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ISABEL DECKER et al., Plaintiffs and Respondents,
v.
THE U.D. REGISTRY, INC., et al., Defendants and Appellants.
No. G030094
In the Court of Appeal of the State of California
Fourth Appellate District
Division Three
(Super. Ct. No. 01CC07725)
Appeals from an order of the Superior Court of Orange County,
William F. McDonald, Judge. Affirmed as modified as to Appellant
The U.D. Registry, Inc. Appeal dismissed as to Appellant Harvey
A. Saltz.
COUNSEL
Enenstein, Russell & Saltz, Michael J. Saltz, Jason
M. Russell, Darren S. Enenstein and Jeffrey R. Glassman for Defendant
and Appellant The U.D. Registry, Inc.
Harvey A. Saltz, in pro. per., for Defendant and Appellant.
Lakeshore Law Center and Jeffrey Wilens for Plaintiffs and
Respondents.
Filed February 3, 2003
The U.D. Registry, Inc. (UDR), and Harvey A. Saltz appeal
from an order denying UDR's special motions to strike the complaint
pursuant to Code of Civil Procedure section 425.16 (all further
code references are to the Code of Civil Procedure unless otherwise
indicated) and awarding plaintiffs attorney fees pursuant to
subdivision (c) of section 425.16. Section 425.16, commonly referred
to as the anti-SLAPP statute, [FOOTNOTE 1] provides for a special
motion to strike "[a] cause of action against a person arising
from any act of that person in furtherance of the person's right
of petition or free speech under the United States or California
Constitution in connection with a public issue." (§
425.16, subd. (b)(1).)
We affirm the order denying UDR's special motions to
strike because UDR failed to notice a timely hearing on the motions.
Section 425.16, subdivision (f) provides that a special motion
to strike "shall be noticed for hearing not more than 30
days after service unless the docket conditions of the court
require a later hearing." UDR failed to notice its motions
for hearing within 30 days of service and failed to show the
condition of the trial court's docket required a later hearing.
The trial court therefore could not grant the motions.
We dismiss Saltz's appeal because he failed to bring
his own motion to strike pursuant to section 425.16 and therefore
lacks standing to appeal. We conclude the award of attorney fees
was erroneous because the trial court did not articulate the
reasons for the order (as section 128.5, subdivision (c) requires)
and because the record does not otherwise support an award of
attorney fees.
BACKGROUND
UDR is a consumer credit reporting agency. It collects
information about residential tenants and sells the information
to its subscribers, mainly landlords and their agents, who use
the information to screen prospective tenants. UDR collects information
primarily from court records of unlawful detainer actions. Saltz
is UDR's president.
Isabel Decker, David Decker, Thomas Miller, Melissa
Miller, and Loretta Stockton (plaintiffs) are residential tenants.
They alleged, in essence, that UDR disseminated false, misleading,
and/or incomplete information about them and that UDR failed
to maintain reasonable procedures to update and assure the accuracy
of the information it sells. Plaintiffs' core theory is that
UDR disseminated reports stating no judgment had been entered
with respect to unlawful detainer cases in which a dismissal
had been filed.
The complaint asserts class action violations and contains
nine causes of action. Three causes of action allege violations
of the Consumer Credit Reporting Agencies Act (Civ. Code, §
1785.1 et seq.). One cause of action alleges violations of the
Information Practices Act (Civ. Code, § 1798.53), and another
alleges unfair competition under Business & Professions Code
section 17200. The remaining causes of action are for negligence,
defamation, invasion of privacy (false light), and invasion of
privacy (disclosure of private facts).
On September 5, 2001, UDR served three special motions
to strike the complaint pursuant to section 425.16. Each motion
was addressed to a different group of plaintiffs. The motions
were noticed for hearing on October 24, 2001. Saltz did not file
his own motion to strike, but filed notices that he joined in
UDR's motions, which asked for relief only in favor of UDR.
