Opinion
A168684
11-13-2024
HARDEEP BHAKHRI, Plaintiff, Cross-defendant, and Appellant, v. ASHWANI BHAKHRI, Defendant, Cross-complainant, and Respondent.
NOT TO BE PUBLISHED
(San Mateo County Super. Ct. No. 19-CIV-03378)
PETROU, J.
Plaintiff Hardeep Bhakhri challenges the trial court's order denying as untimely his motion pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16). On appeal, Hardeep contends the 60-day period for filing his anti-SLAPP motion was never triggered by proper service. Alternatively, he asserts the trial court abused its discretion in refusing to allow a late motion. We disagree and affirm the trial court's order.
"SLAPP" is short for Strategic Lawsuit Against Public Participation.
We use the parties' first names for clarity. No disrespect is intended.
Background
In 2019, Hardeep sued his uncle, Ashwani, regarding a dispute over ownership of six residential rental properties and certain payments that Hardeep alleged Ashwani was required to make with regards to one of those properties.
In 2022, Ashwani sought leave to file a cross-complaint. Hardeep did not oppose the motion. On January 10, 2023, the court issued a tentative ruling granting leave to file the cross-complaint. The tentative ruling provided that "[i]f the tentative ruling is not contested, it shall become the order of the Court."
Neither party contested the tentative ruling. That same day, on January 10, Ashwani filed and electronically served the cross-complaint via email at 4:47 p.m. The proof of service attached to the cross-complaint erroneously listed December 6, 2022 as the date of service. In the service email, Ashwani stated, "Please see the attached service copy of Defendant's Cross-Complaint filed this afternoon. Although the proof of service lists our earlier 12/06/22 service date, this email confirms that the deadline for Plaintiff's responsive pleading should be calculated from today's service."
Hardeep sent an email response raising, in relevant part, two objections to Ashwani's service email. First, Hardeep stated "the Court still has not signed the order granting leave to file the cross-complaint.... This is a problem because without a signed order, service and filing of the crosscomplaint are premature." Second, he noted, "As you pointed out in your email, the proof of service attached to Ashwani's cross-complaint is defective because it states [the wrong date]. Instead of providing a correct proof of service, you are attempting to have your email act as a proof of service. That's not acceptable because the Court needs to have an accurate proof of service on file. After you have served the notice of entry of the Court's order, please refile and reserve the cross-complaint with an accurate proof of service."
In response Ashwani stated "I have no problem waiting for the signed order and will be sure to later file/serve the cross-complaint sometime before the tentative ruling's stated deadline."
Following discussion between counsel, on January 13, 2023, Ashwani submitted to the court a proposed order granting leave to file the crosscomplaint. The email requested the court "expedit[e] processing" because "the Minute Order requires us to file [the cross-complaint] by 1/18/23." The court responded as follows: "Per the authority of the Minute order, you already filed a Cross-Complaint on January 10, 2023. Accordingly, your email is confusing." It then requested that future proposed orders be submitted through the court's mandatory e-filing system.
Ashwani replied to the court, "I completely agree. Unfortunately, [Hardeep's] counsel emailed a complaint about the lack of a formal signed order after hearing. So, I wanted to run this by you. In my humble opinion, expedience, common sense, and all other factors militate in favor of maintaining the status quo. But I am open to further timely objections/counter-arguments from [Hardeep's] counsel copied on our email chain."
The court then wrote to both parties: "It is filed already. The ruling is in the Minutes. The ruling says that if the tentative is uncontested, it shall become the order of the Court. It was not contested. If opposing counsel wants to take further action, it is up to opposing counsel to do so formally."
On January 13, 2023, Ashwani subsequently informed Hardeep, "In light of [the court's] last email . . ., please serve a responsive pleading within 30-days of today. . . . I will separately file proof that our cross-complaint was served a second time." Hardeep then asked whether Ashwani was filing an amended proof of service reflecting that the cross-complaint was electronically served as of January 13, 2023. The record does not contain a response; nor does it indicate any service on January 13.
On January 17, 2023, Ashwani re-served the cross-complaint via email with a separate proof of service.
