California Judges Ignoring Law to Water Down Anti-SLAPP Rule

California’s attempts to discourage strategic lawsuits against public participation—or anti-SLAPP rules—are getting watered down by judges shielding indigent litigants who fail in their claims.

A key feature built into the 1992 statute is its mandatory fee-shifting provision, which mandates that defendants who prevail on their special motion to strike get to recover their costs and attorneys’ fees from plaintiffs. This feature is meant to deter plaintiffs from bringing frivolous lawsuits and allow defendants to end meritless lawsuits at the early stages of litigation while avoiding significant defense costs.

The award of costs and attorneys’ fees to successful defendants aims to make defendants whole. However, recent decisions have shown the limitations of the anti-SLAPP’s fee-shifting provision when losing plaintiffs contend they’re indigent and can’t pay.

Despite having no explicit basis in the law, California courts have been considering a plaintiff’s financial circumstances and substantially reducing the amount of attorneys’ fee awards losing plaintiffs are required to pay.

As a practical matter in those cases, indigent plaintiffs may be immunized from the monetary deterrent feature of the anti-SLAPP statute. Likewise, successful defendants are penalized, as they’re precluded from recovering full reimbursement of the fees and costs they expended to defend against unmeritorious claims.

Decisions Derailing Deterrence

California’s anti-SLAPP statute mandates that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorneys’ fees and costs.” As written by the state’s legislature, the plain text of the anti-SLAPP statute makes no exception for allegedly indigent plaintiffs.

Similarly, the lodestar method, which is how California courts calculate attorney fee awards, also doesn’t consider a plaintiff’s financial circumstances. Rather, the court begins with the lodestar— the number of hours reasonably expended multiplied by the reasonable hourly rate—then adjusts the lodestar figure based on the type of litigation and the work involved, the skilled legal training and ability in trying the case, the time consumed, among other factors.

Nothing in the opinions that offer guidelines—two of which come from the California Supreme Court—even suggests the court is to consider the losing party’s indigence.

The absence of a consideration regarding a plaintiff’s ability to pay makes sense. Otherwise, if plaintiffs could avoid paying fees merely by claiming indigency, and indigent plaintiffs could file unmeritorious lawsuits or SLAPP claims with impunity.

While at least one California trial court has found that losing plaintiffs paying zero attorney fees is inconsistent with the anti-SLAPP statute, other courts in California have slashed anti-SLAPP fee awards for indigent plaintiffs. Notably, however, these decisions reducing fee awards have all relied on cases applying discretionary fee statutes or statutes other than the anti-SLAPP statute.

To date, no California appellate court has determined that a plaintiff’s indigency is an appropriate consideration when calculating a fee award under the anti-SLAPP statute.

These recent decisions also seem to base their reasoning on the principle that any fees awarded must be “reasonable.” However, the plain text of the fee-shifting provision of the anti-SLAPP statute is unique. In contrast to many other statutes with mandatory fee-shifting provisions, the anti-SLAPP statute contains no language limiting prevailing defendants to “reasonable” fees.

This omission seems especially salient because the same section of the anti-SLAPP statute allows plaintiffs who prevail in opposing an anti-SLAPP motion to recover their reasonable attorney’s fees, but only if the anti-SLAPP motion was frivolous or solely intended to cause unnecessary delay.

Only one court appears to have given effect to the legislature’s omission of this “reasonable” language.

The practical effect of decisions reducing attorneys’ fee awards based on a plaintiff’s indigency is that the defendants are prevented from being made whole. Instead, defendants are forced to foot the bill for a plaintiff’s choice to file allegations that the court deemed meritless.

As the dissent in one case put it, “I do not believe it is right to penalize a defendant who prevails in litigation into which he has been involuntarily thrust by preventing him from recovering what the Legislature has determined to be a just award.”

Indeed, it is possible that gutting fee awards based on alleged indigency could neuter the deterrent effect of the fee-shifting provision. And without the deterrent effect, there is little to stop a plaintiff from filing yet another SLAPP claim.

Defendants who want to avoid or minimize the effect of these recent decisions can ask courts to grant the full fees requested but stipulate that any award would be subtracted from any future recovery the plaintiff may receive in the case. Of course, this solution would apply only in instances in which a case isn’t fully dismissed at the anti-SLAPP stage. But it avoids the possibility of courts preemptively reducing fee awards, resulting in plaintiffs escaping financial responsibility for their abuse.

Separately, the legislature always could step in and amend the anti-SLAPP statute to clarify whether or not to consider indigency or the SLAPP plaintiff’s financial condition when calculating attorneys’ fee awards under the anti-SLAPP statute.

California’s anti-SLAPP statute remains a valuable tool for defending against frivolous lawsuits and claims. It and similar statutes in other states—there is no federal anti-SLAPP law yet—are important for litigants who allege they’re being targeted for exercising their First Amendment rights to speak and petition. But as with any tool or legislation, there are limitations, and litigants should be aware of them.

This article does not necessarily reflect the opinion of Bloomberg Industry Group, Inc., the publisher of Bloomberg Law, Bloomberg Tax, and Bloomberg Government, or its owners.

Author Information

Alicia Sharon is counsel at Venable and an intellectual property litigator.

Lee Brenner is partner at Venable and chair of the firm’s entertainment and media litigation group.

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