Fee Order Reversed By Lower Court When Separate Fee Motion Procedure Used.
Although the appellate court aptly described the overall cause as a “trial court’s resolution of a procedural morass” under the anti-SLAPP statute, JP Builders, Inc. v. Leebove, Case No. A130270 (1st Dist., Div. 1 Oct. 7, 2011) (unpublished) does confirm the flexibility accorded to lower courts when adjudging fee requests under the anti-SLAPP mandatory fee shifting statute after plaintiffs dismiss complaints.
Flexibility
Boiling the facts down somewhat, plaintiffs dismissed a cross-complaint in a homeowner-contractor construction defect/payment dispute after an anti-SLAPP motion was filed, which prompted the court to still rule on the motion and issue a tentative granting fees of $7,429 to the successful cross-defendant contractor. However, the lower court concluded that the contractor should file a separate attorney’s fees motion which ultimately was denied when the court determined that homeowners demonstrated a probability of prevailing on their claims after opposition papers were submitted. Contractor sought appellate relief.
Contractor did not get it.
Using a separate motion to adjudge anti-SLAPP fees is a very acceptable alternative, with the appellate court observing “we see no reason why a trial court would lack the power to proceed in that fashion.” (Slip Opn., p. 9.) Then, on the merits, the appellate court saw no error in the trial court’s shift in opinion on the fees issue since the contractor’s alleged conduct was just that–tied to conduct (shoddy workmanship and overbilling), not protected activities.
