Filed 2/10/20 Clayton-Tarvin v. Johnson CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

GINA MARIE CLAYTON-TARVIN,

Respondent,

v.

CHARLES KEELER JOHNSON,

Appellant.

G056758

(Super. Ct. No. 30-2018-00982026)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Sheila O. Recio, Judge. Affirmed.

Law Office of Chad D. Morgan and Chad D. Morgan for Appellant.

Shields Law Offices, Jeffrey W. Shields and Rick A. Varner for Respondent.

Gina Marie Clayton-Tarvin, an elected member of the Ocean View School District Board of Trustees, filed a request for a civil harassment restraining order (Code Civ. Proc., § 527.6) against Charles Keeler Johnson, aka Chuck Johnson, who describes himself as a political activist. The night before the scheduled evidentiary hearing on the petition, Johnson filed an anti-SLAPP motion. (§ 425.16.) The following day, the court considered only the harassment petition, denying it without prejudice. Several months later, a different trial judge considered Johnson’s anti-SLAPP motion and denied it as being moot. Johnson asserts this ruling was a mistake because the motion had merit and the court should have awarded attorney fees. We affirm the order.

FACTS

We need not discuss in detail the facts prompting Clayton-Tarvin to file a restraining order because the issue we must decide on appeal is primarily procedural. Suffice it to say, Clayton-Tarvin felt harassed and threatened by Johnson’s statements at school board meetings and comments posted on his social media accounts and his Web site. During a school board meeting he shouted at her “‘They want your head on a stick,’” and “‘I’m gonna give it to them.’” Online Johnson wrote numerous statements, including the following: (1) “‘Ill [sic] kill you first and piss on yours’”; (2) “‘Crooked Gina—Be quiet or be killed’”; (3) “‘Stop pissing me off. This is your last warning’”; (4) “‘[T]tell [G]ina Ive [sic] got a [expletive] cluster bomb coming’”; and (5) “‘While I prepare to drop a cluster bomb on Gina Tarvin.’”

PROCEDURAL HISTORY

Clayton-Tarvin filed her ex parte petition seeking a restraining order on March 26, 2018, and the trial court ordered a temporary restraining order (TRO) that same day. The court issued an order to show cause (OSC) regarding a preliminary injunction for April 18.

Two days before the scheduled evidentiary hearing, Johnson filed a request to continue the hearing. He retained an attorney, who needed additional time to prepare a response. The court continued the hearing to May 9.

On April 21, Johnson’s attorney filed a notice of related case. He noted Clayton-Tarvin filed a lawsuit in superior court against Johnson, and the cases involved the same claims and parties.

On May 7, at approximately 11 p.m., Johnson’s attorney filed a response to Clayton-Tarvin’s petition. He argued Clayton-Tarvin was using the petition and the “companion defamation case” to silence political opposition. He asserted there was no “‘true threat’” against Clayton-Tarvin. In addition, he asserted the court should deny the petition “on First Amendment grounds.”

The following day, May 8, Clayton-Tarvin filed a reply to Johnson’s late response. She argued the First Amendment did not protect illegal threats of violence.

On May 8, at 11:50 p.m., Johnson electronically filed an anti-SLAPP motion and scheduled the hearing for June 6. He argued the court should strike Clayton-Tarvin’s petition on the grounds it arose out of constitutionally protected activity and Clayton-Tarvin would not be able to demonstrate a probability of prevailing.

Our record does not contain a reporter’s transcript of the hearing held the following day. The minute order reflects the court admitted nine documents into evidence and considered testimony from the parties and seven witnesses. The court dissolved the TRO and denied Clayton-Tarvin’s petition for a permanent restraining order without prejudice.

The following month, in preparation for the anti-SLAPP motion, Clayton-Tarvin filed an opposition, request for judicial notice, evidentiary objections, and motion to strike portions of Johnson’s declaration. Johnson’s reply was another late night filing (11:25 p.m. on May 30). The following morning, he filed evidentiary objections.

On June 6, Judge Timothy J. Stafford considered written and oral argument. He instructed the parties to read Thomas v. Quintero (2005) 126 Cal.App.4th 635, 652- 653 (Thomas), and to file supplemental briefs by June 11. He noted a hearing date would be set thereafter. After receiving the supplemental briefs, Judge Stafford continued the matter to July 26. Thereafter, the parties stipulated to continue the hearing to August 9.

There is no reporter’s transcript of the hearing. For purposes of this appeal, the parties prepared a settled statement of the proceedings. After reciting the same factual background we have summarized above, the settled statement explained Judge Stafford was unavailable for the hearing on August 9, and Judge Sheila O. Recio decided the matter.

Judge Recio issued a tentative ruling denying the anti-SLAPP motion. At the hearing, neither side presented evidence. The settled statement summarized the parties’ arguments and court’s comments as follows. The issue on appeal was “[w]hether the trial court should have granted the [a]nti-SLAPP motion when the [a]nti-SLAPP motion was filed prior to but not heard until after the trial court’s denial of the [c]ivil [h]arassment [p]etition.”

