Metropolitan News-Enterprise


Wednesday, October 28, 2009


Page 1


Appeals Court Vacates Ruling on Anti-SLAPP Motion

Trial Court Lacked Jurisdiction After Plaintiff Filed Dismissal, Panel Says




A trial judge may not rule on the merits of an anti-SLAPP motion if the plaintiff dismisses the case prior to trial and the procedural posture of the case is not such that the plaintiff will inevitably lose, the Court of Appeal for this district ruled yesterday.

Div. Three vacated an order by Los Angeles Superior Court Judge Tricia Bigelow—since elevated to the Court of Appeal—that denied an anti-SLAPP motion by attorney Melanie Yang, and ordered the suit against Yang by the Law Offices of Andrew L. Ellis dismissed without prejudice.

The lawsuit arose from a fee dispute among lawyers.

The Ellis firm claims that it had an agreement to represent Wei Zang, Yang’s office manager, in a lawsuit in which he was a defendant, and to substitute for Yang in five other cases. In return, Yang was to guarantee payment of Zang’s fees to the Ellis firm and share fees with the firm in the five other cases.

The Ellis firm further claims that Yang and Zang breached their agreement by refusing to pay fees for Ellis’s representation of Zang, despite success at trial, and by referring only four clients to the firm, and then interfered with Ellis’ representation of those clients by arranging for another attorney to take the cases.

Yang filed an anti-SLAPP motion, to which the Ellis firm did not file opposition. The day before a scheduled hearing in August 2007, however, the firm filed a voluntary dismissal, without prejudice, of its complaint.

Hugh Jeffrey Grant, representing Ellis at the hearing, said he had inadvertently failed to file opposition to the motion, and asked for a continuance in order to do so. Bigelow took the matter under submission and later granted the anti-SLAPP motion, striking the complaint and holding that the defendants were entitled to attorney fees.

The plaintiff responded with a motion for relief pursuant to Code of Civil Procedure Sec. 473, which the judge granted, denying the anti-SLAPP motion. Yang and Zang appealed.

Justice Richard Aldrich, writing for the Court of Appeal, noted that Code of Civil Procedure Sec. 581 allows a plaintiff to dismiss an action at any time “before the actual commencement of trial.”

The language, the justice elaborated, has been interpreted over the past decade to preclude a voluntary dismissal where there has been a dispositive ruling, an indication of the trial judge’s view of the merits, or a procedural turn that makes judgment for the defendant inevitable.

“Here, at the time plaintiff dismissed its complaint without prejudice, the trial court had not made a tentative or definitive ruling on defendants’ anti-SLAPP motion and it was not inevitable that the motion would be granted,” Aldrich wrote. “Even though plaintiff had not filed an opposition to defendants’ anti-SLAPP motion, defendants’ success was not guaranteed,” since the defendants still had the burden of showing that the suit arose from protected activity, he explained.

He distinguished cases cited by the trial judge, which held that the trial court retains jurisdiction to rule on an anti-SLAPP motion where the plaintiff requests dismissal or leave to amend after the judge has made a tentative decision to grant the motion.

In this case, Aldrich wrote, “trial had not ‘commenced,’ the dismissal filed by plaintiff was effective upon filing, and the trial court lacked the jurisdiction to rule on defendants’ anti-SLAPP motion.”

Attorneys on appeal were Jeffrey T. Bell for Yang and Zang, and Andrew L. Ellis and Mitchell J. Langberg for the Ellis firm.

The case is Law Offices of Andrew L. Ellis v. Yang, B205452.


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