Toler v. Dostal, A118793 (Cal. App. 4/30/2009), A118793

• Decision Date: 30 April 2009
• Docket Number: A118793
• Parties: JOEL THOMAS TOLER, Plaintiff and Appellant, v. JANET DOSTAL et al., Defendants and Respondents.
• Court: California Court of Appeals Court of Appeals

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JOEL THOMAS TOLER, Plaintiff and Appellant, v. JANET DOSTAL et al., Defendants and Respondents.

A118793

Court of Appeals of California, First Appellate District, Division One

April 30, 2009

Not to be Published in Official Reports

Appeal from the Solano County, Super. Ct. No. FCS 028734.

GRAHAM, J.^*

This appeal has been taken from an order of the trial court that granted defendants' anti-SLAPP motion (Code Civ. Proc., § 425.16).¹ We conclude that the motion was properly granted and affirm the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Plaintiff and defendants are residents of American Canyon and members of the Spurs Trail Homeowner's Association (the Association). The membership of the Association consists of 16 owners of property in a rural area of Solano County. The record does not disclose how many more people occupy the community. When the events that are at issue in the case before us occurred, defendant Janet Dostal was president of the Association.

On October 21, 2006, Dave Boykin, a resident of Spurs Trail, observed two dogs attack and inflict injuries on his pet goat before they were confronted by him and fled. After the attack he followed the dogs to plaintiff's residence. Boykin told other residents of the area, including Dostal, that he thought the dogs responsible for the attack belonged to plaintiff.

At a regularly scheduled meeting of the Association on November 8, 2006, one of the topics discussed and recorded in the minutes was "the dog attack." The next day, the Association published and disseminated to its members the minutes of the meeting in the form of a newsletter which stated: "Lot 4 had brutal attack on pet goat from lot 12's [plaintiff's] loose and roaming dogs. These dogs are still being seen on other Homeowner's properties & Homeowner's are advised to use extreme caution at all times."

Plaintiff filed the present action for defamation on November 16, 2006. Defendants subsequently filed an anti-SLAPP (strategic lawsuits against public participation) motion to strike plaintiff's complaint (§ 425.16, subd. (b)). After a hearing the trial court granted the motion. This appeal followed.

DISCUSSION

I. The Notice of the Anti-SLAPP Motion.

Plaintiff presents several challenges to the trial court's ruling on the anti-SLAPP motion, the first of which is that he failed to receive proper notice of the motion. He claims that the document served on him failed to contain "a notice of the motion [or] the motion itself." Defendants do not dispute that the notice of the motion to strike was defective, but argue that plaintiff "waived the procedural defects" by appearing at the hearing on the motion and opposing it on the merits.

The record indicates that plaintiff was served with the "Anti-SLAPP Motion" pursuant to section 425.16, which specified a hearing date of January 23, 2007. He filed opposition to the motion, which included argument that the complaint was not subject to the anti-SLAPP statute. He also filed a supporting declaration from a fellow member of the Association, Linda Layton, directed at the issue of prevailing on the merits of the defamation action. Plaintiff's counsel then appeared at the hearing — which was continued twice and did not occur until May 31, 2007 — and pointed out to the court that in the proof of service "there was no notice of motion, no notice, no motion," only a "points and authorities" and a "declaration from Janet Dostal." Counsel asserted that "procedurally the motion is void," although he acknowledged that a claim of defective service was not raised in the written opposition. Plaintiff's counsel then proceeded to argue the merits of the motion.

We find that plaintiff waived any claim of inadequate or defective notice. "`It is well settled that the appearance of a party at the hearing of a motion and his or her opposition to the motion on its merits is a waiver of any defects or irregularities in the notice of the motion. [Citations.] This rule applies even when no notice was given at all. [Citations.] Accordingly, a party who appears and contests a motion in the court below cannot object on appeal or by seeking extraordinary relief in the appellate court that he had no notice of the motion or that the notice was insufficient or defective.' " (Eliceche v. Federal Land Bank Assn. (2002) 103 Cal.App.4th 1349, 1375, quoting from Tate v. Superior Court (1975) 45 Cal.App.3d 925, 930; see also Urshan v. Musicians' Credit Union (2004) 120 Cal.App.4th 758, 768; Alliance Bank v. Murray (1984) 161 Cal.App.3d 1, 7-8.) "[O]ne who has been notified to attend a certain proceeding and does do so, cannot be heard to complain of alleged insufficiency of the notice; it has in such instance served its purpose. This rule applies to one who appears in a lawsuit after defective service of process upon him [citation], to one who responds to a notice of motion without adequate notice [citation]." (De Luca v. Board of Supervisors (1955) 134 Cal.App.2d 606, 609; see also Carlton v. Quint (2000) 77 Cal.App.4th 690, 697.)

