Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of San Diego County No. 37-2010-00065408-CU-NP-CTL, Steven R. Denton, Judge.
IRION, J.
Cornelius Oluseyi Ogunsalu, representing himself in propria persona, appeals following the trial court's ruling granting respondents' special motion to strike filed pursuant to Code of Civil Procedure section 425.16. As we will explain, we conclude that Ogunsalu's appellate arguments lack merit, and accordingly we affirm the judgment.
Unless otherwise specified, all further statutory references are to the Code of Civil Procedure.
I
FACTUAL AND PROCEDURAL BACKGROUND
This appeal concerns two consolidated lawsuits filed by Ogunsalu — an action for malicious prosecution and an action for defamation. Both actions arise out of the same course of events, namely a dispute between Ogunsalu and Southern California Seminary (SCS) where Ogunsalu was formerly a student.
In January 2010, Ogunsalu was still living in SCS's dormitory despite his alleged failure to pay rent. Further, according to several witnesses at SCS, Ogunsalu was acting in a delusional and paranoid manner, which SCS's executive vice president Randolph E. Gill perceived as threatening. In reaction to the situation, SCS served Ogunsalu with a notice to quit the premises on January 13, followed by an unlawful detainer action filed on January 19. Further, in response to the perceived threat posed by Ogunsalu, Gill allegedly called the El Cajon Police Department on January 20, in an attempt to have Ogunsalu arrested, and the next day, January 21, Gill filed an application for a temporary restraining order (TRO) against Ogunsalu. The TRO application was supported by several witness declarations describing Ogunsalu's threatening and unstable behavior. The court initially issued the TRO on an ex parte basis but dissolved it on February 2, after holding a noticed hearing at which Ogunsalu appeared.
All date references herein are to the year 2010.
Among other things, Gill requested in his TRO application that the court issue an "Emergency Kick-out Order" requiring Ogunsalu to immediately vacate his dormitory room.
Two days later Ogunsalu filed the malicious prosecution action, representing himself in propria persona. As pled in the first amended complaint, the defendants in the malicious prosecution action are SCS; Gill; the law firm Seltzer Caplan McMahon Vitek (Seltzer Caplan); and three Seltzer Caplan attorneys — Patrick Q. Hall, David M. Greeley and Tracy A. Warren. Ogunsalu appears to base his malicious prosecution claim primarily on Gill's filing of the TRO against him, and alleges that that the TRO application "utilize[d] false declarations" and was filed "without any probable cause [and] with the intention of setting [Ogunsalu] up to be arrested." The malicious prosecution complaint also describes the unlawful detainer complaint filed by SCS against Ogunsalu that allegedly was filed "without probable cause" and was "a frivolous complaint."
Acting in propria persona, Ogunsalu filed the defamation action 12 days later on February 16. The defendants named in that action are SCS, Gill, SCS's director of campus security Benjamin Harris, SCS's campus pastor Dr. Paul Fisher, SCS's director of student services Thomas Pittman, and SCS's assistant registrar Jerry Mell. The complaint alleges that on January 20, with the goal of having Ogunsalu arrested, Gill and SCS made defamatory statements to the El Cajon Police Department about Ogunsalu being delusional and paranoid. The complaint further alleges that declarations filed by Gill, Harris, Pittman and Mell in support of the TRO application contained the same defamatory statements. With respect specifically to Pittman, the complaint alleged that "on two occasions since April 2009" Pittman "has referred to [Ogunsalu] as 'one of those Nigerian scammers.' "
The complaint alleged that Harris was also director of security for Christian Unified School District, San Diego Christian College and Shadow Mountain Community Church, and it stated that Harris and the other individual defendants were being sued in their individual and official capacities. Accordingly, Christian Unified School District, San Diego Christian College and Shadow Mountain Community Church have appeared in this litigation as defendants and respondents.
Prior to the consolidation of the two lawsuits, the defendants in each action filed demurrers and special motions to strike under the anti-SLAPP statute (§ 425.16) and sought an award of attorney fees should they prevail on their anti-SLAPP motions. While the defendants' motions were pending, and shortly after the actions were consolidated on April 9, Ogunsalu executed and filed a stipulation to dismiss Seltzer Caplan and attorneys Hall, Greeley and Warren from the litigation with prejudice. A few weeks later, Ogunsalu voluntarily dismissed Mell with prejudice.
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.)
