Opinion
D040465
7-11-2003
DAVID PICCO et al., Plaintiffs and Respondents, v. STEVEN MARMOR et al., Defendants and Appellants.
Appellants Steven and Sharon Marmor appeal from an order denying their motion to strike a complaint filed against them by their former next-door neighbors, respondents David and Stephanie Picco. The Marmors contend that the trial court erred in denying their special motion to strike the complaint pursuant to the anti-SLAPP statute. (Code Civ. Proc., § 425.16.) We conclude that the complaint alleges a pattern of harassment on the part of the Marmors that does not arise from acts in furtherance of their "right of petition or free speech under the United States or California Constitution in connection with a public issue . . . ." (§ 425.16, subd. (b)(1)). We therefore affirm the trial courts order denying the anti-SLAPP motion.
Unless otherwise specified, all statutory references are to the Code of Civil Procedure. The acronym "SLAPP" stands for "strategic lawsuits against public participation." (Navellier v. Sletten (2002) 29 Cal.4th 82, 85 (Navellier).)
We exclude the malicious prosecution claim from our analysis, because it was voluntarily dismissed by the Piccos before the hearing on the anti-SLAPP motion. For the reasons fully stated in section IID, post, we reject the Marmors argument that the trial court had a duty to make an anti-SLAPP ruling on the malicious prosecution claim notwithstanding the voluntary dismissal.
Before the hearing, the court issued a tentative ruling overruling the demurrer as to most
I.
FACTUAL AND PROCEDURAL BACKGROUND
On December 20, 2001, the Piccos filed a complaint against the Marmors alleging causes of action for negligence, negligence per se, negligent infliction of emotional distress, stalking, civil rights violation, conspiracy to violate civil rights, malicious prosecution, and intentional infliction of emotional distress.
With the exception of the malicious prosecution claim, all of the Piccos causes of action were based on essentially the same factual allegations. In essence, the complaint alleged that the Marmors had engaged in a pattern of harassment and intimidation against the Piccos beginning in approximately July 2000 and lasting until the Piccos put their house up for sale in November 2001.
Specifically, the Piccos alleged in their complaint the following acts on the part of the Marmors: Steven Marmor stood in his backyard and rubbed his crotch while looking into the Piccos house where Stephanie Picco was sitting; Steven Marmor hid behind a bush and peeked into the Piccos family room to watch Stephanie Picco breast feed her baby; Steven Marmor complained that the Piccos sprinkler system was blowing spray into his yard and became enraged during a discussion with David Picco about building a fence between the houses; Steven Marmor repeatedly called the Piccos "white trash" and told them "if they knew what was good for them, they would move out of the neighborhood"; Steven Marmor threatened "that the PICCOs had no idea what he could do to them"; Sharon Marmor threatened to call the police, and did call the police when the Piccos began to build a fence that had previously been approved by the homeowners association without objection by the Marmors; Sharon Marmor became "hysterical and abusive" on the same occasion, yelled at the Piccos, and told them "you thought you had problems with my husband, youre going to have big problems with me"; Sharon Marmor threatened to sue the Piccos for slandering her husband; the Marmors filed an application with the homeowners association to have the Piccos fence reduced in size even though it had been properly approved and constructed; the Marmors unsuccessfully complained to the City of Carlsbad that the Piccos fence violated the city building code; the Marmors complained to the City Animal Control Department about the Piccos dogs; the Marmors followed the Piccos and muttered "white trash" when the Piccos walked in their neighborhood; the Marmors began a "very bizarre pattern of behavior" in which they would rush out of their house and follow about 10 feet behind the Piccos, then suddenly stop following the Piccos if a car or person appeared; Steven Marmor muttered at Stephanie Picco and yelled "Fuck you!" and "white trash" at her when she was walking the dogs while pregnant with her second child; Steven Marmor yelled at Stephanie Piccos father that his daughter was a "white trash bitch" who "shouldnt be living in his neighborhood if she knew what was good for her"; Steven Marmor called the police that same day and accused Stephanie Piccos father of trying to pick a fight with him; Steven Marmor yelled at Stephanie Picco on another occasion when she went out to walk the dogs, then sat inside his car and stared at her for several minutes before speeding up the road, doing a U-turn, and idling in his car in the middle of the cul-de-sac, facing Stephanie Picco; the Marmors directed workers to dig up new sod on the Piccos property and to destroy a portion of their sprinkler system; Steven Marmor moved his garbage can so as to obstruct Stephanie Piccos path when she was walking down the sidewalk; Steven Marmor filed a small claims suit for slander against David Picco; and Steven Marmor followed David Picco to a party at another neighbors house and then looked into the windows of the house from behind a hedge.
