APPEAL from an order of the Superior Court of Los Angeles County, Ernest M. Hiroshige, Judge. (Los Angeles County Super. Ct. No. BC417580)
The opinion of the court was delivered by: Croskey, J.
CERTIFIED FOR PUBLICATION
Affirmed in part and reversed in part with directions.
Kramer & Kaslow, Philip A. Kramer and John S. Birke (collectively Defendants) appeal an order striking their special motion to strike (Code Civ. Proc., § 425.16)*fn1 and awarding $900 in attorney fees to Mohammad Chitsazzadeh and Mansoureh Shajari (collectively Plaintiffs) as prevailing plaintiffs on the motion. The trial court found that Defendants filed the special motion to strike more than 60 days after service of the complaint and therefore granted Plaintiffs' request to strike the motion as untimely under section 425.16, subdivision (f). The court also found that the motion was frivolous because it was clearly untimely and awarded attorney fees under section 425.16, subdivision (c)(1).
The trial court properly denied the special motion to strike as untimely. Plaintiffs, however, are not entitled to an attorney fee award because the record does not support the trial court's finding that the motion was frivolous or intended solely to cause unnecessary delay.*fn2 We therefore will affirm the order as to the denial of the special motion to strike and reverse the order as to the attorney fee award.
FACTUAL AND PROCEDURAL BACKGROUND
Kramer & Kaslow, a law firm, and Kramer as a member of the firm represented Brake Land, Inc., and Abolfalz Sharjari as plaintiffs in a prior action. Birke also was a member of the firm. Chitsazzadeh and Mansoureh Shajari were awarded summary judgment as defendants in that action.
Plaintiffs filed their complaint for malicious prosecution in the present action in July 2009. Defendants filed a demurrer to the complaint in December 2009. Defendants also filed a special motion to strike pursuant to section 425.16 on January 13, 2010, arguing that Plaintiffs' complaint arose from Defendants' constitutionally protected petitioning activity and that Plaintiffs could not establish a probability of prevailing on the merits.
Plaintiffs argued in opposition that Defendants had failed to file their special motion to strike within 60 days after service of the complaint as required by section 425.16, subdivision (f), and had failed to request leave of court to file an untimely motion, so the motion should be stricken. Plaintiffs further argued that because it was untimely, the special motion to strike was frivolous and made solely for purposes of delay, and that Plaintiffs therefore were entitled to an award of attorney fees as a monetary sanction under sections 425.16, subdivision (c)(1) and 128.5.
Defendants argued in reply that they were never properly served with the complaint and that, under the doctrines of equitable estoppel and judicial estoppel, Plaintiffs' failure to seek their defaults precluded Plaintiffs from asserting that Defendants were served with the complaint more than 60 days before the filing of the special motion to strike. Defendants also argued that their special motion to strike should not be stricken because Plaintiffs had failed to file a timely motion to strike.
The demurrer and special motion to strike both were heard on February 11, 2010. The trial court issued a tentative ruling stating that: (1) both the demurrer and the special motion to strike were untimely, and the demurrer also lacked substantive merit; (2) Defendants were served by substituted service on September 22, 2009; (3) they failed to file their special motion to strike within 60 days after that date; (4) they were required to but did not seek leave of court before filing their untimely special motion to strike; (5) the special motion to strike therefore should be stricken; (6) the court had received no reply in support of the special motion to strike; and (7) Defendants should have been aware of the 60-day deadline to file a special motion to strike and, absent a reply explaining why the motion was not frivolous, Plaintiffs were entitled to an award of a $900 in attorney fees as a monetary sanction under section 425.16, subdivision (c)(1).
The trial court overruled the demurrer on February 11, 2010. The court then heard argument on the special motion to strike at that time and took the matter under submission. The court filed a order on February 18, 2010, finding that Defendants were served by substituted service on September 22, 2009, and that Plaintiffs' request to strike the special motion to strike as untimely was, in effect, an opposition to the special motion to strike. The court concluded that its tentative ruling was correct and adopted it as the court's final decision. Defendants timely appealed.*fn3
Defendants contend (1) the trial court failed to consider their special motion to strike on the merits, as required, and had no authority to strike the motion absent a properly noticed motion to strike by Plaintiffs; (2) Defendants should prevail on the merits of their special motion to strike; and (3) the award of attorney fees as a monetary sanction under section 128.5 is ...