Opinion
Kramer & Kaslow, Philip A. Kramer and John S. Birke (collectively Defendants) appeal an order striking their special motion to strike (Code Civ. Proc., § 425.16)
FACTUAL AND PROCEDURAL BACKGROUND
Kramer & Kaslow, a law firm, and Kramer, as a member of the firm, represented Brake Land, Inc., and Abolfalz Sharjari as plaintiffs in a prior action. Birke also was a member of the firm. Chitsazzadeh and Mansoureh Shajari were awarded summary judgment as defendants in that action.
Plaintiffs filed their complaint for malicious prosecution in the present action in July 2009. Defendants filed a demurrer to the complaint in December 2009. Defendants also filed a special motion to strike pursuant to section 425.16 on January 13, 2010, arguing that Plaintiffs’ complaint arose from Defendants’ constitutionally protected petitioning activity and that Plaintiffs could not establish a probability of prevailing on the merits.
Plaintiffs argued in opposition that Defendants had failed to file their special motion to strike within 60 days after service of the complaint as required by section 425.16, subdivision (f), and had failed to request leave of court to file an untimely motion, so the motion should be stricken. Plaintiffs further argued that because it was untimely, the special motion to strike was frivolous and made solely for purposes of delay, and that Plaintiffs therefore were entitled to an award of attorney fees as a monetary sanction under sections 425.16, subdivision (c)(1) and 128.5.
Defendants argued in reply that they were never properly served with the complaint and that, under the doctrines of equitable estoppel and judicial estoppel, Plaintiffs’ failure to seek their defaults precluded Plaintiffs from asserting that Defendants were served with the complaint more than 60 days before the filing of the special motion to strike. Defendants also argued that their special motion to strike should not be stricken because Plaintiffs had failed to file a timely motion to strike.
The demurrer and special motion to strike both were heard on February 11, 2010. The trial court issued a tentative ruling stating that (1) both the
The trial court overruled the demurrer on February 11, 2010. The court then heard argument on the special motion to strike at that time and took the matter under submission. The court filed an order on February 18, 2010, finding that Defendants were served by substituted service on September 22, 2009, and that Plaintiffs’ request to strike the special motion to strike as untimely was, in effect, an opposition to the special motion to strike. The court concluded that its tentative ruling was correct and adopted it as the court’s final decision. Defendants timely appealed.
CONTENTIONS
Defendants contend (1) the trial court failed to consider their special motion to strike on the merits, as required, and had no authority to strike the motion absent a properly noticed motion to strike by Plaintiffs; (2) Defendants should prevail on the merits of their special motion to strike; and (3) the award of attorney fees as a monetary sanction under section 128.5 is unauthorized because section 128.5 applies only in cases where the complaint was filed before 1995.
DISCUSSION
1. The Denial of the Special Motion to Strike Was Proper
A special motion to strike is a procedural remedy to dispose of lawsuits brought to chill the valid exercise of the constitutional right of petition or free speech. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056 [39 Cal.Rptr.3d 516, 128 P.3d 713].) A cause of action is subject to a special motion to strike if the defendant shows that the cause of action arises from an
A special motion to strike must be filed within 60 days after service of the complaint on the defendant, unless the trial court exercises its discretion to consider a later-filed motion. (§ 425.16, subd. (f).) The clerk must schedule the motion for a hearing within 30 days after the motion is filed, if possible given the court’s docket conditions. (Ibid.) Section 425.16, subdivision (f) 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 motion shall be scheduled by the clerk of the court for a hearing not more than 30 days after the service of the motion unless the docket conditions of the court require a later hearing.” The purpose of these timing requirements is to facilitate the dismissal of an action subject to a special motion to strike early in the litigation so as to minimize the cost to the defendant. (Equilon Enterprises, supra, 29 Cal.4th at p. 65; Morin v. Rosenthal (2004) 122 Cal.App.4th 673, 681 [19 Cal.Rptr.3d 149].)
Defendants argue that even a special motion to strike filed after the 60-day deadline must be decided on the merits and cannot be denied or stricken simply for being filed late.
Section 425.16, subdivision (c)(1) expressly mandates an award of attorney fees and costs in favor of any defendant prevailing on a special motion to strike, except in circumstances specified in the statute. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131 [104 Cal.Rptr.2d 377, 17 P.3d 735].) In contrast, a plaintiff prevailing on the motion is entitled to an award of attorney fees and costs only if the trial court finds that the special motion to strike was frivolous or solely intended to cause unnecessary delay. (§ 425.16, subd. (c)(1).)
