Mitchell v. Wigeri Van Edema CA3

Filed 11/1/22 Mitchell v. Wigeri Van Edema CA3
NOT TO BE PUBLISHED
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 This opinion has not been certified for publication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
THIRD APPELLATE DISTRICT
(Yolo)
----
KRISTA MITCHELL, C094757
Plaintiff and Appellant, (Super. Ct. No. CV20210248)
v.
DAWN WIGERI VAN EDEMA et al.,
Defendants and Respondents.
Plaintiff Krista Mitchell sued defendants Dawn Wigeri Van Edema, et al.
(“defendants”) for “menacing conduct” that interfered with the enjoyment of her rental
dwelling. The trial court granted defendants’ special motion to strike the complaint
pursuant to Code of Civil Procedure section 425.16, California’s anti-SLAPP statute.1
Later, the trial court awarded attorney’s fees and costs to defendants. On appeal, plaintiff
1 SLAPP is an acronym for “ ‘strategic lawsuits against public participation.’ ”
(Navellier v. Sletten (2002) 29 Cal.4th 82, 85; see id. at p. 85, fn. 1.)
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challenges the trial court’s rulings. Regarding the appeal of the anti-SLAPP motion, we
agree with defendants that we must dismiss it as untimely.
And while plaintiff’s appeal from the fees and costs order was timely, that was a
separate appealable “order made after a judgment” (i.e., the anti-SLAPP order) that does
not cure the untimeliness of the notice of appeal as to the anti-SLAPP order. (See Ellis
Law Group, LLP v. Nevada City Sugar Loaf Properties, LLC (2014) 230 Cal.App.4th
244, 251.) We will affirm the fees and costs order because plaintiff provides no
argument on it.
I. BACKGROUND
In February 2021, plaintiff filed a civil action for damages against defendants.
Defendants filed an anti-SLAPP motion. By order filed on May 10, 2021, the trial court
granted defendants’ motion. Defendants served plaintiff with a “Notice of Entry of
Judgment or Order” form (attaching the May 10 order) on May 14, 2021.
On August 5, 2021, in a document captioned “JUDGMENT OF DISMISSAL
WITH AWARD OF FEES AND COSTS,” the trial court awarded over $57,000 in
attorney’s fees and costs to defendants. On August 27, 2021, plaintiff filed a notice of
appeal, indicating she was appealing the fees and costs order entered on August 5, 2021.
II. DISCUSSION
Plaintiff asks us to vacate the trial court’s ruling granting the anti-SLAPP motion,
and the trial court’s award of attorney’s fees and costs. But plaintiff’s briefing on appeal
contains no discussion of the trial court’s fees and costs award. Accordingly, plaintiff has
forfeited any challenge to that award. (See In re Marriage of Falcone & Fyke (2008)
164 Cal.App.4th 814, 830.)
Defendants: (1) address the merits of plaintiff’s arguments on appeal regarding the
anti-SLAPP motion; and (2) contend the appeal “is untimely and should be dismissed.”
Plaintiff provides no response to defendant’s “untimeliness” argument in her reply brief.
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While the notice of appeal was timely as to the fees and cost award, we agree the appeal
is untimely as to the underlying order granting the anti-SLAPP motion.
“ ‘If a notice of appeal is filed late, the reviewing court must dismiss the appeal.’
(Cal. Rules of Court, rule 8.104(b).)[2 ] ‘The time for appealing a judgment is
jurisdictional; once the deadline expires, the appellate court has no power to entertain the
appeal. [Citation.]’ [Citation.] Thus, ‘ “an aggrieved party must file a timely appeal or
forever lose the opportunity to obtain appellate review.” ’ [Citation.] [¶] Rule 8.104
provides the relevant deadlines: Unless a statute or court rule provides otherwise, a
notice of appeal must be filed on or before the earlier of 60 days after service by the
superior court clerk of a filed-endorsed copy of the judgment, or 60 days after notice of
entry of the judgment is served by a party. (Rule 8.104(a)(1)(A)-(B).) For purposes of
this rule, ‘ “judgment” includes an appealable order.’ (Rule 8.104(e).)” (Marshall v.
Webster (2020) 54 Cal.App.5th 275, 279 (Marshall), fns. omitted.)
“[A]n order granting a special motion to strike under the anti-SLAPP statute is an
appealable order. [Citations.] Hence, the deadline to appeal an order granting a special
motion to strike is 60 days after service by the clerk of a filed -endorsed copy of the order
granting the anti-SLAPP motion, or 60 days after notice of entry of that order is served
by a party, whichever is earlier. (Rule 8.104(a)(1), (e).)” (Marshall, supra,
54 Cal.App.5th at pp. 279-280.)
Here, the order granting defendant’s anti-SLAPP motion was filed on May 10,
2021, and defendants served notice of entry of that order on May 14, 2021. Accordingly,
the notice of appeal from that order had to be filed within 60 days of May 14, 2021, or no
later than July 13, 2021. (Marshall, supra, 54 Cal.App.5th at p. 280.) As plaintiff filed a
2 Further rule references are to the California Rules of Court.
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notice of appeal in August 2021, that filing was untimely and we lack jurisdiction to
consider the appeal of the May 10, 2021 anti-SLAPP order. (Id. at pp. 280-281.)
III. DISPOSITION
The appeal from the May 10, 2021 order granting the special motion to strike is
dismissed. The order granting attorney’s fees and costs is affirmed. Defendants are
awarded costs on appeal. (Rule 8.278(a)(1), (2).)
/S/
RENNER, J.
We concur:
/S/
DUARTE, Acting P. J.
/S/
EARL, J.
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