Wilson v. Dagostino CA4/1

Filed 2/17/21 Wilson v. Dagostino CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for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.

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

GRACE WILSON, D076886

Plaintiff and Appellant,

v. (Super. Ct. No. 37-2017-
00009820-CU-DF-CTL)
JOSEPH DAGOSTINO,

Defendant and Respondent.

APPEAL from an order of the Superior Court of San Diego County,
Timothy B. Taylor, Judge. Affirmed.
Grace Wilson, in pro. per., for Plaintiff and Appellant.
Gruenberg Law and Pamela Vallero, for Defendant and Respondent.

In an earlier appeal in this action, we reversed an order granting a
special motion to strike the complaint under California’s anti-SLAPP statute,
Code of Civil Procedure section 425.16, brought by defendant Joseph
Dagostino.1 (Wilson v. Landry (Sept. 18, 2018, D072948) [nonpub. opn.]
(Wilson).) On remand, pursuant to section 425.16, subdivision (c)(1), plaintiff
Grace Wilson filed a motion for attorney fees and costs on the basis that
Dagostino’s anti-SLAPP motion was frivolous or solely intended to cause
unnecessary delay. The trial court denied Wilson’s motion, ruling that she
did not meet her burden. Wilson appeals from the order denying her motion.
As we explain, although the order denying Wilson’s motion for attorney
fees and costs is not an appealable order, we will liberally construe Wilson’s
notice to be an appeal from the later-entered judgment of dismissal. In
reaching the merits, as we further explain, Wilson did not meet her burden of
establishing that the trial court abused its discretion. Accordingly, we will
affirm the order denying Wilson’s motion for attorney fees.
I. STATEMENT OF THE CASE
As relevant to this appeal, in this action, Wilson alleged one cause of
action for slander against Dagostino (and Steve Landry, who is not a party to
the appeal) based on statements Dagostino (and Landry) allegedly
communicated to the effect that Wilson tried to injure him with her car. The
defamatory nature of these statements, according to Wilson, was that they
“ ‘charge[d] [her] with having committed a crime.’ ”
In response, pursuant to the anti-SLAPP statute, Dagostino filed, and
the trial court granted, a special motion to strike the complaint (§ 425.16,

1 Further unidentified statutory references are to the Code of Civil
Procedure.
“ ‘ “SLAPP” is an acronym for “strategic lawsuit against public
participation.” ’ ” (Sweetwater Union High School Dist. v. Gilbane Building
Co. (2019) 6 Cal.5th 931, 938, fn. 5.) The anti-SLAPP statute, section 425.16,
sets forth the standards and procedure for striking the complaint in a
SLAPP. (Sweetwater Union, at p. 940.)

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subd. (b)(1)2) and a later motion for attorney fees and costs (§ 425.16,

subd. (c)(1)3). In Wilson, supra, D072948, we reversed the judgment of
dismissal as to Dagostino and vacated the order awarding Dagostino attorney
fees and costs—both of which followed, and were based on, the grant of his
anti-SLAPP motion. More specifically, we ruled: “Dagostino . . . met his
initial burden of establishing that the applicable claim arose from his right of
free speech”; and “in response, . . . Wilson met her burden of presenting facts
sufficient to establish a prima facie case of slander as to Dagostino.”
More than eight months after issuance of the remittitur in Wilson,
supra, D072948, Wilson filed a motion for prevailing party attorney fees and
costs under subdivision (c)(1) of the anti-SLAPP statute (§ 425.16,

subd. (c)(1)4). Following full briefing and oral argument, the trial court
denied the motion. In a minute order filed August 30, 2019 (August 2019
Order), the court ruled in relevant part: “[Wilson] has not established that

2 Section 425.16, subdivision (b)(1) provides in full: “A cause of action
against a person arising from any act of that person in furtherance of the
person’s right of petition or free speech under the United States Constitution
or the California Constitution in connection with a public issue shall be
subject to a special motion to strike, unless the court determines that the
plaintiff has established that there is a probability that the plaintiff will
prevail on the claim.”

3 In part, section 425.16, subdivision (c)(1) provides: “[A] prevailing
defendant on a special motion to strike shall be entitled to recover his or her
attorney’s fees and costs.”

