SLAPP: SLAPP Fees Denied To Plaintiff Where Trial and Appellate Courts Determined The Motion Was Not Frivolous

Meritless Does Not Necessarily Translate To Frivolous.

            In Phelps v. McBratney, Case No. A156638 (1^st Dist., Div. 1 Sept. 23, 2020) (unpublished), defendants lost a SLAPP motion (appealing the merits determination and losing).  However, the lower court refused to award plaintiff attorney’s fees because it found the motion was not frivolous.  That determination was affirmed on appeal, with this case being interesting reading for practitioners on illegal eavesdropping recording (dealing with Canadian law, which allows, versus California law, which does not) and the boundaries of a public dispute (with the lower and appellate courts concluding the matter was really a private dispute).  Lack of merit does not automatically translate to frivolity is the message of this one in the SLAPP fee context.