Opinion
E073161
06-09-2020
BRETT LA CUES, Cross-complainant and Respondent, v. EDWARD GUILLEN, et al., Cross-defendants and Appellants.
Law Offices of Kevin Gerry and Kevin Gerry for Cross-defendants and Appellants. Rowe Mullen and Martin J. Mullen for Cross-complainant 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. CIVDS1613553) OPINION APPEAL from the Superior Court of San Bernardino County. Thomas S. Garza, Judge. Affirmed. Law Offices of Kevin Gerry and Kevin Gerry for Cross-defendants and Appellants. Rowe Mullen and Martin J. Mullen for Cross-complainant and Respondent.
I. INTRODUCTION
This is an appeal from an order denying an anti-SLAPP motion as untimely filed. (Code Civ. Proc., § 425.16, subd. (f).) Cross-defendants and appellants, Edward Guillen, Leon Smith, and Bertram Robison (collectively "Clients") appeal from the May 15, 2019 order denying their anti-SLAPP motion to strike the entire cross-complaint of Clients' former attorney, cross-complainant and respondent, Brett La Cues. We conclude that the trial court did not abuse its discretion in denying Clients' anti-SLAPP motion on the ground it was untimely, without considering its merits. Thus, we affirm the May 15, 2019 order denying Clients' anti-SLAPP motion.
Undesignated statutory references are to the Code of Civil Procedure. SLAPP is an acronym for " 'strategic lawsuit against public participation.' " (Baral v. Schnitt (2016) 1 Cal.5th 376, 381, fn. 1.)
II. FACTS AND PROCEDURE
A. The Allegations of the Cross-complaint
Although the merits of the cross-complaint are not at issue, we describe its allegations in some detail in order to provide context to the May 15, 2019 order denying Clients' anti-SLAPP motion as untimely. The cross-complaint was filed on October 25, 2016, and alleges nine causes of action against multiple cross-defendants. In their anti-SLAPP motion, Clients sought to strike the entire cross-complaint, but in their reply to Brett La Cues's opposition to the motion, Clients only asked the court to strike paragraphs 21, 22, and 23. In a prior appeal, discussed post, this court struck paragraphs 24, 26, and 63 of the cross-complaint. (La Cues v. Gerry (Oct. 5, 2018, E068028, E068594) [nonpub. opn.].)
Paragraphs 10 through 26 of the cross-complaint are captioned, "Facts Common To All Causes Of Action," and allege the following:
Paragraphs 10 through 20: In 2009, Clients and over 60 other plaintiffs filed a construction defect action (the Underlying Case). Clients were originally represented by three attorneys in the Underlying Case: Jerry La Cues, Brett La Cues, and Neil Sunkin. In 2013, Arthur J. Lettenmaier associated into the Underlying Case as counsel for Clients. In 2014, the Underlying Case was bifurcated into two phases, the first phase was tried to a jury, and the jury found the builder liable but "only awarded a nominal amount of damages."
The Cross-complaint does not indicate what issues were to be determined in the second phase of the Underlying Case.
Before the second phase of the trial began, the parties were ordered to participate in further settlement conferences. During this time, it was discovered that Jerry La Cues "had an impending suspension with the State Bar." Lettenmaier suggested that his employer, attorney Michael T. Chulack, could help prosecute the Underlying Case and contribute financially. Lettenmaier, Chulack, and Jerry La Cues then came to an agreement, and Chulack also associated into the Underlying Case as counsel. The terms of the agreement were not disclosed to Brett La Cues or Neil Sunkin.
Shortly thereafter, Chulack, Lettenmaier, and Jerry La Cues attended a settlement conference on behalf of Clients. "The vast majority" of the construction defect plaintiffs settled their cases, but Clients decided not to settle, against the advice of "their attorneys." Chulack and Lettenmaier had "the settlement funds" deposited into Chulack's trust account, to which Lettenmaier was a signatory. Days later, Chulack and Lettenmaier withdrew as Clients' attorneys of record.
