Cross- Respondent, v. Respondents and Cross-Appellants.

Reset A A Font size: Print

Court of Appeal, Second District, California.

DOUGLAS G. BERGERON, Plaintiff, Appellant and Cross- Respondent, v. PETER R. DION-KINDEM, et al., Defendants, Respondents and Cross-Appellants.

B210384

Decided: February 25, 2010

The Sobelsohn Law Firm and Daniel E. Sobelsohn for Plaintiff, Appellant and Cross-Respondent. Dion-Kindem & Crockett and Peter R. Dion-Kindem for Defendants, Respondents and Cross-Appellants.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

introduction

Douglas Bergeron (Bergeron) sued attorney Peter Dion-Kindem, the legal corporation Peter R. Dion-Kindem, P.C., and the law firm Dion-Kindem & Crockett (collectively the PDK defendants), for malicious prosecution based on the PDK defendants' representation of Nicola Hills (Hills) in an earlier palimony suit against Bergeron.   The trial court granted the PDK defendants' anti-SLAPP motion to strike the malicious prosecution complaint (Code Civ. Proc., § 425.16), on the ground that Bergeron had failed to meet his burden to show that there was a reasonable probability he would prevail on the merits of his malicious prosecution suit.1  The court based this decision on its finding that the palimony action had not terminated favorably to Bergeron, a requirement to bring a malicious prosecution suit.   Thereafter, the PDK defendants moved for attorneys fees, but the trial court never issued a ruling on the motion.

Conducting a de novo review in Bergeron's appeal from the order striking his malicious prosecution claim, we conclude, like the trial court, that Bergeron cannot demonstrate that the underlying palimony action terminated in his favor.   In the PDK defendants' cross-appeal from the trial court's implicit denial (failure to rule on) of their motion for attorneys fees, we conclude that the PDK defendants are not entitled to attorneys fees.   We therefore affirm the judgment.

factual and procedural background

Hills' Palimony Action Against Bergeron

Hills brought a palimony lawsuit against Bergeron, her former boyfriend of three years, claiming that she and Bergeron had orally agreed that she would devote her efforts to maintaining their household, and would perform other services for Bergeron to free his time for pursuing business opportunities.   In return, Bergeron allegedly promised to treat as joint property the earnings and property gained during their relationship, and promised to buy Hills an apartment in Australia.   Hills claimed that he broke these promises following their break-up, and in her palimony action sought damages and other remedies for Bergeron's alleged breach of an oral contract, breach of an implied in fact contract, and promissory fraud.2

After the court denied Bergeron's motion for judgment on the pleadings, the parties began to engage in settlement discussions.   Following up on discussions that took place during a break in Bergeron's deposition, Hills' attorney Dion-Kindem sent an e-mail to Bergeron's attorney stating as follows:  “This is a settlement communication.  [¶] I hate it when the other side tries to negotiate my fee down, and generally do not agree to do so.   As a ‘mensch,’ however, I am willing to reduce my 40% contingency to 30% until 5:00 p.m. on Monday, November 3, in order to attempt to settle this matter.   To net Nicola [Hills] the $360,000, this means that there has to be an additional $108,000 (30% of $360,000) payment.”

The next day, Bergeron's attorney responded to Dion-Kindem with an e-mail accepting “your offer of settlement” and agreeing to “pay you and your client $468,000 ($360,000 for Nicola and $108,000 for your fee), in exchange for a mutual release of all claims.”   Bergeron's attorney also indicated that he would be drafting a settlement instrument documenting the parties' agreement and including “customary provisions such as comprehensive mutual releases, confidentiality in accordance with the protective order ․ non-disparagement and the like.”   The following day, Dion-Kindem responded in another email, stating:  “I have reviewed your email and discussed same with my client.   Doug [Bergeron]'s counter-offer is rejected.  [¶] Nicola had not reviewed my email to you before I sent it, and it is unacceptable to her.   To the extent any valid offer may be deemed to have been made, it is withdrawn.”   Several weeks later, Hills made a new settlement demand of over $1.6 million, which Bergeron did not accept.

