Opinion
B198586
4-22-2009
BURL LOONEY et al., Plaintiffs and Appellants, v. CAROL MOORE, Defendant and Respondent.
Burl C. Looney, in pro. per., for Plaintiff and Appellant Burl Looney. Judy Looney, in pro. per., for Plaintiff and Appellant Judy Looney. Law Office of Anthony Parascandola, Anthony Parascandola and C. Scott Zeidman for Defendant and Respondent.
Not to be Published in the Official Reports
INTRODUCTION
Plaintiffs Burl Looney and Judy Looney appeal from an order granting defendant Carol Moores special motion to strike pursuant to Code of Civil Procedure section 425.16. We reverse.
Further statutory references are to the Code of Civil Procedure unless otherwise noted
FACTUAL AND PROCEDURAL BACKGROUND
Plaintiffs Burl Looney (Burl) and his wife, Judy Looney (Judy), appeal from the grant of an anti-SLAPP motion brought by defendant Carol Moore (Moore) in this action filed by plaintiffs containing civil rights and malicious prosecution causes of action against Moore and other defendants, including the County of Los Angeles (the County). This action was filed after the dismissal of the criminal case against Burl and Judy arising from Moores report of suspected elder financial abuse to the County Sheriffs Department.
Solely for clarity purposes, and intending no disrespect, we refer to the plaintiffs by their first names and, at times, collectively as plaintiffs. (In re Marriage of Simundza (2004) 121 Cal.App.4th 1513, 1514, fn. 1.)
SLAPP is an acronym for strategic lawsuit against public participation. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.) Section 425.16, commonly referred to as the anti-SLAPP statute, authorizes and sets forth requirements for a special motion to strike "[a] cause of action against a person arising from any act of that person in furtherance of the persons right of petition or free speech under the United States or California Constitution in connection with a public issue." (Id., subd. (b)(1).)
Moore filed the elder abuse report after learning that Burl and Judy had induced Judys mentally-infirm 91-year-old uncle to execute testamentary documents, including a new will which made Judy his sole beneficiary and nullified his previous will naming Moore as his beneficiary. For years prior to the uncles move to a nursing home, Moore and her husband had been the uncles neighbors and had looked after him.
After an investigation, the District Attorney charged Burl and Judy with forgery, attempted theft from an elder adult, and other criminal violations, for which they were held to answer. Burl and Judy moved to set aside the forgery charges under Penal Code section 995, claiming that their actions did not fall within the ambit of the charging statute. The court granted the motion. The People appealed. Division Four of the Second District Court of Appeal affirmed the trial courts dismissal of the forgery charges. (People v. Looney (2004) 125 Cal.App.4th 242, review den. Mar. 30, 2005.)
Burl and Judy then filed the instant civil suit alleging civil rights violations and malicious prosecution. In their first amended complaint (FAC), plaintiffs named several defendants, including the County Sheriffs Department, the Office of the District Attorney, various officials and employees of the two agencies, and a number of individuals, including Moore. The County filed a demurrer to the complaint. Moore thereafter filed an anti-SLAPP motion pursuant to section 425.16, asking that the complaint be stricken and the lawsuit terminate as to her. Moore served plaintiffs with notice of the hearing on the motion three days less than the minimum notice time required by section 425.16.
The trial court sustained the Countys demurrer with leave to amend on January 10, 2007 (the demurrer order). The hearing on Moores anti-SLAPP motion was held on January 24, 2007. At the hearing, plaintiffs objected that the motion had been rendered moot as a result of the order sustaining the Countys demurrer to the FAC with leave to amend. The trial court overruled the objection. The trial judge explained that it was his recollection that the Countys demurrer was based on various immunities and, therefore, he found that the order on the Countys demurrer would not have any effect as to Moore.
Weeks later and only one day before Burl and Judy timely filed the second amended complaint (SAC) pursuant to the demurrer order, the trial court issued an order granting Moores anti-SLAPP motion, terminating the action as to Moore, and requiring plaintiffs to pay Moore the amount of $6,360 for her attorney fees as mandated by section 425.16.
A summary of the trial courts reasons for granting Moores anti-SLAPP motion is as follows: The causes of action in the FAC that involved Moore were the second, a civil rights cause (cause 2) and the eighth, a malicious prosecution cause (cause 8). In cause 2, Moore is alleged to have tampered with witnesses and planted a false memory in the uncles mind. The trial court found there was no admissible evidence that Moore planted a false memory in the uncles mind. The court questioned whether planting a false memory is a cause of action, but assuming it was a cause of action, the court found that it was not supported by the evidence. The trial court also found that there was no admissible evidence that Moore tampered with witnesses.
