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Grell did not move to dismiss his claims against Rosenthal prior to
her motion to strike, and his dismissal after the hearing on that
motion would not have eliminated the need for the court to rule even
if there were no remaining plaintiffs, because a ruling on that motion
was "an essential predicate" to Rosenthal's right to an award of
attorney fees and costs under the statute. ( 425.16, subd. (c).)
Grell could not remove himself from the purview of either the motion
to strike or the request for fees by belatedly dismissing his claim
against Rosenthal because the damage caused by the SLAPP suit, for
which Rosenthal was entitled to be reimbursed, had occurred prior to
his dismissal. The court did not act in excess of its jurisdiction.
Appellants alternatively claim that the trial court's refusal to
exempt Grell from its ruling requiring appellants to pay Rosenthal her
attorney fees and costs was an abuse of discretion. We disagree.
Preliminarily, appellants conceded below that the trial court had
discretion to compel Grell to participate in the payment of fees
awarded Rosenthal. Their opposition to Rosenthal's motion for fees
ends with the request "that the Court exercise its discretion and not
sanction Grell on the grounds that Grell never intended to pursue a
claim against Rosenthal." In a declaration submitted in support of the
opposition to the request for fees, Grell took the position that the
court should exercise its discretion in his favor because when the
matter was raised by the court he promptly admitted "that I had no
specific claim against Ilena Rosenthal and that a mistake was made by
overly broad pleading." Grell also pointed out that "[a]t no time did
Defense counsel contact me and ask what the basis of my claim against
Ilena Rosenthal was" and that "I do not make it a habit of suing
people." The trial court was obviously unpersuaded.
Rosenthal was entitled to an attorney fee award from Barrett because,
as the trial court correctly concluded, his unjustified defamation
claim sought to chill her exercise of constitutional rights. The court
could well conclude that, because he was an attorney, Grell engaged in
the chilling of constitutional rights more knowingly and was therefore
more responsible than Barrett. It was small solace to Rosenthal that,
after she filed her motion to strike, and the trial judge made clear
the likelihood it would be granted, Grell finally admitted his
mistake. As we have said, the damage had already been done. Our
decision to vacate the grant of Rosenthal's motion to strike the
complaint as it relates to Polevoy does not diminish the effect of the
ruling as to the remaining appellants, Barrett and Grell, which we
affirm. There was no abuse of discretion.
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