R Scott Turicchi et al vs Randy Quaid et al

Case Number

19CV06268

Case Type

Hearing Date / Time

Mon, 04/08/2024 - 10:00

Nature of Proceedings

Motion: Strike

Tentative Ruling

R. Scott Turicchi, et al., v. Randall Quaid, et al.

Case No. 19CV06268

Hearing Date:         4/8/2024                                                         

HEARING:    Special Motion by the Quaids to Strike First Amended Complaint

           

ATTORNEYS:          Craig S. Granet / Claire K. Mitchell of Rimon, P.C. and Andrew W. Zepeda of Lurie, Zepeda, Schmalz, Hogan & Martin for plaintiffs R. Scott Turicchi and Lannette C. Turicchi 

Randy Quaid and Evgenia Quaid are currently in pro per

                       

TENTATIVE RULING:  

For the reasons articulated below, the Court will strike the special motion to strike, based upon its extraordinary untimeliness, finding that it would be an abuse of the Court’s discretion to hearing the motion on its merits under the circumstances which are present in this case.  

Background: This action was commenced on November 25, 2019, by the filing of the original complaint by plaintiffs R. Scott Turicchi and Lannette C. Turicchi. At that time, the complaint alleged a cause of action to quiet title in plaintiffs in property located at 1355 East Mountain Drive in Santa Barbara (¶¶ 6-10), alleging that the Turicchis obtained title to the property pursuant to a Grant Deed Recorded on August 21, 2007 (¶¶ 2, 7), that the Quaids claimed an interest in the property (¶¶ 3, 8), and sought to quiet the Turicchis’ title in the property. (Prayer, ¶ 1.) The complaint also alleged a cause of action for declaratory relief (¶¶ 11-14), seeking a declaration that the Quaids had no interest in the property. (¶ 13, Prayer ¶ 2.)

The Turicchis filed their operative First Amended Complaint (FAC) on February 14, 2022. The FAC continued to allege causes of action to quiet title and for declaratory relief, adding allegations that the Turicchis owned the property based both upon the Grant Deed, and upon the adverse possession of the property both by the Turicchis, and by the Bermans, from whom they purchased the property in 2007. (FAC @ ¶¶ 7-8, 11.) The FAC added a cause of action for slander of title, which alleged that commencing at least as of November 26, 2016, and continuing thereafter, the Quaids had “willfully, maliciously, and without privilege or justification published false and disparaging statements concerning Plaintiffs’ title to the Turicchi Property, including that Defendants, and not Plaintiffs, were the rightful owners of the Turicchi Property.” (FAC @ ¶ 17.) The cause of action then alleged that such publications impaired the marketability of the Turicchi Property, and was motivated by defendants’ malice and oppression, entitling plaintiffs to punitive damages. (¶¶ 18-19.) It prayed for damages to the marketability of the property, punitive damages, and an injunction to preclude defendants from continuing to make statements that they are the owners of the property. (FAC @ Prayer, ¶ 3.)

The Turicchis’ first and second causes of action to quiet title and for declaratory relief, as alleged in their FAC, were summarily adjudicated in their favor after hearing on March 27, 2023, leaving the cause of action for slander of title as the sole remaining claim in this action.

Subsequent to the filing of the FAC which first alleged the cause of action for slander of title, the court’s file reflects that the Quaids filed their answer and three additional amended answers to the FAC, a “Third” Amended Cross-Complaint, a Fourth Amended Cross-Complaint, a Fifth Amended Cross-Complaint, and twenty (20) individual motions, all prior to filing their current special (anti-SLAPP) motion to strike pursuant to Code of Civil Procedure section 425.16, seeking to strike the slander of title claim.

Specifically, while in pro per, during the period following the filing of the FAC containing the slander of title claim, the Quaids filed a document labeled as a First Amended Cross-Complaint on February 22, 2022 (this cross-complaint was erroneously labeled, given that the Quaids had in 2020 filed a cross-complaint and first amended cross-complaint which they dismissed on May 5, 2021, after which they subsequently filed a new pleading entitled “Cross-Complaint”—actually their Second Amended Cross-Complaint in this action—on December 27, 2021, and this pleading entitled “First Amended Cross-Complaint,” which was actually their Third Amended Cross-Complaint in this action).

The Quaids filed a motion to compel on April 1, 2022, a motion to dismiss the FAC on June 6, 2022, another motion to compel on June 10, 2022, and yet another motion to compel on June 13, 2022.

The Quaids answered the FAC on July 18, 2022. They filed a motion for change of venue on September 8, 2022, and two motions to dismiss on November 21, 2022.

On January 12, 2023, the Quaids filed an ex parte application to find R. Scott Turicchi and his counsel in contempt, to dismiss the case, or to stay the case until both Turicchi and his counsel could be deposed.

The Quaids filed two more Amended Answers to the FAC on February 14, 2023, and February 15, 2023, and filed a Fourth Amended Cross-Complaint on February 14, 2023. They filed yet another Amended Answer to the FAC on March 8, 2023, which was improperly combined (in the same document) with yet another purported Fourth Amended Cross-Complaint. The Quaids also filed two separate motions for reconsideration on March 23, 2023.

The Duane Morris LLP firm substituted into the case on the Quaids’ behalf on April 4, 2023, at which time they also filed a motion to continue all pending deadlines dates.

The Duane Morris firm filed a Fifth Amended Cross-Complaint (technically their Sixth Amended Cross-Complaint in the action) on the Quaids’ behalf on May 8, 2023. On July 11, 2023, the Quaids filed an ex parte application to strike evidence in a request for judicial notice submitted in support of demurrers to their Fifth Amended Cross-Complaint. The Quaids dismissed their Fifth Amended Cross-Complaint on July 19, 2023, while multiple demurrers and motions to strike directed to the Fifth Amended Cross-Complaint were pending.

On August 14, 2023, the Quaids filed a motion to stay the deposition of Dennis Quaid and quash the deposition notice. On August 31, 2023, the Quaids filed a motion for relief from improperly filed evidence, as well as a motion for judgment on the pleadings. On September 5, 2023, the Quaids filed both a motion to continue trial, and a separate motion to compel. On September 8, 2023, the Quaids filed a motion to quash five deposition subpoenas for production of business records. The Quaids filed a motion to compel further discovery responses on October 5, 2023, and filed an ex parte application on October 11, 2023, seeking to advance the hearing on that motion to compel. On October 18, 2023, the Quaids filed a motion to stay the deposition of Bruce Berman and quash the deposition notice.

