Williams v. Jones & Jones Management CA2/3 ( 2013 )

Filed 6/21/13 Williams v. Jones & Jones Management CA2/3
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.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
SECOND APPELLATE DISTRICT
DIVISION THREE
JANN WILLIAMS et al., B236401
Plaintiffs and Appellants, (Los Angeles County
Super. Ct. No. BC461146)
v.
JONES & JONES MANAGEMENT, INC.,
et al.,
Defendants and Respondents.
APPEAL from an order of the Superior Court of Los Angeles County,
Holly E. Kendig, Judge. Affirmed.
Ronald Williams and Jann Williams, in pro. per., for Plaintiffs and Appellants.
Freeman, Freeman & Smiley and Curtis A. Graham for Defendants and
Respondents.
_______________________________________
INTRODUCTION
Plaintiffs appeal an order granting defendants‟ special motion to strike the
complaint under Code of Civil Procedure section 425.16, the anti-SLAPP statute.
Plaintiffs argue that the statute did not apply because the complaint was based on their
constitutional right to sue for forcible detainer. We conclude that the trial court
correctly found that the complaint arose from activity protected by the anti-SLAPP
statute.1 Plaintiffs also appeal from several interim orders by the trial court which are
non-appealable. We do not have jurisdiction to consider the appeal from those orders.
FACTUAL AND PROCEDURAL BACKGROUND
On August 15, 1998, defendant Jones & Jones Management, Inc. (Jones & Jones)
and plaintiff Jann Williams (Ms. Williams) entered into a residential lease of the subject
property (Property). On July 12, 2010, Jones & Jones filed a complaint for unlawful
detainer on the grounds that Ms. Williams had failed to pay her rent and had been
served with a three-day notice to pay rent or quit. Default judgment was entered against
Ms. Williams.
On September 30, 2010, Ms. Williams filed a motion to set aside the judgment
on the grounds that she had not been properly served with notice of the action and had
paid the rent that was overdue. The court denied her motion. Ms. Williams and her
husband, Ronald Williams (collectively, plaintiffs) were evicted from the Property on
October 19, 2010. Ms. Williams appealed but the appellate division of the superior
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On June 14, 2013, plaintiffs filed a “Notice of Recent Relevant Decision” with
a copy of Mendoza v. Hamzeh (2013) 215 Cal.App.4th 799. We do not consider this
case relevant to plaintiffs‟ case.
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court affirmed the judgment. Ms. Williams then filed a petition for writ of mandate
seeking a reversal of the appellate decision affirming the judgment. The petition was
denied.
On May 9, 2011, plaintiffs filed the underlying action for abuse of process,
forcible detainer, breach of contract and unfair business practices alleging that
Jones & Jones and its counsel, Deborah Friedman (collectively, defendants), had
intentionally failed to serve Ms. Williams with the summons and complaint in the
unlawful detainer action. Defendants filed an anti-SLAPP motion as to the entire
complaint. Plaintiffs moved to strike the anti-SLAPP motion and filed a motion to
compel discovery. The court denied plaintiffs‟ motions. Plaintiffs then moved to
disqualify the judge on the grounds that she was biased against them. The court ordered
the disqualification motion stricken pursuant to Code of Civil Procedure section 170.4,
subdivision (b).2 On August 26, 2011, the court granted defendants‟ anti-SLAPP
motion as to the entire complaint on the grounds that each cause of action was based on
the prosecution of the unlawful detainer action. Plaintiffs filed a timely notice of
appeal.
2
Code of Civil Procedure section 170.4, subdivision (b) provides that “if
a statement of disqualification is untimely filed or if on its face it discloses no legal
grounds for disqualification, the trial judge against whom it was filed may order it
stricken.”
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DISCUSSION
1. Non-Appealable Orders
Plaintiffs appeal from the following orders in the trial court: (1) the order
granting defendants‟ anti-SLAPP motion; (2) the order denying plaintiffs‟ motion to
strike the anti-SLAPP motion; (3) the order denying plaintiffs‟ “motion for a discovery
order”; and (4) the order striking plaintiffs‟ motion to disqualify the judge. Only the
court‟s order granting the anti-SLAPP motion is an appealable order. (Code Civ. Proc.,
§ 904.1, subd. (a)(13).) The other orders are interim orders that have not been expressly
designated by statute as appealable orders and, thus, are not appealable. (Code Civ.
