Checking the Wrong Box Almost Ends Appeal Before it Starts

On Friday, the Third Appellate District in California issued an opinion in Ellis Law Group v. Nevada City Sugar Loaf Properties (Oct. 3, 2014 C072820).   The appellate proceeding arose from an attorney’s fee award following a successful anti-SLAPP motion by a law firm, Ellis Law Group.  Ellis Law Group was awarded $14,553.50 in attorney’s fees by the trial court and the court of appeal reversed the fee award.  The opinion was interesting for three reasons.

First, the opinion’s opening line was memorable and, sadly, true:  “This case illustrates that ‘[a]ll too often attorney fees become the tail that wags the dog in litigation.’ (Deane Gardenhome Assn. v. Denktas (1993) 13 Cal.App.4th 1394, 1399.)”

Second, the appellant almost lost the appeal before it even started by checking the wrong box on the judicial council form notice of appeal.  The appellant had checked the box indicating that the appeal was from an “order or judgment under Code of Civil Procedure section 904.1(a)(3)-(13).”  That was not the correct box to check to appeal from an order awarding attorney’s fees.  On appeal, Ellis Law Group argued that checking the wrong box was fatal to the appeal.  Fortunately for the appellant, the Court of Appeal applied California’s public policy of liberal construction of notices of appeal and deemed the notice of appeal “sufficient” despite the wrong box being checked.

Third, although generally a prevailing party in an anti-SLAPP motion is entitled to an award of attorney’s fees, this is not the case where the prevailing party is a law firm that chooses to represent itself during the anti-SLAPP proceedings.  Here, the prevailing party used the services of a contract lawyer who, for the most part, identified himself as a member of the Ellis Law Group.  The Court of Appeal was not impressed with Ellis Law Group’s arguments that its lawyer was a mere contract lawyer.  The tax treatment and compensation of a lawyer is not dispositive of whether the attorney is a member of the prevailing party law firm for purposes of the anti-SLAPP motion.  More convincing was the attorney’s apparent self-identification as a member of the Ellis Law Group on pleadings and communications.  The $14,553.50 fee award was, therefore, reversed.  A law firm that wishes to avoid the impact of this ruling in the future needs to retain truly outside counsel to recover attorney’s fees in an anti-SLAPP motion.

An appellant cannot always count on an appellate court to forgive a defective notice of appeal.  All too often meritorious arguments are waived and never considered on appeal due to mistakes made by lawyers inexperienced in the subtleties of appellate procedure in California.  Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced appellate attorneys who can advise you about the specifics of your writ or appeal.  Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation.  If you are contemplating filing or responding to an appeal in Los Angeles or Orange County, consider hiring a certified appellate specialist as your lawyer or co-counsel.  Don’t wing it, win it.

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