Filed 2/13/20 Khodayari v. Lobenstein CA2/5

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION FIVE

MOHAMMAD KHODAYARI,

Plaintiff and Appellant,

v.

DREW P. LOBENSTEIN et al.,

Defendants and Respondents.

B289343

(Los Angeles County

Super. Ct. No. BC647758)

APPEAL from an order of the Superior Court of Los Angeles County, Joanne B. O’Donnell, Judge. Affirmed.

Mohammad Khodayari, in pro. per., for Plaintiff and Appellant.

Hartsuyker, Stratman & Williams-Abrego, Fred B. Smith; Veatch Carlson, Serena L. Nervez, for Defendant and Respondent Isaac Regev.

_______________________

Plaintiff and appellant Mohammad Khodayari purports to appeal from an order granting a special motion to strike pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16). We conclude that Mohammad failed to perfect a timely appeal from the anti-SLAPP order, and therefore, we must dismiss it.

STATEMENT OF FACTS AND PROCEDURAL BACKGROUND

Allegations of Complaint

On January 25, 2017, Mohammed and his brother Bahman Khodayari, acting in pro per, filed a complaint against 13 individuals, including Drew Lobenstein and Isaac Regev. The complaint alleged harassment, violation of the Tom Bane Civil Rights Act (Civ. Code, § 52.1), invasion of privacy, conspiracy, and intentional and negligent infliction of emotional distress as follows: Mohammad owns property on Cantara Street in Reseda, which Bahran manages. The alley next to Mohammed’s home is used by neighbors, parents, kids from the nearby high school, gang members, and drug dealers. Cars driving through the alley damage Mohammed’s property, and people dump unwanted items in the alley. On July 12, 2016, the Khodayaris extended fencing to Mohammad’s property line, which was seven feet into the alley.

The named defendants are the Khodayaris’ neighbors on Cantara and Lanark Streets. The neighbors complained to the Khodayaris about the fence and intimidated Bahran. They conspired and made reports to government entities in retaliation for the fence. Some of the defendants made threats in person. The defendants also moved the Khodayaris’ security cameras. These acts were intimidating and harassing.

The Khodayaris sought injunctive and declaratory relief, as well as punitive damages. They requested a declaration that the defendants could not enter the property or take pictures of the inside of the property without permission, could not interfere with how the Khodayaris lived their life, could not make false claims, declarations, or testify in any proceeding, the Khodayaris could store property in their home how they feel fit, and the Khodayaris could fence their property within the property line.

The complaint alleged that some of the comments by defendants that were made in person and through text messages constituted harassment, because they served no legitimate purpose but to impose fear, humiliation, and emotional distress on the Khodayaris, and the claims made to government agencies caused undue harassment of the Khodayaris. The defendants violated the Khodayaris privacy by making false claims to government entities, and defendants must have illegally accessed the property to make the claims. Lobenstein and the other defendants knowingly and willfully conspired to harass and inflict emotional distress on the Khodayaris. The complaint does not allege the specific words or substance of any statement that was made, nor does the complaint separate out Regev or any specific defendant to allege any act taken by a specific person.

Anti-SLAPP Proceedings and Appeal

On February 27, 2017, Regev filed an anti-SLAPP motion. Regev asserted that Bahman was a vexatious litigant, who was prohibited from filing new lawsuits. The gravamen of the claims made in the complaint was based on speech made in a public forum on a public issue, and therefore, covered by the anti-SLAPP statute. The Khodayaris could not show a probability of prevailing on their claims, because the statements alleged in the complaint were privileged communications.

Regev submitted his declaration in support of the anti-SLAPP motion stating that he owned the property across the alley from the Khodayaris. Regev “never . . . communicated with [the Khodayaris] in any fashion ever,” “never made any statements to, or about [them],” and “never complained to the City of Los Angeles nor any governmental agency about [the Khodayaris] or their property.”

