Opinion
E067484
05-11-2018
CRISTINA HERNANDEZ, Plaintiff and Respondent, v. HISPANO SERVICES, INC. Defendant and Appellant.
Rogelio V. Morales for Defendant and Appellant. Law Office of Bryan S. Owens, Bryan S. Owens for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super.Ct.No. PSC1601307) OPINION APPEAL from the Superior Court of Riverside County. David M. Chapman, Judge. Dismissed. Rogelio V. Morales for Defendant and Appellant. Law Office of Bryan S. Owens, Bryan S. Owens for Plaintiff and Respondent.
Defendant and appellant Hispano Services, Inc., a corporation (Hispano Services) appeals from the lower court's order granting plaintiff and respondent Cristina Hernandez's motion to strike Hispano Services' special motion to strike (Code of Civ. Proc. § 425.16 [the Strategic Lawsuit Against Public Participation (SLAPP) statute]) plaintiff's complaint. For the reasons discussed herein, we order the appeal dismissed.
The trial court's November 14, 2016, order created confusion over who is the proper appellant. Although Hispano Services brought the anti-SLAPP motion, the trial court's order referenced Victor Viruena (Viruena) only. Hispano Services filed notice of appeal even though it was not identified in the order; however, Viruena submitted briefing on appeal in his individual capacity, even though he did not bring the anti-SLAPP motion, or file a notice of appeal. Under these circumstances, a strong argument may be made to disregard the flaws in the notice of appeal and briefing, and reach the merits of the appeal. (Cf. Groves v. Peterson (2002) 100 Cal.App.4th 659, 666, fn. 2, and Bardin v. DaimlerChrysler Corp. (2006) 136 Cal.App.4th 1255, 1263, fn. 3.)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated. --------
I. PROCEDURAL AND FACTUAL BACKGROUND
On March 21, 2016, plaintiff sued Victor Viruena, individually and doing business as Hispano Services, alleging various tort claims and violations of the Immigration Consultants Act (Bus. & Prof. Code, § 22440 et seq.) regarding defendants' assistance with plaintiff's immigration issues. On the same day the complaint was filed, summons was served on Viruena, individually and as the authorized agent for Hispano Services. On May 3, 2016, Hispano Services answered the complaint as "erroneously sued as Victor Viruena an Individual." On September 19, 2016, the case proceeded to case management conference, wherein a trial setting conference and mediation were scheduled.
On October 3, 2016, Hispano Services filed a Special Motion to Strike (anti-SLAPP motion). Hispano Services contended that plaintiff's claims are "based upon communications and conduct in furtherance of Defendant rights to petition and free speech under the United States Constitutions [sic] in connection with a public issue." Ten days later, plaintiff filed an ex parte application to strike the anti-SLAPP motion, or shorten time on her motion. Plaintiff argued that the anti-SLAPP motion was untimely and lacked merit pursuant to section 425.17, subdivision (c). Hispano Services opposed plaintiff's motion.
On October 19, 2016, the trial court considered the merits of plaintiff's ex parte motion to strike and granted it. The court tentatively found that the anti-SLAPP motion was untimely under section 425.16, subdivision (f), because it was filed more than 60 days after service of the complaint (March 21, 2016) and there was no request that the court extend the 60-day period. Additionally, the court found that plaintiff's claims "fall under the 'commercial speech' exemption of . . . section 425.17(c)(1) as they arise from statements or conduct by Viruena consisting of representations of fact about his business and services. Such statements were made for the purpose of promoting his services and/or in the course of delivering services. Further, the intended audience for such statements were [sic] either an actual or potential customer or someone likely to influence an actual or potential customer." Plaintiff was ordered to prepare, serve, and submit the order and notice of ruling. The parties were directed to request oral argument if they disagreed with the court's tentative order.