Although the cross-complaint is unclear, it appears from its allegations that Chulack and Lettenmaier represented other plaintiffs in the Underlying Case and that the "the settlement funds" belonged to those plaintiffs, not Clients. Indeed, the cross-complaint alleges that Clients "had no right to any portion of the settlement funds because they chose not to settle their cases." It also appears that Clients' original attorneys in the Underlying Case, Jerry La Cues, Brett La Cues, and Neil Sunkin, may have represented other plaintiffs in the Underlying Case, and on that basis, had lien rights in "the settlement funds."
Clients then terminated the services of Jerry La Cues and Brett La Cues, and began representing themselves in the Underlying Case. Clients' failures to comply with court orders soon led to the dismissals of Clients' cases in the Underlying Case. Chulack and Lettenmaier, along with another attorney, Gary Verboon, then agreed to represent Clients on their appeals, but only if Clients paid the attorneys' hourly fees and costs. Because Clients could not afford to pay the fees or costs, Chulack, Lettenmaier, and Verboon "suggested" to Clients that they "pursue the settlement money from the settling plaintiffs, which was being held in Chulack's trust account." But Clients had no right to any portion of the settlement funds because they did not settle their cases.
It appears that Clients also terminated the services of Neil Sunkin.
It appears that Clients appealed the lower court's dismissals of their cases in the Underlying Case.
Chulack, Lettenmaier, and Verboon then "suggested" to Clients that they "extort" Jerry La Cues, Brett La Cues, and Neil Sunkin "to forego any interest they have in the settlement funds in exchange for an agreement that they would not sue them for malpractice." Although Lettenmaier, Chulack, and Verboon knew that Clients did not have "a viable malpractice case against" Brett La Cues, if Clients could "extort" Jerry La Cues, Brett La Cues, and Neil Sunkin "to forego their intertest in the settlement funds, [then] their portion could be divided up among" Clients, Chulack, Lettenmaier and Verboon. Clients then "began to extort" Jerry La Cues, Brett La Cues, and Neil Sunkin. In early February 2016, Brett La Cues asked Chulack and Lettenmaier to provide an accounting of the settlement funds in Chulack's trust account, but Chulack and Lettenmaier refused to provide an accounting.
Paragraph 21: On February 19, 2016, Guillen filed a complaint against Brett La Cues for legal malpractice and breach of contract. The complaint lacked merit and was only filed to "extort" Brett La Cues to forego his interest in the settlement funds so that Clients, Chulack, Lettenmaier and Verboon could "split" his interest. Shortly after the complaint was filed, Guillen, Lettenmaier and Verboon told Brett La Cues that Guillen would dismiss the complaint if Brett La Cues would forego his interest in the settlement funds.
Paragraph 22: Clients, Chulack, Lettenmaier and Verboon "attempted to convince, if not strong-arm, Brett La Cues, Jerry La Cues, and Neil Sunkin to forego their interest in the settlement funds," and Verboon presented them with a written agreement that would give him "the right to, and control over, the settlement funds in exchange for a release of liability" of Clients' claims. Neil Sunkin agreed to relinquish his interest in the settlement funds, but Jerry La Cues and Brett La Cues refused to do so, "because, among other reasons," Chulack and Lettenmaier would not provide them with an accounting of the settlement funds.
Paragraph 23: On June 23, 2016, Guillen dismissed his entire complaint for malpractice and breach of contract "because" Brett La Cues "would not voluntarily assign his rights to the settlement funds to Chulack, Lettenmaier, and Gary Verboon."
Paragraph 24: On August 12, 2016, attorney Kevin Gerry, on behalf of Clients, filed the complaint in the present action against The La Cues Law Group, Jerry La Cues and Brett La Cues, for legal malpractice "to put further pressure on Jerry La Cues and Brett La Cues to forego their interest in the settlement funds." "As evidence of this" Clients and Gerry did not name Chulack, Lettenmaier, or Sunkin as defendants, even though these attorneys also represented Clients in the Underlying Case.
