Opinion
H050167
03-30-2023
ROYAL COACH TOURS, INC. Plaintiff and Respondent, v. NICK MILETAK, Defendant and Appellant.
NOT TO BE PUBLISHED
Santa Clara County Super. Ct. No. 20CV364698
Greenwood, P. J.
Respondent Royal Coach Tours, Inc. (Royal Coach) sued appellant Nick Miletak for malicious prosecution after prevailing in an action filed by Miletak. The trial court denied Miletak's special motion to strike brought under Code of Civil Procedure section 425.16 as untimely. Miletak appeals the denial of the motion. We affirm the trial court's order.
I. Factual and Procedural Background
This is the second appeal in an on-going dispute between Miletak and Royal Coach stemming from Miletak's short-lived employment with the company. As detailed in our opinion in Miletak v. Royal Coach Tours (Aug. 16, 2019, H043999) [nonpub. opn.] (Miletak), Royal Coach, a charter bus services provider, hired Miletak as a student trainee in its commercial driver's license course. (Miletak, at pp. 1-2.) After a dispute about the nature of the position, when he would begin training, and how much he would be paid, Miletak resigned and demanded payment for unpaid wages before beginning the training in earnest. (Id. at pp. 2-6.) He thereafter filed a claim with the Equal Employment Opportunity Commission alleging race and age discrimination, a claim for unpaid wages with the Labor Commissioner, an unemployment insurance claim, and a civil action against Royal Coach (Miletak v. Royal Coach Tours, Inc. (Super. Ct. Santa Clara County, 2015, No. 2015-1-CV-279978) (the 2015 civil action). (Miletak, at p. 6.)
Miletak's request for judicial notice is granted in part. We take judicial notice of our opinion in appeal number H043999 (Exh. A to Miletak's request). We deny the request as to exhibits B, C, and D, as they are already part of the clerk's transcript in this appeal. The remainder of the request is denied, as Miletak has not demonstrated that exhibits E (the order on Royal Coach's demurrer to Miletak's complaint in the 2015 civil action), F (a document entitled "Training Notification" signed by Miletak in 2015), and G (the reporter's transcript from an April 2016 hearing in the 2015 civil action) are the proper subject of judicial notice, and/or that the exhibits are relevant to the issue on appeal. (See Doe v. City of Los Angeles (2007) 42 Cal.4th 531, 544.)
In the 2015 civil action, Miletak alleged causes of action for promissory estoppel and constructive discharge. (Miletak, supra, at p. 7.) At trial, the court granted Royal Coach's motion for non-suit as to the constructive discharge cause of action after Miletak's opening statement, granted a motion for judgment on the promissory estoppel claim after hearing Miletak's evidence, and dismissed the action with prejudice. (Id. at pp. 8-9.) This court affirmed the judgment of dismissal on appeal. (Id. at pp. 2, 27.)
In March 2020, Royal Coach filed the underlying complaint against Miletak, alleging one cause of action for malicious prosecution based on its contentions that Miletak commenced and prosecuted his legal actions against Royal Coach without probable cause, the actions were brought with malicious intent, each action was resolved in Royal Coach's favor, and Miletak proceeded with his appeal despite insufficient probable cause to support his claims. In September 2020, the trial court overruled Miletak's demurrer to the complaint. Miletak answered the complaint in December 2020, after the trial court entered and then set aside default against Miletak.
The complaint, demurrer, default, and answer are not part of the record on appeal. Other pleadings in the record include some information about the substance of these pleadings.
Miletak filed the special motion to strike that underlies this appeal in March 2022, alleging that Royal Coach's complaint arose from acts undertaken by Miletak in furtherance of his constitutional right to free speech in connection with a public issue, as defined in Code of Civil Procedure section 425.16, subdivisions (e)(2), (3), and (4), and that Royal Coach could not establish a probability of prevailing on its claim. Miletak also argued that the malicious prosecution claim was barred by the litigation privilege set forth in Civil Code section 47, subdivision (b).
Subsequent undesignated statutory references are to the Code of Civil Procedure unless otherwise indicated.
In his opening brief, Miletak references a motion for sanctions under section 128.7, which he filed shortly after the motion to strike. Miletak does not raise arguments on appeal regarding that motion or the outcome thereof. The record indicates the court denied the motion. We do not address that order in this opinion.
Royal Coach opposed the motion to strike on the grounds that Miletak did not file it within 60 days of service of the complaint, as required by section 425.16, subdivision (f), and did not seek leave from the trial court to file it at a later date. Royal Coach argued that it was within the trial court's discretion to refuse to hear the merits of the untimely motion, claiming that Miletak waited until the matter was set for trial in August 2022 to file the motion.
In reply, Miletak asked the trial court to exercise its discretion to consider the motion on its merits, arguing that the potential for abuse of the anti-SLAPP process that underlies the reason for the 60-day limit in section 425.16, subdivision (f) was not a concern present in this case. Miletak stated his willingness to waive his right to appeal from the resulting order if the trial court allowed for the late filing of the motion.
