Filed 7/19/22 Zielke v. Rosenstiel CA2/7
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
GUNTER ZIELKE et al., B298643
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. BC628570)
v.
SCOTT ERIC ROSENSTIEL
et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County, Gregory W. Alarcon, Judge. Affirmed.
Law Office of Chad Thomas Pratt, Sr., Chad Thomas
Pratt, Sr.; Chad T-W Pratt & Associates and Chad Thomas
William Pratt, Sr. for Defendants and Appellants.
No appearance for Plaintiffs and Respondents.
____________________________
Scott Eric Rosenstiel appeals the May 14, 2019 order
denying as untimely his special motion to strike the operative
first amended complaint pursuant to Code of Civil Procedure
section 425.16.1 We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Complaint, First Amended Complaint, Notices of
Removal to Federal Court and Remand Orders
On July 28, 2016 Gunter Zielke and his wife, Prapapun
Zielke, in their individual capacities and as trustees of the
Federal Homeowners Relief Foundation, filed a lawsuit alleging
causes of action for quiet title, breach of fiduciary duty, financial
elder abuse, fraud and conspiracy to commit fraud. The Zielkes
named as defendants Rosenstiel, Marsha Stern in her individual
capacity and as trustee of the Foundation, Randall Alan Alford
and Andrew J. Stern.
On February 13, 2018 the Zielkes moved for leave to file a
first amended complaint.2 In their motion the Zielkes stated they
had voluntarily dismissed Andrew Stern, would dismiss Alford
with their motion, and sought to add Kenneth Martin Adler as a
defendant. Attached to the Zielkes’ motion was a proposed order
stating their motion was granted and the proposed amended
complaint was deemed filed. Also attached was a proof of service
reciting the Zielkes’ motion and supporting declarations,
proposed first amended complaint and proposed order had been
1 Statutory references are to this code unless otherwise
stated.
2 We augment the record on our own motion to include the
Zielkes’ motion. (Cal. Rules of Court, rule 8.155(a)(1)(A).)
2
served on Rosenstiel and Marsha Stern. Defendants filed
oppositions to the Zielkes’ motion.3
On March 16, 2018 the trial court issued a written order
stating, “The [Zielkes’] motion is granted,” and that the Zielkes
“may serve and file the proposed First Amended Complaint
within 10 days.” The Zielkes filed a notice of ruling that, in part,
stated the first amended complaint “was deemed filed on
March 16, 2018.” The record on appeal, including the register of
actions, does not reflect that Rosenstiel or any other defendant
objected to the Zielkes’ notice of ruling.
On March 23, 2018 the Zielkes filed proofs of service
stating Adler had been served on March 20, 2018 with the first
amended complaint in his individual capacity and as the
Foundation’s trustee. On April 18, 2018 Adler filed in the
superior court a notice of stay of proceedings that, in turn,
attached a notice filed in federal district court that the case was
being removed.
On September 10, 2018 the Zielkes filed in the superior
court a proof of service stating Rosenstiel had been served on
September 5, 2018 with the first amended complaint.
The Zielkes moved in federal court to remand the action.
The remand motion was granted on September 13, 2018. In its
order the federal court stated the Zielkes in 2018 filed their first
amended complaint. Because, as the federal court explained, the
Zielkes only sought to expunge various documents from the
records of the Los Angeles County Recorder, remove all clouds on
title, and obtain damages for alleged fraudulent and otherwise
3 Defendants’ oppositions to the Zielkes’ motion were not
included in the appellate record.
3
unlawful conduct in connection with the subject property, the
first amended complaint raised no federal question. On
September 19, 2018 the district court clerk’s letter of
transmittal—which attached a copy of the federal court’s
September 13, 2018 remand order, stated the case was “hereby
remanded to your jurisdiction,” and indicated copies of the letter
were sent to the parties’ counsel of record—was filed in superior
court.
