Pacheco v. Universal Protection Services CA2/5 ( 2024 )

Filed 10/21/24 Pacheco v. Universal Protection Services CA2/5
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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 FIVE
IRVING PACHECO, B331762
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No.
v. 22STCV11856)
UNIVERSAL PROTECTION
SERVICES, L.P.,
Defendant and Respondent.
APPEAL from an order of the Superior Court of
Los Angeles County, Jill Feeney, Judge. Affirmed.
King & Siegel and Robert J. King for Plaintiff and
Appellant.
Martenson, Hasbrouck & Simon, David L. Lewis and
Danielle J. Kaufman for Defendant and Respondent.
Appellant Irving Pacheco appeals from an order denying
his special motion to strike allegations from the cross-complaint
(anti-SLAPP motion; Code Civ. Proc., §425.16)1 in favor of
respondent Universal Protection Services, LP, doing business as
Allied Universal Security Services (Universal). On appeal,
Pacheco contends the trial court abused its discretion by
declining to consider the untimely motion, the allegations at
issue were based on protected conduct, and Universal did not
show a probability of prevailing on the merits. We find no abuse
of discretion has been shown, and therefore, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Pacheco is a former Universal employee. He filed a
complaint against Universal in April 2022, and an amended
complaint in July 2022, alleging several causes of action,
including discrimination and retaliation.
On August 19, 2022, Universal filed a cross-complaint
against Pacheco based on allegations that Pacheco accessed a
former work email address without authorization and falsified
email communications to provide to third parties, including the
Equal Employment Opportunity Commission (EEOC), as
evidentiary support for his discrimination charge.
On August 22, 2022, Pacheco served discovery requests on
Universal related to the claims in the amended complaint and the
cross-complaint, including 131 requests for production, 83 special
1 “SLAPP” stands for strategic lawsuit against public
participation. (See Equilon Enterprises v. Consumer Cause, Inc.
(2002) 29 Cal.4th 53, 57.) Unless otherwise specified, all
subsequent statutory citations are to the Code of Civil Procedure.
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interrogatories, 79 requests for admission, and 29 form
interrogatories.
Universal filed an amended cross-complaint on
November 2, 2022, containing many of the same allegations as
the original cross-complaint. Pacheco filed an answer to the
amended cross-complaint.
On December 23, 2022, Universal provided discovery
responses and produced more than 700 pages of documents.
After receiving Universal’s discovery responses, Pacheco filed an
anti-SLAPP motion on December 23, 2022, as to allegations in
five causes of action in the amended cross-complaint. Pacheco
denied authoring the allegedly false emails, but argued
alternatively that even if he authored the emails or provided
them to the EEOC, the allegations of the complaint were based
on protected statements that he made to the EEOC in the course
of making his discrimination complaint. Pacheco filed a
declaration denying being the author of the false emails.
Pacheco’s attorney, Robert King, filed a declaration limited to the
fees and costs incurred in connection with the filing of the anti-
SLAPP motion.
Universal opposed the anti-SLAPP motion on the grounds
that: it was untimely because it should have been filed in
response to the initial complaint; Pacheco’s statements to the
EEOC were not a protected activity because they were “illegal
speech;” and there was a probability that Universal would prevail
on the merits.
Pacheco filed a reply arguing that the parties met and
conferred about the allegations of the original complaint, the
amended cross-complaint added allegations which made it clear
the causes of action were subject to an anti-SLAPP motion, and
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even if the amended cross-complaint were not based on new
allegations, the court should exercise its discretion to consider the
motion. Pacheco further argued that the causes of action arose
from protected speech and the litigation privilege barred the
causes of action.
In a supplemental declaration, Pacheco’s attorney Robert
King identified specific allegations to be stricken from the
amended cross-complaint. He did not provide any information
about the conversations between the parties during the meet and
confer process or the timing of the motion.
A hearing was held on the anti-SLAPP motion on May 15,
2023, and the trial court took the matter under submission. On
May 16, 2023, the trial court issued a minute order denying the
motion. The court found the anti-SLAPP motion was untimely
because it was not filed within 60 days of the initial cross-
complaint, and the time limit did not begin to run again when
Universal filed the amended cross-complaint because the original
cross-complaint contained the same allegations about falsified
material submitted to the EEOC. Under the circumstances,
Pacheco was on notice of Universal’s allegations about material
submitted to the EEOC from the time the original cross-
complaint was filed. The court declined to exercise its discretion
to consider the late anti-SLAPP motion. The court noted that
even if the motion had been timely, it would have been denied on
the merits because the alleged conduct was illegal on its face, and
therefore, not protected activity.
