Reyes v. Kruger

Filed 9/25/20
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SIXTH APPELLATE DISTRICT
CORINNA REYES et al., H044661
(Santa Clara County
Plaintiffs and Appellants, Super. Ct. No. 116CV293460)
v.
KIM KRUGER et al.,
Defendants and Respondents.
Appellants Corinna Reyes and Golden State Care Collective, Inc. (together,
“Reyes” or “appellants”), filed a complaint for malicious prosecution against property
owner Kim Kruger and Kim Kruger Trust (together, Kruger) and Kruger’s former
attorney, Todd Rothbard (Rothbard), for what Reyes contended was a wrongful eviction.
The trial court granted Kruger’s and Rothbard’s (together, respondents’) motions to strike
the complaint under California’s anti-SLAPP statute (Code Civ. Proc., § 425.16)1 and
denied appellants’ subsequent motion for new trial. On appeal, appellants seek to
challenge the order granting the anti-SLAPP motions. Alternatively, in response to
respondent Kruger’s claim that the appeal of the anti-SLAPP order is not cognizable,
appellants seek to challenge the order denying the motion for new trial.
The record shows that appellants did not appeal from the order granting the
anti-SLAPP motions but from the judgment of dismissal that followed later, which they
relied on as the appealable order. We conclude, based on the applicable law that makes
an order granting a motion to strike immediately appealable (§§ 426.16, subd. (i), 904.1,
1
Unspecified statutory references are to the Code of Civil Procedure.
subd. (a)(13)), that appellants’ appeal as to the order on the anti-SLAPP motions was
untimely. We similarly conclude that the challenge to the denial of the new trial motion
is not cognizable on appeal from the judgment of dismissal, because the motion for new
trial was itself untimely and did not serve as a valid basis to extend time for filing of the
appeal under California Rules of Court, rule 8.108.2 Because the time limits at issue in
both instances are jurisdictional, we conclude that we lack jurisdiction to consider the
challenged orders and so we dismiss the appeal.
I. FACTUAL AND PROCEDURAL BACKGROUND
The present case for malicious prosecution is based on a prior action brought by
Kruger against Reyes for unlawful detainer (the prior action).
Reyes operated a medical marijuana outlet on commercial premises leased by
Kruger. Kruger stated that she received complaints from neighbors about the operation
and its customers, mostly related to parking issues, loitering, and littering. Kruger also
stated that the city’s code enforcement contacted her about violations on the premises and
Reyes’s noncompliance with requests for inspection. After an inspection confirmed the
code violations and revealed other unpermitted alterations to the property, Kruger began
eviction proceedings. Kruger retained new counsel after the eviction effort faltered.
A. The Prior Action for Unlawful Detainer
Kruger, represented by Rothbard, filed an unlawful detainer action against Reyes.3
Respondents served notice of the ongoing lease violations followed by a three day notice
to pay rent or quit the premises. Respondents based the three day notice on a
delinquency in rent that had accrued during the pendency of Kruger’s earlier attempt to
evict, during which time she had not accepted rent payments. According to Kruger, when
2
Unspecified rule references are to the California Rules of Court.
3
Kim Kruger v. Corinna Reyes and Golden State Care Collective, Inc., Santa
Clara County Superior Court (No. 113CV253086).
2
Reyes failed to pay the delinquent amount within three days, she and Rothbard decided
that “the most straightforward way to evict was based upon the nonpayment of rent” so
she “rejected their one day late tender of the rent amount and proceeded” to file the
unlawful detainer action.
The unlawful detainer action was tried in October 2013 by the Honorable Derek
Woodhouse. A contested question was whether Kruger had returned the payment of
certain rent that Reyes had paid by direct deposit into her bank account. Kruger testified
that during her first eviction attempt, she realized she had to return the rent. She gave
$2,800 in cash to appellants by handing an envelope with the cash to an employee at the
door of appellants’ business. Kruger did not know the date and did not get a signed
receipt. She said the cash came from money she kept at her house. She acknowledged
that she had no proof of the payment. Reyes testified that she never received any cash at
any time from Kruger, and there was no employee at her business who was authorized to
accept cash for her. Reyes never received an e-mail or other communication indicating
that Kruger had dropped off cash. There was a similar factual dispute about a $2,800
check that Kruger testified she mailed but Reyes denied having ever received.
Rothbard explained to the trial court at the unlawful detainer trial that the
returned payment of $2,800 enabled application of the statutory presumption affecting
the burden of proof for commercial property unlawful detainer proceedings—whereby
the amount Kruger claimed was owed on appellants’ lease, as set forth in the three day
notice to pay rent or quit, was a reasonable estimate. (§ 1161.1, subds. (a), (e).) He
framed the question of the returned cash payment and the $2,800 check as “a pure
credibility question” for the court. Rothbard stated, “If Your Honor believes that my
client made up out of whole cloth sending the check, and . . . making a payment in cash,
we lose. [¶] If your Honor believes that my client is testifying accurately, we prevail.”
