Opinion
E067959
07-13-2018
RICHARD JOHNSON, Plaintiff and Respondent, v. DOUGLAS HUMPHREY, Individually and as Successor in Interest, etc., Defendant and Appellant.
Christopher Kelley for Defendant and Appellant. No appearance 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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.Nos. INC1207805, PSC1604423) OPINION APPEAL from the Superior Court of Riverside County. James T. Latting, Judge. Reversed. Christopher Kelley for Defendant and Appellant. No appearance for Plaintiff and Respondent.
Richard L. Johnson filed a complaint against Douglas Humphrey and others. Humphrey filed both a demurrer and a special motion to strike under Code of Civil Procedure section 425.16 (SLAPP motion). In ruling on the demurrer, the trial court struck the complaint, because it was not properly verified, but allowed leave to amend. It then ruled that the SLAPP motion was moot.
Humphrey appeals. He contends that his SLAPP motion was not moot, and thus the trial court erred by declining to reach the merits of the motion. He further contends that his SLAPP motion was, in fact, meritorious.
We agree that the SLAPP motion was not moot. Hence, we reverse. We leave it up to the trial court on remand to determine, in the first instance, whether the motion was meritorious.
I
FACTUAL AND PROCEDURAL BACKGROUND
This litigation has been going on since 2012; a lot of procedural water has gone under the bridge since then. We limit our discussion to the facts that are relevant to our opinion.
In 2016, Johnson filed a complaint against Humphrey and others. It asserted a cause of action for a declaration that Johnson was the owner, by adverse possession, of certain property in Rancho Mirage. It also asserted a cause of action for a declaration as to which defendants were and were not the heirs of a deceased former owner of the property.
A third cause of action, for fraud, was later voluntarily dismissed as against Humphrey. --------
Johnson's complaint was consolidated with an action that Humphrey had filed in 2012.
On November 28, 2016, Humphrey filed two motions:
1. A SLAPP motion.
2. A demurrer to Johnson's complaint. In it, Humphrey argued that that Johnson had not adequately alleged facts giving rise to adverse possession. He also argued that Johnson lacked standing to seek declaratory relief regarding the identity of the heirs to the property. Finally, he argued that the complaint had to be stricken because it was defectively verified.
Johnson filed oppositions to both motions.
On January 17, 2017, the trial court held a hearing on the motions. It tentatively ruled that it would strike the complaint because it was defectively verified, but it would allow leave to amend. It also tentatively ruled that, in light of its ruling striking the complaint, the SLAPP motion was moot. Counsel for Humphrey argued that the SLAPP motion was not moot: "[C]ase law is very clear that initially the anti-SLAPP motion must be decided by the Court on the merits regardless of whether there's a demurrer or not." The trial court nevertheless adopted its tentative ruling as its final order. It gave Johnson 20 days' leave to amend. It also indicated that its denial of the SLAPP motion was without prejudice.
On February 3, 2017, Johnson filed an amended complaint. It asserted the same two causes of action, but it included some modified and some additional allegations. On February 24, 2017, however, he voluntarily dismissed his complaint, without prejudice.
On March 16, 2017, Humphrey filed a notice of appeal from the order denying the SLAPP motion.
II
THE SLAPP MOTION WAS NOT MOOT
Johnson has not filed a respondent's brief. However, we do not treat this as a default (Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2018) ¶ 9:193, p. 9-56) or as consent to reversal. (In re Bryce C. (1995) 12 Cal.4th 226, 232-233.) Rather, Humphrey, as the appellant, still has the burden of affirmatively demonstrating reversible error. (Smith v. Smith (2012) 208 Cal.App.4th 1074, 1078.)
Under Code of Civil Procedure section 425.16, subd. (b)(1) (the SLAPP statute), "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the 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."
Subject to exceptions not applicable here, a defendant whose SLAPP motion is granted is entitled to an award of attorney fees and costs. (Code Civ. Proc., § 425.16, subd. (c)(1).)
"'The Legislature enacted section 425.16 to prevent and deter "lawsuits [referred to as SLAPPs] brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." [Citation.] Because these meritless lawsuits seek to deplete "the defendant's energy" and drain "his or her resources" [citation], the Legislature sought "'to prevent SLAPPs by ending them early and 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.]" (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 642.)
"[A] plaintiff whose complaint is stricken by a successful anti-SLAPP motion cannot try again with an amended complaint. There is no such thing as granting an anti-SLAPP motion with leave to amend. [Citations.]" (Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 676-677, fn. omitted.) "The anti-SLAPP statute was enacted to purge meritless lawsuits and to do so at an early stage of the litigation. [Citations.] Accordingly, if a trial court grants an anti-SLAPP motion, it results in a judgment striking the complaint or cause of action. Importantly, if the motion is granted, the court may not grant leave to amend to allege new facts demonstrating the complaint is not subject to the anti-SLAPP statute. [Citations.]" (Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal.App.5th 574, 598-599.)
For similar reasons, a plaintiff has no right to amend while a SLAPP motion is pending. (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1294.) If the plaintiff can amend without leave of court and does, the trial court should decide the SLAPP motion based on the complaint as it stood when the SLAPP motion was filed. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054-1056; Salma v. Capon, supra, at pp. 1294, 1295; cf. JKC3H8 v. Colton (2013) 221 Cal.App.4th 468, 476-479 [amended complaint filed less than two hours before SLAPP motion rendered SLAPP motion moot].)
