Williams v. Jones & Jones Management
Filed 6/21/13 Williams v. Jones & Jones Management
CA2/3
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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115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
SECOND
APPELLATE DISTRICT
DIVISION
THREE
JANN WILLIAMS et al.,
Plaintiffs and Appellants,
v.
JONES & JONES MANAGEMENT,
INC., et al.,
Defendants and Respondents.
B236401
(Los Angeles County
Super. Ct.
No. BC461146)
APPEAL
from an order of the Superior Court
of
County, Holly E. Kendig, Judge. Affirmed.
Ronald
Williams and Jann Williams, in pro. per., for Plaintiffs and Appellants.
Freeman,
Freeman & Smiley and Curtis A. Graham for Defendants and Respondents.
_______________________________________
Plaintiffs appeal an order granting
defendants’ special motion to strike the complaint under Code of Civil
Procedure section 425.16, the anti-SLAPP statute. Plaintiffs argue that the statute did not
apply because the complaint was based on their
detainer. We conclude that the trial
court correctly found that the complaint arose from activity protected by the
anti-SLAPP statute.
title="">[1] Plaintiffs also appeal from several interim
orders by the trial court which are non-appealable. We do not have jurisdiction to consider the
appeal from those orders.
AND PROCEDURAL BACKGROUND
On
August 15, 1998, defendant
Jones & Jones Management, Inc. (Jones & Jones) and plaintiff Jann
Williams (Ms. Williams) entered into a residential lease of the subject
property (Property). On July 12, 2010, Jones & Jones
filed a complaint for unlawful detainer on the grounds that Ms. Williams had
failed to pay her rent and had been served with a three-day notice to pay rent
or quit. Default judgment was entered
against Ms. Williams.
On
September 30, 2010, Ms.
Williams filed a motion to set aside the judgment on the grounds that she had
not been properly served with notice of the action and had paid the rent that
was overdue. The court denied her
motion. Ms. Williams and her husband,
Ronald Williams (collectively, plaintiffs) were evicted from the Property on October 19, 2010. Ms. Williams appealed but the appellate
division of the superior court affirmed the judgment. Ms. Williams then filed a petition for
writ of mandate seeking a reversal of the appellate decision affirming the judgment. The petition was denied.
On
May 9, 2011, plaintiffs filed the underlying action for
of contract and unfair business practices alleging that
Jones & Jones and its counsel, Deborah Friedman (collectively,
defendants), had intentionally failed to serve Ms. Williams with the summons
and complaint in the unlawful detainer action.
Defendants filed an anti-SLAPP motion as to the entire complaint. Plaintiffs moved to strike the anti-SLAPP
motion and filed a motion to compel discovery.
The court denied plaintiffs’ motions.
Plaintiffs then moved to disqualify the judge on the grounds that she
was biased against them. The court
ordered the disqualification motion stricken pursuant to Code of Civil
Procedure section 170.4, subdivision (b).
2011, the court granted defendants’ anti‑SLAPP motion as to
the entire complaint on the grounds that each cause of action was based on the
prosecution of the unlawful detainer
action. Plaintiffs filed
a timely notice of appeal.
1.
Plaintiffs
appeal from the following orders in the trial court: (1) the order granting defendants’
anti-SLAPP motion; (2) the order denying plaintiffs’ motion to strike the
anti-SLAPP motion; (3) the order denying plaintiffs’ “motion for a discovery
orderâ€; and (4) the order striking plaintiffs’ motion to disqualify the
judge. Only the court’s order granting
the anti-SLAPP motion is an appealable order.
