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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 

has not been certified for publication or ordered published for purposes of rule 8.1115.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 SEVEN

GUNTER ZIELKE et al.,

Plaintiffs and Respondents,

v.

SCOTT ERIC ROSENSTIEL

et al.,

Defendants and Appellants.

 B298643

 (Los Angeles County

 Super. Ct. No. BC628570)

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.

____________________________
2

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).)
3

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. 
4

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 
5

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.” 
6

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.
7

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 
8

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.
9

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 antiSLAPP 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 antiSLAPP 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 
10

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 
11

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.)
12

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 
13

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 
14

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.