Madera Irrigation Dist. v. Pistoresi

Filed 1/13/10 Madera Irrigation Dist. v. Pistoresi CA5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIFTH APPELLATE DISTRICT

APPEAL from a judgment of the Superior Court of Madera County. Eric C. Wyatt and James E. Oakley, Judges.

Magill Law Offices, Timothy V. Magill for Defendant and Appellant.

Stoel Rives, Edward C. Duckers and Stacy E. Gillespie for Plaintiff and Respondent.

-ooOoo-

Procedural History

On June 18, 2007, appellant Ronald Harold Pistoresi was involved in a physical confrontation with Allan Turner. Pistoresi was an elected member of the Board of Directors of respondent Madera Irrigation District (District), and Turner was the Districts general manager. The altercation spawned three lawsuits. Pursuant to Code of Civil Procedure^[1]section 527.6, Turner and Pistoresi each sought permanent and temporary injunctions against the other in Turner v. Pistoresi (Madera Super. Ct. case No. MCV036950) and Pistoresi v. Turner (Madera Super. Ct. case No. MCV36966). The District jumped into the fray when, pursuant to section 527.8, it filed Madera Irrigation District v. Pistoresi (Madera Super. Ct. case No. MCV036972), seeking permanent and temporary injunctions against Pistoresi. It is this last case which has generated the two appeals currently before this court. The two appeals were ordered consolidated on October 23, 2008.

The Districts petition was supported by a number of declarations from employees and board members of the District and by a letter from the union representing District employees. These documents were offered as proof that District employees and Pistoresis fellow board members were intimidated by Pistoresi and felt their safety was threatened. The court granted the Districts request for a temporary restraining order (TRO) and ordered that Pistoresi stay away from District property, District employees, and his fellow board members. The court also ordered that Pistoresi turn over his collection of firearms to law enforcement. The order allowed Pistoresi to attend board meetings and to have access, through counsel, to communications regarding District business.

The three actions were not consolidated in the superior court. After the Districts request for a TRO was granted, the parties agreed to merge the preliminary hearing with a full evidentiary hearing on the Districts petition. It was agreed that the TRO would remain in effect until the petition was decided. The trial on the petition was continued a number of times. On the Friday before the Monday set for trial, Pistoresi, who had been represented by a number of different law firms during the pendency of this action in the trial court, had again changed counsel, filed several motions, including a motion to recuse the Districts counsel and a special motion to strike pursuant to section 425.16, Californias anti-SLAPP statute.^[2] The trial court denied both motions, the first on its merits and the second because it was untimely. The court denied Pistoresis request for leave to file a late anti-SLAPP motion.

The matter went to trial in early 2008. After hearing the evidence, the trial court concluded that Pistoresi was the aggressor in the initial confrontation with Turner. Due to the fact, however, that Pistoresi was no longer a board member (having left office in December 2007) and that Turner was no longer employed by the District, the trial court concluded the District could not establish that Pistoresi posed a threat of future harm to the District or its employees. Both Turners and the Districts petitions for permanent injunction were denied on this ground. Judgment was entered on May 30, 2008.

Subsequently, Pistoresi sought attorney fees in the amount of $128,659 as the prevailing party. The court denied the request, finding no statutory authority to support it, and alternatively holding that, even if there were authority allowing the court to exercise its discretion to award fees, it would not do so.

Pistoresi filed two notices of appeal in the Pistoresi v. Madera Irrigation District case. The first notice of appeal in case No. F055668, challenges the December 20, 2007, order denying Pistoresis request to file the anti-SLAPP motion late. The second notice of appeal, as amended, in case No. F055804, challenges the order denying attorney fees. Pistoresi did not file a notice of appeal in either of the other two related cases, nor did he file an appeal of the order denying the anti-SLAPP motion.

The facts concerning the underlying dispute are not relevant to the issues raised on appeal and will be recited in the context of our discussion of the issues only as needed.

