Filed 11/27/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION THREE
MARIA ZARATE et al., B318273
Plaintiffs and Respondents, Los Angeles County
Super. Ct. No.
v. 19PSCV00306
ADAM MCDANIEL,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Peter A. Hernandez, Judge. Reversed and
remanded with directions.
Law Offices of Robert A. Brown and Robert A. Brown for
Defendant and Appellant.
N. Micheli Quadros for Plaintiffs and Respondents.
_______________________________________
INTRODUCTION
This is the second appeal arising out of defendant Adam
McDaniel’s special motion to strike the complaint filed by
plaintiffs Maria Zarate and Jose Lopez 1 (Code Civ. Proc., 2 §
425.16; anti-SLAPP motion). In the first appeal, we affirmed the
trial court’s order denying McDaniel’s anti-SLAPP motion,
concluding McDaniel failed to show plaintiffs’ claims arose out of
protected activity because he filed only a “perfunctory anti-
SLAPP motion.” (Zarate v. McDaniel (May 25, 2021, B302531
[nonpub. opn.] (Zarate I).) The court later ordered McDaniel to
pay plaintiffs more than $13,000 in attorney fees and costs after
finding his anti-SLAPP motion was frivolous.
In this appeal, McDaniel challenges the fee award. As we
explain, the court should have denied plaintiffs’ attorney fees
motions because they failed to provide McDaniel a 21-day safe
harbor notice before filing their attorney fees motions. We
therefore reverse and remand the matter with directions for the
court to enter a new order denying plaintiffs’ attorney fees
motions.
1 We collectively refer to Zarate and Lopez as “plaintiffs.”
2 All undesignated statutory references are to the Code of Civil
Procedure.
2
BACKGROUND 3
In April 2019, plaintiffs filed a complaint asserting 18
causes of action against McDaniel and his girlfriend, Lauren
Torres.
In June 2019, McDaniel filed an anti-SLAPP motion
seeking to strike the claims asserted against him in plaintiffs’
complaint. McDaniel’s supporting memorandum of points and
authorities spanned little more than three pages. McDaniel
asserted plaintiffs’ claims arose out of his status as Torres’s
boyfriend and his threats to prosecute an unlawful detainer
action against plaintiffs, both of which McDaniel claimed were
protected activities under section 425.16. Plaintiffs opposed
McDaniel’s anti-SLAPP motion in August 2019, arguing among
other things, that McDaniel’s motion was frivolous. McDaniel
didn’t file a reply.
In September 2019, the court denied McDaniel’s motion.
The court explained that McDaniel did not “demonstrate[] that
[plaintiffs’] action falls within the same class of suits subject to
the special motion to strike.” According to the court, McDaniel
failed to explain how his alleged protected activities formed the
basis for any of plaintiffs’ claims and failed to address how any of
the claims arose out of protected activity even though plaintiffs
alleged McDaniel engaged in other, non-protected activity.
In November 2019, Zarate and Lopez filed motions to
recover $9,105.33 in attorney fees and costs from McDaniel.
Plaintiffs argued they were entitled to recover fees and costs
under sections 425.16, subdivision (c) and 128.5 because
3 A more thorough summary of this case’s facts and procedural history
can be found in Zarate I.
3
McDaniel’s anti-SLAPP motion was frivolous or solely intended
to cause unnecessary delay. 4
In May 2021, we affirmed the court’s order denying
McDaniel’s anti-SLAPP motion. We concluded McDaniel failed to
show any of plaintiffs’ claims arose out of his protected activity
because he filed only a “perfunctory” motion.
In August 2021, McDaniel opposed plaintiffs’ attorney fees
motions. McDaniel argued the court should deny the motions
because, among other things, plaintiffs did not comply with
section 128.5, subdivision (f)’s 21-day safe harbor provision and
failed to show he filed his anti-SLAPP motion in bad faith.
In September 2021, plaintiffs filed their replies and
requested an additional $4,125 in fees and costs incurred in
defending against McDaniel’s appeal from the court’s order
denying his anti-SLAPP motion.
In December 2021, the court granted plaintiffs’ attorney
fees motions. Relying in part on our analysis in Zarate I, the
court found McDaniel’s anti-SLAPP motion was frivolous and
that “ ‘any reasonable attorney would agree that an anti-SLAPP
motion did not lie under these circumstances.’ ” The court
refused, however, to find whether McDaniel filed his anti-SLAPP
motion in bad faith. The court also didn’t address McDaniel’s
argument that plaintiffs failed to comply with section 128.5,
subdivision (f)’s 21-day safe harbor provision before filing their
4 Although plaintiffs filed separate attorney fees motions, their motions
are virtually identical and sought to recover the same amount of fees
and costs for legal services performed by the two attorneys who
litigated their joint opposition to McDaniel’s anti-SLAPP motion.