The mere presence of multiple motions to compel, motions to stay depositions, and motions to quash deposition notices and records subpoenas—although indicates that substantial discovery was also being conducted by the parties during this period, although the number of discovery motions cannot accurately capture the extent of that discovery (especially given that the Court has only identified the motions filed by the Quaids, and not those filed by any other party).

The current special (anti-SLAPP) motion to strike was filed on January 16, 2024, at which time the Quaids set the motion for hearing on March 18, 2024.

On January 22, 2024, the Turicchis filed an ex parte application to strike the anti-SLAPP motion as untimely. The Quaids opposed the ex parte application, asserting, among other things, that the motion should stay on calendar, and that the Turicchis could argue its untimeliness in their opposition. The Court denied the ex parte motion to strike the anti-SLAPP motion on January 23, 2024, and directed that the motion stay on calendar for March 18, 2024. In doing so, the Court made clear that the issue of the untimeliness of the motion was still before the court, and would be determined at the hearing—preferring to address the issue in a context other than via an ex parte hearing.

The Duane Morris LLP law firm substituted out of the case through Substitution of Attorney forms filed on February 16, 2024. At that time, attorney John Pierce substituted into the case on the Quaids’ behalf. The Substitution of Attorney forms filed with the court contain e-signatures.

The Turicchis filed their opposition to the anti-SLAPP motion on March 6, 2024. In accordance with the trial court’s prior ruling, the Turicchis continued to contend that the Quaids’ anti-SLAPP motion was untimely, as well as addressing the merits of the motion.

On March 7, 2024 and March 8, 2024, the Duane Morris LLP firm filed two separate motions for summary judgment, setting their hearings for May 20, 2024, and June 3, 2024, respectively—although they had substituted out of the action on February 16, 2024, and were no longer counsel of record for the Quaids at the time the motions were filed.

On March 11, 2024, the Duane Morris LLP firm filed reply papers with respect to their special motion to strike—again filing the reply after they had substituted out of the action on the Quaids’ behalf, and were no longer counsel of record for the Quaids in this case.

On March 12, 2024, attorney John Pierce substituted out of the case on behalf of the Quaids, once again leaving the Quaids to represent themselves in this action. Once again, the Substitution of Attorney forms filed with the court contain e-signatures.

On March 13, 2024, the Turicchis filed an objection to points raised by the Quaids for the first time in their reply papers.

Prior to the scheduled March 18, 2024 hearing date, the Court continued the hearing on its own motion, rescheduling it for April 8, 2024.

Trial is currently scheduled for June 24, 2024.

ANALYSIS: The Court will order the special motion to strike stricken, finding that to permit it to go forward on its merits at this time and under the circumstances presented by this action, would constitute a gross abuse of this Court’s discretion. As a result, the Court will not address or reach the merits of the motion.

1.         Special Motions to Strike

Code of Civil Procedure section 425.16 provides, in relevant parts:

 

(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

 

(b)(1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

 

(2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

 

(3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.

 

* * *

 

(e) As used in this section, “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: . . . (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

 

(f) 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. . . .

 

* * *

 

The overarching objective of the anti-SLAPP statute is to prevent and deter lawsuits chilling speech and petition rights. (Hewlett-Packard Co. v. Oracle Corporation (2015) 239 Cal.App.4th 1174, 1188, [Hewlett-Packard], 1188, citing Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192 [Varian].) “Because these meritless lawsuits seek to deplete ‘the defendant’s energy’ and drain ‘his or her resources’ [citation], the Legislature sought ‘”to prevent SLAPPs by ending them early and without great cost to the SLAPP target.’ [citation]. Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary judgment-like procedure at an early stage of the litigation. [Citation.]” (Ibid [Italics added to Varian quote by the Hewlett-Packard court.].)

 

The Legislature’s intended target, in enacting Section 425.16, was the so-called “Strategic Lawsuit Against Public Participation, or SLAPP,” which is a civil lawsuit “aimed at preventing citizens from exercising their political rights or punishing those who have done so.” “While SLAPP suits masquerade as ordinary lawsuits. . . , they are generally meritless suits brought primarily to chill the exercise of free speech or petition rights by the threat of severe economic sanction against the defendant, and not to vindicate a legally cognizable right.” (Hewlett-Packard, supra, 239 Cal.App.4th at p. 1183.) While the archetypal SLAPP would be an action in which a developer sues neighborhood activists for having spoken out against the developer’s project in some public forum, the statute sweeps far beyond this paradigm, reaching any lawsuit or claim found to have arisen from protected activity, whether or not the activities or the litigation have any connection to an issue of public significance or interest, or to anything that might plausibly be labeled as public participation. (Id., p. 1184.) As a result of the overbreadth, the courts have seen far more anti-SLAPP motions in garden-variety civil disputes than in cases representing the paradigm. (Ibid.)

 

A major reason for this explosion is that the statute rewards the filer of an unsuccessful anti-SLAPP motion with what one court has called a ‘free time-out’ from further litigation in the trial court, by entitling the unsuccessful movant to immediately appeal the denial of such a motion—even one which lacks merit or which is heard well into the lawsuit. (Id., at pp. 1184-1185.) Such an appeal automatically stays all further proceedings on causes of action “affected by the motion.” (Varian, supra, 35 Cal.4th at p. 195, fn. 8.) As a result, even the most unsound anti-SLAPP motion will typically stope the entire lawsuit dead in its tracks until an appellate court completes its review, causing the plaintiff to expend further unnecessary attorney fees. (Hewlett-Packard, supra, 239 Cal.App.4th at p. 1185.)

 

Section 425.16(f) was intended to limit such abuse, by requiring that a special motion be filed within 60 days of service of the complaint or, in the court’s discretion, at any time later upon terms it deems proper. Consequently, a defendant may only file an anti-SLAPP motion as a matter of right if it is filed within 60 days of service of the pleading containing the challenged claim, and a trial court need not entertain, but can instead refuse to hear, a motion filed outside the 60 days. (Hewlett-Packard, supra, 239 Cal.App.4th at p. 1186.) An order which denies leave to file the motion, or an order which strikes an anti-SLAPP motion as untimely and unsupported by sufficient cause to permit late filing, is not immediately appealable under the statute. (Id. at pp. 1186-1187.)

 

Courts have identified two ways in which a refusal to entertain a late anti-SLAPP motion might be shown to constitute the abuse of a trial court’s discretion: (1) If the grounds given by the court are inconsistent with the substantive law of section 425.16, and (2) if the court’s application of the statute to the facts of the case is outside the range of discretion conferred upon the trial court under the statute, read in light of its purposes and policy. (Hewlett-Packard, supra, 239 Cal.App.4th at p. 1187, citing Olsen v. Harbison (2005) 134 Cal.App.4th 278, 285.) A trial court abuses its discretion by failing to entertain a late anti-SLAPP motion only if the party filing the motion demonstrates that the trial court applied the statute in a manner that is incompatible either with the statute’s actual mandate, or with its “purposes and policy.” (Id., at p. 1188.)

