No Safe Harbor Required to Sanction Frivolous Anti-SLAPP Motion, Fourth District Holds

Timothy Kowal, Esq.
November 17, 2020

Anti-SLAPP motions are powerful remedy, and litigants sometimes cannot resist filing even frivolous motions. Can a plaintiff faced with a frivolous anti-SLAPP motion get sanctions in light of the difficult procedural hurdles of CCP 128.5, which requires a separate motion served 21 days before filing it? The Fourth Appellate District, Division Two, says yes, finding these requirements of CCP 128.5(f) to be irreconcilably inconsistent with the anti-SLAPP statute. "We have tried" to reconcile them, says the Court, "but have concluded that it cannot be done."

Faced with fraud and aiding-and-abetting claims in a San Bernardino civil lawsuit, defendants responded with a frivolous anti-SLAPP motion. In its opposition, plaintiff asked the court to award its fees incurred to oppose the frivolous anti-SLAPP. The court agreed, set a hearing to determine the amount, and ultimately imposed almost $62,000 in sanctions against defendants.

That is about all we are given in the way of facts in Changsha Metro Group Co., Ltd. v. Xufeng, E073322 (D4d2), covered in the first two pages of the opinion. Apparently, defendants did not seriously dispute that their anti-SLAPP motion was frivolous and intended solely to delay. Instead, defendants argued they had to be provided a 21-day "safe harbor" notice before they could be sanctioned, and that the sanctions request had to be made in a separate motion. That argument, at least, was not frivolous, as it is explicitly required in the sanctions statute, CCP 128.5(f).

But it did not smell right to the Second Division of the Fourth Appellate District, who, for the rest of its 30 page opinion, tried to find a way to reconcile the sanctions clause of anti-SLAPP statute, CCP 425.16(c)(1), with the sanctions statute, CCP 128.5, which is incorporated by reference in the anti-SLAPP statute. "We have tried," says the Court, "but have concluded that it cannot be done."

The nub of the problem is that 128.5(f), which requires the 21-day safe harbor and a separate motion, preliminarily requires a finding under subdivision (a) that the underlying filing is frivolous entitling the moving party to fees. But subdivision (a) does not require a safe harbor notice, and may be requested either in moving papers "or responding" papers.

The Court considers the possibility that an anti-SLAPP hearing, which otherwise by statute must be heard within 30 days of filing, may be continued to provide plaintiff with more time to make the 21-day safe harbor notice. But the Court concludes that that would only play into the hands of litigants filing frivolous anti-SLAPP motions solely to delay.

Ultimately the Court, concluding there is no way to reconcile the provisions of CCP 128.5(f) with the anti-SLAPP statute, holds sanctions may be imposed through the procedures of CCP 128.5(a) and (c) in cases involving frivolous anti-SLAPP motions.

The Court also makes a plea to the Legislature of amend sections 128.5 and 425.16 to resolve the inconsistency.