Endres v. Moran
Bernard L. Endres, in propria persona, forDefendants and Appellants.
Law Offices of Pardeep Joshi and Pardeep Joshi,Topanga, for Plaintiffs and Respondents.
This case raises a single issue, denial ofattorneys’ fees to defendants after their special motionto strike under Code of Civil Procedure [FN1] section425.16 was sustained as to only one of many causesof action. We affirm, as we explain:
FN1. All further statutory references are tothat code.
 Karen Moran, Patricia Moore-Joshi, and LuisaDunn sued appellants Bernard and Frances Endresand others. Factually, the complaint alleged thatplaintiffs were members of the Topanga ChristianFellowship, and that defendants had committedvarious torts as part of a wrongful attempt to controlthat church. [FN2] Against the appealing defendants,the causes of action were defamation, placing in afalse light, intrusion upon seclusion, assault,battery, civil conspiracy, and intentional infliction ofemotional distress, and, as to Bernard Endres, a causeof action titled making private facts public.
FN2. Respondents’ request that we takejudicial notice of a judgment and order in other cases arising from this dispute isdenied, in that those documents are notrelevant to our discussion or disposition ofthis matter.
All defendants made a special motion to strike theentirety of the complaint, contending that the lawsuitwas filed to chill their right to free speech and inretaliation for a lawsuit they had filed, and that thecomplaint should be stricken because its subjectmatter was ecclesiastical–for example, defendantscontended that the court could not decide thedefamation cause of action without deciding whetherthe allegedly defamatory statement was true, whichmeant deciding whether a given individual was or wasnot possessed by Satan, a matter outside thejurisdiction of the courts.
The court granted the motion as to one cause ofaction, civil conspiracy, and denied it as to all othercauses of action, finding that those causes of actionwere not within the purview of the statute.
On the request for fees, the court found that “In lightof the Court’s conclusion that the moving parties werecorrect as to only one of the eleven causes of action,and that the relief which the moving parties receivedis minimal compared with the goals of their motionssuch that they cannot be found to have truly’prevailed,’ the Court declines to award attorney’s feesto any party. The Court would likewise decline toaward attorney’s fees to plaintiffs if attorney’s feeswere sought by plaintiffs.”
 On appeal, defendants challenge the trial courtorder denying them attorney fees, contending thatwhen a defendant prevails on a special motion tostrike, or even partially prevails, an award of fees ismandatory. We think the trial court’s reasoning wassound and that its ruling is not subject to reversal.
 Defendants sought to dismiss the entire complaint, and instead obtained only the most illusoryvictory. The factual allegations defendants facedwere not changed when the cause of action forconspiracy was stricken, because that cause ofaction included no specific factual allegations, butinstead incorporated the factual allegations made inthe other causes of action. Further, as a legal matter,the cause of action for conspiracy added little ornothing to plaintiffs’ case. “Conspiracy is not a causeof action, but a legal doctrine that imposes liability onpersons who, although not actually committing a tortthemselves, share with the immediate tortfeasors acommon plan or design in its perpetration…. [¶]Standing alone, a conspiracy does no harm andengenders no tort liability. It must be activated by thecommission of an actual tort.” Applied EquipmentCorp. v. Litton Saudi Arabia Ltd. (1994) 7 Cal.4th503, 510-511, 28 Cal.Rptr.2d 475, 869 P.2d 454.) “A conspiracy cannot be alleged as a tort separatefrom the underlying wrong it is organized to achieve.” (Id. at p. 513, 28 Cal.Rptr.2d 475, 869 P.2d 454.) Thus, both before and after the special motion tostrike, these plaintiffs had to prove commission of thetorts they alleged, and defendants had to defend thatcase.
To be blunt, defendants’ motion accomplished nothing, except that plaintiffs were put to the cost ofdefending the motion. The possible recovery againstdefendants did not change. The factual allegationswhich defendants had to defend did not change. Thework involved in trying the case did not change. Defendants’s burden concerning their jurisdictionaldefense did not change. The case was essentially thesame after the ruling on the special motion to strike asit was before. The results of the motion were minimaland insignificant, fully justifying the court’s findingthat defendants should not recover fees.
Section 425.16 was enacted because the Legislaturefound that “it is in the public interest to encouragecontinued participation in matters of publicsignificance, and that this participation should not bechilled through abuse of the judicial process.” Neither the public’s nor defendants’ right toparticipate was advanced by this motion.
Defendants primarily rely on Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 106Cal.Rptr.2d 843. In that case, we considered, interalia, the trial court’s denial of a special motion tostrike a single cause of action. We held that “The fact that other claims remain does not bar a trial judgefrom granting a section 425.16 special motion tostrike.” (Id. at p. 150, 106 Cal.Rptr.2d 843.) We alsoheld that the special motion to strike should havebeen granted as to that cause of action, and that, giventhat ruling, “the trial court must rule on any attorneyfees motions brought pursuant to section 425.16,subdivision (c).” (Id. at p. 154, 106 Cal.Rptr.2d 843.) Subdivision (c), of course, gave the trial courtdiscretion to award fees to the plaintiff on a findingthat the motion–which was denied in part–wasfrivolous or intended to cause delay. Nothing inShekhter compels a reversal in this case, where the trial court considered the motion and ruled on it.