The statement summarized Johnson’s argument as follows: “At the August 9 . . . hearing, responding to the court’s written tentative ruling, Johnson argued that Thomas . . . contemplated that an anti-SLAPP motion in actions involving civil harassment restraining orders would be decided after a hearing on the merits of the underlying restraining order petition. Johnson compared the posture of the case to circumstances where an anti-SLAPP motion must be decided even though a case had been resolved. Johnson’s counsel provided the example of a successful demurrer decided prior to a hearing on an anti-SLAPP motion. In these situations, the pending anti-SLAPP motion leaves open the question of attorney[] fees and is different from a plaintiff’s involuntary dismissal.”

The settled statement explained, “Johnson further argued that a motion for attorney[] fees under the anti-SLAPP statute requires resolution of the . . . motion in all cases except a plaintiff’s voluntary dismissal.” “Counsel also argued that while fees under other theories do not require adjudication of the anti-SLAPP motion, those fee awards would be subject to the trial court’s discretion and would not be mandatory the way they are under the anti-SLAPP statute. Since the anti-SLAPP statute’s mandatory fee provision was the primary benefit Johnson sought when filing the [a]nti-SLAPP [m]otion, the motion should have been considered and granted.”

According to the settled statement, Clayton-Tarvin argued Thomas was “inapposite to the circumstances of the case at bar.” “[Clayton-Tarvin] argued that whereas an anti-SLAPP motion is fundamentally intended to be heard at the outset of an action involving constitutionally protected speech so as to stay discovery and to strike the offending claims, that is not what happened in the within case. To the contrary, here, Johnson opted to wait and not file his [a]nti-SLAPP motion until at 11:50 p.m. the night before the evidentiary hearing on [the harassment petition]. [Clayton-Tarvin’s] counsel stated that Johnson made no mention of the [a]nti-SLAPP motion at the May 9 . . . hearing for the [c]ivil [h]arassment [p]etition, let alone request a continuance or advancement or any other relief designed to allow Johnson’s [a]nti-SLAPP motion to be heard on its merits before the evidentiary hearing. This contrasts with the facts and proceedings in Thomas.”

Finally, the settled statement discussed the court’s comments at the hearing. “Judge Recio expressed concerns about possible conflicting rulings if she determined that Johnson’s statements fell outside the scope of constitutionally protected speech. Judge Recio also expressed concerns about Johnson’s inaction in addressing the [a]nti-SLAPP [m]otion before Judge Stafford heard and denied [the harassment petition] without prejudice. Judge Recio asked Johnson’s attorney whether it would be appropriate to reconsider the . . . [p]etition in light of the [a]nti-SLAPP [m]otion. Johnson’s attorney responded, ‘no’ or something to that effect. [He] confirmed that the sole purpose for pursuing the [a]nti-SLAPP [m]otion was for an award of attorney’s fees. Judge Recio compared the posture of the case to a successful litigant after trial seeking to litigate a motion in limine without risk for the sole purpose of obtaining/increasing an award for attorney’s fees.”

Judge Recio’s minute order stated the following: “This action involves requested orders for civil harassment pursuant to a legislative scheme designed to provide expedited injunctive relief to persons who have suffered civil harassment. The proceedings provide for issuing orders of limited scope and limited duration. The action commences upon the filing of a [civil harassment petition] . . . as opposed to the filing of a [c]omplaint. The proceedings typically conclude with the court either granting or denying the [p]etition. [¶] [Johnson] filed his [anti-SLAPP] motion on [May 8], one day before the OSC re Civil Harassment was set to be heard. The . . . motion was set to be heard on June 6 . . . . Although the [anti-SLAPP] motion was mentioned during the OSC, there was apparently no request to advance the SLAPP motion hearing or continue the OSC until the SLAPP motion could be decided. Rather, the OSC proceeded on [May 9] as scheduled. [T]he court (the Hon. Timothy J. Stafford, who is unavailable for today’s hearing) decided the [p]etition. Specifically, after reviewing the oral and documentary evidence submitted and hearing argument, the court denied the [p]etition in its entirety. As such, it would be a mere abstract or academic endeavor to rule on the [anti-]SLAPP motion at this time. In other words, it appears to be moot. Although [Johnson] argues it is not moot because of the issue of attorney fees, a motion for attorney fees does not appear to be dependent upon continuing to litigate the [anti-]SLAPP motion.”

