Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
Sonoma County Super. Ct. No. SCV-238481
Richman, J.
From a contentious marital dissolution and custody dispute between appellant James Dunn and his then wife arose this dispute between Dunn and respondent Lawrence A. Moskowitz, an attorney specializing in family law who represented Dunn’s ex-wife in the dissolution action. After a custody evaluation heavily favored Dunn’s ex-wife, Dunn began distributing articles attacking Moskowitz, prompting Moskowitz to petition for a restraining order pursuant to Code of Civil Procedure section 527.6. Dunn opposed the issuance of the restraining order on the basis that the requested order violated his right to free speech. Dunn also filed a special motion to strike the petition pursuant to section 425.16, arguing that the petition arose from activities that were protected by his right to free speech. The trial court ruled in Moskowitz’s favor on both matters, issuing a restraining order and weeks later denying Dunn’s motion to strike. Dunn timely appealed from both orders. We affirm.
All statutory references are to the Code of Civil Procedure.
I. Background
On April 11, 2006, Moskowitz filed a petition for orders to stop harassment against Dunn pursuant to section 527.6. The factual basis for the petition was described in Moskowitz’s supporting declaration with its attachments, which we summarize below.
Moskowitz testified that in the course of resolving the custody issues in the Dunn marital dissolution action, the parties stipulated to the use of Dr. Jacqueline Singer for purposes of conducting a child custody evaluation. When the parties were first discussing the custody evaluation, it was disclosed to Dunn’s attorney at the time that Singer shared office space with Moskowitz’s wife, Dr. Louise Packard.
After conducting the custody evaluation, Singer issued a recommendation that heavily favored Dunn’s ex-wife. Dunn took vigorous exception to the recommendation and forced the issue to trial, where he attacked Singer’s evaluation on numerous grounds. In one argument, Dunn contended that Singer had a conflict of interest because she shared office space with Packard, which Dunn claimed was never disclosed to him. At the conclusion of the trial, the Honorable James Bertoli issued a custody decision that was even more favorable to Dunn’s ex-wife than that which Singer recommended. Judge Bertoli also found there to be no conflict of interest: “Father has presented no legal authority, nor is the Court aware of any legal authority that Dr. Singer’s, and I put the word in quotes, relationship with the wife of mother’s counsel constitutes a conflict of interest in any sense of the term, and as such finds that no conflict of interest exists in this situation.” Judge Bertoli subsequently awarded Dunn’s ex-wife $30,000 in attorneys’ fees and costs as sanctions against Dunn, finding that his conduct “frustrated settlement, forced litigation costs to skyrocket, and failed to encourage cooperation between the parties and attorneys.” As an example of such conduct, the court specifically cited Dunn’s “unfounded accusations of ethical misconduct by attorneys in this case as well as Dr. Singer . . . .”
By the time Singer was actually appointed, Dunn was representing himself in the dissolution action, which he did throughout much of the case.
Dunn did not take the court’s custody ruling lightly. Instead, he embarked on a three-month-long campaign to smear Moskowitz’s reputation. On or about January 16, 2006, Dunn distributed the first in a series of what Moskowitz calls “press releases” to attorneys in Sonoma County. The first article, a two-page missive captioned “Alleged Corruption Involving Law Firm and Psychologists May Taint Custody Outcomes,” stated that Dunn had “uncovered an apparent conflict of interest that may have caused him and hundreds of other fathers to lose custody of their children over the past decade.” The article explained that Moskowitz’s wife shared an office space with Singer, and claimed that the “relationship was not disclosed to Dunn, who lost custody of his daughter based on Singer’s report.” According to the article, the custody trial “touched on alleged corruption regarding psychologist Singer and Moskowitz’s law firm. [¶] Apparently angered by Dunn’s allegation of conflict of interest, Singer recommended sole custody to the mother then speculated in court that Dunn might pose a risk of abducting his daughter.”
Dunn refers to them as “editorial newsletters,” “editorials,” or “leaflets.” We shall refer to them as articles.
