SLAPP: Fourth District, Division One Decides Lower Trial Court Must Determine If Defendant Would Have Prevailed On The Merits Under SLAPP Statute Where Plaintiff Voluntarily Dismisses for Purposes of SLAPP Fee Recovery

 

4/1 DCA Notes Split in Opinion; We Predict This One May Be Accepted For Review.

     Tourgeman v. Nelson v. Kennard, Case No. D063473 (4^th Dist., Div. 1 Jan. 16, 2004) (published) dealt with a SLAPP fee recovery issue which has engendered a split in intermediate appellate thinking, which may (as best as we can predict) lead to review of this decision and a resolution by our state supreme court. If not, it will have to be resolved at some point in time.

     In this specific case, SLAPP plaintiff voluntarily dismissed his action against defendants, inspiring the defense to file an attorney’s fees motion as prevailing party under the SLAPP statute. The lower court awarded defendants fees/costs in the amount of $11,581. The appellate court reversed and remanded with directions to deny fees given it found the defense would not prevail on the SLAPP merits under the public interest exception.

     Why you say was the fee order overturned and why would this decision possibly be reviewed?

     Simple, because this appellate court believed no SLAPP fee recovery, even in light of a voluntary dismissal, could be had unless there was a “mini-merits” review that the SLAPP defendants would have ultimately prevailed VERSUS a more lenient, contrary view that the defense realized its litigation objective by obtaining a dismissal. (This pits the more lenient Coltrain v. Shewalter, 66 Cal.App.4^th 94 (1998) line of cases against the more conservative Liu v. Moore, 69 Cal.App.4^th 745 (1999) line of cases.) The more conservative line of cases was adopted by the 4/1 DCA as being the law--a merits adjudication is an essential predicate of defense SLAPP fee recovery in this context. The 4/1 DCA followed Liu and disagreed with Coltrain. Stay tuned if review is indeed granted in this one.