Second District Affirms Fee Award and Clarifies That Frivolousness Findings Do Not Have to be Prolix in Nature.
If a plaintiff defeats an anti-SLAPP motion determined to be frivolous, the plaintiff must be awarded attorneys under the anti-SLAPP statute. (See Code Civ. Proc., § 425.16(c).) Frivolousness requires a finding that the anti-SLAPP motion was “totally and completely without merit” (Code Civ. Proc., § 128.5(b)(2)) such that any reasonable attorney would agree it was devoid of merit. Very high standard. However, plaintiff homeowner met it in the case we now review.
In Lim v. Malibu Bay Owners Assn., Case No. B199141 (2d Dist., Div. 6 June 2, 2008) (unpublished), homeowner Dr. Lim sued her homeowners association (HOA) for breach of fiduciary duty, an accounting, and declaratory relief regarding poor management of the property or its financial affairs. Lim alleged that HOA tried to chill her protests by improperly threatening financial penalties through the HOA’s attorney. HOA tried to “slap” her claims—filed an anti-SLAPP motion under Code of Civil Procedure section 425.16—by asserting that Lim’s suit was aimed at squelching the HOA’s free speech rights.
The trial judge denied the motion as not involving protected activity and awarded Dr. Lim $2,000 in attorney’s fees. HOA appealed. It did not win on appeal.
In finding that protected activity was not involved, the Ventura-based Court of Appeal found that there needed to be a specific public interest showing, with HOA’s admission that the letters only went between its attorney and Lim not coming close to satisfying the “public issue” requirement. Because HOA could not surmount the first hurdle in anti-SLAPP analysis, that took the appellate court to the fee award. HOA’s sole argument was that the trial court did not set forth its frivolousness determination with sufficient particularity.
Wrong, ruled the Second District, Division 6. The trial court’s statement that “[it] agrees with plaintiff that there is not protected speech” was found to impliedly incorporate Dr. Lim’s briefs and arguments, satisfying the requirement of a short statement that justified the frivolousness finding. The fee award was affirmed, and HOA was also assessed with costs on appeal (which will likely mean imposition of a future fee award against HOA for the appellate services of Dr. Lim’s counsel).