On Remand, Lower Court Will Have To Carefully Gauge Whether Defendant Prevailed Given That It Only Eliminated One Factual Basis For Liability, But No Cross-Claims Were Eliminated In Entirety.
Anaheim Arena Management, LLC v. Wergechik, Case No. G054463 (4th Dist., Div. 3 Aug. 20, 2018; received for posting Aug. 21, 2018) (unpublished) was a situation where a former employee completely SLAPPed a cross-complaint by former employer about allegedly using employer’s confidential information with a third-party and failing to return company property following her termination. However, on appeal, the appellate court in an earlier opinion affirmed the striking of some allegations from the cross-complaint relating to protected activity, which actually was one basis for factual liability even though all of the cross-claims remained intact otherwise. Prior to the earlier reversal, the lower court awarded defendant $32,720 out of a requested $38,137.50 in attorney’s fees under the mandatory SLAPP fee-shifting section.
The fee decision got disrupted on appeal based on the prior reversal of the entire SLAPP grant. However, the Fourth District, Division 3—in a 3-0 panel decision authored by Justice Fybel—did provide some guidance by reminding the parties and the lower court that a SLAPP defendant may not “prevail” if his or her win was somewhat insubstantial and the possible recovery anchor pins for liability remained largely intact, although recovery is possible if defendant successfully narrowed the scope of the lawsuit to some material degree. (Moran v. Endres, 135 Cal.App.4th 952, 955 (2006); Mann v. Quality Old Time Service, Inc., 139 Cal.App.4th 328, 339-341 (2006).) So, a remand look was required, including addressing circumstances such as “the fact that although the anti-SLAPP motion was successful in striking a factual basis of liability, it did not result in the elimination of any cause of action from the cross-complaint.” (Slip Op., p. 10.)