The parties subsequently negotiated an extension for Hardeep's responsive pleading to the cross-complaint. Those emails reflect Hardeep's belief that the deadline was being calculated from the January 17, 2023 service date. Ashwani did not confirm or deny that understanding, but agreed to an extension to March 3, 2023. Hardeep subsequently filed an answer to the cross-complaint on March 3, 2023.
On March 21, 2023, Hardeep filed a special motion to strike the crosscomplaint under the anti-SLAPP statute. The motion asserted the crosscomplaint arose from his protected activity of filing and prosecuting his complaint.
Ashwani opposed the motion, asserting in relevant part that the motion should be denied as untimely. The supporting declaration of counsel asserted he served the cross-complaint on January 10, and recounted the subsequent communications between the parties and the court as discussed above. He also raised various substantive arguments not relevant to this appeal. Hardeep's reply brief addressed Ashwani's timeliness argument. He claimed the cross-complaint was served on January 17, and the anti-SLAPP motion was thus filed within the 60-day deadline.
The court denied the motion as untimely. The court concluded the cross-complaint was filed and electronically served on January 10. The court noted it had informed Hardeep "that if he had a procedural objection to the Cross-Complaint, he should take formal action," but he "did not." The court further noted Hardeep "did not bring a regular motion to strike on the grounds that the filing of the Cross-Complaint was procedurally improper, but rather . . . filed an Answer to the Cross Complaint" and "thus any procedural objection was waived." The court also declined to exercise its discretion to consider the motion because the "case has been pending since June 2019," "[d]iscovery has taken place over the years," and trial was scheduled for April 2024. Hardeep timely appealed.
After the court issued its tentative opinion concluding the anti-SLAPP motion was untimely, Hardeep filed an ex parte application for leave to file a supplemental declaration and brief addressing the issue of whether his motion was timely. The court denied this application as moot in light of its denial of the anti-SLAPP motion and noted the "supplemental" evidence existed at the time Hardeep filed his briefs.
Discussion
On appeal, Hardeep contends the court erroneously concluded his motion was untimely. He contends Ashwani did not properly serve the crosscomplaint on January 10, and the 60-day period to file his anti-SLAPP motion began running on January 17 at the earliest.
I. Standard of Review
The anti-SLAPP statute creates a procedure to "resolve quickly and relatively inexpensively meritless lawsuits that threaten free speech on matters of public interest." (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 639.) "An anti-SLAPP motion 'may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper.' [Citation.] The trial court's determination that [a party's] motion was untimely is a question of law we review de novo." (Starview Prop., LLC v. Lee (2019) 41 Cal.App.5th 203, 208.) However, we consider a trial court's decision to disallow a late- filed motion under an abuse of discretion standard. (Newport Harbor, at p. 642 [allowing late anti-SLAPP motion subject to the court's discretion].) II. Timeliness of Anti-SLAPP Motion
A. Service of Cross-Complaint
Hardeep contends his anti-SLAPP motion was timely because the January 10 filing of the cross-complaint and subsequent service was (1) premature, and (2) lacked a valid proof of service. We disagree.
To the extent Hardeep believed errors existed in connection with the filing and service of the cross-complaint, the Code of Civil Procedure sets forth various procedural mechanisms for challenging these issues-e.g., motion to quash, motion to set aside a default judgment for invalid service, or motion to dismiss. (Dill v. Berquist Construction Co. (1994) 24 Cal.App.4th 1426, 1433 ["[W]hile a motion to quash is the procedure usually employed to challenge the validity of service, the same issue is raised by a motion to dismiss under [Code of Civil Procedure] section 583.210."].) And the trial court expressly informed Hardeep that the court considered the crosscomplaint filed on January 10, and it was his obligation to take "formal" action if he wished to challenge the validity of the filing and/or service of the cross-complaint.
Hardeep chose not to pursue any of these options to challenge the January 10 filing and service of the cross-complaint or allege defects with the corresponding proof of service. Instead, he filed an answer to the crosscomplaint and then filed the anti-SLAPP motion at issue. In doing so, Hardeep only contested the merits of the cross-complaint and failed to raise any objection regarding premature filing or defective service. (See 366-388 Geary St., L.P. v. Super. Ct. (1990) 219 Cal.App.3d 1186, 1193.) By answering the cross-complaint without raising any objection to filing or service, Hardeep dispensed with the need to cure any potential defects.(Ibid.; accord, Code Civ. Proc., § 410.50, subd. (a).)
