Filed 4/27/21 Ricketts v. Integrity Property Management CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
DONAT RICKETTS, B302685
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BC705085)
v.
INTEGRITY PROPERTY
MANAGEMENT, INC. et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of Los
Angeles County, Ruth Ann Kwan, Judge. Affirmed in part and
dismissed in part.
Donat Ricketts, self-represented litigant, Plaintiff and
Appellant.
Liddle & Liddle and Raymond V. Zakari for Defendants and
Respondents Valerie E. Gilbert and Monica Malek-Yonan.
Law Offices of James W. Bates and James W. Bates for
Defendants and Respondents Integrity Property Management,
Inc., and Cahuenga-North Hollywood, LLC.
__________________________
Plaintiff Donat Ricketts appeals from the judgment of
dismissal in favor of his former landlord Integrity Property
Management, Inc., the landlord’s property manager and attorneys,
and an entity related to the landlord. The trial court granted
defendants’ special motions to strike pursuant to the anti-SLAPP
statute, Code of Civil Procedure section 425.16.1 The court
concluded that Ricketts’s claims arose out of protected activity,
namely defendants’ actions in connection with an unlawful
detainer proceeding and restraining orders issued against Ricketts.
It also found that Ricketts did not establish a probability of
prevailing on his claims. The court also sustained defendants’
demurrers without leave to amend.
On appeal, Ricketts contends that the trial court erred by
striking his causes of action because they did not arise from
protected activity within the meaning of the anti-SLAPP statute.
We conclude that his appeal from these orders is untimely, and
dismiss that portion of the appeal. Ricketts also argues the trial
court erred in awarding attorney fees to the landlord under the
anti-SLAPP statute, and in sustaining the demurrers without
leave to amend. We find no error and affirm these orders.
FACTUAL AND PROCEDURAL BACKGROUND
Ricketts’s dispute with his landlord, Integrity Property
Management, Inc. (Landlord), began when Landlord asserted that
Ricketts was behind in his rent, and Ricketts claimed that
Landlord had allowed a third party to burglarize his apartment.
The parties’ disagreement ballooned into an unlawful detainer
proceeding, a small claims action, multiple restraining orders
issued against Ricketts, Ricketts’s arrest for violating a restraining
1 All further undesignated statutory references are to the Code
of Civil Procedure.
2
order, and, ultimately, Ricketts’s current action against Landlord
and related parties.
1. Ricketts’s Complaint
On May 4, 2018, Ricketts filed the current action against
Landlord, Landlord’s property manager Cherry Hein (Hein), and
Landlord’s attorneys, Valerie Gilbert and Monica Malek-Yonan
(Attorney-Defendants) alleging causes of action for breach of
contract, fraud, retaliatory eviction, forcible entry, trespass, illegal
lockout, intentional infliction of emotional distress, injury to
reputation, abuse of process, malicious prosecution, and false
arrest/false imprisonment.
Ricketts’s claims were based on the following allegations: On
October 3, 2017, Ricketts gave notice he was terminating his lease
of Landlord’s apartment. Landlord’s agent accepted his “30-days
notice” but informed Ricketts that his rent was “due for October”
and the “security deposit is not considered last month[’]s rent.”
Landlord soon after threatened to file an unlawful detainer action
and conspired with Hein to allow a third party to burglarize his
apartment. Ricketts’s suitcase was stolen from his apartment.
Landlord initiated an unlawful detainer action against
Ricketts, and Ricketts filed a small claims action against Landlord
for damages arising from his stolen property. The small claims
action was resolved against Ricketts when Landlord “committed
intrinsic fraud to win.” While the unlawful detainer action was
pending, Hein obtained a restraining order against Ricketts based
on “fabricated” statements and a “fake 3-day-notice to pay/quit[].”
Hein then made a “false police report” concerning Ricketts, and the
police arrested him for violating the restraining order, causing his
“false imprisonment.” Landlord proceeded to obtain its own
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“meritless” restraining order against Ricketts by filing
“fraud[ulent] documents” in the trial court.
Ricketts’s complaint also alleged that due to a “clerical
error,” Ricketts lost the unlawful detainer action, and the sheriff
executed a writ of possession, locking him out of the apartment.
As summarized by the trial court, the complaint then alleged that
the police proceeded to issue a bench warrant for Ricketts’s arrest
after Hein called the police to “enforce an illegal lockout.” The
unlawful detainer judgment was ultimately set aside and Landlord
dismissed that action as Ricketts was no longer in possession of the
property.