Bergeron then amended his answer to add as an affirmative defense the existence of an enforceable settlement agreement, pleading that “this litigation was settled in its entirety by agreement of the parties.”   Bergeron also filed a cross-complaint for damages caused by Hills' breach of the settlement agreement, including Bergeron's costs and fees incurred since November 1, 2003.

Pursuant to the “Joint Stipulation re Severance and Trial of Defendant's Claim Re Settlement,” the court ordered that “[t]he issue of the validity, enforceability and terms of the purported settlement agreement asserted by Defendant (the ‘Settlement Claim’) shall be severed from the remaining claims and defenses (the ‘Other Claims') and tried first to the Court without a jury.”   The parties' stated reason for wanting this issue tried first was that if Bergeron prevailed on his claim that a settlement agreement barred Hills' claims, “it would be unnecessary to address ․ Plaintiff's claims in the Complaint and Defendant's defenses in connection therewith.”   The parties further stipulated, and the court ordered, that “[i]f the Court finds that an enforceable settlement agreement exists, the parties shall meet and confer regarding any purported set-offs and any interest claimed by Plaintiff.   If the parties agree as to an appropriate set-off amount and interest, if any, then the Court shall enter a judgment in favor of Plaintiff against Defendant in the agreed amount.   If the parties disagree as to an appropriate set-off amount and interest to be awarded to Plaintiff, if any, the parties shall seek judicial determination of the issue by trial before the Court and judgment shall be entered in favor of Plaintiff against Defendant in the amount determined by the Court.”

Following a bench trial on the issue whether Hills' claims had been resolved through a settlement agreement, the trial court entered a “Statement of Decision” in favor of Bergeron and against Hills, finding that the parties entered into a binding and enforceable settlement agreement and that none of the defenses advanced by Hills excused her from her obligations pursuant to that agreement.   On July 12, 2007, the court issued its judgment:  “1. Having found in favor of Defendant on his affirmative defense to enforce the settlement, the Court deems Plaintiff's complaint and all claims within it to be moot;  [¶] 2. Pursuant to the Joint Stipulation re Severance and Trial of Defendant's Claim Re Settlement;  Order Thereon, ․ the Court enters a money judgment for Plaintiff in the amount of $468,000.”

In ruling on the parties' subsequent motions to tax costs, the court determined that Bergeron was the prevailing party who had recovered “other than monetary relief” and thus could properly be awarded his costs under Civil Code section 1032.   The court reasoned as follows:  “In the instant matter, the defendants [Bergeron] alleged as one of their affirmative defenses that there was an enforceable settlement agreement.   The parties stipulated to sever the issue, and the issue was tried to the court, and defendant prevailed on his position.   No matter how the words of the judgment are characterized, the matter tried before the court was a contract claim determined in favor of the defendant, and under CCP 1032, the defendant, having established the right claimed, is entitled to costs.”   The court also denied Hills' request for prejudgment interest under Civil Code section 3287 because Hills “has not incurred damages.”   Finally, the court noted that the parties had “agreed that defendants are not entitled to pursue breach of contract claims regarding the settlement agreement comprising the current litigation” and thus there were no set-offs to be applied to the money judgment.

Bergeron's Malicious Prosecution Suit and PDK Defendants' Anti-SLAPP Motion

Bergeron subsequently filed a complaint for malicious prosecution against Hills 3 and the PDK defendants based on Hills' palimony suit against Bergeron.   The PDK defendants filed an anti-SLAPP motion pursuant to section 425.16 seeking to strike the complaint and requesting attorneys fees.   The trial court granted the PDK defendants' motion and dismissed the malicious prosecution suit on the ground that Bergeron had not met his burden of demonstrating that the underlying palimony dispute had been terminated in Bergeron's favor on the merits, given that it had been resolved pursuant to a settlement.   The trial court did not issue a ruling on the PDK defendants' request for attorneys fees.