On January 30, 2019 Rosenstiel filed in the superior court a
notice of stay of proceedings that attached a notice filed in federal
court that he was removing the case to federal district court.
Also on January 30, 2019, notwithstanding the notice of ruling
stating the first amended complaint was deemed filed on
March 16, 2018, the trial court entered an order directing the
Zielkes to file the first amended complaint within 15 days.
On February 1, 2019 the Zielkes filed in the superior court
the operative first amended complaint against Rosenstiel,
Marsha Stern in her individual capacity and as trustee of the
Foundation and Adler in his individual capacity and as trustee of
the Foundation.
By order filed February 14, 2019 the district court granted
the Zielkes’ remand motion, finding the second removal was on
the same grounds as had already been rejected and “there was no
objectively reasonable basis for removal.” Characterizing the
second attempt at removal as “meritless” and “support[ing] a
finding of bad faith,” the district court also awarded the Zielkes
their attorney fees and costs incurred as a result of the second
removal. On February 20, 2019 the district court clerk’s letter of
transmittal—which attached a copy of the federal court’s
February 14, 2019 remand order, stated the case was “hereby
4
remanded to your jurisdiction,” and indicated copies of the letter
were sent to the parties’ counsel of record—was received by, and
filed in, superior court.
2. The Special Motions To Strike
On April 15, 2019 defense counsel filed a section 425.16
special motion to strike the first amended complaint on behalf of
the defendants other than Rosenstiel.4 The non-Rosenstiel
defendants argued the special motion was timely because they
had 60 days following the February 14, 2019 remand of the case
from federal court to file the motion and April 15, 2019 was
exactly 60 days from February 14, 2019.
The memorandum of points and authorities supporting the
non-Rosenstiel defendants’ special motion to strike was 14 pages
long. It explained Rosenstiel was filing his own special motion to
strike and stated, “[T]he other remaining Defendants hereby
incorporate his antiSLAPP motion into this one, as if herein
stated at length.”
Rosenstiel also filed his section 425.16 special motion to
strike the first amended complaint on April 15, 2019. The notice
of motion, as well as the memorandum of points and authorities,
stated Rosenstiel incorporated by reference the special motion to
4 Although the non-Rosenstiel defendants’ notice of motion
stated, without providing further identification, that the
“Defendants” moved to strike the first amended complaint,
Rosenstiel was not among the defendants on whose behalf that
motion was filed. As stated in the section of the settled
statement (Judicial Council of California form APP-014)
requesting information as to the reasons for the appeal,
Rosenstiel “fil[ed] one anti[-]SLAPP Motion, while the remaining
Defendants filed their own Motion.”
5
strike filed by the non-Rosenstiel defendants that same day “as if
herein stated at length.” Other than that single sentence
reference, Rosenstiel in his memorandum of points and
authorities, which was 15 pages long, did not cite section 425.16,
provide any legal discussion regarding special motions to strike
or the requirements of that statute, or argue any cause of action
in the first amended complaint arose from activity protected by
section 425.16. Rather, arguing “[p]rong II” was satisfied,
Rosenstiel addressed the reasons the Zielkes’ action should be
dismissed.
On May 3, 2019 the Zielkes filed their opposition to the
special motions to strike.
3. The Trial Court’s Order Denying Rosenstiel’s Special
Motion To Strike
The trial court issued a tentative ruling denying “[t]he
motion,” referring to the papers filed by the non-Rosenstiel
defendants and Rosenstiel in the singular. Citing the California
Rules of Court, rule 3.1113(d),5 the court stated there was a 15-
page limit for a memorandum of points and authorities in
support of a special motion to strike. It determined the
defendants “flagrantly violate[d] this rule by attempting to file a
29 page memorandum that is split in half between [Adler] and
[Rosenstiel]”; Adler’s memorandum, purporting to incorporate
Rosenstiel’s memorandum, “primarily argue[d] the first prong of
an anti-SLAPP (protected activity)”; Rosenstiel, purporting to
incorporate Adler’s memorandum, “solely argue[d] the second
prong of an anti-SLAPP (likelihood of success)”; and the result
5 References to a rule or rules are to the California Rules of
Court.