Discussion

I. Anti-slapp motioncase No. F055668

The appeal in case No. F055668 is from the December 20, 2007, order denying Pistoresis anti-SLAPP motion on the ground that it was filed untimely. The trial court was not willing to exercise its discretion to allow a late filing. The motion was filed 107 days after the petition for permanent injunction was filed or 47 days after expiration of the statutory time limit. The trial court denied Pistoresis anti-SLAPP motion by refusing to grant leave to file the motion late. Section 425.16 requires that an anti-SLAPP motion be filed within 60 days of the service of the complaint or petition, or in the courts discretion, at any later time upon terms it deems proper. ( 425.16, subd. (f).)

First, we reject Pistoresis contention that the parties stipulation allowing the TROs to continue during the many continuances sought and granted prior to bringing the matters to trial somehow extended the 60-day statutory period. We know of no authority, and Pistoresi has not cited any, that supports this proposition. The statutory language is clear. The time period runs from the service of the complaint. ( 425.16, subd. (f).) The service of an amended complaint is very different procedurally from a stipulated agreement to continue the terms of a TRO until trial. The cases cited by Pistoresi holding that the filing of an amended complaint starts the time period specified in section 425.16, subdivision (f), are for this reason not persuasive.

The 60-day time period is not jurisdictional; it grants the trial court the legal authority to allow the filing of an anti-SLAPP motion at any later time. However, the 60-day time limit and the permissive nature of the provision allowing later filings in the courts discretion means there is no right to file an anti-SLAPP motion beyond the deadline. Since the motion was not filed within 60 days of the petition, Pistoresi is left with a challenge to the discretionary power of the trial court to accept late filings. (Lam v. Ngo, supra, 91 Cal.App.4th at p. 835.)

In denying the request to file the motion late, the trial court considered the nature and intent of the anti-SLAPP statutes. (See Lam v. Ngo, supra, 91 Cal.App.4th at p. 841 [purpose of statute is to provide mechanism for early termination of claims that are improperly aimed at exercise of free speech or right of petition]; Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1364 [anti-SLAPP legislation intended to provide efficient means of dispatching plaintiffs meritless claims early in lawsuit], overruled on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68.)

Second, the trial court considered the extraordinary length of time between the filing of the petition and the filing of the motion (107 days after the petition was filed and the last court day before trial was to begin) and found that the multiple changes in Pistoresis legal representation were not justification for the delay. (See Olsen v. Harbison (2005) 134 Cal.App.4th 278, 287 [claim of excuse from untimeliness based on late discovery after obtaining new counsel is generally unavailing].) There is no requirement that the court must find prejudice before denying a request to file a late motion. (Ibid.)

The court also said that if it were to consider the merits of the claim in determining whether to grant leave to file a late motion, it would conclude that it was unlikely Pistoresi would succeed on the merits because the lawsuit did not arise out of an exercise of free speech or petition but instead out of a physical assault. (See Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 189 [courts are to assess whether action arises out of exercise of free speech or petition by identifying allegedly wrongful and injury-producing conduct providing foundation for underlying claim]; Paul for Council v. Hanyecz, supra, 85 Cal.App.4th at p. 1364 [SLAPP suits are filed to prevent citizens from exercising their valid political rights or to harm those who have exercised those rights, not to vindicate legally cognizable rights, such as an action to recover for harm created by unlawful activity].) If the core injury-producing conduct upon which the plaintiffs claim is premised does not rest on protected speech or petitioning activity, collateral or incidental allusions to protected activity will not trigger application of the anti-SLAPP statute. [Citation.] (Hylton v. Frank E. Rogozienski (2009) 177 Cal.App.4th 1264, 1272.)

