Opinion
C051580
12-12-2006
SALINGER VAN DYKE, Plaintiff and Respondent, v. JTS COMMUNITIES, INC. et al., Defendants and Appellants.
Defendants JTS Communities, Inc. (JTS) and Carol Martin doing business as Carol Martin Consulting (Martin) appeal from the trial courts denial of their motion for attorneys fees as prevailing parties in a separate special motion to strike the complaint of plaintiff Salinger Van Dyke (a law firm) as a "strategic lawsuit against public participation" (SLAPP) under Code of Civil Procedure section 425.16. Defendants also appeal from the trial courts earlier order "dropping" their anti-SLAPP motion due to untimely service. Defendants contend they attained prevailing party status when plaintiff voluntarily dismissed the complaint after defendants filed their section 425.16 motion, and before the trial court "dropped" the motion due to untimely service. We shall conclude defendants fail to show any reversible error.
Undesignated statutory references are to the Code of Civil Procedure.
Section 425.16 provides in part: "(b)(1) A cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim."
In this opinion, our use of the word "defendants" refers to JTS and Martin. Another named defendant, Dunmore Homes, Inc., is not a party to this appeal.
FACTUAL AND PROCEDURAL BACKGROUND
In July 2005, plaintiff filed a complaint against defendants for unfair competition (Bus. & Prof. Code, § 17200 et seq.), intentional interference with prospective economic advantage, and defamation. Plaintiff alleged it is a law firm that regularly represents homeowners in litigation against homebuilders for construction defects, including litigation against defendants. Plaintiff alleged its clients were contacted by defendants, who tried to persuade the clients to drop their construction defect claims.
On October 3, 2005, defendants filed in the trial court a notice of special motion asking the trial court (1) to strike the complaint as a SLAPP, and (2) to order that defendants were entitled to recover the attorneys fees incurred in making the anti-SLAPP motion, in an amount to be determined in a later motion or cost bill. The notice of motion set a hearing date of October 24, 2005 (which did not conform to section 1005s requirement that notice of motion shall be served at least 16 court days before the hearing, or 18 court days if served by overnight delivery).
Defendants appellate brief says the hearing date was "suggested by" the courts calendaring clerk. However, the cited declaration merely contains hearsay that the date was acceptable to the court. We reject any defense implication that its defective notice was the courts fault.
Plaintiff did not file a written opposition to the anti-SLAPP motion.
On October 20, 2005, plaintiff voluntarily dismissed its complaint, with prejudice, as to the defendants who are parties to this appeal (JTS and Martin).
Before the October 24, 2005, hearing on the anti-SLAPP motion, the trial court issued a "TENTATIVE RULING" (set forth in the trial courts minute order dated October 24, 2005), stating that defendants motion to strike was "dropped" because "[t]he proof of service states the notice of motion was served by overnight delivery on October 3, 2005, for a hearing on October 24. Pursuant to C.C.P. section 1013, 18 court days notice is required. The required notice was not given. Defective notice deprives the Court of jurisdiction to consider the motion. Lee v. Placer Title Co. (1994) 28 C.A.4th 503, 509, 511."
Defendants say the "dropping" of a motion off calendar does not dismiss the motion but merely postpones it, and it remains viable and can be restored on calendar. However, the key point in the cited authorities is the dropping "off calendar." (R & A Vending Services, Inc. v. City of Los Angeles (1985) 172 Cal.App.3d 1188, 1193; 2 Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group) § 9:156, p. 9(l)-101.) Here, it is clear the trial court was not merely postponing the motion. We construe the courts "dropping" of the motion as an implicit denial of the motion.
The ruling later cited the more appropriate statute — section 1005. (See fn. 7, post.)
As further reflected in the October 24, 2005, minute order, the matter was argued and submitted and the "RULING ON SUBMITTED MATTER" was as follows: "Upon submission, defendants JTS Communities, Inc. and Carol Martins Special Motion to Strike is dropped. The proof of service states the notice of motion was served by overnight delivery on October 3, 2005, for a hearing on October 24. At the hearing, JTS Communities and Carol Martins counsel stated the motion was personally served on Mr. Van Dykes prior counsel. Personal service, however, requires 16 court days notice. C.C.P. section 1005. Only 14 court days notice was given, as conceded by defendants counsel. Defendants counsel stated the court had discretion under C.C.P. section 1005 to allow the motion to be heard on shortened time. However, defendants did not request leave to have the motion heard on shortened time prior to service, nor did the court prescribe a shorter time prior to actual service of the motion. Defective notice deprives the Court of jurisdiction to consider the motion. Lee v Placer Title Co. (1994) 28 C.A.4th 503, 509, 511."
