It has been a few weeks since I checked in on the Dean v. NBC cases. As you may recall, after significant briefing on the anti-SLAPP statute in the Superior Court, the plaintiffs voluntarily dismissed their suit there because they had refiled it in federal court (where Judge Wilkins and Judge Leon had held (here and here) that the anti-SLAPP statute was inapplicable).
The defendants thereafter moved to stay the federal court action until the Superior Court action was fully resolved. After the parties (again) briefed the anti-SLAPP motion in federal court, it granted the stay motion and stayed the case until the Superior Court case was resolved.
Meanwhile, there has been a lot of activity in the Superior Court case. On February 27, the defendants moved to vacate the notice of dismissal. They argued that, since the Court had indicated it was going to treat the motion to dismiss as a motion for summary judgment, this prevented the plaintiffs from voluntarily dismissing their suit. They argued, at a minimum, that the plaintiffs should have to pay their fees.
In response, the plaintiffs argued that, because the Superior Court had not formally converted the motion to dismiss to a motion for summary judgment, and had not, in any event, ruled on the motion at the time they voluntarily dismissed their case, the pending motion did not prevent them from voluntarily dismissing their Superior Court case.
On April 23, the Court ruled on the multiple filings. It first held that it had converted the motion to dismiss to a motion for summary judgment prior to the date the plaintiffs attempted to dismiss the suit and, for this reason, they had lost the right to do so: “[o]nce a Rule 12(b)(6) motion is converted into a motion for summary judgment, a plaintiff needs the permission of the Court to proceed with dismissal.”
The Superior Court held that it was nevertheless willing to dismiss the suit, but only if the plaintiffs paid the defendants’ fees and costs to cover work that would not be applied to the federal court action.
On June 25, the Superior court ruled on a motion for reconsideration filed by the plaintiffs and the fees/costs issue. After rejecting the motion for reconsideration, it ordered the plaintiffs to pay $24,625.23 in fees and costs within 30 days. If the fees/costs are not paid, then the Court indicated it would dismiss the case with prejudice.
The plaintiffs have filed a notice of appeal of the Superior Court’s orders. They have also moved to have the Superior Court judge recused. Meanwhile the federal court case remains pending. We’ll continue to monitor and keep you posted.