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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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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,

v.

CITY OF EUREKA et al.,

Defendants and Respondents.

 A139849

 (Humboldt County

 Super. Ct. No. DR100894)

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:

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Kline, P.J.

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Brick, J.*

 

*

Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to 

article VI, section 6 of the California Constitution.