California Court of Appeal Aug 24, 2020 No. E072714Unpublished
Filed 8/24/20 Hudack v. Siggard CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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
LARRY HUDACK,
Plaintiff and Appellant, E072714
v. (Super.Ct.No. RIC1724414)
WAYNE SIGGARD et al., OPINION
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. Randall S. Stamen, Judge.
Affirmed.
Larry J. Hudack, in pro. per., for Plaintiff and Appellant.
Craig N. Rossell for Defendants and Respondents.
This court has previously addressed the facts related to this matter. (Siggard v.
(b) (hereafter, section 473(b)), provides, in relevant part, “The court may, upon any
terms as may be just, relieve a party or his or her legal representative from a judgment,
dismissal, order, or other proceeding taken against him or her through his or her
mistake, inadvertence, surprise, or excusable neglect.” Thus, the trial court has
3 At oral argument in this court, Hudack contended the de novo standard of review applies. The de novo standard of review applies to the anti-SLAPP portion of the opinion. (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940.) The abuse of discretion standard of review applies to the relief from default portion of the opinion. (Rappleyea v. Campbell, supra, 8 Cal.4th at p. 981.)
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discretion to grant a party relief from default if the party or the party’s attorney made a
mistake.
Section 473(b) also provides for mandatory relief. The mandatory relief
provision reads, “Notwithstanding any other requirements of this section, the court
shall, whenever an application for relief is made . . . and is accompanied by an
attorney’s sworn affidavit attesting to his or her mistake, inadvertence, surprise, or
neglect, vacate any (1) resulting default entered by the clerk against his or her client,
and which will result in entry of a default judgment.” The mandatory relief provision
does not apply to self-represented litigants. (Esther B. v. City of Los Angeles (2008) 158
Cal.App.4th 1093, 1100.)
3. ANALYSIS CONCERNING ROSSELL
Rossell was self-represented. Siggard was represented by Rossell. Thus, Rossell
and Siggard are not similarly situated for purposes of the motion for relief because the
mandatory relief provision was available to Siggard but not Rossell. (Esther B. v. City
of Los Angeles, supra, 158 Cal.App.4th at p. 1100 [mandatory relief not available to
self-represented litigants].) We begin our analysis with Rossell, who declared he may
have made a mistake of law.
“An honest mistake of law is a valid ground for relief where a problem is
complex and debatable. [Citation.] The issue of [whether a] mistake of law constitutes
excusable neglect presents a question of fact. The determining factors are the
reasonableness of the misconception and the justifiability of lack of determination of the
correct law.” (Brochtrup v. Intep (1987) 190 Cal.App.3d 323, 329.)
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The law pertaining to defaults provides, in relevant part: “[I]f the defendant has
been served, . . . and no answer, demurrer, notice of motion to strike . . . , notice of
motion to transfer . . . , notice of motion to dismiss . . . , notice of motion to quash
service of summons or to stay or dismiss the action . . . or notice of the filing of a
petition for writ of mandate . . . has been filed with the clerk of the court within the time
specified in the summons, . . . the clerk, upon written application of the plaintiff, shall
enter the default of the defendant.” (§ 585, subd. (b).)
The law is clear that when a defendant’s response to a complaint will be an anti-
SLAPP motion, i.e., a special motion to strike (§ 425.16, subd. (b)(1)), in order to avoid
a default, a defendant must file a notice of motion. (§ 585, subd. (b); see also § 1014 [a
defendant appears when he “files a notice of motion to strike”] .) Rossell’s belief—that
paying an appearance fee and reserving a court date were sufficient to avoid default—
was unreasonable given the black letter statutory law that (1) requires the filing of a
notice of motion, and (2) does not mention paying an appearance fee or reserving a
court date. Given the clarity of the statutory law, this was not a complex and debatable
legal problem. (See State Farm Fire & Casualty Co. v. Pietak (2001) 90 Cal.App.4th
600, 611 [“An honest mistake of law is a valid ground for relief when the legal problem
posed ‘ “is complex and debatable” ’ ”].)
Further, in Rossell’s declaration, in regard to his error, he declared, “Perhaps the
assumptions I made were incorrect but they made sense to me then as well as now.”
Rossell declared that he relied upon his assumptions. Rossell did not indicate that he
read section 585, subdivision (b), or otherwise tried to learn the legal requirements for
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avoiding default. Rossell failed to offer a reasonable justification for his lack of
knowledge of the law. (See Brochtrup v. Intep, supra, 190 Cal.App.3d at p. 329 [“The
determining factors are the reasonableness of the misconception and the justifiability of
lack of determination of the correct law”].)
