Making Sense of Anti-SLAPP Sanctions Procedure

Changsa Metro Grp. Co., Ltd. v. Xufeng, No. E073322 (D4d2 Nov. 3, 2020)

A defendant who files a frivolous anti-SLAPP motion is subject to an award of plaintiff’s costs and fees “pursuant to Section 128.5.” Code Civ. Proc. § 425.16(c)(1). The question here is how much of the procedure for sanctions motions set out in § 128.5 applies to a request for sanctions for a frivolous anti-SLAPP motion. In particular, (1) can sanctions under § 425.16(c)(1) be requested in an opposition to an anti-SLAPP motion; and (2) does 21-day the safe harbor provision in § 128.5(f) apply to § 425.16(c)(1) sanctions?

The Court of Appeal here explains, at some length, the various internal inconsistencies within §128.5(a), (c), and (f). In particular, (f) seems to require a finding of frivolity before a sanction can be entered, but also requires the service of a separate motion 21 days before it is filed, with a “safe harbor” to withdraw the offending document during that window. But then (c) suggests that a sanctions demand could be made in an opposition to a motion, which can’t really be reconciled with the separate motion/21 day safe harbor requirement in (f). After examining the legislative history, the court finds that the requirements of (f) should apply whenever practicable, but cannot to circumstances where they would defeat the essential function of the statute.

The upshot of that is that the § 128.5(f) procedures can’t apply to § 425.16(c)(1). An anti-SLAPP motion is supposed to be heard within 30 days of service. But if the motion is frivolous, there’s no practical way the plaintiff could prepare and serve (but not file) a § 128.5(f) motion within that schedule, while also permitting the defendant the 21-day window to withdraw the motion. The Court grants that various continuances could make it technically possible, but they would put a great deal of burden on the parties and the trial judge to deal with the various ex partes needed to handle all that scheduling.

The Court thus concludes that “subdivision (f) does not work with the anti-SLAPP statute.” It follows that a request for §425.16(c)(1) sanctions can be made in an anti-SLAPP opposition brief and that a 21-day safe harbor is not required. So long as the moving defendant has an opportunity to be heard, that procedure is consistent with § 128.5(a) and (c).

Affirmed.

Sanctions Switcharoo in San Diego

CPF Vaseo Assocs., LLC v. Gray, No. D072909 (D4d1 Dec. 6, 2018)

There was a period of time where there was a spit of authority about whether Code of Civil Procedure § 128.5 required a party moving for sanctions to pre-serve the motion on the alleged offender to provide an opportunity to withdraw the offensive pleading. (This is known as the safe harbor rule.) But the Court here settles the issue.

Section 128.5 has bounced in and out of the code a few times over the years. It expired in the '90s when a different sanctions statute—§ 128.7—was enacted. But then it was brought back to life in 2014. Back in 2016, the 4/1 held that the safe harbor rule didn’t apply to § 128.5. The Legislature subsequently amended the statute to make clear that it did. But then at the beginning of 2018, the 2/7—in post-amendment case applying pre-amendment law—held that the safe harbor applied all along. And now—in yet another case applying pre-amendment law—the 4/1 sees the error of its ways, agreeing with the 2/7 that the safe harbor rule always applied to motions under § 128.5.

Reversed.

Sanctions Never Seem to Stick, Vol. 2,482 ...

Moofly Prods., LLC v. Favila, No. B282084 (D2d1 Jun 22, 2018)

Code of Civil Procedure § 1008(d) says that a party can get sanctions for an improper motion for reconsideration “as allowed by [§] 128.7.” Section 128.7(c)(2), in turn, says a court can enter sanctions, but only after it issues an order to show cause that describes the conduct and gives the offending party twenty-one days’ notice to show cause or to withdraw the offending filing. The twenty-one day window to withdraw the filing is referred to as a “safe harbor.” So the question here is whether § 1008(d)’s reverence to § 128.7 means to incorporate just the standard for deciding when something is frivolous or whether it incorporates the whole shebang of § 128.7’s procedures, including the safe harbor. 

The Court finds that § 1008 takes in §128.7 whole hog. Relying on Moore v. Shaw, 116 Cal. App. 4th 182, 199 (2004), which addressed a similar sanctions cross-reference in the anti-SLAPP statute, it holds that by referencing § 128.7, the Legislature meant to incorporate all of the sanctions regime, including the safe harbor procedure. Which basically means that if the court thinks a reconsideration motion merits sanctions, it can’t deny the motion and then issue an order to show cause. Because in that case, the motion can’t be withdrawn. The notice period for a motion is generally shorter than the safe harbor, so the court would need to take the reconsideration motion off calendar, or at least kick the hearing to give the safe harbor window and then address the merits and sanctions at the same time. 

Which, practically speaking, means that sanctions under § 1008(d) are basically never going to happen.

Reversed.

That Was Always the Intent; Just Don't Ask the Guys in San Diego...

Nutrition Distrib., LLC v. Southern Sarms, Inc., B0280983 (D2d7 Jan. 31, 2018)

So about two years ago, the 4/1 held that when moving for sanctions under Code of Civil Procedure § 128.5—which had been revived by the Legislature in 2014—a moving party was not required to serve the motion 21 days in advance and to offer a chance to withdraw the pleading. (A rule commonly called the “safe harbor.”) According to the court, the safe harbor didn’t apply even though it is specifically codified in § 128.7(c), and a cross reference in revived § 128.5(f) specifically said sanctions had to be imposed “consistently with the standards, conditions, and procedures set forth in subdivisions (c),(d), and (h) of Section 128.7.” I was skeptical.