(Code Civ. Proc., § 904.1, subd. (a)(13).) The other orders are interim orders that have
not been expressly designated by statute as appealable orders and, thus, are
not appealable. (Code Civ. Proc.,
§ 904.1, subd. (a)(2)-(13); see also
PBA, LLC v. KPOD, Ltd. (2003) 112 Cal.App.4th 965, 970 [“ ‘[t]he
determination of the question of the disqualification of a judge is not an
appealable order . . . . ’ â€],
185 Cal.App.2d 626, 629 [“the order of the superior court denying motion
to strike respondents’ pleadings is nonappealableâ€], and Doe v. United States Swimming, Inc. (2011) 200 Cal.App.4th
1424, 1432-1433 [an order compelling compliance with a discovery order is
not appealable].) “[A] reviewing court
is ‘without jurisdiction to consider an appeal from a nonappealable order, and
has the duty to dismiss such an appeal upon its own motion. [Citations.]’ †(In re
Mario C. (2004) 124 Cal.App.4th 1303, 1307.) Accordingly, we have no jurisdiction to rule
on the interim orders cited by plaintiffs.
2. Anti-SLAPP
Motion
We
review the trial court’s order granting the anti-SLAPP motion de novo (
325), and consider “the pleadings, and supporting and opposing affidavits
stating the facts upon which the liability or defense is based.†(Code Civ. Proc., § 425.16, subd.
(b)(2).) We “ ‘accept as true the
evidence favorable to the plaintiff [citation] and evaluate the defendant’s
evidence only to determine if it has defeated that submitted by the plaintiff
as a matter of law.’ †(
Plaintiffs
contend that they have the right to sue for forcible detainer pursuant to the
First Amendment and Article 1, Section 7 of the California Constitution, and
that, therefore, their complaint was not “subject to†the anti-SLAPP
statute. Plaintiffs do not cite to any
authority in support of the proposition that the anti‑SLAPP statute does
not apply to constitutional issues raised in a complaint. Plaintiffs also do not address the court’s
ruling as to the other three causes of action in their complaint.
Resolution
of an anti-SLAPP motion requires a two-step inquiry. “First, the court decides whether the
defendant has made a threshold showing that the challenged cause of action is
one arising from protected activity. The moving defendant’s burden is to
demonstrate that the act or acts of which the plaintiff complains were taken
‘in furtherance of the [defendant]’s right of petition or free speech under the
United States or California Constitution in connection with a public issue,’ as
defined in the statute. ([Code Civ.
Proc.,] § 425.16, subd. (b)(1).) If
the court finds such a showing has been made, it then determines whether the
plaintiff has demonstrated a probability of prevailing on the claim.†(Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
In
determining whether a moving party has met its burden under the first prong of
the anti-SLAPP analysis, “the critical consideration is whether the cause of
action is based on the defendant’s
protected free speech or petitioning activity.â€
(Navellier v. Sletten (2002)
29 Cal.4th 82, 89, italics omitted.)
Prosecution of an unlawful detainer action is protected activity within
the meaning of the anti-SLAPP statute. (
275, 281.) This includes service of the
three-day notice to quit since it is a legally required prerequisite to the
filing of an unlawful detainer action. (
defendants’ alleged failure to properly serve the three-day notice to pay rent
or quit in support of the unlawful detainer action. Therefore, defendants met their burden of
showing that the complaint was based on activity protected by the anti-SLAPP
statute. Plaintiffs do not argue that
they demonstrated a probability of prevailing on their claims and, thus, have
not shown that they met their burden under the second prong of the anti-SLAPP
analysis. Accordingly, we find that the
trial court’s order granting the anti-SLAPP motion was proper.
The
order granting the anti-SLAPP motion is affirmed. The plaintiffs’ appeal from the three
non-appealable interlocutory orders described in this opinion is
dismissed. Defendants are to recover
their costs on appeal.
NOT
TO BE PUBLISHED IN THE OFFICIAL REPORTS
CROSKEY,
J.
WE CONCUR:
KLEIN,
P. J.
HEESEMAN,
J.
name="_ftn1" title="">[1] On
June 14, 2013, plaintiffs filed a “Notice of Recent Relevant Decision†with
a copy of Mendoza v. Hamzeh (2013)
215 Cal.App.4th 799. We do not consider
this case relevant to plaintiffs’ case.
name="_ftn2" title="">[2] Code
of Civil Procedure section 170.4, subdivision (b) provides that “if a statement
of disqualification is untimely filed or if on its face it discloses no legal
grounds for disqualification, the trial judge against whom it was filed may
order it stricken.â€
