Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Bernardino County, Frank Gafkowski, Judge, No. CIVSS705138
O'ROURKE, J.
The trial court sustained defendant's demurrer with leave to amend, and ruled a concurrently filed anti-SLAPP motion under Code of Civil Procedure section 425.16 was moot but could be refiled upon the filing of amended pleadings. Defendant Kimberlyn Hearns purports to appeal from the anti-SLAPP order, which we conclude is not appealable. Accordingly, we dismiss this appeal.
All statutory references are to the Code of Civil Procedure unless otherwise stated. SLAPP is an acronym for strategic lawsuit against public participation. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, fn. 1.)
FACTUAL AND PROCEDURAL BACKGROUND
In January 2008, Danuta Tuszynska, an attorney, filed the first amended complaint against the City of San Bernardino (City) and Hearns, a City police officer employee, setting forth causes of action for defamation, intentional interference with prospective economic advantage; and intentional infliction of emotional distress. Tuszynska alleged that she previously represented Hearns in a lawsuit against the San Bernardino Police Department but Hearns terminated her representation and subsequently slandered her in a letter to a journalist stating Hearns's belief she was "bought off" or "scared off" by "people supportive of the San Bernardino Police Department."
The complaint is file-stamped January 4, 2007, but the year appears to be incorrect because the date on both the complaint and its proof of service is January 3, 2008.
Tuszynska labels the cause of action "intentional interference with prospective economic relations." We use the term "intentional interference with prospective economic advantage," which is the tort recognized in California case law. (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1281.)
In March 2008, Hearns, in propria persona, attacked the first amended complaint in three concurrently filed motions: (1) a motion to strike the complaint, (2) a demurrer, and (3) an anti-SLAPP motion. Tuszynska opposed the motions. In May 2008, the trial court struck the attorney's fees request from the complaint. It sustained Hearns's demurrer with leave to amend. In a separate minute order, the court ruled on the anti-SLAPP motion as follows: "KIMBERLYN HEARNS's... SPECIAL MOTION TO STRIKE is heard. (Anti-SLAPP motion) Court renders motion MOOT. [Hearns] may refile his anti-SLAPP motion after service of [Tuszynska's] amended complaint." The court elaborated on this ruling in the following exchange:
Hearns's notice of appeal does not reference the trial court's orders on his motion to strike and the demurrer.
"[The Court]: As to the [anti-SLAPP] motion, the other motion to strike, that is really moot at this point. If there is an amended Complaint filed, you would have 60 days from the filing of that Complaint to file a further [anti-SLAPP] motion so that it is moot at this point. In other words, given the opportunity to amend, it is not quite ripe for your attack under [section] 424 and those sections so that would come next if that is what you choose to do. [¶] So that is[,] it basically becomes moot; it is not denied, it is just moot at this point. [¶] Did you wish to be heard further, either of you?
"Mr. Hearns: I have a question, your Honor.
"The Court: Yes, sir.
"Mr. Hearns: Just so I understand, on the [anti-SLAPP] motion I can refile that?
"The Court: Yes.
"Mr. Hearns: After they file their second amended Complaint.
"The Court: In other words, because there is the potential of an amended Complaint, it becomes moot, there is nothing for the court to — it is not, there is a word of standing and ripeness and so forth that the courts use to say that it is premature."
Although the trial court declined to rule on the merits of the anti-SLAPP motion, it commented on the arguments raised in that motion as follows: "As far as failing to state a cause of action, the identity of the plaintiff can be cured by an amendment. [¶] Now, sometimes there is an ambiguity in whether or not an assertion or a remark or an expression is factual or nonfactual, whether it could or could not be proven false; in other words, going one step beyond and that could become a jury question, but right now it really looks like it is a legal question and the court would determine that this is a factual imputation of defamatory material. [¶] Regarding a public concern which is also connected with your papers here in the context of the letter, in other words it is a matter of public concern by a private figure, she is not a public figure but she is a private figure and the only thing about that is she has to show the falsity of the statement. The statement or statements that was [sic] made and the context of the letter and the content go to the integrity of a member of the state bar as well as the San Bernardino Police Department and so it is a matter of public concern involving a private figure and basically that is somewhat academic to the demurrer at this point. [¶] The court intends to sustain the demurrer with leave to amend and I would give the plaintiff 30 days leave to amend." [Emphasis added.]
Hearns filed a notice of appeal in the Court of Appeal, Fourth Appellate District, Division Two, which requested briefing from the parties regarding whether the trial court's ruling on the anti-SLAPP motion is an appealable order. The case subsequently was transferred to this court. Hearns filed a letter brief arguing that the trial court's ruling constitutes a de facto denial of the anti-SLAPP motion rendering it an appealable order. Tuszynska did not respond to the court's request.