Ogunsalu later brought an ex parte application to withdraw his voluntary dismissal with prejudice of Seltzer Caplan, Hall, Greeley and Warren. The trial court apparently denied the ex parte application and, at the hearing at which it ruled on the anti-SLAPP motions, the trial court invited Ogunsalu to file a noticed motion to set aside the dismissal. Ogunsalu argues that the ex parte application should have been heard and should have been granted. We do not consider this argument because it is not within the scope of the issues presented in Ogunsalu's notice of appeal, which encompasses only the judgment against respondents on the anti-SLAPP motion. (See Cal. Rules of Court, rule 8.100(a).)
The trial court ruled on the demurrers and the anti-SLAPP motions on May 14, after having continued the hearing on those motions due to the consolidation of the actions.
In the malicious prosecution action, the trial court (1) granted the anti-SLAPP motions for all of the defendants, concluding that the single cause of action in the complaint was based on protected speech or petitioning activity and that Ogunsalu had not established a probability of prevailing; (2) took the demurrer off calendar because it was moot; and (3) awarded attorney fees to defendants in the amount of $12,682.50.
The trial court also noted that although Seltzer Caplan, Hall, Greeley and Warren had been voluntarily dismissed from the action by stipulation, it was nevertheless issuing a ruling in their favor on the anti-SLAPP motion for the purpose of determining whether they were entitled to recover attorney fees.
In the defamation action, the trial court (1) granted the anti-SLAPP motion for all of the defendants except Pittman; (2) took the demurrer off calendar as moot for all of the defendants except Pittman; (3) overruled Pittman's demurrer, but granted Pittman's motion to strike the punitive damages sought in the complaint, with leave to amend with respect to the punitive damages allegation, leaving Pittman as the only remaining defendant in the consolidated actions; and (4) awarded the prevailing defendants $4,584.54 in attorney fees.
The trial court also noted that although Seltzer Caplan, Hall, Greeley and Warren had been voluntarily dismissed from the action by stipulation, it was nevertheless ruling in their favor on the anti-SLAPP motion for the purpose of determining their right to recover attorney fees.
On May 20, Ogunsalu filed a notice of appeal, representing himself in propria persona, which states that Ogunsalu is appealing from "[a]n order of judgment under... section 425.16, " i.e., the anti-SLAPP statute.
On June 4 — approximately two weeks after the notice of appeal — the trial court ruled on a motion that defendants had filed on May 12, in which they sought an order declaring Ogunsalu to be a vexatious litigant. The trial court determined that Ogunsalu was a vexatious litigant. Pursuant to sections 391.1 and 391.7, it ordered that Ogunsalu would be required to (1) post security in the amount of $7,500 before filing any new pleading in the consolidated action; and (2) obtain leave of the presiding judge before filing a new litigation in propria persona. Three days later, on June 7, a different judge signed an order declaring Ogunsalu a vexatious litigant in another action Ogunsalu had filed against SCS and others in San Diego Superior Court (Ogunsalu v. Lewis (Super Ct. San Diego County, 2010, No. 37 2010 00065672 CU NP CTL).)
Among other things, that order provided that Ogunsalu "shall be prohibited from filing any new litigation without first obtaining leave from the presiding judge of the court where the litigation is proposed to be filed." An appeal in Ogunsalu v. Lewis (Super. Ct. San Diego County, supra, No. 37 2010 00065672 CU NP CTL) has been filed in this court. (Ogunsalu v. Lewis (D057837, app. pending).)
II
DISCUSSION
A. The Orders Declaring Ogunsalu To Be a Vexatious Litigant Do Not Require a Dismissal of This Appeal
As a threshold matter, we consider respondents' motion to dismiss the appeal on the ground that Ogunsalu has been declared a vexatious litigant. Respondents argue that as a vexatious litigant, Ogunsalu should not be able to proceed with this appeal because he has not posted security and did not obtain permission to file his opening brief.
In connection with their motion to dismiss the appeal, respondents request that we take judicial notice of (1) the vexatious litigant order in Ogunsalu v. Lewis (Super. Ct. San Diego County, supra, No. 37 2010 00065672 CU NP CTL); (2) the trial court docket in Ogunsalu v. Lewis and in the consolidated action; and (3) our own docket in this appeal. We grant the request to take judicial notice of the vexatious litigant order in Ogunsalu v. Lewis, supra, but deny the request as to the remaining items because they are unnecessary to our resolution of the motion to dismiss the appeal. (Jordache Enterprises, Inc. v. Brobeck, Phleger & Harrison (1998) 18 Cal.4th 739, 748, fn. 6 [declining to take judicial notice of materials not "necessary, helpful, or relevant"].)