Plaintiffs opposed the motions to strike. They argued
the motions lacked merit and that the hearing on the motions
was not timely under section 425.16, subdivision (f). Plaintiffs
sought $9,000 in sanctions on the ground the motions were frivolous.
The trial court heard the motions on October 24, 2001.
On November 15, an order was signed and entered denying the motions.
In the order, the court found the motions were frivolous and
awarded plaintiffs $2,400 in attorney fees. UDR and Saltz timely
appealed.
DISCUSSION
I.
UDR's Special Motions to Strike Were Not Noticed for a Timely
Hearing Because They Were Not Noticed for Hearing Within 30 Days
of Their Service, and UDR Failed to Show Docket Conditions Required
a Later Hearing.
The anti-SLAPP statute provides that a cause of action
arising out of an act of the defendant in furtherance of the
exercise of the constitutional right of petition or free speech
is subject to a special motion to strike. (§ 425.16, subd.
(b)(1).) "The Legislature enacted the anti-SLAPP statute
to protect defendants, including corporate defendants, from interference
with the valid exercise of their constitutional rights, particularly
the right of freedom of speech and the right to petition the
government for the redress of grievances." ( Schoendorf
v. U.D. Registry, Inc. (2002) 97 Cal.App.4th 227, 235.)
Subdivision (f) of section 425.16 provides specific
time deadlines for bringing a special motion to strike. Subdivision
(f) consists of these two sentences: "The special motion
may be filed within 60 days of the service of the complaint or,
in the court's discretion, at any later time upon terms it deems
proper. The motion shall be noticed for hearing not more than
30 days after service unless the docket conditions of the court
require a later hearing."
UDR's special motions to strike were timely under the
first sentence of subdivision (f) of section 425.16 because they
were filed within 60 days of service of the complaint. The motions
were not noticed for a timely hearing, however, under the second
sentence of subdivision (f). UDR served the anti-SLAPP motions
on September 5, 2001. They were noticed for hearing for October
24, 2001-more than 30 days later.
UDR failed to show that the trial court's docket conditions
required a hearing beyond the 30-day deadline. In its moving
papers, UDR did not attempt to show the condition of the trial
court's docket required a later hearing. When plaintiffs opposed
the motions on the ground of improper notice, UDR submitted an
attorney declaration to the trial court offering this explanation:
"Said motion was set with the assistance of the Court clerk.
Upon my telephonic request, the Court clerk informed me of various
dates the Court would be able to hear the three motions in this
case. I then coordinated said dates with the dates of availability
of all Defendants. October 24th, 2001 was [the] earliest option
under the circumstances."
This declaration does not show that docket conditions
required a later hearing, as subdivision (f) of section 425.16
requires. The declaration does not state that October 24 was
the earliest date available on the court's calendar. The declaration
establishes only that UDR selected the October 24 date for the
defendants' convenience. Subdivision (f) of section 425.16 does
not identify a party's convenience as a ground for hearing a
special motion to strike more than 30 days after service.
The anti-SLAPP statute must be construed according to
the plain meaning of its terms. ( Equilon Enterprises v. Con
sumer Cause, Inc. (2002) 29 Cal.4th 53, 59.) Our conclusion
that UDR's motions were not noticed for a timely hearing is based
upon reading the plain language of subdivision (f) of section
425.16. The word "shall" generally connotes a mandatory
obligation. ( Abbett Electric Corp. v. Storek (1994) 22
Cal.App.4th 1460, 1469-1470.) "Thus, ' in most cases,' the
Legislature's use in a statute of the word ' shall' indicates
that the statute's ' provisions are mandatory. . . .' "
( Id. at p. 1470.) Under subdivision (f) of section 425.16,
UDR had a mandatory obligation to notice its special motions
for hearing within 30 days of service unless the condition of
the trial court's docket required a later hearing.