The record on appeal does not contain any reporters transcript of that hearing.
Section 1005, subdivision (b), states in part that written notices of motion "shall be served and filed at least 16 court days before the hearing. . . . However . . . if the notice is served by . . . overnight delivery, the required 16-day period of notice before the hearing shall be increased by two calendar days. Section 1013, which extends the time within which a right may be exercised or an act may be done, does not apply to a notice of motion, papers opposing a motion, or reply papers governed by this section. . . . [¶] The court, or a judge thereof, may prescribe a shorter time."
As referenced in section 1005, section 1013 provides in part that service by overnight delivery is complete at the time of deposit with an express service carrier "but any period of notice and any right or duty to do any act or make any response within any period or on a date certain after the service of the document . . . shall be extended by two court days . . . ." (§ 1013, subd. (c).)
On appeal, defendants do not dispute that their service was defective.
On November 14, 2005, defendants filed a "MOTION FOR AWARD OF ATTORNEYS FEES UNDER STRATEGIC LAWSUIT AGAINST PUBLIC PARTICIPATION (`SLAPP) STATUTE," asking the trial court (1) to make a finding that defendants were "prevailing parties" on their earlier anti-SLAPP motion, based on the fact that plaintiff dismissed the complaint with prejudice after the anti-SLAPP motion was filed, and (2) to award attorneys fees to defendants in the amount of $37,944.34. Defendants did not seek reconsideration of the trial courts prior ruling that it lacked jurisdiction due to defective service of the anti-SLAPP motion. However, defense counsel attested his employee delivered the anti-SLAPP motion to the office of plaintiffs attorney on October 3, 2005.
Plaintiff opposed the motion for attorneys fees, arguing defendants could not be considered prevailing parties on the anti-SLAPP motion because the trial court lacked jurisdiction due to defective service. Plaintiff submitted a declaration attesting it was served with the anti-SLAPP motion by overnight delivery, not personal delivery.
The trial court issued a tentative ruling denying defendants motion for an award of attorneys fees under section 425.16. The tentative ruling stated in part: "Defendants motion to dismiss pursuant to CCP section 425.16(c) was dropped from calendar for insufficient notice. When notice is defective, the Court never acquires jurisdiction. As there was no anti-SLAPP motion pending before the Court when the underlying action was dismissed, defendants are not prevailing parties. [¶] The Court notes that although defendants suggest the basis of the above ruling was erroneous, they did not file a motion for reconsideration, and have presented no argument in this motion showing error in the ruling."
A hearing was held, at which defense counsel argued that the trial court erred in concluding the defective notice deprived the court of jurisdiction, and that plaintiff waived any problem concerning defective notice of the anti-SLAPP motion by dismissing the complaint rather than filing an opposition to the anti-SLAPP motion.
The trial courts minute order, dated December 13, 2005, stated, "Upon submission, the tentative ruling is affirmed. Defendant[s] argument that Plaintiffs dismissal can be construed as a waiver of the defective notice of the anti-SLAPP motion is rejected."
Defendants appeal.
DISCUSSION
I. Appealability
We first address — and reject — the argument in the respondents brief filed by plaintiff, that the order denying section 425.16 attorneys fees is not an appealable order and therefore this court lacks jurisdiction to consider the appeal. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674.)
Section 425.16, subdivision (i), states, "An order granting or denying a special motion to strike shall be appealable under Section 904.1."
Section 904.1, subdivision (a)(13), provides that an appeal may be taken from "an order granting or denying a special motion to strike under Section 425.16."
Defendants notice of appeal stated an appeal from the December 13, 2005, order denying defendants motion for attorneys fees, which they asserted was appealable as a final determination of a collateral issue, or as an appeal from an order made after an appealable judgment (§ 904.1, subd. (a)(2)), i.e., the disposition of the anti-SLAPP motion.
Plaintiff argues these asserted bases for appeal do not apply, because there was no judgment in this case, and because an appealable order on a collateral issue must direct payment of money or performance of an act (which was not the case here). We need not address these arguments, however, because defendants notice of appeal (which was filed on December 21, 2005) also stated that the first order, i.e., the October 24, 2005, order dropping the anti-SLAPP motion "is itself appealable under CCP §§ 904.1(a)(13) and 425.16(j) [now (i)], and from which other order appeal is hereby additionally taken in an abundance of caution to preserve all relevant rights of appeal in all possible ways."
The notice of appeal said the date was October 29, 2004, but it was October 24, 2005.