2. Defendants’ First Anti-SLAPP Motion
Landlord and Hein jointly moved to strike the complaint
under section 425.16, as did the Attorney-Defendants. On
October 23, 2018, the trial court granted the motions as to all cases
of action except the fraud and false imprisonment claims. The
court found that “[t]he alleged acts of filing complaints/UD actions,
making statements during court hearings/submitting evidence
during court proceedings, seeking/enforcing restraining orders,
enforcing court orders, and serving a three-day notice constitute
protected activities under C.C.P. § 425.16.” The court further
found that Ricketts did not submit admissible evidence to establish
a probability of prevailing on his claims. The court on its own
motion struck the fraud and false imprisonment causes of action
for failure to allege sufficient facts to constitute a cause of action,
and granted Ricketts leave to amend only these claims.
Ricketts moved for reconsideration two days later, which the
trial court denied. The court subsequently granted Landlord’s
motion for attorney fees in the amount of $7,010.
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3. The First Amended Complaint
On January 23, 2019, Ricketts filed a first amended
complaint (FAC) for false arrest, false imprisonment, and 13
additional causes of action. Landlord and Hein moved to strike the
FAC and to specially strike it under section 425.16. The Attorney-
Defendants demurred to the FAC. On April 4, 2019, the court
struck the FAC in its entirety because it “violated the court’s order
and exceeded the scope of leave to amend.” Defendants’ other
motions and demurrers became moot. The court allowed Ricketts
“one last chance to file an amended complaint.”
4. The Second Amended Complaint
On April 8, 2019, Ricketts filed a second amended complaint
(SAC) for fraud (against all defendants) and false arrest/false
imprisonment (against Hein and Landlord). The SAC also named
as a defendant Cahuenga-North Hollywood, LLC (Cahuenga-
North), and alleged that Cahuenga-North was the owner of the
subject property and may have “ties to the attorneys of record, the
Superior Court of Los Angeles and judges within Los Angeles
County.”
The fraud cause of action alleged that “Defendants
knowingly and willfully concealed material facts” during the
unlawful detainer trial, and Attorney-Defendants “encouraged”
Landlord and Hein to file “false police reports in order to convince
the Superior Court” to grant “frivolous” restraining orders. As to
Cahuenga-North, the SAC alleged that this entity’s owner “could
have financial, moral or any other ties with judges.”
The false arrest/false imprisonment claim alleged that in
retaliation for Ricketts’s requesting a jury trial in the unlawful
detainer action, Landlord and Hein obtained a restraining order by
submitting a “fake 3-Day Notice to Pay/Quit” to the court. Ricketts
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subsequently texted Hein, who called the police for sending
“threatening text messages.” The police arrested Ricketts, and
detained him for four days.
5. Landlord and Hein’s Anti-SLAPP Motion and Attorney-
Defendants’ and Cahuenga-North’s Demurrers to the
SAC
Landlord and Hein jointly moved to strike the SAC under
section 425.16, and the Attorney-Defendants raised a general
demurrer. Cahuenga-North demurred as well, arguing there were
“no complaint allegations against” it, and that the fraud cause of
action was uncertain.
On July 11, 2019, the trial court sustained the demurrers
without leave to amend and granted the anti-SLAPP motion. As to
the Attorney-Defendants’ demurrer, the court concluded that
Ricketts had failed “to plead with specificity what fraudulent acts
defendants Gilbert and Malek-Yon[e]n committed against
plaintiff.” As to Cahuenga-North’s demurrer, the court concluded
that Ricketts had “failed to allege any facts to establish any of the
elements of fraud” as to this defendant.
As to the special motion to strike, the court found that the
fraud and false arrest causes of action were based on Landlord and
Hein’s alleged filing of false police reports. The trial court
reasoned that while “making a false police report is not a protected
activity under C.C.P. § 425.16 . . . ‘when allegations of making
false reports are controverted, they are insufficient to render that
alleged conduct unlawful as a matter of law and outside the
protection of section 425.16.’ ”2 The trial court noted that Hein’s
2 Making a false police report is not “protected activity” under
the anti-SLAPP statute. (Lefebvre v. Lefebvre (2011)
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account of Ricketts’s violation of the restraining order was
consistent with statements made by Landlord’s office manager.
The court concluded the alleged false police reports were
controverted and, therefore, protected activity for purposes of the
anti-SLAPP motion.
