Olsen v. Harbison

• Decision Date: 22 November 2005
• Docket Number: No. C048750.,C048750.
• Citation: 35 Cal.Rptr.3d 909,134 Cal.App.4th 278
• Court: California Court of Appeals Court of Appeals
• Parties: Christopher J. OLSEN, Plaintiff, Cross-defendant and Respondent, v. Joseph F. HARBISON III, Defendant, Cross-complainant and Appellant.

35 Cal.Rptr.3d 909

134 Cal.App.4th 278

Christopher J. OLSEN, Plaintiff, Cross-defendant and Respondent, v. Joseph F. HARBISON III, Defendant, Cross-complainant and Appellant.

No. C048750.

Court of Appeal, Third District.

November 22, 2005.

Hinshaw & Culbertson and Ronald E. Mallen, San Francisco; and Sharon J. Arkin,

Newport Beach, for Defendant, Cross-complainant and Appellant.

Freidberg & Parker and Edward Freidberg, Sacramento, for Plaintiff, Cross-defendant and Respondent.

OPINION RULING ON MOTION TO DISMISS APPEAL AND REQUEST FOR SANCTIONS INCLUDING ATTORNEY FEES

SIMS, J.

Joseph F. Harbison, III, appeals from an order denying his special motion under Code of Civil Procedure section 425.16 to strike causes of action arising from acts in furtherance of a person's constitutional right of petition or free speech, commonly known as an anti-SLAPP motion. (Further section references are to the Code of Civil Procedure unless otherwise specified.) An order denying such a motion is an appealable order. (§ 425.16, subd. (j).) Respondent Christopher J. Olsen moves for dismissal of the appeal as frivolous and taken solely for purposes of delay and requests an award of sanctions.

Section 425.16, subdivision (f), provides that an anti-SLAPP motion may be filed more than 60 days from service of the complaint only "in the court's discretion." The motion here was filed 278 days after service of the most recent complaint and was denied as untimely. Harbison contends the trial court abused its discretion in denying the motion.

We shall conclude that the appeal is frivolous because the claim of abuse of discretion indisputably has no merit. Consequently, we will dismiss the appeal and impose sanctions against Harbison.

FACTS AND PROCEDURAL BACKGROUND

Olsen is an attorney who represented a plaintiff in an earlier personal injury case. When that case approached trial, Olsen associated Harbison, also an attorney, as co-counsel, under a contract to split the contingent attorney fees. Soon thereafter the personal injury plaintiff discharged Olsen as counsel. The personal injury case was resolved by a settlement, and Harbison received attorney fees.

Harbison declined Olsen's demand for a portion of the fees to which Olsen claims he is entitled under the fee splitting contract. On February 3, 2003, Olsen, in propria persona, filed a complaint initiating this action seeking to recover a portion of the fees under counts alleging breach of contract and quantum meruit. In April of 2003, Olsen amended the complaint to add counts alleging fraud and intentional interference with contractual relations. The amended complaint was served some time prior to August 14, 2003. In February of 2004, Olsen, now represented by the law firm of Friedberg & Parker, filed a second amended complaint, again with the additional counts alleging fraud and interference. This complaint was served by mail on February 13, 2004.

A spate of acrimonious law and motion proceedings ensued. For example, there was a motion to disqualify Edward Freidberg as opposing counsel,¹ an appeal of denial of that motion, a motion seeking a stay, a writ seeking to overturn the denial of the stay, demurrer proceedings, interrogatories, requests for production, requests for admissions, and cross motions to compel discovery or further discovery.

The stay efforts as to the motion to disqualify Freidberg were unsuccessful. The discovery disputes were resolved on November 1 and 5, 2004, by orders compelling further answers to interrogatories, production of documents, and depositions of Olsen and Harbison. The latter deposition was to commence on December 17, 2004. On November 3, 2004, Harbison filed a "renewed" motion to stay the proceedings pending resolution of the disqualification appeal. On November 23, 2004, the trial court issued a tentative ruling proposing to deny that stay motion.

That day (November 23, 2004) Harbison filed combined motions: (1) for the court to exercise discretion to hear his anti-SLAPP motion, (2) to grant his anti-SLAPP motion on the merits, and (3) for judgment on the pleadings. In his view, the filing of the notice of motion resulted in an "automatic stay" of discovery.

On December 9, 2004, Olsen filed a motion to strike the anti-SLAPP motion on the grounds: (1) the motion could not be filed more than 60 days after service of the complaint without first obtaining an order so permitting, and (2) the motion was tendered solely for purposes of delay.