Thus, defendants timely appealed from the first order, which in effect denied the section 425.16 motion (a motion that included a request for attorneys fees). The first order was appealable under sections 425.16, subdivision (i), and 904.1, subdivision (a)(13). Although the first order "dropped" rather than "denied" the section 425.16 motion, the effect of the order was a denial of the section 425.16 motion. The trial courts conclusion that it lacked jurisdiction did not deprive the trial court of authority to deny the motion. A court has jurisdiction to determine whether it has jurisdiction. (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 302-303.)
Thus, the first order was clearly appealable. Defendants appeal from the second order depends on asserted error in the first order. We shall conclude defendants fail to meet their burden as appellants to demonstrate prejudicial error.
We conclude we have jurisdiction of this appeal.
II. Standard of Review
Although a trial courts ruling on the propriety of an attorneys fees award is generally reviewed under an abuse of discretion standard, here the contention is that the trial court abused its discretion by making an error of law (by concluding defective notice of motion deprived the court of jurisdiction to consider the motion), and thus this case presents legal questions subject to de novo review. (Castro v. Superior Court (2004) 116 Cal.App.4th 1010, 1017.)
III. Defendants Fail to Show Prejudicial Error
Defendants argue the trial court erred in concluding that untimely service of defendants anti-SLAPP motion meant that no motion was pending when plaintiff voluntarily dismissed the complaint. Defendants argue defective notice of motion under section 1005 does not divest the trial court of fundamental jurisdiction. We will assume for purposes of this appeal that the trial court erred in concluding it lacked jurisdiction to consider the motion due to defective notice. Nevertheless, defendants fail to show this error warrants reversal.
We therefore need not address the parties arguments on this point, e.g., applicability of Lee v. Placer Title Company (1994) 28 Cal.App.4th 503, whether its holding is limited to section 1013, and the effect if any of section 1005.5s provision that a motion is deemed to have been made and to be pending upon "due" service and filing.
When a plaintiff voluntarily dismisses a complaint with prejudice after the defendant files an anti-SLAPP motion but before the court hearing on the motion, the trial court lacks jurisdiction to strike the complaint as requested in the section 425.16 motion, but the court retains jurisdiction to award section 425.16 attorneys fees to the defendant. (S.B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 381, fn. 2; Kyle v. Carmon (1999) 71 Cal.App.4th 901, 908, fn. 4.) Defendants who do not file an anti-SLAPP motion before plaintiffs voluntary dismissal may not recover attorneys fees and costs pursuant to section 425.16, subdivision (c). (S.B. Beach, supra, 39 Cal.4th at p. 383.)
S.B. Beach held defendants could not recover attorneys fees pursuant to section 425.16, where the plaintiffs voluntarily dismissed their complaint with prejudice before the defendants filed an anti-SLAPP motion but after the plaintiffs learned (through the answer and an ex parte defense motion to exceed the page limit for an anti-SLAPP motion) that the defendants planned to file a section 425.16 motion. The California Supreme Court said its holding harmonized the competing interests of (1) allowing a plaintiff a certain amount of freedom of action, and (2) enabling the defendant-victim of a SLAPP suit to extricate himself or herself from the lawsuit as quickly and inexpensively as possible. (Id. at p. 382.) "Plaintiffs have the freedom to reconsider the wisdom of their actions without penalty before defendants have incurred clearly identifiable and recoverable legal fees." (Ibid.) However, the Supreme Court also said the unambiguous language of section 425.16 "makes the filing of a viable anti-SLAPP motion a prerequisite to recovering any fees and costs." (S.B. Beach, supra, 39 Cal.4th at p. 379, italics added.)
Defendants argue they did have a viable motion, because viability refers only to jurisdiction, and their motion was within the trial courts jurisdiction, alive and ripe for adjudication absent evidence of a timely objection by plaintiff concerning the defective notice. They say their motion was viable up to the time plaintiff dismissed the complaint, because as of that date, plaintiff had neither objected to the defective notice nor proved prejudice. However, defendants cite nothing that required plaintiff to object to the defect or show prejudice before dismissing the complaint. Such a requirement would unnecessarily burden the courts.
Even assuming the trial court erred in concluding it lacked jurisdiction due to defective notice of the anti-SLAPP motion, defendants must additionally demonstrate that such error caused a miscarriage of justice. (Cal. Const., art. VI, § 13 [no reversal unless the error complained of has resulted in a miscarriage of justice]; § 475.)