 

A trial court must be wary about freely granting a party the right to file an anti-SLAPP motion past the 60-day deadline, and in determining whether to permit a late motion, the most important consideration is whether the filing advances the anti-SLAPP statute’s purpose of examining the merits of covered lawsuits at the early stages of the proceedings. (Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 775-776, 782-787, 787.) Other relevant factors may include the length of the delay, the reasons for the late filing, and any undue prejudice to the plaintiff. (Id. at p. 787.)

 

A late anti-SLAPP motion cannot fulfill the statutory purpose if it is not brought until after the parties have incurred substantial expense. Recognition of this fact is implicit in the 60-day requirement, which entitles a defendant to use the statute’s “special” procedure only by bringing he motion early enough to avoid the cost of resolving the case by more conventional means. (Id at pp. 1188-1189.) As the Hewlett-Packard court continued to explain:

 

“By failing to act within this time, a defendant incurs costs—and permits the plaintiff to incur costs—that a timely motion might be able to avert. As these costs accumulate in the course of conventional discovery and motion practice, the capacity of an anti–SLAPP motion to satisfy the statutory purpose diminishes. And as the utility of the motion diminishes, so does the justification for the statute's deviations from more conventional modes of disposition. It is therefore to be expected that every case will come to a point beyond which an anti–SLAPP motion simply cannot perform its intended function. If such a motion is untimely—as it will be in the absence of some event which has reopened the 60–day period—the trial court cannot abuse its discretion by refusing to hear it.” (Hewlett-Packard, supra, 239 Cal.App.4th at p. 1189.)

 

In Hewlett-Packard, the motion was brought 618 days after the 60-day period had began to run, and 558 days after it ended, after conclusion of the liability phase of trial, and the motion was heard on the last day before commencement of the second (damages) phase of trial. Defendant attempted to justify the motion’s late filing by arguing that plaintiff had changed its damages theory after defendant had announced its intent to appeal the trial court’s determination on liability, which it contended constituted a protected activity under the anti-SLAPP statute. The Court of Appeal stated that it had found no authority suggesting that a defendant may be entitled to have an anti-SLAPP motion heard after such a delay, and in fact much shorter lapses of time had been held to justify a refusal to entertain anti-SLAPP motions on their merits. (Ibid.)

 

Importantly, the Hewlitt-Packard case expressly found that even the presentation of an excuse for not bringing such a motion sooner does not oblige a trial court to entertain the motion on its merits, and its refusal to do so would not constitute an abuse of discretion. Rather, it stated:

 

“The justification for the statute's extraordinary procedures must rest on the actual utility of the procedure in particular cases. As we have said, where the parties have already incurred substantial expense and the case has progressed to its later stages, it is almost certain to be too late for the motion to accomplish any legitimate purpose. No showing of blamelessness or justification on the part of the defendant can restore what time has destroyed. All the motion can accomplish is delay.” (Hewlett-Packard, supra, 239 Cal.App.4th at p. 1192. [Italics in original; underline added.])

 

In Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 722, discussed by the Hewlett-Packard court, two years had elapsed between the filing of the complaint and defendant’s application for leave to file a late anti-SLAPP motion. The trial court granted the application and heard the motion on its merits, but denied it on its merits. The Platypus court affirmed the result, but found that the trial court had abused its discretion by deciding to hear the motion on its merits.

 

In San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, a defendant filed an anti-SLAPP motion approximately 16 months after the plaintiff had filed its first amended complaint. The trial court denied the motion because it found plaintiff had met its burden of showing a probability of prevailing on the merits of its claim. Similar to the result in Platypus, supra, the Court of Appeal in San Diegans for Open Government affirmed the trial court’s ruling, partially on the ground that the motion was untimely (and partially on the ground that the plaintiff’s claims fell within the public interest exemption set forth in Section 425.16(b)).

 

San Diegans for Open Government was a taxpayers action filed against contractors involved in construction projects for the Sweetwater Union High School district, contending that the District superintendent and several of its board members were “financially interested” public works contracts, and seeking to invalidate the contracts as void. Several months later, plaintiff filed a first amended complaint. Fourteen (14) months later, plaintiff and the District entered into a stipulation to change the District’s status from defendant to a real party in interest. One of the contractors then filed a motion to strike the stipulation and the order thereon, but the trial court denied the motion, finding that the change of party status effected no substantive change and did not prejudice that defendant. Two months later, the contractor filed its anti-SLAPP motion with respect to plaintiff’s first amended complaint, contending that plaintiff’s claims arose from defendant’s political contributions and statements made to District officials regarding the contract review and award process, and that those activities were “quintessential rights of free speech and petition protected by the Anti-SLAPP statute.”

 

The trial court found the motion timely, because it was made within 60 days of the parties’ stipulation changing the District’s status from defendant to RPI. The contractor made clear that the primary reason it waited to bring its motion until after the stipulation was that it believed the plaintiff could no longer prevail on an argument that private enforcement was necessary, which is a required element to establish the applicability of the statutory public interest exception under Section 425.17(b)(3). The Court of Appeal found the motion untimely, holding that because an anti-SLAPP motion seeks to preclude the litigation at the outset of the filing, the issue whether private enforcement was necessary must be viewed at that time. (San Diegans, supra 240 Cal.App.4th at p. 625.) The Court stated:

 

“The fact that circumstances may change cannot logically provide a basis for bringing a late anti-SLAPP motion. An anti-SLAPP motion is not a vehicle for a defendant to obtain a dismissal of claims in the middle of litigation; it is a procedural device to prevent costly, unmeritorious litigation at the initiation of the lawsuit. When a case has been pending long after the 60-day period, the parties have presumably engaged in pretrial litigation and the purposes of an anti-SLAPP motion are no longer applicable. . . . At that point, the parties were free to bring other dispositive motions (e.g., a motion for summary judgment or judgment on the pleadings), but the procedurally complex anti-SLAPP statutory scheme was no longer available.” (San Diegans, supra, 240 Cal.App.4th at pp. 625-626 [emphasis added].)

 

If timely filed, “[r]esolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by [Code of Civil Procedure] 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 procedure.’ [Citation, fn.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’ [Citation.]” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384–385.)