DISCUSSION

Johnson argues his anti-SLAPP motion was not rendered moot when the court denied the civil harassment petition. He correctly cites legal authority holding a court may award attorney’s fees and costs under section 425.16, subdivision (c), to a prevailing defendant whose anti-SLAPP motion was resolved on other grounds before a hearing on the motion. (See e.g., White v. Lieberman (2002) 103 Cal.App.4th 210, 220 [dismissal after demurrer sustained without leave to amend]; Pfeiffer Venice Properties v. Bernard (2002) 101 Cal.App.4th 211, 215.) The issue of attorney fees and costs will not be rendered moot by dismissal.

This is a hollow victory for Johnson. In addition to calling the motion moot, the court also concluded the motion was untimely. We conclude the motion was properly denied on this basis.

We recognize the SLAPP statute provides a lengthy timeline of 60 days from “service of the complaint” (§ 425.16, subd. (f)), and the statute broadly defines complaints to include a “petition” (§ 425.16, subd. (h)). (Italics added.) Thus, Johnson’s motion was technically timely, filed 42 days after Clayton-Tarvin filed her petition.

However, an anti-SLAPP motion filed near midnight on the eve of trial was functionally untimely. As noted by the trial court, because Johnson did not seek a continuance “it would be a mere abstract or academic endeavor to rule” on the anti- SLAPP motion. The court could not “strike” a petition already resolved on the merits. Moreover, section 527.6, subdivision (s), provides attorney fees to the prevailing party, rending the remaining purpose of Johnson’s anti-SLAPP motion redundant.

The trial court correctly determined it would be pointless to undergo the time consuming two-step analysis required for an anti-SLAPP motion when there was nothing left to litigate and attorney fees were not dependent on deciding the motion. Pursuing the motion on the eve of the hearing was merely a low-risk way for Johnson to artificially increase the amount of attorney fees. As aptly noted by the court, Johnson’s motion was similar to a prevailing party “after trial seeking to litigate a motion in limine without risk for the sole purpose of obtaining/increasing an award for attorney[] fees.”

The Legislature enacted section 425.16 because “‘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.’” Neither the public’s nor Johnson’s right to participate was advanced by this motion. If the court had granted the anti-SLAPP motion, nothing would have changed, i.e., the petition had already been denied. When the results of an anti-SLAPP motion are minimal and insignificant, the court may decide the defendant should not recover fees. (Moran v. Endres (2006) 135 Cal.App.4th 952, 955.) Such would be the case here. Thus, even if the trial court went through the time-consuming two-part analysis required by anti-SLAPP motions, it would be “fully justif[ied]” in concluding Johnson should not recover fees because absolutely nothing was accomplished by the anti-SLAPP motion due to the lateness of when it was filed.

Johnson’s reliance on the Thomas case is misplaced. The case is not factually analogous. In Thomas, a landlord filed a petition for an injunction prohibiting harassment against a tenant, who was among a group of tenants holding demonstrations in front of the landlord’s church and family home. (Thomas, supra, 126 Cal.App.4th at pp. 642-643.) The court granted a TRO and scheduled an OSC regarding the petition. (Id. at p. 643.) The tenant filed an anti-SLAPP motion and set a hearing for 10 days before the OSC on the petition. (Ibid.) Before the hearing, both parties had the opportunity to file points and authorities. The trial court denied the anti-SLAPP motion, indicating it did not believe the anti-SLAPP statute applied to section 527.6 proceedings. (Thomas, supra, 126 Cal.App.4th at p. 646.) Thereafter, the landlord dismissed the petition after the tenant agreed to avoid further contact. (Id. at p. 644.) The appellate court considered and decided the single issue of whether an anti-SLAPP motion applied to civil harassment petitions. After concluding a party could move to strike the petition, the court reversed the ruling and ordered the trial court to grant the motion and award attorney fees. (Id. at p. 664.)

In reaching this conclusion, the Thomas court rejected the landlord’s argument an anti-SLAPP motion will “interrupt the time line established for determining a civil harassment petition’s merits.” (Thomas, supra, 126 Cal.App.4th p. 649.) It reasoned as follows: “Neither the court below nor [the landlord] has suggested how any interference could manifest itself. Indeed, in this case the special motion came on for hearing before the hearing on [the landlord’s] petition, and there is no indication that the section 527.6 proceeding was prejudiced by the filing of the special motion to strike. Surely, any threat to the efficacy of the civil harassment proceeding, should it arise, can be eliminated by the trial court’s use of well-known case management tools.” (Ibid.,

fn. omitted, italics added.) Contrary to Johnson’s assertion, the court did not “reconcile[]” the two statutes by anticipating the court will follow the “the better option” of deciding the anti-SLAPP motion after the petition. It simply determined the trial court could rule on the anti-SLAPP motion at a hearing held 10 days before the OSC on the petition. Nothing in the Thomas opinion can be construed as condoning or supporting a motion to strike filed just a few hours before the hearing.

DISPOSITION

We affirm the order denying Appellant’s anti-SLAPP motion. Respondent shall recover her costs on appeal.

O’LEARY, P. J.

WE CONCUR:

BEDSWORTH, J.

ARONSON, J.