Metropolitan News-Enterprise


Thursday, August 15, 2002


Page 1


Dismissal of Suit on Other Grounds Did Not Preclude Fee Award Under Anti-SLAPP Law, C.A. Rules


By a MetNews Staff Writer


Defendants who filed a timely motion to strike a strategic lawsuit against public participation, in a suit that was dismissed on other grounds, may be awarded attorney fees under the anti-SLAPP law, the Court of Appeal for this district ruled yesterday.

Div. Five reversed Los Angeles Superior Court Judge Gregory C. O’Brien’s order denying fees to tenants of Venice’s Lincoln Place apartment complex. O’Brien ruled that he lacked jurisdiction to award fees to the defendants under Code of Civil Procedure Sec. 425.16 because he had previously dismissed their landlord’s suit as “de minimis.”

The landlord, Pfeiffer Venice Properties, sued 12 tenants and the tenants’ association in September 2000, accusing them of vandalism, among other things. The tenants alleged in their anti-SLAPP motion that the landlord was actually suing in retaliation for the defendants’ insistence that Pfeiffer Venice follow “a legal process” in its effort to persuade the tenants to vacate their parking spaces for purposes of construction.

In an order explaining the dismissal, O’Brien said the case was “extraordinary” because “a large landlord has, in the court’s view, improperly asserted the general jurisdictional power of the Superior Court for the purpose of intimidating [defendants] from exercising their rights to organize and lead a tenant organization.”

The judge continued:

“While the first amended complaint is allegedly directed at extremely petty vandalism, rather than speech per se, the suit is a transparent device obviously brought for the purposes of political intimidation, rather than for the proper redress of a slight grievance.”

O’Brien invited the defendants to move for attorney fees, but eventually denied the motion. In doing so, he cited Hon v. Marshall, (1997) 53 Cal.App.4th 470, a Fair Employment and Housing Act case in which the court said there was a “disinclination” to award fees to a defendant where the plaintiff lost on a jurisdictional issue rather than on the merits.

But Justice Orville Armstrong, writing for Div. Five, said that case was “at best, remotely relevant to the issue before us.”

He noted that awards to prevailing defendants in FEHA cases are discretionary, while awards to defendants who prevail under the anti-SLAPP law are mandatory. “More importantly,” Armstrong explained, “the Hon decision was based on the ‘firmly entrenched policy disfavoring attorney fee awards to prevailing defendants’ in civil rights cases…while the SLAPP statute embodies a legislative determination favoring, and indeed, mandating, the award of attorney fees to prevailing defendants in SLAPP suits.”

The justice cited Court of Appeal decisions holding that Sec. 425.16 authorizes attorney fee awards in cases where the plaintiff voluntarily dismissed an action with a SLAPP motion pending.

“[W]e hold that defendants were entitled to a ruling on the merits of their SLAPP motion, the result of which will necessarily determine their right to attorney fees under section 425.16, subdivision (c),” Armstrong said.

Attorneys on appeal were Daniel P. Tokaji, Mark Rosenbaum; David Etezadi, and Edward I. Sands of the ACLU Foundation of Southern California for the tenants and Irell & Manella’s Gregory R. Smith, Allan J. Abshez, and Andrew K. Fogg for the landlord.

The case is Pfeiffer Venice Properties v. Bernard, B152966.


Copyright 2002, Metropolitan News Company