Paragraph 25: Gerry "agreed to assist" Clients, Chulack, Lettenmaier, and Verboon "in their scheme to extort" Jerry La Cues and Brett La Cues "in exchange for a portion of the settlement funds."
Paragraph 26: Gerry refused, "on multiple occasions" to discuss the merits of Clients' malpractice complaint with Brett La Cues, and instead "only repeated" that Clients would dismiss the complaint if Brett La Cues and Jerry La Cues would give up their interests in the settlement funds. As of October 25, 2016, Gerry had not served the complaint "because he is aware it has no merit" and "was initiated for the purpose of harassing" and "extorting" Brett La Cues to forego his interest in the settlement funds.
The first seven causes of action of the cross-complaint (for indemnity, declaratory relief, breach of fiduciary duty, money had and received, unjust enrichment, conversion, and accounting) are alleged solely against Chulack and Lettenmaier and are based on their refusal to account for and pay Brett La Cues his interest in the settlement funds. The eighth cause of action, for intentional infliction of emotional distress (IIED), and the ninth, for unlawful business practices (Bus. & Prof. Code, § 17200 et. seq.), are alleged against all cross-defendants: Chulack, Lettenmaier, their respective law offices, Gerry, Gerry's law office, and Clients.
Paragraph 62 of the cross-complaint, which is part of the IIED claim, alleges that cross-defendants left phone messages and emails "threatening and/or harassing" Brett La Cues and demanding that he relinquish his interest in the settlement funds. It further alleges that Guillen, at the direction of the other cross-defendants, threatened to financially destroy Brett La Cues, report him to the FBI, and have him disbarred if he did not relinquish his interest in the settlement funds.
In paragraph 63, also part of the IIED claim, the cross-complaint alleges that all cross-defendants "have also used the court system to extort" Brett La Cues and had filed or caused to be filed multiple complaints "for the sole purpose of gaining leverage against" Brett La Cues.
On October 25, 2016, the same day it was filed, the cross-complaint was served on Clients. In December 2016, it was served on Gerry. The court entered the defaults of Chulack and his law office in January 2017. B. Gerry's Anti-SLAPP Motion and Brett La Cues's Appeal
In January 2017, Gerry and his law office filed a special motion to strike the entire cross-complaint (§ 425.16) (Gerry's anti-SLAPP motion) solely on their own behalf and not on behalf of Clients, although Gerry and his law office continued to represent Clients in their malpractice complaint. The court (Hon. Brian S. McCarville) granted Gerry's anti-SLAPP motion in February 2017, and in May 2017, the court awarded Gerry and his law office attorney fees as the prevailing parties on Gerry's anti-SLAPP motion. (§ 425.16, subd. (c).)
Brett La Cues appealed the orders granting Gerry's anti-SLAPP motion and the subsequent attorney fees award. On October 5, 2018, this court issued a nonpublished opinion in those appeals. (La Cues v. Gerry, supra, E068028, E068594.) On de novo review, we determined that the trial court should have granted Gerry's anti-SLAPP motion only in part. (Id. at *10-11.) We ruled that only three paragraphs of the cross- complaint—24, 26, and 63—were based on Gerry's protected activities and were required to be stricken. (Id. at **13-14, 24.)
We have taken judicial notice of our nonpublished opinion in La Cues v. Gerry, supra, E06028, E068594.
