Opinion
H036633
10-07-2011
ERIC MOBERG, Plaintiff and Appellant, v. LESLIE CODIANNE et al., 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NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. M105157)
I. INTRODUCTION
Appellant Eric Moberg, a self-represented litigant, was hired in 2009 by respondent Monterey Peninsula Unified School District (the District) as a special education teacher for young adult students with severe handicaps. In 2010, the District dismissed Moberg from his position as a probationary certified employee. Moberg filed a complaint against the District and District personnel in which he asserted causes of action for violation of civil rights, retaliation in contravention of public policy, defamation, and intentional infliction of emotional distress. After defendants' demurrers were sustained without leave to amend, except as to the third cause of action for defamation to which the demurrer was sustained with leave to amend, Moberg filed an amended complaint.
The amended complaint was filed without leave of court and included, not only a revised third cause of action, but five new causes of action (causes of action five through nine) and four new defendants. On December 13, 2010, the trial court issued its order (1) granting defendants' special motions to strike the third, fifth and sixth causes of action under the anti-SLAPP statute, Code of Civil Procedure section 425.16 ; (2) granting defendants' motion to strike new causes of action five through nine and the allegations against the new defendants; (3) denying Moberg's oral motion for leave to amend the third cause of action; (4) determining that as a result of the court's rulings, defendants' demurrers and Moberg's discovery motion were moot; and (5) dismissing the entire action with prejudice.
All statutory references hereafter are to the Code of Civil Procedure unless otherwise indicated.
On appeal from the December 13, 2010, order of dismissal, we understand Moberg to contend that (1) the seventh and eighth cause of action in the amended complaint (for violation of civil rights and wrongful termination) are "viable"; (2) defendants "committed criminal retaliation"; (3) Moberg's motion to compel discovery was not moot; and (4) dismissal of the entire action was premature because Moberg indicated at the time of the hearing that he intended to move to amend the complaint. Moberg does not challenge the December 13, 2010 order to the extent the trial court granted defendants' anti-SLAPP motions.
We determine that the entire action should not have been dismissed with prejudice in the absence of a noticed motion to dismiss. (§ 581, subd. (f)(3).) We will therefore reverse the order of dismissal and remand the matter to allow defendants to bring a noticed motion to dismiss. We find no merit in Moberg's other contentions.
II. FACTUAL AND PROCEDURAL BACKGROUND
Our summary of the factual and procedural background is taken from respondents' appendix, since appellant's appendix included only three documents (the December 13, 2010 order; a November 30, 2010 minute order; and a notice of entry of the December 13, 2010 order).
A. The Original Complaint
On April 12, 2010, Moberg filed a verified complaint against four individual defendants and the District. The individual defendants included Leslie Codianne, the District's associate superintendent of student support services; Ann Kilty, the District's director of adult education; Teresa Poirier, a District school psychologist/program manager, and Marilyn Shepherd, District superintendent.
The 20 pages of factual allegations in the complaint included Moberg's account of the praise he had received during his employment with the District, as well as his detailed claims that defendants had falsely and maliciously accused him of wrongdoing and poor performance in his work as a special education teacher. Based on his factual allegations, Moberg asserted the following causes of action: (1) violation of civil rights (Civ. Code, § 52.1, subd. (b)); (2) retaliation in contravention of public policy; (3) defamation; and (4) intentional infliction of emotional distress.
On August 12, 2010, the trial court issued its order sustaining defendants' demurrers to the first, second, and fourth causes of action without leave to amend and sustaining the demurrer to the third cause of action with leave to amend. The court also granted defendants' motion to strike paragraph eight of the complaint and defendants' motion for a protective order.
The trial court's order of August 12, 2010, therefore disposed of all causes of action in the original complaint with the exception of the third cause of action for defamation.
B. The Amended Complaint
Sometime after the August 12, 2010 order issued, Moberg served a first amended complaint. The record lacks a filing date for the first amended complaint, but we assume, based on the parties' argument in their briefs, that the first amended complaint was filed and served on the defendants who are parties to this appeal (the District, Shepherd, Codianne, Kilty, Poirier, and Judd Jordan). It is undisputed that Moberg did not obtain leave of court to file the first amended complaint.
In the first amended complaint, Moberg added four new defendants, including Judd Jordan (the District's attorney in this matter), Eugene Whitlock (identified in the complaint as a deputy county counsel in San Mateo), Jean Holbrook (identified in the complaint as the superintendent of San Mateo County schools), and the San Mateo County Superintendent of Schools (identified in the complaint as "a public education entity in California").
