Healy v. Rose

Filed 2/14/07  Healy v. Rose CA3

NOT TO BE PUBLISHED

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  This opinion has not been certified for publication or ordered published for purposes of rule 977.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

THIRD APPELLATE DISTRICT

(Sacramento)

     Plaintiff Kevin M. Healy, an attorney appearing in propria persona, appeals from the judgment and the order granting defendant M. Cynthia Rose's motion to strike his complaint pursuant to Code of Civil Procedure section 425.16, commonly referred to as the anti-SLAPP (Strategic Lawsuit Against Public Participation) statute.  He also appeals from the judgment granting Rose attorney fees.

     Healy raises eight issues on appeal that fall into two categories, those that challenge the order granting the anti-SLAPP motion^[1] and those that challenge the judgment and award of attorney fees.^[2]

     After filing a respondent's brief, Rose filed a motion to dismiss the appeal as untimely except as to the order denying Healy's motion to set aside the judgment (Code Civ. Proc.,

§ 473) and the order granting Rose's motion for attorney fees.  She argues the former order is frivolous and the later order lacks any analysis or citation of authority.  Rose requests sanctions under California Rules of Court, rule 8.276(e) (hereafter rule) in the amount of $9,060.97 to compensate her for her attorney fees and costs and additional sanctions to compensate the court for its costs and time.

     We find the appeal from the order granting the anti-SLAPP motion was not timely filed and shall grant Rose's motion and dismiss the appeal.  Accordingly, we find Healy's challenge to the ruling on the demurrer is moot.  Last, although there was a timely appeal from the judgment awarding attorney fees, we find no error in the award.  We therefore shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

     Appearing in propria persona at all times, on April 27, 2004, Healy filed a civil complaint for damages against Rose for fraud and deceit.  The complaint alleged that he represented Rose as her attorney in a motor vehicle accident; after the case settled, a dispute arose over his fees and Rose demanded binding arbitration to resolve the dispute; during the arbitration, Rose committed perjury by falsely testifying about the amount of the filing fee she paid for the arbitration, which resulted in a reduced fee award for Healy.  

     On June 1, 2004, Rose filed a special motion to strike Healy's complaint under the anti-SLAPP statute. (Code Civ. Proc., § 425.16.)  Rose also filed a general demurrer to the complaint.  Healy failed to file opposition to either the motion or the demurrer. 

     On June 16, 2004, Healy filed a notice of active military duty and request for stay of the proceedings (Mil. & Vet. Code, § 403), declaring he would be unavailable for parts of June, July, and September of 2004, and would be available from and after October 1, 2004.

     On July 21, 2004, the trial court denied Healy's request for military stay on the grounds he made an insufficient showing.  That same date, the court ordered the complaint dismissed after it sustained Rose's demurrer without leave to amend and her anti-SLAPP motion.  The minute order states the order is â€