Court may widen SLAPP protection.

The California Supreme Court has agreed to hear a case that may make it more difficult to file libel and slander suits against media organizations.

If the court affirms the decision of an appellate panel, it would open another avenue for judges to grant attorneys' fees to defendants who use California's Strategic Lawsuit Against Public Participation, or SLAPP, statute.

A case only falls under the SLAPP statute once a defendant files a motion that the suit would chill free speech.

Plaintiffs' attorneys are worried that a ruling expanding attorneys' fees would limit suits against the media.

When the statute was enacted in 1992, it was intended to limit suits filed by developers against neighborhood and activist groups that spoke out against real estate projects.

In the past few years, however, media organizations have used the statute to throw out libel suits.

As part of the statute, defendants who succeed in throwing out a suit with a so-called anti-SLAPP motion are entitled to attorneys' fees. Under case law, the defendant also receives attorneys' fees if a plaintiff dismisses the suit once the defendant files an anti-SLAPP motion.

The state Supreme Court has agreed to rule in a case that could extend the payment of a defendant's attorneys' fees when no antiSLAPP motion is filed.

"If the Supreme Court affirms the decision, it just gives entities like the tabloids a bigger hammer to use in discouraging people who they have knowingly and intentionally defamed from seeking redress in the courts," said Mitchell Langberg, an attorney at Stroock & Stroock & Lavan LLP. "Every time there is a broadening of the risk of attorneys' fees, you have to think even harder about bringing your action."

Such a ruling could open a "Pandora's box," said A. Barry Cappello, managing partner of Cappello & Noel LLP in Santa Barbara representing the plaintiff in the case, a dispute over a Santa Barbara real estate development partnership.

"Now everybody who has been sued where the plaintiff chooses to dismiss the case will file a motion for attorneys' fees claiming it was a SLAPP suit," he said.

Additionally, plaintiffs may be less likely to dismiss a suit if they run the risk of paying attorneys' fees, he said.

In July, a 2nd Appellate District panel reversed a ruling that rejected a claim for attorneys fees, saying that a defendant has already incurred legal costs prior to filing an anti-SLAPP motion.

"The purpose of the anti-SLAPP statute will not be achieved if an offending plaintiff can avoid sanctions simply by dismissing his complaint before the defendant files his motion," wrote Presiding Justice Arthur Gilbert.

Peter Bezek, a Foley & Bezek partner representing the defendants in the Santa Barbara case, said not granting attorneys' fees in such circumstances would allow plaintiffs' attorneys to dismiss and re-file cases at no cost.

"Everybody should be allowed to dismiss their case," he said. "But you incur liability the day you file the complaint. The decision of the plaintiff to dismiss quickly keeps the effects of that filing to a minimum because whatever I've incurred, $500 or so, is a beck of a lot better than $5,000."