One Remanded; The Other Affirmed.
Here is a situation we do not blog on that much: fee awards against the defense for bringing frivolous SLAPP motions, fully allowable under CCP § 425.16(c)(1).
In Mazzaferri v. Mazzaferro, Case No. A131076 (1st Dist., Div. 5 Nov. 9, 2011) (unpublished), defendants were sanctioned for filing frivolous SLAPP motions, with the trial court first awarding $11,150 in fees/costs with boilerplate sanctions language and then awarding $4,150 more at an ex parte proceeding brought to reduce the sanctions. The appellate court reversed. The defense first argued that the trial court erroneously sanctioned under CCP § 128.5 (which applied to pre-1995) actions rather than § 128.7, which has much different safe harbor protections. This one did not work, because 128.5 has been held to continue to apply to sanctions requests under section 425.16(c)(1). (See Olmstead v. Arthur J. Gallagher & Co., 32 Cal.4th 804, 817-818 (2004), agreeing with the analysis of Decker v. U.D. Registry, Inc., 105 Cal.App.4th 1382, 1392 (2003), superseded by statute on a different point as stated in Hall v. Time Warner, Inc., 153 Cal.App.4th 1337, 1349 (2007).) However, reversal was required because of two reasons: (1) the lower court did not follow 128.5 procedures by clearly articulating the reasons for the sanctions other than boilerplate recitation of the statute, a “no no” requiring remand; and (2) the $4,150 further award was made at an ex parte proceeding with no chance for the defense to have adequate notice and an opportunity to be heard.
However, a frivolous SLAPP sanction was affirmed in Faro De Luz v. Morales, Case No. B223488 (2d Dist., Div. 3 Nov. 9, 2011) (unpublished), where the defense and their lawyer (with the lawyer not appealing) being hit with fees/costs of $19,291.60. The defense suggestion that its appeal of the SLAPP merits ruling somehow stayed a fee ruling was rejected. (Carpenter v. Jack in the Box Corp., 151 Cal.App.4th 454, 461 (2007).) Although the trial court relied on CCP § 128.6 (a replacement statute to § 128.5 given “sunset” issues with 128.5), there was no procedural error of a prejudicial nature because both statutes were identical in nature. In an interesting footnote, the attorney challenged the fee award (even though she only appealed on behalf of her clients) on the basis that SLAPP fee awards can only be directed against parties, not counsel. The appellate court agreed that this was the case with respect to SLAPP fee/costs awards against plaintiffs, but that section 425.16(c)(1) was a sanctions statute incorporating 128.5 parameters–meaning that a frivolous fee/costs award could be entered against parties and/or their counsel. (Slip Opn., p. 10, fn. 10.)