The abuse of discretion standard is most difficult to overcome on appeal. (Olsen v. Harbison, supra, 134 Cal.App.4th at p. 284.) Pistoresi has not shown that the trial court acted arbitrarily, exceeding the bounds of reason, or that it acted on a mistaken view about the scope of its discretion. (Ibid.) Pistoresis attempt to file his anti-SLAPP motion late was rejected for a number of valid reasons. We conclude there is no abuse of discretion.

II. Attorney feescase No. F055804

A. Statutory claims

In case No. F055804, Pistoresi argues that it was error for the trial court to deny his request for attorney fees. He makes a number of claims. First, he argues he should have been awarded fees as a prevailing defendant pursuant to section 425.16, subdivision (i). His premise is based in this instance on his claim that the trial court erred in denying his anti-SLAPP motion. This is a contention he has lost on appeal by failing to perfect appellate jurisdiction. This basis for a fee award, if it ever existed, has disappeared by his failure to file a timely notice of appeal.

Second, he claims he was the prevailing party and entitled to fees pursuant to section 527.6, subdivision (i). As the District correctly notes, however, the petition in this case was filed pursuant to section 527.8, which does not authorize the recovery of attorney fees, and no appeal was taken in the section 527.6 cases. Under the American rule, attorney fees are not recoverable as costs unless expressly authorized by a statute or contract. (Trope v. Katz (1995) 11 Cal.4th 274, 278; Selma Auto Mall II v. Appellate Department (1996) 44 Cal.App.4th 1672, 1682.) Section 527.8 does not authorize fees and therefore cannot serve as the basis of a fee award.

Pistoresi further argues that we should interpret section 527.8 to allow fees, even in the absence of an express fee provision. He argues that this is a reasonable and commonsense interpretation consistent with the legislative purpose of the section. We reject this position. Where the words of the statute are clear, we may not add to or alter them to accomplish a purpose that does not appear on the face of the statute or from its legislative history. (Ornelas v. Randolph (1993) 4 Cal.4th 1095, 1105, fn. 8.) The Legislature knew how to authorize fees had it wanted to do so; it had no problem authorizing them in section 527.6. (Scott Co. v. Workers Comp. Appeals Bd. (1983) 139 Cal.App.3d 98, 105 [courts assume that when enacting statute, Legislature is aware of existing related laws].) We cannot create a fee provision from legislative silence.

Pistoresi argues, without citation to the sections legislative history, that the Legislature intended that the two sections, section 527.6 and section 527.8, have the same result, i.e., that employees who have been threatened would have the same protections as individuals who have been threatened. Although the two sections might be parallel and afford similar protections, they are not identical in all respects and there is no reason to believe this was the legislative intent. While section 527.8 was designed to parallel section 527.6, which provides individuals with the right to obtain a restraining order when threatened with violence, section 527.8 allows employers of an employee who has been threatened with violence to seek a restraining order on behalf of the threatened employee and all of its other employees. The intent is not only to protect the individual threatened with violence, but all persons employed by the employer or those who might visit the employers place of business. The purposes of the statutes are not identical and address slightly different problems. (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 68X (1993-1994 1st Ex. Sess.) p. 4; Sen. Com. on Public Safety, Analysis of Assem. Bill No. 2695 (2005-2006 Reg. Sess.), as amended May 22, 2005, p. E; Robinzine v. Vicory (2006) 143 Cal.App.4th 1416, 1423.) The Legislature unambiguously has provided for fees in section 527.6, but has chosen by its silence not to do so in section 527.8. (See Olson v. Automobile Club of Southern California (2008) 42 Cal.4th 1142, 1153 [rejecting similar argument and refusing to look at legislative history where plain language of section does not expressly authorize award of expert witness fees].)

B. Constitutional claims

Pistoresi also claims that the lack of a fee provision in section 527.8 violates equal protection because the distinction between the two statutory sections results in an arbitrary classification scheme. In reviewing a constitutional challenge to a statute, we presume the law is valid unless its constitutional infirmity is clearly, positively, and unmistakably established. (Tobe v. City of Santa Ana (1995) 9 Cal.4th 1069, 1107.)

