2015-00187051-CU-BC

Harry D. McGovern vs. Jim Carter

Nature of Proceeding: Motion to Strike (SLAPP) Amended Cross-Complaint

Filed By: Fredkin, Mark B.

Cross-defendant Harry D McGovern’s Motion to Strike portions of 1st Amended Cross-Complaint pursuant to CCP 425.16 is dropped from calendar as untimely.

This matter is set to be heard four days before the June 4, 2018 trial date.

Cross-defendant contends that the 1st through 10th and 14th causes of action of the Amended Cross-Complaint are based on McGovern’s threat to file, filing and alleging making “misrepresentations” and “demands” in this litigation, which the Carters characterize as interfering with and diluting their rights of “majority control” of M.C.M. Construction, Inc. (“MCM”).

It is undisputed that the original cross-complaint contained substantially the same allegations of what McGovern contends is protected conduct. The Original Cross-complaint was filed May 16, 2016 and served by mail May 10, 2016. McGovern answered the original cross-complaint on June 9, 2016 without having filed an anti-slapp motion with regard to the original cross-complaint.

This motion is dropped from calendar as being untimely, as it was not filed within 60 days of the service of the Cross-Complaint. The causes of action in the Amended Cross-complaint which are claimed to arise from protected activity are based on the same facts that supported the causes of action in the Cross-complaint. The fact that current counsel would have filed the anti-slapp motion within 60 days of the service of the original cross-complaint does not warrant the exercise of discretion to extend the 60 day period. The Court declines to exercise its discretion to entertain the merits of the anti-slapp motion.

A defendant must file an anti-SLAPP motion within 60 days of service of the first complaint (or cross-complaint, as the case may be) that pleads a cause of action coming within section 425.16[, subdivision ](b)(1) unless the trial court, in its discretion and upon terms it deems proper, permits the motion to be filed at a later time (§ 425.16 (f)).

Because Code Civ. Proc., § 425.16, is designed to resolve meritless lawsuits that chill free speech rights at the earliest stage of the case, but not to permit the abuse that delayed motions to strike might entail, the Supreme Court concluded that, subject to the trial court’s discretion under § 425.16, subd. (f), to permit late filing, a defendant must move to strike a cause of action within 60 days of service of the earliest complaint that contains that cause of action; The Supreme Court agreed with the court of appeal’s holding that defendants’ anti-SLAPP motion was timely as to the two new causes of action pleaded for the first time in the third amended complaint, but that plaintiffs had established a probability of prevailing on those causes of action, and that the trial court correctly denied the anti-SLAPP motion as to the causes of action that had earlier been pleaded. Newport Harbor Ventures, LLC v Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 639-640.