Opinion
G055290
10-24-2018
BADRIA ELNAGGAR et al., Plaintiffs and Appellants, v. THE IRVINE COMPANY et al., Defendants and Respondents.
Badria Elnaggar, in pro. per.; Eman Elamin, in pro. per., for Plaintiffs and Appellants. Ruzicka, Wallace & Coughlin and Richard Sontag for Defendants and Respondents Ruzicka & Wallace, Earl Wallacr and Ratha Kea. Kimball, Tirey & St. John, Eli A. Gordon and Sage Stone for Defendants and Respondents The Irvine Company LLC, The Irvine Company Apartment Communities, Inc., Michelle Beaudoin and Lorraine Seward.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 30-2014-00726400) OPINION Appeal from orders of the Superior Court of Orange County, David R. Chaffee, Judge. Affirmed in part and dismissed in part. Badria Elnaggar, in pro. per.; Eman Elamin, in pro. per., for Plaintiffs and Appellants. Ruzicka, Wallace & Coughlin and Richard Sontag for Defendants and Respondents Ruzicka & Wallace, Earl Wallacr and Ratha Kea. Kimball, Tirey & St. John, Eli A. Gordon and Sage Stone for Defendants and Respondents The Irvine Company LLC, The Irvine Company Apartment Communities, Inc., Michelle Beaudoin and Lorraine Seward.
INTRODUCTION
Appellants Badria Elnaggar and Eman Elamin have returned to this court after we affirmed orders granting an anti-SLAPP motion and sustaining a demurrer in favor of two groups of respondents in 2016. Ignoring the holdings of our 2016 opinion, appellants continued the litigation by filing another complaint that was virtually identical to the one dismissed pursuant to the anti-SLAPP motion and by continuing to name as defendants parties that we had held were out of the case. In addition, they asked to transfer the case back to Los Angeles Superior Court. Having had enough, one group of respondents filed a motion to have appellants declared vexatious litigants, a motion the trial court granted.
Elnaggar v. The Irvine Company et al. (Sept. 28, 2016, G051262) [nonpub. opn.].
Appellants now appeal from three orders: (1) an order denying an ex parte application to continue a hearing date, (2) an order striking one cause of action from the second amended complaint, which they filed after returning to the trial court in 2016, and (3) a vexatious litigant - prefiling order. There is no final judgment in the record, so the appeal from the first two orders is dismissed. As to the prefiling order, appellants filed no opposition to this motion in the trial court and they failed to appear at the hearing on the motion. They have forfeited any claim of error on appeal, and the prefiling order is affirmed.
FACTS
We summarize the facts given in our earlier opinion. Appellants sued respondents The Irvine Company, LLC, The Irvine Company Apartment Communities, Inc., and two of its managing agents (collectively the Irvine Company Defendants) and the law firm of Ruzicka and Wallace, LLP, and two of its lawyers (collectively the Law Firm Defendants) over an unlawful detainer action filed against appellants in 2010. Appellants' complaint, consisting of eight causes of action, was based almost entirely on events connected with the unlawful detainer action.
The Irvine Company Defendants and the Law Firm Defendants filed separate anti-SLAPP motions to strike under Code of Civil Procedure section 425.16. Each group of defendants filed demurrers simultaneously with the anti-SLAPP motions. The trial court heard all four motions at the same time; appellants did not attend the hearing.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
The trial court granted the Irvine Company Defendants' anti-SLAPP motion and sustained the Law Firm Defendants' demurrer without leave to amend. The trial court entered judgment in favor of all defendants. Appellants appealed.
We affirmed the Law Firm Defendants' judgment, which had dismissed the complaint after sustaining their demurrer. As to the Irvine Company Defendants, however, we reversed the judgment and reversed the order granting their anti-SLAPP motion, but only as to a few scattered allegations in one cause of action, because these allegations did not deal with protected activity. We affirmed the order granting the anti-SLAPP motion as to the other seven causes of action and as to most of the remaining cause of action. At the end of the day, the Law Firm Defendants were out of the suit, and the Irvine Company Defendants were still in only as to an extremely narrow set of emotional distress allegations.
The case went back to the trial court to deal with the vestiges of appellants' complaint. The Irvine Company Defendants demurred to the remains of the emotional distress cause of action. The trial court sustained the demurrer with leave to amend on the grounds that the cause of action appeared to be time-barred.
Appellants filed their second amended complaint on April 17, 2017. Despite the ruling from this court, they realleged the conduct connected with the unlawful detainer action, which we had ruled was protected activity, and named the Law Firm Defendants as defendants in the second amended complaint, even though we had affirmed the dismissal of the Law Firm Defendants in the 2016 opinion.
On May 2, 2017, appellants filed a motion for change of venue pursuant to section 397, subdivision (c), on the grounds of convenience to the parties and promotion of the ends of justice. The hearing on this motion was set for June 19. The next day, the Law Firm Defendants filed a motion to have appellants declared vexatious litigants. The hearing on this motion was set for June 12. At the same time, the Law Firm Defendants filed a motion to strike the second amended complaint because it did not conform to our 2016 opinion or to the trial court's subsequent ruling on the Irvine Company Defendants' demurrer. The hearing on this motion was also set for June 12.
Appellants filed the case in Los Angeles Superior Court in 2013. Respondents successfully moved to have venue transferred to Orange County before filing their anti-SLAPP motions and their demurrers.
