Rokhvand & Barmada v. Herzfeld

Opinion

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DISTRICT OF COLUMBIA COURT OF APPEALS Nos. 25-FM-0267 & 25-FM-0268 ATEFEH ROKHVAND, et al., APPELLANTS, V.

SHMUEL HERZFELD, APPELLEE.

Appeals from the Superior Court of the District of Columbia (2024-ASO-000451 & 2024-ASO-000452)

(John McCabe, Judge)

(Argued February 17, 2026 Decided August 27, 2026)

Gregory M. Lipper for appellants.

Robert P. Parker, with whom Steven M. Lieberman and Nicole M.

DeAbrantes were on the brief, for appellee.

Before BECKWITH, MCLEESE, and HOWARD, Associate Judges.

MCLEESE, Associate Judge: Appellants Atefeh Rokhvand and Hazami Barmada challenge (1) the trial court’s denial of their petitions for anti-stalking orders against appellee, Rabbi Shmuel Herzfeld; and (2) the trial court’s award of attorney’s fees to Rabbi Herzfeld. We affirm the denial of the anti-stalking petitions,

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vacate the award of attorney’s fees, and remand the case for further proceedings on the issue of attorney’s fees.

I. Factual and Procedural Background

A. Underlying Facts

This case arises from three incidents that occurred on three separate days in March and May of 2024 during demonstrations in front of the Israeli embassy. The evidence at trial regarding those incidents included the following, elicited through testimony as well as video recordings of the incidents.

Ms. Rokhvand and Ms. Barmada were engaged in a multi-month demonstration in front of the Israeli Embassy in Washington, D.C. in protest of Israel’s recent military actions in Gaza. Ms. Barmada has over two decades of experience in human-rights-related advocacy, including significant experience participating in public demonstrations. Ms. Barmada had received advice from counsel and had done her own research regarding the limits of permissible First Amendment activity. Ms. Barmada’s family is Palestinian, and she was protesting against Israel’s military actions in Gaza because of her “horror” about what was happening to “the children that are . . . collateral damage to the conflict.” Ms.

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Rokhvand is a teacher and community organizer who has experience in organizing in support of humanitarian assistance efforts and who supports anti-war efforts.

The protesters at the embassy worked with local authorities “to ensure that [they were] safe” and “operating within the confines of the rules.” The protesters used a designated area outside the embassy to set up their display of flags, tents, and signs and to engage in “noise demonstrations,” during which they spoke into megaphones, played Palestinian music, or used noise machines. They displayed large signs with messages against Israel’s military actions in Gaza, as well as a sign offering earplugs to passersby, along the sidewalk.

Rabbi Herzfeld is the rabbi of a Washington, D.C. congregation and the founder and leader of a Jewish school. During his tenure in D.C., Rabbi Herzfeld has been involved in the wider community and worked with other local faith leaders and elected officials. Rabbi Herzfeld has close relationships with family and friends in Israel and was “devastat[ed]” by the October 7, 2023, Hamas attack on Israel. Rabbi Herzfeld did not know of Ms. Barmada or Ms. Rokhvand before his interactions with them at the Israeli embassy. Likewise, neither Ms. Barmada nor Ms. Rokhvand had heard of or met Rabbi Herzfeld before their interactions with him during the embassy demonstrations.

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The first incident occurred in the middle of the day while Ms. Barmada and a few other protesters, not including Ms. Rokhvand, were at the protest site. According to Ms. Barmada, a group of men including Rabbi Herzfeld approached the protest site and began slowly walking through the demonstration and “intensely . . . looking around.” Ms. Barmada heard Rabbi Herzfeld call her a “Hamas supporter” and a “terrorist” who supported “raping women” and “beheading babies.” Another man in the group called Ms. Barmada a “Nazi bitch” and said that she should “go to the concentration camp.” Rabbi Herzfeld began speaking about the protesters, pointing at Ms. Barmada and referring to the protesters as the “wicked people” that “we will defeat.” The group of men again approached the protesters and walked back and forth in front of them, during which time Ms. Barmada and Rabbi Herzfeld exchanged a couple of remarks and Rabbi Herzfeld took something out of his pocket and stood near Ms. Barmada with his group. Ms. Barmada perceived the interaction to be a threat designed to “intimidate” her. She felt “scared” and “harassed” and that the incident was “violating.”

Rabbi Herzfeld testified that the first incident occurred on a Jewish holy day commemorating the biblical story of Esther, a Queen who saved the Jewish people from annihilation. Rabbi Herzfeld went to the embassy to pray for the hostages held by Hamas in Gaza. He and a few others arrived to a “surreal scene” of people “shouting all sorts of terrible things.” As the group was walking through the protest,

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Ms. Barmada spoke into a megaphone and accused the group of “celebrating terror” and being “proud of terrorizing children.” Rabbi Herzfeld did not call Ms. Barmada a name and did not ask anyone he was with to do so. Rabbi Herzfeld had to yell in order to speak to the group he was with, because the protesters spoke into megaphones while Rabbi Herzfeld was speaking. He spoke about the protesters being akin to the supporters of the king in the story of Esther, because the protesters did not want Israel to defend itself from attacks by Hamas. Rabbi Herzfeld took out a prayer book but was “not able to concentrate properly” due to the protesters’ noise.

Rabbi Herzfeld filed a lawsuit against Ms. Rokhvand and Ms. Barmada in federal court related to the first incident, claiming that the protesters had assaulted him and caused him a noise injury. Herzfeld v. Barmada, No. CV 24-1272 (TJK), 2025 WL 2220010, at *1 (D.D.C. Aug. 5, 2025) (dismissing lawsuit). He did an interview with Fox News about the lawsuit, during which he characterized the incident as part of a “dangerous trend” of “targeting Jews, attacking Jews.” The press coverage regarding the lawsuit made Ms. Rokhvand “very terrified.” Ms. Rokhvand was concerned because her full name had been publicly associated with claims that she was “doing things . . . against Jewish people which weren’t true” on a day that she was not even present at the embassy. Ms. Rokhvand believed that the suit and the resulting press coverage had “put a target on [her] back” as a pro-Palestinian activist.

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The second incident took place over a month later, the day after Ms. Barmada and Ms. Rokhvand were served in Rabbi Herzfeld’s federal lawsuit. According to Ms. Barmada, a car approached the protest site, moving very slowly even though no other cars were on the road. Ms. Barmada saw a man in the passenger seat staring “intensely” out the window at her with “a very taunting look.” Ms. Barmada was “alarmed” by the situation and then “felt panicked” once she recognized the man in the car as Rabbi Herzfeld. Ms. Rokhvand also saw these things, which made Ms. Rokhvand “very concerned.” Rabbi Herzfeld then rolled down the window of the car with an “eerie smile on his face” and said, “How come you support people raping innocent women?” Rabbi Herzfeld then rolled up his window, and the car continued down the street. The interaction made Ms. Barmada feel like she was being “harassed” and “watched and monitored.”