Hardeep argues at length about when the tentative order took effect. But, as explained above, even assuming the cross-complaint was prematurely filed, Hardeep waived any error by filing an answer. He cites no authority suggesting he can now contest the timing of the cross-complaint's filing on appeal after failing to raise the issue in the trial court. (Avalos v. Perez (2011) 196 Cal.App.4th 773, 776 ["As a general rule, a claim of error will be deemed to have been forfeited when a party fails to bring the error to the trial court's attention by timely motion or objection"].)
Next, Hardeep asserts the proof of service's typographical error regarding the date negates service. Courts have addressed errors in proofs of service by assessing whether the record provides evidence of service. (E.g., Courtney v. Abex Corp. (1986) 176 Cal.App.3d 343, 346-347 ["The purpose of requiring a return to the court of the summons and proof of service is to give the court notice that plaintiff is diligently prosecuting his case and that defendant has been informed of the action against him and knows he must appear in court.[ ] [Citations.] If service upon the defendant is properly made, it is of little importance that there is a defect in the return since' "[i]t is the fact of service which gives the court jurisdiction, not the proof of service."' "]; 50A Cal.Jur.3d (2024) Process, Notices, and Subpoenas, § 59 ["An insufficient or irregular return does not vitiate jurisdiction acquired by service since the court's jurisdiction rests on the fact of service rather than on the proof of service. [Fn. omitted.] Hence, the fact that proof is defective or lacking . . . does not impair the court's jurisdiction if service in fact was made, and the actual service may be proved by parol evidence."].)
For example, in Hupp v. Freedom Communications, Inc. (2013) 221 Cal.App.4th 398, a process server filed a proof of service asserting he served motion documents by leaving copies with a security guard at the front of a gated community in which the plaintiff resided. (Id. at p. 406.) The plaintiff moved to strike the motion for lack of proper service and submitted a declaration from the security guard asserting he turned away the process server and no documents were left with him. (Ibid.) The court concluded the dispute was irrelevant because the plaintiff "admittedly received the moving papers by Federal Express .... He therefore had actual notice of the action in time to defend the anti-SLAPP motion." (Id. at p. 407.) The court explained, "The time properly began to run when the motion was admittedly received on Sept. 13, not counting prior service attempts." (Ibid.) Similarly, the court in Tobin v. Oris (1992) 3 Cal.App.4th 814, noted that-when there is no dispute as to either the fact or the timing of service-"[t]he established fact of service cannot be avoided by the obfuscation that it was accompanied by an erroneous service affidavit." (Id. at p. 826, disapproved of on other grounds by Wilcox v. Birtwhistle (1999) 21 Cal.4th 973.)
The cases Hardeep cites to the contrary involve a complete lack of evidence of service, not a minor typographical error. (Dobrick v. Hathaway (1984) 160 Cal.App.3d 913, 921-922 ["proof of service was never filed" and party's declaration failed to identify the address to which the documents were allegedly sent]; Thiara v. Pacific Coast Khalsa Diwan Society (2010) 182 Cal.App.4th 51, 58 [copy of judgment mailed to appellants "was not accompanied by a proof of service" and thus did not comply with California Rules of Court, rule 8.104(a)(2)].)
Here, Hardeep acknowledges he received actual notice of the crosscomplaint on January 10. He does not allege the cross-complaint was improperly served-e.g., was sent to an incorrect email address. Rather, the identified error was an obvious typographical mistake, listing the date of service as December 6 rather than January 10. The record contains an email-the veracity of which is not disputed-from Ashwani's counsel to Hardeep's counsel which shows the cross-complaint electronically served on January 10 at 4:47 p.m. That same email explained the accompanying proof of service contained a typographical error regarding the date of service and expressly informed Hardeep's counsel, "this email confirms that the deadline for Plaintiff's responsive pleading should be calculated from today's service."
In arguing a typographical error on the proof of service should negate his actual receipt of the cross-complaint, Hardeep seeks an absurd outcome of form over substance. Hardeep's efforts to oppose service are particularly baffling in light of his non-opposition to Ashwani's request for leave to file a cross-complaint.
