Even with a Dismissal, No SLAPP, No Fee.

Tourgeman v. Nelson & Kennard, No. D063473 (D4d1 Jan. 16, 2014)

Plaintiff filed a class action to enjoin some allegedly unlawful debt collection practices under the Unfair Competition Law. Defendant responded by filing an anti-SLAPP motion. After plaintiff dismissed before the motion could be ruled on, defendant sought and obtained an award of attorneys’ fees. On appeal, noting a split of authority on the issue, the court holds that in deciding whether to award fees to a defendant whose anti-SLAPP motion is met with a dismissal, the court must determine whether the defendant would have prevailed on its motion before fees can be awarded. (Other courts have held that the dismissal is essentially a concession that the case is a SLAPP and thus that the court has the discretion to award fees without analyzing the underlying merits of the motion.) Here, even though he dismissed, plaintiff could show that his lawsuit was subject to the public interest exception to the anti-SLAPP statute provided in Code of Civil Procedure § 425.17. Because the motion could not have prevailed even if plaintiff hadn’t dismissed, the fee award was in error.

Reversed.