Result Was That The Total Fee Request Of The Defense Should Have Been Awarded, Not The Scaled Down Order For 80% Of The Request.
In Ross v. Seyfarth Shaw LLP, Case No. B312337 (2d Dist., Div. 8 Sept. 29, 2023) (unpublished), plaintiff brought a suit based primarily on the alleged shoddiness of a CSU investigation, with the lower court tentatively indicating that three out of eleven claims should be SLAPP-ed but indicating that the other claims involved unprotected activity—awarding fees and costs of $63,911, 80% of the $79,889 request in its tentative. Before the tentative ruling could be entered as a final order, plaintiff dismissed his complaint in entirety. Both sides appealed.
The 2/8 DCA decided that plaintiff’s entire complaint should have been SLAPP-ed because all of his claims involved a CSU investigation which was a protected “official proceeding,” and plaintiff’s claims were time barred. Although noting a split in intermediate appellate thinking on prevailing party SLAPP analysis as between Coltrain [presumption that dismissal made the defense the prevailing party, subject to narrow rebuttal circumstances] or Liu [defense must prove it would be successful on the SLAPP merits], defendants prevailed under either standard given the appellate court’s analysis of the substantive underlying issues. That meant defendants should have been awarded the full $79,889 in fees and costs, plus they were entitled to more costs on appeal.