The word "shall" has on occasion been construed
as permissive. ( Hogya v. Superior Court (1977) 75 Cal.App.3d
122, 134.) But consideration of the second sentence of section
425.16, subdivision (f) in the context of the statute as a whole
( Equilon Enterprises v. Consumer Cause, Inc., supra, 29
Cal.4th at p. 60), and in light of its history, supports our
interpretation of "shall" in subdivision (f) of section
425.16 as mandatory.
In the original anti-SLAPP statute, enacted in 1992,
the requirement that the motion be noticed not more than 30 days
after its service was part of section 425.16, former subdivision
(g), which also required a stay of discovery upon filing the
notice of motion. (§ 425.16, former subd. (g), Stats. 1992,
ch. 726, § 2.) Former subdivision (g) of section 425.16
read: "All discovery proceedings in the action shall be
stayed upon the filing of a notice of motion made pursuant to
this section. The motion shall be noticed for hearing not more
than 30 days after service unless the docket conditions of the
court require a later hearing. The stay of discovery shall remain
in effect until notice of entry of the order ruling on the motion.
The court, on noticed motion and for good cause shown, may order
that specified discovery be conducted notwithstanding this subdivision."
The import of former subdivision (g) of section 425.16 is that
the Legislature required a prompt hearing on the special motion
to avoid a prolonged discovery stay.
The Legislature amended section 425.16 in 1997 to move
the notice of hearing requirement from subdivision (g) to subdivision
(f). (Stats. 1997, ch. 271, § 1, p. 987.) The discovery
stay of subdivision (g) remained in place. ( Id. , ch.
271, § 1, p. 988.) In the 1997 amendments, the Legislature
added to subdivision (a) the sentence, "To this end, this
section shall be construed broadly." ( Id ., ch.
271, § 1, p. 987.)
The 1997 amendments to section 425.16 are significant
for three reasons. First, the Legislature placed the notice of
hearing requirement in subdivision (f), juxtaposed against the
discretionary "may" of the 60-day filing requirement,
but did not alter the word "shall" in the notice of
hearing requirement. As constituted after the 1997 amendments,
subdivision (f) consists of two sentences, the first using the
word "may," and the second using the word "shall."
This contrast in word selection within the same subdivision demonstrates
the Legislature knew the difference between the discretionary
"may" and the mandatory "shall," and intended
them to have such different meanings. ( Briggs v. Eden Council
for Hope & Opportunity, supra, 19 Cal.4th at p. 1117 ["Where
different words or phrases are used in the same connection in
different parts of a statute, it is presumed the Legislature
intended a different meaning" ].)
Second, in the 1997 amendments, the Legislature dealt
with the word "shall" in two places (subdivisions (a)
and (f)), indicating the Legislature intended a consistent meaning.
It is logical and consistent with the structure of section 425.16
that the word "shall" connote a mandatory obligation
throughout the statute.
Third, while the notice of hearing requirement changed
position, its justification (the need for prompt resolution due
to the discovery stay) remained intact.
UDR and Saltz argue the time frames of subdivision (f)
of section 425.16 must be broadly construed. They rely upon Lam
v. Ngo (2001) 91 Cal.App.4th 832, in which a panel of this
court correctly concluded "[c]learly, the 60-day time period
set forth in subdivision (f) of section 425.16 is not jurisdictional."
( Id. at p. 840.) Lam analyzes only the first sentence
of subdivision (f). Because the first sentence uses the word
"may," not "shall," Lam 's reasoning
supports the conclusion UDR's motions were not noticed for a
timely hearing. The Lam panel observed "[t]he nonjurisdictional
nature of the time limit is also emphasized by the permissive
' may' in the setting forth of the time limit (' The special
motion may be filed' )." ( Lam v. Ngo, supra, 91
Cal.App.4th at p. 840.) In contrast, the jurisdictional nature
of the second (and last) sentence of subdivision (f) of section
425.16 is emphasized by use of the mandatory "shall"
in setting forth the time limit ("The motion shall be noticed
for hearing" ).
UDR's broad construction argument ultimately is self-defeating.
