Metropolitan News-Enterprise


Thursday, October 28, 2004


Page 1


S.C. to Decide if Anti-SLAPP Fees Can Be Awarded After Dismissal


By Kenneth Ofgang, Staff Writer/Appellate Courts


The California Supreme Court yesterday agreed to decide whether attorney fees may be awarded to a defendant who filed a motion to strike under the anti-SLAPP statute after the plaintiff voluntarily dismissed the action.

The justices, at their weekly conference in San Francisco, unanimously granted review of the July 22 ruling of this district’s Court of Appeal, Div. Six, in S.B. Beach Properties v. Berti , B168950.

The ruling resulted from a suit by the general partners in a land development partnership. They sued one of their limited partners, Richard Berti, for breach of contract, breach of fiduciary duty, and bad faith after he openly opposed a plan to develop partnership property on State Street in Santa Barbara.

Berti brought an ex parte motion to permit the filing of a lengthy brief in support of an anti-SLAPP motion. The plaintiffs then filed a voluntarily dismissal. 

The day after the dismissal, Berti filed his anti-SLAPP motion, but the clerk would not accept it for filing because the case has been dismissed. Berti then filed a motion for attorney fees, but Santa Barbara Superior Court Judge Thomas P. Anderle ruled the court lacked jurisdiction to decide the motion because of the dismissal.

The Court of Appeal reversed in an opinion by Presiding Justice Arthur Gilbert.

The trial judge’s reading, Gilbert explained, is inconsistent with the purposes of the statute.

“The filing and service of a complaint demanding substantial damages can inhibit participation in matters of public significance,” the justice wrote.

“Once served, the typical defendant must seek counsel to represent him.  Counsel will no doubt inform him of the substantial fees and costs involved in defending the action.  Visions of financial loss and public mortification may loom like a horrific specter before defendant’s eyes.  The likelihood of answering mind-numbing interrogatories, and enduring wearisome hours of contentious depositions can leave the most stalwart defendant dispirited.  And this is just the prelude to the trial.”

Gilbert continued:

“But even if the complaint is dismissed relatively soon after service, the defendant is unlikely to forget the trauma.  He will be reluctant to participate further in the public debate, and his example may deter others from participating.  The purpose of the anti-SLAPP statute will not be achieved if an offending plaintiff can avoid sanctions simply by dismissing his complaint before the defendant files his motion.”

The jurist cited two prior Court of Appeal decisions holding that attorney fees may be awarded where the complaint is dismissed after the anti-SLAPP motion has been filed. He rejected the plaintiffs’ argument that extending the ruling to cases where the complaint is dismissed before the motion is filed will encourage the filing of frivolous motions.

The anti-SLAPP statute authorizes sanctions for frivolous motions, Gilbert noted.

In other conference action, the high court ordered publication of the May 3 opinion of this district’s Court of Appeal in Williams v. FreedomCard, Inc., B162880. Div. Two affirmed Los Angeles Superior Court Judge Allan Goodman’s ruling that an employer—as well as an individual found vicarious liable—had waived the right to appeal a labor commissioner’s award of unpaid wages by not posting a surety bond or filing proof of indigency.

Presiding Justice Roger Boren wrote the opinion.


Copyright 2004, Metropolitan News Company