Defendant O'Leary's motion for attorneys' fees is granted in part and denied in part as follows:

Sanctions Granted In Conjunction With Motion to Transfer Venue: Plaintiff's counsel, Mr. Morris, is ordered to pay the $600 in sanctions imposed by the Court in its 2/25/00 order granting Defendant's motion to transfer venue pursuant to CA CCP 396b. That statute states in pertinent part:

(b) In its discretion, the court may order the payment to the prevailing party of reasonable expenses and attorney's fees incurred in making or resisting the motion to transfer whether or not that party is otherwise entitled to recover his or her costs of action. . . . As between the party and his or her attorney, those expenses and fees shall be the personal liability of the attorney not chargeable to the party. (Emphasis added)

This statute couldn't be more clear. It does not give the Court the discretion to impose the sanctions on Plaintiff personally. Counsel's contention that the Court's order was ambiguous is unavailing given the clear statutory framework upon which it was made. Mr. Morris is ordered to pay the $600 in sanctions before 9/1/00.

In so ruling, the Court notes that Mr. Morris still appears to be Plaintiff's attorney of record as no substitution of attorney has been filed in this case. No oral argument will be granted with respect to this unopposed motion.

Effect of Plaintiff's Dismissal on Defendant's SLAPP Motion: Defendant is clearly entitled to a ruling on the merits of the attorneys fees request included in his SLAPP motion to strike notwithstanding Plaintiff's voluntary dismissal of the action on 5/4/00 (Liu v. Moore (1999) 69 Cal.App.4th 745, 751; Kyle v. Carmon (1999) 71 Cal.App.4th 901, 908; Coltrain v. Shewalter (1998) 66 Cal.App.4th 94, 100. Merits of Defendant's SLAPP Motion: CA CCP 425.16 provides in pertinent part:

(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly. (b)(1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

The purpose of SLAPP suits is to punish and distract those who oppose the complainants by threatening ruinous damages (e.g. $10M in compensatory damages and $100M in punitive damages) and imposing litigation costs for exercising their free speech rights. To protect the constitutional right of free speech, the statute specifically provides that it should be construed broadly.

It is clear from a reading of Plaintiff's complaint and her opposition to Defendant's motion that although the specific defamatory statements she complains of are not directly related to the breast implant debate, their reciprocal exchange of "personal barbs" were part and parcel of their contentious disagreement on this issue, and that the objective of this litigation was to silence defendants' opposing views and their participation in Plaintiff's internet newsgroup. See, e.g. Complaint paras. 9 - 10 and 14 - 15. As is demonstrated by Plaintiff's inability to address the merits of her defamation and related claims without raising Defendant's surreptitious participation in the web newgroup with respect to the breast implant controversy; the alleged defamatory statements were not made in a vacuum, but were rather allegedly made to humiliate, discredit and destroy Plaintiff's credibility as an admitted "activist for women's rights in the area of breast implant surgery." Complaint, paras. 9 & 14 and Rosenthal Declaration.

However, Plaintiff has established the probability of prevailing on the merits of her claims. Defendant essentially admits to having made the first five statements alleged by Plaintiff. Although several of these are non-actionable opinions and/or characterizations of Plaintiff (Gregory v. McDonnell Douglas Corp. (1976) 17 Cal.3d 596, Defendant's characterization of Plaintiff as a "fraud" and stating that "she is ripping off women" go beyond those which can be characterized as mere "epithets, fiery rhetoric or hyperbole." Rather, unlike the statements which were at issue in Gregory, the statements admittedly made by Defendant "impute crimes or dishonesty" to Plaintiff. Consequently, Defendant is not entitled to an awarded attorneys fees under CA CCP 425.16.