West v. Arent Fox LLP , 188 Cal. Rptr. 3d 729 ( 2015 )

6/17/15
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
VAL WEST et al., B255973
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC499863)
v.
ARENT FOX LLP,
Defendant and Respondent.
APPEAL from an order of the Superior Court of Los Angeles County, Teresa
Sanchez-Gordon, Judge. Dismissed.
Kirtland & Packard, Robert A. Muhlbach and Daniel J. Quisenberry for Plaintiff
and Appellant.
Arent Fox, Collin Seals, Jerrold E. Abeles for Defendant and Respondent.
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. (The Los Angeles Jewish Home for the Aging et al. v. Val West
and David Dizenfeld (Super. Ct. Los Angeles County, 2010, 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 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
1
All further statutory references are to the Code of Civil Procedure.
2
Section 425.16 is commonly referred to as the “anti-SLAPP” statute. “SLAPP” is
an acronym for “strategic lawsuit against public participation.” (Jarrow Formulas, Inc. v.
LaMarche (2003) 31 Cal. 4th 728, 732 and fn. 1.) As we discuss in this opinion, another
statute, section 425.18, commonly referred to as the “SLAPPback” statute, contains
provisions specifically addressing and limiting aspects of litigation filed after a party
2
cross-appeal of the trial court’s orders, this court affirmed. (The Los Angeles Jewish
Home for the Aging v. Valerie 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 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 tenth
causes of action. Of the eight original causes of action alleged against Arent Fox, two
remained; the first, described by West in her complaint as the “antiSLAPPback” 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
succeeds in a motion invoking the protection of section 425.16. Soukup v. Law Offices of
Herbert Haffif (2006) 39 Cal. 4th 260 (Soukup) is the seminal case discussing the
SLAPPback statute and its legislative history, which we also discuss in this opinion.
3
Arent Fox was not named as a defendant in the fifth and eighth causes of action.
3
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
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.) 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
4
The obligation to consult with the parties before acting on such a writ is discussed
at footnote 10 of Brown, Winfield & Canzoneri, Inc. v. Superior Court (2010) 47 Cal. 4th
1233, 1257, as we noted in our writ.
5
We take judicial notice of our Order Discharging Alternative Writ of Mandate
filed March 17, 2014, in Arent Fox LLP v. Superior Court of Los Angeles County (Dec.
17, 2013, B253157, [nonpub. opn.]), after we received notice of the trial court’s March
10 ruling. We also take judicial notice of the legislative history of enactment of section
425.18.
6
Dizenfeld did not join in that appeal.
7
In the text of this opinion we discuss West’s contention that her appeal is
authorized by sections 425.16, subdivision (i) and 904.1, subdivision (a)(13). West had
cited a second basis for her appeal in her Notice of Appeal, viz., she contended it was
authorized by the holding of our Supreme Court in Justus v. Atchison (1977) 19 Cal. 3d
564, 568. However, in her April 14, 2014, letter brief, West appears to recede from this
claim. The facts of that case, including that a judgment had been entered and that the
issue addressed concerned an entirely different matter (commonly referred to as the “one
final judgment rule”) make reliance on it inappropriate in any event.
4
“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 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 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
8
West’s notice of appeal misidentified the final order on the matters from which
she might appeal. West, via ex parte application, had obtained reconsideration of the trial
court’s March 5 ruling, doing so on March 10; later the same day the trial court filed the
order described above. We construe the statement in West’s “Notice of Appeal”
referencing the order entered on March 5, 2014, to refer instead to that filed March 10. If
she were appealing from the March 5 order, the appeal would be further beyond the
deadline for complying with the applicable statute, section 425.18, subdivision (g).
9
Section 425.16, subdivision (i) provides: “An order granting . . . a special motion
to strike shall be appealable under Section 904.1.”
Section 904.1, subdivision (a) provides: “An appeal . . . may be taken from any of
the following: [¶] . . . [¶] (13) From an order granting or denying a special motion to
strike under Section 425.16.”
