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The California Supreme Court agreed Wednesday to decide whether trial judges have the authority to award attorney fees to individuals filing anti-SLAPP motions even if the original complaints have been voluntarily dismissed. The decision could have a major impact: Attorneys seeking review estimated that the Supreme Court and the state’s appeal courts have issued more than 100 anti-SLAPP rulings in the past decade, with untold numbers of cases in the trial courts. The case stems from a dispute between S.B. Beach Properties, a limited partnership in Santa Barbara County, Calif., and three limited partners — Richard and Marguerite Berti and Ilene Bruckner. The company sued the trio in 2003, claiming they had tried to undermine its attempts to develop property on stylish State Street in Santa Barbara, Calif. The Bertis and Bruckner indicated that they regarded the action as a strategic lawsuit against public participation and planned to file an anti-SLAPP motion in response. However, they did not actually file the motion until one day after S.B. Beach had voluntarily dismissed its complaint. The three then sought unspecified attorney fees, but Santa Barbara County Superior Court Judge Thomas Anderle denied them. Three months ago, the Ventura, Calif.-based Second District Court of Appeal reversed. “The purpose of the anti-SLAPP statute will not be achieved,” Justice Arthur Gilbert wrote, “if an offending plaintiff can avoid sanctions simply by dismissing his complaint before the defendant files his motion.” Justices Kenneth Yegan and Paul Coffee concurred. In petitioning for review, S.B. Beach’s lawyers argued that the ruling is contrary to the language of the anti-SLAPP statute and raises “serious adverse public policy consequences.” They said the court had improperly expanded the trial court’s jurisdiction to grant fees without statutory authority, opened the door to fee awards based on pure speculation and sanctioned dilatory behavior. “This is directly contrary to the policy of the anti-SLAPP statute,”A. Barry Cappello, a partner in Santa Barbara’s Cappello & Noel, wrote in his firm’s petition. “Authorizing dilatory defendants to file after-the-fact anti-SLAPP motions, dressed up as fee motions,” he continued, “enlarges the litigation, increases costs and expenses and penalizes plaintiffs for exercising their absolute right to dismiss before the anti-SLAPP statute is at issue.” In a telephone interview, Cappello said he was aware of only one other instance in which someone sought attorney fees for an anti-SLAPP motion after the underlying case had been dismissed. But he’s concerned about the precedent. “If the court of appeal’s opinion becomes law, which hopefully it won’t,” he said, “it’ll happen all the time. That’s the problem.” In response, lawyers for Bertis and Bruckner called the original suit by S.B. Beach a “textbook example” of a SLAPP suit that was intended to “deter, silence and intimidate” any potential critics of the partnership’s development. The complaint sought $30 million in damages, they noted, and 32 subpoenas for depositions were sent out. S.B. Beach’s “message of intimidation was clear,” Robert Curtis, a partner in Santa Barbara’s Foley & Bezek, wrote. “War awaited anyone who associated themselves with the [Bertis and Bruckner].” The state’s case law, he continued, shows that S.B. Beach’s voluntary dismissal of the complaint didn’t deprive the trial court judge of his jurisdiction to decide any aspect of the anti-SLAPP motion. He argued that the anti-SLAPP statute — Code of Civil Procedure � 425.16 — provides that it “shall be construed broadly.” All seven Supreme Court justices voted to grant review. The case is S.B. Beach Properties v. Berti, S127513.

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