Smith v. Yelp CA1/3 ( 2022 )

Filed 8/19/22 Smith v. Yelp CA1/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or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
FIRST APPELLATE DISTRICT
DIVISION THREE
MARK SMITH,
A162749
Plaintiff and Appellant,
v. (Alameda County
YELP INC., Super. Ct. No. RG20051877)
Defendant and Respondent.
Mark Smith, a self-represented litigant, filed a lawsuit against Yelp
Inc. (Yelp). The trial court granted Yelp’s special motion to strike, and it
later awarded Yelp attorney fees and costs. (Code Civ. Proc., § 425.16;
statutory references are to this code.) Smith — again representing himself —
appeals. We decline to reach the merits of Smith’s challenge to the order
granting the motion to strike. We affirm the attorney fee order.
BACKGROUND
Smith owns a business that claims to, among other things, help clients
submit fictitious business name statements. He has a business owner
account with Yelp, a website that publishes user-submitted business reviews.
In 2020, Smith filed a complaint alleging Yelp was negligent for failing to
remove a “false review” of his business. According to the complaint, Yelp
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“kept the review posted” after Smith notified Yelp the review contained “false
information.” Smith sought $1 million in damages.
Yelp filed a special motion to strike. On January 12, 2021, the trial
court granted the motion and dismissed the complaint. It concluded Smith’s
negligence claim arose from protected activity — the posting of a consumer
review, in connection with an issue of public interest, on a public forum. The
court also determined Smith could not demonstrate a probability of
prevailing for several reasons, including that Yelp’s terms of service state it
owes account holders no duty to remove third-party reviews and that it
cannot be held liable for declining to do so. The clerk served a file-endorsed
copy of the order the following day.1
Thereafter, Yelp sought $3,190 in attorney fees and $973.15 in costs,
supported by a declaration from counsel listing his hourly rate, describing the
work he performed, and seeking fees for 5.8 hours of work. (§ 425.16,
subd. (c).) Smith did not timely oppose the motion. On March 23, 2021, the
trial court granted the motion. It found that Yelp’s hourly rate and hours
worked were reasonable, particularly because Yelp excluded from its fee
request the bulk of the time counsel spent preparing the special motion to
strike and the attorney fee motion.
In May 2021, Smith appealed. The notice of appeal states Smith is
appealing the order on the “motion to strike” issued on March 23 pursuant to
section 425.16, subdivision (c). The notice attaches the attorney fee order.
1 We augment the record to include the trial court’s proof of service of
the file-endorsed order granting the motion to strike. (Cal. Rules of Court,
rule 8.155(a)(1)(A); rule references are to the Rules of Court.)
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DISCUSSION
Smith makes two arguments on appeal. First, he contends the trial
court erred by granting the special motion to strike. We lack the power to
consider the merits of this argument because Smith did not timely appeal the
order granting the motion to strike. (Silverbrand v. County of Los Angeles
(2009) 46 Cal.4th 106, 113.) An order granting a special motion to strike is
immediately appealable. (§§ 425.16, subd. (i); 904.1, subd. (a)(13).) Smith
had 60 days from the date the trial court served the file-endorsed copy of the
order — until March 14, 2021 — to appeal. (Rule 8.104(a)(1)(A); Marshall v.
Webster (2020) 54 Cal.App.5th 275, 280.) He did not file the notice of appeal
until late May, well after the deadline expired. Because Smith failed to
timely appeal the order granting the motion to strike, we cannot consider his
challenge to the order. (Reyes v. Kruger (2020) 55 Cal.App.5th 58, 68.)
We cannot reach the merits of the order granting the motion to strike
for an additional reason — the notice of appeal does not mention the order.
The notice of appeal “defines the scope of the appeal by identifying
the . . . order being appealed.” (Morton v. Wagner (2007) 156 Cal.App.4th
963, 967.) We do not have the power to review an order not mentioned in the
notice of appeal. (In re J.F. (2019) 39 Cal.App.5th 70, 75.) Here, the notice of
appeal states Smith is appealing the order on the “motion to strike” issued on
March 23, 2021, pursuant to section 425.16, subdivision (c), which authorizes
attorney fee awards. The notice of appeal attaches the attorney fee order.
(Russell v. Foglio (2008) 160 Cal.App.4th 653, 661 [“notice of appeal
addressed and explicitly described—to the point of attaching a copy—only the
judgment [for] costs”].) Because the record demonstrates Smith appealed
only from the order awarding attorney fees, we cannot construe the notice to
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apply to a different order issued months earlier. (Baker v. Castaldi (2015)
235 Cal.App.4th 218, 225–226; Russell, at p. 661.)
Smith’s next argument — that the trial court erred by awarding Yelp
attorney fees — is properly before us, but it lacks merit. A prevailing
defendant on a special motion to strike is entitled to recover reasonable
attorney fees and costs. (§ 425.16, subd. (c)(1).) A trial court computes the
amount of the fee award using the lodestar method, i.e., “ ‘by multiplying the
number of hours reasonably expended by the reasonable hourly rate
prevailing in the community for similar work.’ ” (Cabral v. Martins (2009)
177 Cal.App.4th 471, 491.) Here, Yelp supported its request for attorney fees
with a declaration from counsel attesting to his hourly rate, the hours
worked, and the tasks performed. (Pasternack v. McCullough (2021)
65 Cal.App.5th 1050, 1059.) And Smith did not timely oppose the motion.
On this record, Smith has failed to show the court abused its discretion in
awarding Yelp $3,190 in attorney fees. (Marshall v. Webster, supra,
54 Cal.App.5th at pp. 287–288; see also Bell v. American Title Ins. Co. (1991)
226 Cal.App.3d 1589, 1602 [failure to oppose motion in the trial court waived
objections on appeal].)
DISPOSITION
The March 2021 order awarding Yelp attorney fees and costs is
affirmed. The parties are to bear their own costs on appeal. (Rule
8.278(a)(5).)
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_________________________
Rodríguez, J.
WE CONCUR:
_________________________
Tucher, P. J.
_________________________
Fujisaki, J.
A162749
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