Opinion
NOT TO BE PUBLISHED
San Francisco City and County Super. Ct. No. CGC-08-478843
SIMONS, J.
Defendants GL Premier Properties, LLC (GL), and Gary N. Sayed appeal an order denying their special motion to strike the complaint by plaintiff Samantha Seinfeld pursuant to the anti-SLAPP statute, Code of Civil Procedure section 425.16. Defendants correctly contend the trial court erred in permitting plaintiff to file an amended complaint and denying their motion to strike the original complaint as moot. The matter is remanded with directions to the trial court to reinstate plaintiff’s original complaint and rule on defendants’ section 425.16 motion to strike.
SLAPP is an acronym for “strategic lawsuit against public participation.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, fn. 1 (Equilon).)
All further undesignated section references are to the Code of Civil Procedure.
Plaintiff requests that sanctions be imposed on defendants for filing the instant appeal, which plaintiff asserts is frivolous and taken solely to delay the March 9, 2009 trial date. Given our ruling on the merits, the request is denied.
On March 30, 2009, plaintiff requested that we take judicial notice of her filings in support of her unsuccessful emergency request to dismiss the instant appeal and sections 1.21 and 5.10 of the Rules and Regulations of the City and County of San Francisco Residential Rent Stabilization and Arbitration Board. We deny the request as unnecessary.
Because we determine the matter must be reversed and remanded on procedural grounds, we need not recite background facts relevant to the merits of plaintiff’s action or defendants’ motion to strike.
Plaintiff’s Original Complaint
On August 19, 2008, plaintiff filed her original complaint against defendants and defendants’ attorney, Karen Uchiyama, alleging: violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.), violation of the San Francisco Rent Ordinance, violation of Civil Code section 1942.5, negligence, intentional infliction of emotional distress, breach of the covenant of quiet enjoyment, breach of the warranty of habitability, and unfair business practices.
Uchiyama is not a party to the appeal.
On September 30, 2008, defendants filed their answer to plaintiff’s complaint.
Plaintiff’s Motion to File a First Amended Complaint
On October 2, 2008, the court granted plaintiff’s ex-parte application for an order shortening time for a hearing on her motion to file a first amended complaint (FAC), and she filed a written motion for leave to file an FAC. Plaintiff sought leave to amend the complaint to remove Uchiyama as a defendant and “delete[] certain charging allegations pertaining to [Uchiyama’s] conduct in the instant action.”
The supporting declaration of plaintiff’s counsel, Joel Liberson, explained that on September 30, 2008, plaintiff learned there was a potential problem in serving Uchiyama and, therefore, sought leave to amend the complaint to remove her as a defendant and avoid the delay in having her re-served. Liberson’s declaration also stated that on September 30, plaintiff’s messenger had attempted to file the FAC, but was unable to do so after being told that defendants had minutes before filed their answer to plaintiff’s original complaint. Attached to Liberson’s declaration was a September 26, 2008 letter from Uchiyama to Liberson stating that she had not been properly served with the summons and complaint and that if plaintiff continued to pursue the action against her she would file an anti-SLAPP motion. Also attached to Liberson’s declaration was a September 30 letter from defendants’ counsel, L. Jay Pedersen, stating defendants would be filing an answer to the complaint that day and their anti-SLAPP motion would be filed later that week.
Defendants’ Anti-SLAPP Motion
Also on October 2, 2008, defendants filed their anti-SLAPP motion to strike plaintiff’s original complaint. Sayed filed a declaration in support of defendants’ anti-SLAPP motion. Plaintiff’s written objections to Sayed’s declaration were not ruled on by the trial court because it ultimately denied defendants’ anti-SLAPP motion as moot.
