Judge Serena R. Murillo, Case Number: 20STCV37401, Date: 2023-10-31 Tentative Ruling

Judge: Serena R. Murillo, Case: 20STCV37401, Date: 2023-10-31 Tentative Ruling

Case Number: 20STCV37401 Hearing Date: October 31, 2023 Dept: 31

TENTATIVE

Plaintiff’s motion for attorney fees is DENIED.

Legal Standard

Pursuant to CCP 425.16(c)(1), with respect to a prevailing plaintiff: “If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award reasonable attorney’s fees to a plaintiff prevailing on the motion pursuant to Section 128.5.” (Id.) Under CCP § 128.5, a trial court may award attorney’s fees “[i]ncurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” An Anti-SLAPP motion is “frivolous” when it is “totally and completely without merit” and any reasonable attorney would agree that the motion is devoid of merit. (See Moore v. Shaw (2004) 116 Cal.App.4th 182, 199.) This is an objective standard.

“Whether the sole purpose of the motion is to harass an opposing party or the motion is solely intended to cause unnecessary delay, in contrast, concerns the subjective motivation of the moving defendant.” (Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 684, citing Wallis v. PHL Associates, Inc. (2008) 168 Cal.App.4th 882, 893; Campbell v. Cal-Gard Surety Services, Inc. (1998) 62 Cal.App.4th 563, 574.)

Discussion

Plaintiff moves for attorney fees, arguing he is the prevailing party on the Anti-SLAPP Motion. Plaintiff argues that Defendants’ anti-SLAPP motion was frivolous and intended to cause delay.

On April 5, 2021, this Court granted Defendants’ anti-SLAPP motion and dismissed Plaintiff’s complaint with prejudice. As relevant here, the Court found that Plaintiff failed to carry his burden establishing a probability of success on the merits as to his causes of action for slander, libel, and violation of Penal Code section 115.2, specifically as to the issues of actual malice and actual knowledge of falsity. The court noted that actual malice is a subjective test “under which the defendant’s actual belief concerning the truthfulness of the publication is the crucial issue.” (Reader's Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 257.) The Court found that Plaintiff failed to provide clear and convincing evidence that Defendants knew their statements were false or that they entertained serious doubt as to the statements’ truth. In making her statements, Defendant Waters relied on the statements in a federal court case, where in the background section of the decision, the first sentence stated Plaintiff was dishonorably discharged, as well as her subjective beliefs about Plaintiff’s integrity and veracity, founded upon Waters’ knowledge of Plaintiff’s past conduct. While Plaintiff relied on the fact that he had showed Waters the image of his alleged Form DD-214 (exh. A to Compl.), which stated he was discharged under honorable conditions, as proof of actual malice, and Defendants’ knowledge of the falsity of their statements, the Court found that Waters’ declaration makes clear that Waters believed that she had reason to doubt the “evidence” provided by Plaintiff and instead relied on what she deemed to be a more reliable source, the federal court case, that stated Plaintiff’s discharge was “dishonorable.” (4/5/21 Minute Order.)

Plaintiff appealed and the Court of Appeal reversed and remanded, finding it was error to grant Defendants’ anti-SLAPP motion. The Court of Appeal found that because Plaintiff showed Defendant the document that he was discharged under honorable conditions, Defendant could have easily checked its authenticity, but she did not. This fact could suggest willful blindness. The Court of Appeal thus held that the preliminary posture of the case required the Court to accept Plaintiff’s evidence as true. Plaintiff’s evidence created a possible inference of Defendant Waters’ willful blindness, which is probative of actual malice. (8/14/23 Remittitur.)

The fact that the Court of Appeal reversed this Court’s past order granting the anti-SLAPP motion does not show the anti-SLAPP motion was frivolous. The Court of Appeal reasoned that “the preliminary posture of the case required the Court to accept Plaintiff’s evidence as true, and that Plaintiff’s evidence created a possible inference of Defendant Waters’ willful blindness, which is probative of actual malice.” The appellate court further stated: “The trier of fact ultimately may draw other inferences more favorable to Waters and may reject Collins’s case lock, stock, and barrel. But Collins’s showing was enough to allow this litigation to go forward.” Thus, simply because Collins’ showing was enough does not make Waters’ motion frivolous, or totally without merit. After all, this Court believed the anti-SLAPP motion had merit and granted it, which shows a reasonable attorney could find it had merit. Further, Plaintiff did not dispute Defendant’s argument as to the first step of the anti-SLAPP motion -- whether his claims arose from protected activity -- and the Court of Appeal agreed they did.

The court of appeal also stated: “Major factual distinctions are possible between this suit and the three authorities [it relied on]. Central among them is the contrast between, on the one hand, the prestige and reliability of the federal district court decision on which Waters relied and, on the other hand, what Waters charged was Collins’s lack of veracity and ‘dishonorable character.’ So too could Waters’s phone call to Collins’s opposing counsel, as well as Collins’s statement about upgrading his discharge status, count as distinguishing positives for Waters. It is entirely possible that the trier of fact, later in this proceeding, will view all factors in Waters’s favor and fully accept her professed sincerity. Thus, a jury might find against Collins.”

This analysis by the Court of Appeal goes to show that Waters’ arguments had merit, and thus, that Waters’ anti-SLAPP motion, which depended on a showing of whether Plaintiff’s case had a probability of prevailing, was not frivolous.

Further, if “reasonable attorneys could have disagreed as to [the motion’s] merits…” and/or if there is “developing case law surrounding . . . complex issues presented in the [motion],” a fees request made by a party successfully opposing an anti-SLAPP motion must be denied. (Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 606.) The fact that the Court of Appeal certified its opinion for publication indicates that the law may not be clearly established, or the facts of this case are different from other authorities, among many other possibilities, all of which tend to show that Defendant’s motion was not frivolous. CRC Rule 8.1005 states: “An opinion of a Court of Appeal or a superior court appellate division-whether it affirms or reverses a trial court order or judgment-should be certified for publication in the Official Reports if the opinion:

(1) Establishes a new rule of law;

(2) Applies an existing rule of law to a set of facts significantly different from those stated in published opinions;

(3) Modifies, explains, or criticizes with reasons given, an existing rule of law;

(4) Advances a new interpretation, clarification, criticism, or construction of a provision of a constitution, statute, ordinance, or court rule;

(5) Addresses or creates an apparent conflict in the law;

(6) Involves a legal issue of continuing public interest;

(7) Makes a significant contribution to legal literature by reviewing either the development of a common law rule or the legislative or judicial history of a provision of a constitution, statute, or other written law;

(8) Invokes a previously overlooked rule of law, or reaffirms a principle of law not applied in a recently reported decision; or

(9) Is accompanied by a separate opinion concurring or dissenting on a legal issue, and publication of the majority and separate opinions would make a significant contribution to the development of the law.

Further, Defendant’s counsel argues that the Court of Appeal’s published decision is one of only a handful in which a court has found sufficient evidence of willful blindness to support a claim under the constitutional actual malice standard. (Reichert Decl. ¶ 7.)

As such, the Court cannot find that the anti-SLAPP motion was frivolous or brought to cause delay. Rather, it appears Defendants brought the motion due to its potential merit. Plaintiff has not shown that the motion was frivolous or brought to cause delay. Thus, the motion is denied.

Conclusion

Based on the foregoing, Plaintiff’s motion for attorney fees is DENIED.

Moving party is ordered to give notice.