4 In part, section 425.16, subdivision (c)(1) provides: “If the court finds
that a special motion to strike is frivolous or is solely intended to cause
unnecessary delay, the court shall award costs and reasonable attorney’s fees
to a plaintiff prevailing on the motion, pursuant to Section 128.5.”

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Dagostino’s special motion to strike was ‘frivolous or [was] solely intended to
cause unnecessary delay.’ ” (Citing § 425.16, subd. (c)(1); see fn. 4, ante.)
In October 2019, Wilson appealed from the August 2019 Order.
In November 2019, the trial court issued an “OSC – Why Case Should
Not be Dismissed.” Later that month, on the date scheduled for a hearing on

the OSC, the court dismissed the entire action with prejudice.5
II. DISCUSSION
Before an appellate court reaches any substantive issue in an appeal,
the court must always consider jurisdiction. (Jennings v. Marralle (1994) 8
Cal.4th 121, 126 (Jennings) [reviewing court must raise issue of appellate
jurisdiction “on its own initiative” whenever a doubt exists]; Olson v.
Cory (1983) 35 Cal.3d 390, 398 [“since the question of appealability goes to
our jurisdiction, we are dutybound to consider it on our own motion”].) For
this reason, shortly after receiving this appeal and prior to the filing of the
record on appeal, we issued an order, advising and directing the parties in
part as follows:
“A split of authority exists as to whether an order awarding
or denying attorney[ ] fees under section 425.16 is
appealable under either that provision or the collateral
order doctrine cited by Wilson in her civil case information
statement. (Compare Doe v. Luster (2006) 145 Cal.App.4th
139, 145 [holding interlocutory order awarding or denying
fees in anti-SLAPP context is not appealable] with
Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265, 273-
274 [holding interlocutory order awarding or denying fees
in anti-SLAPP context is appealable].) The parties,

5 Although Wilson did not include in the record on appeal copies of either
the OSC or the order of dismissal (and, thus, we do not know the basis of
either), the register of actions reflects the November 2019 filings of both the
OSC and the dismissal.

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 therefore, are requested to address the issue of
appealability of the order in their briefs.”
The parties complied with this request in their merits briefs.
Wilson argues that the August 2019 Order is appealable on the
following grounds: (1) It is a collateral order, and as such is immediately
appealable; and, in any event, (2) the trial court dismissed the action with
prejudice in November 2019, thereby rendering the jurisdictional issue
“moot.” Dagostino disagrees in part, arguing: (1) The August 2019 Order is
not a collateral order, and thus not appealable; but, in any event, (2) because
the trial court dismissed the action with prejudice in November 2019, the
appeal may proceed.
As we explain, we will liberally construe Wilson’s notice of appeal to
allow appellate jurisdiction to review the August 2019 Order. In reaching the
merits, as we further explain, Wilson did not meet her burden of establishing
reversible error.
A. Jurisdiction
Appellate courts have jurisdiction over a direct appeal, like the present
one, only where there is an appealable order or judgment. (Griset v. Fair
Political Practices Com. (2001) 25 Cal.4th 688, 696; Jennings, supra, 8
Cal.4th at p. 126 [an appealable order or judgment “is a jurisdictional
prerequisite to an appeal”].) “A trial court’s order is appealable when it is
made so by statute.” (Griset, at p. 696; accord, Dana Point Safe Harbor
Collective v. Superior Court (2010) 51 Cal.4th 1, 5 [“right to appeal is wholly
statutory,” citing § 904.1].)
In California, the right to appeal is generally governed by the “one final
judgment rule”—by which an appeal lies only from a final judgment that
terminates the trial court proceedings by completely disposing of the matter
in controversy between adversaries. (In re Baycol Cases I and II (2011) 51