The first amended complaint also includes 28 pages of factual allegations, in which Moberg expands upon his allegations in the original complaint regarding the praise he received during his employment with the District and his detailed claims that defendants had falsely and maliciously accused him of wrongdoing and poor performance in his work as a special education teacher. Additionally, Moberg alleges that defendant Jordan intentionally misled the administrative law judge who ruled on Moberg's termination in August 2010. Moberg also claims that defendant Jordan improperly obtained a copy of Moberg's settlement agreement with a prior employer, San Mateo County.
The record reflects that the administrative law judge issued a proposed decision dated August 12, 2010, finding that cause (dishonesty pursuant to Education Code section 44932, subdivision (a)(3), and persistent violation of or refusal to obey school laws or regulations pursuant to Education Code section 44932, subdivision (a)(7)) existed to terminate Moberg from his position as a probationary certificated employee of the District. Moberg alleges in the first amended complaint that the District's Board intended to dismiss him by vote on September 7, 2010.
The third cause of action for defamation in the first amended complaint is similar to the third cause of action in the original complaint and asserts that defendants Codianne, Kilty, Poirier, and the District's Board knowingly made false statements and published slanders against Moberg, thereby "maliciously damaging his business reputation and placing him "in jeopardy of a career ending dismissal . . . ."
The first amended complaint also includes five new causes of action, including a fifth cause of action for invasion of privacy (against defendants Jordan and Whitlock), a sixth cause of action for intentional interference with a contract (against defendant Jordan), a seventh cause of action for violation of civil rights (Civ. Code, § 52.1, subd. (b)), an eighth cause of action for wrongful termination, and a ninth cause of action for breach of contract (against defendants Whitlock, Holbrook and San Mateo County superintendent of schools).
C. Defendants' Motion to Strike Causes of Action Five through Nine
On October 22, 2010, defendants (excluding Whitlock, Holbrook, and the San Mateo County superintendent of schools, who are not parties to this appeal) filed a motion to strike the fifth through ninth causes of action in the first amended complaint. Defendants argued that the complaint improperly added five new causes of action and four new defendants without leave of court, in violation of the trial court's August 12, 2010 order allowing only amendment of the third cause of action for defamation. Defendants also argued that allegations of a civil conspiracy against the District's attorney, Judd Jordan, could not be added without leave of court, pursuant to Civil Code section 1714.10. Finally, defendants pointed out that Moberg had failed to sign the first amended complaint, which subjected it to being stricken under section 128.7, subdivision (a).
In his opposition to the motion to strike, Moberg contended that he had a right to amend his complaint because defendants had not yet answered. He also contended that he had not alleged an attorney conspiracy, he was willing to sign the first amended complaint, and defendants had no standing with respect to the ninth cause of action since they were not named in that cause of action.
D. Defendants' Special Motion to Strike the Third Cause of Action (§ 425.16)
Defendants also filed on October 22, 2010, a special motion to strike the third
cause of action in the first amended complaint under the anti-SLAPP statute, section 425.16. They argued that the allegations of the third cause of action for defamation showed that the cause of action was based upon privileged or nondefamatory publications and therefore defendant could not show a probability of prevailing.
SLAPPs (strategic lawsuits against public participation) are unsubstantiated lawsuits based on claims arising from defendant's constitutionally protected speech or petitioning activity. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 60.
Moberg opposed the motion on several grounds, including, among other things, his contentions that defendants had failed to show that his claims arose from protected speech or petitioning and he had a probability of prevailing since defendants had made false statements.
E. Defendant Jordan's Special Motion to Strike the Fifth and Sixth Causes of Action (§ 425.16)
On October 22, 2010, defendant Jordan filed a special motion to strike the fifth cause of action for invasion of privacy and the sixth cause of action for intentional interference with contract in the first amended complaint under the anti-SLAPP statute, section 425.16. Jordan argued that the those causes of action alleged conduct by him that was protected under section 425.16 as statements or writings made in an administrative proceeding, specifically, a teacher disciplinary proceeding conducted by an administrative law judge through the state Office of Administrative Hearings.
