Motion for Attorney Fees and Costs
In re: Janice A. Pankey Trust dated 9/12/2012, 23PR-0079
Hearing: Motion for Attorney Fees and Costs
Date: June 3, 2026
On April 6, 2023, Kendra Sabi (Petitioner), individually and in her capacity as co-trustee, filed a petition under Probate Code section 17200. The petition named Petitioner’s brothers, Chadburn Pankey (Chad) and James Pankey, as respondents in their individual capacities and as co-trustees (Respondents). An amendment to the petition later named Dennis Leonard (Leonard) as an additional respondent to the first, second, and third causes of action. Respondents filed an objection to the petition on November 6, 2023. Petitioner’s mother, Janice Pankey Tannehill (the Trustor), filed opposition to the petition that same day.1
Leonard responded by filing a special motion to strike under Code of Civil Procedure section 425.16 (the anti-SLAPP). Hearing on the anti-SLAPP was held on March 7, 2024. The Court issued its ruling denying the motion on March 25, 2024. The order was filed and notice of entry of the order was served on April 4, 2024. Leonard filed an appeal on May 21, 2024, and on September 16, 2025, the appellate court filed an opinion affirming this Court’s denial of the motion. A remittitur was issued on November 19, 2025.
On December 29, 2025, Petitioner filed the current motion for attorney fees and costs under Code of Civil Procedure section 425.16, subdivision (c)(1), or in the alternative under Code of Civil Procedure section 128.5. Petitioner seeks her fees in the trial court defending against the anti- SLAPP, and her related appellate fees, in the total amount of $87,250.12. Leonard opposes the motion.
Sanctions Under Code of Civil Procedure Section 128.5
The Court first addresses Petitioner’s alternative ground for sanctions under Code of Civil Procedure section 128.5.2 Petitioner contends that Leonard’s anti-SLAPP was frivolous. However, Petitioner failed to satisfy the safe-harbor requirements and give Leonard notice and the opportunity to withdraw his motion; sanctions therefore cannot be awarded under that section. (§ 128.5, subd. (f)(1)(B) [“If the alleged action or tactic is the making or opposing of a written motion or the filing and service of a complaint, cross-complaint, answer, or other responsive pleading that can be withdrawn or appropriately corrected, a notice of motion shall be served as provided in Section 1010, but shall not be filed with or presented to the court, unless 21 days after service of the motion or any other period as the court may prescribe, the challenged action or tactic is not withdrawn or appropriately corrected.”].) “[T]he law requires strict compliance with the safe
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1 In addition to Petitioner and Respondents, the Trustor has a fourth child Lora Pankey Eade, (Lora) who is not a party to this proceeding. 2 All further statutory references are to the Code of Civil Procedure. 1
harbor provisions. [Citation.] Failure to comply with the safe harbor provisions precludes an award of sanctions. [Citation.]” (Transcon Financial, Inc. v. Reid & Hellyer, APC (2022) 81 Cal.App.5th 547, 551.)
Petitioner’s reply appears to abandon her claim under section 128.5, and the court denies Petitioner’s request for sanctions under that section.
Attorney’s Fees and Costs Under Code of Civil Procedure Section 425.16
Petitioner contends that an award of her fees and costs is mandatory as the prevailing party on the anti-SLAPP under section 425.16, subdivision (c)(1).
That section provides:
Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.
(§ 425.16, subd. (c)(1).)
Petitioner focuses on the first sentence of that section, which states that a prevailing defendant shall be entitled to recover their fees and costs and she contends she is entitled to her fees as a matter of right under section 425.16. While Petitioner’s motion argues that the anti-SLAPP was frivolous for purposes of an award of sanctions under section 128.5, her reply explicitly argues that an award of her fees under section 425.16 does not depend upon a frivolous finding. (Reply, p. 3, ll. 6-10.)
However, Petitioner is not a prevailing defendant. Rather, she is a prevailing petitioner (equivalent to a plaintiff). Therefore, the second sentence applies, providing that if the court finds the motion was frivolous or solely intended to cause unnecessary delay, then the court must award fees and costs pursuant to Code of Civil Procedure section 128.5.3 (See, e.g., Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265, 270 [affirming award of trial and appellate fees to plaintiff where trial and appellate courts found the motion to strike was frivolous].)