"A 'SLAPP' is a' "strategic lawsuit against public participation"' [citation], and special motions to strike under section 425.16 are commonly referred to as '[a]nti-SLAPP motions' [citation]." (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1007 (Bonni).)
Following a hearing on a contested tentative ruling, the trial court denied Miletak's motion to strike as untimely. In its order, the court referenced the legislative intent of the anti-SLAPP motion-to end SLAPP lawsuits early and without great cost to the defendant-and noted that late-filed anti-SLAPP motions do not fulfill the statutory purpose if they are filed after the parties have incurred substantial expense in litigating the matter. Citing the lack of a request by Miletak for an extension of time to file the motion, and any explanation for the delay in filing, the court declined to exercise its discretion to consider the merits of the motion. The court found support for its decision in Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637 (Newport Harbor) and Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772 (Platypus Wear), finding that "[Miletak's] circumstances mirror[ed] that of the moving party in Newport Harbor." Moreover, the court noted that Miletak filed "two demurrers, a motion for summary judgment, a motion to set aside default judgment, and an answer" in 2020, as well as two motions for sanctions between 2020 and 2022, and failed to provide an explanation for the untimely anti-SLAPP motion."
Although the majority of these pleadings are not part of the record on appeal, the register of actions included in the clerk's transcript confirms the accuracy of the trial court's statement.
Miletak timely filed a notice of appeal from the order denying the motion to strike, which is appealable pursuant to section 904.1, subdivision (a)(13). (Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174, 1187 (Hewlett-Packard).)
We limit our discussion to Miletak's contention that the trial court erred in denying the anti-SLAPP motion. Miletak also argues that Royal Coach's malicious prosecution claim relies on actions by Miletak that are protected by the litigation privilege, and that the malicious prosecution claim is barred in its entirety by the doctrine of res judicata. To the extent either of these arguments are separate from his contention that his anti-SLAPP motion was meritorious, they are appropriately raised in an appeal from the final judgment, if any, and not from the order denying the motion to strike.
Section 425.16 "is 'designed to protect defendants from meritless lawsuits that might chill the exercise of their rights to speak and petition on matters of public concern. [Citations.] To that end, the statute authorizes a special motion to strike a claim "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." (§ 425.16, subd. (b)(1).)' [Citation.]" (Bonni, supra, 11 Cal.5th pp. 10081009.) Such a motion "may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper." (§ 425.16, subd. (f).) Thus, the issue before us is whether the trial court abused its discretion by failing to consider Miletak's motion to strike on the merits based on his failure to timely file the motion or seek leave to file it more than 60 days after service of the complaint. We conclude that the trial court did not err here.
Miletak argues that this court should review the trial court's order de novo, citing cases addressing the applicable standard of review when the trial court rules on an anti-SLAPP motion on the merits. However, when the trial court denies a motion as untimely under section 425.16, subdivision (f), the proper standard of review is abuse of discretion. (See Hewlett-Packard, supra, 239 Cal.App.4th at pp. 1187-1188; Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 682; Morin v. Rosenthal (2004) 122 Cal.App.4th 673, 681-682; cf. Starview Property, LLC v. Lee (2019) 41 Cal.App.5th 203, 208, fn. 4 [while a trial court's decision to permit the untimely anti-SLAPP motion is reviewed for abuse of discretion, whether a motion was timely filed in the first instance is a legal question reviewed de novo].)
"In the anti-SLAPP context, courts have identified two particular ways in which a refusal to entertain a late anti-SLAPP motion might be shown to constitute an abuse of discretion: (1) if 'the grounds given by the court . . . are inconsistent with the substantive law of section 425.16,' and (2) if the court's application of the statute to the facts of the case is 'outside the range of discretion conferred upon the trial court under that statute, read in light of its purposes and policy.' ([Citation,] italics added.) In other words, a claim that a trial court abused its discretion by failing to entertain a late anti-SLAPP motion requires the appellant to demonstrate that the trial court applied the statute in a manner that is incompatible either with the statute's actual mandate, or with its 'purposes and policy.' [Citation.]" (Hewlett-Packard, supra, 239 Cal.App.4th at pp. 1187-1188.) Miletak contends that denial of the anti-SLAPP motion did not support the policies underlying section 425.16. We are not persuaded.
The purpose of the anti-SLAPP motion is to weed out meritless claims arising from protected activity at an early stage in order to limit the costs of defending against a SLAPP lawsuit. (Newport Harbor, supra, 4 Cal.5th at p. 642.) However, the motion "also 'present[s] the possibility for abuse of the anti-SLAPP statute.' [Citation.]" (Id. at p. 645.) An anti-SLAPP motion can serve to delay the underlying public participation litigation in two ways. First, the filing of the motion stays discovery until the trial court rules on the motion. (§ 425.16, subd. (g).) Second, the statute provides for the immediate appeal of an order granting or denying the anti-SLAPP motion, and such an appeal" 'automatically stays all further trial court proceedings on the merits upon the causes of action affected by the motion.' [Citation.] '[S]ome anti-SLAPP appeals will undoubtedly delay litigation even though the appeal is frivolous or insubstantial.... [S]uch a result may encourage defendants to "misuse the [anti-SLAPP] motions to delay meritorious litigation or for other purely strategic purposes."' [Citation.]" (Newport Harbor, at p. 645.)
