Roe v. Maria S. CA6 ( 2021 )

Filed 5/26/21 Roe v. Maria S. CA6
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
JIM ROE, H046182
(Santa Clara County
Plaintiff and Appellant, Super. Ct. No. 17CV315696)
v.
MARIA S. et al.,
Defendants and Respondents.
Plaintiff and appellant Jim Roe (plaintiff or appellant) sued defendants and
respondents Maria S. and her daughter Savannah S. (defendants or respondents) for
malicious prosecution. Appellant appeals from the trial court order granting defendants’
anti-SLAPP motion to strike the complaint under Code of Civil Procedure section 425.16.
For the reasons explained below, we conclude the appeal is untimely and therefore we
lack jurisdiction to consider it. Consequently, we dismiss the appeal.
I. FACTS AND PROCEDURAL BACKGROUND
As the facts underlying the suit are not relevant to our jurisdiction over this appeal,
we do not recite them here. Plaintiff filed a malicious prosecution lawsuit in 2017 against
defendants. Defendants filed an anti-SLAPP motion1 seeking to strike the complaint in
its entirety under Code of Civil Procedure section 425.16. The parties fully briefed
defendants’ motion, and the trial court heard argument on it in January 2018.
On March 5, 2018, the trial court entered a written order granting defendants’ anti-
SLAPP motion “with prejudice” (March 5, 2018 anti-SLAPP order). The trial court
explained the basis for its ruling that plaintiff’s malicious prosecution claim was a
SLAPP and must be stricken. Additionally, the trial court addressed and rejected
plaintiff’s alternative arguments that the trial court should stay his lawsuit or grant the
defendants’ anti-SLAPP motion without prejudice.
That same day, the clerk of the Santa Clara County Superior Court served by mail
the trial court’s March 5, 2018 anti-SLAPP order.
On July 25, 2018, the trial court filed a judgment of dismissal in favor of
defendants based on its March 5, 2018 anti-SLAPP order.
On September 5, 2018, plaintiff filed a notice of appeal. The notice of appeal
states plaintiff appeals from the “[d]ismissal with prejudice under Anti-Slapp [sic]
Statute- [Code of Civil Procedure] section 425.16.”
II. DISCUSSION
Appellant’s brief raises a “single issue” for our review on appeal, specifically
whether the trial court erred “by dismissing this prematurely filed malicious prosecution
action with prejudice rather than dismissing it without prejudice.” The brief asserts the
appeal was timely, as taken from the July 25, 2018 judgment. Respondents’ brief argues
the merits of the trial court’s dismissal order and does not raise the timeliness of the
appeal.
1
“An anti-SLAPP motion seeks to strike a ‘[s]trategic lawsuit against public
participation,’ that is, a ‘SLAPP.’ ” (Wilson v. Cable News Network, Inc. (2019) 7
Cal.5th 871, 882, fn. 2.)
2
This court requested supplemental briefing on whether this court has jurisdiction
over the appeal. Citing to this court’s decision in Reyes v. Kruger (2020) 55 Cal.App.5th
58, 68–71, 76 (Reyes), we asked the parties to address whether appellant’s challenge to
the trial court’s March 5, 2018 anti-SLAPP order is cognizable on appeal from the July
25, 2018 judgment, or whether we must dismiss the appeal for lack of jurisdiction.
Both sides responded with supplemental briefs. Respondents filed a letter brief
asserting that we must dismiss the appeal as untimely. Appellant filed a letter brief that
appears to concede the appeal is untimely.
By statute, an order granting or denying an anti-SLAPP motion, such as that
issued here by the trial court on March 5, 2018, is appealable. (Code Civ. Proc.,
§ 425.16, subd. (i).) “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.”
(Reyes, supra, 55 Cal.App.5th at p. 68.) “[T]he filing of a timely notice of appeal is a
jurisdictional prerequisite. ‘Unless the notice is actually or constructively filed within the
appropriate filing period, an appellate court is without jurisdiction to determine the merits
of the appeal and must dismiss the appeal.’ ” (Silverbrand v. County of Los Angeles
(2009) 46 Cal.4th 106, 113.)
California Rules of Court, rule 8.104 sets forth the relevant deadlines: “unless a
statute or court rule provides otherwise, a notice of appeal must be filed on or before the
earlier of 60 days after service by the superior court clerk of a filed-endorsed copy of the
judgment, or 60 days after notice of entry of the judgment is served by a party. ([Cal.
Rules of Court, rule] 8.104(a)(1)(A)-(B).) For purposes of this rule, ‘ “judgment”
includes an appealable order.’ ([Cal. Rules of Court, rule] 8.104(e).)” (Marshall v.
Webster (2020) 54 Cal.App.5th 275, 279, fn. omitted (Marshall).) Several published
decisions have explained the deadline to appeal an order granting or denying an anti-
SLAPP motion. These decisions have uniformly concluded that a reviewing court has no
jurisdiction over an untimely challenge. (See, e.g., Reyes, supra, 55 Cal.App.5th at pp.
3
66–69; Marshall, at pp. 279–284; Maughan v. Google Technology, Inc. (2006) 143
Cal.App.4th 1242, 1245, 1247.)
Applying these authorities and based on the record here, we conclude that
appellant’s challenge to the March 5, 2018 anti-SLAPP order is not timely. Here, the
order on defendants’ anti-SLAPP motion granted their motion to strike plaintiff’s
malicious prosecution action in its entirety and with prejudice. The trial court filed and
served the order on March 5, 2018. Because an order granting an anti-SLAPP motion is
an appealable order (Code Civ. Proc., § 425.16, subd. (i)), plaintiff’s deadline to file a
notice of appeal from that order was no later than May 4, 2018, i.e., 60 days after the
clerk served the filed-endorsed copy of the appealable order on March 5, 2018. (See Cal.
Rules of Court, rule 8.104(a)(1)(A); Reyes, supra, 55 Cal.App.5th at p. 68; Marshall,
supra, 54 Cal.App.5th at p. 280.)
The notice of appeal, filed on September 5, 2018, was therefore untimely.
Appellant does not assert in his supplemental brief that any other deadline applies. Nor
does he reference any authority providing this court jurisdiction over the appeal.
Additionally, as this court explained in Reyes, that the trial court issued a judgment in
July 2018 does not alter the appealability of the anti-SLAPP order, because the judgment
“merely recapitulated” the prior order granting defendants’ anti-SLAPP motion and has
“no effect on the finality of the underlying anti-SLAPP order.” (Reyes, supra, 55
Cal.App.5th at p. 69.) As we have no jurisdiction over this appeal, we must dismiss it.2
(Id. at p. 76.)
III. DISPOSITION
The appeal is dismissed. The parties are to bear their own costs on appeal.
2
Plaintiff’s request for judicial notice filed August 17, 2020, is denied as moot.
4
______________________________________
Danner, J.
WE CONCUR:
____________________________________
Greenwood, P.J.
____________________________________
Grover, J.
H046182
Roe v. M.S., et al.