Declarations Opposing Defendants’ Anti-SLAPP Motion
Plaintiff filed a written opposition to the anti-SLAPP motion arguing that the motion was meritless and that defendants had failed to carry their burden under the anti-SLAPP statute. The supporting declaration of plaintiff’s counsel, Jason Wolford, reiterated that on September 30, 2008, the court clerk rejected the filing of plaintiff’s FAC because defendants’ answer to the original complaint had been filed minutes before. Attached to Wolford’s declaration is a September 30 letter from Liberson to Pedersen stating that plaintiff decided to dismiss Uchiyama without prejudice and had therefore prepared an FAC which they were unable to file because defendants’ answer had just been filed. A copy of the FAC was attached to Liberson’s letter. The letter also stated that plaintiff would appear ex parte on October 2 to obtain “an order shortening time to file the [FAC].” Also attached to Wolford’s declaration was an October 1 e-mail from him to Pedersen with an attached copy of the FAC. The e-mail requested that defendants stipulate to plaintiff’s filing of the FAC. On October 2, Wolford was informed that defendants would not stipulate to the filing of the FAC because it would impact their anti-SLAPP motion.
Defendants’ Opposition to Plaintiff’s Motion to File an FAC
Defendants opposed plaintiff’s motion to file an FAC and did not stipulate to the filing of the FAC on three grounds. First, defendants had prepared their anti-SLAPP motion before plaintiff’s counsel requested their stipulation. Second, instead of filing an FAC, plaintiff could file a request for dismissal as to Uchiyama, which would be more expeditious in light of plaintiff’s medical condition. Third, the charging allegations regarding Uchiyama remained in the proposed FAC.
On October 27, 2008, the trial court granted plaintiff’s motion to file the FAC and denied defendants’ anti-SLAPP motion as moot.
DISCUSSION
I. The Court Erred in Granting Plaintiff Leave to File an FAC and Denying the Anti SLAPP Motion as Moot
Defendants contend the trial court erred in permitting plaintiff to file her FAC after they had filed their anti-SLAPP motion and in denying the anti-SLAPP motion as moot.
“ ‘A SLAPP suit... seeks to chill or punish a party’s exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] The Legislature enacted... section 425.16... to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights. [Citation.]’ [Citations.]” (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1477 (Feldman).)
In Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068 (Simmons), the Court of Appeal acknowledged that in enacting the anti-SLAPP statute, the Legislature created a mechanism designed to evaluate and expeditiously resolve, at an early stage of the litigation process, complaints arising from the exercise of free speech rights. “Allowing a SLAPP plaintiff leave to amend the complaint once the court finds the prima facie showing has been met would completely undermine the statute by providing the pleader a ready escape from section 425.16’s quick dismissal remedy. Instead of having to show a probability of success on the merits, the SLAPP plaintiff would be able to go back to the drawing board with a second opportunity to disguise the vexatious nature of the suit through more artful pleading. This would trigger a second round of pleadings, a fresh motion to strike, and inevitably another request for leave to amend.” (Id. at p. 1073.)
In Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049 (Sylmar), the defendant filed an anti-SLAPP motion to strike a cause of action in the plaintiff’s cross-complaint and, at the same time, filed its demurrer to the cross-complaint. Three days before the scheduled hearing on the anti-SLAPP motion and demurrer, the plaintiff filed a first amended complaint. Thereafter, the court granted the anti-SLAPP motion and found the demurrer moot. (Id. at pp. 1053-1054.) On appeal from the order granting the anti-SLAPP motion, the plaintiff contended the court erred in hearing the anti-SLAPP motion because prior to the hearing on the motion she had filed a first amended complaint pursuant to section 472. The court rejected the argument and held the policy of evaluating anti-SLAPP motions at an early stage “cannot be defeated by filing an amendment even as a matter of right pursuant to section 472.” (Sylmar, at p. 1052.) Sylmar stated that Simmons established “there is no express or implied right in section 425.16 to amend a pleading to avoid a SLAPP motion.” (Sylmar, at p. 1055.)
Section 472 provides in relevant part: “Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon....”
