Test Is Whether The SLAPP Motion Would Have Been Granted Prior To Dismissal.
We have run into this issue before. A plaintiff dismisses his/her case before a SLAPP motion is heard. Does that preempt a mandatory SLAPP fees motion? Answer: Not at all, according to the next case—the lower court must determine if the SLAPP motion would have been granted; and, if so, fees and costs should be awardable.
Weischadle v. Charboneau, Case No. B304032 (2d Dist., Div. 7 May 20, 2021) (unpublished) involved a situation where a plaintiff dismissed her complaint while a SLAPP motion was pending. The lower court then entertained a defense motion for mandatory SLAPP fees, awarding $38,550 in attorney’s fees and $2,498.55 in costs against plaintiff.
That result was affirmed on appeal, possibly strengthened by the record which showed the defense offered a release to plaintiff if she dismissed her complaint before things got more protracted in nature. At least in the Second District, the test is whether a defendant would have been successful on a SLAPP motion as far as being awarded fees/costs where a plaintiff dismisses the action before a SLAPP motion can be heard. (Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1456-1457; Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 879; Pfeiffer Venice Properties v. Bernard (2002) 101 Cal.App.4th 211, 217.) That test was meet in this matter, with the appellate court rejecting the merits challenges to the SLAPP grant.