Opinion
NOT TO BE PUBLISHED
Appeal from an order of the Superior Court of Orange County, No. 30-2008-00104047, Gregory H. Lewis, Judge.
Strumwasser & Woocher, Fredric D. Woocher, Michael J. Strumwasser; and Mark Rosen for Real Party in Interest and Appellant.
Law Offices of Rick A. Cigel and Rick A. Cigel; and Michael J. Schroeder for Plaintiff and Respondent.
Benjamin P. deMayo, County Counsel and Leon J. Page, Deputy County Counsel, for Defendant and Respondent.
OPINION
SILLS, P. J.
I. INTRODUCTION
Case law holds that if a defendant manages to file an anti-SLAPP motion pursuant to subdivision (b) of section 425.16 of the Code of Civil Procedure in a case where the defendant otherwise has prevailed (e.g., on a demurrer), the defendant is still entitled to a hearing on the anti-SLAPP motion. (E.g., Liu v. Moore (1999) 69 Cal.App.4th 745 [defendant was entitled to hearing on anti-SLAPP motion even though underlying pleading was dismissed].) Any other result would “work[] a nullification of an important provision” of the statute, i.e., the attorney fee provision under subdivision (c). (Id. at p. 751.)
All undesignated statutory references in this opinion will be to the Code of Civil Procedure. All undesignated references to statutory subdivisions will be to section 425.16.
Here, the defendant has indeed otherwise prevailed, but the trial court still denied the defendant a hearing on her anti-SLAPP motion. We reverse the order and remand so that the defendant can have the hearing on her anti-SLAPP motion to which she is entitled.
II. CASE HISTORY
A. Cook I
In the last (2008) election cycle, Keith Carlson, Treasurer of the state Republican Party, filed an action in Orange County Superior Court requesting a writ of mandate to prevent Huntington Beach Mayor Debbie Cook from using the title of “Mayor” in her Democratic primary ballot designation.
Because the case involved a looming primary election, events transpired quickly: Carlson filed his action Monday, March 17. The next day, Tuesday, March 18, Carlson gave notice that he would appear Wednesday, March 19, in order to obtain a writ striking Cook’s ballot designation and set an expedited briefing schedule. The hearing on Carlson’s request for the writ wasn’t scheduled until the morning of Friday, March 21.
The Thursday before the Friday hearing, March 20, Cook -- her lawyers no doubt working around the clock -- managed to file a (very polished) written opposition and objection to the jurisdiction of the Orange County Superior Court to hear the case at all. Cook’s written opposition and objection filed on March 20 made it very clear that Cook objected “As a threshold matter” to the Orange County Superior Court “exercising any jurisdiction in this action.” Cook’s opposition went on to argue that Carlson had failed to name the Secretary of State in the lawsuit, and the Secretary of State was an “indispensable party” to the litigation. What’s more, the Secretary of State could only be sued, under section 13314, subdivision (b)(1) of the Election Code, in Sacramento County. Hence, as Cook’s opposition argued, the Orange County court had “no jurisdiction to hear this action and it must instead be summarily dismissed.”
Cook’s team also managed to file something else that Thursday: a formal anti-SLAPP suit motion to dismiss the case, on the theory that Carlson’s suit was in response to Cook’s “speech on a public issue.” They also requested attorney fees incurred for their trouble in preparing the anti-SLAPP motion. (Cf. § 425.16, subd. (c).) The anti-SLAPP motion was calendared to be heard some three weeks later, on April 14.
Friday, March 21, Carlson’s request for a writ was heard in the trial court. The trial court denied the motion to dismiss for lack of jurisdiction. It also ordered Cook to sit for a deposition.
Working again under great time pressures (all weekend by the look of it), Cook’s lawyers managed to put together a petition for writ of mandate filed in this court the following Monday, March 24. That very afternoon, this court stayed Cook’s deposition.
The next morning, Tuesday, March 25, this court stayed all proceedings.
