I'm incredibly frustrated by this opinion by Justice Miller. Profoundly, deeply, irretrievably frustrated.
Let me say at the outset: Yes. Yes, yes, yes, yes, yes. Defendants filed a frivolous anti-SLAPP motion. The trial court accordingly awarded $61,915 in fees to the plaintiff pursuant to the anti-SLAPP provisions that affirmatively require an award of fees in such cases. Yes. Exactly right.
So when Justice Miller affirms that award, I'm totally on board for the result.
But, as to how he gets to that result in the opinion:
No, no, no, no, no, no, no. Deeply and profoundly frustrating.
I totally agree with him on his key practical and doctrinal point: That you can't require the usual separate motion and 21-day "safe harbor" provisions of CCP 128.5 to frivolous anti-SLAPP motions. The timing and structure totally doesn't work. It'd completely conflict with the purposes as well as the manifest intent of the statute. Exactly right. It's also, parenthetically, not what's done in practice. Just like defendants often ask for (and receive) their attorney's fees in the anti-SLAPP motion itself -- no separate motion required (though you can file one after you prevail on the motion if you'd like) -- so too to plaintiffs often ask for (and receive) their attorney's fees as a result of the anti-SLAPP opposition itself. No side has to give the other one an opportunity to "withdraw" their papers (the complaint or the motion), and as long as the other side gets to be heard (which they do), either side can ask for their fees on an anti-SLAPP motion in their underlying papers. No separate motion is necessary.
On these points, again, Justice Miller seems exactly right to me. That's the way the world both is and should be.
The problem is this: Section 425.16(c) of the anti-SLAPP statute says that a plaintiff can recover (i.e., a court can award) its fees in response to a frivolous anti-SLAPP motion "pursuant to Section 128.5." That's the usual sanction provision in the CCP. The thing is: That statute requires that any sanctions be sought (1) in a separate motion, and (2) with a 21-day safe harbor period. Which, as I've mentioned before, totally doesn't work in connection with a frivolous anti-SLAPP motion. Yet here we have a defendant saying, basically, "You can't sanction me for my frivolous anti-SLAPP motion because you didn't comply with CCP 128.5, since you didn't give me 21 days notice and make a separate motion, so ha ha ha, I get away with it." Which, if true, is what virtually every frivolous anti-SLAPP motion filer is going to do. We've already got a problem with frivolous anti-SLAPP motions given the huge procedural benefits (discovery stay, automatic appeal, etc.) arising from such requests. We don't need to make such motions even more palatable by making it virtually impossible to sanction 'em.
So, on that, right on, Justice Miller. Those provisions don't apply.
But why not?
Here's where I think the Court of Appeal goes completely off the rails.
Justice Miller says: "Ha! CCP 128.5 has two different provisions. The first, paragraphs (a) and (c), say that you can award attorneys fees for frivolous papers if such a request is made in the moving or opposition papers of a brief. It's only the second provision, paragraph (f), that contains all those pesky requirements about having to file a separate motion, have a 21-day safe harbor period, etc. So the trial court here just followed the first of those provisions -- (a) and (c). So there! No safe harbor or separate motion requirement applies."
Yes, if true, that'd solve the problem.
But I'm profoundly confident it's not.
First off: To my knowledge, no one, ever, has read the statute this way. The cases that say that you've got to file a separate motion and follow the safe harbor provision under Section 128.5 are legion. And I need not even mention the massive legislative history in this regard, which makes it crystal clear that you've got to follow the separate motion and safe harbor provisions whenever you ask for fees under Section 128.5. There simply aren't two different provisions, one of which requires a safe harbor separate motion and one of which doesn't.
And why would there be?! What would possibly be the point of requiring a separate motion and safe harbor in paragraph (f) if a party could get around it by simply filing a request for fees in response to a frivolous request pursuant to paragraphs (a) and (c), which purportedly contain no such provision?
