Filed 7/16/15 Hupp v. Freedom Communications CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.




           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO




PAUL HUPP,
                                                                         E059682
         Plaintiff and Appellant,
                                                                         (Super.Ct.No. RIC1204151)
  v.

FREEDOM COMMUNICATIONS INC. et                                           ORDER MODIFYING OPINION
al.,
                                                                         [NO CHANGE IN JUDGMENT]
         Defendants and Respondents.




         It is ordered that the last sentence of part I on page 5 of the opinion filed herein on

July 14, 2015, be modified as follows:

         On September 25, 2013, Hupp filed a notice of appeal.




                                                             1
       Except for this modification, the opinion remains unchanged. This modification

does not effect a change in judgment.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                            RAMIREZ
                                                                                   P. J.

We concur:


McKINSTER
                         J.


KING
                         J.




                                           2
Filed 7/14/15 Hupp v. Freedom Communications CA4/2

                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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.


           IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                   FOURTH APPELLATE DISTRICT

                                                 DIVISION TWO


PAUL HUPP,

         Plaintiff and Appellant,                                        E059682

  v.                                                                     (Super.Ct.No. RIC1204151)

FREEDOM COMMUNICATIONS INC. et                                           OPINION
al.,

         Defendants and Respondents.




         APPEAL from the Superior Court of Riverside County. Matthew C. Perantoni,

Judge. Affirmed.

         Paul Hupp, in pro. per., for Plaintiff and Appellant.

         Levine Sullivan Koch & Schulz and Ashley I. Kissinger for Defendant and

Respondent Freedom Communications Inc.

         Konoske Akiyama & Brust, Gregory P. Konoske, D. Amy Akiyama, and Megan

K. Hawkins for Defendant and Respondent Michael Bishop.




                                                             1
        Paul Hupp filed this action against Freedom Communications Inc. (Freedom) and

Michael Bishop. Freedom filed a special motion to strike under Code of Civil Procedure

section 425.16 (SLAPP motion); the trial court granted the motion. In a previous appeal,

we affirmed that order.

        Meanwhile, Bishop, too, filed a special motion to strike. Hupp did not respond,

and the trial court granted the motion. Finally, Freedom and Bishop filed motions for

attorney fees; Hupp did not respond to these motions, either, and the trial court granted

them.

        Hupp then filed a motion to set aside the orders granting Bishop’s SLAPP motion

and granting Freedom and Bishop’s motions for attorney fees. He claimed that he had

been unable to respond to these motions because he had been incarcerated. The trial

court denied the motion to set aside.

        Hupp appeals. We will hold that the trial court could properly deny the motion to

set aside, for multiple alternative reasons: (1) The motion was not supported by a

declaration; (2) the memorandum in support of the motion did not cite any authorities; (3)

the motion was not accompanied by a proposed opposition to any of the underlying

motions; and (4) the record contradicted Hupp’s claim that he had been unable to

respond.




                                             2
                                              I

                            PROCEDURAL BACKGROUND

       A.     Freedom’s SLAPP Motion.

       On March 22, 2012, Hupp filed this action against Freedom and Bishop. On

August 31, 2012, Freedom filed a SLAPP motion. On October 18, 2012, the trial court

granted Freedom’s SLAPP motion. In Hupp v. Freedom Communications, Inc. (2013)

221 Cal.App.4th 398, we affirmed the order granting the SLAPP motion.

       B.     Freedom’s Motion for Attorney Fees.

       On January 7, 2013, Freedom filed a motion for attorney fees. On February 21,

2013, Hupp filed an ex parte application for a continuance of his time to respond to the

motion. In it, he asserted: “Plaintiff has been out of town, in trial, in another case since

January 22, 2013. Plaintiff will not finish with that case until at least February 20, 2013,

and moist [sic] likely it will be beyond February 20, 2013.” The trial court granted the

application; it gave Hupp an extension through March 15, 2013. Even so, Hupp never

filed an opposition to the motion for attorney fees.

       On March 8, 2013, Hupp filed an ex parte application for a continuance of certain

other deadlines in the case. In it, he asserted: “Plaintiff is out of town and will not be

back until late April.” He did not request a further continuance of his time to respond to

the motion for attorney fees. The trial court granted the application in part and denied it

in part.