According to Rabbi Herzfeld, he did not know that Ms. Barmada or Ms.

Rokhvand were at the protest site when he asked his driver to slow down so that he could read the protesters’ signs. Rabbi Herzfeld never went to the embassy “with the understanding” that either Ms. Barmada or Ms. Rokhvand would be there. Rabbi Herzfeld asked the protesters if they supported raping innocent women because he had recently watched a movie about the “weaponization of sexual assault” on October 7th.

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The third incident took place later that week, again during the day at the protest site. According to Ms. Rokhvand and Ms. Barmada, Rabbi Herzfeld and a couple of other men arrived and walked through the demonstration, while Rabbi Herzfeld loudly requested that one of the people with him take pictures of the posters and items at the site, including the container of earplugs. Ms. Rokhvand made a “frantic phone call” to Ms. Barmada, who had stepped away from the demonstration, because she was “scared and worried” about Rabbi Herzfeld’s presence.

Ms. Rokhvand saw Rabbi Herzfeld speaking with his companions while looking and pointing at her, and she began recording the group on her phone. Immediately after, one of the men approached Ms. Rokhvand with his phone raised and got very close to her, stating among other things that it was “very interesting the fear you are showing here” and that it seemed she did not want to show her face. The man put his face right up against Ms. Rokhvand’s phone camera, stating “see I’ll show my face to you” and “I’ll go to take a look and find out who you guys really are.” The man then returned to where Rabbi Herzfeld was standing across the street and gestured back toward Ms. Rokhvand. After the interaction with the man, Ms. Rokhvand called Ms. Barmada and told her that the men made “threatening” comments.

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According to Rabbi Herzfeld, he went to the embassy to do a press conference about his federal lawsuit. Rabbi Herzfeld approached the protest to look at the signs, but he did not “go through anyone’s stuff.” Rabbi Herzfeld moved on to the embassy. Rabbi Herzfeld said that he did not encourage, instruct, or prompt the man who approached Ms. Rokhvand. Rabbi Herzfeld “had no interest in any interaction with [Ms. Rokhvand] that day.”

Ms. Barmada implemented security measures after the incidents with Rabbi Herzfeld, including a buddy system for the protesters and additional security cameras at her home. Ms. Rokhvand also installed a security system in her home and taught her children to be alert for Rabbi Herzfeld and the man who had approached her during the third incident.

B. Petitions for Anti-Stalking Orders

After the third incident, on May 7, 2024, Ms. Barmada and Ms. Rokhvand filed petitions for anti-stalking orders against Rabbi Herzfeld. A person may “petition the court for an anti-stalking order against another person who has allegedly stalked the petitioner.” D.C. Code § 16-1062(a). A person has “stalked” the petitioner if the person has engaged in “any course of conduct prohibited by [the criminal offense of stalking, D.C. Code] § 22-3133” against the petitioner. Id. § 16-1061(7). In relevant part, the stalking statute prohibits a person from, on two or

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more occasions, “[f]ollow[ing], monitor[ing], plac[ing] under surveillance, threaten[ing], or communicat[ing] to or about another individual,” where the person acted with intent or knowledge to cause, or where the person should have known his or her conduct would cause, the individual to reasonably “[f]ear for his or her safety or the safety of another person; [f]eel seriously alarmed, disturbed, or frightened; or [s]uffer emotional distress.” Id. §§ 22-3133(a), 22-3132(8). Ms. Barmada referred to all three incidents in support of her petition; Ms. Rokhvand only referred to the latter two incidents, because she was not present on the day of the first incident.

On May 20, 2024, Rabbi Herzfeld filed a motion to dismiss the petitions.

Rabbi Herzfeld argued that the conduct alleged in the petitions did not meet the statutory definition of stalking, and even if it did, the conduct was constitutionally protected and could not form the predicate for an anti-stalking order under this court’s decision in Mashaud v. Boone, 295 A.3d 1139 (D.C. 2023) (en banc). Mashaud interpreted the stalking statute’s savings clause—which specifies that the statute “does not apply to constitutionally protected activity,” D.C. Code § 22-3133(b)—to mean that “when speech is at issue, the statute covers only speech that fits within the well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem.” Mashaud, 295 A.3d at 1144 (citation modified). Rabbi Herzfeld argued that the petitions sought to restrict his speech on “matters of public

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concern,” which does not fall into one of the six categories of speech covered by the anti-stalking statute but rather “receive[s] the highest level of constitutional protection.” See Mashaud, 295 A.3d at 1144 (listing “threats, obscenity, defamation, fraud, incitement, and speech integral to criminal conduct” as categories of speech covered by anti-stalking statute); id. at 1156-57.

The trial court declined to rule on the motion to dismiss, instead choosing to schedule a prompt trial. The trial court noted that trials involving anti-stalking petitions “tend[ed] to be summary in nature” and stated that the court was “not going to be able to resolve the case without taking some factual evidence.” The trial court did, however, urge petitioners’ counsel to “thoroughly” review the motion to dismiss: “The question is whether this Court is a court that’s proper for handling [petitioners’ concerns]. What respondent’s counsel is saying is that it’s not[,] based upon [Mashaud]. And I have to tell you that I think he’s probably going to turn out to be right.”

Trial took place on three days in June and July of 2024. Ms. Barmada and Ms.

Rokhvand testified as to the above-summarized events in support of their petitions, and Rabbi Herzfeld testified in opposition to the petitions.

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After Ms. Barmada and Ms. Rokhvand submitted their evidence, Rabbi Herzfeld moved for judgment as a matter of law. The trial court denied the motion, stating:

[T]he standard at this stage of the proceeding is taking the evidence in the light most favorable to the nonmoving party. And in the Court’s view, it’s a close call. But there are issues that perhaps reasonable factfinders could disagree upon about whether the petitioners have presented sufficient evidence of stalking by the respondent.

At the close of the trial, the trial court denied the petitions. The trial court credited Ms. Barmada’s and Ms. Rokhvand’s testimony as to how the incidents affected them but emphasized that the petitioners also had to prove two or more instances of “following, monitoring, placing under surveillance, threatening, or communicating to or about another individual.” The trial court credited Rabbi Herzfeld’s testimony as to why he went to the embassy on the days of the incidents, and it generally credited Ms. Barmada’s and Ms. Rokhvand’s testimony that the video footage did not capture every interaction between the parties during the three incidents. Ultimately, however, the trial court found that “there [was] no evidence of any sort of threat to do bodily harm” during the three incidents and that there was “no evidence” of “following and/or monitoring” or “the kind of surveillance that [the] stalking statute is meant to capture.” Specifically, the trial court concluded that it was not “surveillance” to “to take video of someone at a public protest,” where

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both sides were videoing the other. The trial court further concluded that none of the “communications” made to or about Ms. Barmada or Ms. Rokhvand contributed to a course of conduct of stalking:

And again, I don’t think there [were] any threats that were made in . . . the communications about [‘]you’re wicked people[’] and things like that. Those are constitutionally protected, just like [w]hen the petitioners say those things.

