We Believe That the Second District Has Blazed the Trail—The Trial
Court Must Decide the Merits of the Motion and then Determine if There Is Fee
Entitlement.
In our category “SLAPP,” we have discussed numerous
decisions which have confronted making a mandatory award of attorney’s fees to a
defendant prevailing on an anti-SLAPP motion. (See Code Civ. Proc., §
425.16(c).) However, what happens if a plaintiff voluntarily dismisses or a
trial court sua sponte dismisses an action before an anti-SLAPP motion is
heard? Does this moot or deprive the court of having jurisdiction to decide the
motion and award fees if the defendant is successful? Our answers
follow.
First, we answer the easy one. If the plaintiff voluntarily dismisses
before the motion is filed, the plantiff heard the hooves and mooted the hearing
of the subsequently-filed motion. See S.B. Beach Properties v. Berti, 39
Cal.4th 374, 377 (2006). Now, we come to the situation that usually comes
up in practice. Plaintiff files suit, an anti-SLAPP motion is filed, and
plaintiff voluntarily dismisses in an effort to moot the motion or the trial
court sua sponte dismisses the action before the anti-SLAPP hearing.
The Second District has ruled that this does not moot the hearing on
the anti-SLAPP motion. Rather, the trial court must determine if the motion is
meritorious and, if so, proceed to determine the amount of the fee entitlement
to the winning defendant. This is the result because the purpose of the
anti-SLAPP statute is to give relief, in the form of attorney’s fees, to persons
victimized by SLAPP suits. (See, e.g., Sylmar Air Conditioning v. Pueblo
Contracting Services, Inc., 122 Cal.App.4th 1049, 1054-1055 (2004); Pfeiffer
Venice Properties v. Bernard, 101 Cal.App.4th 211, 218-219 (2002); Liu v. Moore,
69 Cal.App.4th 745, 752-753 (1999); see also Estrada v. Milne, 2007 WL 4165739
at *1-*2 (2d Dist., Div. 8 Nov. 26, 2007) (unpublished); Cho v. Chung, 2005 WL
2789316 at *3 (2d Dist., Div. 2 Oct. 27, 2005) (unpublished).)
If any readers are aware of whether other appellate districts follow a
different practice, please feel free to share your experiences with us on this
issue.
BLOG BONUS COVERAGE—One of the cases that we cited in our
discussion was Pfeiffer. Because the litigation was quite contentious,
here is a brief summary of how it went:
Pfeiffer Venice Properties v. Bernard, 101
Cal.App.4th 211 (2002)—Second District finds that the trial court had
jurisdiction and, on remand, must consider the anti-SLAPP motion that was on
file before the trial court’s sua sponte dismissal based on the
doctrine of de minimis non curat lex (who says Latin is dead? The
phrase means “the law does not concern itself about trifles.” Alive and well?
You bet—see Civ. Code, § 3533 [“The law disregards trifles.”]).
· Pfeiffer Venice Properties v. Bernard, 107 Cal.App.4th
761 (2003)—Plaintiff needing to now face the anti-SLAPP motion moves to strike
the trial judge under Code of Civil Procedure section 170.6(2). The trial judge
struck the challenge, and plaintiff brought a writ petition. The Second District
granted it, finding plaintiff was entitled to challenge the trial judge. Because
“the trial court must make factual findings regarding the merits of real
parties’ in interest’s SLAPP motion in order to determine the propriety of a fee
award, id. at 768, the post-judgment proceeding was one in which
reassignment was appropriate.
· Pfeiffer Venice Properties v. Bernard, 2005 WL 2764336 (2d Dist.,
Div. 5 Oct. 26, 2005) (unpublished)—The newly assigned trial judge decided that
defendants’ SLAPP motion had merit, a determination sustained by the Second
District in an unpublished decision. The appellate court remanded to the trial
court to determine the amount of attorneys’ fees to be awarded to defendant both
for trial and appellate work. I found no other appeals reflected in the Second
District on-line docket, so I assume the parties agreed to something or the
trial judge awarded fees (and the litigation ran its course).