Filed 11/26/18 Maurer v. Strom CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from an order of the Superior Court of Orange County, Aaron Heisler, Temporary Judge. (Pursuant to Cal. Const., art. VI, § 21.) Affirmed.

Horwitz & Armstrong, John R. Armstrong and Vanoli V. Chander for Defendant and Appellant.

Garvey Schubert Barber and William J. Keeler, Jr., for Plaintiff and Respondent.

* * *

Defendant Nancy Ann Strom[1] (Nancy) appeals from the trial court’s decision declining to hear her special motion to strike plaintiff Barbara Leigh Strom Maurer’s complaint pursuant to Code of Civil Procedure section 425.16[2] (the anti-SLAPP statute).[3] The court concluded the motion was untimely. Nancy argues the court abused its discretion by declining to hear her motion, which she filed more than six months after proceedings were initiated. Nancy, however, failed to address the timeliness issue below. She cannot raise her reasons as to why the court should have exercised its discretion to hear her untimely motion for the first time in this court. Based on the record the court had before it when it ruled, there was no abuse of discretion. Accordingly, we affirm the order.

I

FACTS AND PROCEDURAL BACKGROUND

This is a case involving trust administration, but we need not delve into the facts in great detail. We draw the facts primarily from the petition filed below in this case. In 1996, Russell L. Strom and Rita Frances Strom created the Strom Family Trust (the trust). It was modified and restated in 2002. Maurer and Nancy are Russell and Rita Frances’s daughters, and two of the beneficiaries of the trust, and the third is their brother, Stephen. Nancy is the current trustee.

Russell died in 2003. The instant dispute relates to a 2012 handwritten letter purported to be from Rita Frances, stating that she wanted a certain piece of residential property in Irvine (the Irvine property) to go to her granddaughter, Rita Leigh Strom (Rita Leigh), Nancy’s daughter, instead of passing through the trust. Rita Frances died in 2015.

A dispute subsequently arose over the disposition of the Irvine property. Rita Leigh, according to Nancy, filed a timely claim for the Irvine property. Rita Leigh hired counsel, and Nancy decided, in her capacity as trustee, to settle Rita Leigh’s claim. Nancy notified Maurer of this, at which point Maurer’s attorney became involved, and demanded that Nancy provide a full narrative report.

Nancy provided a report stating her intentions as trustee; in sum, she intended to settle Rita Leigh’s claim. Several months later, Maurer filed a petition for instructions and initiated the instant case under Probate Code section 17200. Maurer alleged various claims for instructions and accounting, and she sought construction of the trust and determination of its beneficiaries. She also asked the court to decide the validity of a purported trust amendment, determine Nancy’s alleged breaches of fiduciary duty as trustee, and to remove Nancy as trustee and prohibit her use of trust funds. Essentially, Maurer claims Nancy failed to abide by the terms of the trust and gave away trust property to her daughter, Rita Leigh.

Maurer’s petition was filed on January 24, 2017, and was served shortly thereafter. On June 5, Nancy filed her response. On June 8, Maurer filed a four-page supplement to her petition (the supplement). This supplement made minor changes to the petition, mostly by adding new exhibits, and alleged no new claims or causes of action.

On August 4, Nancy filed the anti-SLAPP motion that is the subject of this appeal. In very brief form, Nancy’s motion alleged that the gravamen of Maurer’s petition was challenging Nancy’s decision to settle Rita Leigh’s claims against the trust, which purportedly violated Nancy’s right to free speech. She did not address the fact that more than 60 days had passed since the petition was filed, or argue that the court should exercise its discretion to hear the motion anyway.

In response, Maurer argued that Nancy’s motion was untimely and could not be filed as a matter of right, because it was not filed within 60 days of the petition. Anticipating Nancy would argue in reply that the supplement restarted the 60-day clock, Maurer contended that the supplement was a minor addition primarily consisting of exhibits, while her substantive claims remained the same. Maurer also opposed the motion on its merits, arguing her claims did not arise of out expressive activity, but of Nancy’s conduct in administering the trust. Nancy filed a reply, but did not respond to Maurer’s arguments about the timeliness issue at all.

The court declined to hear the motion, deeming it untimely. In addition to rejecting Nancy’s argument that she had 60 days from the filing of the supplement to file the motion as a matter of right, the court stated: “Having concluded that this motion was not timely filed as a matter of right, the court has discretion to allow or disallow it, i.e., the court may refuse to hear it in the absence of a persuasive reason for doing so. [Citation.] On the record presented, the court finds no persuasive reason for exercising its discretion to hear this motion. [¶] As noted above, this motion was filed more than four months after [Nancy’s] deadline to file it as a matter of right. It was filed nearly two months after [Nancy’s] verified response to the merits of the Petition, and nearly two months after the court set a Mandatory Settlement Conference and Court Trial on the Petition. Nevertheless, [Nancy] neither received nor ever asked for permission to file an untimely anti-SLAPP motion. Especially telling is [Nancy’s] failure to address the timeliness issue in her moving papers, or even in her reply brief after [Maurer] raised the issue in her opposition.” Nancy subsequently filed the instant appeal.

