Opinion
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
APPEAL from an order of the Superior Court of Los Angeles County, Ct. No. PC 040495, Joanne O’Donnell, Judge.
Law Offices of Alana B. Anaya and Alana B. Anaya for Plaintiff and Appellant.
George R. Hynick for Defendant and Respondent.
FLIER, J.
Appellant Bassem Yousri filed an action for slander against respondent Ahmed Aly. Respondent’s motion to strike pursuant to the provisions of Code of Civil Procedure section 425.16, the SLAPP statute, was granted. We reverse.
Strategic Lawsuits Against Public Participation.
PROCEDURAL BACKGROUND
We begin by noting that the briefing of this appeal by both sides is seriously defective. Neither appellant’s opening brief not respondent’s brief contains a single citation to the record but both briefs refer to facts and procedural events that are fundamental to this appeal. It is basic that assertions of fact, whether of operative facts or procedural events, that are not supported by references to the appellate record may be disregarded. (Yeboah v. Progeny Ventures, Inc. (2005) 128 Cal.App.4th 443, 451.) The rules clearly require that appellate briefs support assertions of fact with references to the record. (Cal. Rules of Court, rule 8.204(a)(1)(C).) Although we could strike these defective briefs, in light of the brevity of the record, the simplicity of the issue to be decided and out of consideration for the expenses borne by the clients, we proceed to address the merits based upon our independent review of the record. In light of the defective briefing and the further failure to prepare and file an adequate appendix (see text, post), we decline to award costs to the prevailing party and direct that each party is to bear his own costs on appeal. (City of Watsonville v. Corrigan (2007) 149 Cal.App.4th 1542, 1545.)
It appears that the controversy between appellant and respondent began with a civil action for fraud and conversion brought by respondent against appellant. In substance, the action alleged that appellant misappropriated $400,000 that respondent had given appellant for the purposes of investment. The complaint in this earlier action is contained in the appellate record.
Although respondent claims in his brief that this earlier action, which was filed on January 19, 2007, resulted in a verdict of $375,000 in favor of respondent, there is nothing in the record to support this assertion.
The trial court’s minute order that sets forth the ruling on the order that is the subject of this appeal states that appellant filed an action for slander on April 9, 2007, against respondent. This is the complaint that is the subject of this appeal but it is not contained in the record. Based on the considerations that we have already stated, we pass by this serious defect and rely on the trial court’s minute order that states the fact, subject and date of the filing of the slander action.
On September 21, 2007, respondent filed a motion to strike the slander complaint. This motion was based on two grounds. First, the motion claimed that any and all statements made by respondent were protected by the litigation privilege. Second, supported by two conclusory paragraphs that cited the SLAPP statute, respondent requested that the court strike the complaint because the statements made by respondent were “constitutionally protected.”
Appellant filed an opposition to this motion on October 16, 2007. The opposition addressed, for the most part, the claim of the litigation privilege. In addition, in a single paragraph eight lines long, the opposition stated that respondent’s SLAPP motion had to be denied because it was not timely, i.e., it was filed well over 60 days after the service the of the complaint.
The motion to strike was heard on October 31, 2007. The tentative ruling indicated that the court would deny the motion to the extent it was based on the litigation privilege but that the court would grant the SLAPP motion. The tentative ruling stated that the alleged statements arose from appellant’s exercise of his right of free speech, which satisfied the first of the two SLAPP tests. As far as the second test was concerned, i.e., likelihood of success on the merits, the tentative stated that appellant had not even attempted to show that it was probable that he would succeed on the merits.
The first test is whether the claim arose from an act in furtherance of the right of free speech; the second is whether the plaintiff has shown a probability of success on the merits. (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548.)