Bergeron timely appealed the decision striking the malicious prosecution suit, and the PDK defendants timely filed a notice of cross-appeal arguing that the trial court should have granted their request for attorneys fees.

bergeron's appeal of order striking malicious prosecution complaint

discussion

Section 425.16 establishes a procedure for striking a pleading primarily brought to “chill” the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances.  (Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 197.)   Resolution of such an anti-SLAPP motion “ ‘requires the court to engage in a two-step process.   First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.   The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. (§ 425.16, subd. (b)(1).)   If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.'  [Citations].”  (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735 (Jarrow Formulas ).)

Bergeron effectively concedes that the PDK defendants have sufficiently shown that Bergeron's malicious prosecution action is one arising out of acts done in furtherance of the PDK defendants' exercise of their right to petition in connection with a public issue.   Indeed, it is well-established that “malicious prosecution causes of action fall within the purview of the anti-SLAPP statute,” because “every such action arises from an underlying lawsuit, or petition to the judicial branch.”  (Jarrow Formulas, supra, 31 Cal.4th at pp. 734-735;  see HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 213 (HMS Capital ).)

Because the PDK defendants met their initial burden, Bergeron is required to establish a probability of prevailing on the merits of his malicious prosecution claim.   We agree with the trial court that Bergeron cannot do so.

Probability of Prevailing on the Malicious Prosecution Claim

To satisfy his burden to establish a probability of prevailing on the merits of his malicious prosecution claim, “the plaintiff must ‘state[ ] and substantiate[ ] a legally sufficient claim.’  [Citation.]”  (Jarrow Formulas, supra, 31 Cal.4th at p. 741.)  “[T]he plaintiff cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial.”  (HMS Capital, supra, 118 Cal.App.4th at p. 212.)   The court does not weigh such evidence, but rather accepts it as true, and evaluates the defendant's evidence only to determine if, as a matter of law, it has defeated the plaintiff's evidence.  (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) “The plaintiff need only establish that his or her claim has ‘minimal merit’ [citation] to avoid being stricken as a SLAPP.”  (Id. at p. 291.)

“To establish a cause of action for malicious prosecution, a plaintiff must demonstrate that the prior action (1) was initiated by or at the direction of the defendant and legally terminated in the plaintiff's favor, (2) was brought without probable cause, and (3) was initiated with malice.”  (Siebel v. Mittlesteadt (2007) 41 Cal.4th 735, 740.)   To withstand the PDK defendants' anti-SLAPP motion, Bergeron therefore must establish a prima facie showing with respect to each of these three prongs.   Because we affirm the trial court's determination that Bergeron failed to establish the first element of his malicious prosecution claim - that the prior action was terminated in his favor - we need not consider whether he made a prima facie showing as to the “probable cause” and “malice” elements.

Favorable Termination of Prior Palimony Proceeding

Bergeron bases his malicious prosecution suit on the fact that the PDK defendants continued to prosecute Hills' claims after the parties entered a binding settlement agreement.   Bergeron posits that “[b]y virtue of the settlement and the decision enforcing it, the palimony action essentially became a breach of contract of [sic ] action” concerning the settlement agreement.   He thus contends that the trial court should have analyzed not whether the underlying palimony dispute terminated in his favor, but rather whether Bergeron's bid to enforce the settlement terminated favorably to him.   He further emphasizes that the court ruled that the settlement agreement was enforceable and that he was the “prevailing party” entitled to costs.   Bergeron's arguments do not persuade us that there was a favorable termination for purposes of a subsequent malicious prosecution suit.

First, we disagree that we can or should dissect the prior palimony proceeding in the manner suggested by Bergeron in determining whether there was a termination in his favor.  “To determine ‘whether there was a favorable termination,’ we ‘look at the judgment as a whole in the prior action․’  [Citation.]”  (Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 341, italics added (Casa Herrera );  see also Freidberg v. Cox (1987) 197 Cal.App.3d 381, 385 [“ ‘[T]he criterion by which to determine which party was successful in the former action is the decree itself in that action.   The court in the action for malicious prosecution will not make a separate investigation and retry each separate allegation without reference to the result of the previous suit as a whole․’  [Citation.]”)   We thus are not permitted to judge whether there was a “favorable termination” by reference solely to Bergeron's successful efforts to enforce the settlement agreement.