4
attorney fees motions. The court ordered McDaniel to pay
plaintiffs $13,264.33 in attorney fees and costs.
McDaniel appeals from the fee award. 5
DISCUSSION
McDaniel contends the court erred in awarding plaintiffs
attorney fees and costs. Among other things, he argues the court
should have denied plaintiffs’ attorney fees motions because they
failed to comply with section 128.5, subdivision (f)’s 21-day safe
harbor provision. We agree.
Section 425.16, subdivision (c) provides that “[i]f the court
finds that a special motion to strike is frivolous or is solely
intended to cause unnecessary delay, the court shall award costs
and reasonable attorney’s fees to a plaintiff prevailing on the
motion, pursuant to [s]ection 128.5.” Section 425.16, subdivision
(c)’s reference to section 128.5 means a court “ ‘must use the
procedures and apply the substantive standards of section 128.5
in deciding whether to award attorney fees [to a prevailing
plaintiff] under the anti-SLAPP statute.’ ” (Moore v. Shaw (2004)
116 Cal.App.4th 182, 199.)
“Section 128.5 authorizes sanctions for certain bad faith
actions or tactics.” (CPF Vaseo Associates, LLC v. Gray (2018) 29
Cal.App.5th 997, 1001 (Gray).) Specifically, under section 128.5, a
5 An order awarding a prevailing anti-SLAPP plaintiff attorney fees
and costs under sections 128.5 and 425.16 is an appealable order under
section 904.1, subdivision (a)(12), where, as here, the fee award
exceeds $5,000. (See Doe v. Luster (2006) 145 Cal.App.4th 139, 146 [an
award of more than $5,000 in attorney fees to a plaintiff prevailing on
an anti-SLAPP motion is appealable under section 904.1, subdivision
(a)(12)].)
5
trial court may award “reasonable expenses, including attorney’s
fees, incurred by another party as a result of actions or tactics,
made in bad faith, that are frivolous or solely intended to cause
unnecessary delay.” (§ 128.5, subd. (a).)
Section 128.5, subdivision (f) establishes several procedures
for awarding sanctions that must be followed “ ‘to the extent they
are compatible with the other requirements of section 128.5.’ ”
(Gray, supra, 29 Cal.App.5th at pp. 1003–1004, quoting Nutrition
Distribution, LLC v. Southern SARMs, Inc. (2018) 20 Cal.App.5th
117, 126 (Nutrition Distribution).) Relevant here, section 128.5,
subdivision (f)(1)(B) is a safe harbor provision, which provides
that where the challenged action—like a written motion—“can be
withdrawn or appropriately corrected,” a motion for sanctions
cannot be filed with the court unless the challenged action has
not been withdrawn or corrected “21 days after service of the
[sanctions] motion or [within] any other period as the court may
prescribe.” (§ 128.5, subd. (f)(1)(B).)
Thus, to obtain sanctions under section 128.5, a party
typically must follow a two-step procedure. (Transcon Financial,
Inc. v. Reid & Hellyer (2022) 81 Cal.App.5th 547, 550 (Transcon).)
It must first serve a motion for sanctions on the offending party.
(Ibid.) Service of the motion triggers the 21-day safe harbor
period during which the moving party may not file the motion.
(Ibid.) During that 21-day period, the offending party may avoid
sanctions by withdrawing or correcting the challenged action.
(Ibid.) If the offending party does not withdraw or correct the
challenged action, the moving party may file the sanctions
motion. (Ibid.)
Courts strictly apply section 128.5, subdivision (f)’s safe
harbor provision. (Gray, supra, 29 Cal.App.5th at p. 1007.) If a
6
moving party fails to comply with it, the sanctions motion must
be denied. (Transcon, supra, 81 Cal.App.5th at p. 551.)
We typically review an order awarding attorney fees and
costs for abuse of discretion. (Foundation for Taxpayer &
Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1375,
1388.) But where the facts are undisputed, as they are here, we
independently review whether a sanctions award comports with
statutory requirements. (See Transcon, supra, 81 Cal.App.5th at
p. 550.) As we explain, the court erred in granting plaintiffs’
attorney fees motions because plaintiffs failed to comply with
section 128.5, subdivision (f)’s safe harbor provision.
McDaniel filed his anti-SLAPP motion on June 18, 2019.
Plaintiffs filed their joint opposition to McDaniel’s motion in early
August 2019. The court heard argument on the motion in early
September 2019 and issued its written ruling denying the motion
eight days later. Plaintiffs didn’t serve McDaniel with notice of
their attorney fees motions until November 2019, however, about
two months after the court denied McDaniel’s anti-SLAPP
motion, at which point McDaniel could no longer withdraw his
motion. Plaintiffs also apparently served McDaniel with notice of
their attorney fees motions after they filed their motions with the
court. Plaintiffs, therefore, failed to comply with the plain terms
of section 128.5, subdivision (f)’s safe harbor provision.
