Q: Why can't California, which is so litigious, adopt a law like Texas where the loser has to pay attorney fees?
- J.B., Torrance
Answer: Reading about the Texas law, it is not simply that if you sue and lose, you pay the other side's attorney fees. Research indicates that if there is not a contractual attorney fees clause, or a statutory basis for recovery of attorney fees, the Texas law that you refer to as "loser pays" only comes into play on an early motion to dismiss, which is granted when a lawsuit is deemed frivolous. It is not as broad as it may sound, or perhaps has been reported.
Now, many other countries (e.g., Canada, Australia, and Great Britain) do adopt the English rule, where the suing party often does have to pay attorney fees if the case is lost. The American rule typically is that each side bears its own costs and fees, absent (as in California) a contractual provision of some type or some statutory basis.
Q: I read a headline: "Anti-SLAPP Motion can beat down a frivolous case." What is that?
- M.C., Beverly Hills
A: In 1992, the California Legislature passed the Anti-SLAPP statute (SLAPP stands for Strategic Lawsuits Against Public Participation). Under Section 425.16 of the Code of Civil Procedure, you can promptly file a motion to strike a lawsuit against you that arises from your conduct in furtherance of the right of petition or free speech under the U.S. or California constitutions in connection with a public issue.
Your burden is to show that the lawsuit arises out of a protected speech or petition activity. Over the years this has become more broadly construed than may appear on first blush. In some jurisdictions in California, you also have to provide evidence supporting your defenses. The suing party then must introduce evidence that supports the essential elements of his or her legal theory. If the plaintiff cannot demonstrate with suitable evidence the merit of his or her claim(s), the matter will be dismissed, and you will be awarded your attorney fees and costs.
You can read more about anti-SLAPP motions online.
Q: When can I file a malicious prosecution case?
- A.M., Lakewood
A: A malicious prosecution can be filed when you prevail on the merits, and the case is officially over, including any appeals. Yes, this can be very irritating because you are convinced the case was filed without good-faith reason, and no reasonable lawyer would have filed it, but that's the law. Perhaps a motion for summary judgment or summary adjudication would work. Discuss this option with your counsel.
Ron Sokol is a Manhattan Beach attorney with more than 30 years of experience. His column appears on Wednesdays. Email questions and comments to him at RonSEsq@aol.com or write to him at Ask The Lawyer, Daily Breeze, 21250 Hawthorne Blvd., Suite 170, Torrance, CA 90503. This column is a summary of the law and not a substitute for legal consultation on any particular case.