And I think both sides acknowledge that. That whether or not people agree or disagree with what either side is saying about which side is right or wrong about what’s going on, those are exactly the kind of things that are constitutionally protected.

Because the petitioners did not prove by a preponderance of the evidence that Rabbi Herzfeld had stalked them, the trial court denied the petitions for anti-stalking orders.

C. Anti-SLAPP Motion and Fee Award

Between the first and second day of trial, on June 27, 2024, Rabbi Herzfeld filed a special motion to dismiss pursuant to the D.C. Anti-SLAPP Act, D.C. Code §§ 16-5501 to -5505. “[T]he D.C. Anti-SLAPP Act was designed to protect targets of . . . meritless lawsuits” that “aim[] to punish or prevent the expression of opposing points of view,” otherwise known as “SLAPPs” (strategic lawsuits against public participation). Competitive Enter. Inst. v. Mann, 150 A.3d 1213, 1226 (D.C. 2016) (citation modified). The Act permits a party to file a special motion to dismiss “any

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claim arising from an act in furtherance of the right of advocacy on issues of public interest within 45 days after service of the claim.” D.C. Code § 16-5502(a). If the party makes a prima facie showing that the claim is covered by the Anti-SLAPP Act, “then the motion shall be granted unless the responding party demonstrates that the claim is likely to succeed on the merits.” Id. § 16-5502(b).

Rabbi Herzfeld argued in his special motion to dismiss that the anti-stalking petitions “ar[o]se from [Rabbi Herzfeld’s] counter-protests on public sidewalks, and are therefore acts in furtherance of the right of advocacy on issues of public interest” covered by the Anti-SLAPP Act. Rabbi Herzfeld further argued that Ms. Rokhvand and Ms. Barmada could not show that their petitions were likely to succeed because “all of the allegations in the [anti-stalking] petitions are protected by the First Amendment.”

Ms. Barmada and Ms. Rokhvand filed a brief opposition to the special motion to dismiss, arguing that it was untimely because, although it was filed less than forty-five days after service of the petitions, the trial on the merits had already begun. (Ms. Barmada and Ms. Rokhvand have not renewed that argument in this court, and we therefore have no occasion to address the issue.) Ms. Barmada and Ms. Rokhvand also argued that Rabbi Herzfeld was not entitled to relief under the Anti-SLAPP Act because the claims at issue did not arise from acts in furtherance of the right of

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advocacy on issues of public interest and because Rabbi Herzfeld’s conduct was not protected by the First Amendment.

Rabbi Herzfeld asked the trial court to rule on the special motion to dismiss at the start of the second day of trial, but the trial court declined to rule on the motion. The trial court instead asked if the parties were “okay” with continuing to present evidence before the trial court ruled on the special motion to dismiss, “given that we’ve already started the evidence in the case.” Counsel for Ms. Barmada and Ms. Rokhvand stated, “[t]hat’s fine,” but counsel for Rabbi Herzfeld did not “consent to that procedure.” The trial court decided to continue with trial, stating:

[G]iven that we’ve already started the trial, and I don’t anticipate it’ll take too much longer, I think probably the better procedure is for me to go ahead and just hear whatever evidence either side wants to present. And then I'll be in a position to decide on the petitions for anti-stalking order[s] as well as the anti-SLAPP motion.

At the end of the second day of trial, Rabbi Herzfeld again asked the trial court to rule on the special motion to dismiss, and the trial court again declined, explaining that, in its view, “the safer thing . . . to do in terms of just making sure that the ruling is fair to everybody is to just let the evidence” come in.

In his closing arguments, Rabbi Herzfeld argued that the trial court should not only deny the anti-stalking petitions but also dismiss the petitions under the

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Anti-SLAPP Act. The trial court did not address the Anti-SLAPP Act in its oral ruling denying the anti-stalking petitions.

After the verdict, the trial court issued an order denying Rabbi Herzfeld’s original motion to dismiss as moot and requesting further briefing on the special motion to dismiss. The trial court acknowledged that at trial it had “stated that it could not rule on the Special Motion to Dismiss without hearing the rest of the evidence in the cases.” The trial court concluded, however, “that further pleading is required” on the special motion to dismiss so that Rabbi Herzfeld “may indicate what particular relief he seeks.” The trial court specified that, should Rabbi Herzfeld wish to request attorney’s fees, “he must clarify the basis for such request.” To the extent that Rabbi Herzfeld sought fees under the Anti-SLAPP Act, see D.C. Code § 16-5504(a) (providing that court may award reasonable attorney’s fees to “moving party who prevails, in whole or in part” on special motion to dismiss under Anti-SLAPP Act), the trial court directed Rabbi Herzfeld to explain the basis for that request. The trial court further ordered that if Rabbi Herzfeld wanted fees on some basis other than the Anti-SLAPP Act, “he must set forth the basis for such request in his pleading.”

Rabbi Herzfeld filed a supplemental pleading in support of his special motion to dismiss, asking the trial court to grant the motion and award him approximately

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$180,000 in attorney’s fees. Rabbi Herzfeld argued that (1) the special motion to dismiss was not moot under Jacobson v. Clack, 309 A.3d 571 (D.C. 2024), in which this court upheld an award of attorney’s fees under the Anti-SLAPP Act although the plaintiff had already voluntarily dismissed the lawsuit, id. at 578-85; (2) Rabbi Herzfeld was entitled to attorney’s fees under the Anti-SLAPP Act; and (3) the requested fee amount of approximately $180,000 was reasonable. Rabbi Herzfeld relied only on the Anti-SLAPP Act as the basis for his fee request, and he made no mention of the possibility of awarding fees on the theory that the anti-stalking petitions had been filed in bad faith.