The Piccos alleged in their complaint that they became concerned that the Marmors might harm them. They hired a private investigator, who discovered that Steven Marmor had a felony battery conviction resulting from a 1995 incident in which he had beaten his girlfriend, broken her arm, and dragged her out of the house. The investigator also discovered a 1995 civil suit against Steven Marmor in which he was alleged to have beaten an elderly, disabled Filipino man and yelled racial slurs at him.
The Piccos further alleged in their complaint that after they received this information, they became convinced that the Marmors were capable of carrying out their threats and physically injuring them. The Piccos eventually put up their house for sale in November 2001. They allege that they suffered economic and noneconomic damages as a result of the Marmors conduct, including, but not limited to, attorney fees, lost wages, emotional distress, pain and suffering, and fear and humiliation.
On February 21, 2002, the Marmors filed and served a demurrer, a motion to strike the complaint pursuant to the anti-SLAPP statute ( § 425.16), and a motion to strike portions of the complaint pursuant to sections 435 and 436. The anti-SLAPP motion was not supported by any affidavits or declarations disputing the truth of the allegations in the complaint. All three motions were noticed for hearing in the Central Division of San Diego Superior Court on April 5, 2002. On March 19, 2002, the Marmors renoticed the motions for hearing in the North County Division on June 6, 2002.
The Piccos filed oppositions to the motions, together with a declaration of David Picco. In their opposition to the demurrer, the Piccos agreed to dismiss the malicious prosecution claim. causes of action, but granting the demurrer with leave to amend as to the stalking and conspiracy causes of action, and granting it without leave to amend as to the malicious prosecution claim. In its tentative ruling, the court also partially granted the Marmors motion to strike portions of the complaint, specifically allegations relating to the Marmors small claims action, their religion, and their fighting and yelling inside their own home. The courts tentative ruling was to deny the anti-SLAPP motion "as plaintiffs have met their burden of establishing a probability that they will prevail on their claims of negligence, negligence per se, negligent infliction of emotional distress, civil rights violation, and intentional infliction of emotional distress pursuant to the declaration of David Picco." In its tentative ruling, the court did not specifically address the threshold issue whether the causes of action arose from either protected speech or petitioning activity.
The legal basis for the demurrer as to the malicious prosecution claim was that "a cause of action for malicious prosecution cannot be grounded on institution of a small claims proceeding." (Pace v. Hillcrest Motor Co. (1980) 101 Cal. App. 3d 476, 479, 161 Cal. Rptr. 662; accord, Cooper v. Pirelli Cable Corp. (1984) 160 Cal. App. 3d 294, 298-299, 206 Cal. Rptr. 581.)
The Marmors requested oral argument solely on the following issue: "Did Plaintiffs meet their legal burden of proof, as defined and interpreted for the purposes of Section 425.[16]?" Prior to oral argument, the Marmors did not make any evidentiary objections to the declaration of David Picco.
The hearing on the anti-SLAPP motion was held on June 14, 2002. At the hearing, the Marmors made an oral motion to strike evidence contained in the declaration of David Picco on the ground that the evidence was inadmissible. The trial court agreed that the declaration contained inadmissible hearsay and speculation, but observed that no written evidentiary objections had been filed prior to the hearing. The court permitted the Marmors to submit written evidentiary objections to the declaration after the hearing. The court stated that, if necessary, it would provide an opportunity for the plaintiff to submit additional evidence if its tentative ruling on the anti-SLAPP motion changed as a result of the evidentiary objections.
At the hearing, the trial court questioned whether the anti-SLAPP statute applied to this case. The court stated that applying the statute "would have a startling impact on litigation throughout the state because here we have purely private individuals, two adjoining homeowners who have a dispute, and sometimes the dispute takes a dimension that is now being asserted as a public dimension invoking constitutional privileges under the SLAPP statute." The court took the matter under submission to consider "precisely what type of conduct . . . is subject to the SLAPP statute. In other words, which conduct implicates free speech and thereby shifts the burden."