To make things worse, Justice Miller's analysis also appears internally inconsistent. He says: "Thus, section 128.5 provides two procedures for an award of attorneys’ fees:
(1) request attorneys’ fees in moving or opposing papers and allow an opportunity to
respond (§ 128.5, subds. (a) & (c)); and (2) after obtaining attorneys’ fees per
subdivision (a), request a sanction of attorneys’ fees by (a) filing a separate motion, and
(b) providing a 21-day safe harbor." What?! Why would you allegedly "obtain" fees under section (a) and then, "after obtaining attorneys' fees per subdivision (a), [then] request a sanction of attorneys' fees" under (f) by doing the separate motion and safe harbor thing. You already got your fees, right?! Why would you be filing yet another motion -- much less one with all of those procedural hurdles you circumvented the first time by moving under (a)?
Last -- but definitely not least -- the Court of Appeal's analysis is inconsistent not only with the entire structure and purpose of CCP 128.5, but also its text. Justice Miller says that you can ask for a 128.5 award under either (a)/(c) or (f). You choose. But paragraph (f) expressly starts out by saying that "Sanctions ordered pursuant to this section shall be ordered pursuant to the following conditions and procedures," and then lists (among other things) the separate motion and safe harbor rules. This plain language says that any sanctions under this sanction -- i.e., anywhere in CCP 128.5 -- have to follow these particularized rules, not just that sanctions under this paragraph have to follow the rules. And, as I noted earlier, that's indeed how this language has been interpreted in every single prior case of which I'm aware regarding 128.5 requests: You've got to follow the safe harbor and separate motion requirements for any party-sponsored request. Period. And, yet again, the legislative history on that point is pretty darn clear: that's what the Legislature definitely wanted.
So it seems to me that it's just flat wrong that there are purportedly two independent provisions of CCP 128.5 under which you can ask for your attorney's fees. Moreover, such a holding by the Court of Appeal is not only wrong, but also profoundly dangerous. If left standing, it would abrogate the deliberately intended separate motion and safe harbor rules not only in anti-SLAPP cases, but in all other cases as well. From now on, I'll just plop my request for attorney's fees into the last paragraph of my opposition papers, claiming that the motion is frivolous, and say that's okay because I'm doing so pursuant to (a) and (c), not (f). Yes, that's the practice that we used to employ. But that's also the practice the Legislature undeniably intended to stop. Today's holding, if left undisturbed, would inexplicably bring it back.
In short, I'm confident that the Court of Appeal's analysis is wrong here. Seriously and critically wrong, with potentially disastrous results.
Though that leaves us with the question: So how do we get to the right result here?
Which only adds additional frustration.
Because, again, I see why Justice Miller adopts the analysis he does. That way, this case comes out the way it should -- with the Section 128.5 procedures inapplicable to anti-SLAPP cases, since they don't fit there. So, yeah, I can see why that might push someone to find "two different procedures" in Section 128.5 as a potential way out. Even though, to me, the statute no way in fact permits us such an out.
So what to do? Is the plaintiff here really right? Do we really have to follow the safe harbor and separate motion rules in response to frivolous anti-SLAPP motions? Because, if so, that's a fairly bad world too. Maybe not as bad as gutting the overall sanction protections in 128.5. But nonetheless pretty darn bad. Is that really where we're left.
First impression: Maybe. Maybe it was a legislative error to say that frivolous anti-SLAPP motions should be sanctioned "under Section 128.5" -- they didn't anticipate that this would gut the ability to sanction and thereby deter such requests. Maybe we have to so hold, at least given the facial clarity of the text that says that, yes, such awards are indeed governed by CCP 128.5. That's definitely bad for the righteous party here. But we can take some solace in the fact that, virtually without a doubt, the Legislature would promptly respond to such a ruling by amending the statute. Which we could even suggest in our opinion. Because, yes, in truth, that should happen.
But I think it's also possible that we might be able to reach the same result that Justice Miller (and I, and the rational world as a whole) prefers in a different, but plausible, way.
Because, yes, the Legislature made an error when it stated that frivolous anti-SLAPP motions are subject to the provisions of Section 128.5. But only sort of.
