Owner’s Actions Belied Its Faith In The Merits Of Its Case.
The Retail Property Trust v. Orange County People For Animals, Case No. G045556 (4th Dist., Div. 3 May 18, 2012) (unpublished) is an interesting decision affirming a $120,000-plus attorney’s fees award against the defense after a Brea mall owner voluntarily dismissed a lawsuit while a SLAPP motion was pending.
Brea mall owner sued a non-profit group seeking to enforce “time, place, and manner” restrictions for protest activities on the mall property. The defense responded with a SLAPP motion, with mall owner voluntarily dismissing the suit before it could be heard. However, because this dismissal did not prevent an award of mandatory fee award to the defense, the trial court subsequently granted a $120,000 fee award--validating our Mission Statement that fees are often the driving point in litigation.
Mall owner’s appeal was not successful. The lawsuit seeking to enforce mall owner’s protest restrictions and to obtain an injunction against those activities obviously involved protective SLAPP “free speech” activities. With respect to whether the lawsuit was meritorious or not (the second SLAPP prong), mall owner argued that there was a divergence in appellate decisions on the restriction issue. However, so to speak according to Presiding Justice O’Leary in a 3-0 panel opinion, mall owner “shot itself in the foot” by not arguing that split but showing that it felt that its lawsuit lacked merit by voluntarily dismissing the case (in a way, conceding that the appellate court on one side of the split was correct). Fee recovery affirmed.