Trial Court Did Not Have to Gauge SLAPP Fees Based on Fees Awarded to Plaintiff in Prior Underlying Suit Claimed to Have Been Maliciously Prosecuted.
Here is an interesting one for our “SLAPP” category, remembering that attorney’s fees are mandatory for defendants winning anti-SLAPP motions. (Code Civ. Proc., § 425(c)(1).) It also reinforces the old adage to “let sleeping dogs lie” (with co-contributor Marc’s dog Watson and Mike’s dog Riffle concurring completely).
Lutge v. MacKague & Tong, Case No. A127358 (1st Dist., Div. 2 Mar. 22, 2011) (unpublished) involved a situation where a defendant who prevailed in a prior construction defect suit turned around and sued the property owners, their attorneys, and their expert witness as defendants in a malicious prosecution suit. Unfortunately, not allowing the sleeping dogs to lie, former defendant (now a plaintiff) had his malicious prosecution suit SLAPPed, resulting in fee awards of $17,740 to expert witness and $18,682 to the defendant attorneys.
Although appealing the merits and one of the fee orders, SLAPPed plaintiffs lost on both counts (even though he did not contest at all the award of fees to the expert).
Plaintiff argued that the $18,682 award to attorneys, in effect, was outrageous because he was only awarded $23,270 in fees for prevailing in the entire prior malicious prosecution action.
Not so, said the appellate court. The abuse of discretion standard applied, and nothing demonstrated any error with respect to this award. Plaintiff’s generalized arguments that the fees were excessive, duplicative, or unrelated simply did not “cut the mustard.” (Premier Medical Mgt. Systems, Inc. v. CIGA, 163 Cal.App.4th 550, 564 (2008).)