WANLAND v. LAW OFFICES OF MASTAGNI, HOLSTEDT & CHIURAZZI

Filed 7/6/06

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Sacramento)

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APPEAL from a judgment of the Superior Court of Sacramento County, Loren E. McMaster, Judge. Affirmed in part and remanded in part.

Wanland & Spaulding, Wanland & Bernstein, Donald M. Wanland, Jr., and Daniel D. McGee for Plaintiffs and Appellants.

Freidberg & Parker, Edward Freidberg, and Kathleen Kerekes for Defendants and Respondents.

In an earlier appeal, we affirmed a judgment of dismissal following an order granting defendants' special motion to strike under the anti-SLAPP statute (Code Civ. Proc., § 425.16; further undesignated section references are to the Code of Civil Procedure). We also awarded defendants costs and attorney fees on appeal, with the amount to be determined by the trial court.

On remand, the trial court entered an order for costs and attorney fees that included expenses incurred both for the appeal and for a challenge to the undertaking submitted by plaintiffs to stay enforcement of the judgment pending appeal.

Plaintiffs appeal, challenging only that portion of the costs and attorney fees award arising from litigation of the undertaking. Plaintiffs contend the award exceeded the trial court's jurisdiction under section 425.16 and the terms of our remand. We affirm the post-judgment order awarding costs and attorney fees.

Facts and Procedural History

We take judicial notice of our decision from the earlier appeal in this matter (Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (Mar. 30, 2004, C042918) [nonpub. opn.] (hereafter Wanland v. Mastagni I)). (Evid. Code, § 452, subd. (c).) On August 3, 1999, Shannon Mello and Georgia Wanland were involved in an automobile accident. At the time of the accident, Mello was a clerical employee of the Law Offices of Mastagni, Holstedt & Chiurazzi (Mastagni). She reported the accident to Michael Kelly, a Mastagni attorney. Georgia Wanland reported the accident to her husband, Donald Wanland, an attorney with the firm of Wanland & Bernstein. (Wanland v. Mastagni I, at pp. 2-3.)

On August 24, 1999, Kelly filed suit on behalf of Shannon Mello against Georgia and Donald Wanland (the Wanlands) for personal injury and property damage. However, because of a concern that Mastagni employees might need to be called as witnesses, Christopher Kreeger was later substituted in as counsel for Mello. (Wanland v. Mastagni I, supra, C042918, at p. 6.) The case was submitted to judicial arbitration and, on July 7, 2000, the arbitrator awarded Mello damages in the amount of $28,280.69. The arbitration award was rejected and the matter was tried to a jury. The jury returned a 9-3 verdict in favor of the Wanlands. (Id. at pp. 10-11, 13.)

On April 25, 2002, the Wanlands initiated this malicious prosecution action against Mastagni, Kelly and Kreeger. Mastagni, Kelly and Kreeger filed motions to strike the complaint under the anti-SLAPP statute. On August 9, 2002, the trial court granted the motions to strike. The court concluded this was a SLAPP suit and the Wanlands failed to establish a probability of prevailing because they could not establish a lack of probable cause for the underlying negligence claim. Judgment of dismissal was entered, which included an award of costs and attorney fees to Mastagni, Kelly and Kreeger. (Wanland v. Mastagni I, supra, C042918, at p. 13.)

The Wanlands filed a notice of appeal on December 19, 2002. (Wanland v. Mastagni I, supra, C042918, at p. 14.) From January through April 2003, the parties litigated in the trial court the adequacy of the Wanlands' undertaking to obtain a stay of enforcement of the judgment pending appeal.

Ultimately, the trial court â€