Rothbard criticized his client’s decision to return payment in cash without a receipt but
represented that he believed she did it and pointed to evidence of her credibility.
3
Reyes’s counsel at the unlawful detainer hearing responded that the case was not
“just about credibility” but also about respondents’ burden of proof to show that the
amount in the notice accurately reflected the amount of past-due rent, or reasonably
estimated that amount within 20 percent. Reyes argued it was “convenient” of Kruger to
claim she had returned the $2,800 rent payment in cash so that the estimate stated in the
notice was within the statutory 20 percent margin for a reasonable estimate. Reyes
further argued based on evidence in the record that Kruger had failed to satisfy the
burden of proof required to obtain forfeiture of the lease rights.
The trial court granted judgment in favor of Kruger. It reasoned that the technical
requirements in unlawful detainer actions must be “strictly adhered to” and that
considering the arguments and exhibits, it was “constrained to find judgment for the
[respondent] as requested.” The trial court entered judgment in favor of Kruger on
October 18, 2013.
After unsuccessful attempts to vacate the unlawful detainer judgment and to
petition for relief from the judgment as it declared forfeiture of the lease, Reyes filed an
appeal in the appellate division of the superior court. The appellate division reversed the
judgment in a published decision. (Kruger v. Reyes (2014) 232 Cal. App. Supp. 4th 10,
12.) The appellate division found that because Reyes had “timely paid all rent due
through the period covered by the three-day notice by deposit directly into Kruger’s bank
account, . . . they had actually performed and were not in default when Kruger served
them with a three-day notice to pay rent or quit,” rendering the three-day notice
“premature and void as a matter of law.” (Ibid.)
Following the decision of the appellate division, Reyes sued Kruger in July 2015
in a breach of contract action for wrongful eviction. The trial court granted Kruger’s
special motion to strike the complaint under the anti-SLAPP statute and dismissed the
case. Reyes then filed the instant action.
4
B. Action for Malicious Prosecution
In April 2016, Reyes filed this malicious prosecution action. The complaint
named Kruger, as Reyes’s landlord in the prior action, Rothbard, as Kruger’s attorney in
the prior action, and Alex Alonzo, who was the process server for the three-day notice to
pay rent or quit in the prior action, as defendants. The defendants each filed demurrers to
the complaint, and Kruger and Rothbard also filed anti-SLAPP motions. The trial court
sustained Alonzo’s demurrer with leave to amend, and in light of that order overruled
Kruger’s and Rothbard’s demurrers and denied their anti-SLAPP motions as moot.
In June 2016, appellants filed the operative, first amended complaint (hereafter,
“complaint”) with a single cause of action for malicious prosecution. Reyes dismissed
defendant Alonzo from the action. The complaint alleged that Kruger engaged in fraud
and perjury by falsely testifying at trial in the prior action that she had returned $2,800 in
cash to Reyes by handing an envelope to an employee at the medical marijuana
dispensary. Reyes claimed that there was a compelling reason for the false testimony
because without the purported cash payment, Kruger’s three-day notice to pay would
have been outside the 20 percent margin of error allowed for commercial leases.
Kruger and Rothbard each filed demurrers and special motions to strike the
complaint under California’s anti-SLAPP statute (§ 425.16). The anti-SLAPP motions
established that the complaint’s cause of action was based upon a protected activity and
asserted that Reyes lacked the evidentiary showing required to demonstrate a probability
of prevailing on the merits of the malicious prosecution case. Reyes filed a single
opposition to the anti-SLAPP motions, supported by a declaration and exhibits and
request for judicial notice. Kruger and Rothbard each filed a reply and asserted
evidentiary objections to appellants’ opposition.
The trial court granted both anti-SLAPP motions. It ruled on respondents’
identical requests for judicial notice and, in a detailed analysis, considered the evidence
and legal issues pertaining to the special motions to strike. The court found that Reyes
5
had not established a probability of prevailing on the merits of each element of the
malicious prosecution claim. It overruled the demurrers as moot based upon its ruling
granting the two special motions to strike the complaint. The trial court served a
file-stamped copy of the order with proof of service on November 22, 2016 (hereafter
“November 22 order”). Counsel for Kruger served a notice of entry of judgment or order
on November 29, 2016.
On January 23, 2017, the trial court entered a judgment of dismissal based upon
the November 22 order granting the anti-SLAPP motions and awarded reasonable
attorney fees and costs, to be determined by separate motion (hereafter, “January 23
judgment”). Counsel for Kruger served a notice of entry of judgment or order on
January 30, 2017.
On February 2, 2017, Reyes filed a notice of intention to move for a new trial.