Bergeron does not acknowledge the requirement set forth in Casa Herrera that we look to the judgment as a whole in order to determine if there was a favorable termination.   Instead, he relies on Zamos v. Stroud (2004) 32 Cal.4th 958 to argue that he need not show that there was a judgment in his favor in the palimony suit, and instead need only demonstrate that the suit was wrongly continued despite the existence of a settlement.  Zamos, however, did not even address the issue whether the underlying action had terminated in favor of the malicious prosecution plaintiff (Zamos).   The action plainly had been resolved in Zamos' favor;  the trial court had granted his motion for a non-suit on all the fraud claims brought against him and specifically found that no reasonable jury would ever return a judgment against Zamos.  (Id. at p. 963.)   The sole issue addressed by the Supreme Court was whether Zamos's malicious prosecution suit met the second element of a malicious prosecution suit - whether there was probable cause for the underlying suit.   The court ruled that the tort of malicious prosecution covers not only actions initially brought without probable cause, but also those which, though initiated with probable cause, are continued even after the attorneys have learned that they are baseless.  (Id. at p. 973.)   While this ruling may be relevant to determining whether the PDK defendants had probable cause to continue the palimony lawsuit, it has no bearing on the initial requirement for malicious prosecution claims that the underlying action have been terminated favorably to the malicious prosecution plaintiff.

Examining the judgment entered in the underlying palimony action as a whole, as we must, it is apparent that the action did not result in a termination favorable to Bergeron.   The court entered a judgment in that action after conducting a bench trial on Bergeron's affirmative defense seeking enforcement of the settlement agreement.   The parties had stipulated to severing and conducting a bench trial on this affirmative defense because they recognized that a ruling that the settlement agreement was enforceable would obviate the need to litigate the merits of the palimony suit.   The court ruled that the settlement agreement indeed was enforceable and that it mooted all of the claims raised in Hills' complaint.   However, the court entered a judgment in favor of Plaintiff Hills and against Bergeron in the amount of $468,000, the amount determined to have been agreed upon to settle the matter.   A significant money judgment having been entered for Hills and against Bergeron, on its face the palimony proceeding as a whole did not terminate in Bergeron's favor.

Moreover, Bergeron's arguments ignore that “[t]he basis of the favorable termination element is that the resolution of the underlying case must have tended to indicate the malicious prosecution plaintiff's innocence.”  (HMS Capital, supra, 118 Cal.App.4th at p. 214.)  “ ‘If the resolution of the underlying litigation “leaves some doubt as to the defendant's innocence or liability[, it] is not a favorable termination, and bars that party from bringing a malicious prosecution against the underlying plaintiff.”   ( [Citation], italics in original.)’ ”  (Robbins v. Blecher (1997) 52 Cal.App.4th 886, 893 (Robbins ).)   For this reason, a “ ‘favorable’ termination does not occur merely because a party complained against has prevailed in an underlying action.   While the fact he has prevailed is an ingredient of a favorable termination, such termination must further reflect on his innocence of the alleged wrongful conduct.   If the termination does not relate to the merits - reflecting on neither innocence of nor responsibility for the alleged misconduct - the termination is not favorable in the sense it would support a subsequent action for malicious prosecution.”  (Lackner v. LaCroix (1979) 25 Cal.3d 747, 751.)   The fact that Bergeron successfully enforced the settlement agreement and thus was awarded his costs under Civil Code section 1032 as the “prevailing party” does not demonstrate Bergeron's innocence in the underlying palimony dispute and is insufficient to support a finding that the action terminated in his favor.