Defense counsel requested oral argument, and a hearing on the anti-SLAPP motion was held on November 4, 2016. The appellate record lacks any recording of these oral proceedings; however, the minute order notes that the trial court, on its own motion, continued the hearing to December 28, 2016, and ordered the parties to file supplemental briefs. On November 9, 2016, a hearing was held on plaintiff's motion to strike the anti-SLAPP motion; however, neither party appeared. The trial court found the following: (1) the motion to strike is moot; (2) the matter was previously heard and a ruling was made on October 19, 2016; and (3) the court's prior tentative ruling shall become the order. On November 14, 2016, a written order granting plaintiff's motion to strike the anti-SLAPP motion was filed. Although Hispano Services brought the anti-SLAPP motion, the trial court referenced Viruena as the sole proponent of the motion. The written order therefore incorrectly identified the anti-SLAPP motion as having been brought by Viruena.
On November 14, 2016, Hispano Services filed its supplemental brief on the issue of the timeliness of the anti-SLAPP motion. It claimed the anti-SLAPP motion was timely, because plaintiff failed to properly service her complaint. Attached to the supplemental brief is a declaration of Viruena, who declared under penalty of perjury that he is a defendant in the action. He further requested that the "Court grant [his] special motion to strike on the merits." On December 15, 2016, plaintiff filed her supplemental brief. She argued that (1) Hispano Services waived any alleged defect in service by virtue of its general appearance in this matter; (2) Viruena generally appeared on October 3, 2016, when a Notice of Association of Counsel was filed, thereby waiving any defects in service and requiring the filing of a responsive pleading; and (3) because Viruena has failed to file any responsive pleading, his default should be entered.
On December 28, 2016, the trial court denied the anti-SLAPP motion, stating that the tentative ruling is the order, and set a case management conference for January 27, 2017. Later the same day, outside the presence of the parties, the trial court noted that the register of actions "through inadvertence and/or clerical error" failed to "correctly reflect all parties." The court thus ordered it "corrected Nunc Pro Tunc to [¶] reflect: [¶] Add: Defendant Victor Viruena an individual." The court gave Viruena "30 days from today to file his responsive pleading(s)."
On January 3, 2017, Hispano Services appealed the order entered on November 14, 2016.
II. DISCUSSION
A. The Purported Appeal Must Be Dismissed for Lack of Jurisdiction.
1. Viruena Did Not File a Notice of Appeal.
Plaintiff contends that this court lacks jurisdiction to hear and determine this appeal because Viruena has not timely filed a notice of appeal. We agree.
The right to appeal is statutory. If the statutory procedures for taking an appeal are not complied with, the appellate court has no jurisdiction to consider the appeal. (See 9 Witkin, Cal. Procedure (5th ed. 2008) Appeal §§ 2, 3, 8, at pp. 61-65, 67-69.) The timely filing of an appropriate notice of appeal is an absolute prerequisite to the exercise of appellate jurisdiction, and failure to file a timely notice of appeal is fatal to a party's appeal. (Faunce v. Cate (2013) 222 Cal.App.4th 166, 170.) Here, because Viruena has not filed any notice of appeal, we must dismiss as to him.
2. Hispano Services Has Not Filed an Opening Brief.
Plaintiff further asserts that the appeal should be dismissed as to Hispano Services because it never filed an opening brief. Again, we agree.
California Rules of Court, rule 8.212, provides that an appellant "must serve and file its opening brief within: (A) 40 days after the record—or the reporter's transcript, after a rule 8.124 election—is filed in the reviewing court; or [¶] (B) 70 days after the filing of a rule 8.124 election, if the appeal proceeds without a reporter's transcript." (Cal. Rules of Court, rule 8.212(a)(1).) The record was filed in this court on February 22, 2017. To date, Hispano Services has not filed an opening brief. We must conclude that such failure to file any brief constitutes an abandonment of the appeal and we therefore dismiss as to Hispano Services.
3. The Anti-SLAPP Motion Was Denied Under Section 425 .17.
Moreover, plaintiff argues that this court lacks jurisdiction over the appeal because the anti-SLAPP motion was denied on the grounds listed in section 425.17, subdivision (e), specifically, the commercial speech exemption of section 425.17, subdivision (c)(1). We agree.