Section 475 states in part: "No judgment, decision, or decree shall be reversed or affected by reason of any error, ruling, instruction, or defect, unless it shall appear from the record that such error, ruling, instruction, or defect was prejudicial, and also that by reason of such error, ruling, instruction, or defect, the said party complaining or appealing sustained and suffered substantial injury, and that a different result would have been probable if such error, ruling, instruction, or defect had not occurred or existed. There shall be no presumption that error is prejudicial, or that injury was done if error is shown."
In order to show a miscarriage of justice warranting reversal, defendants have to show the trial court would have granted them relief from their defective notice had the court not erroneously believed it lacked jurisdiction. However, defendants fail to make any such showing. They argue the trial court, in ruling there was no anti-SLAPP motion pending at the time plaintiff dismissed the complaint, deprived defendants of the presumption that they were the prevailing parties on their motion. (Kyle v. Carmon, supra, 71 Cal.App.4th at p. 918 [where plaintiff voluntarily dismisses complaint with prejudice after defendant files anti-SLAPP motion, a presumption arises that the defendant was the prevailing party on the motion].) However that is not necessarily the case because, as defendants acknowledge, the trial court could have and would have denied the anti-SLAPP motion on the grounds of defective service, even if the court had not erroneously concluded it lacked jurisdiction to consider the motion. Indeed, defendants own appellate brief takes the position that "[i]f [plaintiff] objects to the untimely service, the court is mandated to deny the relief sought . . . ."
The record suggests the trial court was not inclined to grant defendants relief from the defective service. Thus, the trial courts minute order of October 24, 2005, dropping the anti-SLAPP motion, stated that defense counsel argued at the hearing in the trial court that the trial court had discretion to allow the motion to be heard on shortened time, but the trial court rejected the argument because defendants did not request or receive court approval for shortened time before service of the motion. Thus, the trial court was not inclined to look for ways to help defendants out of their self-inflicted predicament.
Defendants incurred the expense of preparing the anti-SLAPP motion but, through the fault of defendants own attorneys, the motion was not timely served. If plaintiff had refrained from dismissing the complaint and instead filed a written opposition to the anti-SLAPP motion on the ground of defective service, plaintiff would have prevailed (as defendants acknowledge), and the anti-SLAPP motion would have been denied. At that point, plaintiff could have dismissed the complaint with no anti-SLAPP motion pending, and defendants would not be entitled to recover any attorneys fees. (S.B. Beach, supra, 39 Cal.4th 374.)
Defendants argue that, if the trial court had not erroneously viewed itself as lacking jurisdiction, plaintiff would have had the burden to show prejudice from the defective notice, which it could not do. Thus, defendants position is that a moving partys failure to comply with statutory notice requirements is inconsequential unless the opposing party can prove prejudice.
A major problem with defendants presentation is that they misperceive their burden on appeal. They claim the burden is on plaintiff to show that it (1) objected in the trial court to the defective notice of defendants anti-SLAPP motion, and (2) was prejudiced by the defective notice.
However, even if defendants correctly state the burden plaintiff had in the trial court, it is the appellant who bears the burden on appeal to show the judgment or order is wrong, regardless of which party has the burden in the trial court. (Guthrey v. State of California (1998) 63 Cal.App.4th 1108, 1115-1116; People v. $497,590 United States Currency (1997) 58 Cal.App.4th 145, 152-153.)
The trial courts October 24, 2005, minute order reflects a hearing was held at which the matter was argued, but it appears the hearing was not reported, and defendants have not made the contents of the hearing part of the record on appeal. As noted by plaintiff, the record on appeal is devoid of any evidence that plaintiff argued the merits of the motion or failed to object to the defective notice at the hearing.
Defendants reply brief claims the record shows plaintiff did not contemplate the defect until the trial court raised the issue in its tentative ruling. However, defendants cite only to the trial courts minute orders, which do not indicate one way or the other whether plaintiff contemplated the defect.
Defendants, misperceiving their burden, also reply that the record is devoid of any evidence that plaintiff objected to defective notice, and "if it is not in the record, it did not happen" (quoting Protect Our Water v. County of Merced (2003) 110 Cal.App.4th 362, 364). However, it is the appellant who has the burden of providing a record adequate to support his or her arguments on appeal. (People v. Malabag (1997) 51 Cal.App.4th 1419, 1427.) "Where no reporters transcript has been provided and no error is apparent on the face of the existing appellate record, the judgment must be conclusively presumed correct as to all evidentiary matters. To put it another way, it is presumed that the unreported trial testimony would demonstrate the absence of error. [Citation.] The effect of this rule is that an appellant who attacks a judgment but supplies no reporters transcript will be precluded from raising an argument as to the sufficiency of the evidence. [Citations.]" (Estate of Fain (1999) 75 Cal.App.4th 973, 992, orig. italics.) Although defendants do not discuss their cited authority, POW, supra, 110 Cal.App.4th 362, we note the appellate court there did fault both sides (appellants and respondents) for an inadequate record and did reverse the trial courts decision. (Id. at pp. 372-375.) However, the issue there was an inadequate administrative record in an environmental case, and the inadequacy of the administrative record was itself a failure to comply with procedures of the California Environmental Quality Act, which was necessarily prejudicial and not subject to harmless error analysis. (Ibid.) Thus, POW does not help defendants in the case before us.