The judgment in the underlying palimony action brought by Hills did not touch in any way on the merits of her claims, much less suggest that Bergeron was innocent of the wrongdoing alleged therein.   Instead, the court ordered that a settlement agreement entered into by the parties - pursuant to which Bergeron had agreed to pay Hill $468,000 to settle Hills' claims against him - was to be enforced.   It is well-established that where “termination is by way of an agreement by the parties, there is ambiguity with respect to the merits of the proceeding and in general no favorable termination for purposes of pursuing a malicious prosecution action occurs.”  (Dalany v. American Pacific Holding Corp. (1996) 42 Cal.App.4th 822, 828;  see Ferreira v. Gray, Cary, Ware & Freidenrich (2001) 87 Cal.App.4th 409, 413-414 (Ferreira ) [“where both sides give up anything of value in order to end the litigation, a party cannot later claim he received a favorable termination.  [Citations.]”].) “After all, ‘[t]he purpose of a settlement is to avoid a determination of the merits.’   [Citation.]”  (Pender v. Radin (1994) 23 Cal.App.4th 1807, 1814.)   Accordingly, “a negotiated settlement not only creates an ambiguity as to the merits of the underlying action, it is entirely inconsistent with bringing a further lawsuit for malicious prosecution.”  (Ferreira, supra, 87 Cal.App.4th at p. 414.)   In ruling on the PDK defendants' anti-SLAPP motion, the trial court relied on Dalany to find that the palimony suit had not terminated favorably to Bergeron because it had been resolved pursuant to a settlement.

Bergeron argues that the trial court erred in relying on Dalany because “the palimony claim was ultimately terminated not by a settlement, but rather, by a court decision in Mr. Bergeron's favor finding that the continued prosecution of that claim was barred by the settlement.”   This is a distinction without a difference, because the touchstone remains whether the resolution reflected on the merits of the underlying claims.   The underlying ruling that the settlement agreement was enforceable and thus mooted Hills' claim did not reflect on Bergeron's innocence any more than a simple negotiated settlement would have.

Robbins, supra, 52 Cal.App.4th 886, is instructive.   In that case, the appellate court considered whether the voluntary dismissal of an alter ego action against the malicious prosecution plaintiff (Robbins) constituted a favorable termination on the merits for purposes of Robbins' subsequent malicious prosecution suit.   The alter ego action was dismissed following the reversal of the underlying judgment against the judgment debtor as to which Robbins was alleged to be the alter ego.   The appellate court determined that the voluntary dismissal for this reason did not reflect on Robbins' “innocence,” i.e., whether he was in fact an alter ego of the judgment debtor.   The dismissal reflected only that because the alter ego plaintiff no longer possessed the underlying judgment, it “was no longer in a position to complain of [Robbins'] wrongdoing.   This concession does not reflect on the merits of the alter ego action, but only on its mootness.”  (Id. at p. 894, italics added.)   The court concluded that the alter ego action had not terminated favorably to Robbins, and thus he was barred from bringing a malicious prosecution suit.  (Ibid.) Similarly, the underlying ruling that Hills' claims were rendered moot by the settlement agreement did not reflect on the merits of Hills' claims, and thus cannot support a malicious prosecution suit.

Siebel v. Mittlesteadt, supra, 41 Cal.4th 735, does not mandate a contrary result.   Bergeron contends that in that case the Supreme Court rejected what he terms the “blanket settlement rule,” under which the mere existence of a settlement agreement in the underlying action forecloses a later malicious prosecution suit.   While the Supreme Court held that the existence of a settlement agreement did not bar Siebel's malicious prosecution suit, the court was careful to limit its holding to the particular circumstance before it - one that is markedly different from that here.  (Id. at p. 744.)   In Siebel, a jury had returned a favorable judgment on the merits of the claims brought against Siebel, the future malicious prosecution plaintiff.   While the parties' appeals were pending, they reached a settlement that did not alter in any respect the judgment on the merits for Siebel, instead affecting only other parties to the suit.   The court concluded:  “Because Siebel received a favorable judgment in the underlying proceeding and settled without giving up any portion of the judgment in his favor, we hold that the parties' settlement constitutes a favorable termination.”  (Id. at p. 743.)   The court further clarified:  “Our case is limited to a postjudgment settlement by the parties that does not fundamentally change the parties' relationship established by the underlying judgment on the merits.”  (Id. at p. 744.)   The court explicitly left untouched the principle set forth in Dalany and Ferreira that a prejudgment settlement generally will not be considered a favorable termination, because there was nothing that established the innocence of the malicious prosecution plaintiff.  (Id. at pp. 742-744.)   As in Dalany and Ferreira, the settlement reached between Hills and Bergeron predated any judgment, and there was never a judgment on the merits in favor of Bergeron.   Thus, Bergeron does not benefit from Siebel 's narrow holding.

