Opinion
B318036
06-15-2023
JIM HOSEINI, Plaintiff and Appellant, v. MICHAEL MERCER, Defendant and Respondent.
Jim Hoseini, in pro. per., for Plaintiff and Appellant. Jeff Lewis Law, Jeffrey Lewis and Sean C. Rotstan for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Super. Ct. No. 21STCV07112, Stephen I. Goorvitch, Judge.
Jim Hoseini, in pro. per., for Plaintiff and Appellant.
Jeff Lewis Law, Jeffrey Lewis and Sean C. Rotstan for Defendant and Respondent.
MOOR, J.
Plaintiff and appellant Jim Hoseini sued defendant and respondent Michael Mercer, seeking damages and injunctive relief. Mercer moved to strike the entire complaint under the anti-SLAPP statute (Code Civ. Proc., § 425.16), and the trial court granted the motion. Hoseini only filed a notice of appeal after the trial court granted Mercer's motion for attorney fees and dismissed the complaint. Because Hoseini failed to timely appeal the order granting the anti-SLAPP motion, we dismiss the appeal.
SLAPP is an acronym for strategic lawsuit against public participation. All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
BACKGROUND
Hoseini filed a verified complaint against Mercer in February 2021, alleging claims for libel, open book account (common count), intentional and negligent infliction of emotional distress, and seeking damages and injunctive relief.
In April 2021, Mercer filed an anti-SLAPP motion seeking dismissal of Hoseini's entire complaint. The trial court granted Mercer's anti-SLAPP motion on August 4, 2021. The court's order also scheduled an order to show cause why the case should not be dismissed with prejudice and authorized Mercer to notice any motion for attorney fees for the same date and time as the order to show cause.
On August 6, 2021, Mercer filed and served on Hoseini a notice of entry of the court's order granting the anti-SLAPP motion. Mercer later filed a motion for attorney fees, and both parties submitted briefing on issue of attorney fees. On November 18, 2021, the court awarded attorney fees to Mercer, and ordered Hoseini's complaint dismissed with prejudice.
Hoseini filed a notice of appeal on January 5, 2022, appealing from the court's November 18, 2021 dismissal order.
DISCUSSION
On appeal, Hoseini's sole contention of error with respect to the dismissal of his case is that the court previously erred when it granted Mercer's anti-SLAPP motion. However, Hoseini's effort to appeal alleged errors in the granting of Mercer's anti-SLAPP motion is untimely, and therefore, his appeal must be dismissed. (See Cal. Rules of Court, rule 8.104(a)(1).)
On April 25, 2023, we invited the parties to file supplemental letter briefs no later than May 2, 2023, with appropriate citations to the record and legal authorities, addressing whether the court should dismiss the appeal as untimely. Mercer's letter agreed that Hoseini's appeal was untimely. Hoseini did not file a supplemental letter brief.
The "filing of a timely notice of appeal is a jurisdictional prerequisite. 'Unless the notice is actually or constructively filed within the appropriate filing period, an appellate court is without jurisdiction to determine the merits of the appeal and must dismiss the appeal.'" (Silverbrand v. County of Los Angeles (2009) 46 Cal.4th 106, 113.) A party's failure to timely appeal an order granting an anti-SLAPP motion prevents the appellate court from ruling on the merits of the order, even when the party later appeals a subsequent order or judgment. (Reyes v. Kruger (2020) 55 Cal.App.5th 58, 67-69.) Generally, the "deadline to appeal an order granting a special motion to strike is 60 days after service by the clerk of a filed-endorsed copy of the order granting the anti-SLAPP motion, or 60 days after notice of entry of that order is served by a party, whichever is earlier. ([Cal. Rules of Court,] rule 8.104(a)(1), (e).)" (Marshall v. Webster (2020) 54 Cal.App.5th 275, 280.) "The anti-SLAPP statute provides that an 'order granting or denying a special motion to strike shall be appealable' under section 904.1. (§ 425.16, subd. (i).) Section 904.1 likewise provides that '[a]n appeal . . . may be taken . . . [¶] . . . [¶] . . . [f]rom an order granting or denying a special motion to strike under [s]ection 425.16.' (§ 904.1, subd. (a)(13).)" (Reyes, at p. 67.) An order granting or denying an anti-SLAPP motion is a separately appealable order and is not tethered to the final judgment in the case. As explained in Reyes, the Court of Appeal in Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1247, "found it had no jurisdiction to consider the appeal from an order granting the defendant's motion to strike the complaint under the anti-SLAPP statute, because the order was 'final when made, and thus appealable' despite the trial court's later issuance of a judgment and related order granting attorney fees and costs." (Reyes, at p. 68.)
Here, the court's order granting Mercer's anti-SLAPP motion was entered on August 4, 2021, and Mercer served and filed a notice of entry of order two days later, on August 6, 2021. Hoseini did not file his notice of appeal until January 5, 2022, well over 60 days later. Any appeal of the anti-SLAPP order must be dismissed. To the extent Hoseini has timely appealed the order granting Mercer's motion for attorney fees, he has not demonstrated any error, because his sole argument on appeal is that the attorney fees order should be reversed if the granting of the anti-SLAPP motion is reversed.
DISPOSITION
The appeal from the August 4, 2021 order granting the special motion to strike is dismissed. The November 18, 2021 order granting attorney fees is affirmed. Michael Mercer is awarded his costs on appeal.
We concur: RUBIN, P. J., BAKER, J.