Must Show Objective Speciousness and Subjective Bad Faith.
Young v. Tri-City Healthcare Dist., Case No. D063980 (4th Dist., Div. 1 May 15, 2014) (unpublished) contains a good discussion of the review standard applicable to a lower court ruling denying attorney’s fees to a prevailing SLAPP plaintiff under Code of Civil Procedure section 425.16(c)(1).
In this one, the lower court denied a plaintiff, who prevailed on appeal in getting a SLAPP denial reversed, with fee recovery to a prevailing plaintiff under the SLAPP fee-shifting statute requiring that the defense motion had to be frivolous or solely intended to delay under former CCP § 128.5.
The appellate court affirmed the fee denial, but in the process provided a nice discussion of the bifurcated standards of review applicable to the objective and subjective prongs.
First, however, it had to determine if an order denying SLAPP fees is appealable. It was, with the appellate court accepting the collateral order analysis of KrikorianPremiere Theatres, LLC v. Westminster Central, LLC, 193 Cal.App.4th 1075, 1081-1082 (2011).)
On the objective speciousness prong, review is de novo. (San Ramon Valley Fire Protection Dist. v. Contra Costa County Employers’ Retirement Assn., 125 Cal.App.4th343, 352 (2004).) Using this standard, the result against the defense was not obvious. On the subjective motive prong, review is limited to the abuse of discretion standard. (Chitsazzadeh v. Kramer & Kaslow, 199 Cal.App.4th 676, 683-684 (2011).) There simply was no proof of subjective bad faith, meaning the fee denial was sustained on appeal.
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