The mere threat of an anti-SLAPP motion (or serving the motion on the other party) may be sufficient to cause them to dismiss the suit before a hearing on the merits. Under those circumstances, are there consequences for the dismissing party?
The court in Moore faced this issue and presented it clearly:
"This appeal addresses the question whether the plaintiff in a SLAPP suite (a Strategic Lawsuit Against Public Participation) can, by the device of dismissing the SLAPP prior to a hearing on the defendant’s motion to strike the complaint, avoid paying the attorney’s fees incurred by the defendant in defending the suit."
Defendant filed a cross-complaint and then Plaintiff filed an anti-SLAPP motion. Defendant dismissed its cross-complaint before the hearing on the motion to strike. Plaintiff made a motion to recover its attorneys’ fees and the trial court denied Plaintiff’s request because it could not be said that Plaintiff was the "prevailing party" under section 425.16(c) since there was no hearing on the matter.
Plaintiff appealed the ruling and the Court of Appeal reversed and remanded.
Moore held that appellant had the right to have his anti-SLAPP motion heard even though the cross-complaint had been dismissed prior to the hearing. It looked to the stated purpose of the anti-SLAPP, which is to give financial relief to a victim of a SLAPP suit and punish a person who files such a suit. It reasoned, correctly in my view, that allowing a person to file a SLAPP suit and then withdraw it prior to a hearing would frustrate the purpose of the statute.
This does not mean that a person who files an anti-SLAPP motion in this scenario would be automatically entitled to attorney’s fees. The court would have to determine the merits of the motion.
" . . . a plaintiff’s voluntary dismissal of a suit, after a section 425.16 motion has been filed, neither automatically precludes a court from awarding a defendant attorney’s fees and costs under that section, nor automatically requires such an award."
The moral of this story: Make sure your suit is solid before you file it if it appears that it may be subject to an anti-SLAPP motion.