Opinion
D075837
06-17-2020
HARVEY BARRY JACOBS, Plaintiff and Appellant, v. MARC STERN, et al., Defendants and Respondents.
Harvey Barry Jacobs, in pro. per., for Plaintiff and Appellant. Law Office of Marc O. Stern and Marc O. Stern for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2018-00023235-CV-FR-CTL) APPEAL from an order of the Superior Court of San Diego County, Katherine Bacal, Judge. Affirmed. Harvey Barry Jacobs, in pro. per., for Plaintiff and Appellant. Law Office of Marc O. Stern and Marc O. Stern for Defendants and Respondents.
I
INTRODUCTION
Plaintiff Harvey Barry Jacobs appeals an order granting a special motion to strike his complaint under the anti-SLAPP (strategic lawsuit against public participation) statute (Code Civ. Proc., § 425.16). Jacobs has not provided an adequate record to permit us to review the challenged order. Therefore, we affirm.
All further statutory references are to the Code of Civil Procedure unless otherwise noted.
II
BACKGROUND
A
In January 2000, Jacobs was found guilty of murdering his wife, Nadine Loucks Jacobs (Nadine). The sentencing court sentenced Jacobs to 15 years to life in prison, Jacobs appealed, and we affirmed the judgment of conviction. (People v. Jacobs (Sept. 4, 2001, D035406) [nonpub. opn.].)
In April 2000, Nadine's sons, Jonathan Loucks (Jonathan) and Jeremiah Loucks (Jeremiah), filed a wrongful death action against Jacobs. Defendants Marc Stern, Roger Stern, and the Law Office of Marc O. Stern, A.P.C. (collectively, Stern) represented the Loucks brothers in their lawsuit. Jeremiah—but not Jonathan—ultimately obtained a $7.5 million judgment against Jacobs in the wrongful death action. Jacobs appealed and, in April 2006, we affirmed the wrongful death judgment against him. (Loucks v. Jacobs (Apr. 4, 2006, D046264) [nonpub. opn.].)
Jonathan was adopted by other parents, thus severing his standing to pursue the wrongful death action.
In December 2014, Jeremiah filed an application in the trial court to renew the wrongful death judgment and thereby extend its enforceability. His counsel, Stern, incorrectly filled out the renewal application on behalf of "Jonathan Loucks, et al." rather than Jeremiah alone. The trial court initially renewed the wrongful death judgment effective December 11, 2014, but later set aside the renewed judgment.
In August 2015, Jeremiah filed an ex parte application to renew the judgment nunc pro tunc. He argued the mistake in identifying the applicant in the original application for renewal of the judgment was the result of excusable neglect, which the trial court had the inherent power to correct. The court granted the ex parte application for renewal of the judgment nunc pro tunc to December 11, 2014. It also denied a motion filed by Jacobs to set aside the judgment, a determination we affirmed on appeal. (Loucks v. Jacobs (May 20, 2019, D073422) [nonpub. opn.].)
B
In May 2018, Jacobs filed the instant lawsuit against Stern for fraud, conspiracy to defraud, and fraudulent "corruption of [the] law." Jacobs did not include his complaint or his amended complaint, which he filed in August 2018, in the appellate record. According to the trial court's characterization of the complaint, however, Jacobs generally alleged that Stern fraudulently named Jonathan as a judgment creditor in the application to renew the wrongful death judgment, failed to timely serve the application to renew the wrongful death judgment, and misled the trial court regarding its jurisdiction and ability to renew the wrongful death judgment nunc pro tunc.
Stern filed an anti-SLAPP motion, which Jacobs did not include in the appellate record. Jacobs filed an opposition to Stern's anti-SLAPP motion, which Jacobs likewise did not include in the appellate record.
