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Filed 8/19/22 Smith v. Yelp CA1/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION THREE

MARK SMITH,

Plaintiff and Appellant,

v.

YELP INC.,

Defendant and Respondent.

 A162749

 (Alameda County

 Super. Ct. No. RG20051877)

Mark Smith, a self-represented litigant, filed a lawsuit against Yelp 

Inc. (Yelp). The trial court granted Yelp’s special motion to strike, and it

later awarded Yelp attorney fees and costs. (Code Civ. Proc., § 425.16; 

statutory references are to this code.) Smith — again representing himself —

appeals. We decline to reach the merits of Smith’s challenge to the order 

granting the motion to strike. We affirm the attorney fee order.

BACKGROUND

Smith owns a business that claims to, among other things, help clients 

submit fictitious business name statements. He has a business owner 

account with Yelp, a website that publishes user-submitted business reviews.

In 2020, Smith filed a complaint alleging Yelp was negligent for failing to 

remove a “false review” of his business. According to the complaint, Yelp 
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“kept the review posted” after Smith notified Yelp the review contained “false 

information.” Smith sought $1 million in damages.

Yelp filed a special motion to strike. On January 12, 2021, the trial 

court granted the motion and dismissed the complaint. It concluded Smith’s

negligence claim arose from protected activity — the posting of a consumer 

review, in connection with an issue of public interest, on a public forum. The 

court also determined Smith could not demonstrate a probability of 

prevailing for several reasons, including that Yelp’s terms of service state it 

owes account holders no duty to remove third-party reviews and that it 

cannot be held liable for declining to do so. The clerk served a file-endorsed 

copy of the order the following day.1

Thereafter, Yelp sought $3,190 in attorney fees and $973.15 in costs, 

supported by a declaration from counsel listing his hourly rate, describing the 

work he performed, and seeking fees for 5.8 hours of work. (§ 425.16, 

subd. (c).) Smith did not timely oppose the motion. On March 23, 2021, the 

trial court granted the motion. It found that Yelp’s hourly rate and hours 

worked were reasonable, particularly because Yelp excluded from its fee 

request the bulk of the time counsel spent preparing the special motion to 

strike and the attorney fee motion.

In May 2021, Smith appealed. The notice of appeal states Smith is 

appealing the order on the “motion to strike” issued on March 23 pursuant to 

section 425.16, subdivision (c). The notice attaches the attorney fee order.

1 We augment the record to include the trial court’s proof of service of 

the file-endorsed order granting the motion to strike. (Cal. Rules of Court, 

rule 8.155(a)(1)(A); rule references are to the Rules of Court.)
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DISCUSSION

Smith makes two arguments on appeal. First, he contends the trial 

court erred by granting the special motion to strike. We lack the power to 

consider the merits of this argument because Smith did not timely appeal the 

order granting the motion to strike. (Silverbrand v. County of Los Angeles

(2009) 46 Cal.4th 106, 113.) An order granting a special motion to strike is 

immediately appealable. (§§ 425.16, subd. (i); 904.1, subd. (a)(13).) Smith 

had 60 days from the date the trial court served the file-endorsed copy of the 

order — until March 14, 2021 — to appeal. (Rule 8.104(a)(1)(A); Marshall v. 

Webster (2020) 54 Cal.App.5th 275, 280.) He did not file the notice of appeal 

until late May, well after the deadline expired. Because Smith failed to 

timely appeal the order granting the motion to strike, we cannot consider his

challenge to the order. (Reyes v. Kruger (2020) 55 Cal.App.5th 58, 68.)

We cannot reach the merits of the order granting the motion to strike

for an additional reason — the notice of appeal does not mention the order. 

The notice of appeal “defines the scope of the appeal by identifying 

the . . . order being appealed.” (Morton v. Wagner (2007) 156 Cal.App.4th 

963, 967.) We do not have the power to review an order not mentioned in the 

notice of appeal. (In re J.F. (2019) 39 Cal.App.5th 70, 75.) Here, the notice of 

appeal states Smith is appealing the order on the “motion to strike” issued on 

March 23, 2021, pursuant to section 425.16, subdivision (c), which authorizes 

attorney fee awards. The notice of appeal attaches the attorney fee order. 

(Russell v. Foglio (2008) 160 Cal.App.4th 653, 661 [“notice of appeal 

addressed and explicitly described—to the point of attaching a copy—only the 

judgment [for] costs”].) Because the record demonstrates Smith appealed

only from the order awarding attorney fees, we cannot construe the notice to 
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apply to a different order issued months earlier. (Baker v. Castaldi (2015) 

235 Cal.App.4th 218, 225–226; Russell, at p. 661.)

Smith’s next argument — that the trial court erred by awarding Yelp 

attorney fees — is properly before us, but it lacks merit. A prevailing 

defendant on a special motion to strike is entitled to recover reasonable 

attorney fees and costs. (§ 425.16, subd. (c)(1).) A trial court computes the 

amount of the fee award using the lodestar method, i.e., “ ‘by multiplying the 

number of hours reasonably expended by the reasonable hourly rate 

prevailing in the community for similar work.’ ” (Cabral v. Martins (2009) 

177 Cal.App.4th 471, 491.) Here, Yelp supported its request for attorney fees

with a declaration from counsel attesting to his hourly rate, the hours 

worked, and the tasks performed. (Pasternack v. McCullough (2021) 

65 Cal.App.5th 1050, 1059.) And Smith did not timely oppose the motion. 

On this record, Smith has failed to show the court abused its discretion in 

awarding Yelp $3,190 in attorney fees. (Marshall v. Webster, supra, 

54 Cal.App.5th at pp. 287–288; see also Bell v. American Title Ins. Co. (1991) 

226 Cal.App.3d 1589, 1602 [failure to oppose motion in the trial court waived 

objections on appeal].)

DISPOSITION

The March 2021 order awarding Yelp attorney fees and costs is

affirmed. The parties are to bear their own costs on appeal. (Rule

8.278(a)(5).)
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_________________________

Rodríguez, J.

WE CONCUR:

_________________________

Tucher, P. J.

_________________________

Fujisaki, J.

A162749