CORINNA REYES et al. v. KIM KRUGER et al.
H044661
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT
Filed 9/25/20
CERTIFIED FOR PUBLICATION; (Santa Clara County
The record shows that appellants did not appeal from the order granting the anti-SLAPP motions but from the judgment of dismissal that followed later, which they relied on as the appealable order. We conclude, based on the applicable law that makes an order granting a motion to strike immediately appealable (
I. FACTUAL AND PROCEDURAL BACKGROUND
The present case for malicious prosecution is based on a prior action brought by Kruger against Reyes for unlawful detainer (the prior action).
Reyes operated a medical marijuana outlet on commercial premises leased by Kruger. Kruger stated that she received complaints from neighbors about the operation and its customers, mostly related to parking issues, loitering, and littering. Kruger also stated that the city‘s code enforcement contacted her about violations on the premises and Reyes‘s noncompliance with requests for inspection. After an inspection confirmed the code violations and revealed other unpermitted alterations to the property, Kruger began eviction proceedings. Kruger retained new counsel after the eviction effort faltered.
Kruger, represented by Rothbard, filed an unlawful detainer action against Reyes.3 Respondents served notice of the ongoing lease violations followed by a three day notice to pay rent or quit the premises. Respondents based the three day notice on a delinquency in rent that had accrued during the pendency of Kruger‘s earlier attempt to evict, during which time she had not accepted rent payments. According to Kruger, when Reyes failed to pay the delinquent amount within three days, she and Rothbard decided that “the most straightforward way to evict was based upon the nonpayment of rent” so she “rejected their one day late tender of the rent amount and proceeded” to file the unlawful detainer action.
The unlawful detainer action was tried in October 2013 by the Honorable Derek Woodhouse. A contested question was whether Kruger had returned the payment of certain rent that Reyes had paid by direct deposit into her bank account. Kruger testified that during her first eviction attempt, she realized she had to return the rent. She gave $2,800 in cash to appellants by handing an envelope with the cash to an employee at the door of appellants’ business. Kruger did not know the date and did not get a signed receipt. She said the cash came from money she kept at her house. She acknowledged that she had no proof of the payment. Reyes testified that she never received any cash at any time from Kruger, and there was no employee at her business who was authorized to accept cash for her. Reyes never received an e-mail or other communication indicating that Kruger had dropped off cash. There was a similar factual dispute about a $2,800 check that Kruger testified she mailed but Reyes denied having ever received.
Rothbard explained to the trial court at the unlawful detainer trial that the returned payment of $2,800 enabled application of the statutory presumption affecting the burden of proof for commercial property unlawful detainer proceedings—whereby the amount Kruger claimed was owed on appellants’ lease, as set forth in the three day notice to pay rent or quit, was a reasonable estimate. (
The trial court granted judgment in favor of Kruger. It reasoned that the technical requirements in unlawful detainer actions must be “strictly adhered to” and that considering the arguments and exhibits, it was “constrained to find judgment for the [respondent] as requested.” The trial court entered judgment in favor of Kruger on October 18, 2013.
After unsuccessful attempts to vacate the unlawful detainer judgment and to petition for relief from the judgment as it declared forfeiture of the lease, Reyes filed an appeal in the appellate division of the superior court. The appellate division reversed the judgment in a published decision. (Kruger v. Reyes (2014) 232 Cal.App.4th Supp. 10, 12.) The appellate division found that because Reyes had “timely paid all rent due through the period covered by the three-day notice by deposit directly into Kruger‘s bank account, . . . they had actually performed and were not in default when Kruger served them with a three-day notice to pay rent or quit,” rendering the three-day notice “premature and void as a matter of law.” (Ibid.)
Following the decision of the appellate division, Reyes sued Kruger in July 2015 in a breach of contract action for wrongful eviction. The trial court granted Kruger‘s special motion to strike the complaint under the anti-SLAPP statute and dismissed the case. Reyes then filed the instant action.
B. Action for Malicious Prosecution
In April 2016, Reyes filed this malicious prosecution action. The complaint named Kruger, as Reyes‘s landlord in the prior action, Rothbard, as Kruger‘s attorney in the prior action, and Alex Alonzo, who was the process server for the three-day notice to pay rent or quit in the prior action, as defendants. The defendants each filed demurrers to the complaint, and Kruger and Rothbard also filed anti-SLAPP motions. The trial court sustained Alonzo‘s demurrer with leave to amend, and in light of that order overruled Kruger‘s and Rothbard‘s demurrers and denied their anti-SLAPP motions as moot.