Specifically, we determined that Gerry's acts of sending a demand letter, filing the malpractice complaint, and offering to dismiss the complaint in exchange for a waiver of Brett La Cues's interest in the settlement funds were protected activities under section 425.16. (La Cues v. Gerry, supra, E068028, E068594, at **16, 19-20.) But Gerry's threats to physical harm, financially ruin, and report Brett La Cues to the FBI and the State Bar were unprotected acts because they were unrelated to any substantive issues under review in pending or anticipated litigation. (Id. at **15-16, 19-20.) We also concluded that Gerry's protected activities were not merely incidental or collateral to the cross-complaint's claims for relief and could therefore be parsed and stricken from the cross-complaint. (Id. at **20-22.) The allegations of Gerry's protected activities were required to be stricken because La Cues did not establish a probability of prevailing on his IIED or unlawful business practices claims, to the extent that those claims were based on Gerry's protected activities. (Id. at ** 22-24.) We remanded the matter for reconsideration of Gerry's attorney fees award, given the mixed result on appeal. (Id. at ** 24-26.) The remittitur in La Cues v. Gerry, supra, E068028, E068594, issued on December 7, 2018. C. Relevant Proceedings Concerning Clients
On March 6, 2017, before the trial court ruled on Gerry's anti-SLAPP motion to strike the entire cross-complaint, the court entered Clients' defaults for failing to timely respond to the cross-complaint. As noted, Clients were served with the cross-complaint on October 25, 2016. On June 16, 2017, Gerry filed a motion to set aside Clients' defaults on the cross-complaint. (§ 473, subd. (b).) And on June 18, the case was reassigned to Judge Garza. On June 21, Brett La Cues filed several discovery motions and related requests for monetary sanctions. Because the case was reassigned to Judge Garza, the hearings on all of the motions were continued to July 26, 2017.
Throughout this litigation, Gerry and his law firm have represented Clients as plaintiffs on their malpractice complaint against Jerry La Cues, Brett La Cues, and Sunkin, and as cross-defendants to Brett La Cues's cross-complaint against Clients, Gerry, and Clients' other counsel in the Underlying Case.
Due to the pending appeal in La Cues v. Gerry, supra, E068028, E068594, all proceedings in the case were ordered stayed and all pending motions were vacated on July 18, 2017. The stay was lifted on December 7, 2018, when the remittitur issued in La Cues v. Gerry. On February 5, 2019, Gerry refiled the motion to set aside Clients' defaults. (§ 473, subd. (b).) In that motion, Gerry argued that granting Clients relief from their defaults was mandatory because Clients' failure to timely respond to the cross-complaint was due solely to Gerry's "mistake, inadvertence and neglect." (Todd v. Thrifty Corp. (1995) 34 Cal.App.4th 986, 990-991.)
In a supporting declaration, Gerry averred that he received service of the summons and cross complaint on behalf of Clients (on October 25, 2016) and that Clients had retained Gerry to defend them against the cross-complaint. Gerry offered no explanation for his failure to file timely responses to the cross-complaint on behalf of Clients and argued that no explanation was necessary. He stated that Clients' failure to timely respond was "[his] fault and [his] fault alone." Attached to the motion, as Clients' proposed responsive pleading (§ 473, subd. (b)), was a copy of Clients' proposed anti-SLAPP motion to strike the entire cross-complaint. (§ 473, subd. (b) [Requiring motion for relief from default to be "accompanied by a copy of the answer or other pleading proposed to be filed . . . ."].) Clients' proposed anti-SLAPP motion was substantively identical to Gerry's anti-SLAPP motion, which was litigated in La Cues v. Gerry, supra, E068028, E068594.
At an April 10, 2019 hearing, the court granted Clients relief from their defaults and ordered them to file "responsive pleadings" to the cross-complaint within 10 days. On April 11, a hearing was held on Brett La Cues's unopposed discovery motions against Clients. At the April 11 hearing, the court initially ordered Gerry to file responses to the discovery, without objections, within 10 days. Gerry then asked the court for 20 days to file both the discovery responses and Clients' responsive pleadings to the cross-complaint. The court granted the requests and imposed $5,125 in discovery sanctions against Gerry and plaintiff Leon Smith for their failure to timely respond to Brett La Cues's discovery.
Later during the April 11, 2019 hearing, counsel for Brett La Cues asked the court to clarify whether Clients were to file answers to the cross-complaint or could instead file their proposed anti-SLAPP motion as their responsive pleading. Counsel noted that, in La Cues v. Gerry, supra, E068028, E068594, this court had "stricken the three paragraphs" of the cross-complaint—paragraphs 24, 26, and 63. The court ordered that Clients were to file answers, rather than their proposed anti-SLAPP motion, as their responsive pleading. The court also directed the parties to select a discovery referee and noted that a trial setting conference was set on May 15, 2019.