On Wednesday, March 26, this court issued a published opinion agreeing with Cook’s argument concerning lack of jurisdiction in Orange County because of the indispensability of the Secretary of State as a party. (Cook v. Superior Court (2008) 161 Cal.App.4th 569 (Cook I).)
Our opinion, agreeing with Cook’s written opposition, made it clear that because of the indispensability of the Secretary of State, the “case must be dismissed” (original italics) so it could be refiled in Sacramento. (Cook I, supra, 161 Cal.App.4th at p. 579.) We ordered that a peremptory writ issue -- we deemed that there wasn’t enough time for oral argument -- commanding the Orange County Superior Court to enter a new order granting Cook’s motion to dismiss. (Id. at p. 580.) We also lifted all stays previously issued (Id.. at p. 580), but said nothing in the opinion about it making it final for a period of less than 30 days (see Cal. Rules of Court, rule 8.264(b)(3)).
On March 26, we ordered the case dismissed in Cook I.
The next day, Carlson refiled his petition for writ of mandate in Sacramento (the right county), this time including the Secretary of State. The case was heard the day after that (March 28), and on April 1, the Sacramento Superior Court made an order denying the writ of mandate and also requiring each party to bear his or her own costs and attorneys.”
There is nothing in our record about any anti-SLAPP motion that Cook might brought in connection with the Sacramento litigation. However, back in Orange County, Cook’s anti-SLAPP suit motion was still pending for April 14. About April 9, though, the hearing on the anti-SLAPP motion was continued to May 5.
But the anti-SLAPP motion was, in fact, never heard. On April 22, after having studied our opinion, the trial court issued an order (no counsel were present) formally granting Cook’s motion dismissing “this case.”
The order encompassed more than just Carlson’s suit against Cook. The trial court made it very clear that “this case” included not only Carlson’s lawsuit to delete Cook’s ballot designation, but Cook’s pending anti-SLAPP motion as well. To quote the relevant portions of the order of dismissal: “The Court having received the Opinion filed by the Court of Appeal... on March 26, 2008, hereby grants Motion to dismiss this case, including:... the SLAPP Motion itself, currently calendared for 5-5-08.” (Italics added.)
The order was signed by the judge April 22. (Cf. § 581d [“All dismissals ordered by the court shall be in the form of a written order signed by the court....”].) (As of April 22, however, the stay of all trial court proceedings ordered by this court on March 25 was still in effect.)
What about the prospect of attorney fees for the work that went into the anti-SLAPP motion? On May 6, the day after Cook’s anti-SLAPP motion would have been heard, she filed an ex parte application to “re-calendar” the same motion. The motion to re-calendar was initially designated to be heard the next day, May 7, but was eventually continued (twice), so it was eventually heard July 7. (Interestingly enough, the motion to re-calendar generated more briefing in the trial court than the initial dismissal motion that resulted in the Cook I opinion.)
On July 7, the trial court denied the motion to re-calendar, reasoning that “this Court has no jurisdiction to hear this matter and that ruling is law of the case.”
The remittitur on Cook I issued May 30, 2008, thus ending the stay of all trial court proceedings.
B. Cook II
No notice of appeal was ever filed from the April 22 order of dismissal, which expressly included the anti-SLAPP motion.
However, on September 3, Cook’s attorneys filed a notice of appeal from the trial court’s July 7 order denying Cook’s motion to re-calendar her anti-SLAPP motion. The notice of appeal took the unusual step of including language that, in the event “the court finds that the appeal is not from an appealable order,” the court was requested to “treat this notice of appeal as a petition for writ of mandate ordering the court to provide the relief requested.”
III. DISCUSSION
A. There is Jurisdiction
Carlson asserts that the Court of Appeal has no jurisdiction because the April 22 order was a final, appealable judgment, on which the time to appeal ran about June 22.
