The opinion of the court was delivered by: Morrison C. England, Jr. United States District Judge
Through the present Motion, Plaintiffs request that this Court, upon approval of a supersedeas bond in the appropriate amount, stay enforcement of its October 8, 2008 granting attorney's fees in the amount of $21,251.49 to Defendants Davis Enterprise, Debbie Davis and Lauren Keene (hereinafter referred to collectively as the "Media Defendants). As the prevailing party on a special motion to strike a claim arising from the Defendants' exercise of free speech on a public issue, commonly referred to as an "anti-SLAPP motion",*fn1 the Media Defendants were entitled to recover their attorney's fees and costs under California Code of Civil Procedure section 425.16(c). See Ketchum v. Moses, 24 Cal. 4th 1122, 1131 (2001).
Plaintiffs base their stay request on Federal Rule of Civil Procedure 62(d),*fn2 which authorizes a stay of judgment following an appeal provided that a supersedeas bond is issued. Here, however, no appeal is currently pending with regard to the aforementioned October 8, 2008 Order. Plaintiffs nonetheless assert that a stay is appropriate because of their stated intention to eventually pursue an appeal of the Court's Order dismissing the Media Defendants once they are permitted to do so at the conclusion of this case.
As the Media Defendants point out in opposition to Plaintiffs' Motion, the language of Rule 62(d) is plain on its face in applying only "[i]f an appeal is taken."
There undisputedly is no pending appeal as to the Media Defendants' successful anti-SLAPP motion. Moreover, while allowance of a supersedeas bond is still a matter within the Court's discretion (see United States v. Cowan, 535 F. Supp. 2d 1135, 1148 (D. Haw. 2008)), the circumstances of this case, in the opinion of the Court, militate against staying enforcement of the attorney's fees awarded the Media Defendants.
First, the purpose of the fee recovery provisions for a successful anti-SLAPP litigant is to compensate a defendant for the expense of having to respond to a SLAPP suit. The right to recover fees busted by "broadly construed so as to effectuate the legislative purpose of reimbursing the prevailing defendant for expenses incurred in extracting [itself] from a baseless lawsuit." Wilkerson v. Sullivan, 99 Cal. App. 4th 443, 446 (2002).
Secondly, although the Court originally deferred any adjudication as to attorney's fees while Plaintiffs' original interlocutory appeal of the Media Defendants' dismissal remained pending (see Order of September 19, 2007), once the Ninth Circuit dismissed Plaintiffs' appeal on March 11, 2008 as constituting neither an appealable final judgment or an appeal interlocutory order, the Media Defendants reasserted their fee request on May 2, 2008. Plaintiffs filed no opposition to that motion which, as stated above, was granted by the Court on October 8, 2008. Plaintiffs could have opposed the Media Defendants' renewed Motion for Attorney's Fees, based on their now professed claim that they intend to reactivate an appeal as soon as possible, and the Court, in turn, could have exercised its discretion in again deferring any decision on attorney's fees until the conclusion of this lawsuit.
Plaintiffs in fact elected not to file any opposition, yet now belatedly attempt to reverse the consequences of their decision in that regard by asking the Court to stay the award when the time for voicing any opposition to the fee award has long passed.
Under these circumstances, the Court declines to stay enforcement of the attorney's fees awarded the Media Defendants. This conclusion is compelled not only by the inability of Plaintiffs to qualify for protection under the terms of Rule 62(d) in the first place, but also by Plaintiffs' failure to timely express their concern with any award of attorney's fees, and the stated legislative purpose of reimbursing successful anti-SLAPP litigants for fees incurred in defending baseless lawsuits.
Plaintiffs' Motion for Approval of Supersedeas Bond and Stay of Attorney's Fee Award is consequently DENIED.*fn3