CW v. Defendants

day and grossly overlength. The court will overlook the timeliness aspect but STRIKES pages 16-25. As to the evidentiary objections, the court did not rely on Isaac's declaration in making todays ruling, so the objections are MOOT.

A party successfully opposing an SMS is not entitled to fees by right (unlike a party successfully bringing such a motion). The standard for recovery by the opposing party is the same as the standard set forth in Code of Civil Procedure section 128.5--a finding that the motion was frivolous or intended to cause unnecessary delay. (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435.)

The first prong (frivolous) is an objective standard; if the motion was in fact frivolous, then a subjective belief that the action was meritorious will not defeat the finding. That is why even a represented party can be subject to this statute. (Isaac was represented during the underlying case.)

The court also notes that there seems to be a questionable proof of service as to the filing of the motion, which suggests that the purpose might have been solely to delay. The court need not, and does not, find that the motion was filed solely for purposes of delay. But the court does agree that the motion was frivolous.

While the SMS easily met the first prong of the statute--it involved protected activity (filing the underlying suit)--plaintiff here easily defeated the motion on the second prong--"minimal merit." Given the many, many other cases between these parties, once the court was able to disentangle the procedural posture of the case, this court was able to rule on a pleading motion. And the Court of Appeal had little difficulty finding that the underlying case was already decided (more than once). The SMS was objectively frivolous. That does not mean Daniel will win; only that he might.

The question, though, is procedural. It is not clear that plaintiff complied with the safe harbor requirements of section 128.5. In Zarate v. McDaniel (2023) 97 Cal.App.5th 484, the Court of Appeal discussed the relationship of that statute to the SMS motion by the opposing party. It held that the procedural requirements of that statute apply to a party seeking fees for opposing the SMS. The Zarate Court noted that sometimes that might not be practical and did not address whether in such a case the same safe harbor requirements applied.

The theory is that Daniel could have provided Isaac with notice that fees would be sought to give Isaac time to withdraw the SMS. If Isaac did not withdraw the SMS, then the fee motion would be brought. Because Daniel did not comply with the safe harbor provision, and because there is no showing that it was impractical to do so, the motion must be DENIED.

anonymously. Defendants originally opposed the motion but withdrew their opposition to the extent that plaintiff has invoked the Safe At Home program under Code of Civil Procedure section 367.3. That statute provides that a protected person can use a pseudonym and identifying information cannot be placed in the public record. A person can be a protected person if they are a participant in a program set forth in Government Code section 6205 et seq., of which Safe At Home qualifies.

So there is no issue going forward; the issue is retrospective. As the court understands it, defendants' view is that until plaintiff enrolled in Safe At Home, there was no basis (at least under this statute) for plaintiff to go forward not under her real name. The court has looked at plaintiff's showing, and frankly, the court does not think plaintiff has made her showing. She states that if her real name is used, her address can be found as can other things about her that are on line. That is true, but the court fails to see the relevance. Many people can be found on line these days.

The issue is whether plaintiff can meet the standards in NBC and DFEH. That requires an overriding interest in anonymity. The court does not see it here. Plaintiff's name is known to many in general, and information about her can readily be found on line. What she would have to show is that third parties would stalk her or that she would suffer other injuries because of this suit if her name as a plaintiff were known, and that link is utterly lacking. She claims she was stalked in the past. That may be true, but not for this. The court fails to see or understand the link between that former stalking--the details of which have not been disclosed--and this case.

She states that news aggregators will see that she is suing. That, too, is likely true. That is the downside of a public judicial system. But that is not cause nor is it an overriding interest. In short, the court just does not see it. The court would therefore DENY the motion, but for the Safe At Home issue.

Safe At Home is a laudable program designed to protect those who have a fear of harm from others. The prototypical example comes up in domestic violence cases. A person is seeking a restraining order against one who is alleged to have harmed or threatened to harm the petitioner. But due process requires that the respondent have a way to serve the petitioner with legal papers. So what can be done? The petitioner might not have a lawyer, meaning that the petitioner cannot be served through counsel.

The Safe At Home program allows that petitioner to have a confidential address for purposes of service of papers. Further, to protect the petitioner, other identifying information is also confidential. The Safe At Home program is more than that, but that is how it often comes up. The goal is to protect litigants from harm where identifying information--including the party's identity--would be disclosed in litigation and could be harmful or put the petitioner (or plaintiff) at risk.

Defendants do not dispute that plaintiff is enrolled in the Safe At Home program, and accordingly they have no problem agreeing that the statute will apply. The issue is what to do about identifying information from before plaintiff was enrolled. The court's view is that such information will remain confidential, and thus the motion is GRANTED, but not under the standard test. The problem is that it is not for the court in the context of this motion to determine whether the requirements for Safe At Home have been met; like defendants, the court takes it as a given at this time.

But allowing identifying information about plaintiff to be on the public record seems to defeat the purpose. At that point, the harm is done. Because of that, even though the court would deny the motion on normal grounds, the court will GRANT the motion and plaintiff may not only proceed anonymously going forward, but the prior filings will remain anonymous. If the Safe At Home status ever changes, though, plaintiff is instructed to inform the court without delay.

The court is aware of plaintiff's request that it consider a declaration filed under seal. That request is improper. It is made on six court days' notice--not ex parte. It is also in the form of new evidence in reply, which is not appropriate. Defendants have no opportunity to respond to that new declaration. The court has not opened the envelope containing the declaration and it is STRICKEN sight unseen. It will be returned to plaintiff. Defendants' objection to it is SUSTAINED. But that does not change the Safe at Home analysis above.

The court emphasizes that the parties both need to do better. Defendants disclosed plaintiff's identity in their opposition in a blatant disregard of the court's orders and in what the court can only believe was bad faith and an improper tactic by defense counsel. Plaintiff filed a faulty motion and tried to cure it in reply through means that are not authorized. Plaintiff's claim that it did not intend to gain a procedural advantage by filing new evidence in reply rings hollow. The court sees that plaintiff did request that the declaration be filed confidentially by motion dated August 31, 2026.

But that motion was not done through the reservation process and there is no reservation for it. Further, it is not clear that the document has been given to defendants. In their objection, defendants suggest that they have not seen it. If it was not served on the defense, that is nothing short of stunning. This court is not a star chamber; it does not hold secret hearings or rule based on secret evidence that the other party cannot see unless a true showing has been made that showing this to the other party would put plaintiff in significant jeopardy--such as setting forth the victim's address in a domestic violence case to the alleged abuser.

The court has not opened the envelope and will not open it. The evidence is STRICKEN and it will be returned to plaintiff unopened.

Case Number: 26SMCV04611 Hearing Date: September 9, 2026 Dept: I

The court must confess a mistake. At issue today is a request for an order enforcing the prior TRO. The court went back and looked at the TRO file. The court sees that the original complaint was served by substituted service. However, the TRO application was not. The court had assumed--mistakenly (and the court is not blaming plaintiff)--that the original packet served by substituted service included information relating to the TRO, but there is no evidence that