 

2.         Application

Under the circumstances present in this case, the Court finds that any consideration of the merits of the Quaids’ special motion to strike at this late date would thwart the purposes of the anti-SLAPP statutory scheme. Because the

 

The FAC which first contained the slander of title cause of action was filed and served on February 14, 2022. The 60-day period within which a special motion to strike under Code of Civil Procedure section 425.16 would be presumptively timely therefore expired on April 15, 2022. From that date forward, the special motion to strike could be permitted to go forward on its merits only upon an exercise of the trial court’s discretion.

In the period of time between the filing of the FAC and the filing of the special motion, the Quaids filed four (4) amended cross-complaints (an erroneously entitled First Amended Cross-Complaint, two Fourth Amended Cross-Complaints, and one Fifth Amended Cross-Complaint), four (4) answers and amended answers to the FAC, and twenty (20) separate motions seeking affirmative relief. Many of those motions were related to discovery issues, indicating that considerable discovery was conducted by the parties during that period. Of course, a numerical total of discovery motions filed by only one party does not in any way accurately depict the nature and scope of discovery which has been conducted in any case; in this case it merely can verify that considerable discovery was conducted. The court’s docket reveals that literally hundreds of documents were filed between the time of the filing of the FAC on February 14, 2022, and when the special motion was ultimately filed. It is reasonable for this Court to conclude that the parties have expended many tens of thousands of dollars—if not multiple hundreds of thousands of dollars—litigating this action during this period of time.

The Quaids’ special motion to strike was filed on January 16, 2024, slightly more than 23 months after the FAC was filed, and was initially set for hearing by the Quaids on March 18, 2024, more than 25 months after the FAC was filed. The motion was not filed until some 641 days after the expiration of the presumptively-timely 60 day period, and 701 days after the filing of the FAC.

The special motion to strike itself made no attempt to support the timeliness of the motion, other than to comment in the background section of the memorandum in support of the motion that it was not until October of 2023 that the Turicchis produced screenshots from social media sites which they claimed constituted actionable slander of title. The motion provided a partial quote from Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1396, with respect to the intent of California’s anti-SLAPP statute being to “eliminate meritless or retaliatory litigation,” while rather deceptively omitting the remainder of the quote, which continued “at an early stage of the proceedings.”

In their opposition, the Turicchis continued to object to the timeliness of the special motion to strike, noting that the motion’s only excuse for why it was not timely filed was that production of documents was not made until October 6, 2023, but assert this did not justify the late filing—particularly since the motion was not filed until 98 days later. The Turicchis further note that they also provided answers to special interrogatories on September 5, 2023, which provided information on the nature of their slander of title claim, more than four months before the motion was filed. The Turicchis proceeded to contend that it is an abuse of discretion to permit the filing of an anti-SLAPP motion after a substantial amount of discovery has been conducted (citing Platypus Wear, Inc. v. Goldberg, supra), asserting further that when the parties have incurred substantial expense and the case has progressed to its later stages, it is too late for the motion to accomplish any legitimate purpose (citing Hewlett-Packard, supra). Finally, in determining whether a late motion should be permitted, the most important consideration is whether doing so would advance the statute’s purpose of examining the merits of covered lawsuits in the early stages of the proceedings, citing San Diegans for Open Government, supra.

In their reply, the Quaids improperly cited an unpublished appellate case, in their belated attempt to justify their filing of the special motion to strike years after the filing of the pleading containing the claim they now challenge, after the parties’ expenditure of vast amounts of time and attorneys’ fees, and when the trial of the action is imminent. Specifically, their reply referred to Csaszi v. Punaro, 2007 WL 902314, in which a trial court was found not to have abused its discretion when it allowed an anti-SLAPP motion to be filed after receipt of discovery responses caused counsel to realize that Section 425.16 might apply. While their reply notes that “unpublished cases are preferred not to be cited in briefs (emphasis added), this is not the law. Rather, pursuant to California Rules of Court, Rule 8.115, subds. (a) and (b), except under very limited exceptions (which do not apply here), a party “must not” cite a case that is not certified for publication. Consequently, counsel has violated the California Rules of Court in doing so. Further, counsel misrepresented the circumstances of the case itself, falsely contending that a trial court was found not to have abused its discretion when it permitted an anti-SLAPP motion to be filed 282 days after service of the complaint. In truth, the motion was filed 5.5 months (167 days) after the filing of the complaint, but was not heard by the trial court due to calendar congestion issues until 283 days later.

Consequently, not only was it legally impermissibly for counsel to cite to the case, its true facts do not provide any justification for permitting their extraordinarily late-filed motion (filed 701 days after the FAC was filed, and after massive expenditure of time, effort, and fees by the parties in this action). Further, even if the decision provided nominal support for the Quaids’ position, it was decided long prior to the decisions in Hewlett-Packard Co. v. Oracle Corporation (2015) 239 Cal.App.4th 1174, and San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, which make clear that the most important consideration in determining whether to permit an anti-SLAPP motion filed past the 60-day deadline is whether it advances the statute’s purpose of examining the merits of covered lawsuits at the early stages of the proceedings, and that even where there exists some excuse why the motion could not have been earlier filed, the motion should not be entertained by the trial court at such a time when the elapsed time and the expense which has been incurred precludes the motion from performing its intended function.

This Court agrees with the Turicchis, and finds that it is much too late for the motion to serve any legitimate purpose, and that even the relatively week excuse that the Turicchis did not confirm the factual basis for the slander of title claim until discovery responses were received in September and October of 2023, does not justify hearing the motion on its merits now more than 2 years beyond the filing and service of the pleading first containing the claim and only three months before trial, after considerable effort has been made and considerable expense has been incurred by the parties. As the court expressly stated in Hewlett-Packard, supra, “where the parties have already incurred substantial expense and the case has progressed to its later stages, it is almost certain to be too late for the motion to accomplish any legitimate purpose. No showing of blamelessness or justification on the part of the defendant can restore what time has destroyed. All the motion can accomplish is delay.” (Hewlett-Packard, supra, 239 Cal.App.4th at p. 1192.)

Far more has occurred in this case than occurred in Platypus Wear, Inc., supra, in a very similar time frame, yet that court found it to have been an abuse of discretion for the trial court to have heard the motion on its merits at all. Here, too, the Court cannot simply ignore the massive investment of time, effort, and expense by the parties since the filing of the FAC containing the slander of title cause of action, particularly given that the trial of the action is now less than three months’ away. Hearing the motion on its merits at this extraordinarily late date would actively thwart the purposes of the anti-SLAPP statutory scheme, rather than promote them. That the Quaids have attempted to justify their belatedly-filed motion—albeit weakly—does not alter the conclusion that it would be an abuse of this Court’s discretion to hear the motion on its merits, under the circumstances which exist in this case.