Reyes filed a memorandum of points and authorities in support of the new trial motion, as
well as supporting documents. Kruger and Rothbard filed separate oppositions to the
motion for new trial and renewed their prior objections to the Reyes declaration which
was resubmitted in support of the motion for new trial. Reyes filed a single reply brief in
support of the motion. On March 30, 2017, the trial court entered an order denying the
motion for new trial and served a file-stamped copy with proof of service. Kruger served
notice of entry of judgment or order denying a new trial on April 5, 2017.
Reyes filed a notice of appeal on April 14, 2017. The notice appealed from the
judgment entered in favor of Kruger on January 23, 2017, “and from all orders relating
thereto, including and not limited to the” order denying the motion for new trial, entered
on March 30, 2017.
6
II. DISCUSSION
Appellants challenge the order granting respondents’ anti-SLAPP motions,
focusing largely on what they contend was the trial court’s erroneous application of the
interim adverse judgment rule.4 Appellants did not appeal from the November 22 order
on the anti-SLAPP motions, however, but from the January 23 judgment that followed
later, which they relied on as the appealable order. Respondent Kruger contends that the
failure to timely appeal the anti-SLAPP order deprives this court of jurisdiction.
Appellants respond that their appeal from the January 23 judgment was proper under the
circumstances; but if this court concludes the appeal was untimely as to the anti-SLAPP
order, the appeal of the judgment and “orders relating thereto” was timely, enabling
appellate review of the denial of the motion for new trial. We find that appellants’
reliance on the timeliness of the appeal from the January 23 judgment is misplaced,
because it is predicated on the application of rule 8.108 to extend time for filing the
appeal. We conclude that rule 8.108 did not apply where the notice of motion for new
trial was not filed within the jurisdictional limit of 15 days from service of notice of entry
of the appealable order granting the anti-SLAPP motions.
4
The California Supreme Court recently articulated the basis for application of the
interim adverse judgment rule in Parrish v. Latham & Watkins (2017) 3 Cal. 5th 767
(Parrish). The court explained that a plaintiff seeking to establish liability for the tort of
malicious prosecution “must demonstrate, among other things, that the defendant
previously caused the commencement or continuation of an action against the plaintiff
that was not supported by probable cause.” (Id. at p. 771.) “[I]f an action succeeds after
a hearing on the merits, that success ordinarily establishes the existence of probable cause
(and thus forecloses a later malicious prosecution suit), even if the result is overturned on
appeal or by later ruling of the trial court. [Citation.] This principle has come to be
known as the interim adverse judgment rule.” (Ibid.) Appellants rely on language in
Parrish to support their claim that the interim adverse judgment rule should not have
applied here, because according to appellants, the initial decision in Kruger’s favor in the
unlawful detainer action hinged on false testimony about the returned rental payment.
7
A. Challenge to Order Granting Anti-SLAPP Motions Is Not Cognizable
Appellants contend that the trial court erred in granting the anti-SLAPP motions
since the evidence in opposition to the motions was adequate to establish a reasonable
probability of prevailing on the malicious prosecution claim. (§ 425.16, subd. (b)(1)
[cause of action arising from matters subject to anti-SLAPP shall be subject to a special
motion to strike, unless the court determines the plaintiff has established “a probability
that the plaintiff will prevail on the claim”].) They emphasize that a plaintiff “need only
establish that his or her claim has ‘minimal merit’ [citation] to avoid being stricken as a
SLAPP.” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal. 4th 260, 291, citing
Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal. 4th 728, 738.)
Appellants claim that they satisfied this threshold as to each of the three elements
comprising their malicious prosecution claim by showing that the unlawful detainer
action was (1) initiated at respondents Kruger’s and Rothbard’s direction and pursued to
a legal termination in favor of Reyes and Golden State Care Collective, (2) initiated or
maintained without probable cause, and (3) initiated or maintained with malice. (See
Parrish, supra, 3 Cal.5th at p. 775 [summarizing the elements of the civil tort of
malicious prosecution]; Zamos v. Stroud (2004) 32 Cal. 4th 958, 965-966.) Appellants
seek to establish that the appellate reversal of the unlawful detainer judgment was a
determination on the merits, as opposed to a technical or procedural determination, and
that the purported probable cause for the unlawful detainer action was based on Kruger’s
false testimony about having returned the $2,800 rental payment in cash. We are,
however, unable to review appellants’ challenge to the anti-SLAPP order because
appellants failed to timely appeal from it.
“A reviewing court has jurisdiction over a direct appeal only when there is (1) an
appealable order or (2) an appealable judgment.” (Griset v. Fair Political Practices Com.
(2001) 25 Cal. 4th 688, 696.) Whether a trial court’s order is appealable is determined by
statute. (Ibid.) The anti-SLAPP statute provides that an “order granting or denying a
8
special motion to strike shall be appealable” under section 904.1. (§ 425.16, subd. (i).)
Section 904.1 likewise provides that “[a]n appeal . . . may be taken . . . [f]rom an order
granting or denying a special motion to strike under [s]ection 425.16.” (§ 904.1,
subd. (a)(13).) “ ‘ “If a judgment or order is appealable, an aggrieved party must file a
timely appeal or forever lose the opportunity to obtain appellate review.” ’ ” (Maughan v.
