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West v. Arent Fox LLP

California Court of Appeals, Second District, Fifth Division

June 17, 2015

VAL WEST et al., Plaintiffs and Appellants,
v.
ARENT FOX LLP, Defendant and Respondent.

[As modified June 26, 2015.]

APPEAL from an order of the Superior Court of Los Angeles County, No. BC499863 Teresa Sanchez-Gordon, Judge.

Page 1066

COUNSEL

Kirtland & Packard, Robert A. Muhlbach and Daniel J. Quisenberry for Plaintiff and Appellant.

Arent Fox LLP, Jerrod Abeles and Collin Seals for Defendant and Respondent.

Page 1067

OPINION

GOODMAN, J. [*]

Val West (West) purports to appeal from an order granting the motion of Arent Fox LLP (Arent Fox) to strike the first and second causes of action of West’s complaint under Code of Civil Procedure section 425.16.[1] We determine that West may not file an appeal in this matter, and, as we do not have jurisdiction to consider the issues she seeks to present, we dismiss.

FACTUAL AND PROCEDURAL BACKGROUND

Underlying the complaint in this action are allegations regarding treatment of West’s mother while she resided at a facility providing residential care to the elderly, the Los Angeles Jewish Home for the Aging (the Home). West held a durable power of attorney for medical care for her mother and actively participated in decisions regarding her care. After many months of disagreement over the care which the Home had been giving to West’s mother, in February 2010, the Home and Nadine Roisman (Roisman), executive director at one of its facilities, filed a civil action against West and David Dizenfeld, West’s friend, who had attended and participated in meetings regarding the care of West’s mother. (Los Angeles Jewish Home for the Aging v. West (Super. Ct. L.A. County, 2013, No. LC088559).) The complaint in that action alleged causes of action for trespass, intentional interference with contractual relations, civil harassment and defamation. Arent Fox was the law firm which represented the Home and Roisman as the plaintiffs in that lawsuit. The trial court granted the anti-SLAPP motion under section 425.16 for the defendants in that action as to the claim for defamation and denied it as to the other claims for relief.[2] On appeal and cross-appeal of the trial court’s orders, this court affirmed. (Los Angeles Jewish Home for the Aging v. West (Nov. 14, 2011, B224314) [nonpub. opn.].) That action later concluded.

West and Dizenfeld filed the complaint in this action against Arent Fox, the Home and Roisman in January 2013 (the 2013 complaint). Arent Fox’s

Page 1068

motion to strike the eight causes of action of the 2013 complaint containing allegations against it was heard on October 15, 2013. The trial court granted Arent Fox’s motion as to the third, fourth, sixth and seventh causes of action only.[3] Seven days later, on October 22, 2013, the trial court sustained without leave to amend Arent Fox’s demurrer to the ninth and 10th causes of action. Of the eight original causes of action alleged against Arent Fox, two remained; the first, described bye West in her complaint as the “antisLAPP-back” claim, and the second, which she described as being for malicious prosecution.

Arent Fox filed its amended petition for writ of mandate in this court on February 24, 2014, seeking reversal of the trial court’s order denying its motion under section 425.16 to strike the two remaining claims for relief against it upon the basis that they were “SLAPPback” claims as defined in section 425.18, subdivision (b)(1). We issued an alternative writ of mandate on February 28, 2014, ordering the trial court, after consulting with the parties, to either “vacate that part of [its] October 15, 2013, order denying [Arent Fox’s] motion to strike the first and second causes of action as against it, and enter a new and different order granting the motion to strike those causes of action; or... [i]n the alternative, show cause... why a peremptory writ ordering [it] to do so should not issue.” Without first consulting with the parties, the trial court vacated the relevant part of its October 15, 2013, order and granted the special motion to strike the first and second causes of action on March 5, 2014. Five days later, on March 10, 2014, West appeared ex parte before the trial court, pointing out, inter alia, that the trial court had not consulted with the parties before taking further action in compliance with our writ.[4] The trial court then heard from the parties regarding the writ and its March 5 order, and took the matter under submission. Later the same day the trial court issued its minute order reconfirming its March 5 determination to grant the anti-SLAPP motion as to the first two causes of action. Arent Fox gave written notice of this ruling on March 13, 2014.[5] On April 30, 2014, West filed a notice of appeal.[6]

Page 1069

DISCUSSION

We begin with a fundamental issue: Whether we have jurisdiction to entertain West’s appeal. For the reasons now discussed, we conclude that we do not; accordingly we dismiss this appeal. [7]