Jordan also argued that Moberg had no probability of prevailing on the fifth and sixth causes of action, since those causes of action arose from the allegations that Jordan improperly obtained and divulged the settlement agreement between Moberg and a former government employer, San Mateo County. Jordan asserted that he had an absolute defense to these claims under the litigation privilege (Civ. Code, § 47, subd. (b)). Additionally, Jordan maintained that the settlement agreement was properly discovered under the Public Records Act (Gov. Code, § 6253.3).
In his opposition to Jordan's anti-SLAPP motion, Moberg contended, among other things, that the motion should be denied because Jordan had failed to show that Moberg intended to chill future speech or public participation, had an "economic motive," or that a public issue was involved. Moberg also contended that he was likely to prevail because Jordan had not denied "the facts related to invading [Moberg's] privacy."
F. Defendants' Demurrers to Causes of Action Three through Eight
Additionally, defendants filed demurrers to causes of action three through eight in the first amended complaint on October 22, 2010, on the grounds that each cause of action failed to state facts sufficient to constitute a cause of action.
Moberg filed opposition to the demurrers in which he claimed that each cause of action was viable and had merit.
G. The Trial Court's December 13, 2010 Order
After a hearing held on November 30, 2010, the trial court issued its rulings on all of the motions in its order of December 13, 2010. The order states, "It is hereby ordered that defendants' general motion to strike and special anti-SLAPP motions to strike, which include all of the purported causes of action of the first amended complaint, are granted; [Moberg's] oral request at the hearing for leave to amend the purported third cause of action for defamation to avoid the anti-SLAPP statute is denied; and therefore the entire action is determined and dismissed with prejudice, rendering defendants' demurrer and [Moberg's] stayed discovery motion moot."
The record lacks a copy of Moberg's discovery motion.
The record includes a document entitled "[Defendants'] objections to [Moberg's] December 9, 2010 letter to Judge Kingsley and enclosed purported 'December 7, 2010' letter to Judd Jordan and proposed order after hearing," which was filed on December 14, 2010. Moberg's letters of December 9, 2010, and December 7, 2010, were not included in the record. Defendants' December 14, 2010 objections indicate that Moberg submitted a proposed order with respect to the trial court's rulings at the November 30, 2010 hearing, to which defendants did not agree.
Moberg filed a timely notice of appeal from the judgment of dismissal on February 9, 2011.
III. DISCUSSION
We understand Moberg to contend on appeal from the December 13, 2010 order of dismissal that (1) the seventh and eighth causes of action in the amended complaint (for violation of civil rights and wrongful termination) "are viable"; (2) defendants "committed criminal retaliation"; (3) Moberg's motion to compel discovery was not moot; and (4) dismissal of the entire action was premature because Moberg indicated at the time of the hearing that he intended to move to amend the complaint. Moberg does not challenge the December 13, 2010 order to the extent the trial court granted defendants' anti-SLAPP motions.
"A written order of dismissal signed by the court constitutes a judgment and is effective for all purposes. [Citation.]" (Lucky United Properties Investment, Inc. v. Lee (2010) 185 Cal.App.4th 125, 136-137; § 581d.) An order of dismissal is therefore appealable. (Lucky, at p. 137, fn. 7; see also Datig v. Dove Books, Inc. (1999) 73 Cal.App.4th 964, 979.)
As we will discuss, we find that Moberg's failure to meet his burden as an appellant to affirmatively demonstrate error is fatal to all but one of his contentions on appeal. For that reason, we will begin by providing an overview of the pertinent general rules that govern our appellate review and also place certain burdens on the appellant.
A. General Rules of Appellate Review and Appellate Practice
In conducting our appellate review, we presume that a judgment or order of a lower court is correct. "All intendments and presumptions are indulged to support [the judgment] on matters as to which the record is silent, and error must be affirmatively shown." (Denham v. Superior Court (1970) 2 Cal.3d 557, 564; see also In re Marriage of Arceneaux (1990) 51 Cal.3d 1130, 1133.) Therefore, a party challenging a judgment or an appealable order "has the burden of showing reversible error by an adequate record." (Ballard v. Uribe (1986) 41 Cal.3d 564, 574.) " '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.' [Citations.]" (Gee v. American Realty & Construction, Inc. (2002) 99 Cal.App.4th 1412, 1416.) Thus, where the appellant fails to provide an adequate record as to any issue the appellant has raised on appeal, the issue must be resolved against the appellant. (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1295.)
