Fourth District, Division 3 Disagrees with Dicta in Doe v. Luster.
You know that this one was going to be interesting when Justice Moore, on behalf of a 3-0 panel of the Fourth District, Division Three, wrote: “This is one of the weakest anti-SLAPP motions this court has reviewed in some time, which is not an inconsiderable achievement.”
You Lose! Good Day Sir!Baharian-Mehr v. Smith, Case No. G043068 (4th Dist., Div. 3 Oct. 15, 2010) (certified for publication) involved the appeal of the denial of an anti-SLAPP motion and the subsequent award of attorney’s fees against the moving defendant (a rare occurrence, because the motion has to be deemed frivolous in nature under CCP § 425.16(c)(1)). The fee award was only $1,500, but defendant appealed anyway.
Justice Moore and her panel colleagues affirmed both rulings.
With respect to the fee award, the big issue was whether it was premature to rule because there were claims still at large, based on dicta to this effect in Doe v. Luster, 145 Cal.App.4th 139 (2006). The 4/3 panel in Smith found the Doe v. Luster dicta to be unpersuasive and that it would be a waste of judicial resources to defer from addressing the fee issue until the tail end of the case months or years away.