Coker v. L.L.

• Decision Date: 02 September 2022
• Docket Number: C094221
• Parties: TREVOR COKER, Plaintiff and Appellant, v. L.L., Defendant and Respondent.
• Court: California Court of Appeals Court of Appeals

TREVOR COKER, Plaintiff and Appellant, v. L.L., Defendant and Respondent.

C094221

California Court of Appeals, Third District, Sacramento

September 2, 2022

NOT TO BE PUBLISHED

Super Ct. No. 34-2020-00285200-CU-NP-GDS

HOCH J.

Plaintiff Trevor Francis Coker and defendant L.L. were in a romantic relationship that ended in 2019. In 2020, plaintiff filed a complaint against defendant and a codefendant, asserting causes of action sounding in malicious prosecution defamation per se, intentional infliction of emotional distress, and conspiracy. The allegations of the complaint were based on numerous reports defendants allegedly made to law enforcement accusing plaintiff of domestic violence and violating a domestic violence restraining order (DVRO) which according to plaintiff, were false.

Defendant filed a special motion to strike the complaint insofar as asserted against her pursuant to Code of Civil Procedure section 425.16.^[1] Plaintiff filed a memorandum of points and authorities in opposition, but did not address, or submit evidence for, the second step of the two-step analysis applicable to such motions. After the trial court granted defendant's special motion to strike, plaintiff filed a motion to set aside the order and judgment pursuant to section 473, subdivision (b). The trial court denied the motion, concluding plaintiff's counsel's failure to advance argument and present evidence on the second prong of the section 425.16 analysis constituted conduct falling below the professional standard of care rather than excusable neglect.

Plaintiff appeals, asserting the trial court should have granted him relief under either the discretionary or the mandatory provisions of section 473, subdivision (b).

We affirm but remand for a determination as to defendant's appellate attorney fees.

FACTUAL AND PROCEDURAL BACKGROUND

The Complaint

Plaintiff and defendant were in a romantic relationship and lived together from approximately June 2017 to January 2019. The relationship deteriorated, and, in September 2020, plaintiff filed a complaint against defendant and a codefendant. The complaint asserted four causes of action: malicious prosecution, defamation per se, intentional infliction of emotional distress, and conspiracy.

Each cause of action involved plaintiff's assertions that defendants made several false and malicious reports to law enforcement. Defendant obtained a DVRO against plaintiff, and plaintiff alleged defendant subsequently filed false reports claiming plaintiff had violated the DVRO. According to plaintiff, defendants both had filed multiple false and malicious reports with law enforcement, accusing him of domestic violence and of violating the DVRO. As a result, plaintiff had been arrested and charged with two misdemeanor counts of violating a temporary restraining order. The charges were eventually dismissed for lack of evidence. According to plaintiff, defendant continued to file false police reports against him.

Plaintiff's Special Motion to Strike Pursuant to Section 425.16

Defendant filed a special motion to strike the complaint insofar as asserted against her pursuant to section 425.16. In support of her motion, defendant asserted the action arose out of statements or writings made before a judicial proceeding, made in connection with an issue under consideration or review by a judicial body, and in furtherance of her exercise of the constitutional right of petition. She further asserted plaintiff could not establish a probability of success on the merits.

Plaintiff's counsel filed a memorandum of points and authorities in opposition to defendant's special motion to strike. After setting forth the two-prong analysis, plaintiff's counsel asserted defendant could not satisfy the first prong "because making a false police report is not a protected activity under the statute." Plaintiff's counsel did not address the second prong of the analysis. Nor did he include any evidence with the opposition.

In a tentative ruling, the trial court granted defendant's special motion to strike. The trial court concluded defendant satisfied the first prong, that her statements constituted protected activity. Relying on Dwight R. v. Christy B. (2013) 212 Cal.App.4th 697, the court stated that a defendant may properly invoke the anti-SLAPP mechanism "if the plaintiff's allegations of unlawful activity have not been established by uncontroverted evidence or admission." The court stated that defendant did not concede she filed a false police report and there was not uncontroverted evidence that her police reports were false. Therefore, the court concluded defendant satisfied her burden on the first prong. The court then stated: "Plaintiff did not file any evidence in support of his opposition. He simply filed a memorandum of points and authorities. Accordingly, he has not met his burden on the second prong of the anti-SLAPP statute."