Lobenstein filed a demurrer on March 6, 2017. On June 28, 2017, Bahman was dismissed from the case. The joinder of some of the co-defendants in Regev’s anti-SLAPP motion is not contained in the record on appeal.

On November 27, 2017, three days before the scheduled hearing, Mohammad filed an opposition to Regev’s anti-SLAPP motion and the joinder of co-defendants in the anti-SLAPP motion. It is unclear from the record whether the trial court received or was made aware of Mohammad’s untimely opposition. In his opposition, Mohammad argued verbal abuse and threats were not protected speech. The defendants’ false evidence or statements caused Mohammad to be charged with a misdemeanor. Mohammad, as a senior citizen, could obtain a restraining order or injunctive relief based on his neighbors seeking to deprive him of his property. The statements were not in a public forum and the issue was not one of public interest. He argued that the joinder of other defendants had been untimely.

In support of his opposition, he attached a parcel map, pictures of Lobenstein’s pigeon activities, pictures of a dead animal carcass and pigeon feces near Mohammad’s property, a complaint to a city inspector with the author’s name redacted, and a list of investigations by the Los Angeles Department of Building and Safety which Mohammad stated were instituted by the defendants, although no source of any of the complaints is listed.

Mohammad also attached his brother Bahman’s declaration about debris dumped on the property, threats and curses yelled at him by unspecified neighbors, and the vandalization of security cameras by unknown persons. Mohammad attached his own declaration that he had to attend hearings at city offices to respond to false reports by defendants and had suffered emotional distress. He was charged with a misdemeanor based on defendants’ false statements, but the charges were dropped for lack of evidence. Neither of the declarations stated which neighbor had taken specific actions or made specific threats. Mohammad filed an opposition to the demurrer the same day.

On November 30, 2017, a hearing was held. The trial court granted the anti-SLAPP motion, and found the demurrers were therefore moot. The court stated that the allegations of the complaint clearly arose from protected activity; the complaint attempted to assert tort liability against Regev for false claims and statements to government agencies, as well as comments made directly to Mohammad. The court found Mohammad had not met his burden to show a probability of success on the merits, because no opposition had been submitted. The minute order states that the defense counsel was to give notice, but the record on appeal does not reflect that notice of entry of the order was filed or served.

On December 11, 2017, Mohammad filed a motion to set aside the dismissal and for reconsideration of the order entered on November 30, 2017. He stated that he was not aware that his responses were untimely. He argued that reconsideration was proper because defense counsel did not alert him that he was required to reply, and his belated reply should have been considered on the merits.

In his appellate briefs, Mohammad states that several of the defendants in this case, including Lobenstein, but not Regev, filed a quiet title action against Mohammad on December 22, 2017, to establish a prescriptive easement.

On January 16, 2018, a hearing was held on the motion for reconsideration. The trial court found that an opposition to the motion was filed late, and in order to permit Mohammad to file a reply, the court continued the hearing to February 13, 2018.

A hearing was held on February 13, 2018, and Mohammad and counsel for Regev appeared. The trial court denied the motion for reconsideration. The court set a hearing on March 15, 2018, for an order to show cause regarding dismissal of four of the defendants (not including Regev) for failure to enter their default.

Mohammad appeared at the hearing on March 15, 2018, and moved to dismiss seven of the defendants. The trial court granted the motion.

On April 10, 2018, Mohammad filed a notice of appeal from the order entered on March 15, 2018. He did not check the box for an appeal from an order granting an anti-SLAPP motion under Code of Civil Procedure section 904.1, subdivision (a)(13). Instead, he checked a box for “Other” and wrote “dismissal of the case.” He wrote that the defendant/respondent was “Drew Lobenstein &.” (Sic.) He served the notice of appeal on the attorneys for some of the defendants, including the attorneys of Lobenstein and Regev.