The trial court further found that Ricketts did not submit
admissible evidence to establish the probability of prevailing on
the false police report claims. Specifically, he “failed to produce
any evidence indicating [Landlord] and Hein’s actions are not
privileged—that their reports to the police were uncontrovertibly
false.”
Ricketts moved for reconsideration, and some two months
later, on September 26, 2019, the trial court denied the motion. On
October 17, 2019, the court entered a judgment of dismissal.
Ricketts appealed on November 27, 2019.
DISCUSSION3
1. Untimeliness of Appeal of the Anti-SLAPP Orders
On appeal, Ricketts challenges the trial court’s orders
granting the anti-SLAPP motions to the original complaint and
SAC, the order granting attorney fees to Landlord in connection
with Landlord’s first anti-SLAPP motion, and the order sustaining
Attorney-Defendants’ and Cahuenga-North’s demurrers to the SAC
199 Cal.App.4th 696, 703.) However, “when allegations of making
false reports are controverted, they are insufficient to render that
alleged conduct unlawful as a matter of law and outside the
protection of section 425.16.” (Kenne v. Stennis (2014)
230 Cal.App.4th 953, 967.)
3 We grant Ricketts’s request for judicial notice as to Exhibits
11 through 22 and the September 26, 2019 minute order, and deny
the request as to Exhibits 10 and 23.
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without leave to amend. There is no dispute that Ricketts timely
appealed from the order sustaining the demurrers as he filed his
notice of appeal within 60 days of being served with the court’s
notice of entry of dismissal. (See Cal. Rules of Court (CRC), rule
8.104(a)(1).)4 Ricketts’s appeal of the order granting attorney fees
was likewise timely as such an order is reviewable on a timely
appeal from the judgment. (See Martin v. Inland Empire Utilities
Agency (2011) 198 Cal.App.4th 611, 632.) However, Ricketts did
not timely appeal the trial court’s orders granting the anti-SLAPP
motions to the original complaint and SAC, but only from
October 17, 2019 judgment that followed later. This failure
requires us to dismiss his appeal from those orders.
“[T]he filing of a timely notice of appeal is a jurisdictional
prerequisite. ‘Unless the notice is actually or constructively filed
within the appropriate filing period, an appellate court is without
jurisdiction to determine the merits of the appeal and must dismiss
the appeal.’ [Citations.]” (Silverbrand v. County of Los Angeles
(2009) 46 Cal.4th 106, 113.) “Whether a trial court’s order is
appealable is determined by statute. [Citation.] The anti-SLAPP
statute provides that an ‘order granting or denying a special
motion to strike shall be appealable’ under section 904.1.
(§ 425.16, subd. (i).) Section 904.1 likewise provides that ‘[a]n
appeal . . . may be taken . . . [f]rom an order granting or denying a
special motion to strike under [s]ection 425.16.’ (§ 904.1, subd.
(a)(13).)” (Reyes v. Kruger (2020) 55 Cal.App.5th 58, 67.) An order
granting or denying an anti-SLAPP motion is a separately
appealable order and is not tethered to the final judgment in the
case. As explained in Reyes, the Court of Appeal in Maughan v.
4 All further undesignated rule references are to the California
Rules of Court.
8
Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1247, “found
it had no jurisdiction to consider the appeal from an order granting
the defendant’s motion to strike the complaint under the anti-
SLAPP statute, because the order was ‘final when made, and thus
appealable’ despite the trial court’s later issuance of a judgment
and related order granting attorney fees and costs.” (Reyes, at
p. 68.)
Here, the court’s order striking portions of the original
complaint—all causes of action except for fraud and false
imprisonment—was entered on October 23, 2018. Generally, the
“deadline to appeal an order granting a special motion to strike is
60 days after service by the clerk of a filed-endorsed copy of the
order granting the anti-SLAPP motion, or 60 days after notice of
entry of that order is served by a party, whichever is earlier.
(CRC, rule 8.104(a)(1), (e).)” (Marshall v. Webster (2020)
54 Cal.App.5th 275, 280.) However, because Ricketts filed a
motion for reconsideration two days after the court’s order, the
time for filing the notice of appeal was extended until 90 days after
his motion to reconsider was filed. (See CRC, rule 8.108(e).)5 The
90th day was January 23, 2019. Ricketts did not file a notice of
5 CRC rule 8.108(e) provides: “If any party serves and files a
valid motion to reconsider an appealable order under Code of Civil
Procedure section 1008, subdivision (a), the time to appeal from
that order is extended for all parties until the earliest of:
(1) 30 days after the superior court clerk or a party serves an order
denying the motion or a notice of entry of that order;
(2) 90 days after the first motion to reconsider is filed; or
(3) 180 days after entry of the appealable order.” The earliest of
these time periods here was 90 days after the first motion to
reconsider was filed.
