SLAPP Motion Was Not Frivolous, And Appeal Court Did Not Find Prior Appeal Frivolous In Nature.
Defendant filed a SLAPP motion which was denied, appealing without success. Then, upon remand, the lower court awarded attorney’s fees on appeal in favor of plaintiff and against defendant (and possibly its attorneys) to the tune of $26,320 out of a requested $36,155. (This was grounded on the SLAPP fee-shifting statute, CCP § 425.16(c), allowing fees against an unsuccessful moving defendant if the motion was sanctionable under CCP § 128.5.)
The defense did well to appeal in Tamman v. Nixon Peabody LLP, Case No. B267439 (2d Dist., Div. 2 Nov. 8, 2016) (unpublished).
Reversal of the SLAPP fee order was required because the defense motion was neither frivolous nor completely devoid of merit. Also, the lower court failed to issue a written factual recital of the sanctionable conduct, with the reference to the prior appellate decision not having any value given that the reviewing panel did not find the prior motion or appeal frivolous. Fee award reversed as a matter of law.