In sum, Rossell’s claimed mistake of law was unreasonable and he provided no
reasonable justification for his ignorance of the law. Because the mistake was
unreasonable and the lack of knowledge was unjustified, Rossell’s mistake was
inexcusable. Because the mistake was inexcusable, the trial court erred by granting
Rossell relief from his default.
On appeal, Rossell asserts, “[S]ection 585 . . . has no application here since it
applies only where judgments are entered on defaults after a failure to answer a
complaint.” Section 585, subdivision (b), provides, “[I]f the defendant has been served,
. . . and no answer, demurrer, notice of motion to strike . . . has been filed with the clerk
of the court within the time specified in the summons . . . the clerk, upon written
application of the plaintiff, shall enter the default of the defendant.” Thus, the plain
language of the statute provides direction regarding the entry of default by a court clerk.
(People v. Maultsby (2012) 53 Cal.4th 296, 299 [“The statute’s plain language
controls”].) The statute is not merely focused on default judgments. Therefore, we are
not persuaded by Rossell’s contention.
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Next, Rossell asserts the trial court could properly provide him relief from
default because he was not personally served with the FAC. When a complaint is
amended “as to a matter of substance and not a mere matter of form” and the defendant
has not yet appeared in the matter, then the defendant must be served with the “amended
complaint in the manner provided for service of summons.” (Engebretson & Co. v.
Harrison (1981) 125 Cal.App.3d 436, 440 & 443.) “An amendment which significantly
increases the amount of damages sought is an amendment of substance which must be
served before a default can be entered.” (Id. at p. 440.)
Rossell asserts that, in a letter, Hudack “appeared to inform [defendants]” that he
amended the original complaint by eliminating a cause of action. Defendants contend
that the elimination of a cause of action would be a material amendment. Rossell does
not explain (1) if a cause of action was eliminated in the FAC, (2) what cause of action
was eliminated, (3) whether the cause of action involved Rossell or another party, or (4)
why the elimination of the cause of action constituted a material amendment. Given the
lack of analysis, we find Rossell’s assertion to be unpersuasive. (See Fernandes v.
Hudack contends the trial court could not grant Siggard mandatory relief because
the motion for relief did not include an affidavit reflecting Rossell’s mistake. (§ 473(b)
[“the court shall, whenever an application for relief is . . . in proper form, and is
accompanied by an attorney’s sworn affidavit attesting to his or her mistake”].)
Rossell’s declaration was attached to defendants’ motion for relief from default, and a
declaration is the equivalent of an affidavit (Ancora-Citronelle Corp. v. Green (1974)
41 Cal.App.3d 146, 148, fn. 1). In the declaration there is a subsection entitled,
“DECLARATION RE ATTORNEY FAULT.” In that subsection, Rossell declares,
“Perhaps the assumptions I made were incorrect.” Thus, Rossell’s declaration is
attached to the motion and it includes a section wherein Rossell admits he may have
made a mistake.
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Hudack contends the trial court could not grant Siggard mandatory relief because
an answer was not attached to the motion for relief. Section 473(b) provides,
“Application for this relief shall be accompanied by a copy of the answer or other
pleading proposed to be filed therein, otherwise the application shall not be granted.”
Defendants’ anti-SLAPP motion had been filed with the trial court prior to the motion
for relief being filed. Given that the anti-SLAPP motion had already been filed, we see
little reason for defendants to file it a second time. Nevertheless, to the extent one could
conclude the procedural rules were violated and therefore the trial court erred by
granting relief to Siggard, we would not reverse because there has been no showing of
prejudice.
5. HARMLESS ERROR
We now turn to the issue of prejudice. We cannot reverse a judgment unless it is
shown “that a different result would have been probable if such error . . . had not
occurred or existed.” (§ 475.) We cannot presume that an error is prejudicial. (§ 475.)
It is the appellant’s burden to establish the error was prejudicial to him. (Lynch v.
Birdwell (1955) 44 Cal.2d 839, 846.)
The filing of an amended complaint causes the original complaint to “cease[ ] to
have any effect as a pleading or as a basis for a judgment.” (Tidwell v. Henricks (1954)
124 Cal.App.2d 64, 66; accord Sheehy v. Roman Catholic Archbishop of San Francisco
(1942) 49 Cal.App.2d 537, 541-542.)
