California SLAPP Law

Wow. I was in court this morning on a demurrer (which I won, naturellement), but the court’s ruling on an anti-SLAPP ruling in the same case hit me vicariously like a 100 mile an hour fast ball to my nether region. As the defense attorney painfully learned, every anti-SLAPP motion is a potential procedural minefield, and the hidden mines only increase in number when an attorney decides to try an untested procedure.

The defamation case in question involves three defendants. I represent Defendants 1 and 2, a husband and wife, and the third defendant (Defendant 3) is represented by another firm.

The complaint is ridiculous, but there was no basis upon which to bring an anti-SLAPP motion as to my clients. There was a strong basis, however, as to Defendant 3. Counsel for Defendant 3 filed an anti-SLAPP motion, and the plaintiffs quite wisely read the writing on the wall, and dismissed the action as to that Defendant.

So we have a situation that often arises with anti-SLAPP motions. The complaint is dismissed before the motion is decided. But case law is perfectly clear that even though the complaint is dismissed, the defendant is still entitled to attorney fees for the motion IF the court decides the complaint was indeed a SLAPP.

But how is that handled? The moment a party bringing an anti-SLAPP motion is dismissed from the case, the anti-SLAPP motion becomes “moot.” After all, an anti-SLAPP motion is a motion to strike. If the case is dismissed, there is nothing to strike. Case law is very clear that upon dismissal, a court no longer has jurisdiction over the case as to a determination of the merits. The court can only engage in housekeeping matters that necessarily follow a dismissal. For example, a defendant is entitled to recover litigation costs, so the court can award those costs, and if challenged, could rule on a motion to tax costs.

The question of whether attorney fees were recoverable on an anti-SLAPP motion where the case was dismissed before the hearing, and whether the court retained jurisdiction to hear such a motion, was not initially clear, and was answered through evolving case law. The courts eventually concluded that even though the case is dismissed, in order to honor the purpose behind the anti-SLAPP statute, a court retains jurisdiction to award attorney fees even after a dismissal.

The raison d’être for the anti-SLAPP statute is to discourage plaintiffs from using litigation as a means to silence protected speech. If a plaintiff could file an harassing lawsuit in order to force defendant to incur the time and expense of defending against that action, but then escape the consequences of filing the harassing action by simply dismissing it prior to the anti-SLAPP motion, the anti-SLAPP statute would be rather pointless.

So here is how I handle the situation.

I spent many hours preparing a persuasive anti-SLAPP motion. But upon reading my motion, counsel for plaintiff slaps their forehead, mutters “what was I thinking?” and immediately dismisses the case. In most instances, they think they have dodged the attorney fee motion bullet by dismissing before the hearing on the motion, and are later shocked to learn that is not how it works.

Thankfully, the time spent on the anti-SLAPP motion was not wasted. It already resulted in a dismissal of the action. Additionally, the arguments set forth in the motion will now be used to argue for attorney fees. You see, just because the plaintiff dismissed the action in the face of my anti-SLAPP motion, it does not necessarily follow that the complaint was a SLAPP. For example, the plaintiff may have simply decided to drop the action because it was getting too expensive to prosecute. His attorney told him it would cost $20,000 to oppose the motion, and he just could not afford it, so he dismissed.

I’m only entitled to recover the attorney fees incurred in bringing the anti-SLAPP motion if the complaint was indeed a SLAPP, and that has yet to be decided. But how can the court make that determination if the anti-SLAPP motion is now moot and it has no jurisdiction to make that determination? It does so in conjunction with the motion for attorney fees.

I prepare a motion for attorney fees and I weave in the great arguments from my anti-SLAPP motion to convince the court that the complaint was indeed a SLAPP.

The combination of the two arguments is very synergistic, because with a motion for attorney fees I am also arguing and attesting that all of the time I spent on the motion was necessary and appropriate. So, for example, I can argue that the statements made at a City Council meeting are privileged, and simultaneously explain that the amount of time spent on the motion was necessary because it presented the novel issues of whether that privilege is impacted by the defendant’s knowledge that City Council meetings are broadcast on a public access channel, and whether that broadcast is still a “place open to the public.”

In ruling on my motion for attorney fees, the court also considers whether the anti-SLAPP motion was appropriate, and if it agrees my presentation satisfied the two prongs of the anti-SLAPP analysis (it always has done so), it then decides on the attorney fees to be awarded.

Interestingly, case law holds that in determining whether my client was the prevailing party and hence entitled to attorney fees, the court can consider who best achieved their litigation goal. The defendant enters the analysis with a preset bias in their favor, because they achieved the intended goal of disposing of the action, and the dismissal by plaintiff “is strong evidence of the merits of the motion.”

Another option.

