Safe Harbor Provision Was Not Complied With.
Despite the conclusion that plaintiff’s complaint was totally frivolous in nature (agreeing with a lower court’s assessment to the same effect), a Second District panel reversed a $16,178.35 sanctions award against plaintiff and his trial attorney, under CCP §§ 128.5 and 128.7, based on not satisfying the safe harbor provision governing these sanctions provisions.
Forde v. Friedland, Case No. B299966 (2d Dist., Div. 4 May 19, 2021) (unpublished) involved a situation where a plaintiff’s action was SLAPP-ed and the defense was awarded mandatory fees of $8,734.24 (a fee award not challenged on appeal as far as amount). The SLAPP award was upheld on appeal. However, even though the defense won an ex parte application shortening time to file the SLAPP and sanctions motions, the trial judge never shortened the safe harbor period, setting the two sets of motions on the same date. The lower court then sanctioned plaintiff and his attorneys $16,178.35 under sections 128.5 and 128.7. The mandatory fees award was affirmed, but the sanctions awards were reversed.
The problem here is that the defense did not give plaintiff or his attorney the safe harbor period, not even serving an unfiled sanctions motion but simply going on a “no day” notice for purposes of imposing sanctions—the appellate panel did so reluctantly because it did conclude that the action was frivolous in nature. However, the importance of the safe harbor provision prevailed, as it has in many other sanctions appeals in the past few years.