Citing Changsha Metro Group Co., Ltd. v. Xufeng (2020) 57
Cal.App.5th 1 (Changsha), plaintiffs argue they weren’t required
to provide McDaniel with safe harbor notice before filing their
attorney fees motions. In Changsha, the court of appeal held the
safe harbor provision didn’t apply to the plaintiff’s attorney fees
request under section 425.16, subdivision (c). (Changsha, at pp.
19–23.) After reviewing section 128.5’s legislative history, the
7
court concluded the Legislature intended for parties seeking
sanctions under that statute to comply with its safe harbor
provision “as much as possible.” (Changsha, at p. 18.) The court
noted, however, that the Legislature intended to create an
exception to the safe harbor provision where it would not be
practical to comply with it. (Id. at pp. 18–21; see also Gray, supra,
29 Cal.App.5th at pp. 1003–1004 [section 128.5, subdivision (f)’s
procedural requirements should be followed to the extent they
are compatible with section 128.5’s other requirements].) The
court found it would not have been practical for the plaintiff to
comply with the safe harbor provision considering the expedited
hearing and briefing schedule that generally applies to anti-
SLAPP motions. (Changsha, at pp. 19–23; see also § 425.16, subd.
(f) [the hearing on an anti-SLAPP motion must be scheduled “not
more than 30 days after the service of the motion unless the
docket conditions of the court require a later hearing”].)
This case is distinguishable from Changsha. When
McDaniel filed his anti-SLAPP motion on June 18, 2019, the
court scheduled a hearing on the motion for early September
2019, or nearly three months after the motion was filed.
Accordingly, plaintiffs had well over a month to review
McDaniel’s motion to ascertain whether it was frivolous or
intended to cause unnecessary delay, draft their attorney fees
motions, and serve those motions on McDaniel with sufficient
time to provide him a 21-day window within which he could have
withdrawn that motion before the court ruled on it. Thus,
8
plaintiffs were not faced with an expedited briefing schedule like
the one contemplated in Changsha. 6
Importantly, plaintiffs don’t contend that it would have
been impractical for them to provide McDaniel safe harbor notice
before filing their attorney fees motions. Indeed, plaintiffs’
motions were not complex and include less than a single page of
analysis explaining why McDaniel’s anti-SLAPP motion was
frivolous. Nor do plaintiffs contend that McDaniel could not have
withdrawn or corrected his anti-SLAPP motion had they provided
him timely notice of their attorney fees motions under section
128.5, subdivision (f). (See Nutrition Distribution, supra, 20
Cal.App.5th at p. 130 [section 128.5, subdivision (f)’s safe harbor
provision applies when the motion for sanctions is “based on a …
written motion or court filing that could be withdrawn”], italics
added.)
In sum, plaintiffs did not comply with section 128.5,
subdivision (f)’s safe harbor provision before filing their attorney
fees motions. We therefore reverse the fee award with directions
6 We disagree with Changsha to the extent it holds that section 128.5’s
safe harbor provision is never applicable in the anti-SLAPP context.
Changsha acknowledged that its “review of the section 128.5
legislative history reveals the Legislature (1) wanted the safe harbor
provision to apply broadly; (2) did not want the safe harbor provision to
apply when withdrawal or correction of the allegedly frivolous
document or act would be impractical; (3) did not delete subdivisions
(a) and (c) when adding the safe harbor provision; and (4) was aware
that an order under subdivision (a) would be a prerequisite to the safe
harbor provision being triggered.” (Changsha, supra, 57 Cal.App.5th at
p. 17; see also Li v. Majestic Industry Hills LLC, (2009) 177
Cal.App.4th 585, 594 [moving party could have modified the 21-day
safe harbor period by seeking a continuance of the underlying hearing
or an order shortening time to serve its sanctions motion].)
9
for the court to deny plaintiffs’ attorney fees motions. 7 (See
Transcon, supra, 81 Cal.App.5th at pp. 551–552.)
DISPOSITION
The order awarding plaintiffs attorney fees and costs is
reversed, and the trial court is directed to enter an order denying
plaintiffs’ attorney fees motions. In the interests of justice, the
parties shall bear their own costs on appeal.
LAVIN, J.
WE CONCUR:
EDMON, P. J.
ADAMS, J.
7 In light of our conclusion, we deny plaintiffs’ request for an award of
additional attorney fees and costs incurred in defending against this
appeal. We also need not address the other arguments that McDaniel
raises on appeal.
10