Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court No. 0605875-4 of Fresno County. Adolfo M. Corona, Judge.
Wallace & Madden and John B. Wallace for Defendant and Appellant.
James P. Lough; Sagaser, Jones & Helsley, Howard A. Sagaser, Patrick D. Toole; Jones Helsley and Patrick D. Toole for Plaintiffs and Respondents.
OPINION
VARTABEDIAN, Acting P.J.
This is an appeal from an order denying a special motion to strike (see Code Civ. Proc., § 425.16 [all further section references are to this code]) filed by defendant and appellant William Joseph Davis (appellant). An order denying such a motion is appealable. (Id. at subd. (i).) We conclude the trial court did not abuse its discretion in denying the motion as untimely, and we reject appellant’s remaining contentions. Accordingly, we will affirm the order denying the motion.
Facts and Procedural History
Plaintiffs and respondents are 11 homeowners who, over a decade ago, publicly opposed the construction of an apartment complex in their neighborhood. They, along with the City of Fresno and several of its officials, were sued in federal court in 1997 by the developers of the project (A.H.D.C. v. City of Fresno (E.D.Cal., No. CK 97-05498)). The developers were represented by appellant.
The plaintiffs are: Robert “Todd” Tolbert, Stephen V. Henson, Sharon L. Henson, Hernand J. Koubratoff, Laura A. Mather, Vernon R. Wolley, Orie Reed, Barnell Caldwell, Diane R. Daniels, Richard Robinson, and Janet Reid-Bills. Plaintiffs each seek separate damages; in the trial court and on appeal all plaintiffs are represented by the same counsel.
In 1998, respondents sued the developers in state court for abuse of process, intentional and negligent infliction of emotional distress, invasion of privacy, defamation, and declaratory relief. That case -- this case -- was stayed by the district court during the pendency of the federal case.
The federal case was vigorously litigated in the district court and the circuit court of appeals. It was finally resolved on the merits in a published decision of the Ninth Circuit Court of Appeals, Affordable Housing v. City of Fresno (9th Cir. 2006) 433 F.3d 1182. After remand, the district court lifted the stay of respondents’ state court action in 2007.
On September 2, 2008, respondents filed a third amended complaint. The causes of action were the same as in the original complaint, except that the declaratory relief cause of action was dropped and a malicious prosecution cause of action was added. In addition, the third amended complaint added appellant, who was the attorney for the developers in the federal court action, as a defendant. According to a proof of service dated September 5, 2008, and filed on October 1, 2008, a registered process server personally served the third amended complaint on appellant on September 4, 2008.
On October 3, 2008 -- 30 days after September 4, 2008 -- appellant’s counsel filed an application for “a 30-day extension of time within which to respond to the third amended complaint, which was served on 09/05/2008.” The same day, the court ordered that the time for response “is extended 30 days.” On October 6, 2008, the Monday following October 3, 2008, respondents’ counsel filed a letter objecting to the application for extension of time. In that letter, respondents’ counsel stated that the complaint was served on “September 5, 2008.”
Thirty days from October 3 is November 2, a Sunday in 2008. Accordingly, for purposes of the present case, November 3, 2008, was both the 60th day after service of the complaint and 30th day after the order extending time. (See § 12a.)
On November 4, 2008, appellant filed an incomplete draft of a notice of special motion to strike under section 425.16. This document, which appellant acknowledges was filed in error, was never served on respondents. On November 5, 2008, appellant served by overnight courier an “amended” notice of special motion to strike and this amended notice was filed on November 6, 2008. The anti-SLAPP motion was set for hearing on December 18, 2008.
A special motion to strike is authorized when a defendant contends an action is a so-called SLAPP suit, a “strategic lawsuit against public participation.” Section 425.16, subdivision (b)(1) provides for dismissal of a cause of action arising from constitutionally protected petition or free speech activities “unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” The special motion to strike is usually referred to as an anti-SLAPP motion.
We note that appellant’s opening brief gives as the record citation in support of these facts his own declaration in reply to the opposition to the motion to strike. The reply and declaration were ruled untimely and the court stated it “did not consider the late filings.”
Respondents filed their opposition to the anti-SLAPP motion on December 5, 2008. In that opposition, in addition to opposing the motion on the merits, respondents contended that the notice of motion was not filed within 60 days of service of the third amended complaint, as required by section 425.16, subdivision (f) (“The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.”). In his untimely reply to the opposition, appellant did not address respondents’ claim the motion was untimely. (Appellant did argue that by “opposing this motion on its merits … [respondents] waived [their] claims of inadequate notice and service. … Regardless, this motion was properly filed and served.” There was no elaboration of this argument.)