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Cal.4th 751, 754, 756.) Section 904.1 contains a general list of appealable
orders and judgments in California. (City of Colton v. Singletary (2012) 206
Cal.App.4th 751, 780 (Singletary).) Subdivision (a)(1) “codifies the common
law one final judgment rule.” (Baycol Cases, at p. 756.) In addition,
subdivisions (a)(2)-(a)(13) “list[ ] various specific additional appealable orders

that stand as exceptions to the general rule.” (Baycol Cases, at p. 756, fn. 3.)6
“ ‘[E]xceptions to the one final judgment rule should not be allowed unless
clearly mandated.’ ” (Id. at p. 757.)
A prejudgment order denying a motion for attorney fees and costs
(like the August 2019 Order here) is not appealable under any statute cited
by the parties or known to the court. Nonetheless, California Rules of Court,
rule 8.100(a)(2) directs that a “notice of appeal must be liberally construed”
and “is sufficient if it identifies the particular judgment or order being
appealed.” Pursuant to this directive, our Supreme Court recently
summarized: “Rule 8.100(a)(2)’s liberal construction requirement reflects the
long-standing ‘ “law of this state that notices of appeal are to be liberally
construed so as to protect the right of appeal if it is reasonably clear what
[the] appellant was trying to appeal from, and where the respondent could
not possibly have been misled or prejudiced.” ’ ” (K.J. v. Los Angeles Unified
School Dist. (2020) 8 Cal.5th 875, 882, quoting In re Joshua S. (2007) 41
Cal.4th 261, 272.) Here, Wilson’s notice of appeal complies with the liberal
standard we are to apply. In the language of K.J., the notice “ ‘ “is reasonably

6 Section 904.1, subdivision (a) contains 14 separately numbered
paragraphs and provides in part: “An appeal, other than in a limited civil
case, may be taken from any of the following: [¶] (1) From a judgment,
except an interlocutory judgment, other than as provided in paragraphs (8),
(9), and (11) . . . . [¶] (2) From an order made after a judgment made
appealable by paragraph (1). [¶] . . . [¶] (14) . . . .”

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clear” ’ ” that Wilson intended to appeal from the August 2019 Order;7 and,
significantly, based on the presentation in his brief on appeal, Dagostino
“ ‘ “could not possibly have been misled or prejudiced.” ’ ”
Accordingly, we construe Wilson’s notice of appeal (as to the August
2019 Order) as perfecting a timely appeal from the November 2019 order
dismissing the action with prejudice, and we proceed to review the August

2019 Order.8
B. Merits
Wilson filed a motion “for an Order for Attorneys’ Fees and Costs after
order granting anti-slapp motion overturned on appeal.” (Sic.) She based her
motion on section 425.16, subdivision (c)(1), which requires an award of fees
and costs “pursuant to Section 128.5” to a plaintiff who prevails on a
defendant’s anti-SLAPP motion and establishes that the defendant’s motion
was frivolous or solely intended to cause unnecessary delay. (See fn. 4, ante.)
Following full briefing and oral argument, the court denied the motion, ruling
that Wilson did not meet her burden of establishing that Dagostino’s
anti-SLAPP motion was frivolous or solely intended to cause unnecessary
delay.

7 Wilson gave notice that she was appealing from the “08/30/2019” order
based on the “Trial Court’s Failure to award costs . . . as well as attorney
fees/costs.” According to the register of actions, the only order filed
August 30, 2019, is the court’s order denying Wilson’s section 425.16,
subdivision (c)(1) motion for attorney fees and costs (previously identified as
the August 2019 Order).

8 We express no opinion as to the applicability of the collateral order
doctrine for purposes of establishing appellate jurisdiction to review the
August 2019 Order.

