However, On Remand, Fee Claimant Can Try For Them Under Another Statute.
If a defendant loses a SLAPP motion, fees can only be assessed against a defendant (and not defense counsel) if findings are made that the motion was frivolous/bad faith under CCP § 128.5 (which used to be dead, but has made a temporary reappearance). The trial court did assess $3,500 fees against a SLAPP losing defendant and defense counsel after determining defendant brought the motion rather than await a plaintiff’s consummation of her communicated intent to dismiss a harassment petition (which plaintiff did do). The lower court orally did make the necessary 128.5 findings.
However, the appellate court in London v. Glasser, Case No. B257657 (2d Dist., Div. 5 Apr. 15, 2015) (unpublished) determined that the fee award under the SLAPP statute (CCP § 425.16(c)(1)) was not compliant because CCP § 128.5 required written findings, something missing from the minute order. Also, the SLAPP fee award could not be made against defense counsel under Moore v. Kaufman, 189 Cal.App.4th 604, 615 (2010).
Nonetheless, plaintiff had hope—on remand, she could seek fees as a sanction under a harassment fee-shifting statute, CCP § 527.6(r)—since she moved under it, but the trial judge only made the award under the SLAPP statute.