Opinion
NOT TO BE PUBLISHED
City & County of San Francisco Super. Ct. No. CGC-07-467500
SIMONS, Acting P.J.
Cross-complainant Tony Fu (appellant) appeals an order granting cross-defendant Demas Yan’s (respondent) special motion to strike the cross-complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16). Appellant contends the trial court should have denied the anti-SLAPP motion as untimely under section 1005, subdivision (b), or at a minimum granted appellant a short continuance to file an opposition. He further argues the anti-SLAPP motion should have been denied because respondent made material misrepresentations regarding the merits of appellant’s cross-complaint. We reject appellant’s contentions and affirm.
SLAPP is an acronym for “ ‘strategic lawsuits against public participation.’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 85 & fn. 1.)
All undesignated section references are to the Code of Civil Procedure.
BACKGROUND
On September 24, 2007, respondent filed a complaint alleging defamation against, inter alia, appellant. Appellant filed a cross-complaint on June 19, 2008, against respondent and the trustee of respondent’s estate, stating causes of action for malicious prosecution, intentional tort, and negligence. Both appellant and respondent were proceeding in propria persona before the trial court. On July 8, appellant filed a notice of unavailability from July 10 through September 26. On July 10, respondent filed an anti-SLAPP motion to strike the cross-complaint that was noticed for hearing on August 4. On July 23, appellant filed a request that the motion to strike be dismissed or taken off calendar because the hearing date was scheduled during the time he was unavailable.
Notices of unavailability have become common practice in trial courts, and “purport[] to advise other parties to the action—as well as the court—that the deliverer will not be available for a prescribed period of time and that no action may be taken during that period which adversely affects the unavailable party.” (Carl v. Superior Court (2007) 157 Cal.App.4th 73, 74-75 (Carl).)
Appellant did not file a substantive opposition to the motion to strike, but did appear for the August 4, 2008 hearing. At the hearing, appellant argued respondent did not serve appellant with the motion, claiming that he received only an envelope with blank paper. Appellant further contended he did not have time to prepare an opposition because he was assisting an organization preparing for the Beijing Olympics. The trial court noted that notwithstanding appellant’s notice he would be unavailable at the time of the hearing, he did in fact appear. The trial court granted the anti-SLAPP motion as unopposed, finding there was no reason appellant could not have filed an opposition. The trial court then denied appellant’s request to present oral argument addressing the substance of respondent’s motion. On October 2, appellant filed his timely notice of appeal.
By this ruling the trial court impliedly rejected appellant’s assertion he had received only blank papers from respondent.
DISCUSSION
I. Appellant Forfeited his Challenge to the Timeliness of Respondent’s Anti-SLAPP Motion
Section 435, subdivision (b)(2), states that a notice of motion to strike “shall specify a hearing date set in accordance with section 1005.” Under section 1005, subdivision (b), a motion must be filed and served at least 16 court days before the hearing. When the notice is served by mail within the State of California, the 16-day period is increased by five calendar days. (§ 1005, subd. (b).) Respondent served his motion by mail. Thus, given the August 4, 2880 hearing date, he would have had to file and serve the motion by July 6. Because respondent filed and served his motion on July 10, appellant contends the trial court should have denied the motion as untimely. Respondent rejoins that appellant waived this issue because he did not challenge the adequacy of the notice in the trial court.
Acknowledging he did not cite section 1005, subdivision (b), to the trial court, appellant maintains he did object to the timing of the motion by filing his July 23, 2008 request to dismiss or reschedule the motion and by stating at the hearing that he did not have sufficient time to respond. According to appellant, because he was in propria persona, his assertion he did not have time to prepare an opposition should be deemed an objection to the improper notice of the hearing. We disagree.
A reviewing court will not consider procedural defects that could have been but were not presented to the trial court. (Doers v. Golden Gate Bridge etc. Dist. (1979) 23 Cal.3d 180, 184-185, fn. 1.) For the issue to be preserved for appeal, it was incumbent upon appellant to specifically object to the notice of the hearing under section 1005, subdivision (b). For example, in Iliff v. Dustrud (2003) 107 Cal.App.4th 1201 (Iliff), appellant argued the respondent’s motion to set aside the judgment was untimely under section 683.170. The Fourth District held that because appellant did not cite that section to the trial court, but rather relied on section 473, subdivision (d), appellant had waived the argument of timeliness under section 683.170. (Iliff, at p. 1206.)
Contrary to his assertion, appellant’s in propria persona status did not relieve him of the requirement to make the specific objection. “[M]ere self-representation is not a ground for exceptionally lenient treatment. Except when a particular rule provides otherwise, the rules of civil procedure must apply equally to parties represented by counsel and those who forgo attorney representation. [Citation.]” (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985 (Rappleyea).) “Procedural law cannot cast a sympathetic eye on the unprepared, or it will soon fragment into a kaleidoscope of shifting rules.” (Id. at p. 979.) Accordingly, because neither appellant’s July 23 filing nor his argument before the trial court raised the issue of the motion’s timeliness under section 1005, subdivision (b), he has forfeited any claim of error related to the sufficiency of the amount of notice he received for the anti-SLAPP motion. (See Pacific Std. Life Ins. Co v. Tower Industries, Inc. (1992) 9 Cal.App.4th 1881, 1888 [the defendant “waived its right to complain of insufficient notice of the motion for judgment” because it “did not object to the motion on the ground of lack of notice”].)
