SLAPP: Despite Voluntary Dismissal Without Prejudice And Filing Of Parallel Federal Case, SLAPP Moving Defendants Entitled To Recovery Of Some Mandatory Fees

However, As Against One Defendant, SLAPP Fees Not Allowable On Plaintiff’s Intentional Infliction Of Emotion Distress Claim.

            In Astre v. McQuaid, Case No. A154945 (1^st Dist., Div. 2 Oct. 31, 2019) (unpublished), defendants filed a SLAPP motion against plaintiff’s state court complaint, with plaintiff choosing to voluntarily dismiss it without prejudice and seeking relief under a parallel federal court action.  Defendants moved for SLAPP fees, perfectly proper after even a voluntary dismissal, with the trial judge having to adjudge the merits of the SLAPP motion (to determine if the defense would have won) and then ultimately awarding $5,319.82 in SLAPP fees to defendants.

            Most of the fees award was affirmed on appeal, except on one claim as to one defendant.

            Plaintiff mainly argued that the fees motion was premature, but that was doomed by the nature of the SLAPP process which allows a court to assess the merits and award fees if the SLAPP motion was meritorious.  In this regard, the 1/2 DCA followed the reasoning in Tourgeman v. Nelson & Kennard, 222 Cal.App.4^th 1447, 1452, 1457 (2014), which held that a SLAPP merits determination was a prerequisite before awarding fees under a dismissal situation, expressly disagreeing with a more non-merits discretionary perspective expressed in Coltrain v. Shewalter, 66 Cal.App.4^th 94, 107 (1998).  The trial judge did not err in following Tourgeman over Coltrain.  With respect to the precise prematurity argument, the appellate court rejected it because “[under plaintiff’s] position, a motion for attorney fees could be postponed indefinitely if the plaintiff claims its objectives might still be achieved by different, unidentified means in the future, but this result would not serve the purposes of the anti-SLAPP statute, which include ending SLAPPs early and without great cost to the SLAPP defendant.”  (Slip Op., p. 10.) 

            Nevertheless, because the intentional emotion distress claim was not necessarily lacking in merit on the second step of the SLAPP analysis, the award against one defendant has to be revisited on remand.