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C.A. Orders Dismissed Cross-Complaint Reinstated, Then Stricken As SLAPP
Chavez Says Appeal Not Subject to Dismissal As Moot; Cross-Defendant Should Not Be Denied Attorney Fees
By a MetNews Staff Writer
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Depicted above are properties in Long Beach that are the subject of a boundary dispute. The Court of Appeal yesterday declared that a cross-complaint filed by the owner of one of the homes should have been stricken as a SLAPP, holding that the cross-complainant’s dismissal of her action while an appeal from the denial of the motion was pending was void and that the action must be reinstated, and the motion granted. |
The Court of Appeal for this district yesterday ordered that the Los Angeles Superior Court reinstate a cross-complaint that had been dismissed at the request of the pleader, and then strike it.
That way, the cross-defendant, who had made an anti-SLAPP motion, will be able to garner attorney fees as the victor on that motion, Justice Victoria M. Chavez of Div. Two explained in her unpublished opinion.
The cross action was brought by Elena D’Orio. She had been sued by her next-door neighbor, Donna Watkins, over a boundary dispute; in her cross-complaint, D’Orio sued for slander of title and intentional infliction of emotional distress.
Watkins moved under the Dori anti-SLAPP statute, Code of Civil Procedure §425.16, for an order striking the cross-complaint and, on Feb. 9, 2021, Judge Michael P. Vicencia denied it.
After Watkins appealed from that denial, D’Orio filed a request for dismissal of the cross-complaint, which the Superior Court granted. D’Orio moved in the Court of Appeal for dismissal of Watkin’s appeal, as moot, which Div. Two denied last June 10.
In yesterday’s opinion, Chavez said, with respect to mootness:
“The trial court proceedings were stayed when Watkins filed her notice of appeal on February 16, 2021, and the trial court lacked jurisdiction to dismiss D’Orio’s cross-complaint. The erroneous dismissal of the cross-complaint impacts this appeal, as it could foreclose Watkins’s ability to recover attorney fees as the prevailing party under section 415.16. Because the trial court lacked jurisdiction to dismiss the cross-complaint, that dismissal is void and does not render this appeal moot.”
First Prong
Chavez declared that the cross-complaint was founded on protected conduct, meeting the first prong of the anti-SLAPP statute.
In claiming slander of title, D’Orio claimed of a lis pendens served on her and one served on the previous owners of her property and communicated to others.
“Both acts are protected speech or petitioning activity under section 425.16 and do not come within any exception to that statutory protection,” Chavez wrote.
The first prong was also satisfied with respect to the cause of action for cross-claim for intentional infliction of emotional distress, she said, because it was predicated on those same two protected acts.
Second Prong
D’Orio cannot meet her burden under the second prong—showing a probability of prevailing on the merits—Chavez said, explaining:
“The litigation privilege accorded by Civil Code section 47 precludes any probability of D’Orio prevailing on her slander of title and intentional infliction of emotional distress cross-claims.”
Service of the lis pendens, the justice noted, falls “squarely within the protection accorded by the litigation privilege.” The case is Watkins v. D’Orio, B310902.
Watkins was represented by Woodland Hills attorney Robert C. Adler. Howard D. Hall, Jeremy T. Katz and Ryan C. Thomason of the Santa Ana firm of Hall Griffin were the attorneys on appeal for D’Orio.
Copyright 2022, Metropolitan News Company