Tuesday, February 16, 2016

Transferred Venue Resets Anti-SLAPP Clock

Karnazes v. Ares, No. B246308 (D2d2 Jan. 27, 2016)

The relevant part of this case action involves a pro per suing her opponent’s attorney for acting on behalf of her client. As to those claims, an anti-SLAPP motion was brought and granted. Plaintiff now appeals. She raises five grounds, which the court dispenses with in a short opinion.

The first issue concerns timing. The motion was brought about seven months after the lawyer-defendant was served, which is beyond the sixty-day limit in Code of Civil Procedure § 425.16(f). (The deadline is subject to a discretionary extension by the court.) But in the interim, venue in the case was transferred from Santa Clara to Los Angeles. Rule of Court 3.1326 gives a defendant thirty days from the notice of transfer to “move to strike, demur, or otherwise plead if the defendant has not previously filed a response.” Prior cases have applied Rule 3.1326 to the deadline in § 425.16(f). And since the anti-SLAPP motion was filed a couple of days after LA Superior recognized the transfer, the motion was timely.

Second, the motion was properly granted on the merits. The case arose out of litigation-related communications and plaintiff didn’t provide any actual evidence regarding the elements of her claims.

The third issue deals with a copy of the court’s tentative ruling, which was apparently handed out in advance of the hearing. Plaintiff, who appeared by phone, didn’t get a copy. Plaintiff’s phone appearance, however, wasn’t properly noticed under Rule 3.670(h), so the court would not have known of any need to distribute the tentative in advance. And since plaintiff didn’t point the court to any authority requiring courts to more broadly distribute tentative rulings to parties making unannounced telephone appearances, she made no claim of reversible error.

Fourth, plaintiff’s case does not fall with the commercial speech exception to the anti-SLAPP statute in § 425.17(c). Just because an attorney is engaged in compensated speech while advocating on her client
s behalf does not bring a claim over such speech within the exception. In particular, typical attorney speech in the advocacy context is not comprised of statements marketing the attorney’s services or statements to potential consumers or to gain a competitive advantage, which is the subject of § 425.17(c).

And finally, although plaintiff raised it without any explanation or citation of relevant authority, the challenged conduct did not fall within the “illegal as a matter of law” exception.

Affirmed.

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