6
was they “jointly filed one motion that grossly exceeds the
permissible page limits for a memorandum of points and
authorities.” Citing rules 3.1113(g) and 3.1300(d), the court
concluded, “An excessively lengthy memorandum is treated in the
same manner as a late-filed paper and the court, in its discretion,
may refuse to consider it.”
The trial court also explained a section 425.16 special
motion to strike must be filed within 60 days after service of the
complaint or amended complaint. Quoting Newport Harbor
Ventures, LLC v. Morris Cerullo World Evangelism (2018)
4 Cal.5th 637, 645, it stated, “Defendant cannot use the fact that
plaintiff filed an amended complaint to attack claims that
appeared in a prior complaint because the anti-SLAPP statute ‘is
not a vehicle for a defendant to obtain a dismissal of claims in the
middle of litigation; it is a procedural device to prevent costly,
unmeritorious litigation at the initiation of the lawsuit.’”
Observing that, according to the proofs of service filed with
the court, Adler had been served with the first amended
complaint on March 20, 2018 and Rosenstiel on September 5,
2018 and that the defendants’ special motion to strike was filed
on April 15, 2019, “well past the 60-day period allotted under
CCP § 425.16(f),” the trial court concluded the motion was
“untimely and there [was] no good cause to permit its filing.” The
court determined the “attempt to argue that the 60-day period
runs anew after an action is remanded from federal court” did not
compel a contrary conclusion. It explained the special motion to
strike was untimely because the matter was first removed to
federal court on April 18, 2018 and remanded on September 19,
2018. Although there was a second removal attempt on
January 30, 2019, the court further explained, that second
7
attempt was untimely, there was no viable removal petition
before the federal court and the court thus had always retained
jurisdiction. The tentative ruling did not address the merits of
the defendants’ motion(s).6
On May 14, 2019, after the hearing on the motion(s), the
trial court determined the tentative ruling was to be its final
order. That same day the court filed its order denying the special
motion(s) to strike. Rosenstiel filed a timely notice of appeal.7
DISCUSSION
1. Governing Law and Standard of Review
Section 425.16, commonly known as the anti-SLAPP
statute, makes available a special motion to strike certain
meritless claims early in the litigation: “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
6 The trial court determined the special motion to strike as to
Marsha Stern was void because of her death on April 2, 2018 and
“may not be considered.”
7 Nearly two years after filing his notice of appeal Rosenstiel
on May 17, 2021 moved to augment the record to include the
reporter’s transcripts of proceedings held on March 7, 2017 and
March 8, 2017 in Los Angeles County Superior Court
No. LS029090, which he asserts are relevant to the second step of
the two-step section 425.16 analysis. The Zielkes, who otherwise
have not participated in the appeal, opposed the motion to
augment on several grounds, including that there was no
showing the transcripts were provided to the trial court in
support of the special motion(s) to strike. We deny the motion.
8
the court determines that the plaintiff has established that there
is a probability that the plaintiff will prevail on the claim.”
(§ 425.16, subd. (b)(1).) Section 425.16, subdivision (f), provides in
part, “The 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.” The Supreme Court has
interpreted section 425.16, subdivision (f), “to permit an anti-
SLAPP motion against an amended complaint if it could not have
been brought earlier, but to prohibit belated motions that could
have been brought earlier (subject to the trial court’s discretion to
permit a late motion).” (Newport Harbor Ventures, LLC v. Morris
Cerullo World Evangelism, supra, 4 Cal.5th at p. 645; accord,
Starview Property, LLC v. Lee (2019) 41 Cal.App.5th 203, 208-
209.)