We begin our analysis by reviewing the applicable statutes under which Ogunsalu was declared a vexatious litigant. "The vexatious litigant statutes, section 391 et seq., provide two remedies against vexatious litigants. The first is an order to furnish security, as described in section 391.3.... This remedy is obtained by bringing a motion under section 391.1, ... which requires a determination that the plaintiff is a vexatious litigant, and that 'there is not a reasonable probability that he will prevail [on the merits].' If an order to furnish security is issued, the action is automatically stayed from the time the motion was filed until 10 days after the plaintiff posts the required security. (§ 391.6.)... If the security is not posted, the action 'shall be dismissed as to the defendant for whose benefit it was ordered furnished.' (§ 391.4.)... [¶] Another remedy is found in section 391.7, which authorizes the court to 'enter a prefiling order which prohibits a vexatious litigant from filing any new litigation in the courts of this state in propria persona without first obtaining leave of the presiding judge of the court where the litigation is proposed to be filed.' (§ 391.7, subd. (a).)... The presiding judge may allow the filing of the new litigation 'only if it appears that the litigation has merit and has not been filed for the purposes of harassment or delay. The presiding judge may condition the filing of the litigation upon the furnishing of security for the benefit of the defendants as provided in Section 391.3.' (§ 391.7, subd. (b).)" (Holcomb v. U.S. Bank Nat. Assn. (2005) 129 Cal.App.4th 1494, 1499-1500 (Holcomb), fns. omitted.)
Here, the trial court issued both (1) an order under section 391.1, requiring that Ogunsalu post security before he is permitted to proceed with his litigation; and (2) an order under section 391.7, requiring a prefiling determination by the presiding judge before Ogunsalu files any new litigation. The superior court in Ogunsalu v. Lewis (Super. Ct. San Diego County, supra, No. 37 2010 00065672 CU NP CTL) issued the same type of order. As we will explain, these orders do not apply to the instant appeal.
Ogunsalu argues that the trial court was without jurisdiction to issue the vexatious litigant order in this matter because it was divested of jurisdiction by the notice of appeal, and the vexatious litigant order is accordingly void. We reject this argument. As we have explained, Pittman did not prevail on his anti-SLAPP motion or his demurrer, and thus this litigation was still active in the trial court as to Pittman at the time that the trial court made the vexatious litigant order. The order was therefore issued in an active superior court case and was not void.
As centrally important here, the filing of an appeal commences a " 'new litigation' " for the purpose of the statutes governing vexatious litigants. (McColm v. Westwood Park Assn. (1998) 62 Cal.App.4th 1211, 1220 (McColm) ["each appeal or writ petition is 'new' to this court when it is filed, thus qualifying as 'new litigation' within the meaning of section 391.7, subdivision (a)"].) Because an appeal is a new litigation, an order made in the trial court under section 391.1 requiring a vexatious litigant to post security before proceeding with the current litigation does not apply to the vexatious litigant's filing of an appeal. (See Holcomb, supra, 129 Cal.App.4th at p. 1500 [trial court's order requiring vexatious litigant to post security before resuming his prosecution of the case did not prevent him from filing an appeal challenging the security requirement].) Therefore, the trial court's order in this case pursuant to section 391.1, requiring Ogunsalu to post security before proceeding with the litigation, does not apply here, and there is no merit to respondent's argument that Ogunsalu should not be permitted to proceed with his appeal because he has not posted the security required by the trial court under section 391.1.
Instead, the type of order applicable to a vexatious litigant's filing of an appeal is an order made under section 391.7 requiring a vexatious litigant to obtain permission from the presiding judge before filing a new litigation. (McColm, supra, 62 Cal.App.4th pp. 1220-1221.) Specifically, "a plaintiff subject to a prefiling order [is] required to obtain permission from the Court of Appeal's presiding justice before commencing an appeal." (Holcomb, supra, 129 Cal.App.4th at p. 1500.) Although Ogunsalu is currently subject to an order requiring him to obtain permission before filing a new litigation, that order was not in effect at the time he filed this appeal on May 20. The vexatious litigant order came into existence for the first time on June 4. As one court has pointed out, in the portion of section 391.7 requiring a vexatious litigant to obtain approval of the presiding judge before filing "any new litigation" (§ 391.7, subd. (a)), "the word 'new' plainly refers to a civil lawsuit filed after entry of the prefiling order." (Forrest v. Department of Corporations (2007) 150 Cal.App.4th 183, 196.) This appeal was not filed after the entry of the prefiling order. Therefore, Ogunsalu was not required to obtain permission from the presiding justice before proceeding with this appeal.
