Matter Was Close, But Deference To Trial Judge Made The Difference.
In Guinnane Construction Co., Inc. v. Chess, Case No. A157781 (1st Dist., Div. 2 Dec. 22, 2020) (unpublished), plaintiff won a SLAPP motion and moved for fees based on the contention that the defense motion was frivolous. The trial judge denied plaintiff’s fee request. The 1/2 DCA, showing some sympathy for the fee motion given that business-related communications usually do not arise out of protected activity, found enough of a “sniff of merits” to sustain the deference accorded to trial judge’s decision on denying frivolous fee award under a CCP § 128.5 standard—given that an offer to indemnify fell within the cracks and might have fallen within the litigation privilege. Fee denial affirmed, but close to going the other way.