10
Section 425.18, subdivision (b)(1) sets forth the definition of a SLAPPback cause
of action. The section provides: “‘SLAPPback’ means any cause of action for malicious
prosecution or abuse of process arising from the filing or maintenance of a prior cause of
5
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 (S.B. 1264). (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 268.) To address these concerns, certain amendments were proposed, initially
to section 425.16 (A.B. 1158). (Assem. Bill. No. 1158 (2005-2006 Reg. Sess.) as
introduced Feb. 22, 2005.) As A.B. 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 A.B. 1158, to reenact
section 425.16 with certain changes as section 1 of Statutes 2005, chapter 535, but also to
enact, as section 2 of that legislation a new section 425.18. (Assem. Bill No. 1158 (2005-
2006) § 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
action that has been dismissed pursuant to a special motion to strike under Section
415.16.” Section 425.18, subdivision (b)(2) confirms that the motion to be filed to
enforce the protections afforded when a SLAPP back cause of action is at issue is a
“‘special motion to strike’ . . . made pursuant to section 425.16.” (§ 425.18, subd.
(b)(2).)
6
causes of action that are distinct from rules on the same subjects applicable to the broader
group of anti-SLAPP motions generally. (Compare § 425.18, subds. (d) [scheduling of
SLAPPback motions], (e) [discovery] and (f) [costs and attorney fees] with § 425.16,
subds. (f) [scheduling of anti-SLAPP motions other than SLAPPbacks], (g) [discovery]
and (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 A.B.
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.” (Assem. Com. on
Judiciary, Analysis on Assem. Bill. No. 1158 (2005-2006 Reg. Sess.) Apr. 5, 2005, pp. 1-
3; Sen. Judiciary Com., Analysis on Assem. Bill No. 1158 (2005-2006 Reg. Sess.) July
12, 2005, pp. 2, 7; Sen. Judiciary Com., Rep. on Assem. Bill. No. 1158 (2005-2006 Reg.
Sess.), Aug. 16, 2005, pp. 2, 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. Judiciary Com., Analysis on Assem.
Bill. No. 1158 (2005-2006 Reg. Sess.) 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,
7
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.”
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 enactment of 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 AB 1158, the July 12, 2005 Bill Analysis of A.B. 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.” This explanation is
unmistakably based on language then in A.B. 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 A.B. 1158
includes a virtually identical description. (Sen. Judiciary Com., Analysis on Assem. Bill.
No. 1158 (2005-2006 Reg. Sess.) 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.” (§ 425.16, 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
8
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
DISPOSTION
West’s appeal from the trial court’s order of March 10, 2014, is dismissed. Arent
Fox shall recover its costs on appeal.
GOODMAN, J.
We concur:
TURNER, P.J.
MOSK, J.
11
Although Arent Fox was not a party itself to the earlier SLAPP proceeding, but
counsel for a party, from the manner in which a SLAPPback is defined, viz., with
reference to the nature and circumstance of the prior action rather than to particular
parties (see § 425.18, subd. (b)(1)), a lawyer or law firm which represented a party in the
prior proceeding is within the scope of “parties” intended to be protected under these
statutes. This construction of section 425.18, subdivision (b)(1) is supported by the
legislative purpose of this statutory plan which is focused on protecting the valid exercise
of constitutional rights of free speech and petition. (See §§ 425.16, subd. (a) and 425.18,
subd. (a) [containing statements of legislative purpose].) Failing to accord the same
protections to counsel for a protected party as are provided for the party would defeat this
legislative purpose. The overriding intent of the Legislature was to assure that the
“parent statute,” section 425.16, be “construed broadly.” (§ 425.16, subd. (a) [final
sentence].) As a special case enacted to further the protections of section 425.16, the
provisions of section 425.18 are to be similarly construed.

Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to
article VI, section 6 of the California Constitution.
9