Second District Affirms Trial Court’s Decision to Decline Awarding Fees to a Prevailing Anti-SLAPP Plaintiff.
Under Code of Civil Procedure section 425.16(c), a prevailing anti-SLAPP defendant is entitled to mandatory fee recovery for winning a special motion to strike. However, the same subsection provides that a prevailing anti-SLAPP plaintiff only obtains fees for defeating a special motion to strike if the court finds the motion was frivolous or solely intended to cause unnecessary delay under former Code of Civil Procedure section 128.5.
The next case underscores the discretion granted to trial courts when dealing with winning anti-SLAPP plaintiffs.
In Fink v. Signalife, Inc., Case No. B193587 (2d Dist., Div. 8 July 14, 2008) (unpublished), plaintiff (a former CEO) sued the company and others based on company’s refusal to remove the restrictive legend from stock shares issued to CEO, preventing their sale. Company filed an anti-SLAPP motion to strike, which was denied. The trial court declined to award any attorney’s fees to the winning CEO.
On appeal, the Second District, Division Eight affirmed the anti-SLAPP denial, finding that CEO’s complaint did not arise from company’s communications with the SEC but rather from company’s refusal to remove the restrictive legend. (See Gallimore v. State Farm Fire & Cas. Ins. Co., 102 Cal.App.4th 1388, 1399 (2002).)
CEO renewed his request that he should have been awarded with almost $20,000 in fees and costs after winning the anti-SLAPP motion and in unsuccessfully attempting to obtain a dismissal of the pending appeal. Like the trial court, the appellate court rejected awarding fees to CEO because “we cannot say [company’s] anti-SLAPP motion or its appeal was frivolous.”