SLAPPED Around

Most cases, if they have any interest to us at all, are interesting because of what they say. After all, the holding gives us insights into how a particular statute or rule applies to a given set of facts. Sometimes, it's the facts that draw our interest, simply because the facts are so out of the ordinary. And then there are those cases that are interesting by what they don't say. It's the unanswered questions they raise – questions that are more entertaining and curious than a hundred ground-breaking decisions. A recent decision by the Fourth District is one of the latter. Baharian-Mehr v. Smith 2010 Cal.App. LEXIS 1779. There, the appellate court affirms the dismissal of an anti-SLAPP motion and an award of $1,500 in attorney fees, describing it as "one of the weakest anti-SLAPP motions this court has reviewed in some time, which is not an inconsiderable achievement." It doesn't exactly give counsel a gold star when it later adds, "Although Smith's [appellate] briefing is an improvement over his original motion in the trial court, his legal arguments are equally devoid of merit, and therefore, attorney fees [on the appeal] are appropriate." But more intriguing are the unspoken premises and unanswered questions. Who appeals an award of attorney fees when the award is only $1,500? Did counsel tell the client that losing the appeal would mean, um, more attorney fees? That opposing counsel's fees on the appeal would far outpace the $1,500 at issue? And who takes on the appeal knowing the award is so small? What is counsel's hourly rate? I mean, creating the shell document for the appeal will pretty much burn through the $1,500 right? Okay, add the notice of appeal, the case information statement, designate the record. Are we there yet? But here's the clincher; maybe it was barter. Smith was in the adult entertainment business. And I'm pretty sure that doesn't mean baseball. See? In this one, it's the unspoken premises and the unanswered questions that make it memorable!

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