Also, Denial of Fee Award to Prevailing Defendant Under FEHA Action Also Established Probable Cause, Dispensing of Malicious Prosecution Element.
Central Escrow, Inc. v. Martin, Case No. B234166 (2d Dist., Div. 5 Feb. 5, 2013) (unpublished) was a malicious prosecution case brought against plaintiffs and their attorneys after they lost a sexual harassment lawsuit. The lower court granted a SLAPP motion by several defendants (the plaintiffs and their attorneys in the unsuccessful FEHA suit), finding that the denial of FEHA fees to the winning defendant in the FEHA case showed there was probable cause and then awarding attorney’s fees to the successful defendants to the tune of about $67,000.
Everything was affirmed on appeal.
Because FEHA fees are liberally granted to winning plaintiffs and only awarded to successful defendants if the FEHA action is found to be frivolous, unreasonable or without foundation, the denial of those fees in the underlying FEHA case did establish probable cause under the circumstances, which doomed the malicious prosecution action and was a factor in the “SLAPP.” However, the appellate court was cautious to observe that this does not happen in every case, but the lower court’s express findings on the fee motion did establish there was probable cause in this instance.
As far as the fee awards themselves, the amounts were fine in light of some reductions in fee requests made by the trial court. Although one of the winning defendant attorney group also represented another defendant (one of the FEHA plaintiffs), this did not disqualify the group from receiving SLAPP fees because a codefendant can provide separate services to another defendant in a SLAPP proceeding. (Ramona Unified School Dist. v. Tsiknas, 135 Cal.App.4th 510, 524-525 (2005).) Plus, the winning defendants were entitled to seek costs on appeal, which would include SLAPP fees for “prevailing” a second time.