Also, CCP Section 128.5 Standards Do Apply to SLAPP Statute, Even Though 128.5 Is Long Gone.
The Second District, Division 3 answered two questions under the SLAPP statute provision that allows a lower court to award fees to a winning plaintiff, the SLAPP opponent.
Usually, a prevailing defendant automatically is awarded reasonable fees for winning a SLAPP motion. However, Code of Civil Procedure section 425.16(c)(1) does allow a plaintiff prevailing on a SLAPP motion to be awarded fees only if the trial court finds that the SLAPP motion was frivolous or solely intended to cause unnecessary delay, expressly incorporating the standards of Code of Civil Procedure section 128.5 (which applied to complaints filed on or before December 31, 1994, and now supplanted by section 128.7 and its safe harbor/notice protections).
Chitsazzadeh v. Kramer & Kaslow, Case No. B222988 (2d Dist., Div. 3 Sept. 27, 2011) (certified for publication) confronted a situation where a prevailing SLAPP plaintiff was awarded attorney’s fees of $900 under section 425.16(c)(1) because the trial court found the defense motion was frivolous/dilatory in nature. However, the procedural wrinkle was that this finding was based solely on finding that the defense untimely filed the SLAPP motion past the 60-day filing deadline (i.e., 60 days after service of the complaint). The Court of Appeal reversed the fee award, finding untimeliness alone does not satisfy the frivolous/dilatory standard given that a lower court has discretion to consider, and grant or deny on the merits, a SLAPP motion filed after the 60-day deadline even if the moving defendant fails to request leave of court to file the untimely motion.
On another issue, the appellate court rejected the notion that section 128.5’s expiration as of the end of 1994 meant the 128.5 standard was not injected into section 425.16(c)(1) because that latter SLAPP provision incorporated the substantive/procedural requirements of section 128.5 but did not incorporate its limitation as to the date of the filing of the complaint.
$900 fee award reversed in the case of the untimely defense SLAPP motion.