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 Wilson complains about many things on appeal which have nothing to
do with the August 2019 Order. For example, and without limitation, Wilson
claims that Dagostino’s attorneys violated various sections of the Penal Code,
accuses the trial judge of (and seeks his removal on remand for) bias, and
challenges the credibility of certain testimony in the 2017 anti-SLAPP
proceedings that resulted in Wilson, supra, D072948. However, in our review
of the August 2019 Order, all that is before us, and all that we determine, is
whether the trial court erred in denying Wilson’s section 425.16,
subdivision (c)(1) motion for attorney fees and costs.
1. Law
If the trial court finds that the defendant’s filing of an anti-SLAPP
motion was “frivolous or . . . solely intended to cause unnecessary delay,” then
the court is required to award sanctions, comprised of costs and reasonable
attorney fees “pursuant to Section 128.5,” to the plaintiff who prevails on
such a motion. (§ 425.16, subd. (c)(1); see Ketchum v. Moses (2001) 24 Cal.4th
1122, 1131; fn. 4, ante.) Frivolous in this context “requires a finding the
anti-SLAPP ‘motion is “totally and completely without merit” (§ 128.5,
subd. (b)(2))’ ”—which means that “ ‘ “any reasonable attorney would agree
such motion is totally devoid of merit” ’ ” (Moore v. Shaw (2004) 116
Cal.App.4th 182, 199; see In re Marriage of Flaherty (1982) 31 Cal.3d 637,
649-650 [frivolous appeal]).
We review an order denying attorney fees under section 425.16,
subdivision (c)(1), for an abuse of discretion. (Workman v. Colichman (2019)
33 Cal.App.5th 1039, 1056 [appeal from order denying such fees].) A ruling
under section 425.16, subdivision (c)(1), amounts to an abuse of discretion
“when it exceeds the bounds of reason, and the burden is on the party
complaining to establish that discretion was abused.” (Gerbosi v. Gaims,

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Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 450 [appeal from
order granting such fees].)
Wilson represented herself in the trial court and now represents herself
in this appeal. The procedural rules apply the same to her and her
submissions as to a party represented by counsel. (Rappleyea v. Campbell
(1994) 8 Cal.4th 975, 984-985 [“the rules of civil procedure must apply
equally to parties represented by counsel and those who forgo attorney
representation”]; accord, Burkes v. Robertson (2018) 26 Cal.App.5th 334, 344-
345 [“ ‘ “the same restrictive procedural rules” ’ ” apply to self-represented
litigants]; Nwosu v. Uba (2004) 122 Cal.App.4th 1229, 1246-1247 [self-
represented party “not exempt” from procedural rules on appeal].) The fact
that a party is representing herself is not a basis for special treatment that
would be unfair to the other litigants. (Rappleyea, at pp. 984-985; McClain v.
Kissler (2019) 39 Cal.App.5th 399, 416; see Advisory Com. com., Cal. Code
Jud. Ethics, canon 3B(8).) Thus, to the extent Wilson’s self-represented
status contributed to deficiencies in the presentation of her motion in the
trial court or of her case on appeal, it does not excuse them. (Rappleyea, at
p. 984 [self-representation is not a basis for lenient treatment]; Nwosu, at
pp. 1246-1247.)
2. Analysis
Initially, we note that Wilson does not suggest in her appellate brief
that Dagostino brought his anti-SLAPP motion to delay, let alone attempt to
establish that his motion was “solely intended to cause unnecessary delay” as
required for an award of fees under section 425.16, subdivision (c)(1). Thus,
we consider only whether Wilson met her burden of establishing that the trial
court abused its discretion in ruling that Dagostino’s anti-SLAPP motion was
not frivolous—i.e., not “totally and completely without merit” (§ 128.5,

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subd. (b)(2)). As we explain, Wilson has not met—and, given the record in
this case, cannot meet—this burden.
In Wilson, supra, D072948, we explained that, when applying the
anti-SLAPP statute, “a court generally is required to engage in a two-step
process”: “ ‘First, the defendant must establish that the challenged claim
arises from activity protected by section 425.16’ ”; and second, “ ‘[i]f the
defendant makes the required showing, the burden shifts to the plaintiff to
demonstrate the merit of the claim by establishing a probability of success.’ ”
(Quoting Baral v. Schnitt (2016) 1 Cal.5th 376, 384.)
In our de novo review in Wilson, supra, D072948, we concluded in part
that, contrary to Wilson’s presentation in that appeal, for purposes of the first
step of the analysis, Dagostino met his burden of establishing that Wilson’s
claim against him arose from protected activity. More specifically, in
reaching this conclusion, we ruled that Dagostino established that the
statements Wilson alleged to be defamatory “were made in connection with

an issue of public interest under [section 425.16], subdivision (e)(4).”9 Thus,
very simply, in bringing his anti-SLAPP motion, Dagostino met his only
burden. On this basis alone, the trial court properly exercised its discretion
in ruling that Dagostino’s anti-SLAPP motion was not frivolous.
In Wilson, supra, D072948, we further concluded that, as part of the
second step of the analysis, Wilson “present[ed] evidence of a prima facie
showing of facts which, if accepted by a trier of fact, would establish [a] case

9 Section 425.16, subdivision (e) provides in part: “As used in this section
[at subdivision (b)(1)], ‘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: . . . (4) any other conduct in furtherance of the
exercise of the constitutional right of petition or the constitutional right of
free speech in connection with a public issue or an issue of public interest.”

