Opinion
NOT TO BE PUBLISHED
APPEAL from the judgment of the Superior Court of Los Angeles County Los Angeles County Super. Ct. No. PC038669. Melvin D. Sandvig, Judge. Reversed and remanded.
Carl Etting, for Defendants and Appellants.
Carl Wayne, for Plaintiff and Respondent.
RUBIN, J.
Defendants and appellants Christopher and Judy Milne (the Milnes) appeal from the order denying their Code of Civil Procedure section 425.16 motion to strike plaintiff and respondent Frank Estrada’s complaint for breach of contract. They contend, and Estrada concedes, that the trial court erred in declaring the motion moot after it sustained the Milnes’s demurrer with leave to amend. However, the parties disagree on whether the proper disposition is for this court to decide the merits of the motion or to remand to the trial court for a ruling on the merits. We reverse and remand to the trial court for a hearing and ruling on the merits of the motion.
All further undesignated statutory references are to the Code of Civil Procedure.
FACTUAL AND PROCEDURAL BACKGROUND
According to Estrada’s complaint for breach of contract: in July 2004, the Milnes and Estrada were next door neighbors; at that time, Estrada contracted to build a patio cover on his property. The parties entered into an oral agreement pursuant to which Estrada promised to pay the cost of obtaining and planting trees on the Milnes’ property to “minimize the view & aesthetic effects” of the patio cover and afford the Milnes’ backyard continued privacy in exchange for the Milnes promise to (1) not complain to city authorities about Estrada’s patio cover; and (2) maintain the trees at “a certain height.” In November 2004, the Milnes breached the agreement by filing a complaint with the city about Estrada’s patio cover and failing to maintain the trees at the promised (albeit unspecified) height. Regarding damages, the complaint alleged: “Defendants failed to abide by the terms of the agreement. Their failure has caused a criminal complaint to be filed against Plaintiff. Plaintiff has suffered monetary loss, as well as public humiliation, employment reprimands, and emotional distress.”
The Milnes demurred to the complaint and concurrently filed a special motion to strike, including a request for attorney’s fees, pursuant to section 425.16, subdivision (c). Estrada opposed both motions.
Section 425.16 concerns strategic lawsuits against public participation (SLAPP); it is sometimes referred to as “the anti-SLAPP statute,” and a motion brought pursuant to that section is sometimes referred to as an “anti-SLAPP motion.” In pertinent part, subdivision (b)(1) of the section provides: “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 or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”
Over the Milnes’ objection, the trial court ruled the anti-SLAPP motion “moot” after it sustained the demurrer with leave to amend. Estrada subsequently dismissed the entire action with prejudice. The Milnes filed a timely notice of appeal from the order denying their anti-SLAPP motion.
An order declaring a section 425.16 motion moot is the equivalent of a denial and, as such, is appealable. (White v. Lieberman (2002) 103 Cal.App.4th 210, 220 (White).)
DISCUSSION
1. The Anti-SLAPP Motion Was Not Rendered Moot by the Sustaining of the Demurrer
It is now well settled that an anti-SLAPP motion is not rendered moot by either an involuntary dismissal after a demurrer is sustained without leave to amend, or by a plaintiff’s voluntary dismissal of the cause of action to which an anti-SLAPP motion is directed. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1054-1055, citing White, supra, 103 Cal.App.4th at pp. 220-221; Pfeiffer Venice Properties v. Bernard (2002) 101 Cal.App.4th 211, 218-219 (Pfeiffer); and Liu v. Moore (1999) 69 Cal.App.4th 745, 752-753 (Liu); but see S. B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 377 [rule applies only to anti-SLAPP motions filed before action is voluntarily or involuntarily dismissed].) This is because the purpose of the anti-SLAPP statute is to give relief, in the form of attorney’s fees, to persons victimized by SLAPP suits. (Liu, supra, 69 Cal.App.4th at p. 750.) Accordingly, the statute provides that a “prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” (§ 425.16, subd. (c).) Since a defendant’s entitlement to attorney’s fees and costs is predicated upon whether the defendant has prevailed on the anti-SLAPP motion, the motion must be decided irrespective of whether the complaint is dismissed for other reasons. (Liu, supra, 69 Cal.App.4th at p. 752; Pfeiffer, supra, 101 Cal.App.4th at p. 218.)
