Filed 2/16/18 Adams v. Galli CA1/4
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FOUR


MARK ADAMS,
Plaintiff and Appellant,
v.
DAVID GALLI,
Defendant and Respondent.

A141791

(San Mateo County
Super. Ct. No. CIV524653)



In this anti-SLAPP case, Mark Adams purports to appeal from two orders, one granting David Galli’s special motion to strike and the other awarding attorney fees and costs to Galli as the prevailing party. (See Code Civ. Proc., § 425.16.) Adams, however, voluntarily dismissed the case before the trial court had made a definitive ruling on the special motion to strike. We dismiss the appeal because this case lacks an appealable judgment and order.
BACKGROUND
Following an unlawful detainer action filed against him, Adams sued Galli for numerous causes of action, including retaliatory eviction. Galli answered the complaint and filed a special motion to strike under the anti-SLAPP statute. (§ 425.16.) Adams did not oppose the special motion to strike. Rather, one day before the scheduled hearing on the motion, Adams voluntarily dismissed his complaint without prejudice. By this time, the trial court had already issued a tentative ruling. It appears that the trial court granted Galli’s motion as to the causes of action for negligent misrepresentation, defamation, conspiracy, and intentional infliction of emotional distress, but denied the motion as to the retaliatory eviction and racial discrimination causes of action. Upon being notified of the voluntary dismissal, the trial court vacated its tentative ruling.
A week later, Galli moved for attorney fees in the amount $3,380 and sought $615 in costs. Adams did not oppose the motion for attorney fees and did not file a motion to tax costs. The trial court awarded Galli $2,264.60 in attorney fees as sanctions under section 425.16 and $615 in costs.
DISCUSSION
“The right to appeal is wholly statutory. [Citation.] [S]ection 904.1 lists appealable judgments and orders. Chief among them is a ‘judgment’ that is not interlocutory, e.g., a final judgment. A judgment is the final determination of the rights of the parties ([] § 577) ‘ “ ‘when it terminates the litigation between the parties on the merits of the case and leaves nothing to be done but to enforce by execution what has been determined.’ ” ’ [Citations.]” (Dana Point Safe Harbor Collective v. Superior Court (2010) 51 Cal.4th 1, 5, fn. omitted.)
A voluntary dismissal under section 581, subdivision (b)(1) by written request to the clerk is not a final judgment, as no judgment, final or otherwise, is necessary to the dismissal. (Lavaysse v. Superior Court (1944) 63 Cal.App.2d 223, 227; see also Gray v. Kay (1975) 47 Cal.App.3d 562, 565.) “Upon the proper filing of a request to voluntarily dismiss a matter, the trial court loses jurisdiction to act in the case, ‘except for the limited purpose of awarding costs and statutory attorney fees.’ [Citations.] ‘[A]ll subsequent proceedings [are] void.’ [Citations.]” (Law Offices of Andrew L. Ellis v. Yang (2009) 178 Cal.App.4th 869, 876.)
Although Adams purports to appeal from an order granting the anti-SLAPP motion, no such order exists. Rather, the record contains only the voluntary dismissal, which is not a final judgment. At the time Adams dismissed his complaint without prejudice, the trial court had not made a definitive decision on the special motion to strike, but instead issued a tentative ruling. “[T]he anti-SLAPP statute . . . anticipates circumstances in which parties dismiss their cases while motions to strike are pending. In such circumstances, the trial court is given the limited jurisdiction to rule on the merits of the motion in order to decide if it should award attorney fees and costs to the defendants. [Citations.]” (Law Offices of Andrew L. Ellis v. Yang, supra, 178 Cal.App.4th at p. 879.)
Section 904.1, subdivisions (a)(11) and (12), authorizes appeals from orders directing parties or their attorneys to pay monetary sanctions, “if the amount exceeds five thousand dollars ($5,000).” On the other hand, “Sanction orders or judgments of five thousand dollars ($5,000) or less against a party or an attorney for a party may be reviewed on an appeal by that party after entry of final judgment in the main action,” or, at the Court of Appeal’s discretion, by extraordinary writ petition. (§ 904.1, subd. (b). italics added.) Galli contends that the challenged order does not come within either qualification for appeal, because it does not exceed $5,000, and there was no “final judgment in the main action,” as the complaint was voluntarily dismissed. We agree.
“The existence of an appealable order or judgment is a jurisdictional prerequisite to an appeal. [Citation.] Accordingly, if the order or judgment is not appealable, the appeal must be dismissed. [Citation.]” (Canandaigua Wine Co., Inc. v. County of Madera (2009) 177 Cal.App.4th 298, 302.) This rule squarely applies to Adams’ appeal. There is no judgment representing the final determination of the rights of the parties. To the extent Adams purports to appeal from the order granting Galli’s motion for attorney fees, that order does not qualify as an appealable order under section 904.1 as it is less than $5,000.
Finally, Adams’ claims of error are not cognizable on appeal, as he failed to raise them in the trial court. Failure to raise specific challenges in the trial court forfeits the claim on appeal. (See Premier Medical Management Systems, Inc. v. California Ins. Guarantee Assn. (2008) 163 Cal.App.4th 550, 564; see also City of Santa Paula v. Narula (2003) 114 Cal.App.4th 485, 494 [failure to raise objections about unnecessary attorney fees in the trial court waives the issue on appeal].)
DISPOSITION
The appeal is dismissed. Galli is entitled to costs on appeal.
 




_________________________
REARDON, J.


We concur:


_________________________
RUVOLO, P. J.


_________________________
STREETER, J.
























Adams v. Galli A141791