Moving SLAPP Fee Claimant Lost Burden of Proof--Could Not Prove That SLAPP Motion Filed Before Dismissal.
Burden of proof is still a potent concept in the law. That is exactly what was dispositive in the next case we explore.
In Ing v. Fink, Case No. G045777 (4th Dist., Div. 3 Sept. 19, 2012) (unpublished), cross-complainants voluntarily dismissed their cross-complaint on the same day that attorney cross-defendant filed his SLAPP motion. The law happens to be that a plaintiff voluntarily dismissing its action before a SLAPP motion is filed divests fee entitlement to the defendant under CCP § 425.16(c), the mandatory SLAPP defense fee-shifting provision. (S.B. Beach Properties v. Berti, 39 Cal.4th 374, 383 (2006).) Because the dismissal and motion papers were not time-stamped, the lower court denied attorney cross-defendant’s SLAPP fee motion request of $23,498 because attorney could not meet his burden of showing the SLAPP motion was filed before the voluntary dismissal.
On appeal, Presiding Justice O’Leary, on behalf of a 3-0 panel, affirmed.
Reason? Burden of proof. Attorney had the burden to establish he was entitled to fees and costs. (Christian Research Institute v. Alnor, 165 Cal.App.4th 1315, 1320 (2008).) He did not meet this burden given he could not establish which document was filed first. The race may go the tortoise or the hare, but no one could establish who won here--so fee denial affirmed in the case where the race finish could not be determined.
The hares and the tortoise. Puck. 1895. Library of Congress.
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