Sharp Grossmont Hosp. v. Moreno

Filed 10/26/06 Sharp Grossmont Hosp. v. Moreno CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

APPEAL a judgment of the Superior Court of San Diego County, Eddie C. Sturgeon, Judge. Judgment affirmed.

Sharp Grossmont Hospital (Grossmont) appeals from a judgment of dismissal after the trial court granted Carlos Moreno's special motion to strike its complaint under the anti-SLAPP (strategic lawsuit against public participation) statute (Code Civ. Proc., § 425.16) and awarded Moreno his attorney fees and costs. (All undesignated statutory references are to the Code of Civil Procedure.) Moreno moves to dismiss the appeal as untimely.

We conclude that to the extent Grossmont attempts to challenge the order granting the anti-SLAPP motion, its notice of appeal was untimely and we lack jurisdiction to entertain that challenge. We also conclude that Grossmont's timely appeal from the judgment setting the amount of attorney fees does not confer jurisdiction on this court to reconsider the trial court's earlier ruling on the anti-SLAPP motion. Accordingly, we affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

In May 2004, Grossmont admitted Moreno's wife, Leticia, after she suffered a heart attack; today, she remains hospitalized in an acute care bed in a persistent vegetative state with Moreno as her designated health care decision maker. Leticia's treating physician has determined that she no longer requires acute care at Grossmont and would be most appropriately treated at a skilled nursing facility. Leticia's health care providers have recommended to Moreno that she be transferred to a skilled nursing facility, but he has refused the transfer and interfered with her medical care by attempting to dictate her treatment, including medication orders and personnel staffing schedules, refusing to visit all but one of the recommended skilled nursing facilities and failing to return the telephone calls of physicians, social workers and case managers.

In April 2005, Grossmont filed the instant action for injunctive relief to prevent Moreno from interfering with its future care of Leticia and its transfer of her to a skilled nursing facility. Grossmont also sought to enjoin Moreno from his continued refusal to sign necessary consent documents required to facilitate Leticia's transfer to a skilled nursing facility. In conjunction with the complaint, Grossmont filed a memorandum of points and authorities seeking an order that Moreno consent to transferring Leticia to an available skilled nursing facility. It also filed declarations from Leticia's treating physician and a Grossmont case manager stating, respectively, that Leticia no longer required acute care at Grossmont and Moreno was informed in September 2004 and March 2005 that he would be responsible for Leticia's medical care costs, but he has refused to return calls or meet to discuss his wife's care. (All further date references are to the year 2005.)

Moreno moved to strike the complaint or portions thereof on the grounds it disclosed confidential medical information and the relief prayed for was contrary to public policy and sought against individuals not a party to the action. He also moved to strike the complaint under section 425.16 on the ground the relief sought constituted a prior restraint on his rights of petition and free speech and involved the important public policy issue of who may speak or act on behalf of patients that are unable to act for themselves.

On July 1, the trial court heard oral argument and granted the special motion to strike. That same day, the court clerk mailed to counsel a file-stamped copy of the ruling striking the entire complaint. The ruling stated that Moreno was entitled to attorney fees and sustained Moreno's objections to Grossmont's exhibits, indicating that the court would post its evidentiary rulings on its web site and that the minutes constituted its ruling without the need for a formal written order. Four days later, the court clerk mailed the parties a file-stamped copy of the court's detailed evidentiary rulings on Grossmont's exhibits.

On September 16, it granted Moreno's motion for an award of attorney fees and costs and on October 25, the trial court entered a judgment in Moreno's favor awarding those fees and costs. Two days later, Grossmont filed a notice of appeal from the judgment awarding Moreno his attorney fees and costs based on the granting of the anti-SLAPP motion.

DISCUSSION

I. Motion to Dismiss the Appeal Challenging the

Granting of the Motion to Strike

An order granting or denying a special motion to strike is immediately appealable. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).) Pursuant to California Rules of Court, rule 2(a), a notice of appeal must be filed on or before the earliest of:

"(1) 60 days after the superior court clerk mails the party filing the notice of appeal a document entitled "Notice of Entry" of judgment or a file-stamped copy of the judgment, showing the date either was mailed;

"(2) 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 proof of service; or

"(3) 180 days after entry of judgment." (Italics added; all further rule references are to the California Rules of Court.)

As used in this rule, a "'judgment' includes an appealable order if the appeal is from an appealable order." (Rule 2(f).) Because the time limits for filing a notice of appeal are jurisdictional, this rule is applied "strictly and literally according to its terms." (In re Marriage of Taschen (2005) 134 Cal.App.4th 681, 691.)