The court's letter requesting supplemental briefing stated: "Does a trial court's finding that an anti-SLAPP motion is moot due to the trial court sustaining a demurrer with leave to amend, constitute a de facto denial of the anti-SLAPP motion, such that it is an appealable order? (See White v. Lieberman (2002) 103 Cal.App.4th 210, 220 [The trial court's finding that an anti-SLAPP motion is moot, due to the trial court sustaining a demurrer without leave to amend, constitutes a de facto denial of the anti-SLAPP motion, which creates an appealable orderl]; see generally Code Civ. Proc., § 904.1, subd. (a)(13) [A party may appeal from the grant or denial of anti-SLAPP motion.].)"
DISCUSSION
"(1) In California, the right to appeal is governed solely by statute and, except as provided by the Legislature, the appellate courts have no jurisdiction to entertain appeals. An appealable judgment or order is essential to appellate jurisdiction, and the court, on its own motion, must dismiss an appeal from a nonappealable order. [Citation.] (2) The primary statutory basis for appealability in civil matters is limited to the judgments and orders described in section 904.1 of the Code of Civil Procedure, which essentially codifies the 'one final judgment rule' and provides that only final judgments are appealable. The one final judgment rule is based on the theory that piecemeal appeals are oppressive and costly, and that optimal appellate review is achieved by allowing appeals only after the entire action is resolved in the trial court. Ordinarily, there can be only one final judgment in an action and that judgment must dispose of all the causes of action pending between the parties. [Citation.] It is the substance and effect of the court's order or judgment and not the label that determines whether or not it is appealable." (Art Movers, Inc. v. Ni West, Inc. (1992) 3 Cal.App.4th 640, 645.)
An appeal may be taken "[f]rom an order granting or denying a special motion to strike under [s]ection 425.16," as provided in section 904.1, subdivision (a)(13). Here, despite the trial court's provisional comments about the issues underlying the anti-SLAPP motion, it did not grant or deny the motion. Therefore, the order was not appealable under section 904.1.
The court's ruling on the anti-SLAPP motion was in the nature of an interlocutory order. "An interlocutory judgment or order is a provisional determination of some or all issues in the cause." (7 Witkin, California Procedure, (5th ed. 2008) Judgment, § 12, p. 555; see also § 13, p. 556.) "In 'determining whether a particular decree is essentially interlocutory and nonappealable, or whether it is final and appealable... [i]t is not the form of the decree but the substance and effect of the adjudication which is determinative. As a general test, which must be adapted to the particular circumstances of the individual case, it may be said that where no issue is left for future consideration... that decree is final, but where anything further in the nature of judicial action on the part of the court is essential to a final determination of the rights of the parties, the decree is interlocutory.' " (Belio v. Panorama Optics, Inc. (1995) 33 Cal.App.4th 1096, 1101.) The ruling on Hearns's demurrer obviated a ruling on the original anti-SLAPP motion. The trial court left the door open for a future ruling on the anti-SLAPP motion based on amended complaint, if any, and Hearns's renewed motion.
Hearns goes outside the record and states in his opening brief that Tuszynska did not file a second amended complaint in the time specified by the trial court. That issue is not properly before us. "Matters not presented by the record cannot be considered on the suggestion of counsel in the briefs." (In re Hochberg (1970) 2 Cal.3d 870, 875, disapproved on another point as stated in In re Fields (1990) 51 Cal.3d 1063, 1071, fn. 3.)
Hearns relies on White v. Lieberman, supra, 103 Cal.App.4th 210, in which the Court of Appeal concluded, "[a]n order declaring [an anti-SLAPP] motion to be moot is the equivalent of a denial and is appealable." (Id. at p. 220.) White is procedurally distinguishable. There, the plaintiff sued Lieberman and others for malicious prosecution. Lieberman demurred to the first amended complaint and also filed an anti-SLAPP motion. The trial court sustained Lieberman's demurrer without leave to amend, and decided Lieberman's anti-SLAPP motion was moot. (Id.at pp. 215-216, 220.) The Court of Appeal concluded the malicious prosecution action was barred by the statute of limitations, and also failed on the merits, thus the trial court did not err in sustaining the demurrer without leave to amend. (Id. at pp. 217-219.)However, the appellate court disagreed with the trial court's ruling that the anti-SLAPP motion was moot: "[A] defendant who prevails in an anti-SLAPP motion is entitled to attorney's fees. [Citation.] The trial court therefore erred in determining that Lieberman's motion was moot." (Id. at p. 220.) Under the specific circumstances of that case, the appellate court decided the trial court's order was tantamount to a denial of the anti-SLAPP motion and treated it as an appealable order. Concluding there was "no possibility" White could prevail on his malicious prosecution claim, and apparently convinced Lieberman deserved an award of attorney's fees under the anti-SLAPP statute, the court remanded the matter to the trial court to determine those fees. (Id.at p. 221.)
