IN SAN DIEGO AND LOS ANGELES, DOES FILING AN AMENDED COMPLAINT RE-START THE 60-DAY PERIOD TO FILE AN ANTI-SLAPP MOTION TO STRIKE?

For 15 years, the rule has been the 60-day general limitations period in which to file a special anti-SLAPP motion was renewed upon the filing and service of an amended complaint. That rule is now in question. And it’s front and center at the California Supreme Court.

In 2002, the 4th District Court of Appeals decided Yu v. Signet Bank, 103 Cal. App. 4th 298. The Yu court explained the situation when confronted with an anti-SLAPP motion filed several years after the original complaint – but within two months of service of the third amended complaint.

“The Yus’ threshold argument against the anti-SLAPP motion is that it should be denied as untimely. The statute provides that the 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” (§ 425.16, subd. (f)), and states that the word “‘complaint’ includes ‘cross-complaint’ and ‘petition’ ” (§ 425.16, subd. (h)). Banks’ motion was filed years after the case commenced, but within 60 days of service of the third amended complaint. The Yus contend that the term “complaint” in the statute does not include an amended complaint, and thus that the motion could not be filed, without leave of the court, more than 60 days after service of the original complaint.”

The court disagreed.

Yu v. Signet Bank/Virginia (2002) 103 Cal.App.4th 298, 313 [126 Cal.Rptr.2d 516, 526], as modified on denial of reh’g (Nov. 25, 2002)

 

Recently, another 4th Appellate Court reached a different, if distinguishable, decision. But that reading is complicated in that the court was not considering a hoary (years old) complaint.

“We disagree with Yu to the extent it holds that a defendant has an absolute right to file an anti-SLAPP motion to an amended complaint, even when the motion could have been brought against an earlier complaint. “The Legislature enacted [Code of Civil Procedure] section 425.16 to prevent and deter ‘lawsuits [referred to as SLAPP’s] brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.’ [Citation.] Because these meritless lawsuits seek to deplete ‘the defendant’s energy’ and drain ‘his or her resources’ [citation], the Legislature sought ‘ “to prevent SLAPPs by ending them early and without great cost to the SLAPP target” ’ [citation].” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192, 25 Cal.Rptr.3d 298, 106 P.3d 958.) The argument advanced by Cerullo and Artz would encourage gamesmanship that could defeat rather than advance that purpose.” (emphasis supplied)

The court then succinctly stated its holding.

“We therefore conclude a defendant must file an anti-SLAPP motion within 60 days of service of the first complaint (or cross-complaint, as the case may be) that pleads a cause of action coming within section 425.16(b)(1) unless the trial court, in its discretion and upon terms it deems proper, permits the motion to be filed at a later time (§ 425.16(f)). An amended complaint reopens the time to file an anti-SLAPP motion without court permission only if the amended complaint pleads new causes of action that could not have been the target of a prior anti-SLAPP motion, or adds new allegations that make previously pleaded causes of action subject to an anti-SLAPP motion.”
Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2016) 6 Cal.App.5th 1207, 1219 [212 Cal.Rptr.3d 216, 225]

Pending now before our Supreme Court is the losing Plaintiffs’ appeal of Newport Harbor Ventures. (Case Number S239777) The emerging rule may depend on the Defendant’s pace or timeliness in the complaint amendment process, but at this point the probable result is uncertain — and a good one to watch.