Kruger and Rothbard each filed demurrers and special motions to strike the complaint under California‘s anti-SLAPP statute (
The trial court granted both anti-SLAPP motions. It ruled on respondents’ identical requests for judicial notice and, in a detailed analysis, considered the evidence and legal issues pertaining to the special motions to strike. The court found that Reyes had not established a probability of prevailing on the merits of each element of the malicious prosecution claim. It overruled the demurrers as moot based upon its ruling granting the two special motions to strike the complaint. The trial court served a file-stamped copy of the order with proof of service on November 22, 2016 (hereafter “November 22 order“). Counsel for Kruger served a notice of entry of judgment or order on November 29, 2016.
On January 23, 2017, the trial court entered a judgment of dismissal based upon the November 22 order granting the anti-SLAPP motions and awarded reasonable attorney fees and costs, to be determined by separate motion (hereafter, “January 23 judgment“). Counsel for Kruger served a notice of entry of judgment or order on January 30, 2017.
On February 2, 2017, Reyes filed a notice of intention to move for a new trial. Reyes filed a memorandum of points and authorities in support of the new trial motion, as well as supporting documents. Kruger and Rothbard filed separate oppositions to the motion for new trial and renewed their prior objections to the Reyes declaration which was resubmitted in support of the motion for new trial. Reyes filed a single reply brief in support of the motion.
Reyes filed a notice of appeal on April 14, 2017. The notice appealed from the judgment entered in favor of Kruger on January 23, 2017, “and from all orders relating thereto, including and not limited to the” order denying the motion for new trial, entered on March 30, 2017.
II. DISCUSSION
Appellants challenge the order granting respondents’ anti-SLAPP motions, focusing largely on what they contend was the trial court‘s erroneous application of the interim adverse judgment rule.4 Appellants did not appeal from the November 22 order on the anti-SLAPP motions, however, but from the January 23 judgment that followed later, which they relied on as the appealable order. Respondent Kruger contends that the failure to timely appeal the anti-SLAPP order deprives this court of jurisdiction. Appellants respond that their appeal from the January 23 judgment was proper under the circumstances; but if this court concludes the appeal was untimely as to the anti-SLAPP order, the appeal of the judgment and “orders relating thereto” was timely, enabling appellate review of the denial of the motion for new trial. We find that appellants’ reliance on the timeliness of the appeal from the January 23 judgment is misplaced, because it is predicated on the application of rule 8.108 to extend time for filing the appeal. We conclude that rule 8.108 did not apply where the notice of motion for new trial was not filed within the jurisdictional limit of 15 days from service of notice of entry of the appealable order granting the anti-SLAPP motions.
A. Challenge to Order Granting Anti-SLAPP Motions Is Not Cognizable
Appellants contend that the trial court erred in granting the anti-SLAPP motions since the evidence in opposition to the motions was adequate to
Appellants claim that they satisfied this threshold as to each of the three elements comprising their malicious prosecution claim by showing that the unlawful detainer action was (1) initiated at respondents Kruger‘s and Rothbard‘s direction and pursued to a legal termination in favor of Reyes and Golden State Care Collective, (2) initiated or maintained without probable cause, and (3) initiated or maintained with malice. (See Parrish, supra, 3 Cal.5th at p. 775 [summarizing the elements of the civil tort of malicious prosecution]; Zamos v. Stroud (2004) 32 Cal.4th 958, 965-966.) Appellants seek to establish that the appellate reversal of the unlawful detainer judgment was a determination on the merits, as opposed to a technical or procedural determination, and that the purported probable cause for the unlawful detainer action was based on Kruger‘s false testimony about having returned the $2,800 rental payment in cash. We are, however, unable to review appellants’ challenge to the anti-SLAPP order because appellants failed to timely appeal from it.