In ruling on a motion under section 425.16, the trial court
engages in a now-familiar two-step process. “First, the defendant
must establish that the challenged claim arises from activity
protected by section 425.16. [Citation.] If 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.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384; accord,
Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.)
“Only a cause of action that satisfies both prongs of the anti-
SLAPP statute—i.e., that arises from protected speech or
petitioning and lacks even minimal merit—is a SLAPP, subject to
being stricken under the statute.” (Navellier v. Sletten (2002)
29 Cal.4th 82, 89, italics omitted; accord, Oasis West Realty, LLC
v. Goldman (2011) 51 Cal.4th 811, 820.) If the moving party fails
to demonstrate that any of the challenged claims for relief arise
from protected activity (the first step), the court properly denies
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the motion to strike without addressing the probability of success
(the second step). (City of Cotati v. Cashman (2002) 29 Cal.4th
69, 80-81; Verceles v. Los Angeles Unified School Dist. (2021)
63 Cal.App.5th 776, 784.)
Although a “‘trial court’s ruling on an application to file a
late anti-SLAPP motion is reviewed for an abuse of discretion’”
(Hoang v. Tran (2021) 60 Cal.App.5th 513, 526; see Newport
Harbor Ventures, LLC v. Morris Cerullo World Evangelism,
supra, 4 Cal.5th at p. 639), a trial court’s determination whether
the motion was untimely is “a question of law we review de novo”
(Starview Property, LLC v. Lee, supra, 41 Cal.App.5th at p. 208).
2. Rosensteil Failed To Establish the Trial Court
Prejudicially Erred in Denying His Special Motion To
Strike
Rosenstiel contends the trial court erred in determining his
section 425.16 special motion to strike was untimely.
Specifically, relying on this court’s opinion Morin v. Rosenthal
(2004) 122 Cal.App.4th 673 (Morin), he argues the 60-day period
to file the motion recommenced upon the February 14, 2019
remand from the federal court and his motion, filed April 15,
2019, was therefore timely.8
Rosenstiel’s reliance on Morin, supra, 122 Cal.App.4th 673
is misplaced. In that case, after the plaintiff filed his action in
8 Rosenstiel also asserts the superior court erred in
determining it had retained jurisdiction pending the second
attempt at removal to federal court, but insists whether or not
the court was divested of jurisdiction was “entirely beside the
point.” Although Rosenstiel has therefore forfeited the issue, his
argument lacks merit in view of the federal court’s finding the
second removal attempt was duplicative of Adler’s earlier
attempt, lacked merit and had been made in bad faith. (See
10
superior court, the defendants removed the action to a pending
bankruptcy court proceeding involving the parties’ company and
filed timely section 425.16 special motions to strike the complaint
in the bankruptcy court. The bankruptcy court denied the
section 425.16 motions without prejudice to their being refiled in
superior court and remanded the action. (Morin, at pp. 676-677.)
More than 90 days later the defendants refiled their special
motions to strike. (Id. at p. 677.) The trial court denied the
motions as untimely, concluding the defendants had 60 days from
the date of remand to refile their motions but had failed to do so.
Explaining “[c]ourts occasionally have to massage statutory time
limits for filings in order to accommodate unusual circumstances”
(id. at p. 679), we agreed the defendants were entitled to a new
60-day period after remand in which to refile their special
motions to strike and held the trial court had not abused its
discretion in refusing to hear the motions filed after more than
60 days had elapsed.9 (Id. at pp. 678-679.)
Morin created a special rule to accommodate the unusual
circumstances that case presented. Its holding a timely special
motion to strike filed in federal court and denied without
prejudice to refiling in superior court may be refiled within
generally ClipperJet Inc. v. Tyson (2019) 38 Cal.App.5th 521, 529
[“the second removal was both frivolous and duplicative, and for
that reason the court retained jurisdiction to rule on defendant’s
untimely motion to strike”].)