The appellant must also present argument supported by relevant legal authority as to each issue raised on appeal. " '[E]very brief should contain a legal argument with citation of authorities on the points made. If none is furnished on a particular point, the court may treat it as waived, and pass it without consideration. [Citations.]' [Citations.] This principle is especially true when an appellant makes a general assertion, unsupported by specific argument, regarding insufficiency of evidence. [Citation.]' " (People v. Stanley (1995) 10 Cal.4th 764, 793.)
Moberg is not exempt from compliance with these general rules of appellate practice because he is representing himself on appeal. "Under the law, a party may choose to act as his or her own attorney. [Citations.] '[S]uch a party is to be treated like any other party and is entitled to the same, but no greater consideration than other litigants and attorneys. [Citation.]' [Citations]." (Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247.) Thus, a self-represented litigant is not entitled to lenient treatment. (Rappleyea v. Campbell (1994) 8 Cal.4th 975, 984-985.)
Having reviewed the general rules of appellate review and appellate practice, we turn to the issues that Moberg seeks to raise on appeal.
B. The Seventh and Eighth Causes of Action
Moberg contends that the facts stated in his opening brief and the factual allegations in the first amended complaint show that the seventh cause of action for violation of civil rights (Civ. Code, § 52.1, subd. (b)) and the eighth cause of action for wrongful termination are "viable." He further contends that the trial court did not rule that these causes of action were not viable, "other than by virtue of procedural flaw." However, Moberg does not refer to any legal authorities or provide any citations to the record in support of these points.
Defendants respond that the trial court properly granted their motion to strike the seventh and eighth causes of action because, among other things, Moberg did not have leave of court to add additional causes of action in his amended complaint after their demurrers were sustained with leave to amend only as to the third cause of action. We agree that the seventh and eighth causes of action were properly struck because they are procedurally barred.
Section 472 provides that a plaintiff may amend a pleading without leave of court before an answer or demurrer is filed. (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 612 (Leader).)After a demurrer has been sustained, the pleading may be amended only with permission of the court. (§ 473, subd. (a)(1); see Leader, supra, 89 Cal.App.4th at pp. 612-613.)
Section 472 states, "Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, and the time in which the adverse party must respond thereto shall be computed from the date of notice of the amendment."
Section 473, subdivision (a)(1) states, "The court may, in furtherance of justice, and on any terms as may be proper, allow a party to amend any pleading or proceeding by adding or striking out the name of any party, or by correcting a mistake in the name of a party, or a mistake in any other respect; and may, upon like terms, enlarge the time for answer or demurrer. The court may likewise, in its discretion, after notice to the adverse party, allow, upon any terms as may be just, an amendment to any pleading or proceeding in other particulars; and may upon like terms allow an answer to be made after the time limited by this code."
Thus, where, as here, the trial court's order sustains a demurrer with leave to amend, "the plaintiff may amend his or her complaint only as authorized by the court's order. [Citation.] The plaintiff may not amend the complaint to add a new cause of action without having obtained permission to do so, unless the new cause of action is within the scope of the order granting leave to amend. [Citation.]" (Harris v. Wachovia Mortgage, FSB (2010) 185 Cal.App.4th 1018, 1023.) Similarly, unless the addition of new defendants is within the scope of the order granting leave to amend, the plaintiff must have court permission to amend the pleading by adding a new defendant. (People ex rel. Dept. of Pub. Wks. v. Clausen (1967) 248 Cal.App.2d 770, 785.) To obtain the court's permission to amend the pleading, the plaintiff is required to file a noticed motion for leave to amend. (Leader, supra, 89 Cal.App.4th at p. 613.)
Under section 436, subdivision (b), the trial court has the authority to strike pleadings not filed in conformity with its prior ruling. (Leader, supra, 89 Cal.App.4th at p. 613.) Moreover, " 'by virtue of its inherent power to prevent abuse of its processes'. . . , a trial court may strike an amended complaint 'filed in disregard of established procedural processes,' and may strike an amended pleading 'because no request for permission to amend was sought.' [Citation.]" (Ibid.)
Section 436, subdivision (b) provides, "The court may, upon a motion made pursuant to Section 435, or at any time in its discretion, and upon terms it deems proper: Strike out all or any part of a pleading not drawn or filed in conformity with the laws of this stated, a court rule, or an order of the court."