As a result, allowing an anti-SLAPP motion to be heard well after the deadline set forth in the statute can undermine the purpose of the statute. In Newport Harbor, the Supreme Court determined that an anti-SLAPP motion filed two years after the complaint was not timely except as to new causes of action alleged for the time in an amended complaint. "[M]uch litigation, including discovery, had already been conducted for two years before the anti-SLAPP motion brought it to a halt. It is far too late for the anti-SLAPP statute to fulfill its purpose of resolving the case promptly and inexpensively. 'An anti-SLAPP motion is not a vehicle for a defendant to obtain a dismissal of claims in the middle of litigation; it is a procedural device to prevent costly, unmeritorious litigation at the initiation of the lawsuit.' [Citation.]" (Newport Harbor, supra, 4 Cal.5th at p. 645.)
Like the trial court, we see no basis on which to distinguish Newport Harbor from the case before us. By the time Miletak filed the anti-SLAPP motion, he had litigated "two demurrers, a motion for summary judgment, a motion to set aside default judgment, and an answer" and "two motions for sanctions." The court had already set the matter for trial. Miletak argues, despite this evidence from the record, that the case was in its infancy, and that "very limited litigation has occurred since the commencement of the case and the opportunity to avoid the significant expense of preparing for trial still exists." Miletak argues "it is completely clear that the pending action [was] still in the early stages of litigation" when he filed the anti-SLAPP motion.
Miletak cites no evidence in the record that refutes the trial court's assessment of the mature status of the case. "[T]he burden is on an appellant to demonstrate, on the basis of the record presented to the appellate court, that the trial court committed an error that justifies reversal of the judgment. [Citations.] 'This is not only a general principle of appellate practice but an ingredient of the constitutional doctrine of reversible error.' [Citation.] 'In the absence of a contrary showing in the record, all presumptions in favor of the trial court's action will be made by the appellate court. "[I]f any matters could have been presented to the court below which would have authorized the order complained of, it will be presumed that such matters were presented."' [Citation.]" (Jameson v. Desta (2018) 5 Cal.5th 594, 609 (Jameson).) Miletak did not include in the record on appeal most of the pleadings referenced by the trial court in declining to exercise its discretion to consider the late-filed anti-SLAPP motion. We thus presume that those pleadings sufficiently demonstrated the time and expense that had already been invested in the litigation between 2020 and 2022, such that it was "far too late for the anti-SLAPP statute to fulfill its purpose of resolving the case promptly and inexpensively." (Newport Harbor, supra, 4 Cal.5th at p. 645.)
Nor on the record before us does Miletak provide to the trial court an explanation for his delay in filing the motion to strike. (See Platypus Wear, supra, 166 Cal.App.4th at p. 787.) In Platypus Wear, the appellate court determined the trial court abused its discretion in hearing an untimely anti-SLAPP motion when the moving party "failed to provide a compelling explanation" for not filing the motion earlier in the case, and "did not articulate any extenuating circumstances justifying a late filing." (Id. at p. 776.) Miletak argues that he would prevail on the anti-SLAPP motion on the merits. But this does not explain the delayed filing of the motion and does not demonstrate that the trial court applied the statute in a manner incompatible with the purpose or policies of section 425.16, specifically, to" 'prevent costly, unmeritorious litigation at the initiation of the lawsuit.' [Citation.]" (Newport Harbor, supra, 4 Cal.5th at p. 645.)
Recognizing that "[t]he concern for abuse of the anti-SLAPP motion is chief among concerns in allowing for late filing of the motion," Miletak argues that he "attempted to quash any concern that the trial court might find for abuses of the late filing of the anti-SLAPP motion" by voluntarily agreeing to waive his right to appeal from an order issued on the merits of the motion. Even assuming his offer to waive appeal mitigated one form of delay identified in Newport Harbor, Miletak does not address the other form of delay which necessarily impacted this matter-the stay of discovery engendered by the anti-SLAPP motion. (Newport Harbor, supra, 4 Cal.5th at p. 645.) The trial court set the matter for trial in August 2022 before Miletak filed the motion to strike. Pursuant to section 425.16, subdivision (g), discovery was stayed as soon as Miletak filed his motion to strike. This appeal has further served to stay the proceedings. (Newport Harbor, at p. 645.) Miletak waited two years to file the anti-SLAPP motion, which has since delayed the proceedings an additional year. This additional delay further supports the trial court's determination that Miletak's motion to strike was filed too late to fulfill the purpose of the anti-SLAPP statute.
Miletak has not met his burden to show "that the trial court applied [section 425.16] in a manner that is incompatible either with the statute's actual mandate, or with its 'purposes and policy.' [Citation.]" (Hewlett-Packard, supra, 239 Cal.App.4th at pp. 1187-1188.) Thus, he has not shown that the trial court abused its discretion in denying his motion to strike as untimely.
III. Disposition
The May 24, 2022 order denying Miletak's motion to strike Royal Coach's complaint pursuant to section 425.16 is affirmed.
WE CONCUR: Grover, J. Lie, J.