Trial judges may use their discretion in determining whether to award attorney fees to SLAPP suit defendants if the plaintiff voluntarily dismisses the case while the anti-SLAPP motion to strike is pending, the Fourth District Court of Appeal has ruled. In making the ruling, Division 2 of the Fourth District rejected the argument that defendant's attorneys should be either automatically entitled to or automatically precluded from receiving such fees. The term "SLAPP" suit - the acronym stands for "strategic lawsuits against public participation" - is often used by citizen activists to refer to punitive lawsuits filed by developers and others to discourage citizen activism. (For background, see CP&DR, November 1990.) The law permits a special motion to strike a cause of action that is found by the court to be a SLAPP suit. Many SLAPP suits have a land-use connection - as when a developer sues a citizen or citizen group in retaliation for opposing a development project. In most cases, appellate courts have upheld broad use of the SLAPP motion to strike, which is contained in Code of Civil Procedure §425.16. Though attorneys fees to SLAPP defendants have been granted, appellate justices in another recent case awarded such fees for the first time to a public agency. (See related story on Mission Oaks Ranch, Ltd. v. County of Santa Barbara.) The current case had nothing to do with land use or real estate development. The case involved several tenants in the Victory Apartments in downtown Riverside, led by Kim Shewalter. The tenants claimed that the apartment complex was noisy, violent, and dangerous, and that these problems only increased after the apartment complex was taken over in 1995 by Darlene Coltrain and her son, Arthur. The murder of a reputed gang member and drug dealer in October of 1995 led tenants to move forward with a nuisance abatement action against the Coltrains in small claims court. In November of 1995, they made a demand for payment from the Coltrains in connection with specific incidents, a necessary pre-condition to going to small claims court. This action attracted the attention of the local newspaper, and several tenants, including Shewalter, complained about the situation. After the small claims action was filed in February of 1996, the Coltrains filed a lawsuit alleging trade libel and defamation - but only against the nine tenants who filed the small claims action, not against any other tenants. The Coltrains sought $250,000 in compensatory damages and $1 million in punitive damages. The tenants filed a motion to strike under the anti-SLAPP law, but the Coltrains voluntarily dismissed their complaint 10 days later. Subsequently, the tenants' attorneys, Mark Goldowitz and Jason Walsh, asked for attorney fees under the anti-SLAPP law totaling some $75,000. The trial court awarded attorneys fees of $73,000, and the Coltrains appealed, arguing that because the case had been voluntarily dismissed by the plaintiff, the defendant had not "prevailed" and therefore could not be awarded attorney fees. "Certainly," the appellate court wrote, "[the policies behind the SLAPP statute] do not support defendants' contention that a voluntary dismissal while a special motion to strike is pending should automatically entitle a defendant to attorney's fees. Otherwise, SLAPP plaintiffs could achieve most of their objective with little risk - by filing a SLAPP suit, forcing the defendants to incur the effort and expense of preparing a special motion to strike, then dismissing the action without prejudice." At the same time, the court added, "these policies likewise do not support defendants contention that a voluntary dismissal while a special motion to strike is pending should automatically entitle a defendant to attorney's fees." "We conclude," the court added, "that where the plaintiff voluntarily dismisses an alleged SLAPP suit while a special motion to strike is pending, the trial court has discretion to determine whether the defendant is the prevailing party for the purposes of attorney's fees." In an unpublished portion of the ruling, the court rejected the Coltrains' claim that attorneys fees should not have been awarded because the tenants' statements did not deal with a public issue. The tenants' concerns, the court said, do involve a public issue. The Case: Coltrain v. Shewalter, No. E019258, 98 Daily Journal D.A.R. 8939 (filed August 17, 1998). The Lawyers: For Coltrain: David G. Moore, Reed & Hellyer, (909) 682-1771. For Shewalter: Mark Goldowitz, (510) 835-0850, and Jason Walsh, (909) 784-9310.