Hynes v. Smith CA2/5 ( 2021 )

Filed 3/30/21 Hynes v. Smith CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
JOEY GERALDINE HYNES, B302998
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No.
v. BC708333)
MARILYN SMITH,
Defendant and Appellant.
APPEAL from an order of the Superior Court of Los
Angeles County, Susan Bryant-Deason, Judge. Affirmed.
Reif Law Group, Brandon S. Reif, Marc S. Ehrlich and
Ohia A. Amadi for Defendant and Appellant.
James V. Mellein for Plaintiff and Respondent.
_________________________
Defendant and appellant Marilyn Smith brought an anti-
SLAPP motion (Code Civ. Proc., § 425.16) against a malicious
prosecution cause of action in the third amended complaint of
plaintiff and respondent Joey B. Hynes.1 The trial court denied
the motion as untimely, finding it could have been brought
against Hynes’s second amended complaint, which had effectively
pleaded the malicious prosecution cause of action. We agree and
affirm.
FACTUAL AND PROCEDURAL BACKGROUND
The anti-SLAPP motion at issue was filed in what began as
an attorney malpractice action. Hynes brought suit against her
former attorney, Smith, alleging negligence in her handling of a
wrongful death action and her intentional and malicious
withholding of settlement funds. As our only concern in this
appeal is the timeliness of Smith’s anti-SLAPP motion as
directed to Hynes’s later cause of action for malicious
prosecution, we limit our factual discussion accordingly. We start
with events and litigation that preceded the malpractice lawsuit.
1. The Representation Results in a Settlement
Hynes was appointed administrator of the estate of her
deceased brother. As administrator, she considered bringing suit
for wrongful death against various doctors and entities involved
in his care. Hynes retained Smith for this purpose. Smith filed
the lawsuit and was partially successful, obtaining a settlement
from several defendants amounting to $330,000, but not
successful against other defendants. The settlement proceeds
were placed in Smith’s client trust account.
1 All further undesignated statutory references are to the
Code of Civil Procedure.
2
Hynes and Smith disputed the amount of fees to which
Smith was entitled from the settlement.
2. The Fee Arbitration
The fee dispute proceeded to voluntary arbitration with the
Los Angeles County Bar Association.
On March 1, 2018, the arbitration panel issued its
nonbinding award as follows: “The Law Offices of Marilyn M.
Smith is entitled to $42,031.96 out of the $330,000.00 held in the
attorney-client trust account. The remainder of $287,968.04
should be promptly remitted to Joey H[y]nes.”
Neither Smith nor Hynes requested a trial de novo. The
award therefore became final after 30 days. (Bus. & Prof. Code,
§ 6203, subd. (b).) Smith did not, however, promptly remit the
$287,968.04 to Hynes.
3. The Confirmation Action and Interpleader
Instead of transmitting the money to Hynes, Smith brought
two lawsuits that tied up the funds for approximately an
additional year – depriving Hynes of reimbursement for
substantial amounts she had expended in funding the litigation,
and costing her additional expenses.2 These cases would later
form the basis of Hynes’s malicious prosecution cause of action
against Smith.
A. The Confirmation Action
On April 6, 2018, attorney Smith filed suit against Hynes
to confirm the arbitration award (“Confirmation Action”). In her
form complaint, she identified the amount in dispute as “$42,031”
– i.e., the amount the arbitrators had said she was entitled to
2 Hynes said she had taken out a home equity line of credit
in order to fund the wrongful death action. She was continuing to
incur interest expenses of $1,000 per month.
3
retain. She did not reference the amount the arbitrators awarded
to Hynes. In addition to seeking a judgment in her favor in that
amount, Smith sought interest, costs, and attorney fees. Hynes
answered the petition, agreeing that Smith be granted her
$42,031.96 share of the arbitration award, but denying that
Smith was entitled to any interest, costs or fees.
B. The Interpleader
On April 12, 2018, about a week after filing the
Confirmation Action, Smith filed a complaint in Interpleader,
depositing the entire $330,000 into the court (“Interpleader”).
She asserted that she was entitled to her $42,031.96 out of the
fund, but that Hynes “disputes that [Smith] is entitled to any
portion” of the money. She also identified as defendants the
three heirs of Hynes’s brother, asserting that since Hynes
pursued the underlying action as administrator of his estate, the
heirs had an interest in the funds. She alleged she could not
distribute the funds to Hynes – the administrator – without an
order from the Probate Court. Finally, she also alleged that
Medicare claimed a lien on the settlement funds, although she
did not name Medicare as a defendant in the Interpleader.
