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.

Supreme Court Confirms that the SLAPP Clock Starts on Each New Claim

Newport Harbor Ventures, LLC v Morris Cerullo World Evangelism, No. S239777 (Cal. Mar. 21, 2018)

At the end of 2016, the Court of Appeal held that the 60-day clock to file an anti-SLAPP motion runs from the time in which a cause of action first appears in an amended complaint.  So you get 60 days from the original complaint, and then 60 more days to bring a motion to challenge a new cause of action in an amended complaint, but you don’t get 60 more days to challenge a cause of action that appeared before and is just being re-pleaded in an amended complaint. And then the whole thing is subject to the court’s discretion to extend the time under Code of Civil Procedure § 425.16(f).

That holding was somewhat in tension with Yu v. Signet Bank/Virginia, 103 Cal. App. 4th 298 (2002), which suggested at least in passing that the 60-day clock started anew on every claim upon an amendment. The Supreme Court granted review, likely to resolve the apparent split. And now, in a unanimous opinion written by Justice Chin, it affirms the Court of Appeal. Basically for the same reasons that the Court of Appeal ruled as it did.

Affirmed.

A Differential Clock Under § 425.16(f).

Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, No. G052660 (D4d3 Dec. 22, 2016)

From when does the sixty-day clock to file an anti-SLAPP motion run under Code of Civil Procedure § 425.16(f)?

Just More Chances to Lose

San Diegans for Open Gov’t v. Har Const. Co., No. D066514 (D4d1 Sept. 17, 2015).

A good-government group brought this case to cancel a construction contract under Government Code § 1090 as the product of a corrupt bargain between a San Diego-area school district and a contractor. More than a year into the litigation, Contractor filed an anti-SLAPP motion, which the trial court denied because Plaintiff established a likelihood of prevailing on the merits.

Anti-Slapp Benchslap

Hewlett-Packard Co. v. Oracle Corp., No. H039507 (D6 Aug. 27, 2015)

Defendant in this case filed an anti-SLAPP motion in between phases of a two-phase trial. The trial court denied it because it was filed long past the sixty-day window in Code of Civil Procedure § 425.16(f), and because Defendant lacked a substantial justification for the late filing. Defendant then effectively deep-sixed the second phase of the trial by taking an immediate appeal. The court of appeal is not too very happy about the way this all played out.