Defendant Was In Pro Per, So No Fee; CCP § 128.5 Did Not Provide Basis.
In Skerston v. Newman, Case No. G043164 (4th Dist., Div. 3 Dec. 7, 2010) (unpublished), the good news for an in pro per defendant is that he won a SLAPP motion. The bad news is that in pro per defendants representing themselves usually cannot obtain SLAPP fees. However, the in pro per defendant here tried to gain compensation through a twist–he asked for sanctions under Code of Civil Procedure section 128.5. It worked–the trial court granted him filing fee sanctions recovery in the amount of $710.
Well, the appellate court did not agree with the circumvention.
CCP § 128.5 was defunct at the time of the order, and has been defunct with respect to actions filed on or after January 1, 1995. Instead, section 128.7, complete with safe harbor requirements, is the governing provision–a provision not complied with. Because the wrong section was considered and no real reason was given for the sanctions, the order had to be reversed on appeal. (Cf. Morin v. Rosenthal, 122 Cal.App.4th 673, 682-683 (2004) [due process violation to issue sanctions order without specifying the frivolous or dilatory conduct].)
Skerston, a 3-0 decision, was penned by Acting Presiding Justice Bedsworth.
