Filed 6/21/13 Williams v. Jones & Jones Management CA2/3
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.


              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                 DIVISION THREE



JANN WILLIAMS et al.,                                                      B236401

         Plaintiffs and Appellants,                                        (Los Angeles County
                                                                           Super. Ct. No. BC461146)
         v.

JONES & JONES MANAGEMENT, INC.,
et al.,

         Defendants and Respondents.




         APPEAL from an order of the Superior Court of Los Angeles County,

Holly E. Kendig, Judge. Affirmed.

         Ronald Williams and Jann Williams, in pro. per., for Plaintiffs and Appellants.

         Freeman, Freeman & Smiley and Curtis A. Graham for Defendants and

Respondents.

                            _______________________________________
                                    INTRODUCTION

       Plaintiffs appeal an order granting defendants‟ special motion to strike the

complaint under Code of Civil Procedure section 425.16, the anti-SLAPP statute.

Plaintiffs argue that the statute did not apply because the complaint was based on their

constitutional right to sue for forcible detainer. We conclude that the trial court

correctly found that the complaint arose from activity protected by the anti-SLAPP

statute.1 Plaintiffs also appeal from several interim orders by the trial court which are

non-appealable. We do not have jurisdiction to consider the appeal from those orders.

                  FACTUAL AND PROCEDURAL BACKGROUND

       On August 15, 1998, defendant Jones & Jones Management, Inc. (Jones & Jones)

and plaintiff Jann Williams (Ms. Williams) entered into a residential lease of the subject

property (Property). On July 12, 2010, Jones & Jones filed a complaint for unlawful

detainer on the grounds that Ms. Williams had failed to pay her rent and had been

served with a three-day notice to pay rent or quit. Default judgment was entered against

Ms. Williams.

       On September 30, 2010, Ms. Williams filed a motion to set aside the judgment

on the grounds that she had not been properly served with notice of the action and had

paid the rent that was overdue. The court denied her motion. Ms. Williams and her

husband, Ronald Williams (collectively, plaintiffs) were evicted from the Property on

October 19, 2010. Ms. Williams appealed but the appellate division of the superior

1
       On June 14, 2013, plaintiffs filed a “Notice of Recent Relevant Decision” with
a copy of Mendoza v. Hamzeh (2013) 215 Cal.App.4th 799. We do not consider this
case relevant to plaintiffs‟ case.

                                             2
court affirmed the judgment. Ms. Williams then filed a petition for writ of mandate

seeking a reversal of the appellate decision affirming the judgment. The petition was

denied.

       On May 9, 2011, plaintiffs filed the underlying action for abuse of process,

forcible detainer, breach of contract and unfair business practices alleging that

Jones & Jones and its counsel, Deborah Friedman (collectively, defendants), had

intentionally failed to serve Ms. Williams with the summons and complaint in the

unlawful detainer action. Defendants filed an anti-SLAPP motion as to the entire

complaint. Plaintiffs moved to strike the anti-SLAPP motion and filed a motion to

compel discovery. The court denied plaintiffs‟ motions. Plaintiffs then moved to

disqualify the judge on the grounds that she was biased against them. The court ordered

the disqualification motion stricken pursuant to Code of Civil Procedure section 170.4,

subdivision (b).2 On August 26, 2011, the court granted defendants‟ anti-SLAPP

motion as to the entire complaint on the grounds that each cause of action was based on

the prosecution of the unlawful detainer action. Plaintiffs filed a timely notice of

appeal.




2
       Code of Civil Procedure section 170.4, subdivision (b) provides that “if
a statement of disqualification is untimely filed or if on its face it discloses no legal
grounds for disqualification, the trial judge against whom it was filed may order it
stricken.”

                                              3
                                      DISCUSSION

       1.     Non-Appealable Orders

       Plaintiffs appeal from the following orders in the trial court: (1) the order

granting defendants‟ anti-SLAPP motion; (2) the order denying plaintiffs‟ motion to

strike the anti-SLAPP motion; (3) the order denying plaintiffs‟ “motion for a discovery

order”; and (4) the order striking plaintiffs‟ motion to disqualify the judge. Only the

court‟s order granting the anti-SLAPP motion is an appealable order. (Code Civ. Proc.,

§ 904.1, subd. (a)(13).) The other orders are interim orders that have not been expressly

designated by statute as appealable orders and, thus, are not appealable. (Code Civ.

