Judge: Deborah C. Servino, Case: 30-2021-01234873, Date: 2022-11-18 Tentative Ruling

Defendant Lisa Kieu’s special motion to strike pursuant to Code of Civil Procedure section 425.16 is denied as untimely.

Kieu moves for an order striking the first, second, and third causes of action of Plaintiffs Rosalinda and Martin Lydster’s Complaint, as well as the prayer for punitive and exemplary damages, on the grounds that these claims are premised on speech that is protected by California’s anti-SLAPP statute (Code Civ. Proc., § 425.16) and that Plaintiffs cannot meet their burden of showing a probability of prevailing on these claims.

Code of Civil Procedure section 425.16, subdivision (f) provides in relevant part: “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”. Here, Kieu was personally served with the summons and complaint on December 17, 2021. (ROA 9.) It appears that Kieu was then provided with an extension, until March 22, 2022, “to file a responsive pleading.” (Le Decl. at ¶ 5, Exh. C [ROA 15].) Rather than file a responsive pleading, Kieu filed a motion to transfer venue on March 22, 2022. (ROA 18.) On June 21, 2022, the motion to transfer venue was denied. (ROA 50.) Kieu then filed the instant special motion to strike on August 12, 2022. (ROA 72.) Because the motion was not filed within 60 days of the service of the Complaint, it is untimely.

Kieu contends that this motion is timely because the 60-day deadline was tolled while her motion to transfer venue was pending and did not begin to run again until after the venue issue had been resolved.” (Memo. of P&A, at p. 4.) However,  the 60-day deadline had already expired before she filed her motion to transfer venue. To the extent that Plaintiffs agreed to waive any timeliness objection, that too, expired on March 22, 2022, the day Kieu’s responsive pleading was due pursuant to the parties’ agreement, and she chose to file the motion to transfer. There is no indication that the parties agreed the 60-day deadline would begin anew, once the court ruled on the motion to transfer venue.

In Morin v. Rosenthal (2004) 122 Cal.App.4th 673, 677, the court held that filing a motion to transfer district did not toll the 60-day deadline. “As the trial court correctly pointed out, nothing prevented the defendants from timely filing their SLAPP motions even if the pendency of the transfer motion would have stayed the hearing on the motions.”  (Ibid.)  The timing provisions of the statute serve the purpose of having “meritless lawsuits,” which are “designed to chill the defendant’s free speech rights,” dismissed “at the earliest stage of the case.” (Kunysz v. Sandler (2007) 146 Cal.App.4th 1540, 1543.) Like in Morin, Kieu chose to devote her time and resources to an attempt to transfer venue. Then after this attempt failed, she waited another seven weeks before attacking the pleading under the anti-SLAPP statute. While this court may have discretion to consider the untimely motion, it is not persuaded to do so. (Morin v. Rosenthal, supra, 122 Cal.App.4th at p. 681 [trial court acted within its discretion to refuse to consider untimely special motion to strike].)  Accordingly, the special motion to strike is denied.

Plaintiffs shall give notice of the ruling.

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