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Natalie Operstein was employed as a professor of linguistics at California State University, Fullerton (CSUF). In the course of her employment, she experienced conflict with her colleagues in the linguistics department for which she made various written complaints. By May 2014, the matter had escalated to human resources.

In November 2014, CSUF engaged Seyfarth Shaw LL, a law firm, to investigate Operstein’s accusations against three of her colleagues. Colleen Regan, at the time a partner at Seyfarth, had primary responsibility for the investigation. Regan interviewed Operstein’s three colleagues she accused of misconduct and another individual, but Operstein agreed only to respond to written questions.Regan provided a summary of her investigation and findings in an eight-page report dated December 18, 2014.

The report concluded that none of Operstein’s allegations was well founded and that much of Dr. Operstein’s conduct and email communication was the opposite of collegial. She regularly accused her coworkers of violations and infractions of policy, and of defaming her and violating her rights, all with no apparent basis. Regan also wrote: “Every witness interviewed stated that Dr. Operstein is well regarded as a scholar and researcher, and appears to be a fine teacher. However, since the beginning of her employment at CSUF, she has been difficult for virtually everyone to work with. At least one administrative support employee has requested never to work with her again, and many others find her behavior odd, and even threatening.”

Operstein’s relationship with CSUF further soured shortly after Seyfarth completed its report. She filed a number of lawsuits related to her complaints, including in April 2020, she filed the lawsuit underlying this appeal. In a complaint solely against Seyfarth and Regan, plaintiffs asserted 11 causes of action based on Seyfarth’s work for CSUF in connection with Operstein’s internal complaints of workplace harassment and related mistreatment. In sum, the Seyfarth complaint alleges that, with improper motive, defendants (1) conducted a biased and otherwise flawed investigation of Operstein’s complaints; and (2) prepared and submitted a report that was defamatory of Operstein.

Defendants responded with a motion to strike plaintiffs’ complaint under the anti SLAPP statute (C.C.P § 425.16 strategic lawsuit against public participation), and supported their motion with declarations and extensive documentary evidence, including documents they reviewed in the course of their investigation and the resulting report. Plaintiffs opposed the motion and submitted declarations and evidence of their own totaling nearly 3,000 pages. Defendants filed a reply and plaintiffs filed a 70 page surreply.

On the same day plaintiffs filed their surreply, the trial court issued a tentative ruling. and was inclined to strike three of the 11 causes of action (“negligent misrepresentation and constructive fraud,” “defamation,” and “fraud and deceit”) because those causes of action “arise solely from protected activity under . . . subdivisions (e)(1) and (e)(2),” but was inclined to request further briefing as to whether defendants’ alleged investigative conduct was protected under the anti SLAPP statute.

Later, on the same day the trial court issued its tentative ruling, plaintiffs voluntarily requested dismissal of their entire lawsuit. The court granted their request.

Shortly thereafter, defendants filed their motion for attorney fees and costs pursuant to subdivision (c). Their ultimate total request was $79,889. The trial court granted this only in part, finding defendants would have only partially prevailed on their special motion to strike. It adopted its tentative ruling, and awarded defendants $63,911- 80 percent of the fees they requested.

The trial court awarded the fees without finally ruling on defendants’ anti SLAPP motion to strike – it issued a tentative ruling granting in part and denying in part the motion, and plaintiffs immediately thereafter dismissed their complaint.

Plaintiffs Craig Ross and Natalie Operstein appeal the fee award on three general theories. First, the anti SLAPP statute did not apply to their claims, and, in any event, their claims were meritorious. Second, the fees should not have been awarded because defendants did not meet the fee award requirements of subdivision (c)(1) or because judicially created exceptions to their right to seek a fee award applied. Third, even if fees were awardable, the amount awarded was unreasonable.

Defendants cross appealed and argued that the trial court should have awarded all the fees they requested, not just a portion of those fees, because all of plaintiffs’ claims were based on conduct protected by the anti SLAPP statute, no exceptions applied, and their request was reasonable.

The Court of Appeal agreed with defendants that their motion to strike was wholly meritorious and their fee request therefore should not have been reduced on the grounds that they would have prevailed only partially on their motion. And it disagreed with plaintiffs that the trial court erred in the ways they claim. It therefore affirmed in part and reverse in part and remand for further proceedings consistent with its opinion in the published case of Ross v. Seyfarth Shaw LLP (October 2023).

The anti SLAPP statute provides a procedure for courts to dismiss at an early stage nonmeritorious litigation meant to chill the valid exercise of the constitutional rights of freedom of speech and petition in connection with a public issue. Courts must “broadly” construe the anti-SLAPP statute to further the legislative goals of encouraging participation in matters of public significance and discouraging abuse of the judicial process. (§ 425.16, subd. (a).)

Defendants argued that Seyfarth’s investigation was not an official proceeding authorized by law, and in support cite Vergos v. McNeal (2007) 146 Cal.App.4th 1387 (Vergos), which treated all investigative conduct as communicative.

However, since the Vergos decision issued, our Supreme Court in Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1015, has mandated a more granular evaluation of the allegations underlying a cause of action and its subsidiary claims, and disapproved of the gravamen analysis that appears to have been employed in Vergos, so it said “so we will not rely on Vergos. The Court of Appeal agreed with defendants and concluded “that all conduct by defendants alleged in the complaint is protected under the anti SLAPP statute.”

A “prevailing defendant” on a special motion to strike is “entitled to recover that defendant’s attorney’s fees and costs.” (§ 425.16, subd. (c)(1).) The purpose of this provision is to provide the SLAPP defendant financial relief from the plaintiff’s meritless lawsuit. (Liu v. Moore (1999) 69 Cal.App.4th 745, 750 (Liu).) The trial court’s fee award pursuant to this authority is the subject of this appeal.

When a plaintiff dismisses his or her complaint while the defendant’s special motion to strike is pending, courts agree they retain jurisdiction to award fees and costs. (See, e.g., Coltrain v. Shewalter (1998) 66 Cal.App.4th 94, 107 (Coltrain); Liu, supra, 69 Cal.App.4th at p. 752; Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1456 (Tourgeman).) This is because permitting an eleventh-hour dismissal to eliminate financial liability would undermine the deterrent purpose of the anti SLAPP statute. (See Liu, at pp. 750-751.)

The Court of Appeal also concluded that “Under either the Coltrain standard or the Liu standard, defendants entirely prevailed in their special motion to strike” and thus was entitled to the entire fee they requested.