In addition to the conflict of interest allegations, the article also accused Moskowitz of unethical practices. It stated, “Dunn alleges that the law firm peddles influence this way. Moskowitz’s firm, which has five family law attorneys, refers a steady stream of custody evaluation cases to Dr. Singer and Dr. Pickar [another psychologist who performs child custody evaluations], assuring them of incomes of at least $200,000 a year apiece. Moskowitz’s wife, Louise Packard, maintains and cultivates the relationships without talking directly about case details. [¶] If Singer and Pickar consistently provide outcomes the big law firm needs to win most of its key cases, the firm can command high fees and attract more clients.” The article then accused Moskowitz’s law firm of promoting conflict and refusing to mediate or settle Dunn’s divorce case “so that it could milk its client for fees as long as possible.”
The article then spent considerable length promoting a book written by Dunn called Comeback Dads which, according to the article, “chronicles how family courts in Sonoma County and throughout California routinely rob children of their dads.” The book, like the article, was published by Trillion Publishing, LLC, a publishing company owned by Dunn. The article concluded by advising where Comeback Dads could be purchased.
Approximately two weeks later, Dunn disseminated a second article to members of the Sonoma County bar. This one, entitled “Moskowitz’ [sic] Alleged Corruption May Harm Children of Divorce,” claimed that Moskowitz and his associate, Mary Jane Schneider, “may have violated attorney ethics codes and standards of honest business conduct” by “using financial incentives to improperly influence custody evaluators, child psychologists and co-parent counselors.” The article reiterated Dunn’s story of Singer’s purported conflict of interest and urged attorneys “to report unethical conduct by Larry Moskowitz and Mary Jane Schneider . . . .” The contact information for making such a report included Dunn’s e-mail address.
Another two weeks later, a third article followed. This one claimed that Moskowitz’s firm had lost 30 percent of its attorneys, “Turmoil [that] may be linked to poor management or alleged unethical conduct by senior partner Larry Moskowitz and associate Mary Jane Schneider.” It reiterated the influence peddling and conflict of interest allegations espoused in the prior two articles, accusing the Moskowitz firm of “[i]n effect . . . buy[ing] the custody evaluation results it needs to win cases.” It also stated, “Moskowitz allegedly encourages clients to illegally tape record calls with their ex-spouses, including calls with children. Moskowitz allowed or encouraged his client to falsify financial documents during discovery . . . .” The article encouraged “[l]ocal attorneys . . . to report allegations of misconduct by Moskowitz and Schneider for an expected investigation by the State Bar.” The contact information provided for reporting allegations of misconduct was not for the California Bar Association, however, but again included Dunn’s e-mail address.
On March 21, 2006, more than a month after the distribution of the third article, a copy of that article appeared in an elevator that services Moskowitz’s law office. According to Moskowitz, Dunn had hand delivered documents to his office that day and was observed in the office by several office personnel. Two copies of the article were also found interspersed with the documents Dunn had produced. A few weeks later, Dunn again hand delivered documents to Moskowitz’s office; and again the third article was found posted in the elevator and mixed in with the documents.
The following week, Dunn faxed copies of the third article to mental health professionals in Sonoma County, individuals who were colleagues of Packard’s. On April 8, 2006, Moskowitz was contacted by one of his neighbors, who reported having received one of Dunn’s articles in his personal mail. Moskowitz retrieved the article and envelope from his neighbor, and discovered that the envelope bore a sticker stating “Neighborhood Corruption Alert.” The article sent to his neighbor was similar to the second article distributed by Dunn, with a significant exception—across the top it stated, “Neighborhood Corruption Watch: Larry Moskowitz lives at [personal address of Moskowitz and Packard].” Moskowitz subsequently retrieved the same article and similar envelopes from three other neighbors.
It was after Dunn disseminated the article identifying Moskowitz’s home address that Moskowitz filed the petition for orders to stop harassment pursuant to section 527.6. He requested an order prohibiting Dunn from coming within 100 yards of himself, his wife, their home, their offices, and their vehicles, giving out their home address to anyone, and contacting Moskowitz’s wife in any manner. He sought to prohibit Dunn “from molesting, harassing, striking, threatening, assaulting, hitting, following, stalking, destroying the property of, disturbing the peace of, or keeping under surveillance” Moskowitz or his wife. Most significantly for purposes of this appeal, Moskowitz also requested “[a]n order prohibiting [Dunn] from transmitting any further written ‘press releases’ or other communications concerning [Moskowitz or his wife], to anyone other than the following: [¶] A. The judge in the dissolution matter; [¶] B. The parties to the dissolution matter; [¶] C. Counsel in the dissolution matter; [¶] D. Defendant’s own therapist; [¶] E. The child’s therapist; and [¶] F. Anyone who has been disclosed as a witness in that matter.” That same day, and without prior notice to Dunn, the court issued a temporary restraining order (TRO) granting Moskowitz the relief he requested.
