Trial Court Has No Discretion to Consider an Untimely (by Three Years!) Anti-SLAPP Motion, Appellate Court Holds

Timothy Kowal, Esq.
August 31, 2021

Three years and one SLAPP appeal into litigation over a commercial real estate dispute, defendants filed a second anti-SLAPP motion in in Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (D4d3 Aug. 20, 2021) 2021 WL 3700752 [no. G058687] (nonpub. opn.).

But the statute says anti-SLAPP motions must be filed within 60 days after service of the complaint, and the defendant did not seek leave of court to file a later motion. The Fourth District Court of Appeal held leave must be granted before a late SLAPP motion is filed. The trial court apparently excused the untimeliness and instead denied the SLAPP motion on the merits. This was improper: "The plain meaning of this holding [of the Supreme Court in Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 641, 646] is the court's permission must be obtained before the motion is filed, not afterward."

But even had leave been sought here, three years was well beyond the court's discretion to excuse:

"None of the salutary purposes of the anti-SLAPP statute has been advanced by the motion, while the statute's potential abuse has been realized. Under these circumstances, the trial court could have exercised its discretion only by denying MCWE's anti-SLAPP motion as untimely."

One other interesting procedural point may be noted:

The Respondent on Appeal May Raise Arguments Not Adopted by the Trial Court, If the Object Is to Affirm the Judgment:

On appeal, the defendant urged that, in addition to affirming on the merits, the Court of Appeal also should hold the trial court could have denied the SLAPP motion as untimely. As we have seen, the Court of Appeal agreed. But the plaintiff-appellant took exception to this argument on procedural grounds. After all, the trial court disagreed the motion was untimely when it denied the motion on the merits. And it is improper for a respondent to assert error on appeal. (E.g., Celia S. v. Hugo H. (2016) 3 Cal.App.5th 655, 665; Estate of Powell (2000) 83 Cal.App.4th 1434, 1439.)

Not quite. As the court explains: "This proposition is incomplete. The rule is that “ ‘[t]o obtain affirmative relief by way of appeal, respondents must themselves file a notice of appeal and become cross-appellants.’ ” (Preserve Poway v. City of Poway (2016) 245 Cal.App.4th 560, 585, italics added.)" And Code of Civil Procedure section 906 permits a respondent to assert an error if it demonstrates the appellant was not prejudiced by the judgment on appeal." Section 906 is designed to allow respondent "to assert a legal theory that will result in affirmance." (Preserve Poway v. City of Poway, supra, 245 Cal.App.4th at pp. 585-586.)

So the respondent was permitted to argue that the trial court erred, so long as that error would result in affirmance. And here, it did: the trial court should have denied the motion as untimely before reaching the merits (even to deny it).

Tip: This case involved a second trip to the Court of Appeal. This happens sometimes. But count on the Court of Appeal to be somewhat more critical on successive visits. Be sure the Court of Appeal does not get the idea your litigation choices are the reason it has to spend more time with your case. Remember the Court of Appeal always has tools at its disposal to affirm a judgment. If it does get the idea that you are the reason it has do work up your case again, you can bet the court will deploy one of these tools. And it might even direct some critical words at counsel, such as the court's remark here that counsel failed to exhibit "[b]asic civility and respect for the court and the litigants, not to mention a modicum of caution...."

Tim Kowal helps trial attorneys and clients win their cases and avoid error on appeal. He co-hosts the Cal. Appellate Law Podcast at, and publishes a newsletter of appellate tips for trial attorneys at His appellate practice covers all of California's appellate districts and throughout the Ninth Circuit, with appellate attorneys in offices in Orange County and Monterey County. Contact Tim at or (714) 641-1232.

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