Smith sought release of the $42,031.96, plus interest, costs
and fees.
As she did in the Confirmation Action, Hynes responded
that Smith should receive the $42,031.96 ordered by the
arbitrators, but without interest, costs or fees.
C. Ultimate Resolution of the Confirmation Action
and Interpleader
The Confirmation Action and the Interpleader would not
resolve for a year – overlapping with the current litigation.
Ultimately, on December 14, 2018, Hynes obtained from the
4
Probate Court an order to release the interpleaded funds as
follows: $42,031.96 to Smith and $287,968.04 to Hynes as
administrator of the estate. Any interest accrued on the funds
was to be divided proportionately. Once the funds were delivered
to Hynes as administrator, she was to distribute $208,244.08 to
herself as reimbursement for costs and fees she had advanced in
the wrongful death action. She was to pay $15,000 to each of the
three heirs, and could hold the remainder in her administrator’s
account for the payment of future costs (e.g., Medicare) which
may be incurred. Hynes received the funds.
On April 23, 2019, more than a year after it was filed, the
Confirmation Action was dismissed without prejudice at Smith’s
request.3
On May 31, 2019, the Interpleader was also dismissed
without prejudice.
4. Hynes’s Complaint in This Action
On May 31, 2018 – shortly after Smith filed the
Confirmation Action and Interpleader – Hynes, representing
herself, brought the present lawsuit against Smith, alleging legal
malpractice.4 Hynes’s complaint went through several iterations
and was challenged multiple times. To reiterate, our concern is
only her malicious prosecution claim.
3 Smith represents that this dismissal was the result of an
agreement; Hynes disagrees. We need to not resolve the dispute.
4 Hynes alleged that she was 86 years old. Because of her
age, this action is entitled to preference. (§ 36.)
5
5. Hynes’s First Amended Complaint Alleges Abuse of
Process
Pursuant to stipulation, on October 16, 2018, Hynes filed
her first amended complaint. This complaint re-alleged her
original cause of action for malpractice and added a claim for
abuse of process. Hynes alleged that Smith’s filing of the
Confirmation Action and the Interpleader constituted abuse of
process. She alleged that, in both cases, Smith misrepresented
the existence of a dispute regarding the allocation of the
settlement funds, when no dispute existed. Hynes alleged that
Smith abused the process of the courts by bringing these actions
in order to prevent Hynes from receiving the funds to which she
was entitled, in retaliation for Hynes’s success at the fee
arbitration.
6. The Trial Court Characterizes the Abuse of Process
Cause of Action as One for Malicious Prosecution
On January 23, 2019, Smith moved for judgment on the
pleadings. She argued, among other things, that the abuse of
process cause of action was barred by the litigation privilege.
(Civ. Code, § 47, subd. (b).)
The motion was heard on February 20, 2019. The trial
court, in ruling on the motion for judgment on the pleadings,
concluded that, while the litigation privilege applies to abuse of
process, Hynes’s “allegations sound in malicious prosecution,
which is not barred by the litigation privilege. [Citation.]” The
court, on its own motion, took judicial notice of the docket in the
Interpleader, which indicated the action was still pending. The
court recognized that, with the Interpleader still pending, Hynes
could not allege favorable termination, a necessary element in a
6
malicious prosecution claim. The court granted judgment on the
pleadings with 10 days leave to amend this cause of action.
7. Hynes’s Second Amended Complaint
On March 4, 2019, Hynes filed her second amended
complaint. As neither the Confirmation Action nor the
Interpleader had been resolved, Hynes again titled her cause of
action “abuse of process.”
8. Smith Moves for Summary Judgment Construing the
Second Amended Complaint as Pleading Malicious
Prosecution
On March 6, 2019 – two days after Hynes filed her second
amended complaint – Smith moved for summary judgment. As to
the abuse of process cause of action, Smith again argued it was
barred by the litigation privilege. However, she included, under
a separate heading of her motion, an alternative argument that
Smith “cannot prevail even if her ‘Abuse of Process’ cause of
action is construed as sounding in Malicious Prosecution.”
(Capitalization omitted.) This argument was specifically directed
to the tort of malicious prosecution; Smith argued that a party
cannot be liable in malicious prosecution for naming someone as
a claimant in interpleader.