In the present case, the trial court's August 12, 2010 order sustaining defendants' demurrers gave Moberg leave to amend only the third cause action. Nevertheless, Moberg filed and served a first amended complaint with five new causes of action and four new defendants, without filing a motion for leave to amend and obtaining court permission to add the new causes of action and the new defendants. Pursuant to section 436, subdivision (b), the trial court's order of December 13, 2010 properly granted defendants' motion to strike the new causes of action, including the seventh and eighth causes of action, since Moberg did not obtain court permission to amend his complaint beyond the scope of the August 12, 2010 order.
Having determined that the seventh and eighth causes of action in the first amended complaint are procedurally barred because the first amended complaint was not filed in conformity with the trial court's prior ruling of August 12, 2010 (§ 436, subd. (b)) we need not address Moberg's contention that the seventh and eighth causes of action are "viable."
C. "Criminal Retaliation"
In his opening brief, Moberg includes an argument under the subheading "Respondents Committed Criminal Retaliation." We understand Moberg to argue the merits of the eighth cause of action for wrongful termination in the first amended complaint, which states, among other things, "[d]efendants maliciously dismissed Plaintiff based on known false accusations for the ill purpose of retaliating against him for exercising his civil rights and defending himself against false accusations."
The merits of the eighth cause of action are not before us in this appeal. As discussed in Part III. A., ante, in its December 13, 2010 order the trial court properly granted defendants' motion to strike the new causes of action, including the eighth cause of action, that Moberg added to his first amended complaint without court permission (§ 436, subd. (b)), and therefore the eighth cause of action is procedurally barred.
D. Motion to Compel Discovery
Moberg contends that the trial court should have granted his motion to compel discovery instead of ruling that the motion was moot, because the motion was based on defendants' failure to comply with an earlier trial court order. Moberg does not support his argument with any legal authorities or citations to the record.
We reiterate the general rule of appellate practice that a party challenging a judgment or an appealable order "has the burden of showing reversible error by an adequate record." (Ballard v. Uribe, supra, 41 Cal.3d at p. 574.) Thus, where the appellant fails to provide an adequate record as to any issue the appellant has raised on appeal, the issue must be resolved against the appellant. (Maria P. v. Riles, supra, 43 Cal.3d at p. 1295.)
Here, the record on appeal is inadequate. At a minimum, it lacks a copy of the discovery motion that Moberg contends was erroneously denied as moot. We therefore resolve the discovery issue against Moberg without further consideration. (Maria P. v. Riles, supra, 43 Cal.3d at p. 1295.)
E. Premature Dismissal
Finally, Moberg contends that the trial court prematurely dismissed the entire action with prejudice, because he indicated at the time of the November 30, 2010 hearing on defendants' motions that he intended to move to amend the complaint. Moberg also asserts that he objected to defendants' proposed order after hearing and filed a motion for reconsideration after the trial court signed defendants' proposed order.
The record lacks copies of any objections to the proposed order that Moberg may have submitted to the trial court, and also lacks a copy of his motion for reconsideration of the order.
According to defendants, the trial court properly dismissed the entire action with prejudice because it is well established that an order granting a special motion to strike under the anti-SLAPP statute, section 425.16, operates as a dismissal on the merits. Defendants also argue that Moberg waived any objection to defendant's proposed order dismissing the entire action with prejudice because he failed to timely and properly object to the proposed order.
As defendants point out, the California Supreme Court has ruled that "granting a motion to strike under section 425.16 results in the dismissal of a cause of action on the merits [citation]." (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 193.) Further, it has been held that, where the trial court's order granted defendant's anti-SLAPP motion to strike the complaint in its entirety, "the trial court's order granting defendants' anti-SLAPP motion was a written order of dismissal of the entire action, and therefore was a judgment pursuant to section 581d. [Citations.]" (Melbostad v. Fisher (2008) 165 Cal.App.4th 987, 994.)
Section 581d provides, "A written dismissal of an action shall be entered in the clerk's register and is effective for all purposes when so entered. [¶] All dismissals ordered by the court shall be in the form of a written order signed by the court and filed in the action and those orders when so filed shall constitute judgments and be effective for all purposes, and the clerk shall note those judgments in the register of actions in the case."
Even assuming that an order granting an anti-SLAPP motion to strike the complaint in its entirety operates as a dismissal with prejudice of the entire action, we determine that the December 13, 2010 order granting defendants' collective anti-SLAPP motion and the separate anti-SLAPP motion of defendant Jordan was not sufficient to result in dismissal of the entire action with prejudice by operation of law.