Google Technology, Inc. (2006) 143 Cal. App. 4th 1242, 1247 (Maughan).)
Appellate jurisdiction over a direct appeal is in this way clearly delineated. As our
Supreme Court has explained, “California follows a ‘one shot’ rule under which, if an
order is appealable, appeal must be taken or the right to appellate review is forfeited.” (In
re Baycol Cases I & II (2011) 51 Cal. 4th 751, 762, fn. 8, citing § 906 [the powers of a
reviewing court do not include the power to “review any decision or order from which an
appeal might have been taken” but was not]; Kinoshita v. Horio (1986) 186 Cal. App. 3d
959, 967 [“If [a] ruling is appealable, the aggrieved party must appeal or the right to
contest it is lost.”].)
It is no secret that failing to timely appeal a ruling that by statute is appealable
may result in the reviewing court’s inability to consider the eventual appeal. Case law is
replete with such instances after the grant of a motion to strike under the anti-SLAPP
statute. In Maughan, supra, 143 Cal.App.4th at page 1247, the court found it had no
jurisdiction to consider the appeal from an order granting the defendant’s motion to strike
the complaint under the anti-SLAPP statute, because the order was “final when made,
and thus appealable” despite the trial court’s later issuance of a judgment and related
order granting attorney fees and costs. In Russell v. Foglio (2008) 160 Cal. App. 4th 653
(Russell), the court similarly concluded that it lacked jurisdiction to review the
anti-SLAPP order striking the complaint, because the order was “specifically, statutorily
appealable” (id. at p. 659) notwithstanding the appellant’s dispute over its validity (id. at
pp. 659-660). And in Melbostad v. Fisher (2008) 165 Cal. App. 4th 987 (Melbostad), the
court accepted the appellant’s concession that failure to appeal the order granting the
9
defendant’s anti-SLAPP motion precluded appellate review of “the correctness of that
ruling.” (Id. at p. 992.)
The chronology of the orders and the appeal in this case affords no basis to depart
from the conclusion reached in Maughan, Russell, and Melbostad. The trial court’s order
titled “Order Re Special Motion to Strike” stated after a detailed analysis that “[b]oth
special motions to strike the FAC [First Amended Complaint] are GRANTED as
Plaintiffs cannot show a probability of prevailing.” The clerk of the superior court filed
the order on November 22, 2016 and served notice of entry of the order by mail on the
same day. Kruger’s counsel served the notice of entry of judgment or order on
November 29, 2016. Under the applicable rules of court, plaintiffs had 60 days from the
trial court’s service of the file-stamped copy of the order, or from the notice of entry of
judgment or order to file the notice of appeal, or until January 23, 2017. (Rule
8.104(a)(1)(A), 8.104(e).) Plaintiffs did not file a notice of appeal until April 14, 2017,
well after expiration of the 60-day deadline. If a notice of appeal is filed late, we are
constrained to dismiss the appeal. (Rule 8.104(b).)
Plaintiffs’ arguments to the contrary are unavailing. They suggest that the
appeal from the anti-SLAPP order was timely, citing the January 23 judgment as the
“final” or operative order. In support, they contrast the “terse” language of the
November 22 order stating that the special motions to strike the complaint are granted
based on plaintiffs’ inability to show a probability of prevailing, against the more robust
language of the January 23 judgment, which again stated in present tense that Kruger’s
and Rothbard’s special motions to strike “are each granted” and further ordered that
plaintiffs’ complaint against defendants “is stricken.” Plaintiffs also assert that the
November 22 order contained a defective proof of service as to respondents Kruger and
Rothbard.
Neither contention has merit. The proof of service for the “order re special motion
to strike” was file-stamped November 22, 2016, by the clerk of the superior court and
10
included counsel for Kruger, Rothbard, and Reyes.5 The service and filing of the notice
of entry of judgment or order “on the party filing the notice of appeal . . .” triggered the
60-day deadline for filing the notice of appeal. (Rule 8.104(a)(1)(A).) The order itself
plainly satisfied the statutory definition of an appealable order as an “order granting or
denying a special motion to strike” under the anti-SLAPP statute. (§§ 425.16, subd. (i),
904.1, subd. (a)(13).) The fact that the trial court did not rule on the request for attorney
fees and costs in the November 22 order did not render the order interim. (Maughan,
supra, 143 Cal.App.4th at p. 1247.)
The later issuance of the judgment of dismissal similarly had no effect on the
finality of the underlying anti-SLAPP order. Like in Russell, where the order granting
the motion to strike the complaint directed the defendant to prepare a form of judgment,
the November 22 order in this case granted respondents’ motions to strike the plaintiffs’
entire complaint and did not need “a further signed order to finalize the adjudication.”