“A reviewing court has jurisdiction over a direct appeal only when there is (1) an appealable order or (2) an appealable judgment.” (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th 688, 696.) Whether a trial court‘s order is appealable is determined by statute. (Ibid.) The anti-SLAPP statute provides that an “order granting or denying a special motion to strike shall be appealable” under section 904.1. (
Appellate jurisdiction over a direct appeal is in this way clearly delineated. As our Supreme Court has explained, “California follows a ‘one shot’ rule under which, if an order is appealable, appeal must be taken or the right to appellate review is forfeited.” (In re Baycol Cases I & II (2011) 51 Cal.4th 751, 762, fn. 8, citing
It is no secret that failing to timely appeal a ruling that by statute is appealable may result in the reviewing court‘s inability to consider the eventual appeal. Case law is replete with such instances after the grant of a motion to strike under the anti-SLAPP statute. In Maughan, supra, 143 Cal.App.4th at page 1247, the court found it had no jurisdiction to consider the appeal from an order granting the defendant‘s motion to strike the complaint under the anti-SLAPP statute, because the order was “final when made, and thus appealable” despite the trial court‘s later issuance of a judgment and related order granting attorney fees and costs. In Russell v. Foglio (2008) 160 Cal.App.4th 653 (Russell), the court similarly concluded that it lacked jurisdiction to review the anti-SLAPP order striking the complaint, because the order was “specifically, statutorily appealable” (id. at p. 659) notwithstanding the appellant‘s dispute over its validity (id. at pp. 659-660). And in Melbostad v. Fisher (2008) 165 Cal.App.4th 987 (Melbostad), the court accepted the appellant‘s concession that failure to appeal the order granting the defendant‘s anti-SLAPP motion precluded appellate review of “the correctness of that ruling.” (Id. at p. 992.)
The chronology of the orders and the appeal in this case affords no basis to depart from the conclusion reached in Maughan, Russell, and Melbostad. The trial court‘s order titled “Order Re Special Motion to Strike” stated after a detailed analysis that “[b]oth special motions to strike the FAC [First Amended Complaint] are GRANTED as Plaintiffs cannot show a probability of prevailing.” The clerk of the superior court filed the order on November 22, 2016 and served notice of entry of the order by mail on the same day. Kruger‘s counsel served the notice of entry of judgment or order on November 29, 2016. Under the applicable rules of court, plaintiffs had 60 days from the trial court‘s service of the file-stamped copy of the order, or from the notice of entry of judgment or order to file the notice of appeal, or until January 23, 2017. (
Plaintiffs’ arguments to the contrary are unavailing. They suggest that the appeal from the anti-SLAPP order was timely, citing the January 23 judgment
Neither contention has merit. The proof of service for the “order re special motion to strike” was file-stamped November 22, 2016, by the clerk of the superior court and included counsel for Kruger, Rothbard, and Reyes.5 The service and filing of the notice of entry of judgment or order “on the party filing the notice of appeal . . .” triggered the 60-day deadline for filing the notice of appeal. (
The later issuance of the judgment of dismissal similarly had no effect on the finality of the underlying anti-SLAPP order. Like in Russell, where the order granting the motion to strike the complaint directed the defendant to prepare a form of judgment, the November 22 order in this case granted respondents’ motions to strike the plaintiffs’ entire complaint and did not need “a further signed order to finalize the adjudication.” (Russell, supra, 160 Cal.App.4th at p. 660.) The January 23 judgment plainly referenced and attached the underlying order, which served as a “final determination of the rights of the parties in this action” (Melbostad, supra, 165 Cal.App.4th at p. 996, citing
Nor do the doctrines of estoppel and waiver, or invited error, apply. Appellants argue that respondents bear some responsibility for the January 23 judgment, which apparently was proposed by Kruger and signed by counsel for Rothbard. Appellants contend that because respondents introduced the so-called “second order” and judgment, they cannot now disclaim it as the operative order in order to claim the benefit of an untimely appeal. (See Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 166 [explaining that a party who, by their conduct, induces the commission of an error is estopped from asserting it as grounds for reversal, and similarly may waive their right to attack error by expressly or impliedly agreeing at trial to the procedure objected to on appeal].)
