Opinion
E032993.
11-20-2003
JOE GOLDWINE et al., Plaintiffs and Appellants, v. BETTER BUSINESS BUREAU OF THE SOUTHLAND, INC., Defendant and Respondent.
Thomas W. Gillen for Plaintiffs and Appellants. Leopold, Petrich & Smith and Walter R. Sadler for Defendant and Respondent.
Plaintiffs Joe Goldwine and Rosalie Goldwine (the Goldwines) appeal from an order granting defendant Better Business Bureau of the Southland, Inc.s (BBB) motion to strike the complaint under Code of Civil Procedure section 425.16 (section 425.16). They raise the sole issue whether section 425.16 was unconstitutionally applied and implemented against them. We affirm.
FACTS AND PROCEDURAL HISTORY
The Goldwines filed a complaint for damages against BBB on August 5, 2002, alleging causes of action for defamation and slander, intentional infliction of emotional distress, negligence and misrepresentation, and seeking declaratory relief. In their complaint, they alleged that in response to consumer inquiries, BBB would indicate that the Goldwines paralegal business had many complaints filed against it, that the work performed was unsatisfactory, that it was unresponsive to complaints and was not recommended by BBB. BBB was alleged to have acted improperly in failing to investigate the consumer complaints and in failing to separate complaints about the Goldwines business from others with which it merely shared office space. The Goldwines asserted that BBBs statements about their business were false and that they resulted in compensable damages.
Shortly after filing its answer, BBB filed a special motion to strike under section 425.16, on the ground that the action was brought solely to chill BBBs constitutional right of free speech on a matter of public interest. Over the Goldwines objections, and after a hearing, the trial court granted the motion to strike. This appeal followed.
DISCUSSION
A sole appealable issue is raised by the Goldwines. They argue that section 425.16 was unconstitutionally applied to them since they were forced to defend against it prior to having conducted any discovery. They cite Rogers v. Home Shopping Network, Inc. (C.D.Cal. 1999) 57 F.Supp.2d 973 for the proposition that section 425.16 is unconstitutional in that it allows a defendant to essentially force a plaintiff to defend against a motion for summary judgment at the outset of a case, prior to any discovery having been conducted. The Rogers court did not hold section 425.16 unconstitutional, but merely noted that certain of its provisions, which conflicted with Federal Rules of Civil Procedure, rule 56, could not be applied in a federal court, due precisely to that conflict. (Id . at pp. 974, 979-983.) In addition, Rogers is distinguishable on a very important point. The plaintiff there moved for a continuance to conduct specific discovery as permitted by section 425.16, subdivision (g). (Id. at p. 985.) The record contains no evidence that the Goldwines ever made such a motion. Their failure to file a motion seeking discovery as permitted by section 425.16, subdivision (g), precludes their argument that they were aggrieved by a lack of discovery. (Robertson v. Rodriguez (1995) 36 Cal.App.4th 347, 357.) Further, the discovery provisions of section 425.16 have been held constitutional. (Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 865-868.)
In addition, the Goldwines complain that section 425.16 was not intended to be used by an institutional defendant such as BBB against small business people like themselves, and that such an application actually turns the legislative intent on its head. While this action may not fit the paradigm contemplated when section 425.16 was enacted, the trial court found that it nevertheless met the criteria for application of the statute. Further, the statute itself states that it shall be broadly construed, and the courts have routinely applied it to situations that do not meet the classic paradigm. (§ 425.16, subd. (a); Ericsson GE Mobile Communications, Inc. v. C.S.I. Telecommunications Engineers (1996) 49 Cal.App.4th 1591, 1599-1600, disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68, fn. 5, and Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123, fn. 10.) This argument simply does not support a reversal of the order granting BBBs motion.
The opening brief purports to appeal from an order of the trial court dismissing the case. However, by order dated February 5, 2003, we dismissed that part of the appeal that was from the order of dismissal, indicating that our dismissal would be vacated if the Goldwines filed the trial courts written order of dismissal with this court. That order was never filed. Thus, the Goldwines cannot appeal from the trial courts order of dismissal.
Finally, the Goldwines seek a reversal of the trial courts order awarding BBB attorney fees in the amount of $10,500. However, they have not filed a notice of appeal from that order. Absent a notice of appeal, this court has no jurisdiction to hear an assertion of error. (Smith v. Halstead (1948) 88 Cal.App.2d 638, 640.) Consequently, we may not consider the merits of the attorney fee award.
DISPOSITION
The order is affirmed. Defendant to recover its costs on appeal.
We concur: HOLLENHORST, J., McKINSTER, J. --------------- Notes: "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." (§ 425.16, subd. (b)(1).)