57 Cal.App.5th 1
Cal. Ct. App.2020Background
- Changsha Metro Group sued Peng Xufeng and Jia Siyu for fiduciary breach, constructive fraud, aiding and abetting, unjust enrichment, and imposition of a constructive trust. Defendants filed an anti‑SLAPP motion.
- Changsha opposed the anti‑SLAPP, argued the motion was frivolous, and requested attorneys’ fees in its opposition (initially supporting $88,823, later seeking $121,823).
- The trial court denied the anti‑SLAPP motion, found the motion frivolous, set a further hearing on fees, and ultimately awarded Changsha $61,915.
- Defendants argued the award was improper because (1) they were not given a 21‑day §128.5/§128.7 safe‑harbor to withdraw/correct, and (2) Changsha improperly requested sanctions in its opposition rather than by a separate motion.
- The Court of Appeal considered whether the §128.5/§128.7 safe‑harbor/separate‑motion requirements can reasonably operate within the anti‑SLAPP timing rules, and whether requesting fees in opposition satisfies §128.5(c).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a defendant is entitled to a 21‑day safe‑harbor under §128.5/§128.7 before sanctions/fee awards for a frivolous anti‑SLAPP motion | Changsha: the anti‑SLAPP context and timing make the §128.5(f)/§128.7 safe‑harbor impractical; safe‑harbor should not bar fee awards after plaintiff prevails on anti‑SLAPP | Defendants: §128.5 requires the 21‑day safe‑harbor and that plaintiffs give it before seeking sanctions; failure to do so defeats any sanctions award | Court: The §128.5(f) safe‑harbor/separate‑motion procedure cannot practically operate with anti‑SLAPP deadlines; where impractical, the court should apply §128.5(a) and (c) procedures instead (no mandatory 21‑day safe‑harbor in this context) |
| Whether plaintiff must move separately for sanctions (instead of requesting fees in anti‑SLAPP opposition) | Changsha: §128.5(c) expressly allows expenses to be requested in moving or responding papers and defendants were given an opportunity to be heard | Defendants: §128.5(f) requires a separate sanctions motion and Changsha’s in‑opposition request was procedurally defective | Court: Requesting fees in opposition complies with §128.5(c) when the opposing party has notice and an opportunity to be heard; separate motion and safe‑harbor per §128.5(f) are not required in the anti‑SLAPP timing context |
Key Cases Cited
- Nutrition Distribution, LLC v. Southern SARMS, Inc., 20 Cal.App.5th 117 (Cal. Ct. App. 2018) (analyzes interplay of §128.5 procedures and the safe‑harbor requirement)
- Li v. Majestic Industry Hills LLC, 177 Cal.App.4th 585 (Cal. Ct. App. 2009) (describes safe‑harbor purpose and options such as continuance/shortening time)
- San Diegans for Open Government v. City of San Diego, 247 Cal.App.4th 1306 (Cal. Ct. App. 2016) (discusses applicability of safe‑harbor to §128.5 sanctions)
- Moore v. Shaw, 116 Cal.App.4th 182 (Cal. Ct. App. 2004) (interpretation that anti‑SLAPP’s reference to §128.5 imports §128.5 procedures)
- Decker v. U.D. Registry, Inc., 105 Cal.App.4th 1382 (Cal. Ct. App. 2003) (recognizes §128.5 procedures govern anti‑SLAPP fee awards)
- Moofly Productions, LLC v. Favilla, 24 Cal.App.5th 993 (Cal. Ct. App. 2018) (applies §128.7 safe‑harbor to another sanctions provision; discussed by parties)
- National Shooting Sports Foundation, Inc. v. State of California, 5 Cal.5th 428 (Cal. 2018) (statutory‑interpretation canons on impossibility/absurdity used to construe conflicting statutory provisions)