Despite the court's April 11, 2019 order, on April 12, Gerry filed Clients' proposed anti-SLAPP motion as Clients' responsive pleading to the cross-complaint. Brett La Cues opposed Clients' anti-SLAPP motion on the grounds: (1) the motion was filed in violation of the April 11 order; (2) the motion was untimely (§ 425.16, subd. (f)); and (3) this court had previously ruled on Gerry's identical anti-SLAPP motion in La Cues v. Gerry, supra, E068028, E068594.
In reply, Gerry argued that Clients were statutorily authorized to file a "responsive pleading," not just answers, to the cross-complaint following their relief from default (§ 473, subd. (b)); that Brett La Cues opposed Clients' motion to set aside their defaults on the ground that Clients did not attach proposed answers to their motion, and on the further ground that Clients' proposed anti-SLAPP motion was untimely (§ 425.16, subd. (f)); the April 10 minute order stated that the court had "read and considered" Brett La Cues's arguments and rejected them; and Brett La Cues had not moved the court to reconsider its April 10 order, which allowed Clients to file their proposed "responsive pleading," their anti-SLAPP motion. For the first time in the reply, Gerry further argued that paragraphs 21, 22, and 23 of the cross-complaint should be stricken because they alleged protected litigation activities on the part of Clients as the basis for the relief sought. Gerry noted that this court had not ruled on these anti-SLAPP issues, because Clients were not parties to the appeal in La Cues v. Gerry, supra, E068028, E068594.
At a May 15, 2019 hearing, the court effectively denied Clients' anti-SLAPP motion on the ground it was untimely and unauthorized. The court pointed out that it had ordered Clients to file answers to the cross-complaint, in granting Clients relief from their defaults. The court also said that it would not consider the new claim raised for the first time in the reply—that only paragraphs 21, 22, and 23 of the cross-complaint should be stricken—unless Brett La Cues was given an opportunity to respond to the new claim. When asked whether he would like the court to (1) immediately deny Clients' anti-SLAPP motion, or (2) defer ruling on it until La Cues could respond to Clients' new claim, Gerry responded: "Well, there's a whole lot of discovery pending the ruling on the anti-SLAPP motion, so we can either have it heard at this point or have it heard later, but the discovery referee issue is premature given the hold on discovery." (Added italics.) The court then asked Brett La Cues's counsel whether he wanted the court to deny the motion or defer ruling on it until Brett La Cues could respond to Clients' new claim. Counsel asked the court to deny the motion, and the court did so. Clients timely appeal.
At the May 15, 2019 hearing, the court also ruled on Gerry's postappeal motion for attorney fees following this court's decision in La Cues v. Gerry. The court awarded Gerry $3,000 in attorney fees as the prevailing party on Gerry's anti-SLAPP motion, reduced from the previous award of over $15,000, given the mixed result that Gerry obtained in defending the order granting the motion on Brett La Cues's appeal.
At the beginning of the May 15, hearing, which was also a trial setting conference, the court asked the parties to address the status of their efforts to obtain a discovery referee and "the need for a discovery referee moving forward." The court did not order any "hold on discovery," or stay its April 10, 2019 order directing Clients to respond, without objection, to Brett La Cues's overdue discovery, but the court stayed the proceedings after Gerry advised the court that Clients would be appealing the denial of Clients' anti-SLAPP motion.
III. DISCUSSION
Clients claim the court abused its discretion in denying Clients' anti-SLAPP motion as untimely. (§ 425.16, subd. (f).) We conclude that the court did not abuse its discretion in refusing to allow Clients additional time—beyond the statutory 60-day period—to file Clients' anti-SLAPP motion and in denying the motion as untimely. A. Applicable Legal Principles
"Section 425.16 contains a timeliness standard for bringing an anti-SLAPP motion. '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 time limitation is 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. . . ." ' (Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 783 . . . citation omitted (Platypus).) The statutory deadline also seeks ' "to avoid tactical manipulation of the stays that attend anti-SLAPP proceedings.' " (Ibid.) All discovery is automatically stayed once an anti-SLAPP motion is filed. (§ 425.16, subd. (g).)
