California Defamation Law Blog : California Defamation Lawyer & Attorney : Adrianos Facchetti Law Firm : Los Angeles CA : Defamation Law Blog

California's anti-SLAPP statute (CCP § 425.16(c)) provides that a "prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs. The fee award is not discretionary--it is mandatory--and the fees can be very significant.

The purpose behind this rule is to discourage strategic lawsuits against public participation by imposing the litigation costs on the plaintiff.

In determining the amount of fees awardable to the prevailing defendant, the court will apply something called the "lodestar" approach. The lodestar is the number of hours reasonably expended multiplied by the reasonable hourly rate prevailing in the community for similar work. The court may take into consideration other facts in setting the lodestar, e.g., the complexity of the case, the skill of counsel in defending the case, the success achieved, and other such factors.

At the end of the day, it is important to understand that this area of law is highly specialized and that it requires experience. You will need an attorney who has experience arguing these types of motions in order to persuade the court of the reasonableness or the unreasonableness (depending on which side you're on) of the fees requested.

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The Author: Adrianos Facchetti is a Defamation Lawyer located in Los Angeles, California. He practices in the areas of defamation, slander, and libel law. He also has successfully brought and opposed anti-SLAPP motions on behalf of his clients.

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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.

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Last year a Los Angeles Superior Court judge told me and another lawyer that "litigation is the sport of kings." Another judge in the same courthouse told me it's not really worth it to go to trial unless you have at least $500,000.00 in damages.

Well, I guess they're right.

As if it wasn't enough that California lawmakers totally mismanaged our economy and have raised fees on everything from parking tickets to waste disposal fees, they have now raised filing fees almost 10%.

It now costs $350 to file a complaint or other first paper in an unlimited civil case (more than $25,000.00) and the same to file an answer or other first paper by a party other than the plaintiff.

This means the little guy or gal has less access to the courts and it isn't right.

To see the complete fee schedule for the Los Angeles Superior Court click here.

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