California Appellate Tracker

Zarate v. McDaniel (2023) 2023 WL 8182862

December 3, 2023

Distinguishing Changsha Metro Group Co., Ltd. v. Xuefeng (2020) 49 Cal.App.5th 173, this decision holds that plaintiff waived his right to attorney fees for opposing defendant’s frivolous Anti-SLAPP motion by failing to give defendant 21-day notice before filing the motion for attorney fees. CCP 425.16(d) provides that fees for opposing a frivolous Anti-SLAPP motion may be awarded in accordance with CCP 128.5, which normally requires a 21-day safe harbor to withdraw the offending pleading before the fee or sanctions motion is filed. In Changsha, that provision didn’t apply because the Anti-SLAPP motion was scheduled for hearing within 30 days, leaving no time for the safe harbor. However, in this case, the motion was set for hearing three months after the filing of the Anti-SLAPP motion, leaving plenty of time for the safe harbor; hence, full compliance with CCP 128.5 was required. Plaintiff didn’t. So it was error to award him attorney fees.

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California Appellate Tracker

Zarate v. McDaniel (2023) 2023 WL 8182862

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