Filed 4/20/20 Gupta v. Kumar-Gupta CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION ONE

GOKAL GUPTA,

Plaintiff and Respondent,

v.

NANDINI KUMAR-GUPTA,

Defendant and Appellant.

A157513

(Alameda County

Super. Ct. No. HG18920648)

This case has its genesis in a contentious dissolution proceeding between appellant Nandini Kumar-Gupta (Kumar-Gupta) and Sandeep Gupta. After Kumar-Gupta obtained an order joining Sandeep’s father, respondent Gokal Gupta (Gupta), and the business he owns as parties in that proceeding, Gupta filed the instant lawsuit against Kumar-Guptar, asserting causes of action for abuse of process, elder abuse and intentional infliction of emotional distress. Claiming Gupta’s lawsuit was retaliatory, and that all his causes of action were barred by the litigation privilege, Kumar-Gupta filed a special motion to strike under the anti-SLAPP statute (Code Civ. Proc., § 425.16).

Kumar-Gupta’s attorney, however, had miscalendared and filed the special motion to strike five days after the statutory deadline—a fact of which counsel was unaware until Gupta pointed it out in his opposition to the motion. In her reply memorandum, Kumar-Gupta asked the trial court to exercise its discretion under the statute to hear the motion, pointing out all the factors courts are to weigh in exercising their discretion to hear untimely anti-SLAPP motions weighed in favor of hearing the motion on its merits. The trial court denied the motion as untimely, the only explanation being Kumar-Gupta had failed to first seek leave to file the motion beyond the statutory time. We reverse and remand for consideration of Kumar-Gupta’s motion on the merits.

BACKGROUND

During the course of the above referenced dissolution proceeding, Kumar-Gupta successfully sought to join as parties thereto, her father-in-law, Gupta, and the company he owns, Astutica, Inc.

Upon being served with the complaint in intervention, Gupta filed the instant lawsuit against Kumar-Gupta, alleging causes of action for abuse of process, elder abuse, and intentional infliction of emotional distress.

Kumar-Gupta timely filed an answer, raising several defenses, including the litigation privilege.

Three weeks later, Kumar-Gupta filed a special motion to strike under the anti-SLAPP statute. She maintained Gupta’s causes of action were based on her successfully joining him as a party in the dissolution proceeding, and thus arose from “protected activity,” namely her right to petition the courts.

Gupta opposed the motion on several grounds. He first pointed out the special motion to strike had been filed five days after the statutory deadline, and claimed it had to be denied on that ground, alone. He further claimed the complaint in joinder was “overbroad” in “violation” of court “orders,” and that he had alleged conduct sufficient to sustain elder abuse and intentional infliction of emotional distress claims.

In her reply, Kumar-Gupta did not dispute that her special motion to strike had been filed five days late. Her attorney submitted a declaration stating she had made a calendaring error and asked that Kumar-Gupta not be penalized by her mistake and that the trial court exercise its statutory discretion to hear the untimely motion. With respect to the merits, Kumar-Gupta maintained the litigation privilege barred all of Gupta’s claims and he had not, in any case, alleged conduct sufficient to state a claim.

The trial court issued a tentative ruling denying the motion as untimely. Kumar-Gupta appeared and contested the ruling, pointing out the court had discretion to hear the motion and that every factor identified in the cases bearing on the exercise of that discretion weighed in favor of hearing her motion on the merits. The court took the matter under submission.

The following day, the court issued an order denying the special motion to strike with the following explanation:

“Defendant did not timely file her anti-SLAPP motion. Plaintiffs caused the Summons and Complaint to be served on Defendant on September 17, 2018. Defendant failed to file her anti-SLAPP motion within sixty (60) days of the date of service. See CCP § 425.16(f). Although the Court may in some cases permit Defendant to file an anti-SLAPP motion after the sixty-day period, Defendant in this case did not seek additional time before filing the motion on November 21, 2018.”

DISCUSSION

Kumar-Gupta asks us to decide only whether the trial court abused its discretion in denying her special motion to strike for lack of timeliness. She does not ask us, should we agree with her, to go on and consider the merits of her motion. We therefore address the sole issue she has raised and the parties have briefed—whether the trial court should have overlooked the five-day delay in the filing of her anti-SLAPP motion and heard the motion on its merits.

A special motion to strike “may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms [the court] deems proper.” (Code Civ. Proc., § 425.16, subd. (f).) The purpose of the time limitation is to permit “ ‘the defendant to test the foundation of the plaintiff’s action before having to “devote its time, energy and resources to combating” a “meritless” lawsuit.’ ” (Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 783 (Platypus).) The statutory deadline also seeks “ ‘ “to avoid tactical manipulation of the stays that attend anti-SLAPP proceedings.” ’ ” (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 624 (San Diegans).)