As an alternative to this procedure, the fees can be requested in conjunction with the original anti-SLAPP motion. By proceeding in that manner, even if the plaintiff dismisses the action prior to the hearing on the motion, it would only be moot as to the anti-SLAPP motion. The court could still rule on the attorney fees. This procedure can be especially advantageous in courts with slow dockets. If I have to wait three months to have my anti-SLAPP motion heard, and it doesn’t contain a request for attorney fees, then I’ll have to wait another three months to have the motion for attorney fees heard.

Despite the advantage of having both motions decided at the same time, there are a couple of reasons that I do not proceed in that manner. First, I am typically dealing with sophisticated anti-SLAPP motions, and need every line of the 15 pages available to me to flesh out my arguments. I’d be giving up precious space if I included the request for attorney fees.

Additionally, my fees would largely be projections. Since plaintiff has to have the opportunity to respond to the request, the fee request must be contained in the opening brief. At that point, I have no idea what the opposition will include, and how much time it will take to reply to that opposition. Plaintiff has the same 15 page limit, but there is no limit to the length or number of declarations and exhibits. On a number of occasions, the reply has taken far longer to prepare than the original motion. If I included the attorney fee request in the original motion, the best I could argue is that “I anticipate it will take an additional seven hours to review the opposition to the motion and prepare a reply.” That estimate could end up being wildly understated.

So what did the attorney for Defendant 3 do wrong?

Counsel for Defendant 3 decided to go a different route. There happened to be a Case Management Conference scheduled shortly after plaintiff had dismissed Defendant 3, but before the hearing on the anti-SLAPP motion.

At the Case Management Conference, where case scheduling is discussed, Plaintiff’s counsel explained that Defendant 3 had been dismissed, and that the Judge should therefore take the pending anti-SLAPP motion off calendar. But counsel for Defendant 3 convinced the Judge to go ahead and keep the motion on calendar, since a decision on the motion was necessary to determine entitlement to attorney fees.

I knew at the time that would not work. Setting aside that the Judge had no jurisdiction to rule on the motion after the dismissal, no judge is going to take hours to review an anti-SLAPP motion just to issue an advisory ruling so a party will know whether to then pursue a motion for attorney fees. I didn’t say anything during the Case Management Conference, but I later politely explained to counsel for Defendant 3 that I have never seen the situation handled in this manner, and how I suspected that come the day of the hearing, the Judge would conclude that he could not rule on the motion. Despite my warnings, counsel elected to stay the course.

Today was that day. Not only did the Judge rule that he had no jurisdiction to decide the anti-SLAPP motion, he ruled that Defendant 3 could no longer seek attorney fees.

Why? Rule of Court 3.1702 provides:

A notice of motion to claim attorney’s fees for services up to and including the rendition of judgment in the trial court-including attorney’s fees on an appeal before the rendition of judgment in the trial court-must be served and filed within the time for filing a notice of appeal under rules 8.104 and 8.108 in an unlimited civil case . . .

The time for filing a notice of appeal is 60 days, so the motion for attorney fees must be brought within 60 days of the judgment, and where the plaintiff voluntarily dismisses the action, that dismissal is treated as the final judgment for purposes of Rule 3.1702. It had been over five months since Plaintiff dismissed Defendant 3. Because counsel elected to wait for the ruling on the anti-SLAPP motion, he was far past the 60 day deadline to file the motion for attorney fees.

Rule 3.1702 does offer some wiggle room, stating that “for good cause, the trial judge may extend the time for filing a motion for attorney’s fees in the absence of a stipulation or for a longer period than allowed by stipulation.” Counsel for Defendant 3 was left to beg and plead for the Judge to exercise that discretion and allow for a late attorney fee motion. The Judge denied the request, basically applying an equitable standard.

Code of Civil Procedure 473 allows for a motion to vacate an order or judgment on the basis of “mistake, inadvertence, surprise or excusable neglect.” The Judge applied that standard (even though Rule 3.1702 does not mention it) and saw no basis to grant any relief.

I have no idea how much Defendant 3 paid to the attorney to bring the anti-SLAPP motion, but it is going to be a painful discussion when counsel explains that there is now no way to recover those fees.

But it could be worse. Counsel can make things right be waiving or refunding the cost of the anti-SLAPP motion. Far worse is when I see an attorney lose an anti-SLAPP motion because of some procedural mistake. In that situation the client is not only deprived of recovering their fees, they are forced to continue defending against an action that should have been dismissed. Here, counsel did successfully extract their client from the action, even if they did drop the ball at the goal line.

Judges hate anti-SLAPP motions, because they are so time consuming to review and decide. In fact, some judges now limit the number of such motions that they will consider on a given calendar day. That’s why the hearings are often months in the future. The calendaring system will only allow for two anti-SLAPP motions on a given day, and if those two slots are taken, the next incoming motion is rolled over to the next available date. The record to date for one of my motions was seven months. (Which is bad enough, but then the Judge had the gall to cop an attitude at the Case Management Conference, asking how it is possible that the case is nine months old but no one has conducted any discovery.)

Keeping in mind that judges hate anti-SLAPP motions, never afford them an opportunity to avoid the process on some procedural basis.