In Salma v. Capon (2008) 161 Cal.App.4th 1275 (Salma), the cross-defendant filed an anti-SLAPP motion to strike two causes of action from the cross-complaint. Before the trial court ruled on the anti-SLAPP motion, the cross-complainant filed a first amended cross-complaint revising those causes of action. After the court denied the anti-SLAPP motion on the ground of inadequate notice, the cross-defendant filed an anti-SLAPP motion to strike the amended cross-complaint. The trial court reversed its earlier ruling that notice on the first anti-SLAPP motion was insufficient and ruled the first anti-SLAPP motion was not mooted by the filing of the amended cross-complaint. (Id. at pp. 1281-1282.) On appeal, this court held that, although the cross-complainant amended his cross-complaint before the trial court ruled on the cross-defendant’s original anti-SLAPP motion, Simmons supported the “automatic dismissal” of the amended cross-complaint. “Requiring the trial court to analyze the amended claims under section 425.16 simply because the claims were amended before the court ruled on the first motion to strike would cause all of the evils identified in Simmons and would undermine the legislative policy of early evaluation and expeditious resolution of claims arising from protected activity.” (Id. at p. 1294.)
Plaintiff argues that Simmons and Salma are distinguishable because at the time she sought to file her FAC defendants had not yet filed their anti-SLAPP motion. Plaintiff also asserts that the circumstances of this case do not implicate any of the potential abuses referenced in Simmons and Salma. Plaintiff’s arguments are without merit.
On September 30, 2008, when plaintiff sought to file her FAC without leave to amend, defendants’ answer had already been filed, albeit only minutes before. As a result, pursuant to section 472, plaintiff could not file her FAC without obtaining the trial court’s leave to amend. On October 2, defendants properly filed their anti-SLAPP motion. (See Dixon v. Superior Court (1994) 30 Cal.App.4th 733, 739-740 [anti-SLAPP motion may be filed after the defendant has filed its answer].) The court set the hearing on the anti-SLAPP motion for October 27, the same time as previously set for the hearing on plaintiff’s request for leave to file an FAC. At the time of the October 27 hearing, there was a pending anti-SLAPP motion on file, but no FAC on file.
Under the reasoning of Sylmar and Salma, the trial court erred in permitting plaintiff to file her FAC before ruling on defendants’ anti-SLAPP motion. Given the pending anti-SLAPP motion, the court should have denied plaintiff leave to file the FAC and considered defendants’ anti-SLAPP motion. Regardless of plaintiff’s assertion that in seeking leave to file the FAC she was not attempting to plead around the anti-SLAPP motion, permitting her to file the FAC before the court considered the anti-SLAPP motion to the original complaint would thwart the legislative policy of evaluating anti-SLAPP motions at an early stage. We conclude the court erred in granting plaintiff leave to file the FAC and in denying the anti-SLAPP motion as moot.
II. The Trial Court Must Consider Defendants’ Anti-SLAPP Motion on the Merits
The parties appear to agree that if this court determines the trial court erroneously granted plaintiff leave to file an FAC and erroneously denied as moot defendants’ anti-SLAPP motion to strike plaintiff’s original complaint, this court should consider defendants’ anti-SLAPP motion in the first instance.
Defendants request that we remand the matter to the trial court with directions to grant the anti-SLAPP motion.
Determination of a special motion to strike under section 425.16 involves a two-step process. First, in bringing a section 425.16 motion to strike, the defendant has the initial burden to make a prima facie showing that the plaintiff’s cause of action arises from an act in furtherance of the defendant’s right to petition or free speech. (§ 425.16, subd. (b)(1); Equilon, supra, 29 Cal.4th at p. 67; Salma, supra, 161 Cal.App.4th at p. 1283.) In determining whether the defendant has sustained its initial burden to establish that its activity is protected, the court considers the pleadings, declarations and matters subject to judicial notice. (Brill Media Co., LLC v. TCW Group, Inc. (2005) 132 Cal.App.4th 324, 330; accord, Salma, at p. 1286.) Second, if the defendant makes the requisite prima facie showing, the burden shifts to the plaintiff “ ‘to establish a probability he or she will prevail on the claim at trial, i.e., to proffer a prima facie showing of facts supporting a judgment in the plaintiff’s favor.’ [Citation.] In assessing the probability of prevailing, a court looks to the evidence that would be presented at trial, similar to reviewing a motion for summary judgment; a plaintiff cannot simply rely on its pleadings, even if verified, but must adduce competent, admissible evidence. [Citation.]” (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 613-614.)
