Case Number: BC664530 Hearing Date: March 14, 2018 Dept: 46

Case Number: BC664530
CHRISTINA GARNER VS SHANA RAYWOOD ET AL

Filing Date: 06/08/2017
Case Type: Defamation (Slander/Libel)

03/14/2018
Motion-Anti-SLAPP
NOTICE OF TENTATIVE RULING AND PROCEDURE
FOR SUBMISSION WITHOUT HEARING

The parties may submit to the tentative ruling without appearing for the hearing if you follow these instructions: (1) If ALL PARTIES (except if no other parties have appeared, only Plaintiff) have read the tentative ruling and ALL PARTIES agree and submit to the tentative ruling, then court appearances may be waived. The matter will remain on calendar and the tentative ruling will be adopted as the FINAL RULING and entered on the date of the hearing; (2) If ALL PARTIES SUBMIT, the Court directs ONE PARTY REPRESENTATIVE to send an email to smcdept46@lacourt.org, at least one day prior to the hearing date, to advise the Court that ALL PARTIES SUBMIT, also STATING WHICH PARTY WILL GIVE NOTICE, or if NOTICE IS WAIVED; (3) Please refrain from sending individual emails to smcdept46@lacourt.org with a request to modify the tentative ruling or indicate one party submits but waiting to hear from the other side, as these emails will not be considered. ALL PARTIES must appear in Court. Needless to say, if parties do not submit, there is NO NEED to contact the Court. The Court expects to see you on the date of the hearing; (4) If there is a signed Order or Judgment, and you have provided an extra copy to be conformed and an attorney service return slip, this will be available for pick up in Dept. 46 attorney service pick-up box the next business day.

TENTATIVE RULING

Motion is continued to 6/18/2018 at 8:30 a.m. in Dept. 46. The moving party was dismissed from the action, but this dismissal does not deprive the court of jurisdiction to determine a motion for fees and costs. Since the motion for fees and costs necessarily requires the court to make a finding as to the merits of the Anti-SLAPP motion, the court elects to continue the matter so that the determination will not have to be made on multiple motions.

DISCUSSION

Cross-Defendant (“X-D”) Hiatt filed his motion on 2/16/18. On 2/26/18, this court granted the second sequential motion to quash filed by an out-of-state X-D. The very next day, 2/27/18, Defendant Cross-Complainants (“D/X-Cs”) voluntarily dismissed every X-D from the Cross-Complaint, with the sole exception of Plaintiff/X-D.

Ordinarily, a voluntary dismissal would immediately deprive this court of jurisdiction (except as to fees and costs) and moot any motions previously filed by the dismissed parties. Bank of America, N.A. v. Mitchell (2012) 204 C.A.4th 1199, 1209; Paniagua v. Orange County Fire Auth. (2007) 149 C.A.4th 83, 89. However, in the Anti-SLAPP context, this is not precisely the case. It is settled law in this state that where a plaintiff voluntarily dismisses an action after a defendant files an anti-SLAPP motion, the defendant retains his statutory entitlement to an award of fees and costs. S.B. Beach Properties v. Berti (2006) 39 C.4th 374, 381 & fn.2 (collecting cases).

This rule prevents a SLAPP plaintiff from “achiev[ing] most of their objective with little risk–by filing a SLAPP suit, forcing the defendant to incur the effort and expense of preparing a special motion to strike, then dismissing the action without prejudice. The specter of the action being refiled (at least until the statute of limitations had run) would continue to have a significant chilling effect on the defendant’s exercise of its First Amendment rights. At that point, the plaintiff would have accomplished all the wrongdoing that triggers the defendant’s eligibility for attorney’s fees, but the defendant would be cheated of redress.” Moore v. Liu (1999) 69 C.A.4th 745, 753 (quoting Coltrain v. Shewalter (1998) 66 C.A.4th 94, 106-107).