Harbison's opposition to the motion to strike replies as follows. There is no requirement for an order granting permission to file an anti-SLAPP motion more than 60 days after service of the complaint. There is no requirement of good cause for hearing such a belated anti-SLAPP motion. Nonetheless, the "explanation" for the delay is that it had not occurred to Harbison that the case was appropriate for an anti-SLAPP motion until he consulted with counsel Ronald Mallen of Hinshaw & Culbertson. Then he waited to try to obtain permission from his malpractice insurance carrier, which had previously denied coverage, to retain Mallen. He did not retain Mallen until the carrier again refused coverage. After Mallen was retained, his firm prepared the anti-SLAPP motion. The motion was not filed to obtain delay, but in the belief it had merit.

These matters came on for hearing on December 30, 2004. After taking the matter under submission, the court issued a written order on January 5, 2005, denying Olsen's and Harbison's motions. In pertinent part the ruling is as follows. An anti-SLAPP motion filed more than 60 days after service of the complaint is not subject to a motion to strike. However, it can be heard only at the discretion of the court. The anti-SLAPP motion "is denied on the ground that it is dilatory, without good cause for failing to bring the motion earlier. Harbison filed such motion nine months after service of the Second Amended Complaint, asserting an inability to file earlier due to the failure of Harbison's then legal counsel (Harbison) to comprehend or consider the potential application of the SLAPP procedure to causes of action that had persisted in Olsen's complaint. Such explanation does not justify a delay of more than a year-and-a-half after the fraud and interference causes of action first appeared in the lawsuit. The SLAPP statute is intended to provide an aggrieved defendant with a shield through the prompt resolution of meritless claims prior to the significant expenditure of litigation resources, not a sword to be wielded whenever it becomes strategically convenient. The parties have already expended substantial resources in litigating all of the claims, including those addressed by the SLAPP motion. Harbison has compelled and obtained discovery from Olsen bearing directly upon the two target causes of action. In sum, the motion comes too late, without legitimate excuse."

On January 12, 2005, Harbison filed a notice of appeal from the order.² On August 5, 2005, Olsen filed this motion to dismiss the appeal as frivolous.

DISCUSSION

Section 425.16, subdivision (f) (subdivision (f)), states in pertinent part: "The [anti-SLAPP] 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 60-day period commences with the service of the most recent complaint or amended complaint in the action. (E.g., Lam v. Ngo (2001) 91 Cal.App.4th 832, 835, 111 Cal.Rptr.2d 582, and authorities cited.)

Here, the second amended complaint was served on February 13, 2004. Harbison's anti-SLAPP motion was filed 278 days later, on November 23, 2004. Exercising its discretion, the trial court found the anti-SLAPP motion untimely.

Both the Legislature³ and the Supreme Court⁴ have acknowledged the ironic unintended consequence that anti-SLAPP procedures, enacted to curb abusive litigation, are also prone to abuse. As to abuse occasioned by the stay of proceedings on appeal of the denial of an anti-SLAPP motion, the Supreme Court has "encouraged" us "to resolve these . . . appeals as expeditiously as possible. To this end, reviewing courts should dismiss frivolous appeals as soon as practicable and do everything in their power to `"prevent . . . frustration of the relief granted."'" (Varian Medical Systems Inc. v. Delfino, supra, at p. 196, 25 Cal.Rptr.3d 298, 106 P.3d 958.) The question is whether this appeal is appropriate for such dismissal.⁵

In re Marriage of Flaherty (1982) 31 Cal.3d 637, 183 Cal.Rptr. 508, 646 P.2d

179 provides the standard. "[A]n appeal should be held to be frivolous only when it is prosecuted for an improper motive — to harass the respondent or delay the effect of an adverse judgment — or when it indisputably has no merit — when any reasonable attorney would agree that the appeal is totally and completely without merit." (Id. at p. 650, 183 Cal.Rptr. 508, 646 P.2d 179.)

Olsen contends the appeal is frivolous because there is ample reason to infer that Harbison's motive was to delay his deposition and there is no reasonable basis for him to have concluded he might be successful on appeal. Olsen notes that in order to succeed, Harbison would have to show the trial court abused its discretion in declining to hear the untimely anti-SLAPP motion. Olsen submits there is no basis in the record for a reasonable expectation of success in showing an abuse of discretion.⁶

In his opposition to the motion to dismiss, Harbison asserts that the trial court improperly exercised or failed to exercise the discretion accorded it by misinterpreting the anti-SLAPP statute. He argues his anti-SLAPP motion has merit, discovery in the case had not yet commenced, and granting the motion would have saved all concerned the time and expense of litigating the causes of action it addressed. Implicitly, in his view, an arguably meritorious claim of abuse of discretion lies in such a situation.

After we calendared...