9. Hynes Moves for Leave to File a Third Amended
Complaint to Rename Her Abuse of Process Cause of
Action as One for Malicious Prosecution
On March 25, 2019 – prior to opposing Smith’s summary
judgment motion – Hynes, still self-represented, moved for leave
to file a third amended complaint, in which she changed the
name of her abuse of process cause of action to malicious
prosecution. As she explained in her motion, “Here plaintiff has
filed an amended complaint which is essence the same as the
7
prior amended complaint, except for the fact that the Third
Cause of Action, lies in Malicious Prosecution instead of Abuse of
Process.”5
5 Hynes also made several relatively minor changes to her
allegations, primarily to the legal differences in the elements of
the two causes of action. The essential factual allegations of the
malicious prosecution cause of action in the third amended
complaint were the same as the factual allegations in the abuse
of process cause of action in the second amended complaint. We
have compared the second amended complaint with the proposed
third amended complaint. One of the changed paragraphs is as
follows – with omissions noted in strikethrough and additions in
italics: “Defendant, and each of them, had an ulterior motive to
Interplead the settlement funds so as to prevent Plaintiff from
obtaining the funds that were Awarded to her as Administrator
of the Estate. Defendant, and each of them, used the courts to
obtain an unlawful seizure of the settlement funds. As a direct
result of the improper seizure of the settlement funds, Plaintiff
suffered financial loss and emotional distress. Defendant, and
each of them, as a direct result of their breach of duty of care, has
caused her physical and emotional stress and a autoimmune
disease, brought on by stress. Defendant Interpleaded the Award
and forced Plaintiff to plead for her legal right to the funds in
three different courts, causing Plaintiff to return to the courts
numerous times, causing Plaintiff financial and emotional harm.
Plaintiff prevailed in each court and was able to open up a trust
account, for the heirs, as Administrator of the Estate.”
We observe that, while Hynes alleged in her proposed third
amended complaint that she had “prevailed in each court,” she
was apparently referring to having prevailed on interim rulings;
neither the Confirmation Action nor the Interpleader had been
dismissed at the time.
8
10. Smith Moves to Strike the Second Amendment
Complaint
On April 9, 2019 – while Smith’s motion for summary
judgment and Hynes’s motion for leave to file a third amended
complaint were both pending – Smith filed a separate motion to
strike Hynes’s second amended complaint.6 As she did in her
summary judgment motion, Smith treated the “Abuse of Process”
cause of action in Hynes’s second amended complaint as a cause
of action for malicious prosecution, stating: “In the [order
granting judgment on the pleadings], the Court dismissed
Plaintiff’s Third Cause of Action for abuse of process, but which
the Court found ‘sounds in malicious prosecution.’ [Citation.] As
the Court opined, an essential element of malicious prosecution is
termination in the Plaintiff’s favor. [Citation.] Taking sua
sponte judicial notice that the proceeding in Defendants’
interpleader action was not terminated the court held as a matter
of law that while the ‘[Interpleader] is still pending, Plaintiff
cannot allege termination in her favor, which is necessary to
overcome the litigation privilege.’ [Citation.] Plaintiff’s [second
amended complaint] does not allege termination in her favor, nor
can she because the Interpleader Action [citation] is still ongoing.
[Citation.]” This single paragraph was the entirety of Smith’s
motion to strike Hynes’s third cause of action; at no point did she
argue that the cause of action was one for abuse of process.
The trial court ultimately denied the motion to strike the
cause of action.
6 The motion was brought pursuant to section 436,
subdivision (b), which allows a court to strike any pleading “not
drawn or filed in conformity with the laws of this state, a court
rule, or an order of the court.” It was not an anti-SLAPP motion.
9
11. The Trial Court Continues the Motion for Leave to
File the Third Amended Complaint and Denies
Summary Judgment
On May 16, 2019, the court held a hearing on Hynes’s
motion for leave to file the third amended complaint. Concluding
that Hynes had failed to comply with the applicable rule of court
in her motion for leave, the trial court continued the hearing to
allow Hynes to perfect her motion. (Cal. Rules of Court, rule
3.1324(b).)
The court then, on its own motion, advanced the hearing on
Smith’s summary judgment motion, and denied it. The court
believed the motion was premature, as a summary judgment
motion must be directed toward the pleadings, and the pleadings
had not yet been finalized. The court chastened Smith’s counsel
for the speed with which they had sought summary judgment,
stating, “I think filing a motion for summary judgment two days
after somebody has filed an amended complaint is almost on the
verge of unbelievable and outrageous.”
12. The Third Amended Complaint is Filed
After additional briefing and a hearing, the court granted
Hynes’s motion for leave to file her third amended complaint.