Proc., § 904.1, subd. (a)(2)-(13); see also PBA, LLC v. KPOD, Ltd. (2003)

112 Cal.App.4th 965, 970 [“ „[t]he determination of the question of the disqualification

of a judge is not an appealable order . . . . ‟ ”], Warden v. Brown (1960) 185 Cal.App.2d

626, 629 [“the order of the superior court denying motion to strike respondents‟

pleadings is nonappealable”], and Doe v. United States Swimming, Inc. (2011)

200 Cal.App.4th 1424, 1432-1433 [an order compelling compliance with a discovery

order is not appealable].) “[A] reviewing court is „without jurisdiction to consider an

appeal from a nonappealable order, and has the duty to dismiss such an appeal upon its

own motion. [Citations.]‟ ” (In re Mario C. (2004) 124 Cal.App.4th 1303, 1307.)

Accordingly, we have no jurisdiction to rule on the interim orders cited by plaintiffs.




                                             4
       2.     Anti-SLAPP Motion

       We review the trial court‟s order granting the anti-SLAPP motion de novo

(Flatley v. Mauro (2006) 39 Cal.4th 299, 325), and consider “the pleadings, and

supporting and opposing affidavits stating the facts upon which the liability or defense

is based.” (Code Civ. Proc., § 425.16, subd. (b)(2).) We “ „accept as true the evidence

favorable to the plaintiff [citation] and evaluate the defendant‟s evidence only to

determine if it has defeated that submitted by the plaintiff as a matter of law.‟ ” (Flatley

v. Mauro, supra, 39 Cal.4th at p. 326.)

       Plaintiffs contend that they have the right to sue for forcible detainer pursuant to

the First Amendment and Article 1, Section 7 of the California Constitution, and that,

therefore, their complaint was not “subject to” the anti-SLAPP statute. Plaintiffs do not

cite to any authority in support of the proposition that the anti-SLAPP statute does not

apply to constitutional issues raised in a complaint. Plaintiffs also do not address the

court‟s ruling as to the other three causes of action in their complaint.

       Resolution of an anti-SLAPP motion requires a two-step inquiry. “First, the

court decides whether the defendant has made a threshold showing that the challenged

cause of action is one arising from protected activity. The moving defendant‟s burden is

to demonstrate that the act or acts of which the plaintiff complains were taken „in

furtherance of the [defendant]‟s right of petition or free speech under the United States

or California Constitution in connection with a public issue,‟ as defined in the statute.

([Code Civ. Proc.,] § 425.16, subd. (b)(1).) If the court finds such a showing has been

made, it then determines whether the plaintiff has demonstrated a probability of


                                             5
prevailing on the claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002)

29 Cal.4th 53, 67.)

       In determining whether a moving party has met its burden under the first prong

of the anti-SLAPP analysis, “the critical consideration is whether the cause of action is

based on the defendant‟s protected free speech or petitioning activity.” (Navellier v.

Sletten (2002) 29 Cal.4th 82, 89, italics omitted.) Prosecution of an unlawful detainer

action is protected activity within the meaning of the anti-SLAPP statute. (Birkner v.

Lam (2007) 156 Cal.App.4th 275, 281.) This includes service of the three-day notice to

quit since it is a legally required prerequisite to the filing of an unlawful detainer action.

(Id., at pp. 281-285.) Here, each cause of action was based on defendants‟ alleged

failure to properly serve the three-day notice to pay rent or quit in support of the

unlawful detainer action. Therefore, defendants met their burden of showing that the

complaint was based on activity protected by the anti-SLAPP statute. Plaintiffs do not

argue that they demonstrated a probability of prevailing on their claims and, thus, have

not shown that they met their burden under the second prong of the anti-SLAPP

analysis. Accordingly, we find that the trial court‟s order granting the anti-SLAPP

motion was proper.




                                              6
                                    DISPOSITION

       The order granting the anti-SLAPP motion is affirmed. The plaintiffs‟ appeal

from the three non-appealable interlocutory orders described in this opinion is

dismissed. Defendants are to recover their costs on appeal.



       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS




                                                                      CROSKEY, J.



WE CONCUR:




       KLEIN, P. J.




       HEESEMAN, J.




                                            7
