Changsa Metro Grp. Co., Ltd. v. Xufeng, No. E073322 (D4d2 Nov. 3, 2020)
A defendant who files a frivolous anti-SLAPP motion is subject to an award of plaintiff’s costs and fees “pursuant to Section 128.5.” Code Civ. Proc. § 425.16(c)(1). The question here is how much of the procedure for sanctions motions set out in § 128.5 applies to a request for sanctions for a frivolous anti-SLAPP motion. In particular, (1) can sanctions under § 425.16(c)(1) be requested in an opposition to an anti-SLAPP motion; and (2) does 21-day the safe harbor provision in § 128.5(f) apply to § 425.16(c)(1) sanctions?
The Court of Appeal here explains, at some length, the various internal inconsistencies within §128.5(a), (c), and (f). In particular, (f) seems to require a finding of frivolity before a sanction can be entered, but also requires the service of a separate motion 21 days before it is filed, with a “safe harbor” to withdraw the offending document during that window. But then (c) suggests that a sanctions demand could be made in an opposition to a motion, which can’t really be reconciled with the separate motion/21 day safe harbor requirement in (f). After examining the legislative history, the court finds that the requirements of (f) should apply whenever practicable, but cannot to circumstances where they would defeat the essential function of the statute.
The upshot of that is that the § 128.5(f) procedures can’t apply to § 425.16(c)(1). An anti-SLAPP motion is supposed to be heard within 30 days of service. But if the motion is frivolous, there’s no practical way the plaintiff could prepare and serve (but not file) a § 128.5(f) motion within that schedule, while also permitting the defendant the 21-day window to withdraw the motion. The Court grants that various continuances could make it technically possible, but they would put a great deal of burden on the parties and the trial judge to deal with the various ex partes needed to handle all that scheduling.
The Court thus concludes that “subdivision (f) does not work with the anti-SLAPP statute.” It follows that a request for §425.16(c)(1) sanctions can be made in an anti-SLAPP opposition brief and that a 21-day safe harbor is not required. So long as the moving defendant has an opportunity to be heard, that procedure is consistent with § 128.5(a) and (c).
Affirmed.