Here, in contrast, by sustaining the demurrer with leave to amend, the trial court contemplated the possibility Tuszynska could prevail on the merits. Therefore, until she had availed herself of the opportunity to amend, Hearns's anti-SLAPP motion was moot and there was no reason for the court to rule on it because the motion filed would be superseded by anticipated renewed pleadings.
Hearns relies on Simmons, supra, 92 Cal.App.4th 1068 and cases citing to it to contend the trial court was required to decide the anti-SLAPP motion before the demurrer, and should not have permitted an amendment of the complaint. (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 612-613; Navellier v. Sletten (2003) 106 Cal.App.4th 763, 773; Salma v. Capon (2008) 161 Cal.App.4th 1275, 1295.)
In Simmons, Allstate sued a chiropractor and his related business entities for unfair business practices based on an insurance scam involving fraudulent medical bills, unnecessary treatments, and other misdeeds. When Simmons cross-complained alleging defamation, Allstate brought an anti-SLAPP motion. At the hearing on the motion, Simmons, faced with an adverse tentative ruling on the anti-SLAPP motion, made an oral motion to amend the cross-complaint to pare allegations bringing it within the scope of the anti-SLAPP statute. (Simmons, supra, 92 Cal.App.4th at p. 1073.) Simmons argued leave to amend should be liberally granted, comparing the strike process to a demurrer. The trial court denied leave to amend, which the appellate court upheld on grounds that an anti-SLAPP motion is more like a summary judgment motion than a demurrer because of the evidentiary showing required and the shifting burdens. (Ibid.) Observing that the anti-SLAPP statute made no express provision for amendments, the Simmons court concluded permitting an amendment to thwart the defendant's initial prima facie showing of protected activity would undermine section 425.16's "quick dismissal remedy." (Simmons, supra, 92 Cal.App.4th at p. 1073.)
The Simmons line of cases is inapplicable here because Tuszynska did not seek to amend the complaint to avoid the trial court's tentative ruling on an anti-SLAPP motion, which did not grant or deny the motion. Rather, Hearns, as he was entitled to do, elected to attack the complaint in three motions concurrently. (Accord, Del E. Webb Corp. v. Structural Materials Co. (1981) 123 Cal.App.3d 593, 601, fn. 1 ["We have no quarrel with the procedure whereby a demurrer and motion for summary judgment are filed simultaneously. In such cases the court is asked to hold that the complaint fails to state a cause of action or, in the alternative, if the pleadings are sufficient, that the defendant is entitled to judgment because no triable issue of fact exists"].) The trial court responded by permitting amendment of the complaint and suspending ruling on the anti-SLAPP motion pending Hearns's renewal of the motion addressing the amended complaint. This ruling was interlocutory and not appealable.
Hearns contends, "The trial court was required to decide the anti-SLAPP motion first, and, since the complaint was legally insufficient, to review the evidentiary submissions of the parties, and, if the plaintiff's evidentiary submission, too, was inadequate, to grant the anti-SLAPP motion and dismiss the complaint." We disagree. The trial court, in evaluating the pleadings to determine whether the first prong of the anti-SLAPP statute—that a cause of action arises from any act of the person in furtherance of the person's free speech rights—is met, "shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2); City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.) "[A] plaintiff cannot avoid the operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a garden variety tort claim when in fact the liability claim is predicated on protected speech or conduct." (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519.) The court evaluates the principal thrust or gravamen of a plaintiff's cause of action to determine whether the anti-SLAPP statute applies. (Id.at pp. 519-520.) Therefore, here, the trial court did not err in resolving the demurrer first, because in that way the court would evaluate the gravamen of the amended pleadings.
We note there are significant differences to be taken into account in ruling on demurrers and anti-SLAPP motions: "Unlike demurrers or motions to strike, which are designated to eliminate sham or facially meritless allegations, at the pleading stage a SLAPP motion, like a summary judgment motion, pierces the pleadings and requires an evidentiary showing.... the test applied to a SLAPP motion is similar to that of a motion for summary judgment, nonsuit, or directed verdict. [Citation.] Evidence is considered, but not weighed. If the initial evidentiary burden is met by the moving party, the burden shifts to the party opposing the motion to avoid dismissal of the action." (Simmons, supra, 92 Cal.App.4th at p. 1073.)
DISPOSITION
The appeal is dismissed. Costs on appeal are awarded to Danuta Tuszynska.
WE CONCUR: NARES, Acting P. J., McDONALD, J.