Nor did the trial court err in characterizing the dismissal of Hills' claims based on the settlement agreement as a dismissal on “procedural” grounds.   In this context, a dismissal on “procedural” grounds is simply short-hand for a dismissal that does not reflect on the innocence of the defendant and therefore does not constitute a favorable termination.  (See Robbins, supra, 52 Cal.App.4th at p. 893 [“ ‘ “The test is whether or not the termination tends to indicate the innocence of the defendant or simply involves technical, procedural or other reasons that are not inconsistent with the defendant's guilt.” ’  [Citations.]”)  For instance, a dismissal based on a settlement agreement is routinely considered a dismissal on “procedural” grounds.   (Casa Herrera, supra, 32 Cal.4th at p. 342.)

Bergeron cites Casa Herrera, however, to support his argument that “[t]he determination of whether the settlement barred the prosecution of the palimony claim was a substantive determination for purposes of Mr. Bergeron's malicious prosecution claim.”  Casa Herrera does not aid Bergeron.   There, the court in the underlying case ruled in favor of the defendant on claims of fraud and breach of contract by applying the parol evidence rule to exclude evidence of prior inconsistent oral promises and by determining that the terms of the written contract mandated dismissal of the claims.   The issue on appeal was whether, in doing so, the court in the underlying action had ruled “on the merits.”   The appellate court found that the prior court's judgment did bear on the merits of the contract and fraud claims:  “After defining the terms of the parties' agreement by applying the parol evidence rule, the court then found that appellant did not breach the contract or commit fraud․  [The court] necessarily resolved the underlying action on the merits, and its decision reflects on appellant's innocence of the alleged misconduct.   The decision therefore constitutes a favorable termination for malicious prosecution purposes.”  (Casa Herrera, supra, 32 Cal.4th at pp. 344-345.)   Once again, the key distinction is that in Casa Herrera the underlying fraud and breach of contract claims were resolved on their merits, while in the instant case the court never touched upon the merits of Hills' palimony claims, instead finding that the claims had been mooted by the settlement agreement.   The dismissal of Hills' claims as moot falls squarely into the category of a “procedural” dismissal rather than a substantive determination of the merits of the claims.  (See Robbins, supra, 52 Cal.App.4th at pp. 894-895.)

Because Bergeron cannot demonstrate that the palimony suit was resolved in his favor, his malicious prosecution suit is barred, and we need not address his arguments that the PDK defendants lacked probable cause to continue the malicious prosecution suit after Hills entered into the settlement agreement, or that the PDK defendants continued the action maliciously.

pdk defendants' cross-appeal for attorneys fees

discussion

Section 425.16, subdivision (c), provides for an award of attorneys fees to a prevailing defendant on an anti-SLAPP motion to strike.  (Witte v. Kaufman (2006) 141 Cal.App.4th 1201, 1207 (Witte ).)   The PDK defendants contend that they are entitled to recover attorneys fees for their successful motion to strike Bergeron's malicious prosecution claim.

An attorney who represents himself in bringing a successful anti-SLAPP motion is not entitled to recover attorneys fees.  (Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 495;  Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 524;  cf.  Trope v. Katz (1995) 11 Cal.4th 274, 280.)   The rationale is that when an attorney represents himself, there is no attorney-client relationship that leads to the attorney paying or becoming liable to pay consideration in exchange for legal representation.  (Trope, supra, at p. 280;  Witte, supra, 141 Cal.App.4th at pp. 1207-1208.)   The PDK defendants acknowledge on appeal that Dion-Kindem is not personally entitled to recover attorneys fees for work representing himself.   However, they contend that defendants Peter R. Dion-Kindem, P.C. and the law firm Dion-Kindem & Crockett are entitled to recover such fees.