Proc., § 904.1, subd. (a)(2)-(13); see also PBA, LLC v. KPOD, Ltd. (2003)
112 Cal.App.4th 965, 970 [“ „[t]he determination of the question of the disqualification
of a judge is not an appealable order . . . . ‟ ”], Warden v. Brown (1960) 185 Cal.App.2d
626, 629 [“the order of the superior court denying motion to strike respondents‟
pleadings is nonappealable”], and Doe v. United States Swimming, Inc. (2011)
200 Cal.App.4th 1424, 1432-1433 [an order compelling compliance with a discovery
order is not appealable].) “[A] reviewing court is „without jurisdiction to consider an
appeal from a nonappealable order, and has the duty to dismiss such an appeal upon its
own motion. [Citations.]‟ ” (In re Mario C. (2004) 124 Cal.App.4th 1303, 1307.)
Accordingly, we have no jurisdiction to rule on the interim orders cited by plaintiffs.
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2. Anti-SLAPP Motion
We review the trial court‟s order granting the anti-SLAPP motion de novo
(Flatley v. Mauro (2006) 39 Cal.4th 299, 325), and consider “the pleadings, and
supporting and opposing affidavits stating the facts upon which the liability or defense
is based.” (Code Civ. Proc., § 425.16, subd. (b)(2).) We “ „accept as true the evidence
favorable to the plaintiff [citation] and evaluate the defendant‟s evidence only to
determine if it has defeated that submitted by the plaintiff as a matter of law.‟ ” (Flatley
v. Mauro, supra, 39 Cal.4th at p. 326.)
Plaintiffs contend that they have the right to sue for forcible detainer pursuant to
the First Amendment and Article 1, Section 7 of the California Constitution, and that,
therefore, their complaint was not “subject to” the anti-SLAPP statute. Plaintiffs do not
cite to any authority in support of the proposition that the anti-SLAPP statute does not
apply to constitutional issues raised in a complaint. Plaintiffs also do not address the
court‟s ruling as to the other three causes of action in their complaint.
Resolution of an anti-SLAPP motion requires a two-step inquiry. “First, the
court decides whether the defendant has made a threshold showing that the challenged
cause of action is one arising from protected activity. The moving defendant‟s burden is
to demonstrate that the act or acts of which the plaintiff complains were taken „in
furtherance of the [defendant]‟s right of petition or free speech under the United States
or California Constitution in connection with a public issue,‟ as defined in the statute.
([Code Civ. Proc.,] § 425.16, subd. (b)(1).) If the court finds such a showing has been
made, it then determines whether the plaintiff has demonstrated a probability of
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prevailing on the claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002)
29 Cal.4th 53, 67.)
In determining whether a moving party has met its burden under the first prong
of the anti-SLAPP analysis, “the critical consideration is whether the cause of action is
based on the defendant‟s protected free speech or petitioning activity.” (Navellier v.
Sletten (2002) 29 Cal.4th 82, 89, italics omitted.) Prosecution of an unlawful detainer
action is protected activity within the meaning of the anti-SLAPP statute. (Birkner v.
Lam (2007) 156 Cal.App.4th 275, 281.) This includes service of the three-day notice to
quit since it is a legally required prerequisite to the filing of an unlawful detainer action.
(Id., at pp. 281-285.) Here, each cause of action was based on defendants‟ alleged
failure to properly serve the three-day notice to pay rent or quit in support of the
unlawful detainer action. Therefore, defendants met their burden of showing that the
complaint was based on activity protected by the anti-SLAPP statute. Plaintiffs do not
argue that they demonstrated a probability of prevailing on their claims and, thus, have
not shown that they met their burden under the second prong of the anti-SLAPP
analysis. Accordingly, we find that the trial court‟s order granting the anti-SLAPP
motion was proper.
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DISPOSITION
The order granting the anti-SLAPP motion is affirmed. The plaintiffs‟ appeal
from the three non-appealable interlocutory orders described in this opinion is
dismissed. Defendants are to recover their costs on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY, J.
WE CONCUR:
KLEIN, P. J.
HEESEMAN, J.
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