Nothing in the creation, signing, and filing of the January 23 judgment altered the immediate appealability of the November 22 anti-SLAPP order. Jurisdictional time limits for appealable orders may not be extended by estoppel, consent, waiver, agreement or acquiescence. (Garibotti v. Hinkle (2015) 243 Cal.App.4th 470, 480-482 (Garibotti); see
The California Supreme Court has explained that such strict adherence to the statutory time for filing a notice of appeal is not intended to ” ‘arbitrarily penaliz[e] procedural missteps’ ” (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 666) or to contradict sound public policy of according the right to appeal “in doubtful cases ‘when such can be accomplished without doing violence to applicable rules’ ” (id. at p. 674). Indeed, courts before us have cautioned that litigants in SLAPP litigation frequently fail to recognize that the grant of a special
within the relevant jurisdictional period—and when applicable rules of construction and interpretation fail to require that it be deemed in law to have been so filed—the appellate court, absent statutory authorization to extend the jurisdictional period, lacks all power to consider the appeal on its merits and must dismiss, on its own motion if necessary, without regard to considerations of estoppel or excuse.” (Hollister, supra, at p. 674.)
We conclude that the November 22 order granting respondents’ motions to strike the complaint was an appealable order from which an appeal may have been taken. (
B. Challenge to Order Denying Motion for New Trial Is Not Cognizable
Appellants submit that even determining the appeal to be untimely as to the ruling on the anti-SLAPP motions does not foreclose review of the substantive issues raised in the motion for new trial. As expressed in appellants’ supplemental briefing on the subject,7 the legal issues raised by the motion for new trial mirrored those raised on appeal from the anti-SLAPP order and could present an alternate route to consideration of the merits of this case. We find, however, that the appeal from the January 23 judgment does not
It is well-settled that an order denying a motion for new trial, while not directly appealable, may be reviewed on appeal from the underlying judgment. (Walker v. Los Angeles County Metropolitan Transportation Authority (2005) 35 Cal.4th 15, 19 (Walker).) Appellants point to their notice of appeal, filed on April 4, 2017, which appealed from the judgment entered on January 23, 2017 and “from all orders relating thereto, including and not limited to the Order denying the Motion for New Trial, entered on March 30, 2017, and notice of it provided on April 3, 2017.”
In principle, appellants are correct that timely appeal from the underlying judgment would enable review of the order denying the motion for new trial. (Walker, supra, 35 Cal.4th at pp. 18-19;
jurisdictional time limits—governing motions for new trial and governing the time to appeal—with the statutory designation that an order granting an anti-SLAPP motion is directly appealable.
We begin with the time for filing an appeal. The notice of appeal from a judgment must be filed on or before the earliest of (1) 60 days after the trial court clerk‘s mailing of the notice of entry of judgment, (2) 60 days after the party filing the appeal serves or is served the notice of entry of judgment by a party, or (3) 180 days after entry of judgment. (
It is the “valid notice” provision of rule 8.108(b) that is at issue here. Though rule 8.108 does not define the term “valid,” courts have interpreted it in accordance with the Advisory Committee comment to rule 8.108, which provides that ” ’ “valid” means only that the motion or notice complies with all procedural requirements; it does not mean that the motion or notice must also be substantively meritorious.’ ” ( Branner v. Regents of University of California (2009) 175 Cal.App.4th 1043, 1046, quoting Advisory Com. com., 23 pt. 2 West‘s Ann. Codes, Rules (2009 supp.) foll. rule 8.108, p. 84, italics added.) Respondent Kruger contends that appellants are not entitled to the extension of time under rule 8.108(b) because their motion for new trial did not meet the
strict time limits for filing a notice of intention to move for new trial; consequently, the motion was not valid.9 We believe that Kruger is correct for the following reasons.
First, the time limits on filing and ruling on a motion for new trial, set forth in section 659,10 are jurisdictional. (Kabran v. Sharp Memorial Hospital (2017) 2 Cal.5th 330, 336 (Kabran).) “Both the ‘right to move for a new trial’ and the court‘s jurisdiction to hear it are creatures of statute. [Citations.] A trial court gains jurisdiction to hear such a motion only after a party files a timely notice of intent and judgment has been entered.” (Ibid.) The jurisdictional effect goes both ways, as our Supreme Court reiterated in Kabran. “In particular, the trial court loses jurisdiction to hear a new trial motion if no notice of intent is filed within 15 days of the mailing or service of notice of entry of judgment, or within 180 days of the entry of the judgment.” (Id. at p. 337; see
trial under rule 8.108 is defined in part by the jurisdictional requirements for timely filing of the notice of intent under section 659.