The Court will therefore strike the Quaids’ special anti-SLAPP motion to strike, based upon its extraordinary untimeliness. The Court therefore does not reach, and will not consider, the merits of the Section 425.16 motion.

Hearing Date:         4/8/2024                                                         

HEARING:    Special Motion by the Quaids to Strike First Amended Complaint

           

ATTORNEYS:          Craig S. Granet / Claire K. Mitchell of Rimon, P.C. and Andrew W.

Zepeda of Lurie, Zepeda, Schmalz, Hogan & Martin for plaintiffs

R. Scott Turicchi and Lannette C. Turicchi

                                    Randy Quaid and Evgenia Quaid are currently in pro per

                       

TENTATIVE RULING:  For the reasons articulated below, the Court will strike the special motion to strike, based upon its extraordinary untimeliness, finding that it would be an abuse of the Court’s discretion to hearing the motion on its merits under the circumstances which are present in this case.  

Background: This action was commenced on November 25, 2019, by the filing of the original complaint by plaintiffs R. Scott Turicchi and Lannette C. Turicchi. At that time, the complaint alleged a cause of action to quiet title in plaintiffs in property located at 1355 East Mountain Drive in Santa Barbara (¶¶ 6-10), alleging that the Turicchis obtained title to the property pursuant to a Grant Deed Recorded on August 21, 2007 (¶¶ 2, 7), that the Quaids claimed an interest in the property (¶¶ 3, 8), and sought to quiet the Turicchis’ title in the property. (Prayer, ¶ 1.) The complaint also alleged a cause of action for declaratory relief (¶¶ 11-14), seeking a declaration that the Quaids had no interest in the property. (¶ 13, Prayer ¶ 2.)

The Turicchis filed their operative First Amended Complaint (FAC) on February 14, 2022. The FAC continued to allege causes of action to quiet title and for declaratory relief, adding allegations that the Turicchis owned the property based both upon the Grant Deed, and upon the adverse possession of the property both by the Turicchis, and by the Bermans, from whom they purchased the property in 2007. (FAC @ ¶¶ 7-8, 11.) The FAC added a cause of action for slander of title, which alleged that commencing at least as of November 26, 2016, and continuing thereafter, the Quaids had “willfully, maliciously, and without privilege or justification published false and disparaging statements concerning Plaintiffs’ title to the Turicchi Property, including that Defendants, and not Plaintiffs, were the rightful owners of the Turicchi Property.” (FAC @ ¶ 17.) The cause of action then alleged that such publications impaired the marketability of the Turicchi Property, and was motivated by defendants’ malice and oppression, entitling plaintiffs to punitive damages. (¶¶ 18-19.) It prayed for damages to the marketability of the property, punitive damages, and an injunction to preclude defendants from continuing to make statements that they are the owners of the property. (FAC @ Prayer, ¶ 3.)

The Turicchis’ first and second causes of action to quiet title and for declaratory relief, as alleged in their FAC, were summarily adjudicated in their favor after hearing on March 27, 2023, leaving the cause of action for slander of title as the sole remaining claim in this action.

Subsequent to the filing of the FAC which first alleged the cause of action for slander of title, the court’s file reflects that the Quaids filed their answer and three additional amended answers to the FAC, a “Third” Amended Cross-Complaint, a Fourth Amended Cross-Complaint, a Fifth Amended Cross-Complaint, and twenty (20) individual motions, all prior to filing their current special (anti-SLAPP) motion to strike pursuant to Code of Civil Procedure section 425.16, seeking to strike the slander of title claim.

Specifically, while in pro per, during the period following the filing of the FAC containing the slander of title claim, the Quaids filed a document labeled as a First Amended Cross-Complaint on February 22, 2022 (this cross-complaint was erroneously labeled, given that the Quaids had in 2020 filed a cross-complaint and first amended cross-complaint which they dismissed on May 5, 2021, after which they subsequently filed a new pleading entitled “Cross-Complaint”—actually their Second Amended Cross-Complaint in this action—on December 27, 2021, and this pleading entitled “First Amended Cross-Complaint,” which was actually their Third Amended Cross-Complaint in this action).

The Quaids filed a motion to compel on April 1, 2022, a motion to dismiss the FAC on June 6, 2022, another motion to compel on June 10, 2022, and yet another motion to compel on June 13, 2022.

The Quaids answered the FAC on July 18, 2022. They filed a motion for change of venue on September 8, 2022, and two motions to dismiss on November 21, 2022.

On January 12, 2023, the Quaids filed an ex parte application to find R. Scott Turicchi and his counsel in contempt, to dismiss the case, or to stay the case until both Turicchi and his counsel could be deposed.

The Quaids filed two more Amended Answers to the FAC on February 14, 2023, and February 15, 2023, and filed a Fourth Amended Cross-Complaint on February 14, 2023. They filed yet another Amended Answer to the FAC on March 8, 2023, which was improperly combined (in the same document) with yet another purported Fourth Amended Cross-Complaint. The Quaids also filed two separate motions for reconsideration on March 23, 2023.

The Duane Morris LLP firm substituted into the case on the Quaids’ behalf on April 4, 2023, at which time they also filed a motion to continue all pending deadlines dates.

The Duane Morris firm filed a Fifth Amended Cross-Complaint (technically their Sixth Amended Cross-Complaint in the action) on the Quaids’ behalf on May 8, 2023. On July 11, 2023, the Quaids filed an ex parte application to strike evidence in a request for judicial notice submitted in support of demurrers to their Fifth Amended Cross-Complaint. The Quaids dismissed their Fifth Amended Cross-Complaint on July 19, 2023, while multiple demurrers and motions to strike directed to the Fifth Amended Cross-Complaint were pending.

On August 14, 2023, the Quaids filed a motion to stay the deposition of Dennis Quaid and quash the deposition notice. On August 31, 2023, the Quaids filed a motion for relief from improperly filed evidence, as well as a motion for judgment on the pleadings. On September 5, 2023, the Quaids filed both a motion to continue trial, and a separate motion to compel. On September 8, 2023, the Quaids filed a motion to quash five deposition subpoenas for production of business records. The Quaids filed a motion to compel further discovery responses on October 5, 2023, and filed an ex parte application on October 11, 2023, seeking to advance the hearing on that motion to compel. On October 18, 2023, the Quaids filed a motion to stay the deposition of Bruce Berman and quash the deposition notice.

The mere presence of multiple motions to compel, motions to stay depositions, and motions to quash deposition notices and records subpoenas—although indicates that substantial discovery was also being conducted by the parties during this period, although the number of discovery motions cannot accurately capture the extent of that discovery (especially given that the Court has only identified the motions filed by the Quaids, and not those filed by any other party).