(Russell, supra, 160 Cal.App.4th at p. 660.) The January 23 judgment plainly referenced
and attached the underlying order, which served as a “final determination of the rights of
the parties in this action” (Melbostad, supra, 165 Cal.App.4th at p. 996, citing § 577) and
effectively disposed of the case against Kruger and Rothbard. The judgment of dismissal
“appears to have served no purpose” (Melbostad, supra, at p. 997) insofar as it merely
recapitulated the order granting the motions to strike and ordered the payment of attorney
fees and costs, to be established by a separate motion.
Nor do the doctrines of estoppel and waiver, or invited error, apply. Appellants
argue that respondents bear some responsibility for the January 23 judgment, which
5
The record appears to contain two copies of the proof of service to the
November 22, 2016 order regarding special motion to strike. Although one of those
copies appears to omit counsel for Rothbard, the other—which is the file-stamped copy—
includes counsel for all three parties. Either version would have triggered the 60-day
deadline based on the court clerk’s service and filing of the notice of entry of judgment
“on the party filing the notice of appeal . . . .” (Rule 8.104(a)(1)(A).)
11
apparently was proposed by Kruger and signed by counsel for Rothbard. Appellants
contend that because respondents introduced the so-called “second order” and judgment,
they cannot now disclaim it as the operative order in order to claim the benefit of an
untimely appeal. (See Redevelopment Agency v. City of Berkeley (1978) 80 Cal. App. 3d
158, 166 [explaining that a party who, by their conduct, induces the commission of an
error is estopped from asserting it as grounds for reversal, and similarly may waive their
right to attack error by expressly or impliedly agreeing at trial to the procedure objected
to on appeal].)
Nothing in the creation, signing, and filing of the January 23 judgment altered the
immediate appealability of the November 22 anti-SLAPP order. Jurisdictional time
limits for appealable orders may not be extended by estoppel, consent, waiver, agreement
or acquiescence. (Garibotti v. Hinkle (2015) 243 Cal. App. 4th 470, 480-482 (Garibotti);
see rule 8.60(d) [authorizing a reviewing court, for good cause, to “relieve a party from
default for any failure to comply with these rules except the failure to file a timely notice
of appeal”], italics added.)
The California Supreme Court has explained that such strict adherence to the
statutory time for filing a notice of appeal is not intended to “ ‘arbitrarily penaliz[e]
procedural missteps’ ” (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal. 3d 660,
666) or to contradict sound public policy of according the right to appeal “in doubtful
cases ‘when such can be accomplished without doing violence to applicable rules’ ”
(id. at p. 674). Indeed, courts before us have cautioned that litigants in SLAPP litigation
frequently fail to recognize that the grant of a special motion to strike is an appealable
order and have even suggested that the Legislature reconsider this aspect of
section 425.16.6 But when the applicable notice of appeal “has not in fact been filed
6
More than 10 years ago, in his concurrence in Russell, Justice Rubin questioned
the statutory scheme making the granting of a special motion to strike an immediately
(continued)
12
within the relevant jurisdictional period—and when applicable rules of construction and
interpretation fail to require that it be deemed in law to have been so filed—the appellate
court, absent statutory authorization to extend the jurisdictional period, lacks all power to
consider the appeal on its merits and must dismiss, on its own motion if necessary,
without regard to considerations of estoppel or excuse.” (Hollister, supra, at p. 674.)
We conclude that the November 22 order granting respondents’ motions to strike
the complaint was an appealable order from which an appeal may have been taken.
(§§ 425.16, subd. (i), 904.1, subd. (a)(13).) Consequently, appellants’ challenge to the
order on the anti-SLAPP motions is not cognizable on appeal from the January 23
judgment. (Maughan, supra, 143 Cal.App.4th at p. 1247 [“ ‘The taking of an appeal
is . . . jurisdictional, and where no appeal is taken from an appealable order, a reviewing
court has no discretion to review its merits.’ ”].)
B. Challenge to Order Denying Motion for New Trial Is Not Cognizable
Appellants submit that even determining the appeal to be untimely as to the ruling
on the anti-SLAPP motions does not foreclose review of the substantive issues raised in
the motion for new trial. As expressed in appellants’ supplemental briefing on the
appealable order and examined the “unintended consequences” that frequently follow.
(Russell, supra, 160 Cal.App.4th at p. 664 (conc. opn. of Rubin, J.).) Justice Rubin
observed that when a trial court grants an anti-SLAPP motion to strike, the resulting
outcome is “two separate appeals—one from the granting of the motion to strike, and a
second from the attorney’s fee order and final judgment” (ibid.), which “creates a trap
for the unwary, who may lose their right to appeal from the order granting the motion to
strike while they await the final judgment.” (Ibid., italics added.) He noted that “even
highly regarded and experienced counsel can overlook that an order granting a motion to
strike is immediately appealable.” (Ibid.) Unable to identify a public policy benefit to
“justify the cost to the parties and the courts of two separate appeals” (ibid.) and
cognizant of the “trap” for litigants, Justice Rubin proposed that the “Legislature consider
changing the statute.” (Id. at p. 665.)
