Filed 4/23/20 Brown v. Kimball, Tiery & St. John, LLP CA4/2

Opinion following rehearing

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

JAMIESON BROWN,

Plaintiff and Appellant,

v.

KIMBALL, TIERY & ST. JOHN, LLP et al.,

Defendants and Respondents.

E069422

(Super.Ct.No. PSC1606296)

OPINION

APPEAL from the Superior Court of Riverside County. James T. Latting, Judge. Dismissed.

The Law Offices of Francisco J. Aldana, and Francisco J. Aldana, for Plaintiff and Appellant.

Kimball Tirey & St. John, and Abel Ortiz, Sage S. Stone and Jozef G. Magyar, for Defendants and Respondents.

I.

INTRODUCTION

In December 2014, Courtyard Partners-Palm Springs, L.P. (Courtyard), filed an unlawful detainer action against plaintiff and appellant, Jamieson Brown (the UD action). Courtyard voluntarily dismissed the UD action in January 2015.

In December 2016, Brown brought this case against Courtyard for malicious prosecution. In June 2017, Brown named as defendants Courtyard’s counsel in the UD action, defendants and respondents, Kimbrall, Tirey & St. John, LLP, Karl Patrick Schlect, and Eli Allen Gordon (collectively, KTS), alleging that KTS unlawfully filed and prosecuted the UD action on Courtyard’s behalf.

The trial court granted KTS’s motion to strike Brown’s operative first amended complaint (FAC) as a strategic lawsuit against public participation (SLAPP) under the anti-SLAPP statute, Code of Civil Procedure section 425.16. The trial court ruled that (1) Brown’s malicious prosecution claim arose from KTS’s protected activity of filing the UD action, and (2) he could not succeed on the merits of the claim because it was barred by the one-year statute of limitations.

Brown appealed, but subsequently moved to dismiss the appeal. We exercise our discretion to dismiss the appeal without reaching the merits.

II.

FACTUAL AND PROCEDURAL BACKGROUND

In December 2013, Brown entered into a one-year lease of an apartment owned by Courtyard. In December 2014, KTS filed the UD action on behalf of Courtyard to evict Brown. In January 2015, however, Courtyard voluntarily dismissed the UD action.

More than a year later, in December 2016, Brown filed a complaint against Courtyard and Does 1 through 10. In February 2017, Brown filed the FAC, alleging claims for: (1) retaliatory eviction; (2) constructive eviction; and (3) malicious prosecution. Brown’s claim for malicious prosecution alleged that Courtyard, through KTS, wrongfully filed the UD action for an unlawful purpose and never attempted to substantiate its allegations. Brown asserted Courtyard and KTS, who have connections to Mormonism, conspired “to defraud [him] and the courts” in retaliation for his criticisms of Mormonism. According to Brown, the UD action was in furtherance of that conspiracy.

Courtyard demurred to the FAC. In May 2017, the trial court sustained the demurrer without leave to amend as to the first two causes of action, but overruled the demurrer as to the malicious prosecution claim.

About a month later, on June 29, 2017, Brown filed an “Amendment to First Amended Complaint for Malicious Prosecution” under section 474 in order to substitute KTS for a Doe defendant. (Original caps omitted.) Brown made no other changes to the FAC.

In September 2017, KTS filed an anti-SLAPP motion to strike the FAC under section 425.16. KTS argued the FAC arose out of KTS’s protected activity of filing the UD action and its claims failed on the merits. As for the malicious prosecution claim, KTS argued (1) it was barred by the one-year statute of limitations and (2) failed on the merits because the UD action was brought with probable cause and without malice.

Brown opposed the motion, arguing that KTS’s filing the lawsuit was illegal and therefore not protected activity under section 425.16. Brown further asserted his malicious prosecution claim against KTS was timely because he was unaware of KTS’s connections to Mormonism until after he filed the FAC in December 2016, so his June 2017 amendment naming KTS as a defendant fell within the one-year statute of limitations.

The trial court granted the motion in full. The trial court concluded the malicious prosecution claim arose from KTS’s protected activity of filing the UD action and was barred by the one-year statute of limitations. Brown timely appealed.

III.

REQUEST FOR DISMISSAL

After we issued a tentative opinion, heard oral argument, and issued our final opinion, but before the remittitur issued, Brown moved to dismiss the appeal.

An appellant may not dismiss an appeal as a matter of right. (Huschke v. Slater (2008) 168 Cal.App.4th 1153, 1160 [imposing $6,000 sanctions on attorney for unreasonable delay in notifying appellate court that parties had settled and dismissed the underlying case].) Rather, pursuant to California Rules of Court, rule 8.244(c)(2), “On receipt of a request or stipulation to dismiss, the court may dismiss the appeal and direct immediate issuance of the remittitur.” (Italics added.) Thus, dismissal is discretionary. We grant the request, vacate our prior opinion, and dismiss the appeal.

III.

DISPOSITION

Our prior opinion is vacated and the appeal is dismissed. Each side shall bear their own costs on appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

CODRINGTON

Acting P. J.

We concur:

SLOUGH

J.

RAPHAEL

J.