The current special (anti-SLAPP) motion to strike was filed on January 16, 2024, at which time the Quaids set the motion for hearing on March 18, 2024.

On January 22, 2024, the Turicchis filed an ex parte application to strike the anti-SLAPP motion as untimely. The Quaids opposed the ex parte application, asserting, among other things, that the motion should stay on calendar, and that the Turicchis could argue its untimeliness in their opposition. The Court denied the ex parte motion to strike the anti-SLAPP motion on January 23, 2024, and directed that the motion stay on calendar for March 18, 2024. In doing so, the Court made clear that the issue of the untimeliness of the motion was still before the court, and would be determined at the hearing—preferring to address the issue in a context other than via an ex parte hearing.

The Duane Morris LLP law firm substituted out of the case through Substitution of Attorney forms filed on February 16, 2024. At that time, attorney John Pierce substituted into the case on the Quaids’ behalf. The Substitution of Attorney forms filed with the court contain e-signatures.

The Turicchis filed their opposition to the anti-SLAPP motion on March 6, 2024. In accordance with the trial court’s prior ruling, the Turicchis continued to contend that the Quaids’ anti-SLAPP motion was untimely, as well as addressing the merits of the motion.

On March 7, 2024 and March 8, 2024, the Duane Morris LLP firm filed two separate motions for summary judgment, setting their hearings for May 20, 2024, and June 3, 2024, respectively—although they had substituted out of the action on February 16, 2024, and were no longer counsel of record for the Quaids at the time the motions were filed.

On March 11, 2024, the Duane Morris LLP firm filed reply papers with respect to their special motion to strike—again filing the reply after they had substituted out of the action on the Quaids’ behalf, and were no longer counsel of record for the Quaids in this case.

On March 12, 2024, attorney John Pierce substituted out of the case on behalf of the Quaids, once again leaving the Quaids to represent themselves in this action. Once again, the Substitution of Attorney forms filed with the court contain e-signatures.

On March 13, 2024, the Turicchis filed an objection to points raised by the Quaids for the first time in their reply papers.

Prior to the scheduled March 18, 2024 hearing date, the Court continued the hearing on its own motion, rescheduling it for April 8, 2024.

Trial is currently scheduled for June 24, 2024.

ANALYSIS: The Court will order the special motion to strike stricken, finding that to permit it to go forward on its merits at this time and under the circumstances presented by this action, would constitute a gross abuse of this Court’s discretion. As a result, the Court will not address or reach the merits of the motion.

1.         Special Motions to Strike

Code of Civil Procedure section 425.16 provides, in relevant parts:

(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

(b)(1) A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

(2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

(3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.

* * *

(e) As used in this section, “act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue” includes: . . . (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.

(f) 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. . . .

* * *

The overarching objective of the anti-SLAPP statute is to prevent and deter lawsuits chilling speech and petition rights. (Hewlett-Packard Co. v. Oracle Corporation (2015) 239 Cal.App.4th 1174, 1188, [Hewlett-Packard], 1188, citing Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192 [Varian].) “Because these meritless lawsuits seek to deplete ‘the defendant’s energy’ and drain ‘his or her resources’ [citation], the Legislature sought ‘”to prevent SLAPPs by ending them early and without great cost to the SLAPP target.’ [citation]. Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary judgment-like procedure at an early stage of the litigation. [Citation.]” (Ibid [Italics added to Varian quote by the Hewlett-Packard court.].)

The Legislature’s intended target, in enacting Section 425.16, was the so-called “Strategic Lawsuit Against Public Participation, or SLAPP,” which is a civil lawsuit “aimed at preventing citizens from exercising their political rights or punishing those who have done so.” “While SLAPP suits masquerade as ordinary lawsuits. . . , they are generally meritless suits brought primarily to chill the exercise of free speech or petition rights by the threat of severe economic sanction against the defendant, and not to vindicate a legally cognizable right.” (Hewlett-Packard, supra, 239 Cal.App.4th at p. 1183.) While the archetypal SLAPP would be an action in which a developer sues neighborhood activists for having spoken out against the developer’s project in some public forum, the statute sweeps far beyond this paradigm, reaching any lawsuit or claim found to have arisen from protected activity, whether or not the activities or the litigation have any connection to an issue of public significance or interest, or to anything that might plausibly be labeled as public participation. (Id., p. 1184.) As a result of the overbreadth, the courts have seen far more anti-SLAPP motions in garden-variety civil disputes than in cases representing the paradigm. (Ibid.)

A major reason for this explosion is that the statute rewards the filer of an unsuccessful anti-SLAPP motion with what one court has called a ‘free time-out’ from further litigation in the trial court, by entitling the unsuccessful movant to immediately appeal the denial of such a motion—even one which lacks merit or which is heard well into the lawsuit. (Id., at pp. 1184-1185.) Such an appeal automatically stays all further proceedings on causes of action “affected by the motion.” (Varian, supra, 35 Cal.4th at p. 195, fn. 8.) As a result, even the most unsound anti-SLAPP motion will typically stope the entire lawsuit dead in its tracks until an appellate court completes its review, causing the plaintiff to expend further unnecessary attorney fees. (Hewlett-Packard, supra, 239 Cal.App.4th at p. 1185.)

Section 425.16(f) was intended to limit such abuse, by requiring that a special motion be filed within 60 days of service of the complaint or, in the court’s discretion, at any time later upon terms it deems proper. Consequently, a defendant may only file an anti-SLAPP motion as a matter of right if it is filed within 60 days of service of the pleading containing the challenged claim, and a trial court need not entertain, but can instead refuse to hear, a motion filed outside the 60 days. (Hewlett-Packard, supra, 239 Cal.App.4th at p. 1186.) An order which denies leave to file the motion, or an order which strikes an anti-SLAPP motion as untimely and unsupported by sufficient cause to permit late filing, is not immediately appealable under the statute. (Id. at pp. 1186-1187.)

Courts have identified two ways in which a refusal to entertain a late anti-SLAPP motion might be shown to constitute the abuse of a trial court’s discretion: (1) If the grounds given by the court are inconsistent with the substantive law of section 425.16, and (2) if the court’s application of the statute to the facts of the case is outside the range of discretion conferred upon the trial court under the statute, read in light of its purposes and policy. (Hewlett-Packard, supra, 239 Cal.App.4th at p. 1187, citing Olsen v. Harbison (2005) 134 Cal.App.4th 278, 285.) A trial court abuses its discretion by failing to entertain a late anti-SLAPP motion only if the party filing the motion demonstrates that the trial court applied the statute in a manner that is incompatible either with the statute’s actual mandate, or with its “purposes and policy.” (Id., at p. 1188.)