"A court 'enjoys considerable discretion' in determining 'whether to allow [a] late filing of an anti-SLAPP motion.' (Platypus, supra, 166 Cal.App.4th at p. 787.) However, the court must exercise this discretion consistent with the purposes of the statute and must be mindful that the 60-day deadline is the general rule. (Id. at pp. 775-776, 782-784, 787.) '[T]he Legislature's act in allowing an interlocutory appeal of the denial of an anti-SLAPP motion is clearly tied to the fact that the statute contemplates that most such motions will be filed within 60 days of the filing of the complaint." (Id. at p. 787.) Thus, a 'trial court must be wary about freely granting a party the right to file an anti-SLAPP motion past the 60-day deadline.' (Ibid.) In determining whether to permit a late motion, the most important consideration is whether the filing advances the anti-SLAPP statute's purpose of examining the merits of covered lawsuits in the early stages of the proceedings. (Id. at pp. 775-776, 782-784, 787; see Chitsazzadeh [v. Kramer & Kaslow (2011)] 199 Cal.App.4th [676,] at p. 682.) Other relevant factors include the length of the delay, the reasons for the late filing, and any undue prejudice to the plaintiff. (See Platypus, supra, 166 Cal.App.4th at p. 787.)" (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 624 (Har Construction).)
2. Analysis
Clients claim their anti-SLAPP motion was timely because it was filed on April 12, 2019, two days after the court granted Clients relief from their defaults in failing to timely respond to the cross-complaint. (§ 473, subd. (b).) They point out that that their anti-SLAPP motion was attached to their motion for relief from default as their proposed responsive pleading (ibid), and that the court allowed them to file the motion as their responsive pleading in its April 10 order granting them relief from their defaults. (§ 473, subd. (b).)
Clients also claim that their anti-SLAPP motion was erroneously denied on its merits. Clients argue: (1) this court did not rule on Clients' anti-SLAPP claims in La Cues v. Gerry; (2) Clients' anti-SLAPP motion showed that the cross-complaint was based in part on Clients' protected litigation-related activities; (3) this shifted the burden to Brett La Cues to substantiate his alleged IIED and unlawful business practices claims against Clients; and (4) Brett La Cues offered no evidence to substantiate either of these claims. It is unnecessary to address the merits of Clients' anti-SLAPP motion, given our conclusion that the court did not abuse its discretion in denying it as untimely filed. --------
Clients' timelines argument is unavailing. On April 11, 2019, the court modified its April 10 order granting Clients relief from their defaults by ruling that Clients could only file answers as their responsive pleadings to the cross-complaint, rather than their proposed anti-SLAPP motion. (Le Francois v. Goel (2005) 35 Cal.4th 1094, 1106-1107 [court has inherent authority to reconsider and modify its orders on its own motion].)
By its April 11, 2019 order, the court denied Clients' implicit request for additional time, beyond the statutory 60-day period, to file their anti-SLAPP motion. (§ 425.16, subd. (f).) The court reaffirmed its denial of Clients' implicit request for additional time when, at the May 15 hearing on Clients' anti-SLAPP motion, the court reminded Clients' counsel, Gerry, that the court had ordered Clients to file answers, not their anti-SLAPP motion, as their responsive pleading to the cross-complaint. The court's refusal to allow Clients additional time, beyond the statutory 60-day period, to file their anti-SLAPP motion, was not an abuse of the court's discretion.
Clients were served with the cross-complaint on October 25, 2016. Thus, Clients' anti-SLAPP motion should have been filed by December 26, 2016, 60 days after the cross-complaint was served on Clients. (§ 425.16, subd. (f).) Clients' counsel, Gerry, allowed Clients' default to be taken on March 6, 2017, due to Gerry's admitted but unexplained, "mistake, surprise, and neglect." (§ 473, subd. (b).)