Thus, when the timeliness of an anti-SLAPP motion is at issue, an appellate court generally must ask two questions: (1) was the anti-SLAPP motion timely filed (that is, was it filed within “ ‘60 days of the service of the complaint’ ”) (San Diegans, supra, 240 Cal.App.4th at p. 624) and (2) if it was untimely filed, did the trial court properly exercise its discretion to either consider or deny the untimely motion? Here, there is no dispute Kumar-Gupta’s motion was untimely. Thus, we consider only the second question, which reviews the trial court’s “considerable discretion” whether to consider an untimely motion. (Platypus, supra, 166 Cal.App.4th at p. 787.)

In exercising the discretion conferred by Code of Civil Procedure section 425.16, subdivision (f), the trial court must primarily consider whether allowing a party to file an untimely anti-SLAPP motion would be compatible with the “purposes” and policy underlying the statute’s timeliness requirement. (San Diegans, supra, 240 Cal.App.4th at p. 624.) This requirement furthers two purposes and policies: (1) “ ‘ “ ‘to prevent [meritless claims falling within the anti-SLAPP statute] by ending them early and without great cost to the SLAPP target,’ ” ’ ” and (2) to minimize the “ ‘possibility for abuse of the anti-SLAPP statute,’ ” (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 642, 645 (Newport Harbor)) particularly the “tactical manipulation of the stays that attend anti-SLAPP proceedings.” (San Diegans, at pp. 625–626.) “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.” (Id. at pp. 624–626.)

Thus, any examination of a trial court’s discretion to hear an untimely special motion to strike contemplates there is a “point [in time] beyond which an anti-SLAPP motion simply cannot perform its intended function[s]” and is therefore untimely as a matter of law and outside a trial court’s discretion to entertain. (Hewlett-Packard Co. v. Oracle Corp. (2015) 239 Cal.App.4th 1174, 1189 (Hewlett-Packard); see Newport Harbor, supra, 4 Cal.5th at p. 645 [asking whether motion is made “far too late for the anti-SLAPP statute to fulfill its purpose”].)

When that point has been reached turns on a number of factors, including: (1) whether there is “anything in the procedural history of th[e] case . . . that would justify allowing the [untimely] filing” (Platypus, supra, 166 Cal.App.4th at p. 787; San Diegans, supra, 240 Cal.App.4th at p. 624 [examining “the reasons for the [untimely] filing”]); (2) how close to the trial date the motion is made (Kunysz v. Sandler (2007) 146 Cal.App.4th 1540, 1543; Hewlett-Packard, at p. 1189; San Diegans, at p. 624 [examining “the length of the delay”]), and (3) whether the “parties have incurred substantial expense” by the time the motion is made (Hewlett-Packard, supra, 239 Cal.App.4th at p. 1188; San Diegans, at p. 624 [examining “any undue prejudice to the plaintiff”]).

Kumar-Gupta maintains that each of these factors weighs in favor of hearing her untimely motion to strike on the merits. Her motion was late by only five days. It was late because of a calendaring error by her attorney. It was made before the parties had incurred any substantial time and expense in litigating the case. Accordingly, hearing the motion would fulfill the “purposes” and policy underlying the anti-SLAPP statute’s timeliness requirement. It would prevent the prosecution of assertedly meritless claims arising from protected activity by ending them early and without great cost to either party. It would, likewise, not facilitate any abuse of the anti-SLAPP statute, including the stay of discovery. In essence, Kumar-Gupta maintains that if it was not an abuse of discretion to deny her motion for untimeliness under the particular circumstances here, then it can never be an abuse of discretion to refuse to hear an untimely special motion to strike.

Kumar-Gupta acknowledges she can point to no case holding a trial court either abused, or did not abuse, its discretion in denying an untimely special motion to strike under the circumstances presented here.

Rather, she points out the cases affirming denials of special motions to strike as untimely involved far more egregious circumstances than occurred here. (E.g., Hewlett-Packard, supra, 239 Cal.App.4th at p. 1189 [motion filed 558 days after statutory deadline and heard on day before trial]; Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 680–681 (Chitsazzadeh) [motion filed over 100 days after service of complaint]; Morin v. Rosenthal (2004) 122 Cal.App.4th 673, 678, 681 [motions filed 90 days after remand from federal bankruptcy court; “[I]nstead of attempting to promptly expose and dismiss Morin’s suit as a SLAPP, defendants chose to devote their time, energy and resources to moving the case from state court to federal court and, after remand from the federal court, moving the case from one branch of the superior court to another and then from one judge to another in the chosen branch,” procedural maneuvering that “consumed seven months or nearly one-third of the court’s overall time goal for disposing of a civil case”]; Olsen v. Harbison (2005) 134 Cal.App.4th 278, 280 [appeal dismissed as frivolous where motion filed 278 days after service of amended complaint with no good cause for delay].) In short, these cases involved extremely belated special motions to strike that manifestly no longer served the fundamental purposes of the anti-SLAPP statute.