On April 18, 2006, Dunn filed an answer to Moskowitz’s petition for a restraining order in which he disagreed that the requested order should issue. In his supporting declaration, Dunn argued that the TRO “blatantly violates [his] free speech rights as protected under the First Amendment to the United States Constitution.” Dunn stated that the restraining order constituted an unconstitutional prior restraint on his speech “to keep [him] from publishing written opinions criticizing Mr. Moskowitz’s allegedly unethical family law practices” and requested sanctions against Moskowitz “in the amount of $100,000 as a penalty for his attempt to suppress free speech and abuse the court system to serve his own ends.” Dunn also disputed a claim by Moskowitz that the newsletters were “press releases” to promote his book, which, according to Dunn, “argues for reform of the California Family Code statutes to provide a presumption of joint custody and nearly equal parenting time in divorces where both parents are fit.” Also according to Dunn, “[t]he book promotes the Shared Parenting Bill, authored by Assemblyman Merv Dymally (D-Los Angeles) . . . [which] seek[s] to make California family courts fair, equitable and supportive of children’s right to have access to both parents after divorce.” Ultimately, Dunn opined that his articles merely expressed his opinions about the unethical conduct of a public figure, speech, he claimed, protected by the United States Constitution.
Dunn also rehashed his dissatisfaction with the custody proceeding, reiterating his claims that Singer had a conflict of interest, never once mentioning Judge Bertoli’s finding that there was no such conflict. Dunn also labeled Singer’s evaluation “abominable,” accused Judge Bertoli of bias and being “cruel,” and claimed that Moskowitz was driven by greed. Ironically, after spending over two pages detailing his complaints with the custody proceeding, Dunn asserts that “[n]one of Moskowitz’s statements about Judge Bertoli’s opinion or rulings on custody are relevant to this civil harassment restraining order.”
On April 24, 2006, Moskowitz filed a reply.
On April 25, 2006, Dunn filed a special motion to strike Moskowitz’s petition pursuant to section 425.16. In the motion, Dunn argued that his activities constituted political speech that was entitled to the highest form of protection under the Constitution such that the TRO was improperly issued. Moreover, he argued that Moskowitz’s petition was aimed at restraining protected activity and that Moskowitz could not prevail on the merits of his petition because a restraining order would violate the United States Constitution. Thus, the petition was subject to being stricken in accordance with section 425.16.
As he did in much of the custody case, Dunn filed his answer to Moskowitz’s petition in propria persona. Dunn subsequently retained counsel, who filed the motion to strike on his behalf.
Significantly from Dunn’s perspective, on the morning of April 26, 2006, the day of the hearing on Moskowitz’s petition, Moskowitz amended the petition to eliminate his request for an order prohibiting Dunn from further transmission of his articles. Also on the day of the hearing, Dunn filed evidentiary objections to the Moskowitz declaration in support of the petition.
The amended petition was not actually filed until the following day, April 27, 2006.
The amended petition then came on for hearing before the Honorable Conrad L. Cox. After both sides presented argument on the applicability of section 527.6 to Dunn’s activities, the court took the matter under submission. The following day, Judge Cox issued an order on submitted matter in which he stated, “The plaintiff originally sought an order which would substantial[ly] limit the defendant’s ability to write and distribute his thoughts about the case and the process. At the time of the hearing the plaintiff sought only to restrain certain personal conduct by the defendant toward the plaintiff and his wife. Although the request to prohibit the publication and dissemination of certain material by the defendant had been withdrawn, the defendant spent substantial time arguing issues raised by that request. The court is not called upon to rule on those issues.” Judge Cox also noted Dunn’s objections to Moskowitz’s declaration and stated, “The court has considered those objections and ruled upon them.” He then concluded that he had “considered all of the records and documents contained in the file and submitted at the time of oral argument and finds that they form a sufficient basis to support the proposed restraining order.” He indicated that the restraining order would issue as requested in Moskowitz’s amended petition, and the restraining order, as amended, was in fact issued that day. On May 3, 2006, an amended order on submitted matter was entered, correcting a factual misstatement in the original order. The amended order remained the same in substance.