In moving to set aside Clients' defaults, Gerry offered no reason for his failure to ensure that Clients timely responded to the cross-complaint by timely filing their anti-SLAPP motion by December 26, 2016. Although granting Clients relief from their defaults was mandatory (Todd v. Thrifty, supra, 34 Cal.App.4th at pp. 990-991), Gerry's failure to explain why he did not ensure that Clients timely filed their anti-SLAPP motion by December 26, 2016, supports the court's decision not to allow Clients to file their anti-SLAPP motion more than two years after it was due.
To be sure, Gerry initially filed Clients' motion for relief from default on June 16, 2017, together with Clients' anti-SLAPP motion as Client's proposed responsive pleading. The motion was vacated and all proceedings in the case were stayed on July 18, 2017, due to Brett La Cues's appeal of the February 24, 2017 order granting Gerry's anti-SLAPP motion in La Cues v. Gerry, supra, E068028, E068594. But Gerry was served with the cross-complaint on his own behalf in December 2016, and timely filed his anti-SLAPP motion in January 2017. Gerry's and Clients' anti-SLAPP motions are substantively identical.
Thus, there appears to be no legitimate tactical reason why Gerry allowed Clients' defaults to be entered in March 2017, and did not move to relieve Clients from their defaults, and propose to file Clients' anti-SLAPP motion, until June 2017. As noted, "the reason for the late filing" is a factor for the court to consider in determining whether to allow a late filing of an anti-SLAPP motion. (Har Construction, supra, 240 Cal.App.4th at p. 624.) Because no reason was offered for the late filing of Clients' anti-SLAPP motion, the court did not abuse its discretion in denying the motion as untimely.
Additionally, the length of Clients' overall delay in seeking leave to file their anti-SLAPP motion was substantial. (Har Construction, supra, 240 Cal.App.4th at p. 624 [length of delay another factor to consider in determining whether to allow late-filed anti-SLAPP motion].) Clients initially waited more than six months—from December 26, 2016, when the 60-day period expired, to July 18, 2017—to file their initial motion for relief from their defaults, together with their proposed anti-SLAPP motion as their responsive pleading. Then, following the stay in the proceedings from July 18, 2017 to December 7, 2018, Clients waited two more months—until February 6, 2019—to refile their motion for relief from their defaults and their proposed anti-SLAPP motion. Had Clients timely filed their anti-SLAPP motion by December 26, 2018, or filed it with Gerry's identical anti-SLAPP motion in January 2017, there would have been no need for Clients to seek relief from their defaults or wait until April 2019 to propose to file their anti-SLAPP motion.
Moreover, the court reasonably could have determined that allowing the late filing of Clients' anti-SLAPP motion would have undermined the anti-SLAPP statute's "purpose of examining the merits of covered lawsuits in the early stages of the proceedings." (Har Construction, supra, 240 Cal.App.4th at p. 624.) As discussed, neither Gerry nor Clients offered the court any reason why Clients' anti-SLAPP motion was not filed early in the proceedings—with Gerry's identical anti-SLAPP motion. There appears to be no legitimate, tactical reason for Clients' filing of their proposed anti-SLAPP motion, months after Gerry filed his identical anti-SLAPP motion.
As courts have recognized, " 'anti-SLAPP procedures, enacted to curb abusive litigation, are also prone to abuse.' " (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 645, quoting Olsen v. Harbison (2005) 134 Cal.App.4th 278, 283.) On this record, the court reasonably could have concluded that Gerry and Clients were tactically attempting to delay the prosecution of Brett La Cues's IIED and unlawful business practices claims against them, by pursuing their identical anti-SLAPP motions, many months apart, with the attendant discovery stays (§ 425.16, subd. (g)) and stays on appeal, following each motion. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 186 [Appeal of order granting or denying anti-SLAPP motion "automatically stays all further trial court proceedings on the merits upon the causes of action affected by the motion."]; § 425.16, subd. (i).)
IV. DISPOSITION
The May 15, 2019 order denying appellants' anti-SLAPP motion is affirmed. Respondent, Brett La Cues, shall recover his costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
FIELDS
J. We concur: MILLER
Acting P. J. CODRINGTON
J.