13
subject,7 the legal issues raised by the motion for new trial mirrored those raised on
appeal from the anti-SLAPP order and could present an alternate route to consideration of
the merits of this case. We find, however, that the appeal from the January 23 judgment
does not enable review of the order denying a new trial, because appellants’ motion for
new trial was itself untimely and did not serve as a valid basis to extend time for filing of
the appeal under rule 8.108.
It is well-settled that an order denying a motion for new trial, while not directly
appealable, may be reviewed on appeal from the underlying judgment. (Walker v. Los
Angeles County Metropolitan Transportation Authority (2005) 35 Cal. 4th 15, 19
(Walker).) Appellants point to their notice of appeal, filed on April 4, 2017, which
appealed from the judgment entered on January 23, 2017 and “from all orders relating
thereto, including and not limited to the Order denying the Motion for New Trial, entered
on March 30, 2017, and notice of it provided on April 3, 2017.”
In principle, appellants are correct that timely appeal from the underlying
judgment would enable review of the order denying the motion for new trial. (Walker,
supra, 35 Cal.4th at pp. 18-19; § 904.1, subd. (a)(2).) But appellants fail in this case to
demonstrate that their filing of the notice of appeal on April 4, 2017, was timely as from
the January 23 judgment, due to the fact that the motion for new trial was itself subject to
a strict time limit triggered not by the January 23 judgment but by the November 22
anti-SLAPP order. Our conclusion stems from the intersection of two sets of
7
Appellants argued in a motion for supplemental briefing that given the “trap for
the unwary” created by the direct appealability of an order granting a motion to strike
under the anti-SLAPP statute (see Russell, supra, 160 Cal.App.4th at p. 664 (conc. opn.
of Rubin, J.)), this court should permit supplemental briefing to challenge the trial court’s
ruling on the motion for new trial, which was encompassed in the appeal from the
January 23 judgment and raised the same issues as the appeal from the anti-SLAPP order.
We granted appellants’ request to file supplemental briefing regarding issues raised in the
motion for new trial.
14
jurisdictional time limits—governing motions for new trial and governing the time to
appeal—with the statutory designation that an order granting an anti-SLAPP motion is
directly appealable.
We begin with the time for filing an appeal. The notice of appeal from a
judgment must be filed on or before the earliest of (1) 60 days after the trial court clerk’s
mailing of the notice of entry of judgment, (2) 60 days after the party filing the appeal
serves or is served the notice of entry of judgment by a party, or (3) 180 days after entry
of judgment. (Rule 8.104(a)(1)(A)-(C).) Rule 8.108 extends the time to appeal when a
party “serves and files a valid notice of intention to move for a new trial . . . .” (Rule
8.108(b).)8
It is the “valid notice” provision of rule 8.108(b) that is at issue here. Though
rule 8.108 does not define the term “valid,” courts have interpreted it in accordance with
the Advisory Committee comment to rule 8.108, which provides that “ ‘ “valid”
means only that the motion or notice complies with all procedural requirements; it does
not mean that the motion or notice must also be substantively meritorious.’ ” (Branner v.
Regents of University of California (2009) 175 Cal. App. 4th 1043, 1046, quoting
Advisory Com. com., 23 pt. 2 West’s Ann. Codes, Rules (2009 supp.) foll. rule 8.108,
p. 84, italics added.) Respondent Kruger contends that appellants are not entitled to the
extension of time under rule 8.108(b) because their motion for new trial did not meet the
8
Rule 8.108 “operates only to extend the time to appeal otherwise prescribed in
rule 8.104(a) . . . .” (Rule 8.108(a).) If a party “serves and files a valid notice of
intention to move for a new trial” and the motion is denied (rule 8.108(b)), “the time to
appeal from the judgment is extended . . . until the earliest of: (A) 30 days after the
superior court clerk or a party serves an order denying the motion or a notice of entry of
that order; (B) 30 days after denial of the motion by operation of law; or (C) 180 days
after entry of judgment.” (Rule 8.108(b)(1)(A)-(C).)
15
strict time limits for filing a notice of intention to move for new trial; consequently, the
motion was not valid.9 We believe that Kruger is correct for the following reasons.
First, the time limits on filing and ruling on a motion for new trial, set forth in
section 659,10 are jurisdictional. (Kabran v. Sharp Memorial Hospital (2017) 2 Cal. 5th
330, 336 (Kabran).) “Both the ‘right to move for a new trial’ and the court’s jurisdiction
to hear it are creatures of statute. [Citations.] A trial court gains jurisdiction to hear such
a motion only after a party files a timely notice of intent and judgment has been entered.”
