Squires v. City of Eureka CA1/2 ( 2014 )

Filed 5/2/14 Squires v. City of Eureka CA1/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
FLOYD SQUIRES et al.,
Plaintiffs and Appellants,
A139849
v.
CITY OF EUREKA et al., (Humboldt County
Super. Ct. No. DR100894)
Defendants and Respondents.
Respondent City of Eureka moves to dismiss the appeal of appellants Floyd and
Betty Squires. For the reasons set forth below, we deny the City’s motion. On our own
motion, we order: (1) appeal nos. A138768 and A139849 consolidated for purposes of
argument and decision; and (2) respondents’ brief and appellants’ reply brief filed in
A138768 applicable to A139849. Thus, no further briefing in either appeal is required.
BACKGROUND
On October 14, 2010, the Squires filed a complaint against the City of Eureka and
certain individual city employees (collectively, the City).
On November 17, 2010, the City filed a special motion to strike the Squires’s
complaint pursuant to Code of Civil Procedure section 425.16.
On April 2, 2013, the trial court granted the City’s motion.
On May 23, 2013, the Squires appealed from the ruling granting the City’s SLAPP
motion. (Squires v. City of Eureka, A138768 (first appeal).)
On July 29, 2013, the trial court granted the City’s motion for attorney’s fees.
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On August 29, 2013, the trial court entered judgment dismissing the underlying
lawsuit and awarding attorney’s fees.
On September 24, 2013, the Squires appealed from the fee order and judgment.
(A139849 (second appeal).)
The first appeal was fully briefed as of March 12, 2014. On February 26, 2014,
the Squires filed their opening brief in the second appeal. The City’s respondent’s brief
has not yet been filed.
DISCUSSION
The City moves to dismiss the second appeal on the following two grounds:
(1) the Squires’s opening brief “fails entirely to brief their appeal from the July 29, 2013
trial court order awarding [the City] attorney’s fees,” and the appeal has thus been
abandoned; and (2) the Squires’s opening brief in the second appeal is virtually identical
to their opening brief in the first appeal, suggesting that the second appeal challenges no
new issues and serves only to delay resolution of the first appeal.
In opposition, the Squires argue that they filed the second appeal in an abundance
of caution and out of fear that the April 2 order would be deemed nonappealable and their
first appeal dismissed.
The Squires also dispute that they abandoned their appeal from the order granting
attorney’s fees or that they filed the second appeal for purposes of delay. As they explain
it, “[Appellants] chose not to argue the merits as to the amount of attorney’s fees because
their appeal does not concern the amount of attorney’s fees granted. Instead, [appellants]
are attacking the attorney’s fee award by attacking the trial court’s decision to strike the
remaining causes of action and enter final judgment on the underlying case. If
[appellants] prevail on their two appeals, then the remaining causes of action will remain
and the lawsuit will continue on. The trial court’s award of attorney’s fees is wholly
contingent on respondents prevailing on the merits of the two appeals (Code Civ. Proc.,
§ 425.16(c).) Therefore, if respondents lose the appeal, they will not have prevailed on
their special motion to strike and would not be entitled to their mandatory attorney’s
fees.”
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The City concedes that the Squires’s appeal from the April 2, 2013 order granting
the City’s SLAPP motion was timely. The Squires admit that the second appeal
challenges only the City’s entitlement to attorney’s fees (not the amount of fees), which
in turn hinges on the issues raised in the first appeal. In other words, disposition of the
first appeal will also dispose of the second appeal.
In light of the foregoing, we deny the City’s motion to dismiss the second appeal.
The City’s request for judicial notice is granted. We order the two appeals consolidated
for purposes of argument and decision. No further briefing is required.
_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Brick, J.*
*
Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
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