No reporter’s transcript has been included in the record on appeal. On August 6, 2018, Mohammad filed a proposed settled statement on appeal with the trial court. He described the error that caused him harm as the trial court’s determination that Mohammad had not met his burden to establish a probability of success on the merits, because no opposition had been submitted to the anti-SLAPP motion or the demurrer. He stated that he had requested the case file from the archives and discovered the physical documents that he filed on November 27, 2017, were not in the file, although a digital copy is in the computer case summary. He stated that he filed a motion for reconsideration on December 11, 2017, which resulted in the order that he was appealing. He attached the minute orders for November 30, 2017, January 16, 2018, and February 13, 2018. The proposed statement on appeal was mailed on August 6, 2018, to attorneys and individual defendants.

DISCUSSION

In his appellate briefs, Mohammad purports to have appealed from the denial of his motion for reconsideration, but his contentions on appeal concern the trial court’s ruling on Regev’s anti-SLAPP motion. We conclude that Mohammad did not perfect an appeal from the order granting the anti-SLAPP motion or the order denying reconsideration, and therefore, his appeal must be dismissed.

Rule 8.100, subdivision (a)(2), of the California Rules of Court states, “The notice of appeal must be liberally construed. The notice is sufficient if it identifies the particular judgment or order being appealed. The notice need not specify the court to which the appeal is taken; the appeal will be treated as taken to the Court of Appeal for the district in which the superior court is located.” “‘[I]t is and has been the law of this state that notices of appeal are to be liberally construed so as to protect the right of appeal if it is reasonably clear what appellant was trying to appeal from, and where the respondent could not possibly have been misled or prejudiced.’” (D’Avola v. Anderson (1996) 47 Cal.App.4th 358, 361, quoting Luz v. Lopes (1960) 55 Cal.2d 54, 59.)

“Despite the rule favoring liberal interpretation of notices of appeal, a notice of appeal will not be considered adequate if it completely omits any reference to the judgment being appealed.” (Shiver, McGrane & Martin v. Littell (1990) 217 Cal.App.3d 1041, 1045.) “‘It is elementary that an appeal from a portion of a judgment brings up for review only that portion designated in the notice of appeal. . . .’” (Unilogic, Inc. v. Burroughs Corp. (1992) 10 Cal.App.4th 612, 625 (Unilogic), quoting Glassco v. El Sereno Country Club, Inc. (1932) 217 Cal. 90, 91–92 (Glassco).) As explained in Shiver, McGrane & Martin v. Littell, supra, 217 Cal.App.3d at page 1046, “a notice of appeal which specifies a portion of a judgment may not be stretched beyond its logical limits to include other parts of the judgment.”

Mohammad’s notice of appeal is not sufficient to identify the anti-SLAPP ruling as the order being appealed. Mohammad’s notice of appeal did not identify the November 30, 2017 order granting the anti-SLAPP motion or the February 13, 2018 order denying the motion for reconsideration. Instead, the notice of appeal referred to the March 15, 2018 order granting voluntary dismissal of several defendants. Instead of checking the box for an appeal from an order granting an anti-SLAPP motion, Mohammad checked a box for “Other” and wrote in that he was appealing from a dismissal of the case. The order granting the anti-SLAPP motion was not a dismissal of the case; in contrast, the order entered on March 15, 2018, and identified in the notice of appeal, was a voluntary dismissal of the case as to several defendants other than Regev. Regev was not even put on notice by the caption of the document, because Mohammad simply listed the respondents as “Drew Lobenstein &.” Because Mohammad’s notice of appeal “completely failed to mention the judgment or order challenged in the appellate court” and did not provide any notice to Regev, it must be dismissed pursuant to the rule in the Glassco and Unilogic line of cases. (See D’Avola v. Anderson, supra, 47 Cal.App.4th at p. 362, fn. 4.)

DISPOSITION

Mohammad Khodayari’s appeal is dismissed. Respondent Isaac Regev is awarded his costs on appeal.

MOOR, J.

We concur:

RUBIN P. J.

BAKER, J.