Plaintiff did not make a special appearance at the hearing on the motion to contest the validity of the notice. Nor did he seek a continuance of the hearing — which had already been continued for four months to prepare opposition. Instead, he prepared and filed written opposition to the anti-SLAPP motion, which included a supporting declaration, then appeared at the scheduled hearing and presented further argument on the merits of the motion. He is therefore foreclosed from claiming that he received inadequate service or was denied a reasonable opportunity to oppose the motion. (Eliceche v. Federal Land Bank Assn., supra, 103 Cal.App.4th 1349, 1375; Carlton v. Quint, supra, 77 Cal.App.4th 690, 697-698.)

Plaintiff claims that the cases finding a waiver of defective notice are "inapposite here" because he did not fail to "object at the hearing," but rather raised the issue "at oral argument." Although we agree that plaintiff did not forfeit his claim in the trial court by failing to object, he has confused forfeiture with waiver. (See City of Hollister v. Monterey Ins. Co. (2008) 165 Cal.App.4th 455, 487.) "[F]orfeiture results from the failure to invoke a right, while waiver denotes an express relinquishment of a known right; the two are not the same." (People v. Romero (2008) 44 Cal.4th 386, 411.) Where, as here, a party appears and contests a motion in the court below, a waiver of any defects or irregularities in the notice of the motion occurs. (Eliceche v. Federal Land Bank Assn., supra, 103 Cal.App.4th 1349, 1374-1375; Pacific Std. Life Ins. Co. v. Tower Industries, Inc. (1992) 9 Cal.App.4th 1881, 1888.) And, "even when the opposing party does expressly object to the inadequate notice in its opposition papers, it may not be sufficient to preserve the issue for appeal. Instead, if the party appears at the appropriate hearing and opposes the motion on the merits — but without making any request for a continuance or demonstrating prejudice from the defective notice, the issue is waived." (Reedy v. Bussell (2007) 148 Cal.App.4th 1272, 1288-1289, italics omitted, citing Carlton v. Quint, supra, 77 Cal.App.4th 690, 697.)

In addition, the record demonstrates to us that no prejudice to plaintiff resulted from defective notice of the motion. "In order to obtain a reversal based upon such a procedural flaw, the appellant must demonstrate not only that the notice was defective, but that he or she was prejudiced. [Citations.] As explained in Lever v. Garoogian (1974) 41 Cal.App.3d 37, 40 [115 Cal.Rptr. 856], `Procedural defects which do not affect the substantial rights of the parties do not constitute reversible error. (Code Civ. Proc., § 475.)' " (Reedy v. Bussell, supra, 148 Cal.App.4th 1272, 1289, italics omitted.) The record before us negates rather than proves prejudice to plaintiff. The hearing on the anti-SLAPP motion was continued for four months, and in the interim plaintiff filed written opposition, complete with a supporting declaration, that thoroughly argued the merits of the motion. Plaintiff's counsel appeared at the hearing and presented additional argument without any specific complaint that the defective notice prevented him from more effectively contesting the motion.² Any defect in the notice was harmless to plaintiff and does not require reversal of the judgment. (Id. at pp. 1289-1290.)

II. The Statement in the Association Newsletter as a Protected Activity.

Plaintiff complains that the statements in the Association newsletter do not qualify as protected activity under section 425.16, subdivision (e). Specifically, he claims that the "small neighborhood" newsletter of a "private association" is not a "public forum," and the commentary in the newsletter does concern an issue of "public interest," as required by the statute.

"Determination of a special motion to strike involves a two-part inquiry." (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1477.) "The court first decides whether the defendant has made a threshold showing that the challenged cause of action is one `arising from' protected activity. [Citation.] The moving defendant must demonstrate that the act or acts of which the plaintiff complains were taken `in furtherance of the [defendant's] right of petition or free speech under the United States or California Constitution in connection with a public issue . . . .' [Citations.]" (Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 735.) "Such speech includes: `(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the...