The court explained, “It didn’t seem to me that [the third
amended complaint] added any new facts or theories. All it did is
clean up the mess that Ms. Hynes had made in her pleadings.”7
7 Smith’s counsel “mostly agree[d]” with this assessment,
although he indicated that Hynes had added some additional
facts “especially to her first cause of action for professional
malpractice.”
10
The third amended complaint was filed on July 12, 2019, by
which time the Confirmation Action and Interpleader had been
dismissed. Smith answered the complaint.
13. Smith’s Anti-SLAPP Motion
On September 16, 2019, nearly a year after Hynes filed her
first amended complaint, Smith brought her anti-SLAPP motion
challenging the malicious prosecution cause of action.8
Hynes, now represented by counsel, filed an opposition on
the merits. Smith filed a reply. Hynes filed a declaration in
opposition to the reply.
14. Hynes’s Supplemental Opposition on Untimeliness
On October 24, 2019, Hynes’s counsel filed a supplemental
opposition, arguing the anti-SLAPP motion was untimely.
Specifically, Hynes argued that her cause of action for malicious
prosecution had been pleaded in her prior complaints, and should
have been challenged by anti-SLAPP, if at all, when those
complaints were filed.
When Hynes’s counsel filed the supplemental opposition, he
suggested there would be no prejudice to Smith if the court
allowed the filing of the opposition because the court could
continue the hearing at Smith’s request.
15. The Trial Court Denies the Anti-SLAPP Motion as
Untimely
At the October 25, 2019 hearing on the anti-SLAPP motion,
the trial court read its tentative order, denying the motion as
untimely. Smith did not suggest the trial court should not have
considered the untimeliness argument, nor did she request a
8 Smith’s anti-SLAPP motion addressed individual factual
allegations in other causes of action as well. On appeal, she
limits her argument to the malicious prosecution claim.
11
continuance to prepare a reply to it. After a brief argument, the
court adopted its tentative. Smith filed a timely notice of appeal.
DISCUSSION
We begin our analysis with a brief review of the anti-
SLAPP law, codified in section 425.16. “Section 425.16 ‘provides
a procedure for weeding out, at an early stage, meritless claims
arising from protected activity.’ [Citation.] ‘The Legislature
enacted section 425.16 to prevent and deter “lawsuits [referred to
as SLAPPs] brought primarily to chill the valid exercise of the
constitutional rights of freedom of speech and petition for the
redress of grievances.” [Citation.] Because these meritless
lawsuits seek to deplete “the defendant’s energy” and drain “his
or her resources” [citation], the Legislature sought “ ‘to prevent
SLAPPs by ending them early and without great cost to the
SLAPP target’ ” [citation]. Section 425.16 therefore establishes a
procedure where the trial court evaluates the merits of the
lawsuit using a summary-judgment-like procedure at an early
stage of the litigation. [Citation.] In doing so, section 425.16
seeks to limit the costs of defending against such a lawsuit.’
[Citation.]” (Newport Harbor Ventures, LLC v. Morris Cerullo
World Evangelism (2018) 4 Cal.5th 637, 642 (Newport).)
1. The Anti-SLAPP Motion Was Untimely
An anti-SLAPP motion must be filed within 60 days of
service of the complaint, or later within the court’s discretion.
(§ 425.16, subd. (f).) We review de novo the trial court’s
determination that an anti-SLAPP motion was untimely.
(Starview Property, LLC v. Lee (2019) 41 Cal.App.5th 203, 208
(Starview).)
The parties agree that Newport and Starview govern the
issue of the timeliness of an anti-SLAPP motion with respect to
12
an amended complaint. The dispute in Newport arose from a
ground sublease of real property. The plaintiffs alleged that the
defendants “fraudulently settled an unlawful detainer action
involving the property.” (Newport, supra, 4 Cal.5th at p. 640.)
Their first complaint alleged multiple causes of action including
breach of contract and breach of the implied covenant of good
faith. Eventually, plaintiffs filed a third amended complaint
which re-alleged the previously-pleaded causes of action and
added, for the first time, causes of action for quantum meruit and
promissory estoppel. The defendants filed an anti-SLAPP motion
directed to the third amended complaint. Plaintiffs argued the
anti-SLAPP was untimely because it had not been brought
against any earlier complaint, and the trial court agreed. (Ibid.)
On appeal, the Court of Appeal concluded the anti-SLAPP motion
was, in fact, timely as to the two causes of action pleaded for the
first time in the third amended complaint (although it affirmed
the denial of the anti-SLAPP motion on the merits, as it
concluded plaintiffs had established a probability of prevailing).
