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Citibank, N.A v. Alicia M. Tabalon

September 26, 2012

CITIBANK, N.A.,
PLAINTIFF, CROSS-DEFENDANT AND APPELLANT,
v.
ALICIA M. TABALON, DEFENDANT, CROSS-COMPLAINANT AND RESPONDENT.



APPEAL from a judgment of the Superior Court of Los Angeles County, Lancaster Trial Court, Randolph A. Rogers, Judge. (Lancaster Trial Court ) No. 11C03183)

The opinion of the court was delivered by: Kumar, J.

TO BE PUBLISHED IN THE OFFICIAL REPORTS

This opinion has been certified for publication in the Official Reports. It is being sent to assist the Court of Appeal in deciding whether to order the case transferred to the court on the court's own motion under rules 8.1000-8.1018.

CERTIFIED FOR PUBLICATION

Dismissed.

OPINION

Cross-defendant and appellant Citibank, N.A. appeals from an order denying its motion to strike a cross-complaint made pursuant to Code of Civil Procedure section 425.16 (the "anti-SLAPP" statute).*fn1 In its opening brief, appellant contends the trial court erroneously denied its motion because the cross-complaint brought by respondent Alicia M. Tabalon constituted a strategic lawsuit against public participation (SLAPP). We invited the parties to file a supplemental brief addressing the issue of whether this court has jurisdiction to review a prejudgment ruling on an anti-SLAPP motion in a limited civil case. Appellant has filed a supplemental brief taking the position that the order denying his motion is appealable pursuant to section 425.16, subdivision (i).

We hold the appellate division of the superior court does not have jurisdiction to review an order denying a prejudgment anti-SLAPP motion in a limited civil case. The legislative vehicle for appeals to the appellate division, i.e., section 904.2, does not specify that such orders are reviewable on direct appeal. Thus, we dismiss the appeal without deciding whether the trial court's ruling was correct.

BACKGROUND

In response to appellant's collections complaint, respondent filed a cross-complaint alleging appellant's debt collection practices violated the Rosenthal Fair Debt Collections Practices Act (Civ. Code, § 1788 et seq.). Appellant moved to strike the cross-complaint under the anti-SLAPP statute. Appellant argued (1) the cross-complaint arose from protected speech and petitioning activity, and (2) respondent could not demonstrate a probability of prevailing on the merits of her claim. The court denied appellant's motion.

DISCUSSION

A. Appellate Jurisdiction

"[T]he appellate division of the superior court has appellate jurisdiction in causes prescribed by statute." (Cal. Const., art. VI, § 11, italics added.) "'The existence of an appealable judgment [or order] is a jurisdictional prerequisite to an appeal.' [Citation.]" (Giorgianni v. Crowley (2011) 197 Cal.App.4th 1462, 1470, citing Jennings v. Marralle (1994) 8 Cal.4th 121, 126.)

"'"[O]rders are appealable only when expressly made appealable by statute . . . or when they are in effect final judgments."' [Citation.]" (Koshak v. Malek (2011) 200 Cal.App.4th 1540, 1544-1545, quoting County of San Diego v. Arzaga (2007) 152 Cal.App.4th 1336, 1343-1344.) "'Because the Legislature has complete control over the right to appeal, it can restrict, change, withhold or even abolish that ...


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