January 5, 2017

State Bar’s late petition for review pays off, as Supreme Court allows it to collect anti-SLAPP attorney fees

In Barry v. State Bar of California, the Supreme Court holds that a prevailing defendant on an anti-SLAPP motion is entitled to attorney fees under the anti-SLAPP statute even though the motion succeeded because the superior court lacked subject matter jurisdiction over the plaintiff’s claim.  The unanimous opinion by Justice Leondra Kruger concludes attorney fees are available whether the claim fails because “it lacks substantive merit” or, as in this case, because “it is filed in a tribunal that lacks the power to hear it.”  The Barry plaintiff is a pro per attorney who sued the State Bar in superior court concerning disciplinary action taken against her, but only the Supreme Court has jurisdiction over attorney discipline matters.  (See The multi-tasking Supreme Court.)

This was almost a victory that wasn’t for the State Bar.  The Court of Appeal had held that the State Bar could not recover its attorney fees.  The State Bar petitioned the Supreme Court for review, but the petition was submitted more than two weeks late.  Accompanying the petition was an application for relief from default.  We don’t know what was in the application, but it was good enough to have the Supreme Court grant permission to file the untimely petition.

The Supreme Court reverses the Second District, Division Two, Court of Appeal.

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