(Id. at p. 641.)
Our Supreme Court affirmed, specifically agreeing with the
Court of Appeal’s interpretation of section 425.16’s timeliness
requirements. (Newport, supra, 4 Cal.5th at p. 646.) It held that
“a defendant must move to strike a cause of action within 60 days
of service of the earliest complaint that contains that cause of
action.” (Id. at p. 640.) Specifically, an anti-SLAPP motion may
be brought following an amended complaint “as to new claims not
previously made.” (Id. at p. 643.) As the court explained, “In this
case, as the trial court noted when it exercised its discretion to
deny a late filing, much litigation, including discovery, had
already been conducted for two years before the anti-SLAPP
13
motion brought it to a halt. It is far too late for the anti-SLAPP
statute to fulfill its purpose of resolving the case promptly and
inexpensively. ‘An anti-SLAPP motion is not a vehicle for a
defendant to obtain a dismissal of claims in the middle of
litigation; it is a procedural device to prevent costly,
unmeritorious litigation at the initiation of the lawsuit.’
[Citation.] To minimize this problem, section 425.16,
subdivision (f), should be interpreted to permit an anti-SLAPP
motion against an amended complaint if it could not have been
brought earlier, but to prohibit belated motions that could have
been brought earlier (subject to the trial court’s discretion to
permit a late motion). This interpretation maximizes the
possibility the anti-SLAPP statute will fulfill its purpose while
reducing the potential for abuse.” (Id. at p. 645.)
In Starview, the Court of Appeal considered the application
of Newport to a case where, although the cause of action alleged
in the amended complaint was new, the protected activity
allegedly underlying it had been pleaded in a prior complaint.
The parties owned neighboring properties. Starview had an
easement over the Lees’ driveway, and needed the Lees to sign a
covenant in order for the City to approve Starview’s remodeling
plans. When the Lees declined to sign without further monetary
and other consideration, Starview sued, alleging causes of action
for breach of contract, specific performance, and injunctive relief.
(Starview, supra, 41 Cal.App.5th at p. 207.) Over a year later,
following discovery and motions for summary judgment/
adjudication, Starview filed a first amended complaint, re-
alleging the causes of action for breach of contract and injunctive
relief, but adding claims for breach of the implied covenant of
good faith, negligent and intentional interference with easement
14
and private nuisance. The newly added claims were based on the
Lees’ failure to sign the covenant and on their extra-contractual
demands – the same essential allegations that were in the causes
of action originally pleaded. (Ibid.) The trial court denied the
Lees’ anti-SLAPP motion as untimely, on the basis that it could
have been directed to the initial complaint, because the new
claims were based on facts alleged in that complaint. (Id. at
p. 209.) The Court of Appeal disagreed: “By its terms, the anti-
SLAPP statute is directed at striking causes of action, not merely
factual allegations. [Citations.] That is why causes of action
under the anti-SLAPP statute have been defined as ‘claims for
relief that are based on allegations of protected activity.’
[Citation.] Here, Starview may have asserted the alleged
protected activity in the original complaint, but it did not assert
the challenged ‘claims for relief’ until the [first amended
complaint]. The Lees could not have brought a motion to strike
those claims from the original complaint because they did not
exist to be stricken.” (Id. at p. 209.)
Smith argues that, under the authority of Newport and
Starview, we must reverse. She takes the position that the
malicious prosecution cause of action, properly identified,
appeared for the first time in Hynes’s third amended complaint,
and was therefore subject to an anti-SLAPP motion, even though
it was based on factual allegations that appeared in Hynes’s
abuse of process cause of action in her first and second amended
complaints.
15
We reject Smith’s argument.9 On the unique facts of this
case, the cause of action pleaded in Hynes’s second amended
complaint was malicious prosecution, and Smith knew it. And
the trial court knew it. The cause of action, as it appeared in the
first amended complaint, was denominated “abuse of process.”
But in ruling on Smith’s motion for judgment on the pleadings on
the first amended complaint, the trial court found that Hynes’s
“allegations sound in malicious prosecution.”
In her second amended complaint, when Hynes re-alleged
her cause of action as abuse of process, Smith challenged it as a
malicious prosecution claim. Her summary judgment motion
treated the cause of action as pleading abuse of process or
malicious prosecution; her motion to strike construed it as only
pleading malicious prosecution. As our Supreme Court explained
in Newport, the law should be interpreted to allow “an anti-
SLAPP motion against an amended complaint if it could not have
been brought earlier, but to prohibit belated motions that could
have been brought earlier.” (Newport, supra, 4 Cal.5th at p. 645.)
