Division 4 Follows Moore v. Kaufman.
In our October 24, 2010 post, we examined Moore v. Kaufman, 2010 Cal.App. LEXIS 1813, a Second District, Division 1 decision where a SLAPP fee award against losing plaintiff’s counsel was overturned. The basis was that Code of Civil Procedure section 425.16(c) did not allow for such an award.
Division 4 has now agreed with the reasoning of Moore, reversing the imposition of $6,390 in sanctions against plaintiff’s counsel in a SLAPP proceeding. In doing so, Division 4 in Lenk v. Nguyen, Case No. B218933 (2d Dist., Div. 4 Nov. 12, 2010) (unpublished) also found that sanctions are expressly allowable to a prevailing SLAPP plaintiff if the motion was found to be frivolous under CCP § 128.5, which does allow fees to be assessed against the losing party and/or its attorney (a defendant/its counsel). However, this matter involved an award against plaintiff’s attorney, with no predicate for authorization existing under the Code.