Johnston v. Corrigan

Opinion

TUNER, P. J.

I. INTRODUCTION

Cross-complainant, Dennis H. Johnston, appeals from an order granting attorney fees under Code of Civil Procedure

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section 425.16, subdivision (c) to cross-defendants, Brian T. Corrigan, Stanley C. Morris, and Corrigan & Morris. Cross-complainant contends the trial court had no jurisdiction to reconsider an initial order denying cross-defendants’ attorney fee motion and sanctions should have been imposed. We affirm the order under review.

II. BACKGROUND

Cross-complainant was named as a defendant in an action brought by plaintiffs, ePayLatina S.A. and Freestar Technologies, Inc. Cross-complainant filed a cross-complaint for indemnity and contribution against cross-defendants, among others. On March 26, 2003, cross-defendants filed a

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special motion to strike the cross-complaint pursuant to section 425.16 and noticed the matter for hearing on May 6, 2003. On April 11, 2003, cross-defendants filed their points and authorities in support of the March 26, 2003, special motion to strike. Cross-complainant filed no opposition to the special motion to strike. Rather, on May 2, 2003, cross-complainant filed a first amended cross-complaint, but did not name cross-defendants. Therefore, in effect, cross-complainant voluntarily dismissed his cross-complaint against cross-defendants. At the May 6, 2003, hearing, the trial court deferred ruling on the attorney fee issue until a separate motion was filed. On May 9, 2003, cross-defendants filed a motion for attorney fees pursuant to section 425.16, subdivision (c). On July 14, 2003, the trial court denied cross-defendants’ attorney fee motion. The trial court found: cross-defendants could not recover attorney fees unless they established that the cross-complaint was a SLAPP suit (strategic lawsuit against public participation); further, cross-defendants had not filed any points and authorities in support of their special motion to strike; and, “[a]bsent substantive argument, [cross-defendants] did not show that the Cross-Complaint was a ‘pure’ SLAPP suit.”