Hudack filed his original complaint on December 28, 2017. Hudack filed his
FAC on January 31, 2018. On March 13, 2018, Hudack requested entry of default on
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the complaint filed on “December 28.” The trial court clerk entered the default “as
requested.” Thus, the entry of default arguably pertains to the original complaint, not
the FAC.4
In looking at the record, one could contend that the entry of default was
essentially meaningless because it reflected defendants were in default on a non-
operative pleading, which means a judgment could not have been entered based upon
the default. (Johns v. Mongan (1961) 190 Cal.App.2d 94, 97 [“Here an amended
complaint was filed within the time allowed by law and thereby the original complaint
ceased to have any effect as a pleading upon which to base a default or judgment”].) In
other words, one could assert that the default entered by the clerk was effectively a
nullity. (Heidary v. Yadollahi (2002) 99 Cal.App.4th 857, 863-864; Sheehy v. Roman
Catholic Archbishop of San Francisco, supra, 49 Cal.App.2d at p. 541.) One could then
contend that the same result in the case would have occurred absent any error in
4 On March 13, 2018, Hudack used Judicial Council of California Form CIV- 100 to request entry of defendants’ default. On that form, Hudack requested entry of default on the complaint filed on “December 28.” At the bottom of the form, the clerk signed the document reflecting the “[d]efault [was] entered as requested.” The register of actions for March 13, 2018, reflects that Hudack requested entry of defendants’ default on the FAC—as opposed to the original December 28, 2017 complaint. The register of actions does not indicate whether the default was entered. When the record contradicts itself, the part of the record that prevails is that “which, because of its origin and nature or otherwise, is entitled to greater credence.” (People v. Smith (1983) 33 Cal.3d 596, 599.) In this case, the portion of the record that prevails is the form completed by Hudack and the clerk because it is the primary document, as opposed to the register of actions, which provides a partial description of the form. In sum, in examining the default, we rely upon the form completed by Hudack and the clerk; we do not rely upon the contradictory description of the form that is set forth in the register of actions.
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granting relief because the effectively null entry of default would not impede the trial
court from hearing and ruling upon the anti-SLAPP motion.
Hudack asserts, “The record demonstrates the proceedings and actions of the trial
court were irregular and conducted in a manner openly and notoriously prejudicial to
[Hudack].” Hudack does not explain how a different result would have been probable if
the trial court’s error had not occurred. Given that one could view the entry of default
as a nullity, this court cannot reverse the judgment without an argument from Hudack
that explains how a different result would have been probable absent the error. Because
Hudack does not offer a reasoned argument on the issue of prejudice, we do not reverse
the judgment. (§ 475.)
B. ANTI-SLAPP MOTION
1. LACK OF OPPOSITION
Hudack contends the trial court was required to rule in his favor on the anti-
SLAPP motion because “[t]here is no evidence in the record that [defendants]
controverted [Hudack’s] contentions [that] the challenged judgments are void on their
face based on jurisdictional defects.”
We apply the de novo standard of review. (Flatley v. Mauro (2006) 39 Cal.4th
299, 325-326 (Flatley).) The anti-SLAPP statute provides that a cause of action shall be
stricken if the cause of action arises from any act in furtherance of a defendant’s “right
of petition or free speech . . . in connection with a public issue.” (§425.16, subd.
(b)(1).) However, the cause of action will not be stricken if “the court determines that
the plaintiff has established that there is a probability that the plaintiff will prevail on
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the claim.” (§ 425.16, subd. (b)(1).) Thus, the burden of proving a probability of
prevailing rested upon Hudack, as the plaintiff. (§ 425.16, subd. (b)(1).)
In examining the plaintiff’s probability of prevailing the trial court must “accept
as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s
evidence only to determine if it has defeated that submitted by the plaintiff as a matter
of law.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
The trial court found that Hudack failed to meet his burden. Because Hudack failed to
meet his burden, there was no need for the trial court to look at whether defendants’
successfully rebutted Hudack’s assertion regarding Hudack’s probability of prevailing.
Therefore, an alleged lack of opposition does not demonstrate that the trial court erred.
2. PRECEDENT
Hudack contends, “Never in the history of published California jurisprudence has
any court ruled an anti-SLAPP motion, a derivative tort defense, defeats [a] collateral
attack on judgments void on their face.”
