Failure To File Was Dispositive To Majority Opinion; Dissent Believed That The Fee Entitlement Request In The SLAPP Motion Papers Properly Teed Up The Issue.
Over a dissent, a majority of an appellate court panel in Catlin Ins. Co., Inc. v. Danko Meredith Law Firm, Inc., Case No. A160358 (1st Dist., Div. 4 Jan. 11, 2022) (published) decided that SLAPP defendants had to file a costs memorandum or a fee motion to recover prevailing party fees after a plaintiff voluntarily dismissed the entire action rather than rely upon a fee entitlement request in the SLAPP merits papers which the lower court determined to be moot. The lower court did indicate that it would entertain a post-dismissal request, but the SLAPP defendants did not do so. That was a mistake, according to the majority. So, the upshot here is that SLAPP defendants need to file a costs memorandum or fee request for purposes of preserving fee entitlement following a voluntary dismissal. The dissent opined that the fee entitlement was properly “teed up” in the moving papers on the merits, such that the lower court should have ruled on it and the entitlement request.