A trial court must be wary about freely granting a party the right to file an anti-SLAPP motion past the 60-day deadline, and in determining whether to permit a late motion, the most important consideration is whether the filing advances the anti-SLAPP statute’s purpose of examining the merits of covered lawsuits at the early stages of the proceedings. (Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 775-776, 782-787, 787.) Other relevant factors may include the length of the delay, the reasons for the late filing, and any undue prejudice to the plaintiff. (Id. at p. 787.)

A late anti-SLAPP motion cannot fulfill the statutory purpose if it is not brought until after the parties have incurred substantial expense. Recognition of this fact is implicit in the 60-day requirement, which entitles a defendant to use the statute’s “special” procedure only by bringing he motion early enough to avoid the cost of resolving the case by more conventional means. (Id at pp. 1188-1189.) As the Hewlett-Packard court continued to explain:

“By failing to act within this time, a defendant incurs costs—and permits the plaintiff to incur costs—that a timely motion might be able to avert. As these costs accumulate in the course of conventional discovery and motion practice, the capacity of an anti–SLAPP motion to satisfy the statutory purpose diminishes. And as the utility of the motion diminishes, so does the justification for the statute's deviations from more conventional modes of disposition. It is therefore to be expected that every case will come to a point beyond which an anti–SLAPP motion simply cannot perform its intended function. If such a motion is untimely—as it will be in the absence of some event which has reopened the 60–day period—the trial court cannot abuse its discretion by refusing to hear it.” (Hewlett-Packard, supra, 239 Cal.App.4th at p. 1189.)

In Hewlett-Packard, the motion was brought 618 days after the 60-day period had began to run, and 558 days after it ended, after conclusion of the liability phase of trial, and the motion was heard on the last day before commencement of the second (damages) phase of trial. Defendant attempted to justify the motion’s late filing by arguing that plaintiff had changed its damages theory after defendant had announced its intent to appeal the trial court’s determination on liability, which it contended constituted a protected activity under the anti-SLAPP statute. The Court of Appeal stated that it had found no authority suggesting that a defendant may be entitled to have an anti-SLAPP motion heard after such a delay, and in fact much shorter lapses of time had been held to justify a refusal to entertain anti-SLAPP motions on their merits. (Ibid.)

Importantly, the Hewlitt-Packard case expressly found that even the presentation of an excuse for not bringing such a motion sooner does not oblige a trial court to entertain the motion on its merits, and its refusal to do so would not constitute an abuse of discretion. Rather, it stated:

“The justification for the statute's extraordinary procedures must rest on the actual utility of the procedure in particular cases. As we have said, where the parties have already incurred substantial expense and the case has progressed to its later stages, it is almost certain to be too late for the motion to accomplish any legitimate purpose. No showing of blamelessness or justification on the part of the defendant can restore what time has destroyed. All the motion can accomplish is delay.” (Hewlett-Packard, supra, 239 Cal.App.4th at p. 1192. [Italics in original; underline added.])

In Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 722, discussed by the Hewlett-Packard court, two years had elapsed between the filing of the complaint and defendant’s application for leave to file a late anti-SLAPP motion. The trial court granted the application and heard the motion on its merits, but denied it on its merits. The Platypus court affirmed the result, but found that the trial court had abused its discretion by deciding to hear the motion on its merits.

In San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, a defendant filed an anti-SLAPP motion approximately 16 months after the plaintiff had filed its first amended complaint. The trial court denied the motion because it found plaintiff had met its burden of showing a probability of prevailing on the merits of its claim. Similar to the result in Platypus, supra, the Court of Appeal in San Diegans for Open Government affirmed the trial court’s ruling, partially on the ground that the motion was untimely (and partially on the ground that the plaintiff’s claims fell within the public interest exemption set forth in Section 425.16(b)).

San Diegans for Open Government was a taxpayers action filed against contractors involved in construction projects for the Sweetwater Union High School district, contending that the District superintendent and several of its board members were “financially interested” public works contracts, and seeking to invalidate the contracts as void. Several months later, plaintiff filed a first amended complaint. Fourteen (14) months later, plaintiff and the District entered into a stipulation to change the District’s status from defendant to a real party in interest. One of the contractors then filed a motion to strike the stipulation and the order thereon, but the trial court denied the motion, finding that the change of party status effected no substantive change and did not prejudice that defendant. Two months later, the contractor filed its anti-SLAPP motion with respect to plaintiff’s first amended complaint, contending that plaintiff’s claims arose from defendant’s political contributions and statements made to District officials regarding the contract review and award process, and that those activities were “quintessential rights of free speech and petition protected by the Anti-SLAPP statute.”

The trial court found the motion timely, because it was made within 60 days of the parties’ stipulation changing the District’s status from defendant to RPI. The contractor made clear that the primary reason it waited to bring its motion until after the stipulation was that it believed the plaintiff could no longer prevail on an argument that private enforcement was necessary, which is a required element to establish the applicability of the statutory public interest exception under Section 425.17(b)(3). The Court of Appeal found the motion untimely, holding that because an anti-SLAPP motion seeks to preclude the litigation at the outset of the filing, the issue whether private enforcement was necessary must be viewed at that time. (San Diegans, supra 240 Cal.App.4th at p. 625.) The Court stated:

“The fact that circumstances may change cannot logically provide a basis for bringing a late anti-SLAPP motion. An anti-SLAPP motion is not a vehicle for a defendant to obtain a dismissal of claims in the middle of litigation; it is a procedural device to prevent costly, unmeritorious litigation at the initiation of the lawsuit. When a case has been pending long after the 60-day period, the parties have presumably engaged in pretrial litigation and the purposes of an anti-SLAPP motion are no longer applicable. . . . At that point, the parties were free to bring other dispositive motions (e.g., a motion for summary judgment or judgment on the pleadings), but the procedurally complex anti-SLAPP statutory scheme was no longer available.” (San Diegans, supra, 240 Cal.App.4th at pp. 625-626 [emphasis added].)

If timely filed, “[r]esolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by [Code of Civil Procedure] 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 procedure.’ [Citation, fn.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’ [Citation.]” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384–385.)

2.         Application

Under the circumstances present in this case, the Court finds that any consideration of the merits of the Quaids’ special motion to strike at this late date would thwart the purposes of the anti-SLAPP statutory scheme. Because the

The FAC which first contained the slander of title cause of action was filed and served on February 14, 2022. The 60-day period within which a special motion to strike under Code of Civil Procedure section 425.16 would be presumptively timely therefore expired on April 15, 2022. From that date forward, the special motion to strike could be permitted to go forward on its merits only upon an exercise of the trial court’s discretion.

