Anselmo v. Horne

Filed 3/15/06 Anselmo v. Horne CA1/4

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR

Appellant Phillip E. Anselmo appeals from an order denying his motion to vacate the order granting attorney fees to respondent Philip S. Horne, the prevailing party in a motion to strike under California's anti-SLAPP (strategic lawsuits against public participation) statute.[1] Anselmo claims the trial court abused its discretion in denying his motion. The record supports the trial court's discretion and therefore we affirm.

I. FACTS

On April 24, 2003, Luther Burbank Savings filed an action to quiet title against Anselmo. Anselmo cross-complained against Horne because Horne legally represented tenants in prior proceedings against Anselmo. Pursuant to section 425.16, Horne moved to strike the cross-complaint as well as the second amended cross-complaint. Following several delays the court heard, and granted, the special motion and thereafter, on December 10, 2004, Horne moved to recover attorney fees. (See § 425.16, subd. (c).)[2] The court set this motion date for January 12, 2005.[3]

During the interim, Anselmo purchased airline tickets departing from New York City on the evening of January 3 for a trip abroad. On December 17, 2004, Anselmo filed a notice of unavailability with the trial court, stating he would be unavailable from January 15 to March 15. The notice was dated December 11, 2004, and also indicated that the proof of service was mailed that same day to Horne and his attorney, Sarge Holtzman.

Upon learning of Horne's motion for attorney fees, on or about December 20, 2004, Anselmo called Holtzman's office after business hours and left a voice mail message expressing concern that the motion date conflicted with his dates of unavailability. Anselmo explained that the clerk had made a mistake when entering the dates of his unavailability in the registry and therefore requested he recalendar the motion date. Anselmo alleges he followed up with a letter to Holtzman, dated December 23, 2004, reiterating his request for either an advance hearing on January 3, or a continuance to March upon his return. Holtzman disputes receiving this letter.

The day after Anselmo's voice mail message, Holtzman returned the telephone call at the telephone number Anselmo left. A woman answered the telephone and stated Anselmo was not available. Holtzman requested that she advise Anselmo that the hearing date did not conflict with the dates of unavailability. Holtzman therefore declined to continue the hearing. Holtzman subsequently received another voice mail message after business hours from Anselmo, again requesting the motion be continued. Holtzman returned the telephone call the next day to seek clarification about the dates of Anselmo's unavailability, but was informed Anselmo was not available. Thereafter, Anselmo's telephone number was disconnected. Holtzman had no alternate telephone number in which to contact Anselmo and in fact, had no further communications with Anselmo until Anselmo reinitiated contact in March.

The motion originally scheduled for January 12 proceeded uncontested. The trial court granted Horne's motion for attorney fees in the amount of $7,875 because no opposition had been filed. On April 13, Anselmo filed a motion to vacate the order[4] and also requested sanctions against Horne for fraud pursuant to section 128.7. The trial court denied his motion.

Anselmo appeals the orders granting attorney fees and denying his motion to vacate the award.[5]

II. DISCUSSION

Anselmo argues the trial court abused its discretion in refusing to vacate the fee award in light of his unavailability. We disagree.

Section 473, subdivision (b) provides discretionary relief from default entered as a result of mistake, inadvertence, surprise or neglect.[6] We will uphold the denial of a motion to vacate, absent a clear abuse of discretion. In reviewing the evidence in support of the motion, we indulge all legitimate and reasonable inferences to uphold the trial court's decision. (Shamblin v. Brattain (1988) 44 Cal.3d 474, 478-479; Yeap v. Leake (1997) 60 Cal.App.4th 591, 598.)

From the moment Anselmo learned that Horne filed a motion requesting an award of attorney fees, to this present appeal, Anselmo has maintained that the January 12 motion conflicted with the dates of his planned trip abroad beginning January 3. Anselmo overlooks the fatal flaw in his argument. His notice of unavailability filed on December 17, 2004, with the court, clearly indicated his unavailability was from January 15 to March 15. The register reflected these dates pursuant to Anselmo's notice of unavailability. Any suggestion that the court clerk incorrectly recorded the dates onto the register is false.

Anselmo made no effort to clarify to the trial court, or to opposing counsel, the discrepancy between the date of his physical absence, January 3, and the date of his court-notified absence, January 15. In his opening appellate brief, Anselmo contends he booked his nonrefundable airline tickets in September 2004. His airline itinerary dated December 10, 2004, indicates an international flight departing January 3. If Anselmo knew, since September, that he would depart on January 3, it begs the question as to why he made written representations to the court, and his opposing party, that his absence would commence on January 15.

As the moving party, Anselmo bears the burden of proof to show good cause why the trial court should vacate Horne's award of attorney fees. (See Parage v. Couedel (1997) 60 Cal.App.4th 1037, 1042; Eigner v. Worthington (1997) 57 Cal.App.4th 188, 196.) Although he left two voice mail messages after business hours with Horne's attorney, and claims he followed up with a letter dated December 23, 2004, Anselmo never spoke with Holtzman directly. In his efforts, Anselmo made two offers: (1) to either advance the motion date from January 12 to January 3, or, (2) to continue the January 12 motion to late March, sometime after his return to the country.

With respect to the offer to advance the motion date from January 12 to January 3, Anselmo provided no reasonable explanation for the request. Assuming Horne agreed to advance the motion to January 3, it would have been impossible for Anselmo to have filed an opposing motion within the requisite nine court-day period.[7] (§ 1005, subd. (b); Cal. Rules of Court, rule 317(a).) The sincerity of Anselmo's offer, therefore, is questionable. As originally scheduled, his opposing motion would have been due in court on December 31, 2004, but the court received no opposing motion from him. In fact, Anselmo made no effort to secure viable alternatives, such as substitute counsel or ensuring a telephonic appearance, to protect his legal interests in this matter in the event the court should hear the motion on January 12 while he was abroad.

Anselmo's failure to diligently negotiate the advancement date to January 3 supports a stronger inference that he hoped for a continuance instead. Indeed, Anselmo made a second offer to Horne to continue the January 12 motion until late March. He argues the subsequent default judgment against him resulted from opposing counsel's legal maneuverings in denying his request for a continuance. While attorneys have an obligation to respect the â€