Phelps v. Bacon CA1/3

Filed 7/17/15 Phelps v. Bacon CA1/3 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

FIRST APPELLATE DISTRICT

DIVISION THREE

JANET DENISE PHELPS, Plaintiff and Appellant, A139771 v. KENNETH BACON, et al., (Solano County Super. Ct. No. FCS041131) Defendants and Respondents.

Plaintiff Janet Denise Phelps in propria persona appeals from the order granting the anti-SLAPP motion of defendants David Timko, Linda LaSorsa, and the law firm of Timko & LaSorsa (collectively and severally T&L), Kenneth Bacon, and the law firm of Lewis & Bacon (collectively and severally L&B) to strike her complaint.1 The court correctly found that Phelps’s causes of action arose from protected activity under the anti-SLAPP statute (Code Civ. Proc., § 425.16), and that she did not establish a probability of prevailing on her claims. Accordingly, we affirm.

1 Phelps filed a timely notice of appeal in the superior court on September 13, 2013, naming Kenneth Bacon as the sole respondent. In addition to that notice of appeal, we have received notices of appeal naming each of the other defendants as respondents. These notices of appeal are not stamped as having been filed in the superior court. The superior court docket indicates that these notices of appeal were timely received on September 16, 2013, but were returned to Phelps because “the original notice of appeal that was filed on Friday 9/13/13 is sufficient enough to cover the order filed on 7/15/13.” Under these circumstances, we conclude that Phelps has timely appealed as to all of the defendants who made the anti-SLAPP motion.

1

BACKGROUND This is the third of three related suits Phelps has filed. In the first action (Phelps I), Phelps, represented by counsel, sued Harry Misthos over a real estate dispute. Terminating sanctions were imposed on Phelps for failing to respond to discovery. The trial court rejected Phelps’s claim that discovery defaults were excused by her ill health, finding “ ‘this claim is not adequately established by her medical evidence, and is also belied by the multiple motions and other documents she has filed after the court’s issuance of the order compelling responses.’ ” Division One of this Appellate District affirmed the trial court’s decision on the point, holding that the court “acted well within its discretion in rejecting Phelps’ medical excuses. . . . [I]t is indeed astounding that Phelps could devote energy to motion practice, and attend case events including the mediation one day before the hearing on Misthos’s initial motion to compel, yet, at the same time, could not muster any energy over the course of two years, despite a court order, to answer two sets of discovery.” (Phelps v. Misthos (Nov. 29, 2012, A129963) [nonpub. opn.], p. 8.) In Phelps II, Phelps in pro per sued T&L, the opposing attorneys in Phelps I representing Mithos. Her complaint included causes of action for legal malpractice and breach of fiduciary duty based on an alleged attorney-client relationship between Phelps and T&L in the real estate transaction that spawned the Phelps I suit. T&L was represented in Phelps II by L&B. L&B demurred to the first amended complaint, which was set for a hearing on December 4, 2008. Phelps filed no opposition to the demurrer. Meanwhile, in Phelps I, T&L subpoenaed Phelps’s medical records from her treating nurse practitioner, Virginia Savely. The records were copied on November 20, 2008, without objection from Phelps. That same day, Phelps sent the judge in Phelps II a copy of a letter from Savely stating that she had an appointment with Phelps on October 13 and determined that Phelps was too ill to attend a case management conference on October 14. On November 24, Phelps requested an extension of time to respond to the demurrer due to illness. On December 2, Phelps sent the judge in Phelps II another letter from Savely stating that