You see, at the time the Legislature passed the anti-SLAPP statute (in 1992), and even when they later amended the statute (in 1993) to make mandatory (rather than discretionary) an award of fees for frivolous anti-SLAPP motions, CCP 128.5 didn't yet have the safe harbor and separate motion requirements. That's why the Legislature didn't think it's was a problem. Back in those days, if you wanted sanctions, you just plopped 'em in your moving or opposition briefs. No biggie. So all the problems that Justice Miller (rightly) notes in applying Section 128.5 to anti-SLAPP motions didn't exist when the Legislature passed the relevant provisions of the anti-SLAPP statute.
I don't want to bore you with the details of the numerous (and incredibly complicated) revisions to the California sanction provisions, but suffice it to say that, after the anti-SLAPP motion was passed, in 1994 and beyond, that's when the Legislature started its never-ending tinkering with CCP 128.5 to make it more in line with the recent changes to Rule 11, the federal sanction provision (then less in line, then more in line, then sort of in line, etc.), including but not limited to the separate motion and safe harbor provisions. That's what caused the problem. When the Legislature was futzing with the various changes to the basic sanction provisions, I'm quite confident it didn't think about how those changes might affect a residual clause in the anti-SLAPP statute that cross-referred to them.
Hence the problem.
Now, again, maybe that's the Legislature's problem. One they can fix. We simply follow the statute as written, and then they can amend it to correct the injustice that we've done in a particular case.
Or maybe not.
It occurs to me that a different way out of this pickle is to rely on legislative intent to hold that, given the structure and practical effect of applying the safe harbor and separate motion provisions to anti-SLAPP motions, the Legislature only intended to apply the provisions of 128.5 that existed at the time to such motions. And since, at the time, no separate motion or safe harbor rules applied, those don't apply to frivolous anti-SLAPP motions. End of story.
Now, admittedly, we typically apply statutory cross-references across the board, and say that when the one statute changes, so necessarily does the other. But I'd likely find supportable an argument that this principle doesn't/shouldn't apply when those other statutory changes conflict with both the structure and intent of the underlying statute itself. As they do here (and as Justice Miller quite ably demonstrates). So, yes, Section 128.5 changed, but given the requirements of the anti-SLAPP statute itself, those changes didn't affect the original intent or effect of the anti-SLAPP provisions.
That's a plausible result.
It's even more plausible because the Legislature's particular amendments to Section 128.5 would in fact have made it absurd to apply those same changes to the anti-SLAPP statute. To go through all those changes and their effects would make this post even longer and more obtuse than it already is, but to mention just briefly, at various times, the Legislature (1) enacted different statutes (e.g., 128.6 and 128.7) to replace 128.5, (2) repealed 128.5 entirely, and (3) made 128.5 not applicable at all to various cases filed at various times -- e.g., several cases hold that 128.5 doesn't apply at all to any case filed prior to January 1, 2015. To apply those amendments to the anti-SLAPP statute would be totally crazy, even though that's what the text ("pursuant to Section 128.5") facially requires. For example, it would mean that we couldn't sanction frivolous anti-SLAPP motions filed before January 1, 2015 at all, since CCP 128.5 didn't exist at that time (more accurately, didn't apply in any of those cases) -- a result undeniably contrary to legislative structure and intent. So too here.
So, in short, I think there's probably a way to reach the result that both Justice Miller and I prefer, and one that makes the world a better place.
It's just very much not the approach that the Court of Appeal takes here.
So I'd amend this opinion. Or depublish it. Because I'm happy with the result. But very much feel a different way about the doctrinal moves it takes to get there.
POSTSCRIPT - Oh, and I meant (but forgot) to mention in this overly-long post that the caption also recites that counsel for appellant in this civil dispute is "Thomas Ogden, under appointment by the Court of Appeal." I suspect that's a mistake. It's very rare for counsel to be appointed in a regular old civil (money) dispute involving private parties, and even though I've found one case in which Mr. Ogden was apparently appointed pro bono counsel in the Ninth Circuit, I didn't readily find any cases in which Mr. Ogden was appointed by the Court of Appeal -- nor does the docket to the present case reflect any appointment of counsel by the Court of Appeal. (Plus, yesterday's unpublished opinion in this same case, which is about the merits of the underlying anti-SLAPP appeal, just lists Mr. Ogden as regular old counsel, not appointed counsel. So it seems like that's another, very minor, mistake.)