Defendants also cite ComputerXpress, Inc. v.Jackson (2001) 93 Cal.App.4th 993, 113 Cal.Rptr.2d625. That case pointed out that section 425.16″reflects a clear preference for awarding fees andcosts to prevailing defendants,” and suggests that the analogous statutes are Title 42 United States Codesection 1988 and section 1021.5, in that thosestatutes, too, evidence a legislative intent that oneparty will enjoy a preference for attorney fees “if theyare successful.” (Id. at p. 1018, 113 Cal.Rptr.2d625.) ComputerXpress held that defendants inthat case should be considered prevailing parties, thusimplicitly finding that a trial court may conduct aprevailing party analysis. Further, in that case, theCourt reversed a trial court ruling denying themotion to strike, finding that several causes of action,including abuse of process, trade libel, and interference with economic advantage should have been stricken. Those defendants achieved significant,meaningful, results with their motion. Defendantshere did not.
In Pfeiffer Venice Properties v. Bernard (2002) 101Cal.App.4th 211, 215, 123 Cal.Rptr.2d 647, we said that “the award of attorney fees to a defendant whosuccessfully brings a special motion to strike is not discretionary but mandatory. (Ketchum v. Moses(2001) 24 Cal.4th 1122, 1131, 104 Cal.Rptr.2d 377,17 P.3d 735.)” Here, we add only that when adefendant cannot in any realistic sense be said to havebeen successful, fees need not be awarded.Defendants here sought to dismiss the case againstthem, but instead obtained a ruling which in every practical sense meant nothing. That does not entitlethem to fees.
In their reply brief, defendants also argue that thetrial court should have granted their motion as toadditional causes of action. “Points raised for thefirst time in a reply brief will not be considered.” (Malmstrom v. Kaiser Aluminum & Chemical Corp.(1986) 187 Cal.App.3d 299, 320, 231 Cal.Rptr. 820.)
Finally, plaintiffs argue that the trial court erred bystriking the cause of action for civil conspiracy. Plaintiffs did not file a notice of appeal. The issue isnot before us.
The judgment is affirmed.
I concur: TURNER, P.J.
MOSK, J., Concurring.
I basically concur with the conclusion of the majority. Code of Civil Procedure section 425.16–the SLAPPstatute–has resulted in numerous appeals that involvevarious ambiguities and apparent unintendedconsequences. The Supreme Court stated that once a SLAPP motion “was successful, attorney fees weremandatory under Code of Civil Procedure section425.16, subdivision (c).” (Ketchum v. Moses (2001) 24Cal.4th 1122, 1141-1142, 104 Cal.Rptr.2d 377, 17 P.3d735.)
The court in ComputerXpress, Inc. v. Jackson(2001) 93 Cal.App.4th 993, 1016-1021, 113Cal.Rptr.2d 625 (ComputerXpress ) discussed whether a party who prevails on a SLAPP motion as to somecauses of action but not others, is a prevailing party for purposes of an attorney fees award under the SLAPP statute. The court concluded, “The approach adoptedin the cases applying those analogous statutes, under which partial success reduces but does not eliminate theentitlement to attorney fees, therefore should be applied here.” (Id. at p. 1020, 113 Cal.Rptr.2d 625.)
There appears to be a caveat expressed in a UnitedStates Supreme Court case involving an “analogous”statute–42 U.S.C. section 1988. The court in Hensleyv. Eckerhart (1983) 461 U.S. 424, 433, 103 S.Ct. 1933,76 L.Ed.2d 40 said, ” ‘ “plaintiffs may be considered’prevailing parties’ for attorney’s fees purposes if theysucceed on any significant issue in litigation which achieves some of the benefit the parties sought inbringing suit.” ‘ ” (Italics added.) This was cited in(ComputerXpress, supra, 93 Cal.App.4th at p. 1019,113 Cal.Rptr.2d 625.) Similarly, as noted inComputerXpress, in Los Angeles Times v. Alameda Corridor Transportation Authority (2001) 88Cal.App.4th 1381, 1392, 107 Cal.Rptr.2d 29, applyingthe attorney fees provision of the California PublicRecords Act (Govt.Code, § 6259, subd. (d)), “the court acknowledged the possibility that in some casesa plaintiff might obtain documents that are so minimalor insignificant as to justify a finding that it did notprevail.” ComputerXpress, supra, 93 Cal.App.4th atp. 1020, 113 Cal.Rptr.2d 625.)
Here, the successful motion to strike was so insignificant that defendant should not be viewed as aprevailing defendant for purposes of an attorney fee award. For that reason I concur.