Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of Riverside County No. RIC441606, Stephen D. Cunnison, Judge.
Law Offices of Philip A. Putman, Philip A. Putman, and Doreen Houx for Cross-defendant and Appellant.
Stutz Artiano Shinoff & Holtz and Paul V. Carelli IV for Cross-complainant and Respondent.
OPINION
RICHLI, J.
Catherine G. Ventura hired Morton J. Grabel, a real estate broker and attorney, to help her sell her home. After Ventura’s home sold, she sued Grabel for fraudulent misrepresentation, among other causes of action, based on her belief that the sale was fraudulent. In addition, Ventura made complaints against Grabel to the State Bar of California and the Temecula Police Department. As a result of these complaints, Grabel filed a cross-complaint for slander and libel. Over one year after Grabel filed the cross-complaint, Ventura filed a motion for leave to file a SLAPP motion to strike (SLAPP motion) the cross-complaint pursuant to Code of Civil Procedure section 425.16, subdivision (f). The trial court denied the motion for leave to file the SLAPP motion as untimely, and Ventura appealed that denial.
SLAPP is the acronym for a “strategic lawsuit against public participation.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.)
All further references are to the Code of Civil Procedure unless otherwise indicated.
In Ventura’s opening brief, she argues that the trial court improperly denied her SLAPP motion on the merits. In his responding brief, Grabel clarifies the proceedings below: Ventura never filed the SLAPP motion; rather, she filed a motion for leave to file a SLAPP motion. Grabel claims that this court lacks jurisdiction to decide the appeal because the denial of a motion for leave to file a SLAPP motion is not an appealable order. In the alternative, he argues that Ventura has waived any claim that the trial court abused its discretion in denying the motion on untimely grounds (the real issue here) by failing to raise the issue in her opening brief and that the trial court’s determination that the SLAPP motion was untimely was not an abuse of discretion. In her reply brief, Ventura claims for the first time that this court possesses jurisdiction to hear the instant appeal and that the trial court abused its discretion by refusing to grant her motion for leave to file a SLAPP motion.
After the briefing was complete, Grabel filed a motion to dismiss the appeal on the ground that it was frivolous. Grabel has also requested sanctions against Ventura. We will address the motion to dismiss and request for sanctions in a separate order.
We conclude that we have jurisdiction to decide the instant appeal and find that the trial court did not abuse its discretion in denying Ventura’s request for leave to file a SLAPP motion as untimely. We also conclude that the instant appeal is frivolous on the basis that any reasonable attorney would agree that the appeal is totally and completely without merit.
I
FACTUAL AND PROCEDURAL BACKGROUND
We draw this statement of facts from the verified complaint and cross-complaint filed in the action and other documents provided in Ventura’s appendix to her opening brief.
Grabel, an attorney and real estate broker employed by First Realty, represented Ventura, a 75-year-old woman, in the sale of her home located at 33262 Calle Langarica in Temecula. The home was eventually sold to Pamela Hendricks, who was represented by William Lawson, a realtor employed by Rancon Real Estate Corporation. New Century Title Company handled the escrow. On December 13, 2005, Ventura sued Grabel, First Realty, Hendricks, Lawson, Rancon, and New Century Title Company, for various causes of action, including professional negligence, breach of fiduciary duty, fraud in the inducement, intentional misrepresentation, negligent misrepresentation, intentional infliction of emotional distress, and elder abuse, based on what she perceived as a fraudulent home sale. Grabel and First Realty filed an answer.
On January 17, 2006, Grabel filed a cross-complaint against Ventura for libel, slander per se, and slander. In that cross-complaint, Grabel claimed that Ventura had wrongfully filed a written complaint and made oral complaints against him with the State Bar of California and the Temecula Police Department. On February 16, 2006, Ventura filed an answer to the cross-complaint.
On March 7, 2007 (over one year after the cross-complaint had been filed), Ventura filed a motion for leave to file a late SLAPP motion pursuant to section 425.16, subdivision (f). Ventura claimed in the request that her former counsel had been so intimidated by “defendant’s” counsel that she “literally abandoned her client.” Ventura’s new counsel provided a declaration that he had been retained on February 17, 2007, and determined that a SLAPP motion the cross-complaint should be filed. Grabel filed opposition. Grabel argued that the request should be denied as untimely or, in the alternative, on the merits.