The trial court, Smith, and Hynes all understood the second
amended complaint’s “abuse of process” cause of action was really
one for malicious prosecution. The cause of action challenged the
initiation of the Confirmation Action and the Interpleader, not
that other forms of process had been misused. Smith has offered
no explanation for why she was able to challenge that cause of
9 Because we conclude the anti-SLAPP motion was untimely
under the rule established by Newport and discussed in Starview,
we need not decide whether we agree with Starview’s
implementation of Newport, or Starview’s application of anti-
SLAPP law following Baral v. Schnitt (2016) 1 Cal.5th 376.
16
action as malicious prosecution via a motion for summary
judgment and a traditional motion to strike, but could not have
done so by an anti-SLAPP motion.10 Given that Smith in two
motions characterized the cause of action in Hynes’s second
amended complaint as one for malicious prosecution, she may not
now assert that Hynes did not, in fact, plead malicious
prosecution.11 The anti-SLAPP motion directed to the third
amended complaint was therefore untimely.
10 At oral argument on appeal, Smith suggested that she
could not have challenged the third cause of action as a malicious
prosecution action until the third amended complaint – as this
was the first complaint Hynes filed after the Confirmation Action
and Interpleader had terminated. This contention rings hollow
given that, in Smith’s motion to strike the second amended
complaint, she specifically argued that the third cause of action
did not validly state a claim for malicious prosecution because the
Interpleader had not yet terminated. Not only was Smith able to
challenge the cause of action as one for malicious prosecution; she
raised the substantive argument that the cause of action was not
yet ripe.
11 Smith argues, in her reply brief, “According to Hynes,
Smith should have discerned that Hynes, despite alleging abuse
of process [in the first amended complaint] and [second amended
complaint], and despite failing to allege all the elements of
malicious prosecution in the [third amended complaint], and
despite the fact that there had been no final disposition
conclusion of the Interpleader Action at that time, was actually
alleging (or trying to allege) a cause of action for malicious
prosecution that would have been subject to an Anti-SLAPP
motion.” Smith had no difficulty discerning exactly this, when
she filed her motion for summary judgment and motion to strike
the second amended complaint.
17
2. The Court Did Not Abuse Its Discretion in Addressing
the Untimeliness Issue
Smith argues the trial court abused its discretion in
considering Hynes’s supplemental opposition, which first raised
the argument that the anti-SLAPP motion was untimely, on the
basis that the supplemental opposition was itself untimely.12
First, we observe that it is not certain that the trial court
considered the supplemental opposition. It may very well be that
the trial court identified the timeliness issue on its own. Smith
argues that any suggestion the court reached the issue on its own
“defies credulity” because the court “relied exclusively on the only
two cases cited in the Supplemental Opposition – Newport
Harbor and Starview . . . .” This is untrue. The supplemental
opposition had cited Newport, but not Starview; the trial court’s
own research apparently found Starview. Second, Starview was
filed on October 17, 2019, several days after Hynes filed her
initial opposition, providing a justification (albeit unaddressed by
the parties) for the trial court to consider the issue even though it
was raised late. Third, this is a pure issue of law on undisputed
facts. We could address it for the first time on appeal (see Barnes
v. Department of Corrections (1999) 74 Cal.App.4th 126, 129–130)
and there is no reason the trial court could not similarly consider
it. We find no abuse of discretion in the trial court’s decision to
accept the late-filed papers.
12 Smith similarly argues the trial court erred in considering
Hynes’s supplemental declaration. As the declaration discussed
only whether Hynes’s third amended complaint was properly
verified, it is not directly related to the court’s denial of the anti-
SLAPP motion – the only ruling before us on appeal.
18
In a related contention, Smith argues that the court “did
not consider continuing the hearing so that Smith could prepare
a reply to the Supplemental Opposition. [Citation.]” As we have
discussed, Hynes’s counsel indicated in its supplemental
opposition that Hynes was amenable to a continuance to
eliminate any possible prejudice if Smith requested one, but
Smith never did. It is too late for Smith to now assert the trial
court should have granted a continuance that Smith did not
request.
DISPOSITION
The order denying the anti-SLAPP motion as untimely is
affirmed. Smith is to pay Hynes’s costs on appeal.
RUBIN, P.J.
BAKER, J.
KIM, J.
19