Respondents' motion to dismiss Ogunsalu's appeal is denied.
B. The Trial Court Properly Granted the Anti-SLAPP Motions
We next consider Ogunsalu's challenge to the trial court's ruling granting the anti-SLAPP motions. " 'Review of an order granting or denying a motion to strike under section 425.16 is de novo.' " (Flatley v. Mauro (2006) 39 Cal.4th 299, 325 (Flatley).)
Under section 425.16 — the anti-SLAPP statute — a party may move to strike certain lawsuits that are "brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (§ 425.16, subd. (a).) Section 425.16, subdivision (b)(1) provides:
"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."
The statute sets forth " 'a two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.... If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.' [Citation.] 'Only a cause of action that satisfies both prongs of the anti-SLAPP statute — i.e., that arises from protected speech or petitioning and lacks even minimal merit — is a SLAPP, subject to being stricken under the statute.' " (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278-279.) On the first step, the party filing the anti-SLAPP motion has the burden of establishing that the plaintiff's claim arose from protected activity. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) On the second step, the party defending against the motion has the burden to establish a probability of prevailing on the claim. (Ibid.) A "court need not reach this second prong of the analysis if the 'arising from protected activity' requirement is not met." (Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 801.)
1. The Consolidated Actions Arise from Protected Activity
We first consider whether the malicious prosecution action and the defamation action against respondents arise from protected activity within the meaning of the anti-SLAPP statute.
As set forth in section 425.16, subdivision (e), the activity protected by the anti-SLAPP statute includes "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).) "A defendant who invokes either subparagraph (1) or subparagraph (2) of subdivision (e) of section 425.16... need not 'separately demonstrate that the statement concerned an issue of public significance.' " (Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 198.)
a. The Malicious Prosecution Action Arises from Protected Activity
The malicious prosecution action arises from protected activity because it is based on the filing of the TRO application and the unlawful detainer action, and thus arises from a "written or oral statement or writing made before a... judicial proceeding." (§ 425.16, subd. (e).) Indeed, "[t]he plain language of the anti-SLAPP statute dictates that every claim of malicious prosecution is a cause of action arising from protected activity because every such claim necessarily depends upon written and oral statements in a prior judicial proceeding." (Daniels v. Robbins (2010) 182 Cal.App.4th 204, 215; see also Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735 ["[S]ection 425.16 potentially may apply to every malicious prosecution action, because every such action arises from an underlying lawsuit, or petition to the judicial branch. By definition, a malicious prosecution suit alleges that the defendant committed a tort by filing a lawsuit.... Accordingly, every Court of Appeal that has addressed the question has concluded that malicious prosecution causes of action fall within the purview of the anti-SLAPP statute." (citation & fn. omitted)].)
Ogunsalu argues that the filing of the TRO was not protected activity under the anti-SLAPP statute because it was purportedly "illegal." For this argument, Ogunsalu relies on Flatley, supra, 39 Cal.4th 299, 324, which held that the anti-SLAPP statute "does not protect activity that, because it is illegal, is not in furtherance of constitutionally protected speech or petition rights." Ogunsalu argues that the act of filing the TRO application was illegal and thus not protected by the anti-SLAPP statute, because one of the remedies sought in the application was an " 'Emergency Kick Out Order' " requiring Ogunsalu to immediately vacate his dormitory room. According to Ogunsalu, the request for the emergency kick-out order was "illegal self help, " which Ogunsalu contends is not permitted when an unlawful detainer action is pending.
Ogunsalu's argument fails because the type of illegality referred to in Flatley is criminal activity. (Flatley, supra, 39 Cal.4th at pp. 324, 333 [identifying perjury, criminal extortion and burning down a building in political protest as the type of illegal activity that is not protected by the anti-SLAPP statute]; Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654 [in Flatley, "the Supreme Court's use of the phrase 'illegal' was intended to mean criminal, and not merely violative of a statute"].) The act of requesting an emergency kick-out order when an unlawful detainer action is pending is not criminal activity and thus the exception identified in Flatley does not apply.
b. The Defamation Action Arises from Protected Activity
The defamation action against respondents is based on Gill's statements to the police when attempting to have Ogunsalu arrested and the declarations filed in support of the TRO application.
