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Filed 5/ 2 /14 Squires v. City of E ureka 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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 or dered 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) r espondents’ brief and appellants’ reply brief filed in

A138768 applicable to A139849. Thus, n o further briefing in either appeal is required.

BACKGROUND

On O ctober 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 file d 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.2

On August 2 9 , 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 orde r 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 appea l 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 se cond 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 at torney’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 laws uit 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

th eir special motion to strike and would not be entitled to their mandatory attorney’s

fees.”3

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

cha llenges 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 foregoi ng , we deny the City’s motion to dismiss the second appeal.
The City’s request for judicial notice is granted. W e 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.