Wednesday, November 21, 2018
Page 1
Court of Appeal:
Judge Can’t Grant Anti-SLAPP Motion After Plaintiff Dismisses, Absent Fee Motion
By a MetNews Staff Writer
The Court of Appeal for this district has reversed an order granting an anti-SLAPP motion after the plaintiff had dismissed its complaint, holding that the trial court was, under the circumstances, powerless to act on the motion and award attorney fees.
“[I]n the absence of a pending motion for attorney’s fees set for hearing,” Justice Gail Feuer of Div. Seven said in an unpublished opinion filed Monday, “the trial court lacked jurisdiction to address the merits of the special motion to strike.”
The opinion directs the Los Angeles Superior Court to vacate its April 4, 2017 order granting fees to defendant Tool Masters but specifies that, on remand, the court is at liberty to grant them pursuant to a fee-motion.
Tool Masters filed its anti-SLAPP motion, pursuant to Code of Civil Procedure §425.16, on Sept. 2, 2016; plaintiff Ace Industrial Supply, Inc. lodged with the court a request for dismissal, without prejudice, on March 20, 2017; dismissal was entered eight days later; on April 14, 2017, then-Judge Teresa Sanchez-Gordon (now an arbitrator/mediator) granted the anti-SLAPP motion. She reasoned:
“When a plaintiff voluntarily dismisses an action while a special motion to strike is pending, the defendant is entitled to his costs and attorney fees for bringing the motion if he would have prevailed in the motion.”
Authority Cited
Sanchez-Gordon cited as authority the Court of Appeal’s 2002 in Pfeiffer Venice Properties v. Bernard. That decision was also rendered by this district’s Div. Seven, then differently constituted.
Justice Orville Armstrong (since deceased) wrote:
“[B]ecause a defendant who has been sued in violation of his or her free speech rights is entitled to an award of attorney fees, the trial court must, upon defendant’s motion for a fee award, rule on the merits of the SLAPP motion even if the matter has been dismissed prior to the hearing on that motion.”
The difference between that case and the present one, as well as other cases where post-dismissal anti-SLAPP motions have been declared to be authorized, is that the defendant there had moved for an award of attorney fees, Feuer said. She noted:
“Here, the trial court considered whether Tool Masters would prevail on its special motion to strike even though Tool Masters had been dismissed from the action, its counsel was not present at the April 4, 2017 hearing, and Tool Masters’ motion for attorney’s fees was not before the court at the time of the hearing. Rather, Tool Masters filed the motion the day of the hearing and set it for hearing on a future date—January 31, 2018.”
In a footnote, the jurist said:
“We do not consider the merits of Tool Masters’ special motion to strike because the trial court had no jurisdiction at the time of the hearing to adjudicate the merits of the motion. Although Ace urges us to reach the merits because the parties have briefed the merits on appeal, this is an issue for the trial court to consider in the first instance.”
The case is Ace Industrial Supply v. Tool Masters, B282989.
Jeffery J. Daar and Michael R. Newman of the Woodland Hills firm of Daar & Newman represented Ace and Escondido lawyer M. David Meagher and Torrance practitioner Katherine H. Donahue acted for Tool Masters.
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