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Frivolous SLAPP Motions, and a Split of Authority on Costs Following Voluntary Dismissals

Tim Kowal     December 3, 2020

A recent unpublished decision sets up three good lessons: (1) SLAPPing based on plaintiff's subjective intent to chill protected conduct is meritless and sanctionable; (2) but sanctions are not available on appeal unless sought in a separate motion; and (3) whether a defendant may recover costs against a plaintiff who voluntarily dismisses claims may depend on which appellate district you are in.

In Lang v. Petaluma Hills Farm, LLC (D1d5 Nov. 20, 2020) A156614, neighbors sued other neighbors running a cannabis farm as a tourist attraction, for nuisance and operating without licenses. The cannabis farms responded with an anti-SLAPP motion, arguing the plaintiff's subjective intent in filing suit was to oppose the farms' permit application. The motion was denied as frivolous, because "it is well-established that [subjective] intent is irrelevant."

The defendant farms narrowly avoided appellate sanctions, which the Court of Appeal denied because the request was not made in a separate motion as required by CRC 8.276(b)(1). Had plaintiffs filed a separate motion, they might have recovered their fees on appeal.

Then there is a curious ruling at the end of the opinion. Three plaintiffs had decided to voluntarily dismiss their claims, so defendants sought their costs against those plaintiffs. But the trial court struck defendants' cost memo "without prejudice" to seeking them "at the end of the litigation." The First District affirmed this ruling, holding that, as it was without prejudice, it was not a final ruling, and thus the defendants would have to wait until there was a "final judgment" to seek costs against the dismissed plaintiffs.

This strikes me as obviously incorrect. When the clerk entered those plaintiffs' requests for dismissal, those claims were finished: there was nothing left to be adjudicated concerning those plaintiffs. Defendants were entitled to seek their costs against those plaintiffs now. (The "final" component in the Final Judgment Rule applies on a party-by-party basis, asking whether all claims against that party have been adjudicated.) So the Court of Appeal should have reviewed the denial of costs against the dismissed plaintiffs on the merits.

In fact, by the time the case is resolved, the time to seek costs against those plaintiffs -- having dismissed their claims many months or years ago by that time -- will have expired. (I may write more about this later: the cases are convoluted in their treatment of the appealability of voluntary dismissals.)

Apparently, there is a split of authority on this question as it concerns the appealability of cost awards, with the Second District, Division Three, holding orders following a dismissal without prejudice are not appealable, and the Fourth District, Division Three, holding they are appealable. The Second Division of the Fourth District followed the Third Division in the 2018 opinion in Gassner v. Stasa (D4d3 Dec. 17, 2018) E068058, at *8, agreeing that “the law has taken a wrong turn” and that “[c]ommon sense dictates that we forego a hypertechnical interpretation of [Code of Civil Procedure] section 904.1 that would leave the [defendants] without the right to appeal despite an adverse judicial ruling ending the action and their right to seek attorney fees."

In Lang, however, given the trial court granted plaintiff's preliminary injunction, it appears unlikely the defendants will ultimately prevail. But if you represent a defendant against multiple plaintiffs and certain plaintiffs voluntarily dismiss their claims, and if you are not in the Fourth Appellate District, you may have to get creative to preserve your right to recover costs.

Tim Kowal is an appellate specialist certified by the California State Bar Board of Legal Specialization. Tim helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at CALpodcast.com, and publishes summaries of cases and appellate tips for trial attorneys. Contact Tim at [email protected] or (949) 676-9989.
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