Case Number: BC676654 Hearing Date: April 13, 2018 Dept: 40

MOVING PARTIES: Defendants Western Los Angeles Dental Society and Courtney Fuller

OPPOSTION: Plaintiff Tracy G. Golden

Plaintiff Tracy G. Golden, DMD, sued defendants California Dental Association, Western Los Angeles Dental Society, and Courtney Fuller for damages arising from allegations that they attempted to destroy her career in retaliation for making governance recommendations.

She alleges that for 2015, when she acted as Western’s president, she “inherited” certain internally contentious, divisive issues. One was a desire to split the organization into northern and southern geographic regions, which she supported. The other involved office space the organization rented to a third party, about which plaintiff engaged counsel. Plaintiff raised her concerns with Western and California Dental Association, and recommended forming a nonprofit foundation and address certain governance issues.

Western and California Dental retaliated by (1) systematically attempting to destroy plaintiff’s career, (2) sending California Dental representatives to sideline plaintiff at meetings and functions, (3) hiring Fuller (a convicted criminal) with performing a background check, (4) mass-distributing false, inflammatory statements about plaintiff to members, (5) failing to act upon an ethics complaint submitted by Western’s ethics committee, and (6) facilitating Fuller and others in hacking plaintiff’s personal email account.

On August 3, 2017, plaintiff was locked out of her email account and contacted the police. In early 2017, plaintiff learned from LAPD that Fuller hacked her email account and that Fuller had prior convictions for burglary, forgery, and petty theft.

On April 27, 2017, Fuller was arraigned and pled guilty to hacking plaintiff’s email account. The entity defendants failed to discipline Fuller.

On September 20, 2017, plaintiff filed a complaint for (1) negligence, (2) defamation, (3) invasion of privacy, (4) breach of fiduciary duty, (5) intentional infliction of emotional distress, (6) negligent infliction of emotional distress, (7) intentional interference with prospective economic advantage, and (8) negligent interference with prospective economic advantage.

On February 7, 2018, plaintiff dismissed California Dental Association with prejudice.

On March 16, 2018, Western and Fuller filed this opposed anti-SLAPP motion.

The Motion is Untimely: Plaintiff argues the motion should be denied as untimely.

“The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.” CCP § 425.16(f).

Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 776 reversed the trial court’s order granting the defendants’ application to late file an anti-SLAPP motion and vacated the trial court’s ruling on the merits. Platypus reasoned, “In the present case, Goldberg failed to provide a compelling explanation for why he did not file an application for permission to file an anti-SLAPP motion earlier in the case. Goldberg did not articulate any extenuating circumstances justifying a late filing.” bid. “Goldberg has not demonstrated anything in the procedural history of this case, and specifically, in the litigation involving other parties, that would justify allowing the late filing.” Id. at 787 (noting that Goldberg could have filed the motion during the five months before and six months after a stay on appeal.)

Kunysz v. Sandler (2007) 146 Cal.App.4th 1540, 1543 affirmed the trial court’s denying an anti-SLAPP motion, reasoning that the anti-SLAPP statute’s purpose of promoting prompt resolution “obviously[] no longer applies once the complaint has been answered and the case has been pending for nearly a year.”

Here, there is no dispute that defendants filed the motion after the 60-day deadline:

The proofs of service state that Western was substitute served on September 22, 2017, and the documents were mailed the same day.

Service was effective 10 days later on October 2, 2017.

Sixty days later was December 1, 2017.Defendants filed the motion 105 days later on March 16, 2018.

Defendants filed an answer on November 22, 2017, nearly four months before filing the motion. By the time defendants filed the motion, the case had been pending for nearly six months.

On February 7, 2018, plaintiff dismissed California Dental Association.

On February 8, 2018, the Court set trial and related dates.

Defendants’ discovery responses were due only two days before they filed the motion. OPP 9:25-27.

Defendants state no reason for their delay.

Defendants attempt to distinguish Platypus on the grounds that there, the case was two years old, “the parties had already completed a substantial amount of discovery, trial was scheduled to commence in less than three months.” Id. at 784. Additionally, by the time of the hearing, the discovery cutoff date lapsed and trial was to commence in a week. Here in contrast, no discovery has been completed and trial is set for February 19, 2019.

Defendants’ underlying logic is flawed because it would render the 60-day deadline and one of its purposes (prompt resolution) meaningless. If the Court could exercise its discretion on the ground that no substantial litigation activity occurred, a defendant could concoct all sorts of reasons to avoid participation and drag out a delay, thereby defeating the anti-SLAPP statute’s purpose of promoting prompt resolution. The Court cannot act capriciously in exercising discretion to hear late-filed motions, particularly where the purpose is to promote prompt resolution. If the Court were to exercise its discretion here, even recognizing that the litigation is not as far along as in Platypus and Kunysz, it would do so capriciously because defendants failed to articulate any reason to justify their delay.

Moreover, plaintiff represents that defendants filed the motion only two days before their written discovery responses were due. OPP 9:25-27. This undisputed fact, combined with defendants’ lack of even an attempted justification, supports a reasonable inference that defendants’ delay was tactical (discovery avoidance) and not for a legitimate reason. See Olsen v. Harbison (2005) 134 Cal.App.4th 278, 287 (identifying another purpose of the 60-day deadline as, “to avoid tactical manipulation of the stays that attend anti-SLAPP proceedings.”)

Accordingly, defendants’ delay defeats the deadline’s purposes and is unjustified.

Defendants cite no authority requiring the opposing party to establish prejudice, at least beyond the prejudice assumed in the deadline’s two identified purposes.

Therefore, the Court declines to exercise its discretion to consider the late-filed motion.

Conclusion: The motion is DENIED and defendants are ordered to give notice.