Appellate Court Agreed That Plaintiff Did Not Have An Opportunity To Comply With CCP § 128.5 Safe Harbor Sanctions Provision, But Indicated It Should Be Followed Absent Exceptional Circumstances.
In Chang v. Brooks, Case Nos. B320278 et al. (2d Dist., Div. 3 Mar. 14, 2025) (unpublished), defendant’s SLAPP motion was determined to be properly denied by the lower court, and the lower court's $73,405 fees and $1,351 costs awards to plaintiff, based on the perception that the defense SLAPP motion was frivolous in nature, were affirmed on appeal.
The defense’s primary argument was that plaintiff failed to comply with the CCP § 128.5 21-day safe harbor provision, because the court in Zarate v. McDaniel, 97 Cal.App.5th 484 said this was the general rule given its disagreement with broader language in Changsha Metro Group Co., Ltd. v. Xufeng, 57 Cal.App.5th 1, 19-23 (2020) with respect to a SLAPP motion arguing fees should be awarded because the defense motion was frivolous. However, based on the circumstances notwithstanding the general rule, the Chang court agreed that plaintiff had no real opportunity to provide the safe-harbor notice such that the fees and costs award was appropriate under the circumstances—Xufeng was good law for this one.