In relevant part, section 904.1 allows for an immediate appeal "[f]rom an order granting or denying a special motion to strike under Section 425.16." (§ 904.1, subd. (a)(13).) Section 425.16 provides: "An order granting or denying a special motion to strike shall be appealable under Section 904.1." (§ 425.16, subd. (i).) However, where a special motion to strike is denied on the grounds listed in section 425.17, "the appeal provisions in subdivision (i) of Section 425.16 and paragraph (13) of subdivision (a) of Section 904.1 do not apply to that action or cause of action." (§ 425.17, subd. (e).) Here, the trial court applied the commercial speech exemption, listed in section 425.17, subdivision (c)(1), and found that defendants' statements or conduct were "made for the purpose of promoting his services and/or in the course of delivering services." Plaintiff's argument is well taken; the appeal must be dismissed.
B. The Anti-SLAPP Motion Fails on the Merits.
Alternatively, even if we disregard the flaws in the notice of appeal and briefing and address the merits of the appeal, defendants would not prevail.
In response to the anti-SLAPP motion, plaintiff argued that it was untimely because it was brought five months after Hispano Services filed its answer to the complaint, and nearly seven months after being served with the summons and the complaint. The trial court agreed with plaintiff, and so do we.
"The special 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. The motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing." (§ 425.16, subd. (f).) The purpose of the anti-SLAPP motion is to terminate expeditiously unsubstantiated suits that arise from a person's exercise of his rights to free speech and petition "'"without great cost to the SLAPP target"' [citation]. Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary judgment-like procedure at an early stage of the litigation. [Citation.] In doing so, section 425.16 seeks to limit the costs of defending against such a lawsuit. [Citation.]" (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192; italics added.)
Here, the 60-day period to file an anti-SLAPP motion began running when plaintiff served her complaint on defendants on March 21, 2016 (§ 425.16, subd. (f).) Because the anti-SLAPP motion was not filed until October 3, 2016, the motion was untimely. At the trial level, Hispano Services offered no explanation for its delay, nor did it request that the court exercise its discretion and extend the 60-day period. On appeal, Viruena contends the anti-SLAPP motion is not untimely as to him, because it was filed within 60 days of "his first appearance in the matter and before a responsive pleading was due." However, Viruena did not bring the anti-SLAPP motion, nor did he appeal from the court's order striking the motion. Based on the record, Hispano Services' anti-SLAPP motion was untimely and the trial court correctly ordered it stricken.
Moreover, the trial court found that plaintiff's "causes of action fall under the 'commercial speech' exemption of . . . section 425.17[, subdivision] (c)(1) as they arise from statements or conduct by Viruena consisting of representations of fact about his business and services." We agree.
By its express language, the anti-SLAPP statute applies only to conduct and communications concerning public issues and matters of public interest. But commercial speech is accorded less protection than noncommercial speech. (Kasky v. Nike, Inc. (2002) 27 Cal.4th 939, 953-956.) Contrary to the contention of Hispano Services, the gravamen or principal thrust of plaintiff's claims do not arise out of its alleged violations of the Immigration Consultants Act. (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188 ["Protected speech is not the gravamen or principal thrust of the claims asserted in Plaintiffs' complaint. . . . [Metabolife] cites no authority holding the First Amendment protects the manufacturer or seller of an unsafe product from liability for injuries caused by defects in that product, and we decline to extend the anti-SLAPP statute to a product liability claim merely because the complaint also alleges the manufacturer or seller engaged in commercial speech to market the product."].) It was not the appearances of Hispano Services or Viruena at media events as a community activist, or comments about immigration, government policies, or community problems, that caused plaintiff's injury. Rather, plaintiff seeks redress for the damages she suffered due to their alleged tortious actions in assisting her with her immigration matter. Because defendants' speech is not the gravamen of plaintiff's claims, we agree with the trial court and conclude the protections of section 425.16 do not apply. (Cf. Scott v. Metabolife Internat., Inc. (2004) 115 Cal.App.4th 404, 416-417.)
III. DISPOSITION
The appeal dismissed. Plaintiff is entitled to her costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: MCKINSTER
J. SLOUGH
J.