4/1 DCA Follows Tourgeman Decision Rather Than Coltrain On The Issue.
Egley v. Sparks, Case No. D067648 (4th Dist., Div. 1 May 19, 2016) (unpublished) reversed a lower court’s grant of $17,000.50 in mandatory fees to a winning defendant in a case after plaintiff voluntarily dismissed but before the defense SLAPP motion could be heard. The reason? Answer: the lower court did not consider the merits of the SLAPP motion before awarding fees.
There is an acknowledged split of intermediate appellate thinking on the subject, with Coltrain v. Shewalter, 66 Cal.App.4th 94, 107 (1998) saying a merits determination was not required while Tourgeman v. Nelson and Kennard, 222 Cal.App.4th 1447, 1457 (2014) (following the analysis of an earlier appellate decision in Liu) determined that a merits review was required. The 4/1 DCA went with the Tourgeman/Liu stance on the issue.
The defense asked the appellate court to fix SLAPP fees on appeal, but the DCA decided that the trial judge was in the best position to do so.