On July 1, the trial court granted the special motion to strike and the court clerk mailed a file-stamped copy of the court's written minutes to counsel indicating that the minutes constituted the ruling of the court and no formal written order was required. Grossmont had 60 days from the date the court clerk mailed the file-stamped copy of the July 1 minute order striking the entire complaint to file a notice of appeal from that order. (Rule 2(a)(1).) Because Grossmont did not file its notice of appeal until October 27, 118 days later, the appeal from the judgment granting the anti-SLAPP motion must be dismissed.

To avoid dismissal, Grossmont argues that the July 1 order left important issues undecided, including the rulings on Moreno's evidentiary objections and the amount of attorney fees. This argument ignores the fact that the July 1 order sustained all of Moreno's objections; in any event, even if the court clerk's mailing of the file-stamped order with the court's rationale for sustaining the objections had extended the time to appeal, it would have only added four days to the jurisdictional period and the appeal would remain untimely.

Grossmont's contention that the order granting the motion to strike the entire complaint was interlocutory, not final or appealable, in the absence of a ruling on the amount of attorney fees and costs is belied by the clear language of the statute allowing an appeal from "[a]n order granting or denying a special motion to strike[.]" (§ 425.16, subd. (i); 904.1, subd. (a)(13) [same].) (Because Grossmont has not identified any ambiguity in the statute that would justify an inquiry into its legislative history, we deny its request for judicial notice of such material.) The trial court's subsequent entry of judgment on the amount of attorney fees and costs to be awarded Moreno did not extend the time to appeal and this court is statutorily precluded from reviewing any decision or order from which an appeal might have been taken but was not. (§ 906.)

Grossmont's reliance on Sunset Millennium Associates, LLC v. Le Songe, LLC (2006) 138 Cal.App.4th 256 (Sunset) to save the appeal is misplaced. In Sunset, the trial court granted a special motion to strike under section 425.16 and later awarded attorney fees to the prevailing defendant. (Sunset, supra, 138 Cal.App.4th at pp. 257-258.) Although the plaintiff did not file a notice of appeal from the order granting the special motion to strike until 61 days after the court clerk mailed the order, the appeal was timely because the document mailed was not entitled "notice of entry." (Id. at pp. 259-261.) Sunset does not indicate whether the mailed document was file stamped; presumably it was not or the alternate triggering provision of rule 2(a)(1) would have applied. (Sunset, supra, 138 Cal.App.4th at pp. 259-261; 20th Century Ins. Co. v. Superior Court (1994) 28 Cal.App.4th 666, 671 [time to appeal not triggered by the court clerk's mailing of minute orders not entitled "notice or entry" or file stamped].)

Finally, Grossmont cites Johnston v. Corrigan (2005) 127 Cal.App.4th 553 (Johnston) for the proposition that an order granting attorney fees under section 425.16 is "part-in-parcel" of any order granting a special motion to strike because the Johnston court held that "[t]he order awarding attorney fees under section 425.16, subdivision (c) is appealable." (Johnston, supra, 127 Cal.App.4th at p. 556.)

In Johnston, a party brought an anti-SLAPP motion, but the opponent dismissed the attacked pleading before the trial court ruled on the motion. (Johnston, supra, 127 Cal.App.4th at pp. 554-555.) Thereafter, the moving party sought attorney fees under the statute, but the trial court denied the motion on the ground that the moving party had filed no brief in support of its anti-SLAPP motion (whereas that party had in fact filed a brief). (Id. at p. 555.) That party moved for reconsideration under section 1008, bringing to the court's attention the "new" fact that it had in fact filed a brief in support of its anti-SLAPP motion and the court granted the attorney fee motion, convinced that the attacked pleading had been a SLAPP action. (Johnston, supra, 127 Cal.App.4th at p. 555.) The appellate court rejected the argument that the appeal was from the nonappealable order granting reconsideration of the trial court's earlier denial of attorney fees because the notice of appeal explicitly stated that it was from the order awarding fees. (Id. at pp. 555-556.)

We fail to see how Johnston advances Grossmont's position. In Johnston, the issue was not the timeliness of the appeal, but whether the party had appealed from a nonappealable reconsideration order. (Johnston, supra, 127 Cal.App.4th at p. 555.) The notice of appeal in Johnston listed the judgment granting attorney fees, which was unquestionably appealable. (Id. at pp. 555-556; § 904.1, subd. (a)(1).) Although an order awarding attorney fees is appealable as part of the judgment or as a postjudgment order, Grossmont could not wait until it obtained a ruling on the amount of attorney fees before appealing the order granting the anti-SLAPP motion.

II. Appeal from the Judgment Awarding Attorney Fees and Costs

After the trial court granted Moreno's attorney fee motion, it entered a judgment in Moreno's favor and Grossmont filed a notice of appeal from the judgment awarding Moreno his attorney fees. The appeal from the final judgment is timely and Moreno's motion to dismiss the appeal is denied to the extent it encompasses the judgment awarding attorney fees. (§ 904.1, subd. (a)(1).)