The trial court denied Ventura’s request for leave to file a SLAPP motion. The trial court noted that over one year had passed since the cross-complaint was filed, and therefore it would “be inappropriate now” to allow the SLAPP motion. It did not believe it was relevant to its determination whether the motion to strike might be meritorious. The trial court believed that Ventura’s contentions “can be treated at trial just as easily as they can be by way of” a SLAPP motion.
On April 19, 2007, Ventura filed a “Notice of Ruling” stating that the “[m]otion to file a late special motion to strike under [section] 425.16 has been denied due to the fact that plaintiff will not prevail.” Ventura filed a timely notice of appeal.
Grabel appears to concede that no notice of entry was filed, which would have started the 60-day time limit for filing a notice of appeal. (See Cal. Rules of Court, rule 8.104(a)(2).)
In Ventura’s opening brief, she erroneously states that she filed a SLAPP motion. She also misstates that the trial court denied the SLAPP motion because she would not prevail. Ventura then addresses the merits of her SLAPP motion.
In his respondent’s brief, Grabel claims that this court does not have jurisdiction to hear the appeal as the denial of a motion for leave to file a SLAPP motion is not an appealable order. Further, he points out that Ventura only addresses the merits of the SLAPP motion in her opening brief and has waived any claim that the trial court abused its discretion in denying the motion for leave to file a SLAPP motion as untimely. Finally, he argues that the trial court did not abuse its discretion by denying Ventura leave to file the SLAPP motion. Grabel did not argue that the appeal should be dismissed as frivolous or request sanctions.
For the first time in her reply brief, Ventura claims this court possesses jurisdiction to hear the instant appeal because there is no difference between actually filing a SLAPP motion and requesting leave to file one. Ventura also argues for the first time that the trial court abused its discretion by refusing to grant her motion for leave to file a SLAPP motion because the trial court misunderstood its discretion by refusing to address the reasons it was filed late and the merits of the motion to strike.
On March 10, 2008, after the reply brief was filed by Ventura, Grabel filed a motion to dismiss the appeal on the ground that it was frivolous, relying on the case of Olsen v. Harbison (2005) 134 Cal.App.4th 278 (Olsen). Grabel also requested sanctions against Ventura in the amount of $11,550, which were the attorney fees he incurred in defending the appeal. Ventura filed opposition to the motion to dismiss and sanctions.
II
ANALYSIS
A. Appealability
We first address whether we have jurisdiction to hear the instant appeal. Grabel claims that although an appeal can be taken from the denial or granting of a SLAPP motion, Ventura’s motion for leave to file a SLAPP motion the cross-complaint was not an appealable order.
The right of appeal is purely statutory. “[N]o appeal can be taken except from an appealable order or judgment, as defined in the statutes and developed by the case law . . . .” (Lavine v. Jessup (1957) 48 Cal.2d 611, 613; see Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2007) ¶ 2:17, p. 2-14.)
Section 425.16, subdivision (i) provides a statutory grounds for an appeal relating to a SLAPP motion: “An order granting or denying a special motion to strike shall be appealable under Section 904.1.” Section 904.1 subdivision (a)(13) provides for an appeal “[f]rom an order granting or denying a special motion to strike under Section 425.16.”
In Olsen and Morin v. Rosenthal (2004) 122 Cal.App.4th 673 (Morin), the defendants filed SLAPP motions in the trial court, which were denied as untimely. (Olsen, supra, 134 Cal.App.4th at pp. 281, 287; Morin, at pp. 677, 681.) The appellate courts reviewed the trial court’s determination regarding the timeliness of the motions to strike. Although theses cases did not address whether such a determination was appealable, they presumably found that the denials of the SLAPP motions as untimely were properly appealed under sections 425.16, subdivision (i) and 904.1, subdivision (a)(13) as denials of a SLAPP motion. (See Morin, at p. 683 [ordering in its disposition “[t]he portion of the order denying defendants’ SLAPP motions is affirmed”]; Olsen, at p. 287 [“no colorable showing that the trial court’s exercise of discretion in denying his untimely anti-SLAPP motion was whimsical”].)