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of slander against Dagostino and negate the potential application of the two
affirmative defenses Dagostino raised in the anti-SLAPP motion.” However,
this ruling only established that Wilson met her responsive burden, thus
entitling her to prevail on Dagostino’s anti-SLAPP motion. Under the
anti-SLAPP statute (§ 425.16, subd. (b)(1)), a showing that the defendant did
or did not do the act alleged in the complaint concerns only the second step
determination; such a showing does not affect the defendant’s burden under
the first step to establish that the act is a protected activity for anti-SLAPP
purposes. (See Simmons v. Bauer Media Group USA, LLC (2020) 50
Cal.App.5th 1037, 1047; Malin v. Singer (2013) 217 Cal.App.4th 1283, 1302.)
Wilson emphasizes that, for purposes of her motion, the trial court was
required to consider certain additional evidence which, had it been
considered, establishes the frivolousness of Dagostino’s anti-SLAPP motion.
We disagree; the law of the case doctrine required the trial court to apply our
prong one ruling in Wilson, supra, D072948, just as it requires us to apply it
in this appeal. The law of the case doctrine provides that any principle or
rule of law stated in a final appellate court opinion that is “ ‘necessary’ ” to
the appellate decision must be followed in all subsequent proceedings in the
action, whether in the trial court or a later appeal. (Morohoshi v. Pacific
Home (2004) 34 Cal.4th 482, 491; 9 Witkin, Cal. Procedure (5th ed. 2008)
Appeal, § 459, p. 515.) Under this doctrine, “the case may not go over ground
that has been covered before in an appellate court” by way of final opinion.
(Sargon Enterprises, Inc. v. University of Southern California (2013) 215
Cal.App.4th 1495, 1506.) Here, because our ruling that Dagostino met his
prong one burden was necessary to the disposition of Wilson, supra, D072948,
the trial court properly applied it in Wilson’s later proceedings for fees and
costs, and we apply it in this appeal.

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 In short, since Dagostino in fact prevailed in establishing that Wilson’s
claim against him arose from activity that is protected by the anti-SLAPP
statute, Wilson did not meet her burden in this appeal of establishing that
the trial court abused its discretion in denying her motion for attorney fees

and costs.10 Stated differently, because Wilson did not—and, on this record,
could not—establish that any reasonable attorney would agree that
Dagostino’s anti-SLAPP motion was totally devoid of merit, Wilson did not
meet her burden of showing that the trial court’s decision denying her motion
exceeded the bounds of reason.

10 Throughout her appellate brief, Wilson contends that, in Wilson, supra,
D072948, we directed the trial court to award her attorney fees and costs, but
that the trial court “ignored” this order. Wilson is wrong. In Wilson, we
awarded her “costs on appeal from the trial court’s rulings in favor of
Dagostino. ([Cal. Rules of Court, r]ule 8.278(a)(1), (3).)” Rule 8.278, which
applies to an award of costs on appeal, tells a prevailing party in a civil
appeal exactly what costs she is entitled to (attorney fees is not among them)
and the procedure for claiming those costs (which does not involve a motion
in the trial court). However, Wilson made no attempt to seek appellate costs
under rule 8.278 (as awarded), instead seeking sanctions for a frivolous filing
under section 425.16, subdivision (c)(1). Although the anti-SLAPP statute
allows a litigant like Wilson to seek an award of attorney fees and costs as
sanctions (ibid.), Wilson, supra, D072948 did not mention, let alone direct,
Wilson’s entitlement to attorney fees or costs based on having to respond to
Dagostino’s anti-SLAPP motion.

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 III. DISPOSITION
The August 2019 Order is affirmed. Dagostino is entitled to his costs
on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)

IRION, J.

WE CONCUR:

BENKE, Acting P. J.

DATO, J.

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