Procedural Posture

Plaintiffs, a limited partnership and its general partners, appealed a judgment of the Court of Appeal of California, Second Appellate District, Division Six, which reversed a trial court’s order that denied defendant limited partners’ motion for attorney fees and costs under Code Civ. Proc., §§ 425.16, subd. (c), and 1033.5, subd. (a)(10). Plaintiffs had sued defendants for, inter alia, breach of fiduciary duty and breach of contract.

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Defendants asserted as an affirmative defense that the complaint was a strategic lawsuit against public participation (SLAPP), subject to § 425.16. Plaintiffs voluntarily dismissed their action under Code Civ. Proc., § 581, before defendants filed a special motion to strike (anti-SLAPP motion) under § 425.16. The court held that defendants who failed to file an anti-SLAPP motion before the voluntary dismissal of all causes of actions against them could not recover fees or costs under § 425.16, subd. (c). Under § 425.16, subd. (c), only a prevailing defendant on a special motion to strike could recover attorney fees and costs. The statutory language was unambiguous, and made the filing of a viable anti-SLAPP motion a prerequisite to recovering any fees and costs. As a matter of logic, a defendant had to file a special motion to strike in order to prevail on one. Permitting defendants to recover attorney fees and costs without filing a viable anti-SLAPP motion would only prolong and likely increase the overall costs of SLAPP litigation. Because defendants failed to file an anti-SLAPP motion before plaintiffs’ voluntary dismissal, they could not recover attorney fees and costs.


The court reversed the judgment of the court of appeal and remanded with instructions that the matter be returned to the trial court for reinstatement of its previous order denying the award of attorney fees and costs.

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