Our Supreme Court has observed that “[a]lthough the loss of the right to challenge a ruling on appeal because of the failure to object in the trial court is often referred to as a ‘waiver,’ the correct legal term for the loss of a right based on failure to timely assert it is ‘forfeiture,’ because a person who fails to preserve a claim forfeits that claim. In contrast, a waiver is the ‘ “intentional relinquishment or abandonment of a known right.” ’ [Citations].” (In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2, superseded on other grounds by statute as stated in In re S.J. (2008) 167 Cal.App.4th 953, 962.)
In his reply brief, appellant asserts that his objection to the timing of the motion is not forfeited because we conduct an independent review of a trial court’s order granting an anti-SLAPP motion, and therefore we can consider any substantive aspect of the underlying motion supported by the record. According to appellant, the determination involves a pure question of law because the hearing and filing dates of respondent’s motion are undisputed. This argument fails for multiple reasons. First, appellant did not raise it in his opening brief. “Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before.” (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn. 3 (Campos).) Appellant does not explain why he could not have made this contention earlier and thus it is forfeited. Appellant also does not cite any authority to support this claim, and therefore it is forfeited on this additional basis. (See Badie v. Bank of America (1998) 67 Cal.App.4th 779, 784-785 (Badie).)
Moreover, appellant’s argument is unpersuasive. The standard of review governing the merits of a motion cannot resurrect a forfeited objection to a procedural defect in the notice of motion. “It is unfair to the trial court and the adverse party to give appellate consideration to an alleged procedural defect which could have been presented to, and may well have been cured by, the trial court. [Citation.]” (Steve J. v. Superior Court (1995) 35 Cal.App.4th 798, 810-811.)
Finally, appellant contends that because the trial court granted the motion for lack of opposition, this case is more like an appeal from a default judgment and therefore a forfeiture argument is inappropriate. This argument is forfeited because it was presented for the first time in appellant’s reply brief and it is asserted without any argument or citation to authority. (Campos, supra, 57 Cal.App.4th at p. 794, fn. 3; see Badie, supra, 67 Cal.App.4th at pp. 784-785.)
II. The Trial Court Did Not Abuse its Discretion by Failing to Grant Appellant a Continuance to File his Opposition
Appellant’s July 23 filing requested the trial court dismiss or reschedule the anti-SLAPP motion to a date after September 26 to avoid a conflict with appellant’s unavailability notice. On appeal, appellant contends that even if his request to postpone the hearing until after his then-scheduled September return from China was unwarranted, given his in propria persona status and lack of legal sophistication, the trial court should have inquired how much time appellant needed to file a substantive opposition and granted a short continuance.
“The decision to grant or deny a continuance is committed to the sound discretion of the trial court. [Citation.]” (Forthmann v. Boyer (2002) 97 Cal.App.4th 977, 984.) “A reviewing court may not disturb the exercise of discretion by a trial court” unless the complaining party demonstrates from the record a clear abuse of discretion. (Id. at pp. 984-985.) We conclude appellant has not sustained his burden.
In his July 23, 2880 request, appellant’s only explanation for why the anti-SLAPP motion should be dismissed or continued was that the hearing conflicted with his unavailability notice. Appellant’s reliance on his unavailability notice, however, is misplaced. Both the Fourth and Sixth Districts have disapproved of the practice of filing notices of unavailability, stating that “[t]o the extent [it] attempts to put control of the court’s calendar in the hands of counsel—as opposed to the judiciary—it is an impermissible infringement of the court’s inherent powers.” (Carl, supra, 157 Cal.App.4th at p. 75; accord, In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 825 (Falcone).) Accordingly, appellant’s notice did not modify the filing and hearing date requirements of the Code of Civil Procedure, nor did it entitle him to dismissal or a continuance of the anti-SLAPP motion. (See Falcone, at pp. 824-825.)
We also do not find that appellant’s in propria persona status imposed a duty on the trial court to sua sponte inquire of appellant how much time he would need to file an opposition and then grant him a continuance. As our Supreme Court has made clear, self-representation does not entitle a litigant to special treatment. (Rappleyea, supra, 8 Cal.4th at pp. 984-985.) We conclude the trial court did not abuse its discretion by failing to grant appellant a continuance to file a substantive opposition.
III. Appellant Forfeited his Arguments on the Merits of the Anti-SLAPP Motion
Appellant contends the trial court should have denied respondent’s anti-SLAPP motion because respondent made material misrepresentations regarding the procedural history of an action forming the basis of appellant’s malicious prosecution claim, and that in fact appellant had a probability of prevailing on that cause of action. A party who fails to file an opposition to an opposing party’s motion forfeits the issue on appeal. (See Bell v. American Title Ins. Co. (1991) 226 Cal.App.3d 1589, 1602 [finding that appellants’ failure to effectively oppose a motion waived any objections to the resulting order].) Appellant did not file a substantive opposition to respondent’s anti-SLAPP motion, and therefore this argument is forfeited.
On January 28, 2009, appellant requested we take judicial notice of court documents pertinent to the merits of his malicious prosecution cause of action. Because we find his substantive challenges to the anti-SLAPP motion are forfeited, we deny the request for judicial notice as unnecessary.
DISPOSITION
The order is affirmed. Costs to respondent.
We concur. NEEDHAM, J., BRUINIERS, J.