Thus, the court granted defendant's motion, concluding she had established plaintiff's complaint arose from protected conduct and plaintiff had failed to show a reasonable probability of prevailing on the merits. There was no request for oral argument. The trial court affirmed its tentative ruling.

Plaintiff's Motion to Set Aside the Order and Judgment Pursuant to Section 473

Plaintiff filed a motion pursuant to section 473, subdivision (b) to set aside the order and judgment on the grounds of attorney mistake, inadvertence, surprise, or neglect. Plaintiff asserted his attorney mistakenly filed the opposition to the special motion to strike "believing the allegations averred in the complaint were sufficient to overcome the motion to strike." Plaintiff included with his motion a declaration by his attorney, a proposed opposition, the complaint, a declaration completed by plaintiff, and additional exhibits.

In his declaration, plaintiff's attorney stated he did not request oral argument because "this Court's ruling was unequivocal and clear." Plaintiff's attorney further stated: "While substantial evidence exists that both Defendants filed or caused to be filed knowingly, falsely, maliciously, and without probable cause, false police reports against Plaintiff, I only addressed the first prong of anti-SLAPP analysis (whether complaint arises from 'protected activity'), and did not provide further evidence under the second prong of probability of prevailing on the merits. I should have." He continued: "This omission was a good faith mistake predicated on my neglect in not realizing the importance of supplementing the pleadings with further evidence of the Defendants' culpability, and my belief that Defendant . . . could not withstand the requirement of the first prong."

In opposition, defendant asserted her motion put plaintiff on notice of the need to introduce evidence in response, and that plaintiff offered no explanation for failing to do so "besides being a human prone to mistakes." Defendant asserted plaintiff's counsel could not reasonably have failed to appreciate the need to present evidence pursuant to the second prong. Her memorandum of points and authorities discussed the two-prong analysis and the requirement on the second prong for the plaintiff to demonstrate the complaint is supported by a prima facie showing of facts. Defendant further asserted that the omission in failing to make argument and present evidence on the second prong "does not warrant relief under . . . section 473[, subdivision ](b) because it is not a mistake that would be made by a reasonably prudent person and is more appropriately characterized as falling below the professional standard of care required of attorneys."

The Order Appealed From

In a tentative ruling, the trial court denied plaintiff's motion to set aside the order and judgment pursuant to section 473. The court determined it was clear plaintiff's counsel was aware of the two prongs of the anti-SLAPP analysis, but counsel "simply believed Plaintiff could defeat the anti-SLAPP motion on the first prong, and thus chose not to even address the second prong and present supporting evidence." Thus, the court concluded plaintiff's counsel "made a calculated determination not to advance an argument, which led to an adverse ruling against Plaintiff." However, quoting case law, the court stated," 'The advancement of arguments is the very essence of the professional responsibilities assumed by attorneys; failure to timely make an argument cannot, therefore, be considered a mistake permitted to an untrained "reasonably prudent person" within the meaning of section 473.'" (Garcia v. Hejmadi (1997) 58 Cal.App.4th 674, 684.) The court then observed that plaintiff's counsel "compounded the error by deciding not to call for oral argument or raise this challenge until two months after the minute order was issued." The court concluded: "Counsel's failure to advance an argument and present evidence is conduct falling below the professional standard of care, not excusable neglect."

Following oral argument, the trial court affirmed its tentative ruling with a modification not relevant here.

DISCUSSION

I Applicable Law

A. Section 425.16 Anti-SLAPP Special Motion to Strike

In considering plaintiff's claims on this appeal, we first set forth the two-step analytical framework applicable to an anti-SLAPP special motion to strike.

" 'Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a "summary-judgment-like...