Second District, Division 5 Agrees With Lower Court that SLAPP Motion Was “Not a Close Call.”
In our category “SLAPP,” we have reviewed the statutory provision that mandates an award of reasonable attorney’s fees to a prevailing defendant on a SLAPP motion in many, many cases. Less common, we have reviewed a few cases—some granting but most denying—that involve requests to impose fees against defendants based on the same provision if the lower court concludes the motion was frivolous/solely intended to cause unnecessary delay. (Code Civ. Proc., § 425(c).) The next case was one in which defendant suffered the sting of fees from bringing a frivolous SLAPP motion.
Olan v. Zelig, Case No. B210972 (2d Dist., Div. 5 Sept. 3, 2009) (unpublished) involved scuffling over an attorney’s lien, with the trial court finding that a defendant attorney’s SLAPP motion was frivolous because it involved conduct not at issue in any court proceeding until much later down the line. (California Back Specialists Medical Group v. Rand, 160 Cal.App.4th 1032, 1036 (2008).) The trial court found that the motion was “not a close call” under pertinent case law and imposed $5,000 in fees (out of a requested $5,988.50) against defendant for bringing the unsuccessful SLAPP motion.
On appeal, the determination was affirmed easily. The attorney lien dispute was never under consideration in any court or official proceeding until plaintiff filed the pending action much later. Not all attorney conduct in connection with litigation is protected by the SLAPP law, as the defendant found out in this case—also having to pay plaintiff $5,000 in fees as the price of prosecuting a frivolous motion.