SLAPP: Winning SLAPP Plaintiff Seeking Attorney’s Fees For A Frivolous SLAPP Motion Did Not Have To Comply With 21-Day Safe Harbor Notice Requirement Of CCP §128.5

4/2 DCA Opinion Counsels That A Plaintiff In This Situation To Ask For Attorney’s Fees In The Opposition To The SLAPP Motion.

            For readers of our blog, you probably know by now that a plaintiff defeating a frivolous SLAPP motion can be awarded reasonable attorney’s fees if the frivolity standards of CCP §128.5 are satisfied.  (CCP §425.16(c)(1).)  But under CCP §128.5(f), there is the need to give a 21-day “safe harbor” notice so that a party is given the opportunity to withdraw the offending pleading.  So, how does this all work for a plaintiff who opposes a SLAPP motion and believes it is frivolous in nature?

            The answer has been provided by the 4/2 DCA in Changsha Metro Group Co., Ltd. v. Xuefeng, Case No. E073322 (4^th Dist., Div. 2 May 20, 2020) (published). 

            After construing the two statutory schemes in pari materia (fancy Latin for “in tandem”), the appellate court concluded that no 21-day “safe harbor” notice needs to be given where a winning plaintiff included a fees request in opposition papers to the SLAPP motion.  This result counsels that plaintiffs believing the motion to be frivolous should include a fee request in opposition papers so as to allow the defense an opportunity to reply and to avoid the safe harbor notice requirements. 

BLOG COMMENT: The 4/2 DCA vacated this opinion on May 21, 2020 and ordered supplemental briefing.  After that briefing, it reissued its published opinion in Changsha Metro Group Co., Ltd. v. Xuefeng, Case No. E073322A on November 3, 2020, as discussed in our November 4, 2020 post.