2. We Remand for the Trial Court to Determine the Merits of the Anti-SLAPP Motion
The Milnes contend that this court should reverse the order denying their anti-SLAPP motion with directions to the trial court to grant the motion and award attorney’s fees in an amount to be determined by the trial court. As we understand their argument, it is that Estrada’s complaint inarguably alleged a SLAPP suit because on its face it sought to punish the Milnes for reporting Estrada to city authorities - an act in furtherance of their right to petition -- and Estrada cannot establish that he would prevail on this claim. Estrada, however, contends that the matter should be remanded to the trial court for determination of whether the complaint meets the requirements of the anti-SLAPP statute. We agree with Estrada.
In the usual case where the trial court erroneously denies an anti-SLAPP motion on the grounds that it has been rendered moot by either an involuntary or voluntary dismissal, the matter is remanded to the trial court for ruling on the merits of the anti-SLAPP motion and, if the defendant prevails on the motion, for determination of the amount of attorney’s fees to be awarded. (See. e.g., Pfeiffer, supra, 101 Cal.App.4th 211 [trial court sua sponte dismissed under doctrine of de minimis non curat lex]; Liu, supra, 69 Cal.App.4th 745 [defendant voluntarily dismissed cross-complaint without prejudice].) In Pfeiffer, for example, the defendants argued that the appellate court should direct the trial court to grant the anti-SLAPP motion because the trial court’s minute order dismissing the complaint on other grounds expressly acknowledged that section 425.16 applied to the complaint. Noting that a subsequent minute order, entitled “Court’s Explanation of Findings in Judgment and Order,” expressly stated that the trial court had not ruled on the merits of the anti-SLAPP motion, the court in Pfeiffer concluded: “As the trial court stated that it did not rule on the merits of the SLAPP motion, we remand the matter to the trial court for such a ruling.” (Id. at p. 219.)
This minute order stated: “ ‘Quite apart from CCP 425.16, which also applies here, using a blunderbuss to kill a gnat is sufficiently offensive to cause the court to invoke its inherent powers to strike the complaint under the doctrine of de minimis non curat lex, and as improper, frivolous, and abusive.’ ” (Id. at p. 214.)
In White, supra, 103 Cal.App.4th 210, however, the appellate court remanded solely for determination of the amount of attorney’s fees. In that case, the trial court dismissed as moot the defendant’s anti-SLAPP motion after it sustained without leave to amend the defendant’s demurrer to the plaintiff’s malicious prosecution action on the grounds that it was time-barred. The appellate court reversed and remanded solely for determination of the amount of attorney’s fees. It reasoned: “Because a malicious prosecution action is within the provisions of section 425.16, and there is no possibility that White will prevail, the only matter left for the trial court’s consideration is the amount of attorney’s fees.” (Id. at p. 221; see, e.g., Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 734-735 [action for malicious prosecution comes within § 425.16].)
Here, Estrada’s complaint was not for malicious prosecution. His breach of contract claims arise from the Milnes’ acts of (1) filing a complaint with the City of Los Angeles complaining about Estrada’s patio cover; and (2) failing to keep the trees at a promised height. Under these circumstances, we believe the appropriate relief is for this court to remand this case to the trial court with direction to consider and rule on the anti-SLAPP motion in the first instance.
DISPOSITION
The order denying the Milnes’s section 425.16 motion is reversed and the cause is remanded to the trial court for hearing and determination of that motion on its merits and, if the Milnes prevail, an award of attorney’s fees and costs pursuant to section 425.16, subdivision (c). The Milnes shall recover their costs on appeal.
WE CONCUR: COOPER, P. J., FLIER, J.