There is a split of authority concerning the necessary predicates for an award of fees and costs in this situation that requires this court, rather than simply take this motion off-calendar, to make a determination of how to proceed. Kyle v. Carmon (1999) 71 C.A.4th 901, 917-918 (describing split); Auto Equity Sales, Inc. v. Superior Court of Santa Clara County (1962) 57 C.2d 450, 456 (where there is a split of authority, trial court has a duty to choose one side or the other). In Coltrain, supra, 66 C.A.4th at 107, the Fourth District, Division Two of the Court of Appeal held that a voluntary dismissal after the filing of an anti-SLAPP motion gave rise to a presumption that the defendant was the prevailing party. Plaintiff could rebut that presumption by presenting evidence that “it actually dismissed because it had substantially achieved its goals through a settlement or other means, because the defendant was insolvent, or for other reasons unrelated to the probability of success on the merits.” Id. In Moore, supra, 69 C.A.4th at 752-753, the Second District, Division Three of the Court of Appeal held that “the trial court’s adjudication of the merits of a defendant’s motion to strike is an essential predicate to ruling on the defendant’s request for an award of fees and costs.”

Moore offers the better rule. Coltrain’s partial decoupling of the standard for fees from the standard for prevailing on the motion, essentially eliminating the first prong of the anti-SLAPP test from its analysis, creates the potential for departure from the purpose of the anti-SLAPP statute. As Moore noted, if a plaintiff could show that dismissal was for reasons unrelated to success on the merits, a true SLAPP defendant might be deprived of statutorily mandated fees; the fact that plaintiff dismissed for reasons unrelated to success on the merits is no proof that plaintiff actually had a good case. Moore, supra, 69 C.A.4th at 752-753. Likewise, unless the full SLAPP analysis is conducted, a defendant might recover fees in a non-SLAPP suit. Id.

The two other appellate panels to consider the split have sided with Moore. In Pfeiffer Venice Properties v. Bernard (2002) 101 C.A.4th 211, 217-219, Division 5 of the Second District Court of Appeal held that Section 425.16 did not entitle a party to fees and costs simply for prevailing on the case; it entitled the party to fees and costs for being sued in violation of free speech rights, and the only way to determine if that had happened was to rule on the merits of the motion. In Tourgeman v. Nelson & Kennard (2014) 222 C.A.4th 1447, 1456-58, Division 1 of the Fourth District Court of Appeal held that the plain statutory language awards fees and costs to the prevailing defendant on the motion rather than the case, so the only way to award fees and costs is to determine who would have prevailed on the motion, and the only way to do that is to actually determine the merits of the motion.

Therefore, in order to rule on any motion for fees or memorandum of costs, this court must rule on the merits of the motion. A continuance best addresses various procedural issues created by this fact. First, the above discussion and ruling prevents the parties from wasting needless effort arguing over proper procedure, and ensures that any subsequent motion can be decided on the merits on the first attempt, rather than racking up fees refiling papers after a denial without prejudice. Second, D/X-Cs have not opposed the motion on its merits and they must be afforded a fair opportunity to do so. Third, this prevents the necessity and expense of X-D Hiatt re-compiling the same evidence and arguments, and the confusion of having them wrapped up in future motion practice.

For all the reasons set forth, X-D Hiatt’s motion is continued to 6/18/2018 at 8:30 a.m. If X-D Hiatt wishes to file a motion for fees, he must do so within 60 days of the current hearing date (i.e. by 5/14/18), and pay the requisite filing fee. CRC Rule 3.1702(b). If X-D Hiatt wishes to claim costs, he must file his memorandum of costs within 15 days of the current hearing date (i.e. by 3/29/18). CRC Rule 3.1700(a)(1) & (b)(3). If X-D Hiatt fails to file a motion for fees or a memorandum of costs by the given dates, the instant motion will be taken off-calendar. D/X-Cs retain their right to file a motion to tax costs for reasons unrelated to the merits of the anti-SLAPP motion. If either a motion for fees or a motion to tax costs is filed, D/X-Cs may file a separate opposition to the instant motion, and X-D Hiatt may file a separate reply.

IT IS SO ORDERED:

___________________________
Frederick C. Shaller, Judge