We apply the de novo standard of review. (Flatley, supra, 39 Cal.4th at pp. 325-
326.) In Church of Scientology, the Church brought a “complaint attack[ing] the
judgment Wollersheim had obtained against the Church in a prior action.” (Church of
Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 636 (Church of Scientology)
(disapproved on other grounds in Equilon Enterprises v. Consumer Cause, Inc. (2002)
29 Cal.4th 53, 68, fn. 5).) Wollersheim brought an anti-SLAPP motion, and the trial
court granted the motion. On appeal, the Church asserted the trial court erred because
“its action against Wollersheim is not a SLAPP suit.” (Ibid.)
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Specifically, the church argued it was attacking the judgment, not Wollersheim,
and therefore the Church’s claims did “not ‘arise’ from any act in furtherance of
Wollersheim’s right of petition or free speech.” (Church of Scientology, supra, 42
Cal.App.4th at p. 648.) The appellate court concluded “[t]he Church’s approach to the
interpretation of section 425.16 is too restrictive.” (Ibid.) The appellate court explained
that the anti-SLAPP statute applies “to any direct attack on the judgment in the prior
action, which resulted from Wollersheim’s petition activity.” (Ibid., italics omitted.)
Thus, Church of Scientology reflects an anti-SLAPP motion may be brought in response
to an attack on a judgment.
Hudack asserts that Church of Scientology applies to a direct attack on a
judgment—not to a collateral attack. “Either a ‘direct attack’ or a ‘collateral attack’ are
the procedural mechanisms available to challenge a judgment that is allegedly void. A
direct attack means an attack on the judgment in the action in which it was rendered, or
a proceeding instituted for the specific purpose of attacking the judgment. [Citation.]
In contrast, a collateral attack is any procedural challenge that does not constitute a
direct attack.” (OC Interior Services, LLC v. Nationstar Mortgage, LLC (2017) 7
Cal.App.5th 1318, 1326-1327.) “A judgment that is void on the face of the record is
subject to either direct or collateral attack at any time.” (Id. at p. 1327.)
Hudack does not provide any analysis explaining why the reasoning and holding
of Church of Scientology cannot be applied to a collateral attack. At oral argument in
this court, Hudack asserted it was not his responsibility to explain the difference
between a direct and collateral attack because that difference is set forth in the law. We
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are not faulting Hudack for failing to explain the difference between a direct attack and
a collateral attack. Rather, we are unpersuaded by Hudack’s argument because he fails
to explain why the difference matters in the procedural context of an anti-SLAPP
motion. Hudack needed to provide such an explanation so as to distinguish Church of
Scientology. Because Hudack did not offer such an explanation, we are not persuaded
that Church of Scientology is distinguishable on the basis that it only applies to a direct
attack.
Next, Hudacks seeks to distinguish Church of Scientology on the element of
petitioning activity. Hudack contends, “In Church [of Scientology], the prior action
involved petitioning activity. The Underlying Case did not involve ‘petition activity,’ it
involved breach of fiduciary duty, violation of CEQA, trespass, encroachment and
private nuisance.”
The anti-SLAPP statute provides, “As used in this section, ‘act in furtherance of
a person’s right of petition or free speech under the United States or California
Constitution in connection with a public issue’ includes: (1) any written or oral
statement or writing made before a . . . judicial proceeding.” (§ 425.16, subd. (e).) The
2010 causes of action listed by Hudack were part of a judicial proceeding. Because
Hudack’s current lawsuit is based upon a party’s and a lawyer’s actions taken in the
2010 judicial proceeding, his current lawsuit is based upon “petitioning activity.” Thus,
both the instant case and Church of Scientology concern petitioning activity.
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At oral argument in this court, Hudack asserted we should apply the law of the
case doctrine when examining whether the instant case involves petitioning activity.5
Hudack asserted that, in an opinion filed in 2019, this court concluded his allegations
did not concern petitioning activity, and therefore we are bound by that conclusion
under the law of the case doctrine.
The law of the case doctrine provides, “ ‘[T]he decision of an appellate court,
stating a rule of law necessary to the decision of the case, conclusively establishes that
rule and makes it determinative of the rights of the same parties in any subsequent
retrial or appeal in the same case.’ ” (Nally v. Grace Community Church (1988) 47
Cal.3d 278, 301-302.)
The opinion filed last year was Hudack v. La Cresta Property Owners
Association et al. (July 2, 2019, E070144) [nonpublished opinion] (2019 Cal. App.