On May 4, 2006, Moskowitz filed an opposition to Dunn’s motion to strike, and moved for attorneys’ fees and costs incurred in opposing the motion. Moskowitz’s opposition was supported by his attorney’s declaration, which appended the amended restraining order petition and the supporting Moskowitz declaration.
On June 2, 2006, Dunn filed his reply in support of the motion to strike.
The motion, which was originally scheduled to be heard on May 17, 2006, was continued due to a series of recusals and a peremptory challenge exercised by Dunn. It came on for hearing on June 12, 2006 before the Honorable Frank S. Petersen, who took the matter under submission.
On June 14, 2006, Judge Petersen entered a minute order denying the motion to strike, finding “that the present order does not restrict protected activity as provided by [Code of Civil Procedure] section 425.16. Therefore, the order stands, and the Motion to Strike is Denied.” The court also denied Dunn’s motion for attorneys’ fees. On July 3, 2006, the court entered an order denying both motions.
Dunn filed a timely notice of appeal as to both the amended order granting the request for the restraining order and the order denying the motion to strike and for attorneys’ fees.
II. Discussion
A. The Trial Court’s Issuance Of A Civil Harassment Restraining Order Was Proper
1. Standard Of Review
The trial court’s issuance of a civil harassment restraining order is typically reviewed for substantial evidence. (Schild v. Rubin (1991) 232 Cal.App.3d 755, 762.) Dunn contends, however, that in this case the trial court’s restraining order should be reviewed de novo for three reasons. First, he submits that “the question presented here . . . is a pure question of law: whether distributing leaflets and writing editorials critical of a prominent attorney is a ‘course of conduct’ within the meaning of [section] 527.6.” As he explains, “It is a pure question of law because the facts here are largely undisputed [since Dunn] admits distributing the leaflets and editorials [Moskowitz is] complaining about. The only dispute is whether [Dunn’s] activities are protected under the First Amendment—a question of law subject to de novo review.” Second, he argues the de novo standard should apply because “the Trial Court applied the law incorrectly, because the Trial court didn’t even reach the parties’ First Amendment arguments when it granted restraining orders.” Third, he states “some decisions hold that First Amendment cases are an exception to the substantial evidence standard as to questions of fact,” citing In re George T. (2004) 33 Cal.4th 620 and McCoy v. Hearst Corp. (1986) 42 Cal.3d 835, 846.
We need not resolve the standard of review question, because we conclude that under either standard the court’s issuance of the restraining order must be affirmed.
2. Dunn’s Conduct Was Within Section 527.6
Section 527.6, subdivision (a) states: “A person who has suffered harassment as defined in subdivision (b) may seek a temporary restraining order and an injunction prohibiting harassment as provided in this section.” Subdivision (b) states: “For the purposes of this section, ‘harassment’ is unlawful violence, a credible threat of violence, or a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses the person, and that serves no legitimate purpose. The course of conduct must be such as would cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff.”
A “course of conduct” that seriously alarms, annoys, or harasses a person and serves no legitimate purpose is defined as “a pattern of conduct composed of a series of acts over a period of time, however short, evidencing a continuity of purpose, including following or stalking an individual, making harassing telephone calls to an individual, or sending harassing correspondence to an individual by any means, including, but not limited to, the use of public or private mails, interoffice mail, fax, or computer e-mail. Constitutionally protected activity is not included within the meaning of ‘course of conduct.’ ” (§ 527.6, subd. (b)(3).)
As described in detail, Dunn embarked on a mission to destroy Moskowitz’s reputation by distributing a series of articles over a three-month period. The articles accused Moskowitz of unethical behavior and were widely distributed to peers of Moskowitz and his wife. They were also posted on two separate occasions in an elevator that serviced Moskowitz’s law firm and then distributed by fax to the mental health professionals. Finally, and of greatest concern, Dunn distributed one of the articles—bearing the label “Neighborhood Corruption Watch”—to Moskowitz’s neighbors, identifying Moskowitz’s home address in the article. Such conduct, we conclude, constituted “a series of acts over a period of time, however short, evidencing a continuity of purpose” to harass Moskowitz. (§ 527.6, subd. (b)(3).) Such conduct supports the restraining order under section 527.6.
