In the instant case the procedure that has to apply is the first procedure, set forth
in subdivisions (a) and (c). That procedure has to apply because the subdivision (f)
procedure is only allowed after “the court issues an order pursuant to subdivision (a).”
(§ 128.5, subd. (f)(1).) The trial court in this case had not issued an order under
subdivision (a), so it could not utilize the subdivision (f) procedure.
Moreover, the procedure set forth in subdivisions (a) and (c) is the only practical
procedure to apply in the anti-SLAPP context. An anti-SLAPP motion must be filed
“within 60 days of the service of the complaint.” (§ 425.16, subd. (f).) The hearing on
8
the motion “shall be scheduled . . . not more than 30 days after the service of the
motion.” (§ 425.16, subd. (f).) Opposition to an anti-SLAPP motion is due “at least
nine court days . . . before the hearing.” (§ 1005, subd. (b).)
In order to comply with the 21-day safe harbor notice, a plaintiff would need to
draft its sanctions motion almost immediately after receiving the anti-SLAPP motion
due to the 30-day clock that is running for the hearing date. Then, the plaintiff would
need to draft its opposition to the anti-SLAPP motion while risking that the defendant
will withdraw or correct its anti-SLAPP motion during the 21-day safe harbor period.
(§ 128.5, subd. (f)(1)(B).) If the plaintiff does not want to risk the cost of drafting its
opposition while the defendant has the 21-day option to withdraw or correct its motion,
then the plaintiff might apply to continue the anti-SLAPP hearing until after the 21-day
safe harbor period has elapsed, but that would contradict the express purpose of the anti-
SLAPP statute, which was designed “to establish an efficient screening mechanism for
‘disposing of SLAPP’s quickly and at minimal expense to taxpayers and litigants.’ ”
(City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 422.) Forcing a plaintiff to choose
between (1) lengthening the anti-SLAPP process by obtaining a continuance for the
anti-SLAPP hearing; or (2) risking needless expense by drafting an opposition during
the safe harbor period, contradicts the anti-SLAPP goals of ending SLAPP cases
quickly and with minimal expense.
In sum, we conclude subdivision (f) did not provide the applicable procedure in
this case because (1) the trial court had not previously issued an order for expenses
pursuant to subdivision (a) (§ 128.5, subd. (f)(1)); and (2) the 21-day safe harbor
9
provision contradicts the goals of the anti-SLAPP statute. Therefore, the proper
procedure for the trial court to follow in regard to Changsha’s request for attorneys’ fees
was the procedure set forth in subdivisions (a) and (c).
C. APPLICATION
We now examine whether there was compliance with the procedures of
subdivisions (a) and (c).
Subdivision (a) permits a trial court to order a party “to pay the reasonable
expenses, including attorney’s fees, incurred by another party.” Subdivision (c) permits
a request for attorneys’ fees to be made in “responding papers,” and requires that an
“opportunity to be heard” be provided.
Changsha requested an award of attorneys’ fees in its opposition to the anti-
SLAPP motion. The request was proper because it was presented in Changsha’s
“responding papers.” (§ 128.5, subd. (c).) Defendants were given an opportunity to be
heard regarding the request for attorneys’ fees (1) in their reply to Changsha’s
opposition; (2) at the hearing on April 3, 2019; (3) in their motion to vacate, in which
they argued “s.[]128.5’s mandatory procedural predicates were never complied with”;
and (4) at the hearing on June 4, 2019.
In sum, the request was properly submitted in Changsha’s opposition and
defendants were given an opportunity to be heard. Therefore, we conclude the trial
court followed the proper procedure in awarding attorneys’ fees to Changsha. (§ 128.5,
subds. (a) & (c).)
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DISPOSITION
The order is affirmed. Respondents are awarded their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1).)
CERTIFIED FOR PUBLICATION
MILLER J.
We concur:
RAMIREZ P. J.
CODRINGTON J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that a plaintiff seeking attorney's fees for a frivolous anti-SLAPP motion under Code of Civil Procedure section 425.16, subdivision (c)(1) must follow the procedures in section 128.5, subdivisions (a) and (c), rather than the separate motion and safe harbor requirements of subdivision (f).
Issues
Whether a request for attorney's fees for a frivolous anti-SLAPP motion requires a 21-day safe harbor period under section 128.5, subdivision (f).
Whether a request for attorney's fees for a frivolous anti-SLAPP motion must be made via a separate motion rather than in opposition papers.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“The anti-SLAPP statute’s plain language reflects that, if an anti-SLAPP motion is frivolous, then “the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.””
“In sum, we conclude subdivision (f) did not provide the applicable procedure in this case because (1) the trial court had not previously issued an order for expenses pursuant to subdivision (a)”
“The request was proper because it was presented in Changsha’s “responding papers.””