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 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 (4th 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.
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