Ms. Rokhvand and Ms. Barmada filed a supplemental opposition. In relevant part, they argued that (1) the special motion to dismiss was moot because the trial court already ruled on the merits of the case; (2) Rabbi Herzfeld was not entitled to relief under the Anti-SLAPP Act because his right of advocacy was not chilled; (3) the special motion to dismiss was “procedurally improper” because it was not filed until after trial began, contrary to the Anti-SLAPP Act’s purpose to “prevent lawsuits at an early stage”; (4) Rabbi Herzfeld failed to make a prima facie showing that the claims at issue arose “from an act in furtherance of the right of advocacy on issues of public interest,” D.C. Code § 16-5502(a); and (5) the fees requested “should be significantly limited in scope and amount” because the requested amount was excessive, covered costs outside the scope of the Anti-SLAPP Act, and relied

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on unreasonable billing practices. The supplemental opposition did not discuss the question whether attorney’s fees could properly be awarded on the theory that the anti-stalking petitions had been filed in bad faith.

In his reply, Rabbi Herzfeld argued, among other things, that the procedural challenges to the special motion to dismiss had no basis in the Anti-SLAPP Act, which required only that the special motion to dismiss be filed within forty-five days of service of the underlying claim. D.C. Code § 16-5502(a). Further, Rabbi Herzfeld noted that Ms. Barmada and Ms. Rokhvand had agreed with the trial court’s suggestion to continue trial rather than suspend proceedings to rule on the special motion to dismiss. Rabbi Herzfeld again made no mention of the possibility of awarding fees on the theory that the anti-stalking petitions had been filed in bad faith.

The trial court issued an order denying the special motion to dismiss as moot but awarding Rabbi Herzfeld the full amount of the requested fees. The trial court concluded that “the award of costs and attorney[’s] fees to [Rabbi Herzfeld] is appropriate in this case under the Anti-SLAPP Act even though the [trial court] never ruled on the Special Motion to Dismiss.” The trial court explained that its conclusion was consistent with the purposes of the Anti-SLAPP Act because, even though trial was not averted, “trials in [a]nti-[s]talking cases are generally not lengthy” and an anti-SLAPP hearing “would have been virtually identical to the trial that took place.”

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See D.C. Code § 16-5502(d) (“The court shall hold an expedited hearing on the special motion to dismiss . . . .”). Further, the trial court concluded that the anti-stalking petitions were “clearly the type that should be discouraged under the [A]nti-SLAPP Act.” The trial court found that some of Ms. Barmada’s and Ms. Rokhvand’s assertions about the three incidents in their petitions “did not accurately describe what had occurred.” The trial court opined, “While it was clear to the Court prior to trial that activities of [Rabbi Herzfeld] at the Israeli embassy were likely constitutionally protected, it could not determine whether any of such activities constituted stalking without hearing the evidence,” which made clear that Rabbi Herzfeld’s actions did not constitute stalking. The trial court also found it relevant that Ms. Barmada and Ms. Rokhvand were “quite familiar with the type of activity that is constitutionally protected” but filed the anti-stalking petitions anyway.

The trial court also awarded fees in the alternative under a theory of bad faith, because the anti-stalking petitions “had no basis whatever in the evidence to support [them] and [were] clearly brought for coercive purposes.” Brian Logan Real Est., LLC v. District of Columbia, 311 A.3d 893, 898 (D.C. 2024) (citation modified). In addition to concluding that Rabbi Herzfeld’s conduct clearly failed to amount to stalking, the trial court noted that Ms. Rokhvand and Ms. Barmada filed the petitions soon after they were sued by Rabbi Herzfeld in federal court and that the trial court

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had warned petitioners to review the petitions in light of applicable law before trial began.

II. Analysis

Ms. Rokhvand and Ms. Barmada challenge both the trial court’s denial of the anti-stalking petitions and the trial court’s order awarding attorney’s fees to Rabbi Herzfeld. Rabbi Herzfeld argues that the appeals of the anti-stalking petitions are untimely and that we should affirm both trial-court decisions. Because we uphold the denial of the anti-stalking petitions on the merits, we do not rule on Rabbi Herzfeld’s timeliness argument. We vacate the trial court’s fee-award order because we conclude that the trial court failed to apply the proper standard for awarding attorney’s fees under the Anti-SLAPP Act and did not provide Ms. Rokhvand and Ms. Barmada with sufficient notice of its alternative justification for attorney’s fees on the basis of bad faith. We decline at this time to address the challenge to the amount of fees awarded because the trial court may determine the amount of reasonable attorney’s fees in the first instance if it concludes that fees are warranted under the appropriate legal standards and procedures.

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A. Denial of the Anti-Stalking Petitions

1. Timeliness

Rabbi Herzfeld argues that the appeals from the denial of the anti-stalking petitions should be dismissed as untimely under D.C. App. R. 4(a)(1), which provides that “[t]he notice of appeal in a civil case must be filed . . . within 30 days after entry of the judgment or order from which the appeal is taken.” Ms. Barmada and Ms. Rokhvand did not file a notice of appeal from the denial of the petitions for over six months, until after the trial court issued the fee-award order. We exercise our discretion not to address this issue, however, because the issue of timeliness is not jurisdictional and thus this court is free instead to deny relief on the merits. See Deloatch v. Sessoms-Deloatch, 229 A.3d 486, 491 (D.C. 2020) (holding that time limit of Rule 4(a) is not jurisdictional and court thus has jurisdiction to entertain late-filed appeals).

2. Merits

Ms. Barmada and Ms. Rokhvand contend that Rabbi Herzfeld’s conduct constituted a “true threat” that was not shielded by the First Amendment and could

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therefore form the predicate for stalking. We agree with the trial court’s contrary conclusion.

“In reviewing [a decision to grant or deny a petition for an anti-stalking order], this court defers to the trial court’s findings of fact unless they are plainly wrong or without evidence to support them and views the evidence in the light most favorable to sustaining the trial court ruling.” Graham v. T.T., 347 A.3d 357, 363 (D.C. 2025). Whether the conduct proved at the trial falls within the “narrow categories” of speech covered by the District’s stalking statute, Mashaud, 295 A.3d at 1144, is a question of law that we review de novo. Cf., e.g., Facebook, Inc. v. Pepe, 241 A.3d 248, 260 & n.39 (D.C. 2020) (explaining that questions of degree of burden on First Amendment rights are legal questions reviewed de novo).

Threats are one of the “well-defined and narrowly limited classes of speech”

that may be regulated by the District’s criminal stalking statute. Mashaud, 295 A.3d at 1144 (citation modified); see Counterman v. Colorado, 600 U.S. 66, 74 (2023) (describing “true threats” as “historically unprotected category of communications”). “True threats are serious expressions conveying that a speaker means to commit an act of unlawful violence.” Graham, 347 A.3d at 365 (citation modified). Whether speech is a true threat depends not only on the words said but also on their context: “[S]peech is only a true threat . . . if an ordinary reasonable

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recipient who is familiar with the context of the statement would interpret it” as such. In re S.W., 45 A.3d 151, 156 (D.C. 2012) (citation modified). “[P]olitical hy[p]erbole,” for example, “is not a true threat.” Virginia v. Black, 538 U.S. 343, 359 (2003) (citation modified). In addition, the court must determine that the speaker “spoke recklessly,” in that the speaker “must have been subjectively aware that [the recipient] could regard [the speaker’s] statements as threatening violence and delivered them anyway.” Graham, 347 A.3d at 365 (citation modified).

