Metropolitan News-Enterprise


Friday, December 2, 2016


Page 4


New 60-Day Period for Bringing Anti-SLAPP Motion Not Necessarily Sparked by Amended Pleading—C.A.


By a MetNews Staff Writer


The 60-day period within which to bring an anti-SLAPP motion, following service of the complaint, is not automatically triggered anew with the service of an amended pleading, the Fourth District Court of Appeal has held.

“Whether the filing of an amended complaint reopens the period for bringing an anti‑SLAPP motion depends on the basis and nature of the claims in the amended complaint,” Justice Richard D. Fybel said Wednesday in an opinion for Div. Three.

Although the court apparently announced a new rule, the opinion was not certified for publication.

Fybel declared that under the anti-SLAPP statute, Code of Civil Procedure §425.16(f), “an anti‑SLAPP motion is untimely if not filed within 60 days of service of the first complaint that pleads a cause of action coming within anti‑SLAPP protection unless the trial court, in its discretion and upon terms it deems proper, permits the motion to be filed at a later time.”

He said that Orange Superior Court Judge Deborah C. Servino correctly denied an anti-SLAPP motion with respect to causes of action in the third amended complaint for breach of written contract and breach of the implied covenant of good faith because the defendants “could have challenged those causes of action by filing an anti‑SLAPP motion to prior complaints.”

On the other hand, he found the motion was timely as to causes of action for quantum meruit and promissory estoppel “because they were new causes of action that could not have been challenged by an anti‑SLAPP motion to a prior complaint.”

Servino had also denied the anti-SLAPP motion the new causes of action based on untimeliness. While the appeals court disagreed with that basis for denial, it agreed that the motion was appropriately rejected.

The action stemmed from the settlement of an unlawful detainer action. Inasmuch as that implicated the right of petition, Fybel said, it was undisputed that the first prong of the anti-SLAPP statute was satisfied.

Turning to the second prong, not reached by Servino—whether the plaintiff showed a probability of prevailing on the causes of action—Fybel said they had.

He saw no merit in the defendants’ contention that they were time-barred, reciting that “[a]n amended complaint relates back to an earlier complaint if the amended complaint is based on the same general set of facts, even if the plaintiff alleges a different legal theory or new cause of action.”

The case is Newport Harbor Ventures v. Morris Cerullo World Evangelism, G052660.


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