We do recognize Ashwani played a role in creating the current situation as his counsel repeatedly suggested he would agree to a later response deadline in connection with a new proof of service, without actually agreeing to a later deadline for the anti-SLAPP motion. However, the record reflects efforts by both counsel to engage in procedural shenanigans, which resulted in the untimely filing of Hardeep's anti-SLAPP motion. It is not this court's role to rescue counsel from their unfortunate conduct and, ultimately, Hardeep's counsel bore the duty to ensure he filed his client's anti-SLAPP motion within the 60-day deadline. He failed to do so, and the trial court did not err in concluding the motion was untimely.
We note Ashwani's appellate brief is replete with inappropriate characterizations and inflammatory comments that do not aid his advocacy or advance the merits of his arguments.
B. Discretion to File Untimely Motion
Hardeep next argues that, even if his anti-SLAPP motion was untimely, the trial court abused its discretion in declining to consider the motion. He asserts the cross-complaint was in its "early stages," his delay was minimal, the delay was "due to a reasonable mistake," and Ashwani was not prejudiced by any untimeliness.
"A court 'enjoys considerable discretion' in determining 'whether to allow [a] late filing of an anti-SLAPP motion.' [Citation.] However, the court must exercise this discretion consistent with the purposes of the statute and must be mindful that the 60-day deadline is the general rule. [Citation.] '[T]he Legislature's act in allowing an interlocutory appeal of the denial of an anti-SLAPP motion is clearly tied to the fact that the statute contemplates that most such motions will be filed within 60 days of the filing of the complaint.' [Citation.] Thus, a 'trial court must be wary about freely granting a party the right to file an anti-SLAPP motion past the 60-day deadline.' [Citation.] In determining whether to permit a late motion, the most important consideration is whether the filing advances the anti-SLAPP statute's purpose of examining the merits of covered lawsuits in the early stages of the proceedings. [Citations.] Other relevant factors include the length of the delay, the reasons for the late filing, and any undue prejudice to the plaintiff." (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 624.) The court may, but need not, consider the merits of the motion when exercising its discretion under Code of Civil Procedure section 425.16, subdivision (f), to hear an untimely motion. (Chitsazzadeh v. Kramer &Kaslow (2011) 199 Cal.App.4th 676, 682 ["a court may wish to consider the merits of the motion to determine whether the purposes of the anti-SLAPP statute would best be served if the court considered the merits of and granted the motion"].)
While a trial court has discretion to allow the late filing of an anti-SLAPP motion, in this case the trial court declined to exercise its discretion. It explained "[t]his case has been pending since June 2019, i.e., four years.
Discovery has taken place over the years, [t]he case is presently set for trial commencing April 4, 2024 (shortly before the five-year dismissal deadline); and was previously set for trial to commence on June 14, 2021 but was vacated due to the Pandemic." Accordingly, the court concluded allowing the late motion would not meaningfully avoid the unnecessary expenses of litigation or provide early examination of the underlying issues because that activity had already occurred; the record indicates the operative complaint and cross-complaint assert claims related to the same series of real estate transactions. Moreover, it appears the court concluded Hardeep lacked good cause for his delay. As discussed above, the late filing of his motion appears to have been caused by the parties' procedural gamesmanship. While Hardeep argues there is no prejudice from allowing his motion, he does not cite any authority suggesting prejudice is required.
The moving party has the burden to show why a late filing should be allowed. When, as here, the moving party fails to show good cause for the delay, it is not an abuse of discretion for the trial court to refuse to hear an untimely anti-SLAPP motion. (Cf. Lerma v. County of Orange (2004) 120 Cal.App.4th 709, 717 ["' "[A] trial judge . . . must have discretion to deny a request for a continuance when there is no good cause for granting one ...."' "].) For the reasons set forth herein, we cannot conclude the trial court abused its discretion in declining to allow Hardeep's untimely anti-SLAPP motion.
Disposition
The order is affirmed. The parties shall bear their own costs on appeal. (Cal. Rules of Court, rule 8.278(a)(3).)
WE CONCUR: Tucher, P. J. Rodriguez, J.