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Court of Appeal:
Anti-SLAPP Motion Is Only as Timely as Supporting Papers
Opinion Says Submitting Memorandum of Points, Authorities Outside Statutory Window Turns Otherwise Prompt Request Into Late Filing
By Kimber Cooley, associate editor
Div. One of the First District Court of Appeal has held that a special motion to strike filed under California’s anti-SLAPP statute was properly denied on timeliness grounds where the request itself was submitted within the statutory 60-day window but the supporting memorandum of points and authorities was not.
Justice Charles A. Smiley authored the opinion, filed Thursday, addressing what he described as “statutory silence” as to what is required to be filed by the deadline, and said:
“[W]e hold that, where the movant files a memorandum in support of a special motion to strike separate from the motion itself, the special motion to strike is not procedurally complete and therefore is untimely unless the supporting memorandum is also filed within the statutory deadline.”
The issue was raised in a dispute over a car accident between plaintiff Simon Mora’s daughter, who was driving her father’s car, and defendant Douglas Menjivar. Mora alleges that Menjivar’s insurance company negligently mailed a repair payment directly to the body shop working on the car, and the check was promptly stolen.
Mora sued Menjivar and Consuelo Emidey Menjivar Campos after the insurer, Allstate Insurance, refused to make any further payments. On May 26, 2023, the defendants filed a cross-complaint against Mora, seeking a proportional offset for comparative fault.
On July 18, Mora filed a special motion to strike the cross-complaint under the anti-SLAPP statute found at Code of Civil Procedure §425.16. A supporting memorandum of points and authorities was filed on Aug. 22 in anticipation of the hearing, which was scheduled for September 18.
Motion Was Time-Barred
Menjivar and Campos filed an opposition arguing that the special motion was time-barred, citing §425.16(f), which provides:
“The special 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.”
They argued that the motion was incomplete until the August memorandum was filed, pointing to California Rule of Court 3.1113(a), which, subject to certain inapplicable exceptions, mandates:
“A party filing a motion…must serve and file a supporting memorandum. The court may construe the absence of a memorandum as an admission that the motion…is not meritorious and cause for its denial….” Mora relied on Code of Civil Procedure §1005(b), which says that “[u]nless otherwise…specifically provided by law, moving and supporting papers shall be served and filed at least 16 court days before the hearing,” and contends that his filing complied with this deadline.
Contra Costa Superior Court Judge John P. Devine sided with the defendants and denied the motion, saying he declined to “exercise…discretion to consider the late-filed motion” due to a concern “that the nature of the filings and their timeline were done in a manner that deliberately negated the statutory timeframes.”
Presiding Justice James M. Humes and Justice Kathleen Banke joined in yesterday’s opinion affirming the denial.
Default Deadline
Smiley noted that §1005(b) provides a “default deadline for filing motion papers” if one is not otherwise provided and concluded that §425.16(f) “clearly displaces” the rule. However, he opined:
“But neither section 1005 nor the anti-SLAPP statute expressly states whether a supporting memorandum constitutes a moving paper or is a constituent part of ‘[t]he special motion.’ This statutory silence makes it ambiguous as to how the anti-SLAPP statute applies to a separately filed memorandum in support of a special motion to strike filed outside of subdivision (f)’s 60-day deadline.”
Looking to the purpose behind the anti-SLAPP law for guidance, he said that “[t]he Legislature designed the anti-SLAPP statute to combat the chilling of free speech and petition rights through abuse of the judicial process,” but pointed out that the section’s procedural and substantive limitations also protect plaintiffs from delays.
With this history in mind, he concluded that “Mora’s view…is at odds with the anti-SLAPP statute’s design,” remarking:
“Under that approach, neither the trial court nor the non-movant may be able to analyze the motion’s scope or merits until 16 court days before the scheduled hearing, when—as occurred in this case—a flood of papers finally identifies the moving party’s position….This would frustrate the statutory deadline’s purpose to facilitate expeditious resolution of anti-SLAPP proceedings.”
In light of these considerations, he declared:
“Considering the statutory deadline’s purpose and the statutory framework as a whole, we conclude the most reasonable construction of the ‘special motion’ for purposes of the statutory deadline is inclusive of the motion’s supporting memorandum, whether filed separately or in a combined pleading.”
The jurist added:
“We do not hold that a supporting memorandum must be filed simultaneously with the notice of motion or special motion itself. We merely hold that a memorandum in support of an anti-SLAPP motion—which Mora does not dispute is required under rules 3.1112(a) and 3.1113(a)—must be filed within the anti-SLAPP statute’s statutory deadline for the special motion to be complete and therefore timely pursuant to subdivision (f).”
The case is Mora v. Menjivar, A169997.
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