In the period of time between the filing of the FAC and the filing of the special motion, the Quaids filed four (4) amended cross-complaints (an erroneously entitled First Amended Cross-Complaint, two Fourth Amended Cross-Complaints, and one Fifth Amended Cross-Complaint), four (4) answers and amended answers to the FAC, and twenty (20) separate motions seeking affirmative relief. Many of those motions were related to discovery issues, indicating that considerable discovery was conducted by the parties during that period. Of course, a numerical total of discovery motions filed by only one party does not in any way accurately depict the nature and scope of discovery which has been conducted in any case; in this case it merely can verify that considerable discovery was conducted. The court’s docket reveals that literally hundreds of documents were filed between the time of the filing of the FAC on February 14, 2022, and when the special motion was ultimately filed. It is reasonable for this Court to conclude that the parties have expended many tens of thousands of dollars—if not multiple hundreds of thousands of dollars—litigating this action during this period of time.

The Quaids’ special motion to strike was filed on January 16, 2024, slightly more than 23 months after the FAC was filed, and was initially set for hearing by the Quaids on March 18, 2024, more than 25 months after the FAC was filed. The motion was not filed until some 641 days after the expiration of the presumptively-timely 60 day period, and 701 days after the filing of the FAC.

The special motion to strike itself made no attempt to support the timeliness of the motion, other than to comment in the background section of the memorandum in support of the motion that it was not until October of 2023 that the Turicchis produced screenshots from social media sites which they claimed constituted actionable slander of title. The motion provided a partial quote from Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1396, with respect to the intent of California’s anti-SLAPP statute being to “eliminate meritless or retaliatory litigation,” while rather deceptively omitting the remainder of the quote, which continued “at an early stage of the proceedings.”

In their opposition, the Turicchis continued to object to the timeliness of the special motion to strike, noting that the motion’s only excuse for why it was not timely filed was that production of documents was not made until October 6, 2023, but assert this did not justify the late filing—particularly since the motion was not filed until 98 days later. The Turicchis further note that they also provided answers to special interrogatories on September 5, 2023, which provided information on the nature of their slander of title claim, more than four months before the motion was filed. The Turicchis proceeded to contend that it is an abuse of discretion to permit the filing of an anti-SLAPP motion after a substantial amount of discovery has been conducted (citing Platypus Wear, Inc. v. Goldberg, supra), asserting further that when the parties have incurred substantial expense and the case has progressed to its later stages, it is too late for the motion to accomplish any legitimate purpose (citing Hewlett-Packard, supra). Finally, in determining whether a late motion should be permitted, the most important consideration is whether doing so would advance the statute’s purpose of examining the merits of covered lawsuits in the early stages of the proceedings, citing San Diegans for Open Government, supra.

In their reply, the Quaids improperly cited an unpublished appellate case, in their belated attempt to justify their filing of the special motion to strike years after the filing of the pleading containing the claim they now challenge, after the parties’ expenditure of vast amounts of time and attorneys’ fees, and when the trial of the action is imminent. Specifically, their reply referred to Csaszi v. Punaro, 2007 WL 902314, in which a trial court was found not to have abused its discretion when it allowed an anti-SLAPP motion to be filed after receipt of discovery responses caused counsel to realize that Section 425.16 might apply. While their reply notes that “unpublished cases are preferred not to be cited in briefs (emphasis added), this is not the law. Rather, pursuant to California Rules of Court, Rule 8.115, subds. (a) and (b), except under very limited exceptions (which do not apply here), a party “must not” cite a case that is not certified for publication. Consequently, counsel has violated the California Rules of Court in doing so. Further, counsel misrepresented the circumstances of the case itself, falsely contending that a trial court was found not to have abused its discretion when it permitted an anti-SLAPP motion to be filed 282 days after service of the complaint. In truth, the motion was filed 5.5 months (167 days) after the filing of the complaint, but was not heard by the trial court due to calendar congestion issues until 283 days later.

Consequently, not only was it legally impermissibly for counsel to cite to the case, its true facts do not provide any justification for permitting their extraordinarily late-filed motion (filed 701 days after the FAC was filed, and after massive expenditure of time, effort, and fees by the parties in this action). Further, even if the decision provided nominal support for the Quaids’ position, it was decided long prior to the decisions in Hewlett-Packard Co. v. Oracle Corporation (2015) 239 Cal.App.4th 1174, and San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, which make clear that the most important consideration in determining whether to permit an anti-SLAPP motion filed past the 60-day deadline is whether it advances the statute’s purpose of examining the merits of covered lawsuits at the early stages of the proceedings, and that even where there exists some excuse why the motion could not have been earlier filed, the motion should not be entertained by the trial court at such a time when the elapsed time and the expense which has been incurred precludes the motion from performing its intended function.

This Court agrees with the Turicchis, and finds that it is much too late for the motion to serve any legitimate purpose, and that even the relatively week excuse that the Turicchis did not confirm the factual basis for the slander of title claim until discovery responses were received in September and October of 2023, does not justify hearing the motion on its merits now more than 2 years beyond the filing and service of the pleading first containing the claim and only three months before trial, after considerable effort has been made and considerable expense has been incurred by the parties. As the court expressly stated in Hewlett-Packard, supra, “where the parties have already incurred substantial expense and the case has progressed to its later stages, it is almost certain to be too late for the motion to accomplish any legitimate purpose. No showing of blamelessness or justification on the part of the defendant can restore what time has destroyed. All the motion can accomplish is delay.” (Hewlett-Packard, supra, 239 Cal.App.4th at p. 1192.)

Far more has occurred in this case than occurred in Platypus Wear, Inc., supra, in a very similar time frame, yet that court found it to have been an abuse of discretion for the trial court to have heard the motion on its merits at all. Here, too, the Court cannot simply ignore the massive investment of time, effort, and expense by the parties since the filing of the FAC containing the slander of title cause of action, particularly given that the trial of the action is now less than three months’ away. Hearing the motion on its merits at this extraordinarily late date would actively thwart the purposes of the anti-SLAPP statutory scheme, rather than promote them. That the Quaids have attempted to justify their belatedly-filed motion—albeit weakly—does not alter the conclusion that it would be an abuse of this Court’s discretion to hear the motion on its merits, under the circumstances which exist in this case.

The Court will therefore strike the Quaids’ special anti-SLAPP motion to strike, based upon its extraordinary untimeliness. The Court therefore does not reach, and will not consider, the merits of the Section 425.16 motion.