As to cause 8, the trial court found no admissible evidence of malice, that is, no evidence that Moore lacked a reasonable belief, as opposed to a good faith belief, in the validity of her report and the prosecution. In addition, the trial court found that plaintiffs failed to show that they prevailed on the merits in the litigation. Although the forgery charges were resolved on appeal in favor of plaintiffs, the other charges expired without any indication that the District Attorney or a court determined that they had no merit. The court found that, accordingly, there was no conclusive showing that plaintiffs prevailed on the merits, a requirement for success on a malicious prosecution cause of action.
Plaintiffs filed a request for judicial notice on June 9, 2008, of exhibits A through L. We previously granted the request as to exhibits A and B, defendants anti-SLAPP motion and plaintiffs first amended complaint, respectively. We hereby grant plaintiffs request as to exhibits C, D, E, H, J and K, records of the trial court in the criminal action on which plaintiffs allegations of civil rights violations and malicious prosecution are based in the instant action, and exhibit I, court records from the action to probate the uncles estate (Evid. Code, §§ 452, subd. (d), 459, subd. (a)), as well as exhibit F, People v. Looney, supra, 125 Cal.App.4th 242 (Evid. Code, §§ 451, subd. (a), 459, subd. (a)). However, we do not rely on the documents in these exhibits in deciding the instant matter. (Windham at Carmel Mountain Ranch Assn. v. Superior Court (2003) 109 Cal.App.4th 1162, 1173, fn. 11.) Although we may take judicial notice of legislative history of the Legislature as a whole (Evid. Code, §§ 452, subd. (c), 459, subd. (a)), we deny plaintiffs request for judicial notice of exhibit G, reports of California Senate committees regarding Assembly Bill 21 of the 1993-94 Regular Session, entitled "Limitations of Transfers to Attorneys Drafters of Wills," in that we do not find that the materials are supportive of plaintiffs contentions or relevant to the instant action. (Schifando v. City of Los Angeles (2003) 31 Cal.4th 1074, 1089, fn. 4.)
DISCUSSION
Plaintiffs contend that the trial courts order must be reversed on the grounds that (1) at the time the court ruled, there was no operative complaint in place, in that sustaining the Countys demurrer destroyed the FAC, the complaint on which the anti-SLAPP motion was based; (2) Moore failed to give timely notice of the hearing on the motion as required by section 1005; and (3) the trial court erred in finding that Burl and Judy had failed to demonstrate their ability to prevail on the merits as required by section 425.16 in order to defeat Moores anti-SLAPP motion. For reasons we explain more fully below, we conclude that the order must be reversed on the basis that the FAC to which Moores anti-SLAPP motion applied no longer existed at the time the trial court held the hearing and issued its order on the motion and, therefore, there was no basis for making the findings required to grant the motion.
In support of their contention of mootness, plaintiffs assert that the demurrer order destroyed the complaint, and the proper course was to file a completely new amended complaint, citing, inter alia, Cohen v. Superior Court (1966) 244 Cal.App.2d 650. They claim that the anti-SLAPP motion should have been taken off calendar as moot, without prejudice to Moores right to file an anti-SLAPP motion after plaintiffs filed the SAC in accordance with the demurrer order.
We agree that Cohen v. Superior Court, supra, 244 Cal.App.2d 650 supports plaintiffs contention. In Cohen, as in the instant case, there were multiple defendants, Northwestern and Southern Pacific, each filing their own responsive pleadings to the original complaint. After Southern Pacific answered, Northwestern demurred. Ultimately, in June 1964, the trial court sustained Northwesterns demurrer with leave to amend the complaint in 30 days. (Id. at pp. 652-653.)
The plaintiffs took no action until August 5, 1965 when they filed a motion to amend the complaint by a date change that did not apply to Northwestern. (Cohen v. Superior Court, supra, 244 Cal.App.2d at p. 653.) The trial court denied the motion and the plaintiffs sought a writ of mandate from the Court of Appeal on the basis that the trial court abused its discretion in denying the motion. (Ibid.)