The appellate court independently reviews the trial court’s decision to grant or deny an anti-SLAPP motion. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325; Feldman, supra, 160 Cal.App.4th at p. 1478.) “In doing so, we consider ‘ “ ‘the pleadings, and supporting and opposing affidavits [stating the facts] upon which the liability or defense is based.’ (§ 425.16, subd. (b)(2).) However, we neither ‘weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate defendants’ evidence only to determine if it has defeated that submitted by plaintiff as a matter of law.’ [Citation.]” [Citation.]’ ” (Feldman, at p. 1478, quoting Flatley, at p. 326.)
As we noted, ante, plaintiff filed written evidentiary objections to the declaration of Sayed filed in support of defendants’ anti-SLAPP motion. The trial court did not rule on those evidentiary objections because it did not consider the merits of defendants’ anti-SLAPP motion. Although the parties have briefed the merits of defendants’ anti-SLAPP motion, we conclude it is more appropriate for the trial court to address the merits in the first instance.
Birkner v. Lam (2007) 156 Cal.App.4th 275 is instructive. In that case, the trial court denied the defendant’s anti-SLAPP motion after deciding the defendant had not met its burden of establishing a prima facie case under the first prong of the section 425.16 analysis. The trial court did not address the second prong of that analysis, whether the plaintiffs established a probability of prevailing on the claim at trial. (Birkner, at p. 280.) On appeal, Division Three of this court concluded the trial court erred in determining that the plaintiffs’ causes of action did not arise from protected activity under section 425.16. (Birkner, at pp. 278, 283-285.) Although Birkner noted that the parties had extensively briefed the issue of the plaintiffs’ probability of prevailing on their causes of action and the validity of the defendant’s defenses, it determined that it was more appropriate to remand the issue for the trial court to address in the first instance. Birkner stated that the trial court did not expressly rule on the plaintiffs’ objections to defendant’s evidence, and factual issues were involved in whether the plaintiffs had made a prima facie showing under the second prong of the section 425.16 analysis. Given those circumstances, Birkner concluded it was “advisable to remand the matter to the trial court so that it may rule on the outstanding evidentiary and substantive matters in the first instance.” (Birkner, at p. 286.) “Rulings on evidentiary objections involve an exercise of discretion, and it is the trial court’s responsibility to rule on the objections in the first instance.” (Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1348, fn. omitted.)
The parties have cited no case where the appellate court considered an anti-SLAPP motion under circumstances similar to the instant case. In Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 313, Division Four of this court reversed a trial court’s ruling sustaining the defendant’s demurrer and its denial of the defendant’s anti-SLAPP motion to strike as moot. Thereafter, the defendants requested that this court rule on their anti-SLAPP motion rather than remand it to the trial court. Noting that the plaintiff did not object and the anti-SLAPP issues were fully briefed by the parties, Yu agreed to address the anti-SLAPP issues to expedite the ultimate resolution of the case. (Ibid.) Yu is distinguishable because the appellate court was not required to rule on evidentiary objections in the first instance.
Given the circumstances presented here, we conclude it is appropriate to remand the matter to the trial court for a ruling on the evidentiary objections and merits of the anti-SLAPP motion.
DISPOSITION
The order denying defendants’ section 425.16 motion to strike is reversed and the cause is remanded to the trial court for determination of that motion on its merits. Costs to appellants.
We concur. JONES, P.J. NEEDHAM, J.
Section 425.16, subdivision (b)(1), provides in relevant part: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” An “ ‘act in furtherance of a person’s right of petition or free speech’ ” includes any written or oral statement made before a legislative, executive, or judicial body, or any other official proceeding authorized by law, or in connection with an issue under consideration by such body or in such proceeding. (§ 425.16, subd. (e)(1) & (2).)