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., 

 Plaintiffs and Respondents, 

 v. 

ADAM MCDANIEL, 

 Defendant and Appellant. 

B318273

Los Angeles County 

Super. Ct. No. 

19PSCV00306

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. 

_______________________________________
2

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 Lopez1 (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 antiSLAPP 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.
3

BACKGROUND3

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.
4

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.
5

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)].)
6

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 
7

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 
8

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 antiSLAPP 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, 
9 

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].)
10

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.