Gill's statements to the police when attempting to have Ogunsalu arrested constitute protected activity under the anti-SLAPP statute because a report made to the police or other official agency is protected petitioning activity under section 425.16. (Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1511-1512; Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1570 (Siam).) Ogunsalu argues that Gill's statements to the El Cajon Police Department were illegal and thus not protected by the anti-SLAPP statute. (See Flatley, supra, 39 Cal.4th at p. 324.) However, Ogunsalu has provided no legal or factual basis for us to conclude that by speaking to the police, Gill engaged in illegal criminal activity. We therefore reject his argument, and we conclude that to the extent the defamation action is based on statements to the police, the action arises out of protected activity.
The declarations filed in support of the TRO application are unquestionably protected activity because they are a "written or oral statement or writing made before a... judicial proceeding." (§ 425.16, subd. (e).)
We thus conclude that the defamation action arises out of protected activity within the meaning of the anti-SLAPP statute.
2. Ogunsalu Has Not Established a Probability of Prevailing on His Claims
Having concluded that the defamation action and the malicious prosecution action arise from protected activity as defined in the anti-SLAPP statute, the second step in our analysis is to determine whether Ogunsalu has met his burden to demonstrate a probability of prevailing on his claims. " 'In order to establish a probability of prevailing on the claim (§ 425.16, subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion must " 'state[] and substantiate[] a legally sufficient claim.' " [Citations.] Put another way, the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." ' " (Taus v. Loftus (2007) 40 Cal.4th 683, 713.)
a. Ogunsalu Did Not Establish a Probability of Prevailing in the Malicious Prosecution Action
The trial court determined that, as a matter of law, Ogunsalu could not prevail in the malicious prosecution action. As we will explain, we agree.
The first factual basis for the malicious prosecution action is Gill's filing of the TRO application. The TRO application was a proceeding brought pursuant to section 527.6, which authorizes a temporary restraining order and injunction prohibiting harassment. Case law establishes that "the unsuccessful filing of a petition for an injunction under section 527.6 may not form the basis for a malicious prosecution action." (Siam, supra, 130 Cal.App.4th at p. 1574.) The reason for this rule is that "section 527.6 is used where the victim has been stalked, threatened or otherwise seriously harassed.... In such highly charged circumstances a successful defendant may be inclined to counter with a civil action against the unsuccessful plaintiff. Yet, ... the background of bitterness would make it difficult to distinguish between a malicious petition and one that is not malicious." (Id. at pp. 1572-1573, citations omitted.) Further, "section 527.6 provides a relatively simple and expeditious remedy, " but " '[p]ermitting a malicious prosecution claim to follow an unsuccessful section 527.6 petition, ... would frustrate this streamlined procedure' and potentially dissuade victims of harassment from seeking relief." (Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1423, quoting Siam, at p. 1573.) Therefore, Ogunsalu may not, as a matter of law, pursue a malicious prosecution action based on Gill's filing of the TRO application.
Ogunsalu argues that we should recognize an exception to the rule, expressed in Siam, supra, 130 Cal.App.4th at page 1574, that a civil harassment proceeding cannot form the basis for a malicious prosecution claim. According to Ogunsalu, an exception should be created when the civil harassment proceeding was illegal or unconstitutional. We find no basis for such an exception in Siam. Further, the litigation that would arise if such an exception were recognized would be inconsistent with the rationale underlying Siam's holding, namely preserving the streamlined procedure of a civil harassment action. (Siam, at p. 1573.) Significantly too, even if such an exception existed, it would not apply here because Ogunsalu has not established any illegality or unconstitutionality relating to Gill's filing of the TRO application.
The second factual basis for the malicious prosecution action is SCS's filing of an unlawful detainer action against Ogunsalu to evict him from his dormitory room. A successful malicious prosecution claim requires the plaintiff to prove " 'that the prior action (1) was commenced by or at the direction of the defendant and was pursued to a legal termination in his, plaintiff's, favor [citations]; (2) was brought without probable cause [citations]; and (3) was initiated with malice [citations].' " (Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 871-872.) As the trial court pointed out, Ogunsalu did not plead or submit evidence to indicate that the unlawful detainer action terminated in his favor. Therefore, Ogunsalu did not establish the probable merit of his claim that SCS's filing of the unlawful detainer action amounted to malicious prosecution.
b. Ogunsalu Did Not Establish a Probability of Prevailing in the Defamation Action
We also agree with the trial court's conclusion that Ogunsalu cannot, as a matter of law, prevail in the defamation action because the statements underlying his claim are absolutely privileged under Civil Code section 47, subdivision (b).