Similarly, in the rare case where the Court of Appeal has reversed a trial court’s exercise to hear an untimely special motion to strike, the defendant’s delay in bringing the motion was egregious. Consequently, the motion did not accomplish the fundamental purposes of a special motion to strike. (See San Diegans, supra, 240 Cal.App.4th at p. 624 [trial court erred in finding motion timely based on change in status of party; hearing untimely motion, filed seven months late and after parties appeared on other matters and propounded discovery, was contrary to the purposes served by the anti-SLAPP statute and “obvious[ly]” prejudicial to the plaintiff]; Platypus, supra, 166 Cal.App.4th at pp. 784–787 [motion filed after discovery cutoff and heard one week before trial; “[r]ather than advancing the anti-SLAPP statute’s purpose of promptly resolving SLAPP suits,” trial court’s hearing motion “had the effect of undermining that statute”].)

The circumstances in these cases are not remotely comparable to those here. And given the unique circumstances of the instant case, we conclude this is one of those rare instances where the trial court abused its discretion in not hearing an untimely special motion to strike on its merits.

As we have recited, all the factors trial courts are to consider in exercising their discretion weigh in favor of hearing the merits of Kumar-Gupta’s motion. The motion was late by only five days, and it was late due to a calendaring error by counsel. Thus, the delay bears no taint of any desire or strategy to vex or harass Gupta, or to manipulate the stays afforded by the anti-SLAPP statute. In short, hearing Kumar-Gupta’s motion on the merits will advance, rather than defeat, the fundamental purposes of the anti-SLAPP statute’s timeliness requirement—to winnow out meritless lawsuits at the outset, before the defendant is put to the burden of expending time and resources litigating the case, and to forestall abuses of the statute.

Indeed, the only explanation the trial court provided for refusing to hear Kumar-Gupta’s motion was that she failed to separately seek leave to file the motion outside the statutory time. However, “[a] party’s request [for leave to file an untimely motion] is not a prerequisite to a trial court’s exercise of its discretion to hear an otherwise untimely anti-SLAPP motion.” (Symmonds v. Mahoney (2019) 31 Cal.App.5th 1096, 1105, fn. 4; accord, Chitsazzadeh, supra, 199 Cal.App.4th at p. 684 [“court has the discretion to consider, and grant or deny on the merits, a special motion to strike filed after the 60–day deadline even if the moving defendant fails to request leave of court to file an untimely motion”].) Moreover, it is apparent Kumar-Gupta’s attorney did not realize, at the time she filed the motion to strike, that the statutory time had run five days earlier, and therefore she also did not realize an application for leave to file beyond that time period would have been appropriate.

There is an additional policy consideration that bears on our decision here—and that is the “abiding judicial reluctance” to entertain derivative lawsuits that “originate in family law proceedings.” (Bidna v. Rosen (1993) 19 Cal.App.4th 27, 32; id. at pp. 29–30, 39–40 [rejecting malicious prosecution, intentional infliction of emotional distress, abuse of process and conspiracy claims based on repeated, meritless applications to change custody—thus refusing to “open the sluice gates to the rivers of bitterness that often typify family law cases”].) This lawsuit is unquestionably of that ilk. When the court in the dissolution proceeding granted Kumar-Gupta’s joinder request, it immediately expressed concern about limiting discovery, rattling off a list of the parties’ discovery disputes, commenting these and “the whole nine yards [have occurred] in a case that has already been litigated beyond my wildest imagination.” In response to accusations later leveled against Kumar-Gupta by Gupta’s attorney during yet another discovery dispute, the court commented, “[n]one of this comes as any surprise to me. That includes actions by both parties in this particular case at this point.” Thus, that this is a lawsuit sprung from an exceedingly contentious dissolution proceeding further augers in favor of hearing Kumar-Gupta’s special motion to strike, untimely by less than a week, on the merits.

We therefore conclude, given the unique circumstances of this case, the trial court abused its discretion in not considering the merits of Kumar-Gupta’s special motion to strike.

DISPOSITION

The order denying Kumar-Gupta’s special motion to strike is reversed and the case remanded with directions to hear her motion on the merits. Each party to bear their own costs on appeal.

 

_________________________

Banke, J.

We concur:

_________________________

Humes, P.J.

_________________________

Sanchez, J.

A157513, Gupta v. Kumar-Gupta