After the hearing, the Marmors filed written evidentiary objections to the declaration of David Picco. On June 20, 2002, the court issued an order sustaining some of the evidentiary objections and overruling others. The order concluded: "Despite the sustaining of a number of defendants objections to plaintiffs declaration, the court nevertheless concludes the declaration contains sufficient admissible evidence to meet plaintiffs burden under CCP 425.16(b). Therefore, the courts June 6, 2002 telephonic ruling denying defendants SLAPP motion is confirmed." The court did not address in its final ruling the threshold issue whether the Piccos claims arose from protected activity within the scope of the anti-SLAPP statute.
II.
DISCUSSION
A. Respondents Have Waived Their Jurisdictional Objection Based on Section 425.16, Subdivision (f) by Failing to Raise it in the Trial Court
The Piccos argue for the first time on appeal that the trial court lacked jurisdiction to rule on the Marmors anti-SLAPP motion because it was noticed for hearing more than 30 days after service, in violation of section 425.16, subdivision (f). We find that the Piccos have waived this claim by failing to raise it in the trial court.
Section 425.16, subdivision (f) provides in relevant part: "The motion shall be noticed for hearing not more than 30 days after service unless the docket conditions of the court require a later hearing." (Italics added.) This is a mandatory, jurisdictional requirement. (Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1387-1390.)
"Issues relating to jurisdiction in its fundamental sense . . . may be raised at any time. [Citations]. By contrast, issues relating to jurisdiction in its less fundamental sense may be subject to bars including waiver . . . ." (People v. Mower (2002) 28 Cal.4th 457, 474, fn. 6.) "In its fundamental sense, jurisdiction refers to a courts power over persons and subject matter. [Citations.] Less fundamentally, jurisdiction refers to a courts authority to act with respect to persons and subject matter within its power. [Citations.]" (Ibid.)
The 30-day period of section 425.16, subdivision (f) is not jurisdictional in the fundamental sense of subject matter jurisdiction or personal jurisdiction. Instead, it is jurisdictional in the sense that it deprives the court of power "to act except in a particular manner, or to give certain kinds of relief, or to act without the occurrence of certain procedural prerequisites." (Abelleira v. District Court of Appeal (1941) 17 Cal.2d 280, 288, 109 P.2d 942.) "When a court fails to conduct itself in the manner prescribed, it is said to have acted in excess of jurisdiction." (People v. Williams (1999) 77 Cal.App.4th 436, 447 (Williams).) "An act in excess of jurisdiction is valid until set aside, and parties may be precluded from setting it aside by such things as waiver, estoppel, or the passage of time." (People v. Ruiz (1990) 217 Cal. App. 3d 574, 584, 265 Cal. Rptr. 886.)
Where the trial court acts in excess of its jurisdiction after expiration of a statutory time limit, a partys failure to object in the trial court generally constitutes a waiver of the issue for appeal. (See Williams, supra, 77 Cal.App.4th at pp. 459-461.) Although this waiver/objection rule is not applied when the alleged error involves a pure question of law (ibid.), the applicability of the 30-day time period at issue here turns on a factual question — whether "the docket conditions of the court require a later hearing." ( § 425.16, subd. (f).) Because the statute is not jurisdictional in the fundamental sense, and its application depends upon a factual question, noncompliance with the statute may not be raised for the first time on appeal. Thus, we find that the Piccos have waived their jurisdictional claim by failing to raise it in the trial court.
B. Burden of Proof and Standard of Review
The anti-SLAPP statute was enacted in 1992 for the purpose of providing an efficient procedural mechanism for early and inexpensive dismissal of nonmeritorious claims "arising from any act" of the defendant "in furtherance of the persons right of petition or free speech under the United States or California Constitution in connection with a public issue . . . ." ( § 425.16, subd. (b)(1).) In order to achieve this objective, the Legislature authorized the filing of a special motion to strike such claims within 60 days after service of the complaint. (§ 425.16, subds. (b)(1), (f).) The filing of such a motion automatically stays all discovery proceedings, unless otherwise ordered by the court for good cause. ( § 425.16, subd. (g).)
Deciding an anti-SLAPP motion "requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. . . . If the court finds that such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
The trial courts determination of each step is subject to de novo review on appeal. (Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 456; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999 (ComputerXpress).)
C. The Complaint Does Not Arise From Protected Speech or Petitioning Activity Within the Ambit of the Anti-SLAPP Statute
The anti-SLAPP statute applies only to a "cause of action . . . arising from" acts in furtherance of the defendants constitutional right of petition or free speech in connection with a public issue. ( § 425.16, subd. (b)(1).) The defendant in an alleged SLAPP suit bears the initial burden of showing the suit falls within the class of suits subject to a motion to strike under section 425.16. (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 304 (Fox Searchlight).) "In deciding whether the initial arising from requirement is met, a court considers the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (Navellier, supra, 29 Cal.4th 82, 89.)