Finally, "if a plaintiff voluntarily dismisses the case prior to the hearing on the anti-SLAPP motion, the court loses jurisdiction to rule on the anti-SLAPP motion, but retains the limited jurisdiction to consider the merits of the motion in order to decide if attorney fees and costs should be awarded the successful defendants. [Citation.] In short, the dismissal is given effect, but the defendant does not lose its anti-SLAPP right to recover fees if its motion would have been successful. [Citation.]" (Dickinson v. Cosby, supra, 17 Cal.App.5th at p. 679.)
In summary, then, the filing of a SLAPP motion freezes the pleadings. It does not literally prevent the plaintiff from amending or dismissing its complaint, but the defendant is entitled to have its SLAPP motion adjudicated based on the pleadings as they stood when the SLAPP motion was filed.
We are aware of only one case that even arguably conflicts with this rule: Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858 (Nguyen-Lam). There, the plaintiff sued the defendant for, among other things, defamation. (Id. at p. 864.) The defendant filed a SLAPP motion; he argued that the plaintiff was a public official and his comments about her related to a matter of public interest. (Id. at pp. 864-865.) The trial court found that the alleged defamation related to a matter of public interest, but that the plaintiff had shown a probability of prevailing. (Ibid.) It also "found the complaint was deficient on its face in alleging actual malice, but determined plaintiff had provided proof of actual malice and authorized plaintiff to amend the complaint accordingly." (Id. at pp. 865-866.)
The appellate court held that the trial court properly granted leave to amend. (Nguyen-Lam v. Cao, supra, 171 Cal.App.4th at pp. 869-873.) It explained that "in seeking amendment here plaintiff did not attempt to void defendant's showing on the first prong of the anti-SLAPP inquiry. . . . Rather, assuming that showing had been made, and in conjunction with her burden on the second prong to show a probability of prevailing on the merits, plaintiff sought to amend the complaint to plead specifically that defendant harbored the requisite actual malice as shown by the evidence presented for the hearing on the strike motion." (Id. at pp. 870-871.) "By definition, . . . when the plaintiff demonstrates a probability of prevailing on the merits, his or her complaint is not a SLAPP." (Id. at p. 871.) "True, a plaintiff may not avoid or frustrate a hearing on the anti-SLAPP motion by filing an amended complaint [citation] but where, as here, the evidence prompting amendment is found in the declarations already submitted for the hearing, there is no risk the purpose of the strike procedure will be thwarted with delay, distraction, or increased costs. [Citations.]" (Id. at pp. 871-872.)
In sum, then, Nguyen-Lam stands for the proposition that, if the trial court finds, based on the evidence in connection with the SLAPP motion, that the plaintiff has a probability of prevailing, it can grant leave to amend the complaint to conform to that evidence. (See Weil & Brown, Cal. Practice Guide: Civil Procedure Before Trial (The Rutter Group 2018) ¶ 7:1076.5 at p. 7(II)-63.) That is not even remotely what happened here.
Thus, the trial court erred by ruling that its order striking the complaint — with leave to amend — made the SLAPP motion moot. Humphrey was entitled to a ruling on his SLAPP motion, based on the pleadings as they stood when the motion was filed. Granting leave to amend gave Johnson an opportunity to attempt to amend around the SLAPP motion. Admittedly, at the time, the most likely scenario was that he would refile an identical complaint, with a corrected verification. Even if so, it was ruinous to judicial economy to allow this. Humphrey would have to refile his SLAPP motion. Johnson would get to file a new (and possibly improved) opposition. And the trial court would still have to rule on the motion. Moreover, Johnson was not required to file an identical complaint, and as things turned out, he filed a somewhat different complaint. Thus, he enjoyed the very opportunity to amend that is prohibited.
Finally — and again, as things turned out — Johnson voluntarily dismissed his new complaint. As a result, Humphrey was never actually able to file a new SLAPP motion. Thus, he was deprived of the opportunity to seek attorney fees.
Humphrey argues that his SLAPP motion was, in fact, meritorious, and therefore we should remand with directions to award him attorney fees. In essence, he is asking us to review a ruling that the trial court never actually made. Moreover, in the trial court, he requested judicial notice of a slew of documents that he offered as evidence in support of his motion. The trial court never ruled on this request, the grant or denial of which could affect the scope of our review. We therefore leave it up to the trial court on remand to adjudicate the merits of the SLAPP motion. (See California DUI Lawyers Assn. v. Department of Motor Vehicles (2018) 20 Cal.App.5th 1247, 1265 [trial court erred by granting summary judgment based on lack of standing; remanding for trial court to rule on remaining issues in cross-motions for summary judgment in the first instance].)
III
DISPOSITION
The order ruling that Humphrey's SLAPP motion is moot is reversed. The trial court is directed to set a new hearing and to rule on the merits of the SLAPP motion for the limited purpose of determining whether Humphrey is entitled to an award of attorney fees and costs against Johnson.
Humphrey is awarded costs on appeal against Johnson.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
RAMIREZ
P. J. We concur: SLOUGH
J. FIELDS
J.