We agree with the trial court that the evidence at trial did not support a conclusion that Rabbi Herzfeld threatened Ms. Barmada or Ms. Rokhvand during the three incidents at issue. The trial court found that there were no explicit “threat[s] to do bodily harm” made during the incidents, and the record supports that finding. The trial court acknowledged that “there[ were] nasty comments” made in which Rabbi Herzfeld “basically . . . suggest[ed] [that] people who are at the protest are people who support bad conduct” and said that “these are the wicked people; we will defeat them.” With regard to the first incident, during which Rabbi Herzfeld referred to the protesters as “wicked people” who would be defeated, the trial court found that Rabbi Herzfeld was not directing his speech specifically at Ms. Barmada (or Ms. Rokhvand, who was not present). Regarding the second incident, in which Rabbi Herzfeld asked why the protesters supported rape, the trial court found that it was “the kind of provocative comment that people make at protests,” even though the

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question would be upsetting. The above findings are supported by the video record and testimony in the case, and we do not understand Ms. Rokhvand and Ms. Barmada to specifically contest them.

As the trial court concluded, these “nasty comments” in the context of a public protest were not threats and are “exactly the kind of things that are constitutionally protected.” The First Amendment reflects a “commitment to the principle that debate on public issues should be uninhibited, robust, and wide-open, and that it may well include vehement, caustic, and sometimes unpleasantly sharp attacks.” Watts v. United States, 394 U.S. 705, 708 (1969) (per curiam) (citation modified). Unlike true threats, “speech that can reasonably be characterized as political rhetoric or hyperbole, particularly such speech not directed at specific individuals, is protected.” Fogel v. Collins, 531 F.3d 824, 830 (9th Cir. 2008). Even speech that, if taken literally, threatens unlawful violence against another person (which we do not have in this case) may not be a true threat when made in the context of a political demonstration, such that the speech “[could] not reasonably be perceived as a threat.” In re S.W., 45 A.3d at 156-57. Within that legal framework, Rabbi Herzfeld’s comments, which were not literally threatening and largely were not specifically directed at Ms. Rokhvand or Ms. Barmada, fall comfortably on the protected-speech side of the line between political hyperbole and true threats.

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The Supreme Court and courts in other jurisdictions have found that comparable or more concerning statements were not true threats. See, e.g., Watts, 394 U.S. at 706-08 (holding that defendant could not be convicted of criminal threats against president where statements at political rally implying that defendant might shoot president, understood in context, amounted to “a kind of very crude offensive method of stating a political opposition”) (citation modified); Thunder Studios, Inc. v. Kazal, 13 F.4th 736, 745, 747 (9th Cir. 2021) (holding that organizing protests against plaintiff, using “intemperate and rancorous” language, with intention to “screw with” plaintiff was not true threat); Fogel, 531 F.3d at 831-32 (holding that van with message claiming to be suicide bomber did not convey true threat in context of other political and artistic messages on van). Ms. Barmada and Ms. Rokhvand have not cited a case, and we are not aware of a case, finding a true threat in circumstances comparable to this case.

We are not persuaded by the countervailing arguments presented by Ms.

Barmada and Ms. Rokhvand. First, Ms. Rokhvand and Ms. Barmada argue that it was error for the trial court to fail to adequately consider threats made by “intermediar[ies] or co-conspirator[s]” of Rabbi Herzfeld. See D.C. Code § 22-3132(8) (defining “course of conduct” for purposes of the stalking statute as, “on 2 or more occasions,” engaging in stalking “directly or indirectly, or through one or more third persons”) (emphasis added). We decline to address the question

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whether others’ conduct could be attributed to Rabbi Herzfeld because, even considering all the conduct by third parties raised at trial, that conduct does not establish two or more instances of true threats.

During the first incident, one of the men with Rabbi Herzfeld called Ms.

Barmada a “Nazi bitch” and said that she should “go to the concentration camp,” while Ms. Barmada spoke into a megaphone and accused the group of men of “celebrating terror” and being “proud of terrorizing children.” The man’s comments were, like Rabbi Herzfeld’s comments discussed above, political speech that “an ordinary reasonable recipient who is familiar with the context of the statement” would not interpret as a threat. In re S.W., 45 A.3d at 156 (citation modified).

That leaves the encounter with another of Rabbi Herzfeld’s companions during the third incident, during which a man who approached the embassy area with Rabbi Herzfeld came very close to Ms. Rokhvand and made a number of comments to her. This encounter was the subject of another anti-stalking petition brought by Ms. Rokhvand against the man in question, which the trial court denied. Rokhvand v. Pollock, No. 2024-ASO-000490 (D.C. Super. Ct. July 12, 2024). The trial court concluded, in a decision included by the parties in their appendix in this court, that the encounter did not contribute to a course of conduct of stalking, in part because

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the man did not threaten Ms. Rokhvand. In any event, this encounter standing alone cannot make up a course of conduct of stalking. D.C. Code § 22-3132(8).

Second, Ms. Rokhvand and Ms. Barmada argue that the trial court erred by assuming that threats must be “express statements,” and therefore the trial court ignored “threatening conduct” during the incidents that should have informed the threats analysis. Although we agree that the trial court did not expressly consider conduct other than speech when assessing whether Rabbi Herzfeld threatened Ms. Rokhvand or Ms. Barmada, we are not persuaded that any of the conduct raised on appeal elevates Rabbi Herzfeld’s conduct to true threats in light of the factual findings that the trial court did make.

Ms. Rokhvand and Ms. Barmada raise “violations of personal space” and “rummaging through their belongings” as threatening conduct by Rabbi Herzfeld and his companions during the first and third incidents. The trial court found that the direct interaction between Rabbi Herzfeld and his group and Ms. Barmada during the first incident consisted mostly of “just speaking,” and although there was “some walking back and forth” near Ms. Barmada, “there wasn’t any interaction . . . physically between anybody.” During the third incident, the trial court found, Rabbi Herzfeld “walked back and forth on the street a few times” and looked at the protesters’ signs. The trial court did not find that Rabbi Herzfeld or his companions

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“rummaged” through the protesters’ belongings or had any “physical[]” interactions with them. Reviewing the trial record, particularly the video footage of the incidents, demonstrates that the trial court’s findings on that score were not clearly erroneous, nor do we see any evidence of “violations of personal space” by Rabbi Herzfeld that would cause an “ordinary reasonable recipient” to understand Rabbi Herzfeld’s comments during those incidents as a threat. In re S.W., 45 A.3d at 156 (citation modified).