In the hearing, appellant’s counsel acknowledged that, even though the SLAPP motion was late, the trial court had authority to consider the motion. (See text, p. 3, post.) Counsel went on to state that “we ask that we be permitted to submit the declarations that we weren’t able to the first time because we stood on the procedural objections to the motion to strike as a due process matter.” Counsel continued: “We would be able to submit declarations showing that [appellant] does have a substantial likelihood of prevailing. We can submit declarations showing that [respondent] went to [appellant’s] place of employment and demanded [appellant] be fired, that he went to [appellant’s] client base and called him a criminal and instructed these people not to do business with [appellant]. [¶] If [appellant] were to submit declarations to prove these actions, they would have met his burden on the anti-SLAPP, but to extend the anti-SLAPP filing deadline without notice to [appellant], without permitting [appellant] to submit these declarations, I believe, is a violation of [appellant’s] due process rights.”
The trial court stated that this sounded like “a catch 22” and went on to note that the decision not to oppose the SLAPP motion on the merits “was a -- maybe not a smart decision, but it was a decision, and nobody has deprived [you of] anything. [¶] You could have responded on the merits, so the tentative is going to be the ruling.”
DISCUSSION
In relevant part subdivision (f) of Code of Civil Procedure section 425.16 states: “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.” The trial court was empowered to hear and determine respondent’s motion to strike even though it was filed more than 60 days after the service of the complaint.
It is clear that, once the parties were informed of the court’s tentative ruling, respondent requested a continuance in order to permit the filing of papers and declarations that would have addressed the question whether there was a probability that appellant’s slander action would prevail on the merits. Thus, the sole remaining question is whether the trial court erred in denying the request for a continuance.
In responding to this question, we first set aside a matter that does not apply to this case. Contrary to appellant’s claim, we do not think that this case involves or even implicates due process considerations. Appellant was afforded the opportunity to be heard on the SLAPP motion; there was no denial of the right to be heard. That appellant chose to limit his response to a procedural matter, i.e., timeliness, was appellant’s decision.
It is certainly true that, as the trial court remarked, it was a bad decision on appellant’s part to limit his response to the question of timeliness. It is elementary that a procedural defense that is, on its face, not absolute needs to be backed up with a defense on the merits.
The interests that needed to be balanced in this case are the hardship or inconvenience caused by a continuance of the hearing, on the one hand, and the termination of appellant’s action, on the other. There is nothing in the record, including respondent’s brief, that suggests any hardship or inconvenience, with the exception of another trip to court, that would have been caused by a continuance. On the other hand, it cannot be doubted that the prejudice caused by the dismissal of the entire action is substantial.
Whether or not to continue the hearing was a matter within the discretion of the trial court. (Taylor v. Bell (1971) 21 Cal.App.3d 1002, 1007.) “To be entitled to relief on appeal from the result of an alleged abuse of discretion it must clearly appear that the injury resulting from such a wrong is sufficiently grave to amount to a manifest miscarriage of justice.” (Brown v. Newby (1940) 39 Cal.App.2d 615, 618.) A dismissal of the action certainly qualifies as a “grave” injury. In terms of the classic statement on judicial discretion appearing in the old case of Bailey v. Taaffe (1866) 29 Cal. 422, 424, the ends of “substantial justice” were not served by dismissing the case, rather than continuing the hearing, when no substantial reasons appears why the latter course could not be followed. Penalizing counsel for a concededly poor decision by dismissing the case is, in our view, not in “conformity with the spirit of the law.” (Fn. 3, ante.)
“‘The discretion intended, however, is not a capricious or arbitrary discretion, but an impartial discretion, guided and controlled in its exercise by fixed legal principles. It is not a mental discretion, to be exercised ex gratia, but a legal discretion, to be exercised in conformity with the spirit of the law and in a manner to subserve and not to impede or defeat the ends of substantial justice.’” Witkin refers to this as the “classic statement” on judicial discretion. (9 Witkin, Cal. Procedure (5th ed. 2008) Appeal, § 364, p. 420.)
We sympathize with the point of view that trial courts are not required to rescue counsel from the consequences of bad decisions. Yet, this is not the only consideration involved in the dismissal of a case. Ultimately, the interests of the parties themselves must also be weighed in the balance. In the case before us, that interest required a continuance of the hearing on the motion to strike.
DISPOSITION
The order granting the motion to strike is reversed and the case is remanded for further proceedings consistent with this opinion. Each party is to bear his own costs on appeal.
We concur: COOPER, P. J., RUBIN, J.