On December 16, 2008, appellant filed a notice of intent to waive oral argument on the motion, submitting the motion for decision. On December 18, 2008, the court filed its tentative decision, and a minute order was entered adopting the tentative decision. The court denied the anti-SLAPP motion on the basis that it was untimely. The court stated: “At no time prior to or concurrent with the filing of the motion did [appellant] request leave to file a late anti-SLAPP motion or assert any justification for the late filing.”
Appellant filed a timely notice of appeal.
Discussion
It is fundamental that a judgment or order of the trial court is presumed correct and that an appellant must affirmatively show error in order to be entitled to relief. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 355, p. 409.) In order to show that the trial court abused its discretion, an appellant must show the court has exceeded the bounds of reason or contravened the uncontradicted evidence. (Richardson v. Superior Court (2008) 43 Cal.4th 1040, 1048.)
The statute in question in the present case states a rule: a defendant may file an anti-SLAPP motion but must do so within “60 days of the service of the complaint.” (§ 425.16, subd. (f).) A defendant has no right to file an anti-SLAPP motion later than 60 days after service of the complaint (Lam v. Ngo (2001) 91 Cal.App.4th 832, 840), although “in the court’s discretion” the motion may be filed at a later time on terms the trial court deems proper (§ 425.16, subd. (f)). Thus, where the trial court has ruled an anti-SLAPP motion untimely, and thereby impliedly has exercised its discretion not to extend time for the filing of such a motion, an appellant must establish on appeal the circumstances before the trial court that made its decision an abuse of discretion.
Appellant contends the standard of review is not abuse of discretion. He contends we review “the denial of an anti-SLAPP motion” de novo on appeal. While that is generally true -- grant or denial of an anti-SLAPP motion generally involves questions of law that are reviewed de novo on appeal (see Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326)--that proposition does not help appellant: Reviewing the issue de novo and the evidence in the light most favorable to respondents (id. at p. 326), we conclude an untimely anti-SLAPP motion is to be denied as a matter of law unless the trial court finds good cause to extend the time for filing the motion (see Lam v. Ngo, supra, 91 Cal.App.4th at p. 840).
Thus, the only issues before us are whether appellant has established that the trial court erred in deciding that the motion was untimely and whether there were circumstances before the trial court that made its failure to extend time for filing the motion an abuse of discretion. We will conclude the motion was untimely and that there were no circumstances before the court that would have supported a discretionary extension of time for filing the motion.
It is of some interest to note that neither here nor in the trial court has appellant ever actually claimed the third amended complaint was served on him on September 5, 2008, or on any other date than the date, September 4, 2008, reflected in the proof of service filed in the trial court. Instead, appellant bases his September 5 claim on a mistaken service date stated by respondents’ counsel in a letter to the trial court concerning a matter other than the timeliness of the motion. Appellant never presented any evidence that September 4, 2008, was not the service date. In any event, in deciding an anti-SLAPP motion, the court views the evidence in the light most favorable to the plaintiff. (Flatley v. Mauro, supra, 39 Cal.4th at p. 326.)
Appellant contends respondents “waived any dispute as to that service date” by making the mistake in counsel’s unrelated letter objecting to appellant’s request for an extension of time to respond to the complaint. We reject this contention for two reasons. First, the letter from respondents’ counsel containing the mistaken service date was not filed until after the court already had granted the 30-day extension. Thus, neither appellant nor the court relied on counsel’s statement. Second, it was appellant who failed to contest the issue of the date of service in the trial court when he had the opportunity to do so.
Appellant also contends respondents waived their objection to the timeliness of the anti-SLAPP motion because they “briefed the merits of Davis’ SLAPP motion about the substantive subjects raised in Davis’ SLAPP motion as to the litigation privilege, statute of limitations, probable cause and malice issues, all of which were substantive issues.” Appellant cites Carlton v. Quint (2000) 77 Cal.App.4th 690, 697-698, and related cases in support of his contention. Those cases, however, address a different issue, namely, how a party should proceed if it claims that, due to faulty notice, it has not had time to properly oppose a motion. (See Monarch Healthcare v. Superior Court (2000) 78 Cal.App.4th 1282, 1286.) Here, respondents raised the contention that the anti-SLAPP motion was not authorized by statute because the motion was not timely filed. (See Carlton v. Quint, supra, at p. 698 [suggesting procedure by opposing party to preserve timeliness issue].) It was appellant who failed to respond to this contention and it was he, if anyone, who waived this claim in the trial court.
