Trial Court Made No Finding That SLAPP Motion Was Frivolous Or Filed Solely To Cause Unnecessary Delay
Code of Civil Procedure § 425.16(c)(1) entitles a plaintiff, or cross-complainant as the case may be, prevailing on an anti-SLAPP motion to recover costs and reasonable attorney’s fees if the court finds the anti-SLAPP motion to be frivolous or brought solely to cause unnecessary delay.
The trial court in Nielsen v. MacPherson, Case No. G059758 (4th Dist., Div. 3 October 8, 2021) (unpublished) made no such express or implied finding in awarding prevailing cross-complainants $9,800 in attorney fees pursuant to § 425.16(c)(1). Rather, the trial court awarded the fees simply because cross-complainants had prevailed against the anti-SLAPP motion and were "therefore" entitled. As a result, the 4/3 DCA, in a 3-0 opinion authored by Justice Fybel, reversed.
“An award of sanctions under the anti-SLAPP statute has two elements. First, the trial court must make a finding the SLAPP motion was frivolous or brought solely to delay the proceedings. Second, the court must follow the procedural requirements for a sanction order set out in section 128.5 which requires, among other things, the order ‘shall recite in detail the conduct or circumstances justifying the order.’” (Morin v. Rosenthal, 122 Cal.App.4th 673, 682 (2004).)