We know by now that winning defendants get mandatory, reasonable fee recovery after winning a SLAPP motion. (Code Civ. Proc., § 425.16(c)(1).) However, a reversal of a SLAPP grant invokes our “POOF!” principle on the fee award.
Defendants in People ex rel. Strathmann v. Acacia Research Corp., Case Nos. G045390 et al. (4th Dist., Div. 3 Oct. 24, 2012) (published) learned that lesson all too well. At the trial court level, they won a SLAPP grant in a tam qui action and then obtained a fee award against plaintiff in the sum of $100,660.50 (out of a requested little over $101,000).
That all went POOF! when the SLAPP grant was reversed on appeal. The appellate court decided that the qui tam action fell within an express exception to SLAPPable suits, which meant the fee award tumbled and costs on appeal were awarded to plaintiff. The interesting issue on remand is whether plaintiff can gain appellate fees for winning if they convince the lower court that the SLAPP motion was made frivolously (given the appellate court opinion noting indicia of fraud in former germane litigation).
The opinion was authored by Justice Fybel on behalf of a 3-0 panel of our local Santa Ana appellate court.