Malter v. Willdorf

Filed 8/20/07 Malter v. Willdorf CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

Arnold Malter appeals from an order granting respondent Barry Willdorfs special motion to strike (Code Civ. Proc.,[1]  425.16). Because Malters notice of appeal was not timely filed, we lack jurisdiction to consider his appeal. Accordingly, the appeal is dismissed.

Procedural History

Malter sued his sister, Joan Osburn, for malicious prosecution and abuse of process. Malter later amended his complaint to name Willdorf, Osburns attorney in a previous matter, as a defendant. Willdorf filed a special motion to strike Malters complaint under Californias anti-SLAPP statute ( 425.16).[2] Following a September 14, 2005, hearing on Willdorfs motion, the trial court took the matter under submission. The court granted the motion in an order filed on September 27, 2005. The order permitted Willdorf to seek attorney fees pursuant to the anti-SLAPP statute.

On October 3, 2005, Willdorfs counsel served notice of entry of the order granting his special motion to strike on Malters counsel. On that same date, Willdorf filed the notice along with a proof reflecting service by mail on Malters counsel.

Willdorf filed and served a memorandum of costs on October 13, 2005. Malter filed a motion to tax costs on November 1, 2005. In his motion, Malter argued that an award of costs should be deferred until after entry of a judgment.[3]

On November 8, 2005, the trial court entered a judgment in favor of Willdorf. Willdorfs counsel served notice of entry of the judgment by mail on Malters counsel on November 15, 2005. The judgment reflects that the trial court granted Willdorfs special motion to strike on September 27, 2005, and it further states: Barry S. Willdorf is entitled to recover from plaintiff attorneys fees and costs under C.C.P. 425.16 (c) pursuant to a cost bill.

Malter filed a notice of appeal on December 29, 2005. He purports to appeal from the judgment filed November 8, 2005, as to which notice of entry was served on November 15, 2005. In his opening brief, Malter explained his appeal is from a Final Judgment from an Order on a Motion to Strike based on the Anti-SLAPP provisions of California law. Although Malter challenges the order granting Willdorfs special motion to strike in his appeal, he does not address or dispute the attorney fees and costs awarded to Willdorf as the prevailing party on the motion.

After the appeal was fully briefed, this court reviewed the procedural history of the matter and concluded Malters notice of appeal was not timely filed. We afforded the parties an opportunity to address in supplemental briefs whether this court has jurisdiction to entertain the appeal in light of our initial conclusion that Malters notice of appeal was not timely filed.

Discussion

An aggrieved party must file a timely notice of appeal or forever lose the opportunity to obtain appellate review of an order made appealable by statute. (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1247.) If a notice of appeal is filed late, the reviewing court must dismiss the appeal. (Rule 8.104(b), italics added.) An appellate court, absent statutory authorization to extend the jurisdictional period, lacks all power to consider the appeal on its merits and must dismiss, on its own motion if necessary, without regard to considerations of estoppel or excuse. (Hollister Convalescent Hosp., Inc. v. Rico (1975) 15 Cal.3d 660, 674.)

The critical inquiry here is whether Malters time to appeal ran from the date Willdorf served the notice of entry of the order (October 3, 2005) or from the date Willdorf served the notice of entry of the judgment (November 15, 2005). As relevant here, under rule 8.104(a)(2) the notice of appeal must have been filed on or before 60 days after the party filing the notice of appeal serves or is served by a party with a document entitled Notice of Entry of judgment or a file-stamped copy of the judgment, accompanied by a proof of service . . . . The notice of appeal filed December 29, 2005, was untimely if Malters 60-day jurisdictional period to seek an appeal began running on October 3, 2005, the date Willdorf served notice of entry of the order.

Malter contends his appeal is timely because rule 8.104(a)(2) specifies that the 60-day period to seek an appeal runs from notice of entry of the judgment.[4] What Malter neglects to note is that rule 8.104(f) defines judgment for purposes of the jurisdictional timelines in rule 8.104(a) to include[] an appealable order. Thus, a notice of entry of an appealable order constitutes a notice of entry of judgment for purposes of assessing the time to seek appeal under rule 8.104(a).

The question remains whether an order granting a special motion to strike under section 425.16 is an appealable order. Section 425.16, subdivision (i) provides that [a]n order granting or denying a special motion to strike [under the anti-SLAPP statute] shall be appealable under Section 904.1. (Italics added.) Likewise, subdivision (a) of section 904.1 provides [a]n appeal . . . may be taken . . . [f]rom an order granting or denying a special motion to strike under Section 425.16. ( 904.1, subd. (a)(13), italics added.) Plainly, an order granting a special motion to strike is appealable. It is one of a number of orders specified by statute from which an appeal may be taken directly, without the need to reduce the order to a judgment. (See  904.1, subds. (a)(2)-(7), (10), (12), (13).)