“[A]ppealability goes to our jurisdiction, [and] we are dutybound to consider it on our own motion.” (Olson v. Cory (1983) 35 Cal.3d 390, 398 [197 Cal.Rptr. 843, 673 P.2d 720].) The record contains a “Notice of Appeal” filed on April 30, 2014, in which West states that she appeals from “An order of judgment under Code of Civil Procedure section 904.1(a)(3)-(13)” and from “The Superior Court’s March 5, 2014 Minute Order [which] granted [Defendant Arent Fox’s] Motion to Strike Plaintiff’s first and second causes of action, ” citing as authority for this second alleged basis for appeal Justus v. Atchison, supra, 19 Cal.3d at pages 567-568.[8] By letter to the parties we noted certain concerns with these bases for appeal, and asked that West file a copy of any judgment the trial court may have issued as one was not in the record on appeal. No such judgment was ever filed as none was entered. As we stated in our letter to the parties, if no judgment was filed, argument would be limited to whether the appeal should be dismissed. After argument we sent a second letter to the parties with additional questions, to which they filed responsive letter briefs.

West contends her appeal is properly brought “[f]rom an order granting... a special motion to strike under Section 425.16, ” and thus she properly filed her appeal in reliance on sections 425.16, subdivision (i) and 904.1, subdivision (a)(13).[9] Inspection of West’s complaint as well as these two statutes reveals that this contention lacks merit for the following reasons: West alleges in the first cause of action of her complaint not only that the defendants’ “actions are in violation of . . . § 425.16, ” but that “they have

Page 1070

created a SLAPP back [sic] cause of action pursuant to [] § 425.18 . . . ," Thus, she specifically pled that this claim is a SLAPPback.[10] Her second cause of action, for malicious prosecution, is also a SLAPPback as it meets the same statutory test. While West is correct in describing these two causes of action as SLAPPbacks and in contending that the motion to strike them is properly brought under section 425.16, she errs in concluding that that section governs the right to seek appellate review from the grant (or denial) of such a motion.

The error in West’s contention is that SLAPPback claims are a subset of SLAPP motions, and while many of the same rules apply, some differ, including rules which are determinative of this appeal. This different treatment results from legislative action to address special issues that were perceived after the original “anti-SLAPP” statute was enacted in 1992. (See Sen. Bill No. 1264 (1991-1992 Reg. Sess.) § 2) As reflected in the history of enactment of section 425.18 in 2005, the Legislature had become concerned with special problems posed by actions filed to “SLAPPback” at participants in earlier litigation. (Many of these issues are discussed in Soukup, supra, 39 Cal.4th at p. 268.) To address these concerns, certain amendments were proposed, initially to section 425.16. (Assem. Bill. No. 1158 (2005-2006 Reg. Sess.) as introduced Feb. 22, 2005 (Assembly Bill 1158).) As Assembly Bill 1158 moved through the Legislature, however, it was determined that more significant changes were needed to address the problems that had been identified with section 425.16. The result was amendment of Assembly Bill 1158, to reenact section 425.16 with certain changes as section 1 of Statutes 2005, chapter 535 (p. 4120), but also to enact, as section 2 (p. 4122) of that legislation a new section 425.18. (Assem. Bill 1158, § 2.) This new statute was directed at specific problems of the newly defined subset of anti-SLAPP motions, defined in section 425.18, subdivision (b)(1) as “SLAPPbacks.” Among the special rules enacted to address the specific problems which the Legislature sought to address with SLAPPback actions were subdivisions concerning the timing, discovery and cost and fee recovery for special motions to strike SLAPPback causes of action that are distinct from rules on the same subjects applicable to the broader group of anti-SLAPP motions

