SLAPP: Fourth District, Division Two Vacates Prior Decision To Review Irreconcilability Of CCP § 128.5 Safe Harbor Provision With Timing Of Requesting Fees For Frivolous SLAPP Motion

Appellate Court Determines That 21 Days Pragmatically Impossible To Provide, So Preferred Course Is To Have A Plaintiff Request Fees In Opposition To SLAPP Motion To Give An Opportunity For The Defense To Respond/Be Heard.

            In a May 21, 2020 post, we reviewed Changsha Metro Group Co., Ltd. v. Xuefeng, Case No. E073322 (4^th Dist., Div. 2 May 20, 2020) (published), which dealt with the collision between the CCP §128.5 21-day safe harbor provision and a plaintiff’s ability to request an award of attorney’s fees for a frivolous defense SLAPP motion.  The 4/2 DCA vacated this opinion on May 21, 2020 and ordered supplemental briefing.  After that briefing, it reissued its published opinion for Changsha Metro Group Co., Ltd. v. Xuefeng, Case No. E073322A, on November 3, 2020.  It expressly found that there was irreconcilability between the 128.5 safe harbor requirement and the timing necessary to entertain a request by a plaintiff for frivolous SLAPP fees.  However, the deciding panel found that a request for frivolous fees was timely, even if 21 days did not elapse, as long as made in a way such that the defense has an opportunity to be heard.  The preferred route, therefore, was to request frivolous fees in a plaintiff’s SLAPP opposition papers so that some semblance of due process could be achieved.