Ms. Barmada and Ms. Rokhvand also raise the slow speed of Rabbi Herzfeld’s car and his “menacing” demeanor during the second incident as threatening conduct that the trial court overlooked. The trial court credited the testimony regarding the speed of the car. The trial court also reviewed video footage showing Rabbi Herzfeld’s demeanor through the entire incident and concluded that there was “no evidence to suggest anything other than that [Rabbi Herzfeld] was there [during all three incidents] because he wanted to see what was going on at the Israeli embassy.” “We owe the trial court’s findings about [Rabbi Herzfeld’s] intent considerable deference,” because those findings “turn largely on credibility assessments.” Mashaud, 295 A.3d at 1150. In the context of the trial court’s findings regarding why Rabbi Herzfeld approached the protest on the day of the second incident, Rabbi Herzfeld’s non-speech conduct does not provide reason to question the trial court’s conclusion that Rabbi Herzfeld did not threaten Ms. Rokhvand or Ms. Barmada.

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True threats may be made “by innuendo or suggestion,” and “words that are innocuous in themselves may take on a sinister meaning in the context in which they are recited.” Clark v. United States, 755 A.2d 1026, 1031 (D.C. 2000) (citation modified). The trial court concluded that the context at issue in this case did not suggest a threatening meaning, however, and we see no error in that conclusion.

Third, Ms. Barmada and Ms. Rokhvand argue that the trial court did not consider their panicked reactions to their encounters with Rabbi Herzfeld in determining how an objective recipient would have understood Rabbi Herzfeld’s conduct. The trial court addressed that issue, however, crediting the testimony of Ms. Barmada and Ms. Rokhvand that they found the encounters very upsetting. In the circumstances of this case, however, we agree with the trial court that those “subjective response[s], although entirely understandable, [did] not change the objective calculus as to whether [Rabbi Herzfeld] posed a threat.” In re S.W., 45 A.3d at 160.

Finally, Ms. Rokhvand and Ms. Barmada argue that the trial court failed “to identify, let alone apply” the recklessness standard of intent for true threats. Having determined—correctly, in our view—that no true threats were made in the first place, however, the trial court did not need to address Rabbi Herzfeld’s state of mind on this issue. Cf. Watts, 394 U.S. at 708 (not addressing dispute over willfulness

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requirement for threats statute because “whatever the . . . requirement implies, the statute initially requires the Government to prove a true threat,” which the United States did not do) (citation modified).

B. Award of Fees under the Anti-SLAPP Act

Ms. Rokhvand and Ms. Barmada raise two challenges to the trial court’s award of attorney’s fees to Rabbi Herzfeld under the Anti-SLAPP Act, D.C. Code § 16-5504(a). Both challenges implicate questions of statutory interpretation and of law that we review de novo. See Mann, 150 A.3d at 1233 (“We review questions of statutory interpretation de novo.”); Witaschek v. District of Columbia, 254 A.3d 1151, 1156 n.3 (D.C. 2021) (“We review de novo appellant’s claim that the trial court erred in defining and applying the legal standard . . . .”). “We first look to see whether the statutory language at issue is plain and admits of no more than one meaning.” Facebook, Inc. v. Wint, 199 A.3d 625, 628 (D.C. 2019) (citation modified). “We will give effect to the plain meaning of a statute when the language is unambiguous and does not produce an absurd result.” Id. (citation modified). “We may also look to the legislative history to ensure that our interpretation is consistent with legislative intent.” Id. (citation modified).

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1. Applicability of the Anti-SLAPP Act to this case

Ms. Rokhvand and Ms. Barmada contend that attorney’s fees cannot be awarded under D.C. Code § 16-5504(a) in this case because the Anti-SLAPP Act does not apply to petitions for anti-stalking orders. We disagree.

Ms. Rokhvand and Ms. Barmada note that the Anti-SLAPP Act applies only to “claims” that are “civil.” D.C. Code §§ 16-5501(2), -5502(a). They argue that a petition for an anti-stalking order is neither civil in character nor a claim. We hold that petitions for anti-stalking orders are civil claims for purposes of the Anti-SLAPP Act.

In arguing that petitions for anti-stalking orders are not civil in character, Ms.

Rokhvand and Ms. Barmada rely entirely on the fact that such petitions are handled by the Domestic Violence Division of the Superior Court rather than the Civil Division of the Superior Court. We conclude for several reasons that petitions for anti-stalking orders are civil in character.

First, the anti-stalking statute is very similar to the statute providing for civil protection orders (CPOs). Compare D.C. Code § 16-1061 et seq. (anti-stalking statute), with id. § 16-1001 et seq. (CPO statute); see generally Report on Bill 23-0181 before the Committee on the Judiciary and Public Safety, Council of the

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District of Columbia at 13 (Nov. 23, 2020) (“The anti-stalking order (‘ASO’) process established in the bill mirrors the civil protection order system.”). It is well settled that CPO proceedings, as the word “civil” in their name indicates, are civil in character. See, e.g., Carome v. Carome, 262 A.3d 242, 247 (D.C. 2021) (CPO statute is “a civil mechanism” intended, among other things, “to effect rehabilitation rather than retribution or punishment of civil offenders”) (citation modified).

Second, the anti-stalking statute explicitly indicates that proceedings under it are civil in character. See D.C. Code § 16-1065(e) (referring to issuance of “civil process” in anti-stalking cases).

Third, we see no reason to think that the D.C. Council intended the word “civil” in the Anti-SLAPP Act to refer to the name of the part of the Superior Court that, as a matter of the Superior Court’s internal organization, is assigned responsibility to handle the case, rather than to the substantive character of the request for relief at issue. If the D.C. Council had intended the former approach, presumably it would have used quite different language than the language used in the Anti-SLAPP Act. Moreover, we think that it is extremely implausible that the D.C. Council intended the scope of the Anti-SLAPP Act’s protections to be subject to expansion or contraction based on changes to the Superior Court’s internal organization.

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For these reasons, we hold that petitions for anti-stalking orders are “civil” for purposes of the Anti-SLAPP Act.

Ms. Rokhvand and Ms. Barmada also note that (1) the Anti-SLAPP Act applies only to “claim[s],” D.C. Code § 16-5501(2); (2) a request for an anti-stalking order is called a “petition,” id. § 16-1062(a); and (3) the word “petition” does not appear in the Anti-SLAPP Act’s definition of “claim,” id. § 16-5501(2). The definition of “claim” does, however, include “any . . . other civil judicial pleading or filing requesting relief.” Id. A petition for an anti-stalking order is a civil “filing requesting relief” and therefore falls within the broad statutory definition of “claim.”