"[Civil Code s]ection 47 establishes a privilege that bars liability in tort for the making of certain statements. Pursuant to [Civil Code] section 47[, subdivision ](b), the privilege bars a civil action for damages for communications made '[i]n any (1) legislative proceeding, (2) judicial proceeding, (3) in any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding authorized by law and reviewable pursuant to [statutes governing writs of mandate], ' with certain statutory exceptions that do not apply to the present case. The privilege established by this subdivision often is referred to as an 'absolute' privilege, and it bars all tort causes of action except a claim for malicious prosecution." (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360 (Hagberg).)
To the extent the defamation action is based on statements made by Gill to the El Cajon Police Department when seeking to have Ogunsalu arrested, those statements are absolutely privileged. According to our Supreme Court, "when a citizen contacts law enforcement personnel to report suspected criminal activity and to instigate law enforcement personnel to respond, the communication... enjoys an unqualified privilege under [Civil Code] section 47[, subdivision ](b)." (Hagberg, supra, 32 Cal.4th at p. 364.) "[A] statement urging law enforcement personnel to investigate another person's suspected violation of criminal law, to apprehend a suspected lawbreaker, or to report a crime to prosecutorial authorities is shielded from tort liability to the same extent as a similar statement to administrative enforcement agencies [because] such communications are at least preparatory to 'any other official proceeding authorized by law..., ' " within the meaning of Civil Code section 47. (Hagberg, at p. 364.)
The other factual premise for the defamation action are statements made in the declarations filed in support of the TRO application. Those statements are also absolutely privileged. Civil Code section 47, subdivision (b) protects communications made "[i]n any... judicial proceeding." This privilege "applies to any publication or other communication required or permitted by law in the course of a judicial or quasi-judicial proceeding to achieve the objects of the litigation, whether or not the publication is made in the courtroom or in court pleadings, and whether or not any function of the court or its officers is involved." (Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1140.) "A party's pleadings obviously satisfy this test." (Id. at p. 1148.) The declarations were filed in a court proceeding, as part of the pleadings, to further the objects of the litigation. They therefore qualify as absolutely privileged.
Ogunsalu argues that because the trial court denied Pittman's anti-SLAPP motion and overruled Pittman's demurrer, the court impliedly found merit to the defamation and malicious prosecution claims against the respondents. We disagree. The trial court specifically determined that Ogunsalu could not, as a matter of law, prevail on his defamation and malicious prosecution claims against respondents. As the trial court explained, Pittman was differently situated because of his alleged statements that Ogunsalu was " 'one of those Nigerian scammers.' "
In sum, we conclude that the trial court properly granted respondents' anti-SLAPP motions.
C. Ogunsalu's Challenge to the Award of Attorney Fees Is Without Merit
Ogunsalu further seeks reversal of the trial court's award of attorney fees to respondents after they prevailed on their anti-SLAPP motions. Ogunsalu states, "Due to the illegality of the conducts [sic] of respondents [Gill] and [SCS] AND the fact that appellant meets the 'minimal merit' standard[, ] the award of attorney fees and costs should be overturned."
Section 425.16, subdivision (c) states that "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs." "The successful defendant on an anti-SLAPP motion is entitled to recover its attorney fees and costs as a matter of right." (Morrow v. Los Angeles Unified School Dist. (2007) 149 Cal.App.4th 1424, 1446 (Morrow), italics added.) Although his argument is not completely clear, Ogunsalu appears to contend that the ruling granting the anti-SLAPP motions should be reversed because — for reasons we have already discussed — the anti-SLAPP motions lacked merit. We reject this argument because, as we have explained, the trial court properly granted the anti-SLAPP motions.
D. Ogunsalu's Argument Concerning His Request for Discovery
Ogunsalu sought unsuccessfully to obtain relief from the discovery stay automatically imposed by section 425.16, subdivision (g) prior to the hearing on the anti-SLAPP motions. Ogunsalu argues that the trial court erred by not allowing him to conduct discovery.
Section 425.16, subdivision (g) states: "All discovery proceedings in the action shall be stayed upon the filing of a notice of motion made pursuant to this section. The stay of discovery shall remain in effect until notice of entry of the order ruling on the motion. The court, onnoticed motion and for good cause shown, may order that specified discovery be conducted notwithstanding this subdivision." (Italics added.)
On March 29, while the anti-SLAPP motions were pending, Ogunsalu filed an ex parte application to lift the discovery stay, seeking among other things, discovery of (1) police reports and (2) the transcript of the hearing on the TRO application filed by Gill. On April 8, the trial court denied the ex parte application.
