SLAPP: Trial Courts Have Discretion To Award Fees In Anti-SLAPP Proceeding Where Plaintiff Dismisses Without Prejudice … Especially Where The Result Is Not “Inevitable”

Second District, Division 3 Allows Dismissal of Action, But Does Not Prevent Trial Court From Considering Defense Request for Fees.

     This next case is an interesting one and may not be the favorite of defendants bringing anti-SLAPP motions (and hoping to recoup attorney’s fees as the eventual prevailing party). It considers the impact of a dismissal of the action without prejudice while the anti-SLAPP motion is pending, but before any tentative or merits determination is made by the trial court. Basically, it imbues the lower court with discretion for purposes of awarding fees to the defense in the wake of a dismissal occurring before any “inevitable” type of decision is made, although it does honor the dismissal.    

     In Law Offices of Andrew L. Ellis v. Yang, Case No. B205452 (2d Dist., Div. 3 Oct. 27, 2009) (certified for publication), plaintiff dismissed an action without prejudice even though the defense had filed an anti-SLAPP motion (one that was unopposed). However, the lower court had not entered any tentative or other order on the merits of the motion, although there had been some criss-cross in motions, reconsideration motions, and fees motions that were finally sorted out. How were they sorted out? The trial court denied the anti-SLAPP motion and denied the fees motion as effectively moot. The defense appealed.

     How did this sort out on appeal?

     In essence, the lower court determinations were sustained, but in a little different format.

     The Court of Appeal decided that the dismissal should be honored because there was no merits determination, which means the anti-SLAPP denial was vacated given that the lower court lacked jurisdiction to rule on it in light of the dismissal. However, the lower court still had jurisdiction to decide if plaintiff was responsible for anti-SLAPP motion fees incurred before the dismissal, affirmatively citing Kyle v. Carmon, 71 Cal.App.4^th 901, 908 n.5 (1999). So, although the dismissal was entered, the appellate panel did not rule out that the defense might make a fee motion after the dismissal. That means that the story may go on … and we may have a follow up report unless no motion is filed or the parties settle. Stay tuned.