9 We clarified the period to refile the special motions to strike
ran from the date of notice of the remand, including additional
time for mailing if the notice was mailed, rather than the remand
date as the trial court had ruled. (Morin, supra, 122 Cal.App.4th
at p. 679.)
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60 days of remand does not assist Rosenstiel, who filed no such
motion in federal court and who attempted to belatedly file his
special motion to strike, not to refile one that had been expressly
denied without prejudice to refiling.
As discussed, Rosenstiel’s motion was filed on April 15,
2019, more than seven months after the September 5, 2018 date
he was served with the first amended complaint and more than
six months after the matter was first remanded in September
2018 following Adler’s April 2018 removal of the case to federal
court. Although there was a second removal attempt, this time
by Rosenstiel, on January 30, 2019, neither Morin, supra,
122 Cal.App.4th 673 nor any other case of which we are aware
holds, once the 60-day period to file a special motion to strike has
elapsed, the subsequent removal and remand of the case starts a
new 60-day period.
Implicitly acknowledging he is not entitled to a new 60-day
period after remand if the time to file the special motion to strike
had already expired before removal, Rosenstiel contends his
motion was nevertheless timely because the first amended
complaint was not actually filed until February 1, 2019 and,
although he was served with the first amended complaint on
September 5, 2018, there could be no valid service of the pleading
prior to its filing. Accordingly, Rosenstiel’s reasoning continues,
his time to file the special motion to strike (which ordinarily
would otherwise run from service of the relevant pleading) had
not yet expired before the second removal on January 30, 2019,
and under Morin his 60-day period to file the motion thus began
with the February 14, 2019 remand.
The appellate record, however, does not show Rosenstiel, in
arguing his motion was timely filed, either questioned
12
September 5, 2018 as the date he was served with the first
amended complaint or challenged the validity of the service. This
failure is significant. The Zielkes’ March 16, 2018 motion for
leave to file the first amended complaint stated the proposed first
amended complaint had been filed concurrently with that motion,
and their notice of ruling following the court order granting their
motion stated the first amended complaint was deemed filed on
March 16, 2018. (Cf. Hinds v. Superior Court of Los Angeles
County (1924) 65 Cal.App. 223, 226 [service of the proposed
amended complaint at the time of giving notice of an application
to the court for permission to file the amended complaint
constitutes sufficient service on a defendant whose counsel was
present at the hearing].) Nonetheless, on January 30, 2019 the
court entered an order directing the Zielkes to file the first
amended complaint within 15 days. Because Rosenstiel did not
raise any issue regarding the effectiveness of the September 5,
2018 service in connection with his special motion to strike, the
trial court was deprived of an opportunity to address this
apparent inconsistency in ruling on that motion and to clarify
when the first amended complaint was properly considered filed.
Accordingly, the issue has been forfeited. (See, e.g., People v.
Seumanu (2015) 61 Cal.4th 1293, 1318-1319 [failure to raise
argument in trial court results in forfeiture on appeal]; Kaufman
& Broad Communities, Inc. v. Performance Plastering, Inc. (2006)
136 Cal.App.4th 212, 226 [“CalFarm failed to raise this argument
in the trial court and thus forfeits that argument here”].)
In sum, accepting September 5, 2018 as the effective date of
service of the first amended complaint, even were we to exclude
the time during which the original removed case was pending in
federal district court, the time for Rosenstiel to file his special
13
motion to strike had expired long before the second removal on
January 30, 2019. The trial court did not err in ruling the motion
was not timely filed.10
DISPOSITION
The trial court’s May 14, 2019 order denying Rosenstiel’s
special motion to strike is affirmed. The parties are to bear their
own costs on appeal.
PERLUSS, P. J.
We concur:
SEGAL, J.
FEUER, J.
10 Insisting his motion was timely, Rosenstiel did not ask for
permission to file a late motion and does not argue on appeal the
trial court’s failure to allow a late-filed motion was an abuse of
discretion.
14