"The statutory phrase cause of action . . . arising from means simply that the defendants act underlying the plaintiffs cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiffs cause of action itself was based on an act in furtherance of the defendants right of petition or free speech." (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (City of Cotati ).) "The anti-SLAPP statutes definitional focus is not the form of the plaintiffs cause of action but, rather, the defendants activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning." (Navellier, supra, 29 Cal.4th at p. 92.)
A defendant meets his burden of proving that the complaint "arises from" protected activity by demonstrating that the act underlying the plaintiffs cause fits one of the categories spelled out in section 425.16, subdivision (e). (City of Cotati, supra, 29 Cal.4th at p. 78.) Section 425.16, subdivision (e) provides:
"As used in this section, act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest."
The Marmors maintain that the allegations against them arise from protected speech and petitioning activity within the scope of all four of these categories. We may easily dispose of the Marmors claim that subdivisions (e)(3) and (e)(4) are applicable here. Each of these subdivisions requires that the defendants speech, writing, or conduct relate to a matter of public interest. Although the term "public interest" has been broadly construed to extend beyond governmental matters, it generally applies only to "private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity." (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479; see also Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 919-924 (Rivero) [surveying cases finding a "public issue" and concluding that they "either concerned a person or entity in the public eye [citations], conduct that could directly affect a large number of people beyond the direct participants [citations] or a topic of widespread, public interest [citations]"].)
We use the term "protected" speech or petitioning activity to refer to activity covered by the anti-SLAPP statute. In doing so, we recognize that not all First Amendment activity is within the scope of the statute. The statute does not apply to every case where the defendant may be able to raise a First Amendment defense to a cause of action. (Paul v. Friedman (2002) 95 Cal.App.4th 853, 864, fn. 20.) Thus, activity that is "protected" by the First Amendment may not be within the procedural protections of the anti-SLAPP statute.
No matter how broadly we construe the anti-SLAPP statute, the allegations in this case cannot be said to relate to speech or conduct by the Marmors concerning a public issue or an issue of public interest. The Marmors were not addressing any issue of public interest when they allegedly stalked the Piccos, yelled obscenities at them, complained about their fence, dogs, and sprinkler system, called them "white trash," threatened and intimidated them, vandalized their yard, and engaged in peeping Tom activities. These allegations, if true, constituted purely private acts of harassment. There has been no showing that any of this alleged conduct by the Marmors impacted a broad segment of society, affected the community in a manner similar to that of a governmental entity, concerned a person or entity in the public eye, or addressed a topic of widespread, public interest. (Cf. Rivero, supra, 105 Cal.App.4th at p. 924 [finding no public issue in the actions of a supervisor of eight custodians who allegedly engaged in bribery, theft, nepotism and extortion, and noting that a contrary holding would mean "nearly every workplace dispute would qualify as a matter of public interest"].) Thus, we conclude that subdivisions (e)(3) and (e)(4) of section 425.16 do not apply here. We therefore turn to subdivisions (e)(1) and (e)(2).
In contrast to subdivisions (e)(3) and (e)(4), subdivisions (e)(1) and (e)(2) do not require the defendant to make a separate showing that the statement or writing on which the suit is based pertains to a matter of public significance. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123, 969 P.2d 564.) The Legislature has effectively deemed any statement or writing within the scope of these subdivisions "to have public significance per se . . . ." (Id . at p. 1122.) "Plainly read, section 425.16 encompasses any cause of action against a person arising from any statement or writing made in, or in connection with an issue under consideration or review by, an official proceeding or body." (Id. at p. 1113.)
The Marmors contend that the Piccos complaint arises from statements the Marmors made in "official proceedings" because it includes allegations about complaints the Marmors made to the police and to the City of Carlsbad. The Marmors point out that the anti-SLAPP statute has been construed consistently with the related privilege pertaining to statements made in an official proceeding (Civ. Code, § 47), to apply to communications to governmental officials that are designed to initiate an official proceeding. (ComputerXpress, supra, 93 Cal.App.4th at p. 1009, citing Slaughter v. Friedman (1982) 32 Cal.3d 149, 156, 185 Cal. Rptr. 244, 649 P.2d 886.)
