. . . . That Despite Plaintiffs’ Voluntary Dismissal Of A Malicious Prosecution Complaint, Because The SLAPP Motion Would Have To Been Denied On The Merits.
In the SLAPP context, a plaintiff’s voluntary dismissal of an action does not end the inquiry on whether a SLAPP motion would have been granted such that fees could be recovered by the defense. However, the critical inquiry is whether the SLAPP motion would have been granted on the merits. 8E6 Corp. v. Max, Case No. B343515 (2d Dist., Div. 1 June 29, 2026) (unpublished) demonstrates how these principles operate.
There, defendants were denied SLAPP fees after plaintiffs dismissed their malicious prosecution action, with the Court of Appeal in an earlier decision indicating that the lower court had to decide whether the SLAPP motion would have been granted for fee exposure purposes. On remand, the trial court concluded that the action was not a SLAPP situation because a conspiracy to defraud count had minimal merit so that the motion would have been denied. The appellate court agreed—that was enough to justify a denial of fees.