Second, the statutory deadline begins to run when the party seeking to move for a new trial is served with a written notice of entry of judgment. (Palmer v. GTE California, Inc. (2003) 30 Cal.4th 1265, 1267 (Palmer).) In deciding what form a notice of entry of judgment must take to trigger the 15-day time limit for bringing a new trial motion, the Palmer court held that a “particular form of notice” is
Third, while Palmer declined to read into the statute any particular form of written notice of entry of judgment for purposes of triggering the statutory time limits under section 659, the entry of judgment itself is, of course, an indispensable predicate to filing a motion for new trial. A motion for new trial seeks “re-examination of an issue of fact in the same court after a trial and decision by a jury, court or referee.” (
Our understanding of a valid motion for new trial to trigger the extension of time to appeal under rule 8.108 therefore hinges on the timely filing of a notice of intention under section 659 upon service of notice of entry of judgment. The question that arises in this case is whether notice of the entry of an order granting a special motion to strike under section 425.16 satisfied the “entry of judgment” element of section 659 to trigger the statutory time limits for filing a motion for new trial? If the trial court‘s November 22 order on the anti-SLAPP motions—which resulted in service of a “notice of entry of judgment or order” by Kruger on November 29, 2016—triggered the statutory and jurisdictional deadline for filing the motion for new trial (
We find that under the circumstances presented, appellants cannot rely on the application of rule 8.108(b)(1)(A) as having extended the time to appeal. As mentioned above, a motion for new trial seeks “re-examination of an issue of fact in the same court after a trial and decision by a jury, court or referee.” (
Although the notice of intention to move for new trial erroneously stated that it was seeking a new trial of the “order granting summary judgment,” the notice correctly identified November 22 as the date of the order being challenged. Significantly, the November 22 order granting the special motions to strike was itself an appealable order under section 904.1 (
We noted ante in considering timeliness of the appeal from the order granting the anti-SLAPP motions that the January 23 “judgment” merely recapitulated and appeared to formalize the November 22 order. As with the taking of the appeal from the order on the anti-SLAPP motions, there was no need for entry of a further order or formal judgment to proceed with the motion for new trial. The language of section 659 appears confirmatory of this point: the 15-day mandatory time limit for filing a notice of motion for new trial is triggered either by service on the moving party of written notice of entry of judgment, or by service by the clerk of the court of notice of entry of judgment “pursuant to Section 664.5.” (
These factors compel us to conclude that the “notice of entry of judgment or order” served on Reyes on November 29, 2016, not the redundant judgment of dismissal, triggered the 15-day time limit to file notice of the intent to move for a new trial as prescribed by section 659. Reyes‘s filing and service of a notice of intention to move for new trial on February 2, 2017, was not timely as from the November 29, 2016 service of notice of entry of judgment or order for the November 22 anti-SLAPP order and did not extend time under rule 8.108 for the filing of the notice of appeal.
Here, as just explained, Reyes did not meet the jurisdictional deadline for moving for a new trial. “Sections 657, 659, and 660, which govern on what ground and in what time period a litigant may seek a new trial, fall into the jurisdictional category. Not only is a party‘s attempt to file a notice of intent after the relevant deadline invalid, but the court has no power to issue a ruling on the basis of an untimely filed notice or on a ground not set forth in the statute.” (Kabran, supra, 2 Cal.5th at p. 342, italics added.) Accordingly, “a party‘s failure to comply with any of these sections ’ “may be raised for the first time on appeal.” ’ ” (Ibid.)
In sum, the appeal from the January 23 judgment was timely filed only with the benefit of rule 8.108, the application of which was contingent on service and filing of a valid notice of intention to move for new trial. (
III. DISPOSITION
The appeal is dismissed. The parties are to bear their own costs on appeal.
Premo, Acting P.J.
WE CONCUR:
Bamattre-Manoukian, J.
Danner, J.
Reyes et al. v. Kruger et al.
H044661
| Trial Court: | Santa Clara County Superior Court Superior Court No. 116CV293460 |
| Trial Judge: | Hon. Theodore C. Zayner |
| Counsel for Plaintiffs/Appellants: Corinna Reyes Golden State Care Collective, Inc. | John A. Shepardson |
| Counsel for Defendants/Respondents: Todd Rothbard | Binder & Malter Wendy Wastrous Smith Michael W. Malter |
| Counsel for Defendants/Respondents: Kim Kruger Kim Kruger Trust | Willoughby, Stuart, Bening & Cook Ellyn E. Nesbit |
Reyes et al. v. Kruger et al.
H044661