Metropolitan News-Enterprise


Thursday, January 13, 2022


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Court of Appeal:

No Need to Rule on Anti-SLAPP Motion in Dismissed Case As Prelude to Fee Request


By a MetNews Staff Writer


Div. Four of the First District Court of Appeal has held, over a partial dissent, that where defendants filed anti-SLAPP motions and the plaintiff dismissed the complaint before a hearing on those motions, the defendants were not entitled to a ruling on them as a “predicate” to the filing of separate motions for attorney fees.

Acting Presiding Justice Jon B. Streeter authored Tuesday’s majority opinion, in which San Francisco Superior Court Judge Jeffrey S. Ross, sitting on assignment, joined. Justice Tracie L. Brown expressed a differing view.

The plaintiff in the case was Catlin Insurance Company, Inc. which alleged that it inadvertently made double payment on a claim by a client of attorney Michael S. Danko and the Redwood City firm of Danko Meredith. It wanted a refund of one of the payments, which Danko refused to provide, contending that a settlement barred future claims.

Danko and his firm filed anti-SLAPP motions, prompting Catlin to dismiss its complaint on Jan. 17, 2020. It served a notice of dismissal a few days later.

Trial Court Ruling

On March 13, 2020, Danko asked San Mateo Superior Court Judge Nancy Fineman to rule on the anti-SLAPP motions, explaining that if they were granted, he would seek fees by a separate motion. The judge declined to follow a two-hearing procedure, instructing:

“I’m saying if you want me to consider the attorneys’ fees, bring it all together as one motion.”

Rather than bringing a motion for fees, with the merits of the anti-SLAPP motion being considered in connection with the fee application, Danko and the firm appealed from the March 13, 2020 order, which read:

“The special motion to strike is MOOT.”

Streeter’s Opinion

In his opinion affirmance the order, Streeter explained:

“After Catlin’s voluntary dismissal, the request to decide the anti-SLAPP motion was moot; the trial court could not strike a complaint that Catlin had already voluntarily dismissed….The trial court was also justified in declining to rule on the Danko Appellants’ anti-SLAPP motion for the purposes of establishing entitlement to a request for fees, as no such request had yet been made. To conclude otherwise would require the court to have issued an advisory opinion.”

He differentiated between the anti-SLAPP motion being “moot” while the request for attorney fees was “unripe” because no motion for the fees had been made.

The jurist elaborated that the defendants could have moved for attorney fees in tandem with their anti-SLAPP motion, by a separate postjudgment motion for fees filed within 60 days of service of the notice of dismissal—with the dismissal, Streeter noted, constituting the judgment—or by a cost memorandum filed within 15 days of the notice of dismissal.

Rather than the defendants making a motion for attorney fees, as Fineman suggested, Streeter said, they “stubbornly stuck to their position that she had a duty to rule without a pending motion.”

Catlin argued that the court had no jurisdiction over the appeal, one of its bases being that the defendants purported to appeal from the March 13 order rather than a June 5 judgment Fineman signed. Streeter said that when the request to dismiss was filed on Jan. 17, 2020, “the dismissal was immediately effective upon the tender of the request to the clerk,” and Fineman “had no authority and no reason to enter a judgment of dismissal months later, so that judgment was void.”

Brown’s View

Brown agreed with the majority that the court had jurisdiction over the appeal, but disagreed that Fineman properly declined to rule on March 13, saying:

“…I disagree with the majority opinion that the Danko Appellants did not request a ruling on their entitlement to fees….The majority opinion asserts that the sole request in the Danko Appellants’ anti-SLAPP motions was for an order striking the complaint….But the motions also addressed the issue of fees, stating that the Danko Appellants would file separate motions for attorney fees following the grant of their motions….

“In my view, the most reasonable interpretation of the statutory scheme and the moving papers is that the Danko Appellants intended their anti-SLAPP motions to establish their entitlement to fees, with an eye toward subsequent motions that would establish the amount of the fees award.”

Streeter’s Footnotes

Streeter responded in a footnote:

“The idea that a motion for recovery of attorney fees may be deemed filed along with an anti-SLAPP motion, even though the movant fails to comply with the formal requisites for filing a motion addressing fees, is inconsistent with the procedural scheme established by the California Rules of Court for recovery of attorney fees by motion.”

In another footnote, Streeter related that Catlin refiled the case in the U.S. District Court for the Northern District of California and Judge Haywood S. Gilliam Jr. denied the law firm’s anti-SLAPP motion and granted in part and denied in part its motion to dismiss. He quoted Gilliam as saying:

“The Court notes that the [Danko Meredith Firm] does not appear to dispute that it received the inadvertent double-dip settlement payment, but advances a theory apparently premised in significant part on the venerable legal principle of ‘finders, keepers.’ The Court urges the parties to consider whether they can resolve this matter between themselves without further litigation.”

Streeter commented:

Judge Fineman made a similar comment at the March 13, 2020 hearing in this case. The continued pursuit of these appeals indicates that these observations apparently went unheeded, no doubt because the prospect of fee recovery remained an obstacle to amicable resolution. Hopefully, that will change.”

The case is Catlin Insurance Co. v. Danko Meredith Law Firm, 2022 S.O.S. 86.


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