Section 128.5, subdivision (a) provides for an award of “reasonable expenses, including attorney’s fees, incurred by another party as a result of bad-faith actions or tactics that are frivolous or solely intended to cause unnecessary delay.” Subdivision (b)(1) of section 128.5 limits “actions or tactics” as used in the statute to those occurring in proceedings where the complaint was filed on or before December 31, 1994. Section 425.16, subdivision (c)(1) refers to a special motion to strike that “is frivolous or is solely intended to cause unnecessary delay,” while section 128.5, subdivision (a) refers to actions or tactics that “are frivolous or solely intended to cause unnecessary delay.” Thus, section 425.16, subdivision (c)(1) uses essentially the same language as section 128.5, subdivision (a) to describe the offending conduct. But section 425.16, subdivision (c)(1) authorizes an award of attorney fees and costs in connection with an anti-SLAPP motion “pursuant to Section 128.5” without limitation as to the date of filing of the complaint. Section 425.16, subdivision (c)(1) therefore incorporates the substantive and procedural requirements of section 128.5, but does not incorporate its limitation as to the date of filing of the complaint. (Moore v. Shaw (2004) 116 Cal.App.4th 182, 199 & fn. 9 [10 Cal.Rptr.3d 154].) We reject Defendants’ contention to the contrary, but we conclude that the fee award was error for another reason.
Section 128.5, subdivision (b)(2) defines “frivolous” as “(A) totally and completely without merit or (B) for the sole purpose of harassing an opposing party.” A motion is totally and completely without merit for purposes of a finding of frivolousness under section 425.16, subdivision (c)(1) or section 128.5 only if any reasonable attorney would agree that the motion is totally
The trial court here found that the special motion to strike was frivolous or solely intended to cause unnecessary delay because Defendants filed the motion after the 60-day deadline without previously seeking leave of court to file an untimely motion.
We conclude that a court has the discretion to consider, and grant or deny on the merits, a special motion to strike filed after the 60-day deadline even if the moving defendant fails to request leave of court to file an untimely motion. Because a court has the discretion to consider an untimely special motion to strike, and may very well elect to do so if it appears that the motion has merit, we conclude that the fact that a special motion to strike was filed untimely, standing alone, cannot support a finding that the motion is frivolous or solely intended to cause unnecessary delay. Instead, whether a special motion to strike is totally and completely without merit in this context necessarily depends on the merits of the motion. Similarly, whether the sole purpose of the motion is to harass an opposing party or whether the motion is solely intended to cause unnecessary delay also depends on either the objective merits of the motion or some other indication of the moving defendant’s subjective motivation and cannot be inferred from the fact that the motion was untimely.
Courts generally hold that if the trial court failed to specify the reasons for an award of attorney fees as a sanction under section 425.16, subdivision (c)(1) or section 128.5, the order must be reversed with directions to either specify the reasons for the award or deny sanctions.
The order of February 18, 2010, is affirmed as to the denial of the special motion to strike and reversed as to the award of attorney fees with directions to deny the request for fees. Each party is to bear its own costs on appeal.
Klein, P. J., and Kitching, J., concurred.
All statutory references are to the Code of Civil Procedure unless stated otherwise. Section 425.16 is known as the anti-SLAPP statute. SLAPP is an acronym for strategic lawsuit against public participation.
We regard the order striking the special motion to strike as a denial of the motion, and therefore an appealable order. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).) An attorney fee award in connection with the denial of a special motion to strike is sufficiently interrelated with the denial that the fee award is reviewable on appeal from the order denying the special motion to strike. (Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265, 275 [117 Cal.Rptr.3d 153]; but see Doe v. Luster (2006) 145 Cal.App.4th 139, 145-150 [51 Cal.Rptr.3d 403].)
Plaintiffs moved to dismiss the appeal and for a monetary sanction for a frivolous appeal. We denied the motion to dismiss before oral argument to allow for full consideration of the issues raised in the appeal. We now deny the request for sanctions as well.
The effect of the order striking the special motion to strike was to deny the motion, as we have stated. Contrary to Defendants’ argument, no noticed motion was required to oppose the special motion to strike on the grounds that it was untimely.
Section 425.16, subdivision (c)(1) states: “Except as provided in paragraph (2), in any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.”
Although the trial court did not expressly find that the special motion to strike was frivolous or solely intended to cause unnecessary delay, its tentative ruling (1) quoted the operative language from section 425.16, subdivision (c)(1); (2) stated that Defendants had failed to respond to Plaintiffs’ argument that the motion was frivolous and (3) stated that .Plaintiffs were entitled to a monetary sanction under section 425.16, subdivision (c)(1). Later, the court considered Defendants’ reply and confirmed its tentative ruling that Plaintiffs were entitled to an award of $900 in attorney fees as a sanction. We conclude that the court impliedly found that the special motion to strike was frivolous or solely intended to cause unnecessary delay.
Section 425.16, former subdivision (f) required not only that a special motion to strike be filed within 60 days after service of the complaint, but also that the notice of hearing specify a hearing date not more than 30 days after service of the motion unless the court’s docket conditions required a later hearing date. (Decker, supra, 105 Cal.App.4th at p. 1387.) The Legislature amended subdivision (f) in 2005, placing the burden on the court clerk, rather than the moving defendant, to schedule a hearing to occur within 30 days after service of the motion, expressly overruling the holdings in Decker, supra, at pages 1387-1390, and Fair Political Practices Com. v. American Civil Rights Coalition, Inc. (2004) 121 Cal.App.4th 1171, 1174—1178 [18 Cal.Rptr.3d 157], that the moving defendant’s failure to schedule a timely hearing justified the denial of the motion.
Section 128.5, subdivision (c) states, in part, “An order imposing expenses shall be in writing and shall recite in detail the conduct or circumstances justifying the order.”