(Ibid.) The jurisdictional effect goes both ways, as our Supreme Court reiterated in
Kabran. “In particular, the trial court loses jurisdiction to hear a new trial motion if no
notice of intent is filed within 15 days of the mailing or service of notice of entry of
judgment, or within 180 days of the entry of the judgment.” (Id. at p. 337; see § 659,
subd. (a)(1), (2) [specifying time limits to file notice of intent to move for new trial] and
subd. (b) [no extension of specified time limits by order or stipulation].) The court’s
analysis in Kabran is noteworthy because it contrasts the jurisdictional element of timing
to file a notice of intention to move for new trial against elements of a new trial motion
that are not jurisdictional, like the deadline for filing affidavits in support of the motion.
(Kabran, supra, at pp. 337-342.) We conclude on this basis that a “valid” motion for new
9
For completeness, we note that respondent Rothbard previously challenged the
validity of the motion for new trial by filing a motion to dismiss the appeal, which this
court denied in July 2018. The motion for dismissal asserted various deficiencies in the
notice of intent to move for new trial but did not raise the timeliness issue that we now
address.
10
Section 659 provides that a notice of intention to move for a new trial must be
filed with the court clerk and served on each adverse party either “after the decision is
rendered and before the entry of judgment” (§ 659, subd. (a)(1)), or by the earliest of
three deadlines: (1) within 15 days of “the date of mailing notice of entry of judgment by
the clerk of the court pursuant to Section 664.5”; (2) within 15 days of service on the
moving party “by any party of written notice of entry of judgment”; or (3) “within 180
days after the entry of judgment.” (§ 659, subd. (a)(2).)
16
trial under rule 8.108 is defined in part by the jurisdictional requirements for timely filing
of the notice of intent under section 659.
Second, the statutory deadline begins to run when the party seeking to move for a
new trial is served with a written notice of entry of judgment. (Palmer v. GTE
California, Inc. (2003) 30 Cal. 4th 1265, 1267 (Palmer).) In deciding what form a notice
of entry of judgment must take to trigger the 15-day time limit for bringing a new trial
motion, the Palmer court held that a “particular form of notice” is not required for service
of notice by a party on the party who moves for a new trial. (Id. at p. 1277.) The time
limit is triggered simply “by service on the moving party of ‘written notice’ of the ‘entry
of judgment’ ” (ibid., citing § 659), and the written notice need not be entitled “ ‘notice of
entry of judgment’ ” or filed separately with the court. (Palmer, supra, at p. 1277.)
Third, while Palmer declined to read into the statute any particular form of written
notice of entry of judgment for purposes of triggering the statutory time limits under
section 659, the entry of judgment itself is, of course, an indispensable predicate to filing
a motion for new trial. A motion for new trial seeks “re-examination of an issue of fact
in the same court after a trial and decision by a jury, court or referee.” (§ 656.) It “ ‘is “a
new statutory proceeding, collateral to the original proceeding” and constitutes a new
action brought to set aside the judgment.’ ” (Kabran, supra, 2 Cal.5th at p. 336.)
Our understanding of a valid motion for new trial to trigger the extension of
time to appeal under rule 8.108 therefore hinges on the timely filing of a notice of
intention under section 659 upon service of notice of entry of judgment. The question
that arises in this case is whether notice of the entry of an order granting a special motion
to strike under section 425.16 satisfied the “entry of judgment” element of section 659 to
trigger the statutory time limits for filing a motion for new trial? If the trial court’s
November 22 order on the anti-SLAPP motions—which resulted in service of a “notice
of entry of judgment or order” by Kruger on November 29, 2016—triggered the statutory
and jurisdictional deadline for filing the motion for new trial (§ 659; Palmer, supra, 30
17
Cal.4th at p. 1277), then appellants’ filing of notice of intent to move for new trial on
February 2, 2017, after the January 27 judgment, was not timely under section 659 or
“valid” under rule 8.108(b)(1)(A).
We find that under the circumstances presented, appellants cannot rely on the
application of rule 8.108(b)(1)(A) as having extended the time to appeal. As mentioned
above, a motion for new trial seeks “re-examination of an issue of fact in the same court
after a trial and decision by a jury, court or referee.” (§ 656.) Here, the notice of
intention to move for new trial stated that Reyes intended to move to set aside “the
judgment entered on January 23, 2017 in this action, and to grant a new trial, based on a
challenge to the order granting summary judgment [sic] entered November 22, 2016.”
Although the notice of intention to move for new trial erroneously stated that it
was seeking a new trial of the “order granting summary judgment,” the notice correctly
identified November 22 as the date of the order being challenged. Significantly, the
November 22 order granting the special motions to strike was itself an appealable order
under section 904.1 (§ 425.16, subd. (i)) and constituted final adjudication of the special
motions to strike. (See Melbostad, supra, 165 Cal.App.4th at pp. 996-997; Russell,
supra, 160 Cal.App.4th at p. 660; Maughan, supra, 143 Cal.App.4th at p. 1247.) Since
the malicious prosecution cause of action comprised the entire action, the November 22
order effectively disposed of the complaint and operated as the final determination of the
rights of the parties. (See Melbostad, supra, at pp. 996-997; § 577; see also Varian
Medical Systems, Inc. v. Delfino (2005) 35 Cal. 4th 180, 193 [explaining that the
“granting [of] a motion to strike under section 425.16 results in the dismissal of a cause
of action on the merits” and furthermore is “irreconcilable with a judgment in favor of the
plaintiff”].)
