Opinion
D057839 Super. Ct. No. 37-2009-00093815-CU-PO-CTL
11-22-2011
ROBERT ROLLA, Plaintiff and Appellant, v. JAMES SPEIDEL et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
APPEAL from an order of the Superior Court of San Diego County, Judith F. Hayes, Judge. Affirmed in part, reversed in part and remanded with directions.
Robert Rolla appeals from the trial court's order awarding attorney fees to respondents James Speidel, Eric Thomas and Kearny Mesa Towing, Inc. (KMT), under Code of Civil Procedure section 425.16, subdivision (c), the anti-SLAPP (strategic lawsuit against public participation) statute, based on its finding they were the prevailing party on their anti-SLAPP motion.
All statutory references are to the Code of Civil Procedure unless otherwise stated.
Rolla contends trial court Judge Judith Hayes lacked jurisdiction to rule in this matter because he had filed a peremptory challenge against her in an earlier case (Rolla v. Cheldin (Aug. 25, 2010, D055614) [nonpub. opn.] (Rolla I)), and the prior disqualification extends to the present case, which he contends is a continuation of Rolla I. He further contends the court was required to rule on the merits of the anti-SLAPP motion before ruling on the attorney fees motion. We conclude Judge Hayes was not disqualified from ruling on the attorney fees motion; however, before doing so, she was required to rule on the merits of the anti-SLAPP motion. Accordingly, we affirm in part, reverse in part, and remand with directions.
FACTUAL AND PROCEDURAL BACKGROUND
We deny respondents' motion for judicial notice of materials that were not presented in the trial court, and that are not necessary for our disposition.
Rolla I
In 2006 Eric Thomas, a KMT tow truck driver, collided with Rolla's 1972 Chevy pickup truck. Rolla and KMT's insurer — Crusader — failed to reach a settlement. In February 2009, Rolla sued Thomas, KMT, Crusader and Cary Cheldin, Crusader's CEO, for negligence and violations of violation of California's Unfair Competition Law (UCL) (Bus. & Prof. Code, § 17200 et seq.).
The case was initially assigned to San Diego Superior Court Judge Judith Hayes, but she granted Rolla's peremptory challenge against her under section 170.1, subdivision (6), and the case was assigned to Judge Jay M. Bloom.
In April 2009, the trial court granted defendants' anti-SLAPP motion to strike Rolla's UCL causes of action. Rolla subsequently dismissed six of those causes of action against KMT. We affirmed the trial court's decision on appeal.
Rolla II
On July 13, 2009, Rolla filed a new complaint (Rolla II) against KMT, Eric Thomas, James Speidel, Crusader's CEO, and Steve Konold, who is listed as KMT's agent for service with California's Secretary of State. The complaint alleged causes of action against Speidel and Thomas for failing to attend a deposition (§ 1992; first and second cause of action), and against KMT, Speidel and Konold for violating the UCL (third through tenth cause of action). That same day, Rolla filed a "Notice of Related Case," reasoning that Rolla II arises from the same or substantially identical events as Rolla I; therefore, it was preferable for the same judge to resolve both matters. The case was assigned to Judge Judith Hayes. Rolla did not file a timely peremptory challenge against her.
The complaint does not include a seventh cause of action; instead, it goes from sixth to eighth cause of action.
Under section 170.6, subdivision (a)(2), a party to an action or proceeding in an all-purpose assignment must file a peremptory challenge to disqualify a judge for prejudice within 15 days after receiving notice of the assignment, and may do so by simply filing a sworn statement without having to establish the prejudice as a fact to the satisfaction of a judicial body. (Barrett v. Superior Court (1999) 77 Cal.App.4th 1, 4.) If a peremptory challenge motion in proper form is timely filed, the court must accept it without further inquiry. (Ibid.)