The court granted Stern's anti-SLAPP motion. It concluded Jacobs's claims arose from constitutionally protected petition or free speech activity, reasoning that "Stern's filing of the [renewal] application," "Stern's representations to the court," and "[t]he other alleged conduct" were protected activities. Further, it concluded Jacobs failed to meet his burden of establishing a probability of success on his claims. It found the litigation privilege codified in Civil Code section 47 "applie[d] to Stern's filings and statements made in connection with the [renewal] application" and precluded Jacobs from prevailing on his claims. The court awarded $5,000 in attorney fees to Stern as a prevailing anti-SLAPP defendant (§ 425.16, subd. (c)) and entered judgment in Stern's favor.
Jacobs appealed the order granting Stern's anti-SLAPP motion.
An order granting or denying an anti-SLAPP motion is independently appealable (§§ 425.16, subd. (i), 904.1, subd. (a)(13)), and thus "we are foreclosed from reviewing that order on appeal from the judgment." (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1247.) In his notice of appeal, Jacobs checked a preprinted box indicating he was appealing the judgment. However, we must construe a notice of appeal liberally. (Cal. Rules of Court, rule 8.100(a)(2); Luz v. Lopes (1960) 55 Cal.2d 54, 59 ["notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced"].) It is reasonably clear Jacobs intended to appeal the order granting Stern's anti-SLAPP motion, and the appeal would have been timely as to that order. Accordingly, we construe the appeal as properly brought from the order granting the anti-SLAPP motion.
III
DISCUSSION
"Code of Civil Procedure section 425.16 (section 425.16), commonly known as the anti-SLAPP statute, allows defendants to request early judicial screening of legal claims targeting free speech or petitioning activities." (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 880-881 (Wilson).) "A court evaluates an anti-SLAPP motion in two steps. 'Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims "aris[e] from" protected activity in which the defendant has engaged. [Citations.] If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least "minimal merit." ' [Citation.] If the plaintiff fails to meet that burden, the court will strike the claim." (Id. at p. 884.)
Jacobs contends the trial court erred at both stages of its anti-SLAPP analysis. He argues the causes of action that he alleged against Stern did not arise from Stern's protected activities, the litigation privilege did not apply to the conduct alleged in the complaint, and "documentary evidence" submitted together with Jacobs's opposition to the anti-SLAPP motion established minimal merit to his causes of action.
We are unable to assess the merits of Jacobs's arguments, however, as they would require us to analyze the complaint and the evidence Jacobs filed in support of his opposition to the anti-SLAPP motion. (§ 425.16, subd. (b)(2) ["In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based."]; see Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 257 ["the analysis of the first prong focuses on the allegations of the complaint"]; Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 796 [an appellate court reviewing a second step anti-SLAPP determination "consider[s] the evidence below"].) Jacobs has not included these necessary materials in the appellate record, nor has he included other potentially relevant materials such as the anti-SLAPP motion and supporting evidence, Jacobs's opposition to the anti-SLAPP motion, or a reporter's transcript for the anti-SLAPP hearing.
The order granting the anti-SLAPP motion indicates the trial court heard oral argument regarding the motion. --------
" '[A] judgment or order of the trial court is presumed correct and prejudicial error must be affirmatively shown. [Citation.] "In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court. '[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented.' " [Citation.] ... " 'A necessary corollary to this rule is that if the record is inadequate for meaningful review, the appellant defaults and the decision of the trial court should be affirmed.' " [Citation.] "Consequently, [appellant] has the burden of providing an adequate record. [Citation.] Failure to provide an adequate record on an issue requires that the issue be resolved against [appellant]." [Citation.].' " (In re Marriage of Oliverez (2019) 33 Cal.App.5th 298, 311-312.)
Because Jacobs has not provided an adequate record for us to consider whether his causes of action arose from protected activity or whether he established a probability of success on his causes of action, we must resolve these issues against him on appeal and affirm the order granting Stern's anti-SLAPP motion.
IV
DISPOSITION
The order is affirmed. Respondents are entitled to recover their fees and costs on appeal, in an amount to be determined by the trial court. (§ 425.16, subd. (c); Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785.)
McCONNELL, P. J. WE CONCUR: BENKE, J. AARON, J.