UDR's argument is derived from section 425.16, subdivision (a),
which states, "this section shall be construed broadly."
(Italics added.) As explained above, in amending section 425.16
in 1997, the Legislature intended "shall" to have the
same mandatory meaning in both subdivisions (a) and (f) of section
425.16. By using the word "shall" in subdivision (a),
the Legislature requires a broad construction of section 425.16.
By using "shall" in the second sentence of subdivision
(f), the Legislature requires that a special motion be noticed
for hearing not more than 30 days after service of the motion,
unless the moving party establishes the trial court's docket
conditions require a later hearing.
Consistent with legislative mandate, we broadly construe
subdivision (f) of section 425.16. But requiring a broad construction
does not permit us to ignore the plain statutory language or
reach inconsistent meanings of the word "shall." The
anti-SLAPP statute must be construed by its terms according to
"' the plain meaning of the actual words of the law.' "
( Equilon Enterprises v. Consumer Cause, Inc., supra, 29
Cal.4th 53, 59.) The plain meaning of "shall" is that
it is mandatory. As explained above, interpreting "shall"
in subdivision (f) of section 425.16 as mandatory advances the
legislative purpose of requiring a prompt hearing on the motion
so as not to prolong the discovery stay. Interpreting "shall"
in subdivision (f) as mandatory also advances the legislative
purpose of creating a prompt and efficient means for terminating
claims improperly aimed at the exercise of free speech or the
right of petition. ( Lam v. Ngo, supra, 91 Cal.App.4th
at p. 842.)
Any ambiguity in the anti-SLAPP statute must be resolved
in favor of a resolution on the merits ( Lam v. Ngo, su pra,
91 Cal.App.4th at p. 842), but we find no ambiguity. The word
"shall" in section 425.16, subdivision (f), is mandatory.
UDR failed to notice its special motions to strike for a hearing
date "not more than 30 days after service" of the motions,
and failed to show "the docket conditions of the court require[d]
a later hearing." (§ 425.16, subd. (f).) The trial
court therefore could not grant UDR's special motions to strike.
Accordingly, we affirm the order denying UDR's special motions
without expressing an opinion on their merit.
II.
Saltz Has No Standing to Appeal Because He Did Not Bring His
Own Special Motion to Strike.
Plaintiffs contend Saltz "waived" any issue
as to his personal liability by failing to bring his own special
motion to strike. We conclude Saltz's failure to bring his own
motion to strike results in lack of standing to appeal.
Saltz did not bring his own special motion to strike
but joined in UDR's motions. The joinder is not in the form of
a motion and does not present any evidence or argument. In the
analogous situation of a motion for summary judgment, we concluded
a notice of joinder does not alone constitute a motion. ( Village
Nurseries v. Greenbaum (2002) 101 Cal.App.4th 26, 46-47.)
We hold the same is true for a special motion to strike under
section 425.16.
Saltz argues that "standard practice" permits
parties to join in each other's arguments. That is generally
correct. (E.g., People v. Escobar (1996) 48 Cal.App.4th
999, 1006, fn. 1 [appellants joining in each others' arguments
"as if formally raised in the respective briefs" ];
Save San Francisco Bay Assn. v. San Francisco Bay Conservation
etc. Com. (1992) 10 Cal.App.4th 908, 919 [separate appellate
briefs joining in the arguments of the other].) But joining in
an argument is different from joining in a motion. Saltz did
not file a motion seeking relief on his own behalf with a joinder
in UDR's arguments; he only filed a joinder in UDR's motion to
strike the complaint as to UDR.
Because Saltz did not bring his own special motion to
strike, he is not bound-for better or for worse-by the order
denying UDR's motions. He also has no standing to appeal. (§
902; County of Alameda v. Carleson (1971) 5 Cal.3d 730,
736.) Saltz's appeal is therefore dismissed.
III.
The Order Fails to State the Facts and Circumstances Justifying
the Award of Attorney Fees, and the Record Does Not Support an
Award of Attorney Fees.
