Filed 2/5/99
CERTIFIED FOR PUBLICATION
NO CHANGE IN JUDGMENT
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
|
DEBORAH MOORE,
Plaintiff and Appellant,
v.
HONG LIU,
Defendant and Respondent.
|
B116425
ORDER MODIFYING OPINION |
THE COURT:
It is ordered that the opinion filed herein on January 29, 1999, be modified in the following particulars:
1. On page 9, second paragraph, line 1, insert the words "on this point" at the end of the first sentence, so that line 1 reads as follows:
We respectfully disagree with Coltrain’s reasoning
on this point. To begin with, if the plaintiff
2. On page 10, after the first full paragraph and before the heading "3. Moore Was Not Entitled to Attorney’s Fees Under Sections 1032 and 1033.5" insert the following two paragraphs:
Therefore, 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. An award of these expenses under section 425.16 is only justified when a defendant demonstrates that plaintiff’s action falls within the provisions of subdivision (b) and the plaintiff is unable to establish a reasonable probability of success. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 653-655.) Until a court determines that these circumstances exist, a moving defendant is not entitled to its fees and costs under section 425.16. If such a judicial determination were not first required, and a fair procedural opportunity to obtain it allowed, then a plaintiff’s voluntary dismissal of the action could have the effect of (1) depriving a true SLAPP defendant of statutorily authorized fees or (2) entitling a defendant to such relief in a non-SLAPP action which was dismissed by the plaintiff for entirely legitimate reasons. In both situations, the purpose of the statute’s remedial provisions would be frustrated.
Thus, we do agree with the Coltrain court’s conclusion that a plaintiff’s voluntary dismissal of a suit, after a section 425.16 motion to strike 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 Coltrain court observed that if the former result were true, "SLAPP plaintiffs could achieve 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. [¶] On the other hand, these policies likewise do not support [the argument] that a voluntary dismissal while a special motion to strike is pending should automatically entitle a defendant to attorney’s fees. At that point, there has been no judicial determination that the action is in fact a SLAPP suit." (Coltrain, supra, 66 Cal.App.4th at pp. 106-107, italics omitted.)
3. On page 12, after the heading "4. It Is Yet to Be Determined Whether Moore Is Entitled to Attorney’s Fees for Prevailing in This Appeal" on line 2 change "(1996)" to
", supra," and on line 3 change "628," to "at pp." so that lines 2 and 3 read as follows:
prevailing in this appeal. Moore cites Church of Scientology v. Wollersheim, supra, 42 Cal.App.4th at pp. 659-660 to support her position. However, that case is distinguishable
There is no change in the judgment.
CERTIFIED FOR PUBLICATION