3 The differing standards under the anti-SLAPP fee shifting provision for plaintiffs and defendants makes sense given the purpose of the statute is to protect the exercise of the constitutional rights of freedom of speech and petition. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1130-1131.) “The fee-shifting provision was apparently intended to discourage such strategic lawsuits against public participation by imposing the litigation costs on the party seeking to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. [Citation.]” (Id., at p. 1131.) 2
“[T]he reference to section 128.5 in section 425.16, subdivision (c) means a court must use the procedures and apply the substantive standards of section 128.5 in deciding whether to award attorney fees under the anti-SLAPP statute.” (Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1391–1392, superseded by statute on other grounds; Moore v. Shaw (2004) 116 Cal.App.4th 182, 199; Zarate v. McDaniel (2023) 97 Cal.App.5th 484, 488 (Zarate).)
A plaintiff seeking fees under section 425.16 must therefore comply with the safe-harbor provision under section 128.5, subdivision (f)(1), unless the timing of the anti-SLAPP motion prohibits compliance. (Zarate, supra, at p. 490 [fee award under section 425.16 for plaintiff reversed where plaintiff could have complied with the safe-harbor provision when anti-SLAPP was filed but did not]; Changsha Metro Group Co., Ltd. v. Xufeng (2020) 57 Cal.App.5th 1, 18.)
In Zarate, the court found that there would have been sufficient time to comply with the safeharbor provision when the hearing on the anti-SLAPP motion was scheduled nearly three months after the motion was filed. (Zarate, supra, at p. 490.) Here, the hearing was not scheduled and held until over five months after the anti-SLAPP was served and filed. Thus, Petitioner had sufficient time to comply with the safe-harbor provision and did not.4
Petitioner’s request for fees is denied on that ground. 5 (Zarate, supra, at p. 491.)
Moreover, even if Petitioner had complied with the procedural requirements to seek fees, the Court does not find that the anti-SLAPP was frivolous, brought in bad faith or solely in order to cause delay. The Court did not make a finding that the motion was frivolous as part of its original ruling. Nor did the court of appeal find the appeal or the motion were frivolous.6
“[F]rivolous to mean totally and completely without merit, or for the sole purpose of harassing an opposing party.” (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 450.) A motion is frivolous where any reasonable attorney would agree such motion is totally devoid of merit. (Moore v. Shaw (2004) 116 Cal.App.4th 182, 199.) The fact that the motion was unsuccessful does not mean it was frivolous. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650.)
4 Nor did Petitioner’s opposition to the anti-SLAPP contend that the motion was frivolous or for purposes of unwarranted delay, nor did it request sanctions. (See Opp., filed 2/14/2024.) 5 The Court further notes that as to her trial court fees for opposing the anti-SLAPP, Petitioner’s motion was untimely. (Cal. Rules of Court, rule 3.1702(b); Mallard v. Progressive Choice Ins. Co. (2010) 188 Cal.App.4th 531, 545.) 6 Petitioner highlights that the opinion from the court of appeal affirming the denial of the anti- SLAPP ordered that she was to recover her costs on appeal.
However, a finding that she was the prevailing party entitled to costs on appeal does not mean that she is also entitled to fees. (Cal. Rules of Court, rule 8.278, subdivision (d)(2)[“Unless the court orders otherwise, an award of costs neither includes attorney's fees on appeal nor precludes a party from seeking them under rule 3.1702.”].) 3
The motion and appeal here were both unsuccessful for Leonard. However, this is a complicated area of law and while the Court ultimately found the authority cited by Leonard was distinguishable, based on its consideration of the anti-SLAPP, as well as the briefing and declarations here, the Court cannot say that any reasonable attorney would agree that the anti- SLAPP was entirely devoid of merit. This is further highlighted by the transcript submitted by Leonard from a hearing on this matter, held after the hearing on the anti-SLAPP but before the ruling was issued, wherein attorney for another party Christopher Heckman stated “I know that’s not before you, your Honor, but that argument [by Mr. Gokal] highlights specifically why the anti- SLAPP motion should be granted.” (Feenberg Decl. ¶ l3; Ex.3: Transcript dated March 13, 2024, p. 17. l. l7 - p. 18. l. ll.)
For the reasons set forth above, Petitioner’s request for fees under section 425.16, subdivision (c)(1) is denied. ORDER
Petitioner’s motion for attorney fees in connection with the anti-SLAPP motion filed by Leonard on September 29, 2023, is denied.
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