On April 12, Ogunsalu filed a noticed motion for relief from the discovery stay, with the motion hearing set for June 11. In the same pleading, he moved to continue the hearing on the anti-SLAPP motions — which was scheduled for May 14 — to a date after the June 11 hearing on the discovery motion.
The motion to continue the anti-SLAPP motions was not made on an ex parte basis, but was included as part of the issues to be presented at the June 11 hearing.
On May 14, the trial court held a hearing on the anti-SLAPP motions, and granted them, rendering moot the motion for relief from the discovery stay. During the hearing on the anti-SLAPP motions, the trial court entertained Ogunsalu's argument that he should be permitted to conduct discovery. The trial court explained that "no discovery is going to the change the fact" that the defamation action and malicious prosecutions lacked merit as a matter of law. The trial court further stated that it was not inclined to continue the anti-SLAPP motions because those motions were statutorily required to be heard within a certain time frame, which had already been exceeded due to the delay caused by the consolidation of the actions.
Although Ogunsalu's appellate argument is somewhat unclear, he appears to contend that the trial court erred in failing to rule on his discovery motion prior to ruling on the anti-SLAPP motions. As we will explain, Ogunsalu's argument lacks merit.
It is well settled that a trial court lacks the inherent power to grant relief from the discovery stay imposed by section 425.16, subdivision (g) in the absence of a noticed motion. (Britts v. Superior Court (2006) 145 Cal.App.4th 1112, 1129.) At the time of the May 14 hearing on the anti-SLAPP motions, Ogunsalu's noticed motion for relief from the discovery stay was not to be heard for another four weeks. Ogunsalu did not bring an ex parte motion to shorten time on his noticed motion. Therefore, the trial court had no authority to grant relief from the discovery stay at the time it considered the anti-SLAPP motions on May 14.
Ogunsalu apparently understood that the hearing on the anti-SLAPP motions would have to be continued if he was to obtain a ruling on his discovery motion before the trial court ruled on the anti-SLAPP motions. Indeed, he asked for such relief in his discovery motion and at the hearing on the anti-SLAPP motions. The trial court had the discretion to grant such relief. (See Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 868 [the trial court may exercise its discretion to continue the anti-SLAPP hearing to a later date so that discovery can be completed]; cf. Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1247 [abuse of discretion standard of review is applied to a trial court's decision whether to grant relief from discovery stay under § 425.16, subd. (g)].) However, the trial court was well within its discretion to decline to continue the hearing on the anti-SLAPP motions pending the hearing on Ogunsalu's motion for relief from the discovery stay. As the trial court sensibly explained, because the defamation action and malicious prosecution action failed as a matter of law, Ogunsalu could not have defeated the anti-SLAPP motions regardless of whether he conducted discovery. Further, section 425.16, subdivision (b)(2) requires an anti-SLAPP motion to "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." The anti-SLAPP motions had already been pending since March 18 and March 22, at the time of the May 14 hearing. Therefore, the hearing on those motions was long overdue and the trial court reasonably refused to grant a continuance on that ground as well.
E. Ogunsalu's Challenge to the Vexatious Litigant Order Is Not Properly Before Us
In his appellate brief, Ogunsalu attempts to challenge the trial court's June 4 order declaring him to be a vexatious litigant.
As we will explain, Ogunsalu's challenge to the order declaring him a vexatious litigant is not properly before us because the notice of appeal does not specify the vexatious litigant order and was filed before the vexatious litigant order was made.
California Rules of Court, rule 8.100(a)(2) states that a notice of appeal "is sufficient if it identifies the particular judgment or order being appealed." Ogunsalu's notice of appeal did not identify the order declaring him a vexatious litigant as the particular judgment or order being appealed. Instead, the notice of appeal identified only the ruling on the anti-SLAPP motions, stating that Ogunsalu was appealing from "[a]n order of judgment under Code of Civil Procedure section 425.16."
All further rule references are to the California Rules of Court.
Although a "notice of appeal must be liberally construed" (rule 8.100(a)(2)), even a liberal construction of Ogunsalu's notice of appeal leads us to conclude that Ogunsalu could not have intended his notice of appeal to encompass the order declaring him a vexatious litigant. We reach this conclusion because the vexatious litigant order was made on June 4, which was two weeks after Ogunsalu filed his notice of appeal. Under those circumstances, there is no basis to conclude that Ogunsalu intended his notice of appeal to encompass a ruling on the vexatious litigant motion that was pending at the time. (See In re Ricky H. (1992) 10 Cal.App.4th 552, 558-559 [an appellant's notice of appeal that specified an earlier order would not be construed to encompass a later order when the later order had not been made, or even preliminarily considered, at the time the appeal was filed, and there was no indication that the appellant intended the notice of appeal to cover the possible subsequent order].)
