New Claim, New Clock

Starview Property, LLC v. Lee, No. B292245 (D2d8 Oct. 17, 2019)

Plaintiff in a land dispute case pleads three causes of action. Some of the facts (kind of tenuously) might implicate the anti-SLAPP statute. But the defendant doesn’t move. Then, well after the 60-day window under Code of Civil Procedure § 425.16(f) to file an anti-SLAPP motion has run, plaintiff amends the complaint to add two new claims based on different legal theories. They are, more or less, based on the same facts as were alleged in the first complaint. This time, defendant moves to strike. 

But the trial court denies the motion as untimely because the essential facts were alleged in the first complaint. The Court of Appeal reverses. This case is basically the converse of the Supreme Court’s decision in Newport Harbor II, which held that an amended complaint doesn’t restart the §425.16(f) clock for claims that were originally plead, only newly added claims. Here, the claims are new, but the facts are not. The court says that doesn’t make a difference because you can’t move on claims that aren’t yet plead. Since the “arising from” test depends on how the facts relate to the elements of the claims, it makes sense that the clock for such claims can’t run untill they are alleged. The Court declines to weigh in on the merits of the motion, other than to decide it was timely. 

Reversed.