California SLAPP Law

I am often brought in as an expert to oppose inflated attorney fee applications following an anti-SLAPP motion. Of course every case is different, but thus far I have never failed to get the requested fees reduced. Lest you be overly impressed, I will immediately note that I only handle a case if I agree that the attorney fees should be reduced. Sadly, there are far too many unethical attorneys who, after prevailing on an anti-SLAPP motion, view fee application as a winning lottery ticket, and greatly inflate the fees. In most instance my services are sorely needed to challenge the application, but there have been a few occasions where the fees being requested are reasonable in my opinion, and I inform the plaintiff and/or his attorney that I cannot opine that a reduction would be appropriate.

In today’s case, the fee application was of the all too common variety, where defense counsel grossly overstated the fees to which he felt entitled. In this case, the plaintiff had negligently filed a SLAPP, making the common mistake of seeking damages that flowed from fighting a legal action, claiming that the action was an “abuse of process.” When the defendant filed the anti-SLAPP motion, the plaintiff was educated as to the litigation privilege, and dismissed the challenged causes of action (others still remained). Rather than just bringing me in as an expert, the client decided to retain me to oppose the motion and prosecute the remaining causes.

Some are not aware that when a cause of action is dismissed in the face of an anti-SLAPP motion, it divests the court of jurisdiction to hear the motion. Also unknown to some, including the attorney who brought the motion for attorney fees, having dismissed the causes of action that were challenged by the anti-SLAPP motion, the defendant is not automatically entitled to attorney fees. This only makes sense, because the anti-SLAPP motion was not decided.

This can be a distinction without a difference in most cases, because even though the claims were dismissed and the anti-SLAPP motion was rendered moot, case law makes clear that the defendant can still seek his attorney fees. The court then determines if the complaint was in fact a SLAPP. If yes, then attorney fees are mandated The distinction is nonetheless important to keep in mind because it can still be the case that the defendant would not have prevailed and there is thus no basis for the award of attorney fees. It can be a good strategy to dismiss the claims in the face of a potentially successful anti-SLAPP motion since that stops the attorney fees meter from running, and you can do so without capitulating to attorney fees.

Back to today’s motion. For the straightforward anti-SLAPP motion and motion for attorney fees that were filed in this case, I would have billed my client no more than $15,000. (Some anti-SLAPP motions can be very involved and would cost far more, but this was a simple motion based on the litigation privilege.) Here, the defense counsel was seeking more than $93,000 in attorney fees. Fee applications of that size are concerning, not because they have any validity, but because some lazy judges will rubber-stamp them with no review. Thankfully, our judge acted professionally and did her job, and it was clear from her tentative that she had read and considered the papers. The fees should have been reduced far more, or denied altogether for overstating them, but I did persuade the court to reduce them by more than $40,000.

For a sampling of the sort of ridiculous attorney fees being awarded by the courts, see this article.