Neither the trial court’s minute order, nor the attached
certificate of mailing is file-endorsed. Pacheco filed a timely
notice of appeal on July 18, 2023.
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DISCUSSION
Pacheco contends the trial court abused its discretion by
declining to consider his anti-SLAPP motion filed 126 days after
the original complaint. He asserts that the delay was due to a
meet and confer process that resulted in Universal filing an
amended cross-complaint, eliminating several causes of action,
which is consistent with the purpose of the anti-SLAPP statute to
prevent unmeritorious litigation at the initiation of the lawsuit.
He contends that when a party files an anti-SLAPP motion after
engaging in a meet and confer process that results in the other
party filing an amended complaint, it is an abuse of discretion for
the trial court to refuse to consider the motion even if the original
complaint alleged protected activity. We disagree.
“A party may not file an anti-SLAPP motion more than 60
days after the filing of the complaint, unless the trial court
affirmatively exercises its discretion to allow a late filing.
(§ 425.16, subd. (f).)” (Platypus Wear, Inc. v. Goldberg (2008) 166
Cal.App.4th 772, 775 (Platypus).) The parties are not required to
meet and confer before filing an anti-SLAPP motion. (Trinity
Risk Management, LLC v. Simplified Labor Staffing Solutions,
Inc. (2021) 59 Cal.App.5th 995, 1008.)
Among other things, “[t]he purpose of these timing
requirements is to facilitate the dismissal of an action subject to a
special motion to strike early in the litigation so as to minimize
the cost to the defendant” (Chitsazzadeh v. Kramer & Kaslow
(2011) 199 Cal.App.4th 676, 682) and “ ‘to avoid tactical
manipulation of the stays that attend anti–SLAPP proceedings’ ”
(San Diegans for Open Government v. Har Construction, Inc.
(2015) 240 Cal.App.4th 611, 624 (San Diegans)).
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Discretion under section 425.16, subdivision (f), “refers to a
zone of latitude within which a trial court’s actions must be
upheld on appeal.” (Hewlett–Packard Co. v. Oracle Corp. (2015)
239 Cal.App.4th 1174, 1187.) “In determining whether to permit
a late motion, the most important consideration is whether the
filing advances the anti–SLAPP statute’s purpose of examining
the merits of covered lawsuits in the early stages of the
proceedings. [Citations.] Other relevant factors include the
length of the delay, the reasons for the late filing and any undue
prejudice to the plaintiff.” (San Diegans, supra, 240 Cal.App.4th
at p. 624; see Platypus Wear, supra, 166 Cal.App.4th at p. 776
[“[i]n exercising its discretion in considering a party’s request to
file an anti–SLAPP motion after the 60–day period, a trial court
must carefully consider whether allowing such a filing is
consistent with [the] purpose” of “ensuring the prompt resolution
of lawsuits that impinge on a defendant’s free speech rights”].)
No abuse of discretion has been shown in this case. The
purpose of the anti-SLAPP statute is to facilitate dismissal at the
earliest stages of litigation when applicable, but Pacheco’s anti-
SLAPP motion was not filed until double the time allotted by
statute, after the parties filed additional pleadings and Universal
responded to nearly 200 interrogatories and requests for
admission and produced 700 pages of documents. The original
cross-complaint contained causes of action based on the allegedly
protected conduct, in particular the creation of false emails to
provide to the EEOC in connection with his discrimination
charges, so Pacheco was on notice of Universal’s allegations.
Pacheco asserts in his briefing that he engaged in a productive
meet and confer process after the original cross-complaint was
filed, but no meet and confer process is required under the
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statute, his attorney’s declaration provided no information about
the parties’ conversations, and Pacheco does not contend that he
raised the issue of protected activity as part of the meet and
confer process. Saving the issue of protected activity for a
subsequent, untimely anti-SLAPP motion, after requesting and
receiving discovery relevant to the claims, is not consistent with
the purpose of the anti-SLAPP statute. The trial court did not
abuse its discretion by declining to consider the untimely anti-
SLAPP motion.
DISPOSITION
The order denying the special motion to strike is affirmed.
Respondent Universal Protection Services, LP, doing business as
Allied Universal Security Services, is awarded its costs on appeal.
NOT TO BE PUBLISHED.
MOOR, Acting P. J.
WE CONCUR:
KIM, J.
DAVIS, J.
 Judge of the Los Angeles Superior Court, assigned by the
Chief Justice pursuant to article VI, section 6 of the California
Constitution.
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