Grabel provides no authority for his proposition that a motion for leave to file a SLAPP motion is different from actually filing the SLAPP motion. Certainly, like the defendants in Olsen and Morin, Ventura could have chosen to file the SLAPP motion and not sought leave of the court. We see no difference between denying the motion for leave to file a SLAPP motion and the denial of the actual motion to strike on the ground that it is untimely filed, as no determination of the merits of the motion to strike is required. Further, the trial court’s reasons for denying the SLAPP motion as untimely would have been the same if she had filed the actual motion to strike. Ventura should not be punished for filing a request for leave to file the SLAPP motion rather than actually filing the motion. Accordingly, we will consider whether the trial court abused its discretion in denying the motion for leave to file a SLAPP motion to strike the cross-complaint.
B. The Trial Court Did Not Abuse Its Discretion
Section 425.16, subdivision (f) provides that “[t]he special motion [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.” Accordingly, there is no right to file a SLAPP motion beyond the 60-day time limit. It can only be filed in the court’s discretion. (Lam v. Ngo (2001) 91 Cal.App.4th 832, 840.)
Here, Grabel filed the cross-complaint on January 17, 2006. Ventura filed her motion for leave to file a SLAPP motion to strike the cross-complaint on March 7, 2007.
We cannot say the trial court abused its discretion by denying a motion that was filed over one year after the cross-complaint was filed. “The overall purpose of the SLAPP statute is to provide defendants with a procedural remedy ‘which would allow prompt exposure and dismissal of SLAPP suits.’ The 60-day period in which a defendant may file a SLAPP motion as a matter of right appears to be intended to permit the defendant to test the foundation of the plaintiff’s action before having to ‘devote its time, energy and resources to combating’ a ‘meritless’ lawsuit.” (Morin, supra, 122 Cal.App.4th at p. 681, fns. omitted.)
Ventura’s motion for leave to file a SLAPP motion was filed far beyond the statutory time limit of 60 days, which defeated the purpose of filing such motion. The trial court’s refusal to allow Ventura to file the motion to strike on that basis alone would have been within the court’s discretion. Furthermore, the reason given in her motion for leave to file the SLAPP motion was unavailing. The only reason she gave was that her previous attorney had abandoned her because her attorney was afraid of “defendant’s” counsel. She did not expand upon this reason and did not explain how her previous attorney was able to file an answer to the cross-complaint on February 16, 2006, without being too “intimidated” by defense counsel.
Ventura claims for the first time in her reply brief that the trial court abused its discretion because it failed to consider the reasons that the SLAPP motion was late, it did not consider the merits of her motion to strike, and it did not require Grabel to show prejudice should the trial court allow her to file the motion. We need not address these issues raised for the first time on appeal in the reply brief, as Ventura has given no good reason for the failure to raise these claims in her opening brief. (American Drug Stores, Inc. v. Stroh (1992) 10 Cal.App.4th 1446, 1453.) Furthermore, similar claims were rejected in Olsen. (See Olsen, supra, 134 Cal.App.4th at pp. 286-287 [finding that the trial court, in assessing timeliness, need not determine the merits of the SLAPP motion and that the party opposing the motion need not demonstrate prejudice].)
Here, the trial court did not abuse its discretion by refusing to allow Ventura to file a late SLAPP motion to strike the cross-complaint that was filed nearly one year late.
As the court did in Olsen, we also conclude that the appeal is frivolous, on the basis that any reasonable attorney would agree that this appeal is completely without merit. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 650; Olsen, supra, 134 Cal.App.4th at pp. 284-286.) This case is particularly egregious, as Ventura’s opening brief misrepresented the trial court proceedings and failed to raise a cognizable issue on appeal. It was up to Grabel to properly set forth the lower court proceedings and frame the issues to be decided on appeal: whether there was an appealable order and whether trial court abused its discretion in refusing to although Ventura’s late SLAPP motion. As set forth, ante, that issue is completely devoid of merit, and we therefore conclude that the instant appeal is frivolous.
III
DISPOSITION
We affirm the order of the trial court denying the motion for leave to file a SLAPP motion to strike the cross-complaint. Grabel is awarded his costs on appeal.
We concur: RAMIREZ, P.J., MILLER, J.