anti-SLAPP motion. The opinion did not address the attorney fees award, since that award was not at issue in the second appeal.
II
DISCUSSION
We now address the appeal and cross-appeal from the attorney fees award. As a preliminary matter, we note that Tayani has filed a motion to dismiss his cross-appeal, stating that it is moot, inasmuch as the order granting the anti-SLAPP motion has now been reversed. He asks that this court, on its own motion, also dismiss the appeal of the Adoption Network Parties, as likewise moot. In addition, Tayani contends that each party should bear its own costs on appeal with respect to each of the appeal and the cross-appeal.
The Adoption Network Parties contend that the relief sought in the cross-appeal should be denied, or the cross-appeal should be dismissed. However, they contend that their appeal is not moot and that an opinion from this court reversing the attorney fees award is required. In addition, they maintain that they should recover their costs with respect to both the appeal and the cross-appeal.
The issue of reversal is clear. Attorneys fees and costs were awarded to [Tayani] by the trial court because [he] prevailed on [his] special motion to strike. ([Code Civ. Proc.,] 425.16, subd. (c).) That statutory basis for the award no longer exists because we have determined that the [Adoption Network Parties] should have prevailed on the motion to strike. Therefore, it follows that the order awarding fees and costs cannot stand. (Santa Monica Rent Control Bd. v. Pearl Street, LLC (2003) 109 Cal.App.4th 1308, 1320.)
As for costs on appeal, the Adoption Network Parties ask us to look at the sequence of events. They filed their appeal from the order granting the anti-SLAPP motion on March 21, 2006. Tayani filed his motion for attorney fees the next day. The opening brief in the appeal from the order granting the anti-SLAPP motion was filed on June 27, 2006. Rather than awaiting the outcome of that appeal, Tayani, on August 23, 2006, filed a motion for ruling on his attorney fees request. The court granted his motion for attorney fees on September 21, 2006.
The Adoption Network Parties contend that it was unnecessary for Tayani to press for a ruling on his attorney fees motion before this court had ruled on the appeal from the order granting the anti-SLAPP motion and that his action caused the filing of yet a third appeal, and the incurrence of yet additional costs, that would have been unnecessary had Tayani simply awaited the outcome of the second appeal. This, the Adoption Network Parties say, should entitle them to an award of costs on both the appeal and the cross-appeal from the order awarding attorney fees.
Their argument is persuasive. Tayanis motion to dismiss his cross-appeal is denied. However, he is entitled to no relief on his cross-appeal. The award of attorney fees is reversed. The Adoption Network Parties, as prevailing parties on appeal, shall recover their costs with respect to both the appeal and the cross-appeal. (Cal. Rules of Court, rule 8.276(a).)
III
DISPOSITION
Tayanis motion to dismiss his cross-appeal is denied. The order awarding attorney fees is reversed. The Adoption Network Parties shall recover their costs on the appeal and the cross-appeal.
MOORE, J.
WE CONCUR:
SILLS, P. J.
OLEARY, J.
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[1] This court informed the parties of its intention to take judicial notice of its files in Tayyanipour v. Adoption Network Law Center, Inc. (November 20, 2006, G036200, G036613) [nonpub. opn.] and Adoption Network Law Center, Inc. v. Tayyanipour (January 24, 2007, G036870) [nonpub. opn.] and gave them an opportunity to object. No party filed any objection. This court hereby takes judicial notice of those files. (Evid. Code, 452, subd. (d).)
[2] In this lawsuit, all parties refer to David H. Tayyanipour by the shortened version of his name, David Tayani, so we will do so hereinafter, to avoid confusion.