Appellant also contends the anti-SLAPP motion was not untimely because the trial court, in granting appellant’s request for a 30-day extension of time to “respond” to the third amended complaint, caused the order to be served by mail upon appellant. Appellant says the net effect of such service was to extend his date for response a further five days, pursuant to section 1013, subdivision (a). This contention is meritless. First, the statute only applies to papers “served,” which would not include an order extending time, which is merely “mailed” to the parties as notification of action by the court. (See Cal. Rules of Court, rule 3.1109(a); Fritts v. County of Kern (1982) 135 Cal.App.3d 303, 307.) Second, section 1013, subdivision (a) only applies to time periods “prescribed by statute or rule of court.” An extension of time to respond to a complaint is not a time period prescribed by statute or rule; the time period is established directly by court order.
In his reply brief, appellant contends the court ruled at a November 13, 2008, hearing that the anti-SLAPP motion was timely served. Not so. The question at that hearing was whether the anti-SLAPP motion had been served at all. It will be recalled that appellant filed an incomplete draft of the motion on November 4, 2008, and this document was never served on respondents. By the November 13 hearing, the “amended” motion had been served on them. In any event, appellant chose not to appear at this hearing and it is difficult to perceive any basis upon which he could claim to have relied on any statement by the court at that hearing. Although appellant further contends he was “unaware” timeliness of the motion was a live issue, respondents specifically made that argument in their opposition to the anti-SLAPP motion, asserting the same theory of untimeliness that the trial court relied on in denying the motion.
Appellant’s contention that Lam v. Ngo, supra, 91 Cal.App.4th 832, holds that the statute is applicable to orders extending time is erroneous. In that case, the court held the 60-day period for filing an anti-SLAPP motion is extended for five days by service of an amended complaint by mail. (Id. at p. 842.) Thus, in Lam, the document was served by a party and service of the document began the running of a statutory time period, namely, the 60-day period for filing an anti-SLAPP motion.
Finally, appellant contends the court ruled the anti-SLAPP motion untimely in retaliation for appellant’s vigorous assertion of procedural remedies earlier in the litigation. We begin by reiterating that appellant at no time requested an extension of the statutory period to file the motion, and at no time did appellant proffer any reason why the motion was late. Thus, appellant did not ask the court to exercise its discretion to permit a late anti-SLAPP motion. The untimeliness of the motion and the absence of any showing of good cause was the basis for the trial court’s decision. The court’s comment concerning appellant’s prior assertions of his procedural rights was simply an expression of the court’s legitimate inference that appellant’s failure to assert good cause on this occasion was an indication of the absence of good cause. There is no indication in the order, or elsewhere in the record, that the court acted punitively in denying appellant’s anti-SLAPP motion. In fact, the court had been extremely solicitous of appellant’s rights at an earlier hearing that appellant’s counsel inexplicably failed to attend in person or telephonically.
Respondents have requested an award of attorney fees from appellant and the imposition of sanctions. We deny all of these requests.
Respondent also filed a motion to dismiss the appeal on the basis it had “no possibility of success.” We deferred consideration of that motion and we now deny the motion to dismiss. The parties have requested judicial notice of certain materials and those requests are all granted, to the extent the requests have not previously been granted.
Section 425.16, subdivision (c) requires an award of attorney fees to a party opposing an anti-SLAPP motion if the court determines that the motion is frivolous or is solely intended to cause unnecessary delay. We have reviewed the anti-SLAPP motion filed in the trial court and find that, while it was untimely, it was not frivolous. The motion raised substantial issues concerning the statute of limitations and concerning immunity afforded by the litigation privilege of Civil Code section 47, as well as other possible issues. While we do not decide the merits of these issues, and the trial court may be presented with some of them on demurrer or summary judgment motion, we do conclude the issues are not frivolous.
Similarly, while appellant clearly is “grasping at straws” on appeal by raising some issues not raised in the trial court and raising other issues that clearly have no merit, in the unusual circumstances of the present case we cannot say the appeal was frivolous or was taken for purposes of delay. In particular, although we conclude the trial court did not act punitively in denying the anti-SLAPP motion, we think a contrary conclusion could reasonably be drawn by a party looking at the matter through the lens of hard-fought litigation.
Disposition
The order denying appellant’s anti-SLAPP motion is affirmed. Motions for attorney fees and sanctions are denied. Respondents are awarded costs on appeal.
WE CONCUR: GOMES, J., HILL, J.