On June 6, appellants applied ex parte for a three-month continuation of June 12 hearings to allow their motion to send the case back to Los Angeles Superior Court to be heard first. The trial court denied the application on June 9. This is one of the orders from which appellants have appealed.
The hearing on the Law Firm Defendants' motion to have appellants declared vexatious litigants took place on June 12, 2017. Appellants did not appear. They also did not file an opposition to the motion. The trial court granted the motion. At the same time, it granted the motion to strike the second amended complaint with respect to the Law Firm Defendants and struck the first through sixth causes of action of the second amended complaint, leaving only the emotional distress cause of action. This is the other order from which appellants have appealed. The court entered the prefiling order - vexatious litigant against both appellants on June 14, 2017.
On June 21, 2017, the Irvine Company Defendants filed their demurrer to the second amended complaint. The court sustained the demurrer without leave to amend on July 31. The record contains no final judgment.
Appellants filed their notice of appeal on August 7, 2017. They identified the order of June 9 (the ruling on the ex parte application to continue the June 12 hearings) and the orders of June 12 granting the vexatious litigant motion and striking their cause of action for violation of Civil Code section 1942.5 as the orders from which they appeal. The notice of appeal does not specify the code section that authorizes this appeal.
As evidenced by the request for judicial notice filed in the trial court by Law Firm Defendants to support the vexatious litigant motion, the stricken cause of action identified in appellants' notice of appeal is identical to one dismissed with prejudice in 2011.
DISCUSSION
Our jurisdiction is limited to final judgments and appealable orders. (§ 904.1) This record contains no final judgment. The last substantive document in the record from the superior court is a minute order sustaining the Irvine Company Defendants' demurrer to the second amended complaint without leave to amend. "No appeal lies from an order sustaining a demurrer without leave to amend." (Youngblood v. Board of Supervisors (1978) 22 Cal.3d 644, 651; see Lopez v. Brown (2013) 217 Cal.App.4th 1114, 1133; Sisemore v. Master Financial, Inc. (2007) 151 Cal.App.4th 1386, 1396.)
In any event, appellants' notice of appeal did not identify an order sustaining a demurrer as one from which they were appealing. They appealed from an order denying an ex parte application, an order striking a cause of action from the second amended complaint, and an order granting a vexatious litigant motion. Neither an order denying a request to continue a hearing nor an order granting a motion to strike is appealable in the absence of a final judgment. (See People v. Palmer (1961) 188 Cal.App.2d 819, 820 [motion for continuance of hearing]; Jackson v. Rogers & Wells (1989) 210 Cal.App.3d 336, 342 [motion to strike].)
We asked the parties for supplemental briefing on the issue of our jurisdiction in the absence of a final judgment. Appellants referred us to section 400, which allows a party aggrieved by a ruling on a motion for change of venue to petition for a writ of mandate. Respondents urged us to rule on the order sustaining the demurrer without leave to amend (in the absence of a judgment), notwithstanding the fact that appellants have not appealed from that order.
We have the authority, however, to review the order granting the vexatious litigant motion under section 904.1, subdivision (a)(6), as an order granting an injunction. (See Luckett v. Panos (2008) 161 Cal.App.4th 77, 90 [prefiling order against vexatious litigant meets definition of injunction]). We review an order granting a vexatious litigant motion for abuse of discretion. "Review of the order is accordingly limited and the Court of Appeal will uphold the ruling if it is supported by substantial evidence. Because the trial court is best suited to receive evidence and hold hearings on the question of a party's vexatiousness, we presume the order declaring a litigant vexatious is correct and imply findings necessary to support the judgment." (Golin v. Allenby (2010) 190 Cal.App.4th 616, 636.)
We have the statutory authority to review this order. What we do not have is a record upon which to base this review. As we explained in our prior opinion, a party who files no opposition to a motion and who fails to turn up at the hearing forfeits any claim of error on appeal. (See Kashmiri v. Regents of University of California (2007) 156 Cal.App.4th 809, 830; Bell v. American Title Ins. Co. (1991) 226 Cal.App.3d 1589, 1602.) We ruled on the merits of the appeal from the anti-SLAPP motion anyway - even though appellants had filed no opposition to that motion and had not appeared at the hearing - because the standard of review was de novo and because we entertained the gossamer hope that we could forestall any future meritless litigation by explaining in detail why appellants' lawsuit had been dismissed. For the vexatious litigant order, however, the standard of review is the deferential abuse of discretion, and we now pin our hope of forestalling meritless litigation on the order requiring appellants to obtain permission of a presiding judge before they file any new cases.
The Irvine Company Defendants and the Law Firm Defendants have both filed requests for judicial notice in this court. The documents for which the Irvine Company Defendants requested judicial notice all relate to the order denying appellants' motion to transfer venue, which is not an order from which they have appealed. The documents are irrelevant to this appeal, and the request is therefore denied. The Law Firm Defendants have requested judicial notice of two documents relating to the 2010 unlawful detainer judgment. Respondents have not explained the relationship of these documents to the issues in this appeal, and we can discern none for ourselves. The request is therefore denied.
The motion to transfer venue was heard and denied on June 26, 2017.
DISPOSITION
The appeal from the orders denying appellants' ex parte application and granting the Law Firm Defendants' motion to strike one cause of action is dismissed. The order granting the vexatious litigant motion is affirmed. Respondents' requests for judicial notice are denied. Respondents are entitled to their costs on appeal.
BEDSWORTH, ACTING P. J. WE CONCUR: MOORE, J. ARONSON, J.