II

DISCUSSION

The Newport Harbor Decision

Section 425.16, subdivision (f), provides that an anti-SLAPP “motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.” At the time the issue was briefed in the trial court – and indeed, until shortly after the opening brief was filed in this appeal – there was a lack of clarity in reported decisions as to whether any amendment or amended pleading restarted the 60-day clock to file the motion as a matter of right, or whether an anti-SLAPP motion could only be filed if there were new substantive allegations or causes of action.

This ambiguity was resolved earlier this year in Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637 (Newport Harbor). The California Supreme Court adopted a bright-line rule on this point, holding: “[S]ubject to the trial court’s discretion under section 425.16, subdivision (f), to permit late filing, a defendant must move to strike a cause of action within 60 days of service of the earliest complaint that contains that cause of action.” (Id. at pp. 639-640.)

The supplement in this case, as we noted, alleged no new claims or causes of action. Accordingly, the only argument remaining to Nancy is that the trial court improperly declined to exercise its discretion to hear her motion on the merits. (§ 425.16, subd. (f).)

Standard of Review

As Nancy acknowledges, the appropriate standard of review is abuse of discretion. “An abuse of discretion occurs only if the reviewing court, considering the applicable law and all of the relevant circumstances, concludes that the trial court’s decision exceeds the bounds of reason and results in a miscarriage of justice.” (Uzyel v. Kadisha (2010) 188 Cal.App.4th 866, 911.)

“‘It is fairly deducible from the cases that one of the essential attributes of abuse of discretion is that it must clearly appear to effect injustice. [Citations.] Discretion is abused whenever, in its exercise, the court exceeds the bounds of reason, all of the circumstances before it being considered. The burden is on the party complaining to establish an abuse of discretion, and unless a clear case of abuse is shown and unless there has been a miscarriage of justice a reviewing court will not substitute its opinion and thereby divest the trial court of its discretionary power.’ [Citations.]” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566; see Denton v. City and County of San Francisco (2017) 16 Cal.App.5th 779, 791.) “The abuse of discretion standard . . . measures whether, given the established evidence, the act of the lower tribunal falls within the permissible range of options set by the legal criteria.” (Department of Parks & Recreation v. State Personnel Bd. (1991) 233 Cal.App.3d 813, 831.)

“‘The scope of discretion always resides in the particular law being applied, i.e., in the “legal principles governing the subject of [the] action . . . .” Action that transgresses the confines of the applicable principles of law is outside the scope of discretion and we call such action an “abuse” of discretion.’” (Horsford v. Board Of Trustees Of California State University (2005) 132 Cal.App.4th 359, 393.) Accordingly, “[i]n the anti–SLAPP context, courts have identified two particular ways in which a refusal to entertain a late anti-SLAPP motion might be shown to constitute an abuse of discretion: (1) if ‘the grounds given by the court . . . are inconsistent with the substantive law of section 425.16,’ and (2) if the court’s application of the statute to the facts of the case is ‘outside the range of discretion conferred upon the trial court under that statute, read in light of its purposes and policy.’ [Citation.] In other words, a claim that a trial court abused its discretion by failing to entertain a late anti–SLAPP motion requires the appellant to demonstrate that the trial court applied the statute in a manner that is incompatible either with the statute’s actual mandate, or with its ‘purposes and policy.’ [Citation.]” (Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174, 1187-1188.)

Proper Exercise of Discretion

Nancy does not appear to argue that the court’s grounds are “inconsistent with the substantive law” of the anti-SLAPP statute, but instead that the court’s decision was outside the range of discretion given the statute’s purposes. The purpose of the anti-SLAPP statute’s timing requirement “is to facilitate the dismissal of an action subject to a special motion to strike early in the litigation so as to minimize the cost to the defendant.” (Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 682.)

Nancy offers several arguments on appeal as to why the court abused its discretion. In her opening brief, she argued that the delay was brief, no prejudice to Maurer would have occurred, and the case was still in its early stages. In her reply, she repeats these arguments, and contends that the supplement was filed by Maurer to circumvent the notice of proposed action procedure.[4]

What Nancy misses, however, is that we are examining whether the trial court abused its discretion based on the record before the court at the time it ruled. No other decision was possible based on this record.[5] As the court noted, despite Maurer’s opposition brief raising the issue of timeliness at some length, this issue was never addressed by Nancy below. Not only did her moving papers fail to candidly acknowledge the issue and explain why the court should exercise its discretion under section 425.16, subdivision (f), she never mentioned that timeliness might be an issue in any respect. This was a particularly egregious omission in her reply brief, given that Maurer’s argument on this point was a key contention in her responsive brief.

By failing to adequately brief this issue below, Nancy has failed to create the necessary record to permit us to consider her contentions on appeal. She cannot offer arguments before this court that she never made to the trial court. “At the risk of sounding like a broken record, we again cite the general rule: ‘[A] party is precluded from urging on appeal any point not raised in the trial court. [Citation.]’” (In re Aaron B. (1996) 46 Cal.App.4th 843, 846.)

In short, Nancy never argued to the trial court that it should exercise its discretion to hear the motion even if it was deemed untimely. She cannot now argue the trial court abused its discretion by failing to do something that Nancy never asked it to do.

III

DISPOSITION

The order is affirmed. Maurer is entitled to her costs on appeal.

MOORE, J.

WE CONCUR:

BEDSWORTH, ACTING P. J.

GOETHALS, J.