In Maughan, supra, 143 Cal.App.4th 1242, the appellate court considered whether an appeal of an order granting an anti-SLAPP motion was timely when the notice of appeal was filed within 60 days of a judgment but more than 60 days after service of the order granting the anti-SLAPP motion. There, the order granting the defendants anti-SLAPP motion was served on February 24, 2005. (Id. at p. 1245.) On April 20, 2005, the trial court granted the defendants motion for attorney fees and costs, and on that same date entered a judgment for the defendant that recapitulated the prior order granting the anti-SLAPP motion. The plaintiffs filed a notice of appeal on June 20, 2005. The appeal was purportedly from the judgment dated April 20, 2005. (Id. at pp. 1245-1246.) The Court of Appeal concluded the challenge to the February 24, 2005, order granting the anti-SLAPP motion was not cognizable on appeal, even though the appeal was filed on the 60th day after the notice of entry of the judgment. (Id. at pp. 1246-1247.) The court concluded that [t]he order granting the anti-SLAPP motion . . . was final when made, and thus appealable. (Id. at p. 1247.) It was irrelevant that the appealable order was recapitulated in a subsequent judgment.

The Maughan court further explained that the plaintiffs in that case could not turn to section 906 to justify review of the order granting the anti-SLAPP motion. (Maughan, supra, 143 Cal.App.4th at p. 1247.) Section 906 generally provides that a reviewing court may consider any intermediate ruling, order, or decision that involves the merits or necessarily affects a judgment or order from which an appeal is sought. This principle has an important exception, however. Section 906 specifically provides that it does not authorize the reviewing court to review any decision or order from which an appeal might have been taken. Because an order granting or denying an anti-SLAPP motion is appealable, section 906 does not permit a court to review such an order in an appeal from a subsequent judgment. (Maughan, supra, 143 Cal.App.4th at p. 1247.)

Here, the notice of appeal was filed more than 60 days after Willdorf served notice of entry of the order granting his special motion to strike. The appeal is therefore untimely. It is immaterial that the court subsequently entered a judgment in favor of Willdorf.[5] The order granting the special motion to strike was final and appealable when entered. Reducing the order to judgment did not extend the time to appeal or afford Malter a new 60-day period within which to seek an appeal of the order. Because we lack jurisdiction to consider Malters appeal, we are compelled to dismiss the appeal on our own motion.

Finally, we note that Willdorf, as the prevailing party, is entitled to recover his costs on appeal as well as his appellate attorney fees, given that the appeal relates to a special motion to strike under the anti-SLAPP statute. (See  425.16, subd. (c) [prevailing defendant entitled to costs and attorney fees]; rules 3.1702(c) & 8.276(a)(2); see Dove Audio Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785 [appellate attorney fees recoverable under section 425.16]; accord American Humane Assn. v. Los Angeles Times Communications (2001) 92 Cal.App.4th 1095, 1104.) An award of attorney fees must be reasonable but must also adequately compensate the defendant. (Dove Audio, Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th at p. 785.) Here, Willdorf could have disposed of the appeal with a straightforward motion to dismiss on timeliness grounds. Indeed, Willdorf could have pursued such a motion even before the appellate record was prepared. Instead, he failed to raise the timeliness issue by motion or otherwise, choosing to file a lengthy brief on the merits. To the extent Willdorf seeks to recover his appellate attorney fees following issuance of the remittitur, we simply observe there is reason to question whether a reasonable award of fees should include any attorney time devoted to the brief addressing the merits of the appeal.

Disposition

The appeal is dismissed. Respondent shall recover his costs on appeal. (Rule 8.276(a)(2).) Respondent is also entitled to recover reasonable attorney fees associated with defending the appeal. (Rule 3.1702(c); Dove Audio Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th at p. 785.)

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McGuiness, P.J.

We concur:

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Pollak, J.

_________________________

Horner, J.*

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[1] All further statutory references are to the Code of Civil Procedure unless otherwise specified. All rule references are to the California Rules of Court.

[2] SLAPP is an acronym for strategic lawsuits against public participation. (Navellier v. Sletten (2002) 29 Cal.4th 82, 85, fn. 1.)

[3] The record in this appeal does not disclose when the trial court heard or ruled upon Malters motion to tax costs. The record in a related appeal (A114438), of which we take judicial notice on our own motion (Evid. Code,  452, subd. (d), 459), reveals that the trial court ultimately awarded $51,461 in attorney fees and costs to Willdorf by order dated May 9, 2006. Willdorf had originally requested attorney fees and costs totaling $62,972.10.

[4] Malter asserts the relevant date for purposes of triggering the 60-day period for seeking an appeal is November 23, 2005, the date on which Willdorf filed the notice of entry of the judgment. Even if we agreed with Malter that the notice of entry of judgment triggered his time to appeal the order granting Willdorfs special motion to strike, the relevant date is the service date (November 15, 2005), not the date on which the notice of entry was filed. (Rule 8.104(a)(2).)

[5] Entry of judgment appears to have served no purpose. The judgment was filed long before the trial court awarded Willdorf attorney fees and costs. (See fn. 3 ante.) Although the judgment indicated that Willdorf had a right to seek statutory costs and attorney fees, the earlier order granting the anti-SLAPP motion likewise reflected that Willdorf had such a right. The record on appeal suggests that Willdorf sought entry of judgment simply to address Malters argument that an award of costs should be deferred until after judgment. Had the November 2005 judgment included an award of attorney fees and costs, Malters notice of appeal likely would have been timely as to an appeal from that cost award (but not from the earlier order granting the anti-SLAPP motion on which the cost award was based). (Cf. Maughan, supra, 143 Cal.App.4th at p. 1248.) However, Malter does not challenge the cost award on appeal, and in any event the trial court did not include a cost award in the judgment but instead ruled on the issue long after Malter filed his notice of appeal.

* Judge of the Alameda County Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.