As the District points out, the availability of attorney fees is a statutory right. (Reynolds Metals Co. v. Alperson (1979) 25 Cal.3d 124, 128 [unless authorized by statute or agreement, attorney fees not recoverable as costs].) There is no constitutional right to receive an award of attorney fees as a prevailing party, and legislative restrictions on the right to recover fees are reviewable under the rational-basis standard. (See Roa v. Lodi Medical Group, Inc. (1985) 37 Cal.3d 920, 926.) Most statutes differentiate between classes of people and the equal protection clause does not forbid classifications if the classification is not arbitrary. Legislatures may make reasonable classifications of persons, businesses, and activities. (Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 365.) The difference in the classes, however, must bear a substantial relationship to a legitimate governmental objective.

As another appellate court has already noted, there is a rational basis for concluding that reciprocal fee awards might be appropriate for actions brought under section 527.6, but not for actions brought under section 527.8. (Robinzine v. Vicory,supra, 143 Cal.App.4th at p. 1424.) The two sections were originally designed to afford quick relief for individuals threatened with violence. The Legislature anticipated that parties without legal counsel most often would seek protection under section 527.6. (Robinzine, supra, at p. 1424.) Section 527.8, however, authorizes an employer to seek protection for its entire work force when one of its employees is threatened. In many cases, employers act through legal counsel and are generally in a better economic position to pay for legal representation than an individual against whom an injunction is being sought. (See Robinzine, supra, at p. 1424.)

Although in this case the individual and not the employer prevailed, it is not unreasonable to conclude that, in many cases brought under section 527.8, the employer would prevail, and the employer would have used outside legal counsel to act on its behalf in obtaining the injunction. In such cases, the individual against whom an injunction was sought would be responsible for legal bills incurred by the business entity. In contrast, in actions brought under section 527.6, the likelihood of either party incurring large legal fees is generally small. (See Robinzine v. Vicory, supra, 143 Cal.App.4th at p. 1424, fn. 8.)

We also find merit in the Districts suggestion that another reason to justify a distinction between sections 527.6 and 527.8 is that the availability of fees in section 527.6 might encourage reticent individuals who have been threatened with violence to seek an injunction and thereby reduce the threat of actual harm. There is no need for such an incentive in section 527.8 actions. Employers are often sophisticated business entities, having established relationships with legal counsel, and are motivated to act to reduce the threat of harm to its employees and customers.

Wide discretion is vested in the Legislature as to the making of a classification, and every presumption is in favor of validity; the decision of the Legislature as to what constitutes a sufficient distinction to warrant the classification will not be overthrown by the courts unless it is palpably arbitrary and beyond rational doubt erroneous. [Citations.] (Johnson v. Superior Court (1958) 50 Cal.2d 693, 699.) Pistoresi has not shown that the classification the Legislature has chosen to implement when enacting sections 527.6 and 527.8 is arbitrary.

We also reject Pistoresis final claim that the legislative failure to provide for attorney fees in section 527.8 violates due process because it represents an exercise of state police power, which is unreasonable or arbitrary. We have already concluded that the legislative distinctions drawn between the two sections are not arbitrary.

Since we have concluded there is no statutory authority for an award of attorney fees and no constitutional infirmity in the distinction drawn by the Legislature, we do not address Pistoresis challenge to the trial courts alternative holding on the issue of fees.

DISPOSITION

The judgment is affirmed. Costs are awarded to the District.

_____________________

Wiseman, Acting P.J.

WE CONCUR:

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Levy, J.

_____________________

Kane, J.

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^[1]All further statutory references are to the Code of Civil Procedure unless otherwise noted.

^[2]SLAPP stands for Strategic Lawsuit Against Public Participation. (Lam v. Ngo (2001) 91 Cal.App.4th 832, 835, fn. 1.)