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Moore v. Kaufman

October 22, 2010

SHEILA G. MOORE, PLAINTIFF,
v.
BARRY B. KAUFMAN, DEFENDANT AND RESPONDENT;
FRANCES L. DIAZ, MOVANT AND APPELLANT.
FRANCES L. DIAZ, PETITIONER,
v.
THE SUPERIOR COURT OF LOS ANGELES COUNTY, RESPONDENT;
BARRY B. KAUFMAN, REAL PARTY IN INTEREST.



APPEAL from an order of the Superior Court of Los Angeles County. John Shepard Wiley, Judge. Appeal dismissed. (Los Angeles County Super. Ct. No. BC228943) ORIGINAL PROCEEDING in mandate. John Shepard Wiley, Judge. Petition granted.

The opinion of the court was delivered by: Rothschild, J.

CERTIFIED FOR PUBLICATION

Frances L. Diaz petitions this court for relief from an order of the superior court finding her in contempt for refusing to comply with an order to answer questions at a judgment debtor examination. The underlying judgment awarded attorney fees against both Diaz and her then-client Dr. Sheila G. Moore, jointly and severally, after a special motion to strike Moore's complaint was granted. We hold that the anti-SLAPP statute (Code Civ. Proc., § 425.16) does not authorize an award of attorney fees against plaintiff's counsel.*fn1 Because the underlying judgment is therefore void as to Diaz, we grant the petition.

BACKGROUND

This case has a long appellate history. Below is a summary of the portions of that history that are relevant to analysis of the present proceeding.

Diaz represented Dr. Sheila G. Moore in a lawsuit filed against Barry B. Kaufman in April 2000. Moore voluntarily dismissed the suit without prejudice but, one year later, succeeded in vacating the dismissal and having the action reinstated.

Kaufman filed a special motion to strike Moore's complaint pursuant to section 425.16 and also filed a motion for sanctions. The two motions were calendared to be heard on September 7, 2001.

With respect to the special motion to strike, Kaufman's notice of motion sought an award of attorney fees against both Moore and Diaz, and that request was repeated in the conclusion of Kaufman's memorandum of points and authorities in support of the motion. The request for an award against Diaz, however, appeared nowhere else in Kaufman's motion papers. The body of Kaufman's memorandum of points and authorities contained no argument or authority in support of an award against Diaz. Diaz's opposition failed to argue against such an award, presumably because Kaufman had presented no arguments for Diaz to rebut.

Kaufman's motion for sanctions shed further light on his special motion to strike. Kaufman's notice of motion under the anti-SLAPP statute stated that the request for an award of attorney fees against both Moore and Diaz was based on section 425.16 "and the Court's inherent discretionary powers." But in his request for sanctions, Kaufman expressly conceded that "California courts have no inherent power to impose monetary sanctions against parties or their counsel." Thus, when read together, the sanctions motion and the special motion to strike amounted to a concession by Kaufman that, apart from his request for sanctions (which was based on other statutes but not on the anti-SLAPP statute), Kaufman's only basis for an award of attorney fees against Diaz was the anti-SLAPP statute. But, again, Kaufman's memorandum of points and authorities in support of the special motion to strike never argued that the anti-SLAPP statute authorized such an award.

At the September 7 hearing, the court indicated that it intended to grant the anti-SLAPP motion and to deny the request for sanctions. Having been apprised of the court's tentative ruling, Kaufman's counsel explained that one of the reasons he filed a separate request for sanctions was that there might not be authority for an award of attorney fees against Diaz under the anti-SLAPP statute. The court responded by reiterating its intention to deny the request for sanctions. The court did not state an opinion concerning the propriety of an award against Diaz under the anti-SLAPP statute, but nothing the court said at the hearing gave any indication that the court intended to grant such an award. And given Kaufman's counsel's express acknowledgement that the propriety of such an award was questionable, counsel's failure to include any arguments on the issue in his memorandum of points and authorities was tantamount to a waiver of the issue.

Although the court never orally indicated any intention to depart from its tentative ruling, the court signed an order prepared by Kaufman's counsel that said the special motion to strike was granted "in its entirely [sic]," which could be interpreted as granting the request for an award of fees against Diaz. The court also signed a judgment prepared by Kaufman's counsel that awarded attorney fees and costs against Moore and Diaz jointly and severally, leaving the amounts blank. Moore appealed from the judgment, but Diaz did not.*fn2

On October 5, 2001, Kaufman filed a memorandum of costs, which stated that the amount of attorney fees sought was "To be determined." On November 5, 2001, Kaufman filed a motion for attorney fees. The notice of motion sought an award of attorney fees and costs against Moore alone. It did not mention Diaz. The notice of motion asserted that the anti-SLAPP statute "empowers the [c]court to assess attorneys fees and costs against Moore" and explained that "[t]he purpose of this [m]otion is to fix the amount that Moore should pay for attorney's fees so that the September 7, 2001 [j]udgment can be amended accordingly." In seeking an amendment of the judgment to reflect "the amount that Moore should pay," the motion gave no indication that it sought determination of an amount for which Moore and Diaz would be jointly and severally liable. On the contrary, to anyone familiar with the terms of the judgment, Kaufman's motion appeared to seek an amendment of the judgment that would hold Moore alone liable for the attorney fees that Kaufman sought.

When the motion was heard on November 26, the court ruled that the motion should be granted but that Kaufman could recover only fees incurred in connection with the special motion to strike, not fees for the entire litigation. The court directed Kaufman to refile the motion in a manner that properly segregated the fees connected to the special motion to strike.

On December 14, 2001, Kaufman refiled the motion as directed. Again, his notice of motion sought an award of attorney fees against Moore alone. It did not mention Diaz. Again, the notice of motion stated that the anti-SLAPP statute "empowers the [c]court to assess attorneys fees and costs against Moore" and explained that "[t]he purpose of this [m]otion is to fix the amount that Moore should pay for such attorney's fees and for costs, so that the September 7, 2001 [j]udgment can be amended accordingly." Again, to anyone familiar with the terms of the judgment, the motion seemed to seek an amendment of the judgment to hold Moore alone liable for the attorney fees and costs that Kaufman sought.

The trial court heard the refiled motion on January 8, 2002. The court granted the motion, awarding $39,596.25 in attorney fees and $1,627.50 in costs. At the hearing, neither the court nor counsel for any party said anything about an award of fees against Diaz. That was understandable, because Kaufman's motion had sought an award against Moore alone. The court's minute order, however, did not expressly provide that the award was against Moore alone--it did not specify whether the award was against ...


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