While it is true that pursuant to rule 8.104(d) an appellate court may treat a premature appeal as encompassing an order or judgment that is filed after the notice of appeal is filed, that rule applies only in specific circumstances that are not present here. Rule 8.104(d) states: "(1) A notice of appeal filed after judgment is rendered but before it is entered is valid and is treated as filed immediately after entry of judgment. [¶] (2) The reviewing court may treat a notice of appeal filed after the superior court has announced its intended ruling, but before it has rendered judgment, as filed immediately after entry of judgment." Here, the notice of appeal was not filed "after judgment [was] rendered" (rule 8.104(d)(1)), and the notice of appeal was not filed "after the superior court... announced its intended ruling" on the vexatious litigant motion (rule 8.104(d)(2)). Therefore, rule 8.104(d) does not provide authority for us to deem the May 20 notice of appeal a premature notice of appeal from the June 4 vexatious litigant order. (See First American Title Co. v. Mirzaian (2003) 108 Cal.App.4th 956, 960-961 [rejecting application of former rule 2(d)(1) (now rule 8.104(d)(1)) when the notice of appeal did not meet the criteria for treatment as a premature notice of appeal].)
In sum, we will not consider Ogunsalu's challenge to the order declaring him to be a vexatious litigant because that issue is not within the scope of the issues encompassed by his notice of appeal.
F. Ogunsalu's Challenge to the Ruling on Pittman's Motion to Strike Is Not Properly Before Us
In his appellate brief, Ogunsalu attempts to challenge the trial court's ruling granting Pittman's motion to strike the prayer for punitive damages from the complaint in the defamation action.
Under section 904.1, subdivision (a), a party may appeal " '[f]rom a judgment, except... an interlocutory judgment, ' i.e., from a judgment that is not intermediate or nonfinal but is the one final judgment. [Citation.] Judgments that leave nothing to be decided between one or more parties and their adversaries, or that can be amended to encompass all controverted issues, have the finality required by section 904.1, subdivision (a). A judgment that disposes of fewer than all of the causes of action framed by the pleadings, however, is necessarily 'interlocutory' (Code Civ. Proc., § 904.1, subd. (a)), and not yet final, as to any parties between whom another cause of action remains pending." (Morehart v. County of Santa Barbara (1994) 7 Cal.4th 725, 740-741.)
At the time Ogunsalu filed his notice of appeal, no final judgment had been entered as to Pittman, as the defamation cause of action was still pending against him. Therefore, the ruling on the motion to strike constituted a nonappealable interlocutory order (§ 904.1, subd. (a)(1)), and we will not consider Ogunsalu's challenge to that ruling on appeal.
Ogunsalu also attempts to challenge the trial court's disposition of the demurrers filed by respondents. However, as we have explained, the trial court did not rule on the demurrers. It took them off calendar, without prejudice, explaining that they were moot. Therefore, there is no ruling for us to review.
G. Respondents Are Entitled to Attorney Fees Incurred in Responding to Ogunsalu's Appeal of the Ruling on the Anti-SLAPP Motions
Finally, we address respondents' argument they are entitled to an award of attorney fees on appeal.
When attorney fees are awarded to a defendant in a successful anti-SLAPP motion pursuant to section 425.16, subdivision (c)(1), "[t]he right to attorney fees extends to attorney fees on appeal as well." (Morrow, supra, 149 Cal.App.4th at p. 1446.) Thus, as prevailing parties in Ogunsalu's appeal of the ruling on the anti-SLAPP motions, respondents are entitled to their attorney fees incurred on appeal. "However, the amount of such fees is to be determined by the trial court upon motion by [respondents]." (Ibid.) Therefore, respondents should file an application in the trial court to obtain an award of fees.
Respondents also argue that we should award them attorney fees as a sanction pursuant to section 907 and rule 8.276. Section 907 states that "[w]hen it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just." Implementing this provision, rule 8.276(a) gives the appellate court the authority to "impose sanctions... on a party... for: [¶] (1) Taking a frivolous appeal or appealing solely to cause delay." Respondents did not file a separate motion for sanctions as required under rule 8.276, and we therefore will not impose sanctions under section 907 or rule 8.276.
DISPOSITION
The judgment is affirmed.
WE CONCUR: McCONNELL, P. J., AARON, J.