From the “did they really have to publish this?” files:
You cannot avoid anti-SLAPP fees by dismissing the offending allegations. That is already settled law. But in Catlin Ins. Co. Inc. v. Danko Meredith Law Firm, Inc. (D1d4 Jan. 11, 2022 no. A160358) ___ Cal.Rptr.3d ___ 2022 WL 101840, the plaintiff dismissed its complaint after the defendant filed an anti-SLAPP motion. The court held, in a published opinion, that the trial court did not err in refusing to rule on the anti-SLAPP motion, thus never establishing the predicate to the defendant’s right to anti-SLAPP fees.
After you learn the facts, you will understand why both the trial court and the appellate court were not excited about rewarding this defendant with anti-SLAPP fees. But as Justice Brown notes in dissent, the majority should be more mindful of the problems this holding will create for worthy anti-SLAPP movants in the future.
The plaintiff, Catlin, and the defendant, the Danko firm, were involved in a prior lawsuit. They settled that lawsuit. Catlin, an insurance company, paid the $180,000 settlement in the prior suit to the Danko firm. So far, so good. But then Catlin goofed and sent a second $180,000 to Danko — and obvious double-payment. When Catlin realized the error and asked the Danko firm to please give the second $180,000 back, the Danko firm refused, arguing the settlement released Catlin’s right to recover the overpayment.
As the court noted, Danko asserted, in effect, “the venerable principle of ‘finders, keepers.’”
Danko filed an anti-SLAPP motion, probably hoping for more unearned riches. Like many anti-SLAPP motions, Danko’s anti-SLAPP did not seek attorney fees, but instead explicitly stated the moving party was reserving its right to seek fees until after the anti-SLAPP motion was decided.
Then the plaintiff pulled the eject cord. It dismissed the complaint. (Catlin refiled in district court where it defeated Danko’s anti-SLAPP motion.) On that basis, the court denied the anti-SLAPP motion as moot. The Danko firm begged the court to rule on the motion so it could then file a motion for fees, but the court responded: “I'm trying to tell you without telling you that I'm not sure that you really want to bring a motion for attorneys’ fees.” The trial court indicated Danko could file a separate fee motion that included the same anti-SLAPP arguments. But Danko declined, and appealed instead.
Held: When a Plaintiff Dismisses a Complaint After Defendant Files an Anti-SLAPP Motion, the Defendant Must File a Fee Motion — the Anti-SLAPP Motion Is No Longer Justiciable.
The First District Court of Appeal held the trial court was correct not to rule on the anti-SLAPP motion after the plaintiff voluntarily dismissed. Instead, to seek anti-SLAPP fees, the defendant needed to file a fee motion that included the anti-SLAPP arguments.
The court drew on Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869 (Yang), which held that, after a complaint is voluntarily dismissed, the trial court loses jurisdiction to rule on an anti-SLAPP motion; the trial court “only had jurisdiction to thereafter entertain a motion brought by defendants for attorney fees and costs.” (Id. at p. 881.) And in this post-dismissal scenario, the trial court may decide the merits of the anti-SLAPP motion as long as they are raised in a fee motion. Liu v. Moore (1999) 69 Cal.App.4th 745, 749 (Liu)
Here, the Danko defendant-appellants could have filed a post-dismissal motion for anti-SLAPP fees, where they could have copy-and-pasted the merits of their anti-SLAPP motion. But instead they “stubbornly stuck to their position that [the trial court] had a duty to rule without a pending motion.”
Ultimately, the Danko defendant-appellants chose not to file a fee motion or a memo of costs. As a result, “they waived any claim to a fee award.”
This seems the right result for these particular parties. But how will this holding affect parties in more typical cases?
Dissenting, Justice Brown Would Hold the Trial Court Should Decide an Anti-SLAPP Motion Even After the Plaintiff Voluntarily Dismisses:
In dissent, Justice Brown noted that no one disputed the reason the Danko defendants wanted their anti-SLAPP motion decided was as a predicate to a fee award. Justice Brown stated it was wasteful and inefficient to force the defendants to file a motion that would involve “cutting and pasting the arguments from their anti-SLAPP motions.” And this would repeat in the opposition and reply briefs. Why not, Justice Brown wants to know, just rule on the arguments already briefed?
Justice Brown acknowledged that her opinion supports unsympathetic appellants, who "demonstrated in the underlying lawsuit a willingness to push the boundaries of what they were legitimately entitled to recover.” But so long as the court is publishing the opinion, its holding will apply to deserving anti-SLAPP movants. And there “is a possibility,” Justice Brown warns, “for even greater unfairness in future cases.” Justice Brown posits “a scenario in which (1) a defendant files an anti-SLAPP motion; (2) the plaintiff promptly voluntarily dismisses, serves notice, and then opposes the motion; and (3) the motion is heard more than 60 days after the voluntary dismissal. In such a scenario, under the majority opinion's rule, a defendant who loses the gamble that the trial court will find the requested relief in an anti-SLAPP motion sufficiently clear to trigger a duty to rule on the merits will be completely deprived of the right to fees. The only way to avoid such unfairness would be for the defendant to file, before the trial court rules, a second set of papers, cutting and pasting its anti-SLAPP arguments in a largely redundant motion for fees. Competent counsel will in most cases choose the latter course, leading once more to duplicated work and increased costs for litigants.”
Justice Brown also responded to a point in the majority that seemed to me a non sequitur. The majority said that, by insisting on a ruling on their anti-SLAPP motion, the Danko defendants were seeking an “advisory opinion on whether [moving for fees] was a wise course.” The majority appeared to assume that, when the Danko defendants filed their fee motion, the trial court might have concluded their anti-SLAPP motion was frivolous (which is what the trial court telegraphed at a hearing), and then award the plaintiff its fees. But Justice Brown noted that this does not follow: “had the trial court believed the anti-SLAPP motions were frivolous, it could have so ruled, which then would have invited Catlin to file a motion for an award of a specific amount of fees. There was no need to require the Danko Appellants to file a second, redundant motion to force them to run this risk.”
Justice Brown does not address the majority’s point that a voluntary dismissal raises a jurisdictional limitation to the trial court’s authority to decide anti-SLAPP motions that do not also seek fees. Despite the strength of Justice Brown’s other points in dissent, I think this is the strongest point in favor of the majority opinion. The fact that Justice Brown did not have a response to it tends to confirm that the majority opinion is, at least, technically correct. (Which, from the standpoint of appellate procedure, usually is the best kind of correct.)
Ultimately, what seems to me incongruous about the Catlin v. Danko rule — which requires anti-SLAPP movants to file a separate fee motion in the event the plaintiff voluntarily dismisses — is based on facts that disfavor the anti-SLAPP movant (because the anti-SLAPP motion was probably frivolous). This seems to me an odd way to develop case law interpreting a statute that is supposed to favor anti-SLAPP motions.
Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at www.CALPodcast.com, and publishes a newsletter of appellate tips for trial attorneys at www.tvalaw.com/articles. His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at email@example.com or (714) 641-1232.
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