Here, defendants fail to show as evidentiary fact that plaintiff failed to object to the defective notice at the hearing in the trial court.
In any event, even assuming plaintiff did not object to the defective notice and did not show prejudice in the trial court, defendants fail to support their suggestion that the trial court would have been required to ignore the defective service under those circumstances. Defendants cited cases are distinguishable, e.g., they were cases where the party asserting the defect had the burden as appellant or was otherwise the losing party on that point in the trial court. (E.g., Eliceche v. Federal Land Bank Assn. (2002) 103 Cal.App.4th 1349, 1374-1375 [appellant who objected in the trial court to an order shortening time, but who did not contest motion on the merits, forfeited the issue on appeal]; Carlton v. Quint (2000) 77 Cal.App.4th 690, 698 [appellant waived defect in the trial court]; Campisi v. Superior Court (1993) 17 Cal.App.4th 1833, 1839 [party petitioning for appellate court review waived defect in the trial court]; Laupheimer v. State of California (1988) 200 Cal.App.3d 440, 451 [appellants failed to show prejudice]; Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930 [party who appears and contests a motion in the trial court cannot object on appeal or writ petition that he had no notice of the motion or that the notice was defective]; Mendocino County v. Peters (1905) 2 Cal.App. 24, 27 [respondent could not urge on appeal an objection waived in the trial court regarding the contents of the record].)
Defendants quote from a treatise: "An attorney who claims his or her client was not properly served with motion papers, or that inadequate notice of the hearing was received, may appear at the hearing without filing a response to the motion and request a continuance for the purpose of preparing a proper response. If counsel makes a complete record relating to both the defective service and inadequate notice and the inability to prepare a proper response, and the court denies the continuance, the record will be preserved for any future writ proceeding or appeal." (44 Cal.Jur.3d (2003) Motion Procedure, § 12, p. 935.) However, this refers to the situation where the trial court rules against a party who requests a continuance due to defective service, and that party therefore has the burden on appeal.
Here, the trial courts ruling on the issue of defective notice was favorable to plaintiff (who is the respondent on appeal), and it is defendants (as appellants) who bear the burden of affirmatively showing prejudicial error on appeal.
Defendants claim a miscarriage of justice, in that they say they have a pending action against plaintiff for malicious prosecution, and if we do not reverse the trial court, defendants will not be able to show "favorable termination" of this action, as a required element of their malicious prosecution action. In their reply brief, defendants request that we take judicial notice of the malicious prosecution action assertedly pending in the trial court. We deny that request for judicial notice. To prevail in this appeal, defendants must show a miscarriage of justice in this case.
We decline defendants invitation that we make a de novo finding that plaintiffs failure to present a written opposition to the merits of the anti-SLAPP motion reflects the motion had merit.
We conclude that, had the trial court concluded it had jurisdiction over the anti-SLAPP motion, the court would have denied the motion due to defective service. At that point, plaintiff would have dismissed the complaint, with no anti-SLAPP motion pending, and defendants would not have been entitled to an award of attorneys fees under section 425.16. Accordingly, we conclude defendants fail to show any prejudicial error warranting reversal of either order (the order dropping the anti-SLAPP motion or the order denying attorneys fees). We deny defendants request, in their reply brief, for an award of attorneys fees for this appeal.
Indeed, it would have been too late for defendants to file another anti-SLAPP motion without leave of court, because section 425.16, subdivision (f), says the motion "may be filed within 60 days of the service of the complaint or, in the courts discretion, at any later time upon terms it deems proper." The filing of the first motion on Monday, October 3, 2005, barely made the 60 day deadline after the service of the complaint which, according to defense counsels declaration, occurred "on or about August 2, 2005."
DISPOSITION
The October 24, 2005, order (denying the anti-SLAPP motion) and the December 13, 2005, order (denying attorneys fees) are affirmed. Plaintiff shall recover its costs on appeal. (Cal. Rules of Court, rule 27(a)(1).)
We Concur:
HULL, J.
CANTIL-SAKAUYE, J.