One Winning Plaintiff Not Entitled To Fees When Defense SLAPP Motion Found to Have Partial Merit.
The SLAPP statute does allow a plaintiff successfully resisting a SLAPP to recover fees if plaintiff can meet the CCP § 128.5 standards for sanctions–the motion was “totally and completely” without merit. Big fees were awarded to plaintiffs for successfully opposing SLAPP motions brought by the Gaims law firm. On appeal, one plaintiff got fees sustained (although they had to be recalculated) and the other plaintiff lost a fee recovery. Here is what happened.
Gerbosi v. Gaims, Weil, West & Epstein, LLP, Case No. B219587 (2d Dist., Div. 8 Mar. 9, 2011) (certified for publication) involved two plaintiff lawsuits against the Gaims law firm arising from the activities of private investigator Anthony Pellicano and others.
The law firm filed SLAPP motions against both plaintiffs, but the trial court denied both. Afterwards, he jointly awarded plaintiffs fees of roughly $220,000, finding that the law firm’s SLAPP motions were sanctionable under CCP § 128.5, which is incorporated into the SLAPP fee-shifting provision. Law firm appealed the joint fee award.
Upon review, the appellate court decided that fees were properly awardable to plaintiff #1 but that fees should have been denied to plaintiff #2. Plaintiff #2 lost fees because the reviewing court decided that the law firm’s motion against #2 had partial merit, not meeting the “totally and completely” without merit language of the fee shifting statute. However, because the fee award was joint in nature, the fee award in favor of plaintiff #1 had to remanded for recalculation, with opposition work spent on behalf of #2 being excluded from the fee calculus.
Law firm also argued that it had no due process notice that sanctions might be imposed. Wrong, said the appellate court. The lower court issued an order indicating that it intended to impose sanctions, with the law firm having 3 months to submit opposition paperwork if it had wanted to before the hearing. More than enough opportunity to oppose.