In September 2009, Rolla sought to disqualify Judge Hayes by filing a verified statement of disqualification under section 170.1, subdivision (6), arguing the peremptory challenge against her in Rolla I extended to Rolla II. He further argued she was biased against his counsel, as evidenced by her rulings against him in separate litigation. Judge Hayes filed a verified answer objecting to Rolla's disqualification motion. Subsequently, Judge Jeffrey Burke determined that Judge Hayes was not disqualified, and Rolla II was not an extension of Rolla I because the parties and the causes of action were different in each case.
In July 2009, respondents moved to strike Rolla's complaint under the anti-SLAPP statute. (§ 425.16.)
In November 2009, Rolla dismissed his complaint before the trial court could rule on the motion.
Thereafter, respondents moved for attorney fees under section 425.16, subdivision (c), and the trial court awarded them $15,000 in attorney fees, ruling: "Based upon Coltrain v Shewalter (1998) 66 Cal.App.4th 94 [(Coltrain)], the court determines Defendants are the prevailing parties based upon [Rolla's] voluntary dismissal and defendants' realization of their litigation objective."
DISCUSSION
I.
Rolla contends Rolla II was a continuation of Rolla I, pointing out that he dismissed six UCL causes of action filed against KMT in Rolla I, but re-alleged them against KMT, Speidel and Thomas in Rolla II.
"All the cases applying the continuation rule to preclude a peremptory challenge in the second proceeding involve the same parties at a later stage of their litigation with each other, or they arise out of conduct in or orders made during the earlier proceeding. In other words, the continuation rule applies in cases in which the second action arises out of, or is a later stage of, the original action involving the same parties." (Nutragenetics LLC v. Superior Court (2009) 179 Cal.App.4th 243, 257 (Nutragenetics).)It does not suffice that the two cases arise from the same or substantially identical transactions, incidents, or events requiring the determination of the same or substantially identical questions of law or fact because "that is the standard for determining whether cases are related, not for determining whether one case constitutes a continuation of another." (Id. at p. 258.)
Applying the Nutragenetics criteria here, we acknowledge that Rolla I and Rolla II arose from the same traffic collision that damaged Rolla's pickup truck. Nonetheless, we conclude Rolla II was not a later stage or continuation of Rolla I, and it did not arise out of conduct in — or from orders made in — Rolla I. Specifically, we resolved Rolla I without making any order that carried over into Rolla II. Moreover, Rolla alleged two causes of action under section 1992 in Rolla II relating to depositions to be taken in that case, and he did not allege any such cause of action in Rolla I. Further, although the UCL violations were pleaded in both cases, they were alleged against different defendants in each case. Accordingly, we conclude Judge Hayes had jurisdiction to rule on the attorney fees motion.
Rolla relies on cases dealing with California Constitution, Article VI, section 4, which vests jurisdiction in the court. Those cases are unavailing. They stand for the separate proposition that a superior court is but one tribunal, and although it may have numerous departments, an order made in one department during the progress of a cause can neither be ignored nor overlooked in another department. (See, e.g., People v. Madrigal (1995) 37 Cal.App.4th 791, 796; Williams v. Superior Court (1939) 14 Cal.2d 656; Ford v. Superior Court (1986) 188 Cal.App.3d 737; Slone v. Inyo County Juvenile Court (1991) 230 Cal.App.3d 263. But here, the issue is not whether one trial judge impermissibly ignored or overlooked an order of another judge in the same court; rather, the issue is whether Rolla II arose out of or was otherwise a continuation of Rolla I. We conclude it did not and was not.
II.
Rolla contends the trial court erroneously granted respondents' attorney fees motion without first deciding the merits of the anti-SLAPP motion under section 425.16, subdivision (c) and, alternatively, they were only entitled to fees related to the anti-SLAPP motion, not the entire action.
Separately, respondents request attorney fees on appeal.