Unpub. LEXIS 4511). The 2019 appeal shares the same trial court case number as the
instant case but concerned anti-SLAPP motions filed by the County of Riverside and the
La Cresta Property Owners Association. (Id. at p. [6].) In that case, we concluded
(1) Hudack’s allegations involving the County of Riverside pertained to petitioning
activity; (2) Hudack’s allegations involving the La Cresta Homeowners Association
pertained to petitioning activity; and (3) Hudack’s allegations pertaining to Judge
Holmes and a lack of jurisdiction did not involve petitioning activity. (Id. at p. [10].)
5 Although not raised in the briefing, we will address this issue.
26
In the instant case, we are examining the allegations involving Siggard and
Rossell to determine if they pertain to Siggard’s and Rossell’s petitioning activity
because Hudack is asserting Church of Scientology is distinguishable from the instant
case on the element of petitioning activity. Siggard and Rossell were not parties to the
2019 appeal. In the 2019 appeal, we did not examine whether allegations pertaining to
Siggard and Rossell involved petitioning activity. Hudack failed to explain how law of
the case is applicable when (1) Siggard and Rossell were not parties to the 2019 appeal;
and (2) we did not consider the allegations against Siggard and Rossell in the 2019
appeal. (See Nally v. Grace Community Church, supra, 47 Cal.3d at pp. 301-302 [“ ‘the
same parties in any subsequent . . . appeal in the same case’ ”].) Hudack also failed to
explain why our conclusion pertaining to the Judge Holmes allegations should be law of
the case rather than the conclusions pertaining to the allegations related to the County
and the Association. For the foregoing reasons, we find Hudack’s reliance on the law of
the case doctrine to be unpersuasive.
In conclusion, Hudack has not successfully distinguished Church of Scientology
either in regard to (1) a direct attack versus a collateral attack, or (2) petitioning activity.
As a result, we are not persuaded that there is a lack of precedent for the trial court’s
ruling.
3. LACK OF AUTHORITY
Hudack contends the trial court lacked “authority to consider and rule on an anti-
SLAPP motion.”
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We apply the de novo standard of review. (Flatley, supra, 39 Cal.4th at pp. 325-
326.) An anti-SLAPP motion is an option for responding to a collateral attack. (Church
of Scientology, supra, 42 Cal.App.4th at p. 648.) Because the anti-SLAPP motion was
procedurally proper, the trial court could rule upon it. (People v. Superior Court for Los
Angeles County (1965) 239 Cal.App.2d 99, 102 [“The law is well settled that a trial
court is under a duty to hear and determine the merits of all matters properly before
it”].)
Hudack contends the trial court “acted without authority [because it] did not
consider the judgment roll, and ruled based on extrinsic evidence submitted by
[defendants] in their prohibited anti-SLAPP motion.” In the trial court’s ruling, it
concluded, “[Hudack] failed to meet his burden on the second prong of the analysis.
[Hudack] failed to present admissible evidence that he has a reasonable probability of
prevailing on his contention that the judgment in Hudack v. Siggard, et al., is void,
despite the finality of the judgment in the action, after an appeal.”
The trial court found that Hudack did not meet his burden, which means the trial
court was relying upon Hudack’s evidence. (See § 425.16, subd. (b)(1) [plaintiff bears
the burden on the second prong].) Therefore, if the trial court “ruled based on extrinsic
evidence,” as alleged by Hudack, it would have necessarily been extrinsic evidence
submitted by Hudack. Hudack does not provide a record citation to support his
assertion that the trial court “ruled based on extrinsic evidence.” (Cal. Rules of Court,
rule 8.204(a)(1)(C) [record citations].) Accordingly, because (1) there is no record
citation to support the assertion that the trial court relied upon extrinsic evidence, and
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(2) if the trial court relied upon extrinsic evidence, then it would have necessarily been
Hudack’s evidence because he bore the burden of proof, we find Hudack’s contention to
be unpersuasive.
4. FRIVOLOUS MOTION
Hudack contends, “An Anti-SLAPP motion is patently frivolous. If the
judgment roll contains evidence of [defendants’] protected conduct, such conduct will
be recognized by the examining court as protected and that conduct cannot render the
judgments void.” Hudack reasons, “If the filing of a collateral attack on void judgments
automatically meets the first prong requirements of an anti-SLAPP analysis, then the
entire burden shifts to plaintiff virtually eliminating the statutory two prong analysis.