Section 425.16, subdivision (c) provides "[i]f
the court finds that a special motion to strike is frivolous
or is solely intended to cause unnecessary delay, the court shall
award costs and reasonable attorney's fees to a plaintiff prevailing
on the motion, pursuant to Section 128.5." The trial court
found UDR's motions were "' frivolous' " and awarded
plaintiffs the sum of $2,400 in attorney fees. We review orders
regarding sanctions under section 128.5 for abuse of discretion.
( Shelton v. Rancho Mortgage & Investment Corp. (2002)
94 Cal.App.4th 1337, 1345.)
UDR argues the trial court failed to recite in detail
the conduct or circumstances justifying the order. We agree.
Attorney fees under section 425.16 are awarded "pursuant
to Section 128.5." (§ 425.16, subd. (c).) Section 128.5
states "[a]n order imposing expenses shall be in writing
and shall recite in detail the conduct or circumstances justifying
the order." (§ 128.5, subd. (c).)
In the order awarding plaintiffs their attorney fees,
the trial court stated only that UDR's motions were "' frivolous.'
" This is insufficient. The court's written order "should
be more informative than a mere recitation of the words of the
statute." ( Childs v. PaineWebber Incorporated (1994)
29 Cal.App.4th 982, 996.)
The usual remedy when a sanctions order fails to comply
with subdivision (c) of section 128.5 is remand for the trial
court either to enter a new order or to vacate the attorney fees
award. ( Childs v. PaineWebber Incorporated, supra, 29
Cal.App.4th at p. 997.) We decline to do so because, we conclude,
the record does not support an award of attorney fees under the
frivolousness and delay standards of sections 425.16 and 128.5.
The trial court did not find, and the record does not
disclose, any evidence that UDR brought the motions to strike
solely to cause unnecessary delay or to harass plaintiffs.
The record does not support a finding of frivolousness.
A determination of frivolousness requires a finding the motion
is "totally and completely without merit" (§ 128.5,
subd. (b)(2)), that is, "any reasonable attorney would agree
such motion is totally devoid of merit." ( Karwasky v.
Zachay (1983) 146 Cal.App.3d 679, 681.) An anti-SLAPP
motion is analyzed in two parts. First, the moving party bears
the burden of making a threshold showing that the plaintiff's
claim is subject to section 425.16. ( Equilon Enterprises
v. Con sumer Cause, Inc., supra, 29 Cal.4th at p. 67; Lam
v. Ngo, supra, 91 Cal.App.4th at p. 845.) Plaintiffs have
never contended UDR failed to meet this burden. Second, if the
moving party makes that prima facie case, then the burden shifts
to the plaintiff to establish a probability the plaintiff will
prevail on the claim. ( Equilon Enterprises v. Consumer Cause,
Inc., supra, 29 Cal.4th at p. 67; Lam v. Ngo, supra, 91
Cal.App.4th at p. 845.) Although we express no opinion on the
merit of the special motions to strike, our review of the briefs
and the record leads us to conclude UDR's arguments in response
to plaintiffs' evidence submitted on the probability of prevailing
were not "totally and completely without merit." (§
128.5, subd. (b)(2).).
Consequently, we conclude that while UDR's special motions
to strike were not noticed for a timely hearing, they were not
sanctionable.
DISPOSITION
We direct the trial court to modify the order denying
UDR's special motions to strike under section 425.16 by vacating
the award of attorney fees. As modified, the order is affirmed.
Saltz's appeal from the order denying UDR's special motions to
strike is dismissed. In the interests of justice, no party shall
recover costs on appeal.
FYBEL, J.
WE CONCUR: SILLS, P. J., RYLAARSDAM, J.
February 5, 2003 CALIFORNIA
::::::::::::::::::::::::::::: FOOTNOTE(S) :::::::::::::::::::::::::::::
FN1. SLAPP is an acronym for strategic lawsuit against
public participation. ( Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.)
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