Finally, Ms. Rokhvand and Ms. Barmada argue that applying the Anti-SLAPP Act to anti-stalking petitions would be “paradoxical” because such petitions are typically resolved on expedited timelines and therefore the Anti-SLAPP Act’s forty-five-day time limit for filing a special motion to dismiss may not ensure that the motion is “filed and decided in the early stage of litigation” as the Anti-SLAPP Act intends. Mann, 150 A.3d at 1235; see also D.C. Code § 16-5502(a) (special motion to dismiss must be filed within forty-five days of service of claim).

It is true that the anti-stalking statute has provisions that encourage speedy resolution. E.g., D.C. Code § 16-1063(c) (trial court shall grant or deny request for temporary anti-stalking order within one day of filing), (e) (temporary anti-stalking

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order may remain in effect for up to fourteen days and may be extended as necessary to complete hearing on petition). It is unclear precisely how the anti-stalking statute’s forty-five-day time limit for filing special motions to dismiss should operate in cases in which trial commences less than forty-five days after the filing of the complaint. We need not decide in this case how those procedural timing issues should be resolved, however, because Ms. Rokhvand and Ms. Barmada do not contest on appeal the timeliness of Rabbi Herzfeld’s special motion to dismiss. For current purposes it suffices to conclude that we see no basis, in the text of the Anti-SLAPP Act or otherwise, for concluding that the Anti-SLAPP Act is flatly inapplicable to anti-stalking petitions (or to other claims that might ordinarily be resolved quickly or on an expedited basis).

2. Standard for awarding fees under the Anti-SLAPP Act

Ms. Rokhvand and Ms. Barmada argue that, even if the Anti-SLAPP Act applies to this case, attorney’s fees are not available because Rabbi Herzfeld did not “prevail[], in whole or in part” on his special motion to dismiss as required by the statute. D.C. Code § 16-5504(a). Specifically, Ms. Rokhvand and Ms. Barmada contend that the trial court could not have found that Rabbi Herzfeld “prevailed” because a court may only grant a special motion to dismiss “if the court can conclude that the claimant could not prevail as a matter of law,” Mann, 150 A.3d at 1236, and

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the trial court repeatedly declined to find that the anti-stalking petitions were deficient as a matter of law. We agree in part with Ms. Rokhvand and Ms. Barmada. We are not able to conclude that the trial court applied the correct standard in determining that Rabbi Herzfeld was eligible for attorney’s fees under the Anti-SLAPP Act, and we therefore vacate the fee award and remand the case for further proceedings.

The Anti-SLAPP Act permits the trial court to award reasonable attorney’s fees to “a moving party who prevails, in whole or in part,” on a special motion to dismiss. D.C. Code § 16-5504(a). In general, to “prevail” on a special motion to dismiss, the moving party must first “make[] a prima facie showing that the claim at issue arises from an act in furtherance of the right of advocacy on issues of public interest.” Id. § 16-5502(b). Once that showing is made, “the burden shifts to the party opposing the motion to ‘demonstrate[] that the claim is likely to succeed on the merits.’” Mann, 150 A.3d at 1232 (alteration in original) (quoting D.C. Code § 16-5502(b)). A claim is “likely to succeed on the merits” for purposes of the Anti-SLAPP Act if “a jury properly instructed on the law . . . could reasonably find for the claimant on the evidence presented.” Id. at 1236. In other words, the “standard to be employed by the court in deciding whether to grant the motion . . . is substantively the same” as the summary-judgment standard. Id. at 1238 n.32; see also Salem Media Grp., Inc. v. Awan, 301 A.3d 633, 639 (D.C. 2023) (“The

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Anti-SLAPP Act special-motion-to-dismiss procedure functions essentially like an early motion for summary judgment . . . .”). Therefore, the trial court in this case could properly award fees to Rabbi Herzfeld only if the anti-stalking petitions were deficient as a matter of law, not merely if the petitions were ultimately denied after “making credibility determinations and weighing the evidence.” Mann, 150 A.3d at 1235.

We first address a threshold issue. The trial court did not grant the special motion to dismiss. Rather, the trial court twice declined to rule on the motion during trial, made no mention of the motion when returning its verdict, and ultimately denied the motion as moot. Ms. Rokhvand and Ms. Barmada therefore argue, not unreasonably, that Rabbi Herzfeld did not prevail in whole or in part on the motion, as is required for fees to be awarded under the Anti-SLAPP Act. D.C. Code § 16-5504(a). We conclude, however, that this wrinkle is not necessarily fatal to Rabbi Herzfeld’s claim for attorney’s fees in the circumstances of this case. As we will explain later in this opinion, we conclude that the trial court applied an incorrect standard when awarding fees to Rabbi Herzfeld under the Anti-SLAPP Act. We therefore remand the case for further proceedings on that issue. If the trial court could properly have granted the special motion to dismiss when applying the correct standard, then the trial court on remand would if necessary be free to grant the special motion and then award fees.

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In its order awarding attorney’s fees, the trial court never explicitly concluded that the claims raised by Ms. Rokhvand and Ms. Barmada were deficient as a matter of law. Moreover, the record as a whole does not allow us to conclude that the trial court implicitly reached that conclusion.

The trial court concluded that “attorney[’s] fees may be awarded even though the [trial court] determined that it could not rule on the Special Motion to Dismiss without hearing the evidence.” It is true that the Anti-SLAPP Act requires the court to “hold an expedited hearing” before ruling on a special motion to dismiss, D.C. Code § 16-5502(d), and that we have concluded that the statute, by imposing a summary-judgment standard, “mandates the production or proffer of evidence” by the party opposing the special motion to dismiss, Mann, 150 A.3d at 1233. An “expedited hearing” under D.C. Code § 16-5502(d) is not, however, “virtually identical” to a trial, as the trial court stated in the fee-award order, because evidence in the context of a special motion to dismiss must be reviewed for legal sufficiency and not “to decide the merits of the case.” Mann, 150 A.3d at 1240. The trial court did not make this distinction in its fee-award order; to the contrary, the trial court indicated that it viewed the “trial on the merits” as substantively indistinguishable from any hearing it might have held on the special motion to dismiss. The trial court erred by not applying the proper standard in assessing whether Rabbi Herzfeld was eligible for reasonable attorney’s fees under the Anti-SLAPP Act.