Page 1071

generally. (Compare § 425.18, subds. (d) [scheduling of SLAPPback motions], (e) [discovery] & (f) [costs and attorney fees] with § 425.16, subds. (f) [scheduling of anti-SLAPP motions other than SLAPPbacks], (g) [discovery] & (c) [costs and attorney fees].) The Legislature did not change the procedure for raising these issues: When a party seeks judicial action to strike a cause of action which is a SLAPPback as defined in section 425.18, subdivision (b)(1), the procedure to be followed is to file a special motion to strike “pursuant to Section 425.16.” (§ 425.18, subd. (b)(2).) This reading of the statutes is confirmed in the legislative history of Assembly Bill 1158. Committee reports on this bill repeatedly describe the use of “an anti-SLAPP motion” as the means to address a “SLAPPback cause of action.” (See Assem. Com. on Judiciary, Analysis of Assem. Bill 1158 (2005-2006 Reg. Sess.) Apr. 5, 2005, pp. 1-3; Sen. Com. on Judiciary, Analysis of Assem. Bill 1158 (2005-2006 Reg. Sess.) as amended Apr. 25, 2005, pp. 2, 7; Sen. Com. on Judiciary, Rep. on Assem. Bill 1158 (2005-2006 Reg. Sess.), as amended Aug. 15, 2005, p. 16 ["In light of the above concerns, committee staff... arrived at the compromise August 15 AB 1158 proposal to continue allowing the filing of an anti-SLAPP motion in a SLAPPback.. . ."]; Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading of Assem. Bill 1158 (2005-2006 Reg. Sess.) as amended Aug. 24, 2005, pp. 2-3.)

The Legislature also established special rules for appellate review of SLAPPback motions that differ from rules for review of SLAPP motions generally. While the latter are governed by sections 425.16, subdivision (i) and 904.1, subdivision (a)(13), which make review of orders granting or denying a special motion to strike subject to the usual appellate process, the Legislature expressly determined that SLAPPback motions are to be reviewed by a different procedure. Thus, section 425.18, subdivision (c) expressly disallows use of section 904.1, subdivision (a)(13), as a basis for appeal of a ruling on a SLAPPback, providing that “[t]he provisions of... paragraph (13) of subdivision (a) of Section 904.1 shall not apply to a special motion to strike a SLAPPback.” (§ 425.18, subd. (c).) The Legislature specified a different manner for appellate review of most rulings on special motions to strike SLAPPback claims in enacting section 425.18, subdivision (g). This section provides: “Upon entry of an order denying a special motion to strike a SLAPPback claim, or granting the special motion to strike as to some but less than all causes of action alleged in a complaint containing a SLAPPback claim, an aggrieved party may, within 20 days after service of a written notice of the entry of the order, petition an appropriate reviewing court for a peremptory writ." (§ 425.18, subd. (g).)

These and other special rules for SLAPPback motions were enacted to address this special category of SLAPP motions because SLAPPbacks are “distinguishable in character and origin from the ordinary malicious prosecution action.” (§ 425.18, subd. (a).) The legislative history of the enactment of

Page 1072

section 425.18 contains express reference to this different procedure for appellate review of trial court rulings when the SLAPP motion (or anti-SLAPP motion) contains a "SLAPPback.” Thus, in describing the provisions of Assembly Bill 1158, the July 12, 2005, bill analysis of Assembly Bill 1158 prepared for the Senate Judiciary Committee states, “There would be no automatic right to appeal the denial of the motion, but an expedited writ process is provided." (Sen. Com. on Judiciary, Analysis of Assem. Bill 1158, supra, as amended Apr. 25, 2005, p. 2.) This explanation is unmistakably based on language then in Assembly Bill 1158 that was later enacted as section 425.18, subdivision (c), which eliminated section 904.1, subdivision (a)(13) as a means of appeal, and section 425.18. subdivision (g), which provided for limited appellate review by peremptory writ. The August 24, 2005, Senate floor analysis for Assembly Bill 1158 includes a virtually identical description. (Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading of Assem. Bill 1158 (2005-2006 Reg. Sess.) as amended Aug. 24, 2005.) For these reasons West’s reliance on sections 904.1, subdivision (a)(13) and 425.16, subdivision (i) as the bases for her appeal are unavailing; those statutes are expressly made inapplicable to the present “appeal” by section 425.18. subdivisions (c) and (g).

The order entered by the trial court in this action granted an anti-SLAPP motion as to two SLAPPback causes of action, viz., “to some but less than all causes of action alleged in a complaint including a SLAPPback claim.” (§ 425.18, subd. (g).) Arent Fox gave West notice of entry of this order on March 13, 2014. The sole remedy provided for review of that order was for West as the aggrieved party to petition an appropriate reviewing court for a peremptory writ within 20 days of service of written notice of the order. As West took no action to seek appellate review until she filed her Notice of Appeal on April 30, 2014, she has failed to seek review by peremptory writ within 20 days of notice of entry of the order of which she seeks review. Accordingly we do not have jurisdiction to consider her appeal and dismiss it.[11]

Page 1073

DISPOSITION

West’s appeal from the trial court’s order of March 10, 2014, is dismissed. Arent Fox shall recover its costs on appeal.

Turner, P.J., and Mosk, J., concurred.


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