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A defendant who prevails on a special motion to strike is entitled to recover attorney fees and costs incurred in bringing the motion. (§ 425.16, subd. (c); Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 39 Cal.App.4th 1379, 1382-1384; compare Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785 [statute authorizes award of fees so as to adequately compensate the defendant for having to respond to a baseless lawsuit].) Under such circumstances, the award of fees and costs is mandatory. (§ 425.16, subd. (c).)
When, as here, the plaintiff voluntarily dismisses his lawsuit while a special motion to strike it is pending, the trial court may nonetheless award attorney fees and costs to the moving defendant pursuant to the anti-SLAPP statute. In Coltrain, after the plaintiffs dismissed their complaint while a special motion to strike was pending, the trial court awarded the defendants attorney fees pursuant to section 425.16, subdivision (c). The plaintiffs appealed, arguing the defendants were not entitled to recover fees because they had not prevailed on the special motion to strike. (Coltrain, supra, 66 Cal.App.4th at p. 101.) Based on a review of authorities determining the issue of who is the "prevailing party" in the event of a voluntary dismissal of the case, the appellate court rejected the plaintiffs' argument. It concluded that, under section 425.16, subdivision (c), the trial court had the discretion to determine whether the defendant was the prevailing party and thus entitled to recover fees. (Coltrain, supra, at pp. 101-108.) The court indicated that, in exercising its discretion, the critical issue for the trial court's determination was which party realized its objectives in the litigation.(Id. at p. 107.)
Faced with a similar issue, the court in Liu v. Moore (1999) 69 Cal.App.4th 745 analyzed section 425.16, subdivision (c) differently. In that case, the trial court denied the motion for attorney fees, reasoning that the statute allowed fees only to a party who prevailed on a special motion to strike, but the alleged SLAPP pleading (in that case a cross-complaint) was dismissed prior to a hearing on the special motion to strike. The appellate court reversed, holding that the cross-defendant was entitled to have the merits of her special motion to strike heard as a necessary predicate to a determination of her request for attorney fees and costs under section 425.16, subdivision (c). (Liu, supra, at pp. 750-753; see also Kyle v. Carmon (1999) 71 Cal.App.4th 901, 918-919.)
The Liu court concluded that under section 425.16, subdivision (c), the requesting party's entitlement to fees turns on the merits of the defendant's motion to strike. "An award of [fees and costs] under section 425.16 is only justified when a defendant demonstrates that plaintiff's action falls within the provisions of subdivision (b) and the plaintiff is unable to establish a reasonable probability of success. [Citation.] Until a court determines that these circumstances exist, a moving defendant is not entitled to its fees and costs under section 425.16. If such a judicial determination were not first required, and a fair procedural opportunity to obtain it allowed, then a plaintiff's voluntary dismissal of the action could have the effect of (1) depriving a true SLAPP defendant of statutorily authorized fees, or (2) entitling a defendant to such relief in a non-SLAPP action [that] was dismissed by the plaintiff for entirely legitimate reasons. In both situations, the purpose of the statute's remedial provisions would be frustrated." (Liu, supra, 69 Cal.App.4th at pp. 752-753.)
We agree with the Liu court's reasoning, and apply it here. The trial court did not analyze the merits of respondents' anti-SLAPP motion, but instead concluded, based on Rolla's dismissal of his complaint and the analysis in Coltrain, that respondents were the prevailing party. However, the trial court still was required to rule on the merits of the anti-SLAPP motion as a prerequisite to determining the prevailing party and granting attorney fees. We remand the case for a hearing on the anti-SLAPP motion. If respondents prevail on that motion, the trial court shall award reasonable attorney fees to them for their trial court efforts (both before and after this appeal), and their efforts in this appeal.
DISPOSITION
The order awarding attorney fees to respondents is reversed. In all other respects the judgment is affirmed. The matter is remanded to the superior court for proceedings consistent with this opinion. Rolla is awarded costs on appeal.
O'ROURKE, J. WE CONCUR:
McCONNELL, P. J.
AARON, J.