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appeal of the first anti-SLAPP order until after his time for appeal
had expired. The mark was missed considerably—Ricketts’s notice
of appeal was filed more than 10 months later on November 27,
2019.
As to the court’s later order granting the anti-SLAPP motion
on the fraud and false imprisonment causes of action that were re-
alleged in the SAC, that order was entered on July 11, 2019.
Ricketts moved for reconsideration the next day. Ninety days from
the filing of his motion for reconsideration elapsed on October 10,
2019. Ricketts did not appeal within that time, but, as we have
earlier stated, Ricketts filed his notice of appeal on November 27,
2019.
We conclude that Ricketts’s appeal of the October 23, 2018
and July 11, 2019 orders granting the anti-SLAPP motions is
untimely, and is not cognizable on appeal from the October 17,
2019 judgment.6 The appeal of these orders must be dismissed.
(See Maughan v. Google Technology, Inc., supra, 143 Cal.App.4th
at p. 1247.)
2. Appeal of Order Awarding Attorney Fees
Because the order awarding attorney fees is reviewable on
the appeal from the judgment, Ricketts’s appeal on this issue is
timely. We address the merits.
Ricketts briefly argues the trial court should have limited
Landlord’s attorney fees in connection with the Landlord’s first
anti-SLAPP motion to $500. He cites to a provision in the rental
6 Because Ricketts’s appeal from the order granting the anti-
SLAPP motion is untimely, the related orders denying Ricketts’s
motion for reconsideration are not reviewable. (See § 1008,
subd. (g).)
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agreement that purportedly provides, “if any legal action or
proceeding be brought by either party to enforce any part of this
agreement, the prevailing party shall be entitled to recover
attorney fees not to exceed $500.” Ricketts does not support this
contention with any further argument, such as explaining why the
current action should be deemed a legal action brought to “enforce”
his lease agreement with Landlord, or whether the $500 limitation
applies to statutory attorney fees under section 425.16, subdivision
(c)(1). As Ricketts also does not cite to any legal authority, we
treat this contention as waived. (See In re Marriage of Falcone &
Fyke (2012) 203 Cal.App.4th 964, 1004.)
3. Appeal of Judgment Following Sustaining of
Demurrers
Because the orders sustaining the demurrers are also
reviewable on the appeal from the judgment, Ricketts’s appeal on
this issue is also timely. We address the merits.
Ricketts argues the trial court abused its discretion in
sustaining the Attorney-Defendants’ demurrer to the SAC without
leave to amend because “additional facts” could have been
uncovered during discovery.7 However, he does not identify on
appeal what new, specific “facts” would cure the defects in the
complaint, and thus, has not met his burden of showing that those
7 Ricketts also argues the trial court erred in denying his ex
parte application for discovery. However, the October 23, 2018 ex
parte application to which he cites was filed in response to
“defendant’s objection to plaintiff’s response to anti-SLAPP
motions.” Ricketts mentioned discovery in the application but did
not ask the trial court for an order permitting discovery. (See
§ 425.16, subd. (g) [“The court, on noticed motion and for good
cause shown, may order that specified discovery be conducted
. . . .”].)
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defects could be cured by amendment. (See California Logistics,
Inc. v. State of California (2008) 161 Cal.App.4th 242, 247 [“it is an
abuse of discretion for the court to sustain a demurrer without
leave to amend if the plaintiff has shown there is a reasonable
possibility a defect can be cured by amendment.”].) We also
observe that the trial court provided Ricketts with two
opportunities to amend his complaint to cure its defects.
As to Cahuenga-North’s demurrer, Ricketts argues the court
should not have sustained that demurrer because this defendant
owed “a fiduciary duty to” Landlord. He does not develop this
argument further or cite to supporting authority and, thus, we
treat this contention as waived. (See Marriage of Falcone & Fyke,
supra, 203 Cal.App.4th at p. 1004.)
DISPOSITION
The appeal of the court’s October 23, 2018 and July 11, 2019
orders granting the anti-SLAPP motions is dismissed as untimely.
The judgment is otherwise affirmed. Respondents are awarded
their costs on appeal.
RUBIN, P. J.
WE CONCUR:
BAKER, J.
MOOR, J.
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