The PDK defendants contend that in working on the anti-SLAPP motion, Dion-Kindem was acting in his capacity as in-house counsel for the legal corporation Peter R. Dion-Kindem, P.C., and in that same capacity also represented the law firm Dion-Kindem & Crockett.   Dion-Kindem's declaration states, “I am in-house counsel for Peter R. Dion-Kindem, P.C., and am also counsel for Dion-Kindem & Crockett, an association of professional corporations of which Peter R. Dion-Kindem, P.C. is a member.”   His declaration states that he is seeking $33,647.50 from Bergeron for “fees and costs incurred” in connection with the anti-SLAPP motion;  however, he does not state that either entity paid or was liable to pay him for his services.   Nor does he state that he performed any work on behalf of Peter R. Dion-Kindem, P.C. or for Dion-Kindem & Crockett that he did not perform on his own behalf.

The PDK defendants correctly note that a corporation may be awarded attorneys fees where it appeared in an action through its in-house counsel.   But the case that established this principle, PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, does not require an award of attorneys fees to Peter R. Dion-Kindem, P.C. PLCM Group concerned in-house attorneys who “do not represent their own personal interests” and instead are paid by the corporation to provide professional legal services on the corporation's behalf.  (Id. at p. 1093.)   By contrast, Dion-Kim plainly is representing his own interests in this matter, and it is not at all apparent that Peter R. Dion-Kindem, P.C. is liable to Dion-Kim for his legal services in bringing the anti-SLAPP motion.   As such, Peter R. Dion-Kindem, P.C. is no more entitled to recover attorneys fees than Dion-Kindem is in his individual capacity.

The same rationale holds true for the attorneys fee request by Dion-Kindem & Crockett.   While in some instances a law firm may recover for work performed by one of its members on behalf of another member who has been sued (see Gilbert v. Master Washer & Stamping Co. (2001) 87 Cal.App.4th 212), that is not the situation here.   Here, the firm Dion-Kindem & Crockett itself has been sued.  “Where, as in Gilbert, an attorney is sued in his or her individual capacity and he obtains representation from other members of his or her law firm, those other members have no personal stake in the matter and may, in fact, charge for their work.   Not so with a law firm that is sued in its own right and appears through various members.”  (Witte, supra, 141 Cal.App.4th at p. 1211.)   When Dion-Kim represents his own law firm that has been sued, he is representing his own interests, and thus Dion-Kindem & Crockett cannot recover attorneys fees.  (Id. at p. 1211 [“When [attorneys] represent the law firm, they are representing their own interests.   As such, they are comparable to a sole practitioner representing himself or herself.”].)

We hold that none of the PDK defendants are entitled to recover attorneys fees for their successful motion to strike.

disposition

The order dismissing Bergeron's complaint pursuant to a special motion to strike under section 425.16 is affirmed.   The denial of the PDK defendants' request for attorneys fees is likewise affirmed.   Each side shall bear its own costs on their respective appeals.

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

We concur:

FOOTNOTES

FN1. All undesignated section references are to the Code of Civil Procedure..  FN1. All undesignated section references are to the Code of Civil Procedure.

FN2. The details with respect to Hills' claims, and Bergeron's defenses thereto, are set forth in Hills v. Superior Court (July 26, 2004, B174068) (nonpub.opn.)..  FN2. The details with respect to Hills' claims, and Bergeron's defenses thereto, are set forth in Hills v. Superior Court (July 26, 2004, B174068) (nonpub.opn.).

FN3. Bergeron represents that Hills, who apparently resides out of the country, has never been served with the complaint and has not appeared in this action..  FN3. Bergeron represents that Hills, who apparently resides out of the country, has never been served with the complaint and has not appeared in this action.

EPSTEIN, P. J. MANELLA, J.

Copied to clipboard