                                              3
       On April 23, 2013, the trial court granted Freedom’s motion for attorney fees.

       C.      Bishop’s SLAPP Motion.

       Meanwhile, on February 15, 2013, Bishop filed a SLAPP motion. Hupp did not

file an opposition. On March 21, 2013, the trial court granted Bishop’s SLAPP motion.

       D.      Bishop’s Motion for Attorney Fees.

       On April 5, 2013, Bishop filed a motion for attorney fees. Yet again, Hupp did not

file an opposition to the motion. On May 7, 2013, the trial court granted Bishop’s motion

for attorney fees.

       On June 13, 2013, the trial court entered judgment against Hupp and in favor of

Bishop.

       E.      Hupp’s Motion to Set Aside.

       On July 22, 2013, Hupp filed a motion to set aside the order granting Bishop’s

SLAPP motion and the orders awarding Bishop and Freedom attorney fees. In it, he

claimed that he had been incarcerated — and, as a result, unable to respond to the

underlying motions — from February 19 through June 23, 2013.

       The motion was accompanied by a purported memorandum of points and

authorities, but the memorandum did not actually make any legal arguments nor cite any

authorities.




                                             4
       The motion was also accompanied by a purported declaration, but the declaration

was not executed under penalty of perjury, as required. (Code Civ. Proc., § 2015.5.)

       In opposition to the motion to set aside, Freedom and Bishop argued that the

motion should be denied because:

       1. The memorandum of points and authorities “contains no legal authority . . . .”

       2. The declaration was not under penalty of perjury.

       3. The time to respond to Freedom’s motion for attorney fees had already run

before Hupp was allegedly incarcerated.

       On August 28, 2013, the trial court denied the motion “on both procedural and

substantive grounds.”

       On September 25, 2013, Bishop filed a notice of appeal.

                                              II

                                     APPEALABILITY

       The only order or judgment that can possibly be the subject of this appeal is the

August 28, 2013 order denying the motion to set aside. With respect to all other

potentially appealable orders rendered up to and including the judgment, the notice of

appeal was simply filed too late. (Cal. Rules of Court, rule 8.104(a)(1).)

       We turn, then, to whether the order denying the motion to set aside was

appealable. While Hupp’s opening brief does include a section entitled “Statement of

Appealability” (capitalization altered) (see Cal. Rules of Court, rule 8.204(a)(2)(B)), that

statement is inadequate. It merely states, as relevant here, “This appeal . . . is authorized



                                              5
by the Code of Civil Procedure, section 904.1(a)(1).” The subdivision cited authorizes an

appeal from a final judgment. The order denying the motion to set aside is not a

judgment.

       “As a general rule, orders denying a motion to vacate are not appealable, because

any assertions of error can be reviewed on appeal from the judgment itself. To hold

otherwise would effectively authorize two appeals from the same decision. [Citations.]”

(Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2014)

¶ 2:169, p. 2-116.) “However, there are several exceptions to the nonappealability rule

. . . .” (Id. at ¶ 2:170, p. 2-116.) Among other things, “[a]n order denying a motion to

vacate is . . . appealable if there was no effective appeal from the judgment — e.g., if the

record made at the time of the judgment did not disclose the grounds for appeal.” (Id. at

¶ 2:176, p. 2-118.)

       Here, the motion to set aside was made on the ground that Hupp had been

incarcerated when the underlying orders were made. This is not an issue that could have

been raised in an appeal from the judgment. It had to be raised, if at all, in a separate

motion to set aside. Accordingly, the trial court’s ruling denying the motion to set aside

is appealable as an order after judgment. (Code Civ. Proc., § 904.1, subd. (a)(2).)




                                              6
                                              III

                    THE DENIAL OF THE MOTION TO SET ASIDE

       Hupp contends that the trial court erred by denying his motion to set aside.

       He now claims that that motion was brought under Code of Civil Procedure

section 473, based on extrinsic fraud. Under this section, “[t]he court may, upon any

terms as may be just, relieve a party or his or her legal representative from a judgment,

dismissal, order, or other proceeding taken against him or her through his or her mistake,

inadvertence, surprise, or excusable neglect. Application for this relief shall be

accompanied by a copy of the answer or other pleading proposed to be filed therein,

otherwise the application shall not be granted . . . .” (Code Civ. Proc., § 473, subd. (b).)