Although Grossmont never challenged Moreno's entitlement to attorney fees, we told the parties at oral argument to assume that the appeal from the order granting the anti-SLAPP motion was untimely and asked if we could consider whether the trial court's ruling on the anti-SLAPP motion was correct in deciding whether Grossmont was entitled to attorney fees. We later vacated the submission of the matter and requested further briefing from the parties on this issue. Upon further consideration, we conclude that although the trial court may have erroneously granted the anti-SLAPP motion, Grossmont's failure to timely appeal the granting of the anti-SLAPP motion precludes us from addressing Moreno's entitlement to attorney fees on appeal from the judgment setting those fees.

Briefly, our review of the complaint shows that its clear gravamen was to obtain a court order transferring Leticia to a skilled nursing facility without Moreno's consent as her health care decisionmaker. With that said, it is also clear that the complaint for injunctive relief could have been more narrowly drafted to achieve this goal. Even assuming, however, that the complaint presented a mixed cause of action and any protected conduct was not merely incidental to the unprotected conduct, the anti-SLAPP statute does not apply unless the conduct in furtherance of the right of petition or free speech was made "in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e)(4).) Here, the complaint was not about the general rights of patient surrogates to execute healthcare decisions on behalf of incapacitated patients, or even about Moreno's right to continue as a patient surrogate, but about a particular incapacitated patient who no longer needed acute care who, through her surrogate, refused to be transferred to a skilled nursing facility. Simply put, this does not appear to be a topic of widespread public interest.

However, Grossmont's failure to timely appeal the order granting the anti-SLAPP motion precludes us from ruling on the merits of the motion. Accordingly, we inquired whether we could "reach back" and address the attorney fee entitlement issue on appeal from the judgment setting attorney fees. Relying on P R Burke Corp. v. Victor Valley Wastewater Reclamation Authority (2002) 98 Cal.App.4th 1047, 1050 (P R Burke) and City of Santa Fe v. Narula (2003) 114 Cal.App.4th 485 (Narula), Grossmont argues that while the order granting the anti-SLAPP motion may have been final and appealable, that part of the order stating Moreno was "entitled to" attorney fees was interlocutory until the court actually decided the amount of attorney fees. We disagree.

P R Burke and Narula involved judgments entitling the prevailing parties to attorney fees according to proof, where the losing parties did not seek review of the judgments, but appealed from postjudgment awards of specific amounts of attorney fees. Both courts held that the appellate court may review the entitlement to, as well as the amount of, the fees awarded. (P R Burke, supra, 98 Cal.App.4th at p. 1053; Narula, supra, 114 Cal.App.4th at p. 492.) The P R Burke court explained that a judgment determining entitlement to attorney fees but not the amount, is interlocutory and nonappealable as to that issue. (P R Burke, supra, 98 Cal.App.4th at p. 1054.)

P R Burke and Narula did not involve the anti-SLAPP statute that specifies the granting an anti-SLAPP motion automatically entitles the prevailing defendant to attorney fees and is immediately appealable. (§ 425.16, subd. (c) ["In any action subject to subdivision (b) [of section 425.16], a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs"]; Pfeiffer Venice Properties v. Bernard (2002) 101 Cal.App.4th 211, 215 [the award of attorney fees to the prevailing defendant on an anti-SLAPP motion "is not discretionary but mandatory"].) Consequently, if an order granting an anti-SLAPP motion is reversed, there is no entitlement to attorney fees. Sharp did not timely appeal from the order granting the anti-SLAPP motion and its appeal from the judgment setting the amount of attorney fees to dispute the prevailing defendant's entitlement to attorney fees amounts to a collateral attack of that order. (See Estate of Gilkison (1998) 65 Cal.App.4th 1443, 1450, fn. 5 [attorney failed to timely appeal from an appealable order denying extraordinary fees and could not "collaterally attack" the order denying fees in a subsequent appeal from the final order of distribution].) Accordingly, the judgment awarding fees is affirmed.

DISPOSITION

The judgment is affirmed. Defendant is entitled to his costs on appeal.

McINTYRE, J.

I CONCUR:

McDONALD, J.

NARES, J., concurring in part and dissenting in part:

I concur in the majority's analysis and result that the appeal challenging the order granting Moreno's anti-SLAPP motion is untimely and must be dismissed. I also concur in the analysis and conclusion that on Grossmont's timely appeal from the judgment awarding attorney fees to Moreno we do not have jurisdiction to address the merits of the court's ruling on the anti-SLAPP motion. However, I respectfully dissent from the majority's dicta, in the first two paragraphs of page eight, that the court erred in granting Moreno's anti-SLAPP motion.

NARES, Acting P. J.

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