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Jacobson, 309 A.3d at 577-85, on which the trial court relied in its fee-award order, does not support the trial court’s ruling. In Jacobson, we held that a plaintiff’s voluntary dismissal before a ruling on the defendants’ special motion to dismiss was not a flat bar to recovery of attorney’s fees under the Anti-SLAPP Act. 309 A.3d at 578-81. Even in the scenario of voluntary dismissal, which is not present here, the court must determine that the defendant “prevail[ed], in whole or in part.” D.C. Code § 16-5504(a); see Jacobson, 309 A.3d at 581. We noted in Jacobson that courts around the country addressing whether fees can be awarded where the plaintiff voluntarily dismissed the case do not always use a “merits-based approach,” by which the court determines whether the anti-SLAPP motion would have been granted if the case had not been voluntarily dismissed. 309 A.3d at 581-82. Instead, some courts use a “catalyst approach,” looking to see whether the special motion to dismiss was the cause of the plaintiff’s voluntary dismissal. Id. at 582. We did not decide what standard for “prevailing” should apply in voluntary-dismissal cases, however, because we determined that the defendants prevailed under any standard. Id. at 583.

This case does not involve voluntary dismissal, and we see no basis upon which to infer that the special motion to dismiss caused the denial of relief on the merits. One could arguably rely on Jacobson for the idea that fees can properly be awarded even if the trial court erroneously denies a special motion to dismiss that

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should have been granted. We need not reach that question at this juncture, because we are remanding the case on other grounds, and the trial court can if necessary consider that issue on remand.

If it were clear from the record as a whole that the trial court made the necessary determination that the claims presented by Ms. Rokhvand and Ms. Barmada were deficient as a matter of law, we could potentially affirm on that basis. Cf., e.g., Hsieh v. Formosan Ass’n for Pub. Affs., 316 A.3d 448, 453 (D.C. 2024) (“We may affirm the trial court’s [summary-judgment] ruling on any basis supported by the record if the appellant will suffer no procedural unfairness.”) (citation modified). As Ms. Rokhvand and Ms. Barmada emphasize, however, the trial court repeatedly declined to make that finding at trial by not ruling on the special motion to dismiss despite being asked three times to do so, twice after Ms. Barmada and Ms. Rokhvand had testified. More importantly, the trial court denied Rabbi Herzfeld’s motion for a directed verdict at the close of petitioners’ evidence, opining in direct contradiction to the Mann standard that “there are issues that perhaps reasonable factfinders could disagree upon about whether the petitioners have presented sufficient evidence of stalking.” The trial court’s denial of the directed-verdict motion is in significant tension with the trial court’s conclusion in the fee-award order that there was “no evidence” in support of the stalking allegations, a conclusion

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which, standing on its own, might support a determination of insufficiency as a matter of law.

Instead of wading through the conflicting record evidence and statements by the trial court, we remand the case for the trial court to consider whether Rabbi Herzfeld is eligible for attorney’s fees under the correct legal standard. Cf., e.g., Coleman v. United States, 202 A.3d 1127, 1142 (D.C. 2019) (“We are unable to discern from the transcript of the proceedings below whether the trial court applied [a requirement of the stalking statute] . . . . A remand is therefore required so that the trial court may consider the evidence under the appropriate legal standard.”).

C. Award of Fees for Bad Faith

Ms. Rokhvand and Ms. Barmada challenge the trial court’s alternative ruling that the award of attorney’s fees was warranted under the bad-faith doctrine. They argue both that the trial court failed to provide them with sufficient notice of potential sanctions for bad faith and that the record does not support the trial court’s bad-faith determination. We agree that Ms. Barmada and Ms. Rokhvand received inadequate notice, and we therefore vacate the trial court’s alternative rationale for awarding attorney’s fees.

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The “bad-faith” doctrine allows a court, pursuant to its inherent authority, “to award sanctions [including attorney’s fees] in appropriate circumstances for intentional abuse of the litigation process.” Yeh v. Hnath, 294 A.3d 1081, 1089 (D.C. 2023) (citation modified). “Trial courts enjoy considerable latitude in deciding the type of sanctions to impose under their inherent powers,” but a party must be “placed on sufficient notice that it may be subject to sanctions.” In re S.U., 292 A.3d 263, 269, 272 (D.C. 2023) (citation modified) (concluding that parties received sufficient notice that court was considering sanctions against them where court issued order stating that it was considering sanctions under Super. Ct. Civ. R. 11 (permitting sanctions upon party who, among other things, submits filings for improper purpose), and parties submitted filing contesting whether such sanctions should be imposed).

Ms. Barmada and Ms. Rokhvand were not put on notice that the trial court was considering bad-faith sanctions. Rabbi Herzfeld did not request attorney’s fees on the basis of bad faith, and the Anti-SLAPP Act does not require a finding of bad faith to award attorney’s fees. See D.C. Code § 16-5504(a); Doe v. Burke, 133 A.3d 569, 574 (D.C. 2016) (concluding that D.C. Code § 16-5504(a) does not require an “additional showing of frivolousness or wrongful motivation”). The trial court did not at any point notify Ms. Rokhvand and Ms. Barmada that it was considering bad-faith sanctions. The trial court ordered Rabbi Herzfeld to put forth his bases for

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his request for attorney’s fees, under the Anti-SLAPP Act or “under some other basis,” and Rabbi Herzfeld requested fees pursuant only to the Anti-SLAPP Act. Ms. Barmada and Ms. Rokhvand did not have an adequate opportunity to be heard regarding the trial court’s bad-faith determination, and therefore that determination must be vacated and the issue remanded for further proceedings. Cf., e.g., Cheek v. Edwards, 215 A.3d 209, 216 (D.C. 2019) (reversing and remanding trial-court order where order was issued without sufficient notice to defendant, “without prejudice to [plaintiff] or the court on its own initiative raising the issue . . . anew”).

On remand, Ms. Barmada and Ms. Rokhvand will have the opportunity to fully brief their arguments regarding whether the record can support a finding of bad faith. In addition, although we do not reach the issue of the reasonableness of the amount of fees, we note the argument of Ms. Barmada and Ms. Rokhvand that the trial court did not address all of the factors that we have indicated the trial court should expressly address in determining the amount of fees to award as a sanction for bad faith. See Yeh, 294 A.3d at 1092 n.15 (“In imposing a monetary sanction, the trial court should expressly consider . . . (1) the reasonableness of the injured party’s attorneys’ fees; (2) the minimum amount that will serve to adequately deter the undesirable behavior; (3) the offending party’s ability to pay . . . ; and (4) . . . other factors as deemed appropriate in individual circumstances.”) (citation modified). We

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agree that the trial court did not make such findings and should do so on remand should it choose to award attorney’s fees under the bad-faith doctrine.

For the foregoing reasons, we affirm the trial court’s denial of the anti-stalking petitions, vacate the trial court’s order awarding attorney’s fees, and remand the case for further proceedings on the issue of attorney’s fees.

So ordered.