We noted ante in considering timeliness of the appeal from the order granting the
anti-SLAPP motions that the January 23 “judgment” merely recapitulated and appeared
to formalize the November 22 order. As with the taking of the appeal from the order on
18
the anti-SLAPP motions, there was no need for entry of a further order or formal
judgment to proceed with the motion for new trial. The language of section 659 appears
confirmatory of this point: the 15-day mandatory time limit for filing a notice of motion
for new trial is triggered either by service on the moving party of written notice of entry
of judgment, or by service by the clerk of the court of notice of entry of judgment
“pursuant to Section 664.5.” (§ 659, subd. (a)(2).) Section 664.5 expressly defines
“ ‘judgment’ ” as including “any judgment, decree, or signed order from which an appeal
lies.” (§ 664.5, subd. (c).) It would be incongruous for a “signed order from which an
appeal lies” (ibid.)—in this instance, the anti-SLAPP order—to trigger the mandatory
time limit under section 659 when notice of entry of judgment or order is mailed by the
court clerk consistent with section 664.5, but not when served by a party.
These factors compel us to conclude that the “notice of entry of judgment or
order” served on Reyes on November 29, 2016, not the redundant judgment of dismissal,
triggered the 15-day time limit to file notice of the intent to move for a new trial as
prescribed by section 659. Reyes’s filing and service of a notice of intention to move for
new trial on February 2, 2017, was not timely as from the November 29, 2016 service of
notice of entry of judgment or order for the November 22 anti-SLAPP order and did not
extend time under rule 8.108 for the filing of the notice of appeal.
Appellants’ arguments based loosely on equity are unavailing for the same reasons
discussed ante. The failure to challenge the validity of the motion for new trial in the
trial court does not forfeit Kruger’s jurisdictional challenge on appeal. The Supreme
Courts exposition on jurisdiction in Kabran leaves no room for doubt on this point:
“Noncompliance with a jurisdictional rule cannot be excused or forfeited; a party may
assert such noncompliance for the first time on appeal or in a collateral attack as a ground
for invalidating the action. In addition, a court may decide on its own motion that it lacks
authority over the action because of noncompliance with a jurisdictional rule.” (Kabran,
supra, 2 Cal.5th at p. 342; see also Garibotti, supra, 243 Cal.App.4th at pp. 481-482.)
19
Here, as just explained, Reyes did not meet the jurisdictional deadline for moving
for a new trial. “Sections 657, 659, and 660, which govern on what ground and in what
time period a litigant may seek a new trial, fall into the jurisdictional category. Not only
is a party’s attempt to file a notice of intent after the relevant deadline invalid, but the
court has no power to issue a ruling on the basis of an untimely filed notice or on a
ground not set forth in the statute.” (Kabran, supra, 2 Cal.5th at p. 342, italics added.)
Accordingly, “a party’s failure to comply with any of these sections ‘ “may be raised for
the first time on appeal.” ’ ” (Ibid.)
In sum, the appeal from the January 23 judgment was timely filed only with the
benefit of rule 8.108, the application of which was contingent on service and filing of a
valid notice of intention to move for new trial. (Rule 8.108(b).) We find that the notice
of intention to move for new trial was not timely, since the November 22 anti-SLAPP
order granting the motions to strike was a “signed order from which an appeal lies”
(§ 664.5, subd. (c); see § 425.16, subd. (i)) and constituted entry of judgment triggering
the 15-day jurisdictional time limit under section 659. Rule 8.108 therefore did not
operate to extend the time to appeal from the January 23 judgment. Alleged
noncompliance with the jurisdictional time limits could be raised for the first time on
appeal. (Kabran, supra, 2 Cal.5th at p. 342.)
III. DISPOSITION
The appeal is dismissed. The parties are to bear their own costs on appeal.
20
Premo, Acting P.J.
WE CONCUR:
Bamattre-Manoukian, J.
Danner, J.
Reyes et al. v. Kruger et al.
H044661
Trial Court: Santa Clara County Superior Court
Superior Court No. 116CV293460
Trial Judge: Hon. Theodore C. Zayner
Counsel for Plaintiffs/Appellants: John A. Shepardson
Corinna Reyes
Golden State Care Collective, Inc.
Counsel for Defendants/Respondents: Binder & Malter
Todd Rothbard Wendy Wastrous Smith
Michael W. Malter
Counsel for Defendants/Respondents: Willoughby, Stuart, Bening & Cook
Kim Kruger Ellyn E. Nesbit
Kim Kruger Trust
Reyes et al. v. Kruger et al.
H044661