First District, Division 5 Finds Cross-Complaint Not Properly SLAPPed Because It Did Not Arise From Free Speech or Petitioning Activity.
For those of you that follow our blog, you know we have the POOF! principle. This principle manifests itself when there is a merits reversal of a substantive order that gave rise to a subsequent fee award. POOF! happened in the next case.
The lower court in NOP Mission LLC v. Murphy’s Deli Franchising, Case No. A126352 (1st Dist., Div. 5 Feb. 16, 2011) (unpublished) SLAPPed a landlord’s cross-complaint. Later, it awarded tenants $45,545.75 (out of a requested $79,800.75) in attorney’s fees and costs as the prevailing party under the SLAPP mandatory fee-shifting statute, Code Civ. Proc., § 425.16(c).
Above: Whiskey display at Leon’s Delicatessen. c1920. Theodor Horydczak, photographer. Library of Congress.
Landlord appealed and won, with the appellate court finding no basis to SLAPP because (1) a litigant’s failure to speak does not fall within a protected activity, and (2) a landlord-tenant dispute was a private rather than constitutionally protected public matter.
So, what happened to the fee/costs award? You guessed it–it went POOF! based on the reversal of the anti-SLAPP grant. (Ketchum v. Moses, 24 Cal.4th 1122, 1137 (2001).)
