Roe v. Maria S. CA6

Filed 5/26/21 Roe v. Maria S. CA6 NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SIXTH APPELLATE DISTRICT

JIM ROE, H046182 (Santa Clara County Plaintiff and Appellant, Super. Ct. No. 17CV315696)

v.

MARIA S. et al.,

Defendants and Respondents.

Plaintiff and appellant Jim Roe (plaintiff or appellant) sued defendants and respondents Maria S. and her daughter Savannah S. (defendants or respondents) for malicious prosecution. Appellant appeals from the trial court order granting defendants’ anti-SLAPP motion to strike the complaint under Code of Civil Procedure section 425.16. For the reasons explained below, we conclude the appeal is untimely and therefore we lack jurisdiction to consider it. Consequently, we dismiss the appeal. I. FACTS AND PROCEDURAL BACKGROUND As the facts underlying the suit are not relevant to our jurisdiction over this appeal, we do not recite them here. Plaintiff filed a malicious prosecution lawsuit in 2017 against

defendants. Defendants filed an anti-SLAPP motion1 seeking to strike the complaint in its entirety under Code of Civil Procedure section 425.16. The parties fully briefed defendants’ motion, and the trial court heard argument on it in January 2018. On March 5, 2018, the trial court entered a written order granting defendants’ anti- SLAPP motion “with prejudice” (March 5, 2018 anti-SLAPP order). The trial court explained the basis for its ruling that plaintiff’s malicious prosecution claim was a SLAPP and must be stricken. Additionally, the trial court addressed and rejected plaintiff’s alternative arguments that the trial court should stay his lawsuit or grant the defendants’ anti-SLAPP motion without prejudice. That same day, the clerk of the Santa Clara County Superior Court served by mail the trial court’s March 5, 2018 anti-SLAPP order. On July 25, 2018, the trial court filed a judgment of dismissal in favor of defendants based on its March 5, 2018 anti-SLAPP order. On September 5, 2018, plaintiff filed a notice of appeal. The notice of appeal states plaintiff appeals from the “[d]ismissal with prejudice under Anti-Slapp [sic] Statute- [Code of Civil Procedure] section 425.16.” II. DISCUSSION Appellant’s brief raises a “single issue” for our review on appeal, specifically whether the trial court erred “by dismissing this prematurely filed malicious prosecution action with prejudice rather than dismissing it without prejudice.” The brief asserts the appeal was timely, as taken from the July 25, 2018 judgment. Respondents’ brief argues the merits of the trial court’s dismissal order and does not raise the timeliness of the appeal.