That is not consistent with the legislative intent behind [section] 425.16.”
We apply the de novo standard of review. (Flatley, supra, 39 Cal.4th at pp. 325-
326.) “ ‘[T]o survive anti-SLAPP scrutiny, a plaintiff need only establish their cause of
action has “minimal merit.” ’ [Citations.] That is because the anti-SLAPP procedure is
only intended to ‘weed[] out, at an early stage, meritless claims arising from protected
activity.’ ” (Kinsella v. Kinsella (2020) 45 Cal.App.5th 442, 460.)
This court has explained, “We also stress again that the purpose of section
425.16 is well served by requiring the plaintiff to make a positive showing. The statute
clearly expresses a legislative suspicion of SLAPP suits and intent to weed out all but
those having demonstrable merit. It is not unfair to insist that a party who chooses to
bring what appears on its face to be a SLAPP suit be prepared to back up his claims
with facts.” (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 23, fn. 23.)
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In the instant case, the trial court found that Hudack failed to demonstrate his
lawsuit had minimal merit. On appeal, Hudack has not shown that the trial court erred
in that finding. Accordingly, defendants’ anti-SLAPP motion served the purpose of
preventing a meritless lawsuit from proceeding. Thus, the motion was not frivolous.
C. UNDERLYING CASE
Hudack contends, “This Court should rule the judgments in the underlying case
are void.” Hudack asserts that the 2010 judgments “are void on their face because of
jurisdictional defects that arose from a court acting without authority.”
When a notice of appeal specifies a particular judgment or order, the jurisdiction
of the appellate court is limited to that specified judgment or order. (Norman I. Krug
Real Estate Investments, Inc. v. Praszker (1990) 220 Cal.App.3d 35, 46.)
In Hudack’s notice of appeal, he included (1) the trial court’s April 2, 2019,
judgment dismissing his case; (2) the ruling on defendants’ anti-SLAPP motion; and
(3) the trial court’s November 18, 2018 order setting aside defendants’ default. The
April 2, 2019, judgment, which is attached to the notice of appeal, reflects it pertains to
Riverside County Superior Court case No. RIC1724414. The register of actions reflects
that case No. RIC1724414 was initiated on December 28, 2017.
In the case before us, we have the jurisdiction to review the actions the trial court
took in case No. RIC1724414. We do not have jurisdiction to void judgments entered
in a separate case that was not listed in the notice of appeal. Therefore, we do not
examine whether there are jurisdictional defects in the 2010 judgments.
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D. ATTORNEY’S FEES
Defendants request that, if the judgment is affirmed, then “their entitlement to
appellate [attorney’s] fees be set forth in the final opinion.” Defendants do not explain
why they need us to provide the law on this topic; however, it is easy enough to find and
quote, so, as requested: “The anti-SLAPP statute provides for an award of attorney[’s]
fees and costs to the prevailing defendant on a special motion to strike. (§ 425.16, subd.
(c).) The defendant may recover fees and costs only for the motion to strike, not the
entire litigation. [Citations.] Appellate challenges concerning the motion to strike are
also subject to an award of fees and costs, which are determined by the trial court after
the appeal is resolved. [Citation.] The defendant may claim fees and costs . . . through
the filing of a subsequent motion or cost memorandum.” (Christian Research Institute
v. Alnor (2008) 165 Cal.App.4th 1315, 1320.)
DISPOSITION
The judgment is affirmed. Defendants are awarded their costs on appeal. (Cal.
Rules of Court, rule 8.278(a)(1).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
McKINSTER J.
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AI Brief
AI-generated · verify before citing
Holding. The court affirmed the trial court's judgment, holding that while the trial court erred in granting relief from default to the self-represented attorney defendant, the error was not prejudicial, and the trial court correctly granted the anti-SLAPP motion.
Issues
Did the trial court err in granting defendants' motion for relief from default?
Did the trial court err in granting defendants' anti-SLAPP motion?
Disposition. Affirmed.
Quotations verified verbatim against the opinion
“We conclude the trial court erred by granting relief to Rossell, but because there is no showing of prejudice, we do not reverse.”
“The trial court concluded that Hudack failed to demonstrate a likelihood of prevailing on the merits of the lawsuit.”
“[Hudack] failed to present admissible evidence that he has a reasonable probability of prevailing on his contention that the judgment in Hudack v. Siggard, et al., is void, despite the finality of the judgment in the action, after an appeal.”