The Cohen court concluded that there was no need to address the merits, in that "the record of the proceedings in the court below . . . discloses that there is no complaint on file to which the proposed amendment can attach." (Cohen v. Superior Court, supra, 244 Cal.App.2d at p. 654; see 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 988, p. 400.) The order sustaining Northwesterns demurrer with leave to amend, according to the court, "had the effect of consigning [the original complaint] to the limbo of dead pleadings." (Cohen, supra, at p. 656.) The court explained that "when an action is filed against several defendants and the demurrer of one is overruled and the demurrer of the other sustained with leave to amend, the amended complaint, if it is amended in matters of substance as distinguished from matters of form, constitutes a new complaint affecting all of the defendants . . . ." (Ibid., italics added.)
In Malick v. American Sav. & Loan Assn. (1969) 273 Cal.App.2d 171, the court faced a like situation and drew a similar conclusion. The trial court sustained the defendants general demurrer to the original complaint, with leave to amend. After the amendment deadline had passed, the plaintiff submitted a request for dismissal without prejudice as to all of the defendants and the clerk entered the dismissal. (Id. at p. 172.) On the same day, the defendants filed a cross-complaint against the plaintiff and a named cross-defendant. The trial courts order granted the cross-defendants motion to dismiss the cross-complaint, and the defendants appealed. The court affirmed the dismissal, stating that "[t]he effect of the [trial] courts order sustaining appellants demurrer with leave to amend was to wipe out the original complaint. As the original complaint was no longer in existence [citation], and no amended complaint had been filed, there was no pleading or proceeding to which defendants could respond and their cross-complaint was a nullity." (Id. at p. 174, fn. omitted.)
In the instant case, therefore, the order sustaining the Countys demurrer to the FAC with leave to amend wiped out the FAC (Malick v. American Sav. & Loan Assn., supra, 273 Cal.App.2d at p. 174) and effectively consigned the FAC to "the limbo of dead pleadings" (Cohen v. Superior Court, supra, 244 Cal.App.2d at p. 656). The trial court heard argument and made its ruling on Moores anti-SLAPP motion during the limbo period between the demurrer order and plaintiffs filing of the SAC. Thus, as plaintiffs contend, there was no operative complaint at the time of the hearing on Moores anti-SLAPP motion.
Determination of whether a cause of action must be stricken pursuant to an anti-SLAPP motion requires that there be an operative complaint. At issue was the second step in the two-step analysis required by the SLAPP statute, section 425.16. That is, in order to prevent the trial court from granting Moores motion, plaintiffs were required to demonstrate a reasonable probability of prevailing on any part of their claims for each cause of action against Moore, and thus that the cause of action was not meritless. (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 106.) With no operative complaint in place during the state of limbo, however, there were no operative causes of action for the trial court to evaluate and, thus, no basis upon which to make a determination.
Plaintiffs conceded that Moore met her burden in the first step of the analysis to show that the causes of action against her arose from protected activity, that is, acts in furtherance of her constitutional rights of free speech or petition. (Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, 472.)
Both plaintiffs and Moore cite and discuss cases which involve the amendment of pleadings during the pendency of an anti-SLAPP motion. None of the cases is directly on point as to the instant lawsuit. There are no factual scenarios in which the plaintiffs amendment of a complaint after a defendant has filed an anti-SLAPP motion is pursuant to the trial courts order, as in the instant case. The cited anti-SLAPP cases primarily involve amendments to pleadings made by a party which would allow the party to evade the grant of an anti-SLAPP motion and/or the mandatory attorney fees payable to a successful anti-SLAPP movant. In this case, the changes plaintiffs made in the SAC did not eliminate any SLAPP cause of action, and thus, Moore has not been prejudiced with regard to her entitlement to seek prompt relief under the anti-SLAPP statute from the SAC.
Under the unusual procedural posture of the instant case, we believe the principles cited in Cohen and Malick apply here. Accordingly, as we previously stated, we conclude there was no operative complaint in place at the time the anti-SLAPP motion was argued and decided and, as a result, the trial courts determination cannot stand. (Malick v. American Sav. & Loan Assn., supra, 273 Cal.App.2d at p. 174; Cohen v. Superior Court, supra, 244 Cal.App.2d at p. 656.) Having resolved this appeal on this procedural ground, we need not address plaintiffs other contentions.
DISPOSITION
The order is reversed. Each party shall bear his or her own costs on appeal.
We concur:
WOODS, Acting P. J.
ZELON, J.