The Marmors have failed to produce evidence that any of their complaints were in fact designed to initiate official proceedings of any kind. For the purpose of this opinion, however, we shall assume, without deciding, that the Marmors complaints to the police and to the city do constitute protected petitioning activity within the scope of section 425.16, subdivision (e)(1). We nevertheless conclude that the complaint is not based upon, and does not "arise from" this activity. As earlier described, the complaint alleges a broad pattern of harassment and intimidation of the Piccos by the Marmors, most of which has nothing to do with the Marmors complaints to the police and the city. Thus, the Piccos complaint alleges a combination of predominantly unprotected activity and some arguably protected activity on the part of the Marmors.
The First District has recently provided guidance on the proper treatment of mixed causes of action that are based upon both protected and nonprotected activity in the anti-SLAPP context. (Kids Against Pollution v. California Dental Association
(2003) 108 Cal.App.4th 1003 (Kids Against Pollution).) In Kids Against Pollution, the court agreed with dictum in Fox Searchlight Pictures, supra, 89 Cal.App.4th 294, which suggested that "a plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one cause of action." (Id. at p. 308.) The court stated:
"We agree that a plaintiff should not be able to immunize a cause of action challenging protected free speech or petitioning activity from a special motion under section 425.16 by the artifice of including extraneous allegations concerning nonprotected activity. When allegations of nonprotected activity are collateral to a plaintiffs claim challenging primarily the exercise of the rights of free speech or petition, they may be disregarded in determining whether the cause of action arises from protected activity, as they were in Fox Searchlight, supra, 89 Cal.App.4th 294. (Cf. Bacon v. Wahrhaftig (1950) 97 Cal. App. 2d 599, 605, 218 P.2d 144 [allegations referring to immaterial matters will be treated as surplusage and disregarded].) But in determining whether a complaint challenges conduct arising out of the exercise of the constitutional rights of petition or free speech, the defendants protected conduct must be the gravamen of the plaintiffs cause of action. (City of Cotati, supra , 29 Cal.4th at p. 79.) If the allegations of protected activity are only incidental to a cause of action based essentially on nonprotected activity, the mere mention of the protected activity should not subject the cause of action to an anti-SLAPP motion. As in other contexts in which it is necessary to evaluate the principal thrust of a mixed cause of action, the court must evaluate the significance of the particular allegations to the cause of action that has been pleaded, bearing in mind that the Legislature has amended the statute to provide explicitly that this section shall be construed broadly. ( § 425.16, subd. (a); Stats. 1997, ch. 271, § 1.)" (Kids Against Pollution, supra, 108 Cal.App.4th at p. 1017, fn. omitted, italics added.)
We concur with the First Districts analysis in Kids Against Pollution. A defendant in an ordinary private dispute should not be permitted to take advantage of the anti-SLAPP statute simply because the complaint contains some passing reference to speech or petitioning activity by the defendant, or is based in some insignificant or trivial way upon such activity. (See Paul v. Friedman, supra, 95 Cal.App.4th at p. 866 ["The statute does not accord anti-SLAPP protection to suits arising from any act having any connection, however remote, with an official proceeding"].) Instead, courts must examine the "principal thrust" or "gravamen" of the plaintiffs cause of action to determine whether the anti-SLAPP statute applies. (Kids Against Pollution, supra, 108 Cal.App.4th at p. 1017.)
As noted in Kids Against Pollution, section 425.16 authorizes a court to strike only entire causes of action; it does not permit the striking of particular allegations within a cause of action. (Kids Against Pollution, supra, 108 Cal.App.4th at pp. 1015-1016.)
We have no difficulty concluding that protected petitioning activity is not the gravamen or principal thrust of the Piccos complaint. The protected petitioning activity mentioned in the complaint comprises only a small and insignificant portion of each of the Piccos causes of action. The bulk of the complaint alleges garden variety harassment and intimidation outside the context of any official complaint or official proceeding. Thus, we conclude that the complaint is not based upon, and does not arise from protected activity as defined in any of the four categories of section 425.16, subdivision (e). Therefore, the burden never shifted to the Piccos to demonstrate a probability that they would prevail on their claims. For these reasons, we affirm the trial courts order denying the anti-SLAPP motion.
Our reasoning applies equally to the fourth and sixth causes of action for stalking and conspiracy to violate civil rights, as to which the trial court granted the Marmors demurrer with leave to amend. Thus, we need not address the Marmors argument that the court should have ruled on their anti-SLAPP motion as to these causes of action.
