Second District, Division 7 Issues Two Unpublished Opinions on SLAPP.
In our category “SLAPP,” we have explored cases where defendants have been victorious in winning mandatory attorney’s fees awards after prevailing in anti-SLAPP motions. The statutory basis for such fee entitlement is Code of Civil Procedure section 425.16(c). Division 7 of the Second District recently issued two unpublished decisions in the area.
Looney v. Moore, Case No. B198586 (2d Dist., Div. 7 Apr. 22, 2009) (unpublished)
An individual defendant won a SLAPP motion against plaintiff in a hearing that followed in the wake of a prior hearing in which defendant Los Angeles County’s demurrer to a first amended complaint was sustained with leave to amend. Before a second amended complaint could be filed, the trial court granted individual defendant’s anti-SLAPP motion (terminating the action as to that defendant) and ordered plaintiff to pay individual defendant $6,360 in attorney’s fees as mandated by section 425.16.
Plaintiff appealed …. and won! Because the first amended complaint was wiped out by the demurrer ruling, there was no operative complaint on file. “With no operative complaint in place during the state of limbo, however, there was no operative causes of action for the trial court to evaluate and, thus, no basis upon which to make a determination.” (Slip Opn., at p. 7, citing Cohen v. Superior Court, 244 Cal.App.2d 650, 656 (1966) and Malick v. American Sav. & Loan Assn., 273 Cal.App.2d 171, 174 (1969).)
POOF! Both the SLAPP ruling and fee award were reversed.
Ariz v. Beverly Glen Park Homeowner’s Association, Inc. (2d Dist., Div. 7 Apr. 22, 2009) (unpublished)
In this one, a former member of a homeowner association board of directors sued the HOA, her neighbors, former neighbors, and HOA’s president for various torts after she was removed from the board and as chairperson of the architectural/landscape committee. HOA filed an anti-SLAPP motion, won, and was granted fees in an amount to be determined in a separately noticed motion.
Plaintiff’s appeal was not successful, although it is must reading for HOA practitioners on the “public forum” and “public issue” prongs of the SLAPP statute. In the end, HOA’s actions were found to be protected by the common-interest privilege established by Civil Code section 47(c)(1).
Attorney’s fees were properly awarded under section 425.16, which is a mandatory fee-shifting statute. Plaintiff argued that HOA’s typographical error in referencing “section 425(c)” precluded the fee award. “Frivolous,” was the retort of the Court of Appeal and … HOA was also entitled to fees for prevailing on appeal.