Reason … Trial Judge Did Not Provide Adequate Specification Of Reasons For Granting Fees To Plaintiff.
Nunez v. Pennisi, Case No. H039910 (6th Dist. Oct. 27, 2015) (published) is a good reminder to plaintiffs winning SLAPP motions and obtaining infrequent fee recovery because the SLAPP motion was frivolous: make sure the lower court makes an adequate record for fee recovery below.
Here, the defense lost a SLAPP motion in a malicious prosecution action against plaintiff, with the lower court assessing fees against the defense based on CCP §§ 425,16(c) and 128.5. On appeal, the appellate court found that there was justifiable basis for denying the SLAPP motion but that a prior procedural ruling gave enough minimal merit such that the trial court failed to procedurally justify the fee award by specifying the circumstances for awarding fees against the defense. Reversed and remanded for a “re-do” on this issue, with the lesson being to SLAPP prevailing plaintiffs—make sure the lower court makes a record for you in proceedings at the trial level in line with CCP § 128.5.