Second District, Division 3 Does Split on Merits Affirmance.
In our category “SLAPP,” we have surveyed many California decisions involving appeal of mandatory fee-shifting awards in favor of prevailing defendants in anti-SLAPP proceedings. Both the fee requests and eventual awards can be sizable in nature, although lower courts frequently award much less than requested. The next case shows the substantial size of fees that can be awarded even where the action involved a fairly focused defamation claim.
Two doctors got into a litigation tiff when defendant doctor published a 2007 article in OB/GYN News accusing plaintiff, a South Korean medical doctor and fertility specialist, of possible plagiarism and fraud in connection with plaintiff’s publication, along with two co-authors, of a 2001 article that reported women aided by prayer groups became pregnant more often than women lacking such support. Plaintiff filed a defamation suit against defendant, who fired back with an anti-SLAPP motion.
In a 2-1 vote (Justices Kitching and Croskey in the majority), the Second District, Division 3 affirmed a lower court’s grant of a SLAPP motion in favor of defendant doctor in Cha v. Flamm, Case No. B208387 (2d Dist., Div. 3 Oct. 23, 2009) (unpublished). The majority agreed that plaintiff, a limited public figure, did not prove that defendant doctor made certain statements with required malice. Presiding Justice Klein dissented, finding malice was proven adequately at the anti-SLAPP stage and opining that plaintiff’s suit should be reinstated.
Why is this case being reviewed in this blog? Answer: After winning the SLAPP motion, defendant doctor moved to recover fees. The lower court awarded him a sizable $50,711.31 as the prevailing party, a determination affirmed on appeal with the favorable disposition on the merits.