D. The Trial Court Did Not Err in Failing to Rule on the Malicious Prosecution Claim That Was Voluntarily Dismissed by the Piccos
The Marmors argue that even though the Piccos voluntarily dismissed the malicious prosecution claim, the trial court still should have ruled on their motion to strike this claim pursuant to the anti-SLAPP statute. The Marmors maintain that the trial court should have done so because a ruling on the merits was a necessary prerequisite to an award of attorney fees and costs under section 425.16, subdivision (c) and the holding of Liu v. Moore (1999) 69 Cal.App.4th 745. We disagree.
The anti-SLAPP statute provides that "a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorneys fees and costs." ( § 425.16, subd. (c).) Even defendants who achieve only partial success may be entitled to attorney fees and costs under the statute. SLAPP defendants who succeed in getting some, but not all, of the plaintiffs causes of action dismissed "are entitled to recover attorney fees and costs incurred in moving to strike the claims on which they prevailed, but not fees and costs incurred in moving to strike the remaining claims." (ComputerXpress , supra, 93 Cal.App.4th at p. 1020.)
"Where a plaintiff dismisses an action while an anti-SLAPP motion is pending, the defendant may nonetheless be entitled to recover attorney fees. [Citations.]" (Wilkerson v. Sullivan (2002) 99 Cal.App.4th 443, 446.) In Liu, supra, the plaintiff Moore filed an anti-SLAPP motion to strike the defendants cross-complaint. The defendants voluntarily dismissed the cross-complaint as to Moore before the hearing on the motion. "Thereafter, Moore filed a motion, under subdivision (c) of section 425.16, seeking attorneys fees and costs from defendants." The trial court denied the motion, reasoning that "there was no longer a viable motion to strike, because of the dismissal of Moore from the cross-complaint, and therefore Moore could not be a prevailing party on such a motion." (Liu , supra, 69 Cal.App.4th at p. 749.)
The Court of Appeal reversed the trial courts order denying attorney fees and costs. The court found that the trial court should have determined the merits of the anti-SLAPP motion to assess whether Moore was a "prevailing" party within the meaning of section 425.16, subdivision (c). (Liu, supra, 69 Cal.App.4th at pp. 750-751.) The court stated: "We hold that a defendant who is voluntarily dismissed, with or without prejudice, after filing a section 425.16 motion to strike, is nevertheless entitled to have the merits of such motion heard as a predicate to a determination of the defendants motion for attorneys fees and costs under subdivision (c) of that section." (Id. at p. 751, italics added.)
Liu is not applicable here. As another division of the Court of Appeal for the Second District has clarified, Liu stands for the proposition that "the trial court must, upon defendants motion for a fee award, rule on the merits of the SLAPP motion even if the matter has been dismissed prior to the hearing on that motion." (Pfeiffer Venice Properties v. Bernard (2002) 101 Cal.App.4th 211, 218, italics added.) In this case, however, the Marmors never made a motion or request for attorney fees. The trial court was not obliged to make a ruling on a dismissed claim solely in anticipation of the possibility that the Marmors might request attorney fees at some unknown time in the future. Indeed, the Marmors never even alerted the trial court to the possibility that they might seek an award of attorney fees for the voluntary dismissal of the malicious prosecution claim while the anti-SLAPP motion was pending.
Even at oral argument on the anti-SLAPP motion, which took place after the Piccos had agreed to dismiss the malicious prosecution claim, the Marmors did not indicate any intention to seek attorney fees, nor did they ask the trial judge to make a ruling on the merits of the anti-SLAPP motion with respect to the malicious prosecution claim. Thus, we conclude that the trial court had no duty to rule on the merits of the anti-SLAPP motion as to the previously dismissed malicious prosecution claim.
III.
CONCLUSION
The complaint in this case does not arise from acts in furtherance of the Marmors "right of petition or free speech under the United States or California Constitution in connection with a public issue . . . .," ( § 425.16, subd. (b)(1)), and is therefore not properly subject to a special motion to strike under the anti-SLAPP statute. Further, the trial court did not err in failing to rule on the merits of the anti-SLAPP motion with respect to the malicious prosecution claim, because that claim had been voluntarily dismissed and the Marmors made no request in the trial court for attorney fees under the anti-SLAPP statute.
IV.
DISPOSITION
The trial courts order denying the anti-SLAPP motion is affirmed. Respondents are entitled to costs on appeal.
WE CONCUR: HALLER, Acting P. J., and McDONALD, J.