Defendants' collective anti-SLAPP motion sought to strike only the third cause of action of the first amended complaint under section 425.16. Defendants stated in their anti-SLAPP motion that they had "separately filed an ordinary motion to strike the purported Fifth, Sixth, Seventh, Eighth, and Ninth Causes of Action of [Moberg's] first amended complaint . . . and the only purported cause of action in [Moberg's] first amended complaint not subject to defendants' ordinary motion to strike is the purported Third Cause of Action . . . ." Defendant Jordan filed a separate anti-SLAPP motion to strike only the fifth and sixth causes of action in which he was named as a defendant. Thus, the trial court's order of December 13, 2010 granting defendants' collective anti- SLAPP motion and Jordan's separate anti-SLAPP motion was not an order striking the first amended complaint in its entirety, since their motions were directed only to the third, fifth, and sixth causes of action of the first amended complaint.
The remaining causes of action were the seventh, eighth and ninth causes of action, which defendants attacked in their self-described "ordinary motion to strike" on the ground that Moberg did not have leave of court to add those causes of action to the first amended complaint. As we discussed in Part III. A, ante, the trial court in its December 13, 2010 order properly granted defendants' motion to strike those causes of action under section 436, subdivision (b) because they were not filed in conformity with the trial court's prior ruling of August 12, 2010.
Although the December 13, 2010 order granting defendants' anti-SLAPP motions and "ordinary" motion to strike thus disposed of all causes of action in the first amended complaint, the order did not operate as a dismissal of the entire action with prejudice. As we have noted, an order granting an anti-SLAPP motion under section 425.16 arguably operates as a dismissal of the entire action only where, unlike here, the anti-SLAPP motion sought dismissal of the entire action and the trial court granted the motion. A different rule applies where the order grants a motion to strike under section 436, subdivision (b).
Under section 581, subdivision (f)(3), dismissal is proper after the court grants a motion to strike a complaint without leave to amend pursuant to section 436, subdivision (b). (Carroll v. Import Motors, Inc. (1995) 33 Cal.App.4th 1429, 1437.) "The court may dismiss the complaint as to that defendant when: [^] After a motion to strike the whole of the complaint is granted without leave to amend and either party moves for dismissal." (§ 581, subdivision (f)(3).) However, "[t]he general rule is that notice of motion must be given whenever the order sought may affect the rights of an adverse party. [Citation.]" (McDonald v. Severy (1936) 6 Cal.2d 629, 631.) To comport with due process, therefore, a noticed motion of dismissal should be filed either after the order granting the motion to strike the complaint (Gitmed v. General Motors Corp. (1994) 26 Cal.App.4th 824, 828) or simultaneously with the motion to strike the complaint (Leader, supra, 89 Cal.App.4th at p. 613).
In the present case, the order of December 13, 2010, does not expressly state whether the trial court granted defendants' "ordinary" motion to strike without leave to amend the affected causes of action, but we find that it is implicit that the motion was granted without leave to amend. To obtain dismissal of the entire action with prejudice after the December 13, 2010 order disposed of all causes of action in the complaint (by way of both the anti-SLAPP motions to strike and the "ordinary" motion to strike), defendants were required to file a noticed motion to dismiss. They did not do so.
Additionally, our review of the reporter's transcript of the November 30, 2010 hearing on defendants' motions shows that defendants did not request dismissal of the entire action, either with or without prejudice, at the time of the hearing. The record further reflects that first notice that Moberg received indicating that defendants sought dismissal of the entire action was their service of a proposed order after the November 30, 2010 hearing that included a dismissal of the entire action with prejudice. Moberg therefore did not have adequate notice and an opportunity to respond. For that reason, we determine that the portion of the December 13, 2010 order dismissing the entire action with prejudice did not comport with due process. "The essential requirements of due process . . . are notice and an opportunity to respond." (Cleveland Board of Education v. Loudermill (1985) 470 U.S. 532, 546.)
We will therefore reverse the judgment and remand the matter for the limited purpose of allowing defendants to bring a motion to dismiss pursuant to Civil Code section 581, subdivision (f)(3).
IV. DISPOSITION
The December 13, 2010 order of dismissal is reversed. The matter is remanded to the trial court for the limited purpose of allowing defendants to bring a noticed motion to dismiss pursuant to Code of Civil Procedure section 581, subdivision (f)(3).
BAMATTRE-MANOUKIAN, ACTING P. J. WE CONCUR: DUFFY, J. WALSH J.
Judge of the Santa Clara County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.
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