But there is one problem with this argument: Since the April 22 order was made after the Court of Appeal had stayed all proceedings in the trial court -- indeed, was made within the 30 days during which this court might have withdrawn the opinion and issued another (see Cal. Rules of Court, rule 8.264(b) & (c)), and, most importantly, was made before any remittitur had issued -- the April 22 order is void. (See Hayworth v. City of Oakland (1982) 129 Cal.App.3d 723, 727 [“Generally, ‘the perfecting of an appeal stays proceedings in the trial court upon the judgment or order appealed from or upon the matters embraced therein or affected thereby, including enforcement of the judgment or order.’ (Code Civ. Proc., § 916.) This rule is applicable to proceedings on a writ of mandate.”]; see generally Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 197-198 [explaining divestiture of trial court authority upon filing of valid notice of appeal] & p. 197, fn. 9 [collecting authorities].)
The rule often arises in criminal cases when the trial court jumps the gun and takes some action, usually resentencing, in the wake of the appellate opinion but before the remittitur is issued in a criminal case, e.g., People v. Sonoqui (1934) 1 Cal.2d 364, 367.
Thus, we have, actually, no formal final judgment yet in this case.
At the same time, substantively, the denial of Cook’s motion to re-calendar was effectively the “equivalent of a denial as is appealable.” (White v. Lieberman (2002) 103 Cal.App.4th 210, 220 [where trial court denied hearing on anti-SLAPP motion because it thought case was moot, appellate court treated denial of hearing as equivalent of denial on merits as held order was appealable]; § 425.16, subd. (i) [“An order granting or denying a special motion to strike shall be appealable under Section 904.1.”].) We now proceed to the merits of the order.
B. And Cook is Entitled to a Hearing
A defendant who files an anti-SLAPP motion in a case which has otherwise been rendered moot by other rulings is entitled to have the motion heard, regardless of a disposition otherwise rendering the matter moot. (E.g., White v. Lieberman, supra, 103 Cal.App.4th 210, 220 [impliedly treating demurrer as the functional “equivalent of a denial” of an anti-SLAPP motion and remanding for direct hearing on fees]; Moraga-Orinda Fire Protection District v. Weir (2004)115 Cal.App.4th 477 [following White in case whether substantive opposition had established plaintiffs could not prevail]; Pfeiffer Venice Properties v. Bernard (2002) 101 Cal.App.4th 211 [setting motion where underlying action had been dismissed for lack of jurisdiction because of the amount in controversy]; Kyle v. Carmon (1999) 71 Cal.App.4th 901 [affirming award of fees to defendant after voluntary dismissal while anti-SLAPP motion was under submission]; Liu v. Moore (1999) 69 Cal.App.4th 745 [defendant entitled to anti-SLAPP hearing even after plaintiffs dismissed with prejudice]; Coltrain v. Shewalter (1998) 66 Cal.App.4th 94 [affirming attorney fee award after voluntary dismissal without prejudice].)
The fundamental essence of this case law is that if a plaintiff has filed what is indeed a disfavored SLAPP suit, it would nullify the attorney fee provision of the anti-SLAPP statute to allow the plaintiff to circumvent it by the expedient of voluntary dismissal, or the fortuity of filing a suit that was not only vulnerable to an anti-SLAPP motion, but one that was so flimsy that it couldn’t even survive until an anti-SLAPP motion was heard. (E.g., Pfeiffer Venice Properties v. Bernard, supra 101 Cal.App.4th 211 [trial court dismissed case on its own because it was so petty, before anti-SLAPP motion could be heard].)
That same policy applies in the case before us: Carlson filed a suit in Orange County that could not survive in Orange County long enough for Cook’s anti-SLAPP motion to be heard. We need merely note, given the judgment adverse to Carlson in the Sacramento case, that there is no danger here of conflicting rulings if indeed the trial court determines Carlson’s suit really constituted a SLAPP suit.
IV. DISPOSITION
The order of July 7, 2008 denying Cook’s motion to re-calendar Cook’s anti-SLAPP motion is reversed, and the matter is remanded with directions to the trial court to schedule a hearing on Cook’s anti-SLAPP motion. Cook shall recover her costs in this appeal.
WE CONCUR: RYLAARSDAM, J., IKOLA, J.