The SLAPP fee award in Berry, v. Pope Valley Union Elementary School District et al. (Jun. 2, 2025, No. A171352) (non-pub. opn.) was based on hearsay. The the Court of Appeal still affirmed because hearsay is a rule of “evidence,” and a fee order need only be based on “information.”
This is surprising because the law does not really recognize a difference between “evidence” and “information.” But this case cites a 19th century Supreme Court case that might be useful if you’re looking to draw this distinction.
What happened in this employment dispute is Berry sued after being fired as a substitute teacher. At first, the trial court granted the district’s anti-SLAPP motion in full, but in an earlier appeal that order was partially reversed. The case was remanded to reconsider the appropriate amount of defendants’ fees in light of the partial SLAPP grant. The plaintiff was unhappy that the trial court credited defendants’ attorney declaration in lieu of actual billing statements. But the court correctly concluded that billing statements are not required.
But the attorney declaration also talked about work done by other attorneys no longer at the firm, and other matters “on information and belief.” That, plaintiff said, was hearsay.
No matter, the court held. Hearsay is immaterial here “because, ‘for the purpose of fixing attorney's fees,’ the trial court ‘is not bound by technical rules of evidence, since it is not trying an issue in the case and is merely seeking information upon which to base its order.’”
Is there really a difference in law between “evidence” and “information”? The court cites a divorce fee-splitting case in Frank v. Frank (1963) 213 Cal.App.2d 135, 138, a two-and-a-half-page opinion, which concluded that the trial judge’s intimate familiarity with the case meant there was no error in denying cross-examination. That court cited the Supreme Court case of Rose v. Rose (1895) 109 Cal. 544, 546, another divorce case, not two pages long, where the appellant likewise claimed he had had no opportunity to dispute the fee split. But the Court rejected that argument, noting that there had been a trial on alimony, and a separate request for fees, supported by a stipulation that the former spouse had no means of her own to pay.
The Rose Court concluded: “In taking the evidence for the purpose of fixing the amount of the allowance, the court is not trying an issue in the case, but is seeking for information as the basis of its order, and is not bound by the technical rules of evidence applicable to controversies between contesting litigants.”
Still, this is surprising: many motions deal with collateral issues—one that are not an “issue in the case”—but that doesn’t mean they require evidence. But if you are dealing with a collateral issue with which the judge is otherwise already familiar, and you’re unable to come up with bona fide evidence, try arguing that mere “information” is enough, citing Rose.