       “[T]he granting of a motion to vacate a judgment or order under Code of Civil

Procedure, section 473, rests largely in the discretion of the trial court, and the ruling of

the trial court will not be disturbed on appeal unless an abuse of discretion clearly

appears.” (Olson v. Olson (1957) 148 Cal.App.2d 479, 483.)

       The trial court could properly deny the motion because it was not accompanied by

a declaration under penalty of perjury. “‘In order to qualify for [discretionary] relief

under section 473, the moving party . . . must submit affidavits or testimony

demonstrating a reasonable cause for the default.’ [Citation.]” (Huh v. Wang (2007) 158

Cal.App.4th 1406, 1419.) The trial court was entitled to disregard Hupp’s unsworn

statements. (Bonelli v. Chandler (1958) 165 Cal.App.2d 267, 274.) There simply was no

evidence supporting the motion.



                                               7
       The trial court could also properly deny the motion because Hupp did not cite any

authorities. Subject to exceptions not applicable here, “[a] party filing a motion . . . must

serve and file a supporting memorandum.” (Cal. Rules of Court, rule 3.1113(a).) “The

memorandum must contain . . . a concise statement of the law . . . relied on, and a

discussion of the statutes, cases, and textbooks cited in support of the position advanced.”

(Cal. Rules of Court, rule 3.1113(b).) “The court may construe the absence of a

memorandum as an admission that the motion . . . is not meritorious and cause for its

denial . . . .” (Cal. Rules of Court, rule 3.1113(a).)

       In addition, the trial court was required to deny the motion because it was not

accompanied by any “pleading proposed to be filed . . . .” (Code Civ. Proc., § 473, subd.

(b).) Admittedly, Freedom and Bishop did not argue this below. Hupp’s motion,

however, did not indicate that it was brought under Code of Civil Procedure section 473;

as already discussed, it did not cite any authority at all. Thus, Freedom and Bishop had

no reason to argue below that the motion did not comply with Code of Civil Procedure

section 473. In any event, “even where a legal argument was not raised in the trial court,

we have discretion to consider it when the theory raised for the first time on appeal is a

pure question of law applied to undisputed facts. [Citations.]” (San Mateo Union High

School Dist. v. County of San Mateo (2013) 213 Cal.App.4th 418, 436.)

       Finally, the trial court could properly deny the motion because the record

contradicted Hupp’s claim that he had been unable to respond to the underlying SLAPP

and attorney fee motions.



                                               8
         “‘[T]he applicable standards of appellate review of a judgment based on affidavits

or declarations are the same as for a judgment following oral testimony: We must accept

the trial court’s resolution of disputed facts when supported by substantial evidence; we

must presume the court found every fact and drew every permissible inference necessary

to support its judgment, and defer to its determination of credibility of the witnesses and

the weight of the evidence.’ [Citation.]” (Donahue Schriber Realty Group, Inc. v. Nu

Creation Outreach (2014) 232 Cal.App.4th 1171, 1183.)

         Hupp managed to file ex parte applications for continuances on February 21, 2013,

and again on March 8, 2013, even though he was supposedly incarcerated from February

19 through June 23, 2013. Moreover, his declarations in support of those applications

stated that he was “in trial” and “out of town,” respectively — not that he was

incarcerated. The first declaration indicated that he would be able to respond by March

15, 2013. The second declaration indicated that he would be available by April. Thus,

the trial court could reasonably find that Hupp simply was not credible. (See Cowan v.

Krayzman (2011) 196 Cal.App.4th 907, 915.)

         We therefore conclude that the trial court did not err by denying the motion to set

aside.




                                               9
                                         IV

                                   DISPOSITION

       The order appealed from is affirmed. Freedom and Bishop are awarded costs on

appeal against Hupp.

       NOT TO BE PUBLISHED IN OFFICIAL REPORTS



                                                           RAMIREZ
                                                                                 P. J.

We concur:


McKINSTER
                         J.


KING
                         J.




                                         10