Without question, this conduct would cause a reasonable person to suffer substantial emotional distress, particularly Dunn’s distribution of the articles to Moskowitz’s neighbors. And as established by Moskowitz’s declaration, the conduct did in fact cause Moskowitz substantial emotional distress, a prerequisite to the issuance of a section 527.6 restraining order. (§ 527.6, subd. (b).)
3. Dunn’s Conduct Was Not Protected First Amendment Activity
The foundation of Dunn’s argument that the restraining orders were improperly issued is the purportedly “well known” fact that his “actions were protected First Amendment activity.” He claims it was protected speech because it “criticized the family law child custody process in general and criticized a prominent, local family law attorney, Lawrence Moskowitz, for his alleged manipulation of this process. In addition, [Dunn] used his and others’ interactions with the courts and with Mr. Moskowitz as evidence in support of the Shared Parenting Bill before the California Legislature. Of note, one extensive section of the Shared Parenting Bill addresses standards for child custody evaluators. [Dunn] also wrote a book, Comeback Dads, on the subject of shared parenting based on his experiences. [Dunn’s] speech was political speech because it discussed important public issues. Even though [Moskowitz] certainly did not like it, [Dunn’s] speech is political speech and thus the highest form of speech under the First Amendment.” We are not persuaded.
A critical factor overlooked by Dunn is that not all speech is protected. Brekke v. Wills (2005) 125 Cal.App.4th 1400 (Brekke), relied on by Moskowitz, is persuasive. There, a mother sought a temporary restraining order and an injunction pursuant to section 527.6 to enjoin her daughter’s boyfriend from contacting her daughter and members of her family after she found three “vile and vitriolic” letters from the boyfriend to her daughter in which the boyfriend threatened, among other things, to kill the plaintiff and her husband. (Id. at p. 1403.) Defendant opposed issuance of an injunction, claiming his conduct was protected by the “ ‘[f]reedom of speech, freedom of association, [and] right of privacy.’ ” (Id. at p. 1404.) The trial court issued the requested relief, and the boyfriend appealed. (Ibid.)
On appeal, the court began its “analysis by rejecting defendant’s claim that the injunction violates his First Amendment rights of freedom of speech. . . .” (Brekke, supra, 125 Cal.App.4th at p. 1409.) The court explained: “The United States Supreme Court has ‘long recognized that not all speech is of equal First Amendment importance. It is speech on “ ‘matters of public concern’ ” that is “at the heart of the First Amendment’s protection.” [Citations.]’ (Dun & Bradstreet v. Greenmoss Builders, Inc. (1985) 472 U.S. 749, 758-759, fn. omitted.) The ‘ “special concern [for speech on public issues] is no mystery”: [¶] “The First Amendment ‘was fashioned to assure unfettered interchange of ideas for the bringing about of political and social changes desired by the people.’ [Citations.] ‘[S]peech concerning public affairs is more than self-expression; it is the essence of self-government.’ [Citation.] . . . .” ’ (Id. at p. 759.) ‘In contrast, speech on matters of purely private concern’—while ‘not totally unprotected’—‘is of less First Amendment concern.’ (Id. at pp. 759, 760.) When such speech—for example, as in defamation or the intentional infliction of emotion distress—causes damage, civil sanctions may be imposed because ‘ “[t]here is no threat to the free and robust debate of public issues; there is no potential interference with a meaningful dialogue of ideas concerning self-government; and there is no threat of liability causing a reaction of self-censorship by the press . . . .” [Citation.].’ (Id. at pp. 760-761.)” (Brekke, supra, 125 Cal.App.4th at p. 1409.)
The court then stated, “Here, defendant’s speech was between purely private parties, about purely private parties, on matters of purely private interest. Thus, this case is ‘ “wholly without the First Amendment concerns with which the Supreme Court of the United States has been struggling.” [Citation.]’ (Dun & Bradstreet v. Greenmoss Builders, Inc., supra, 472 U.S. at p. 760).” It then concluded that “the trial court properly considered defendant’s speech in determining whether to issue injunctive relief pursuant to Code of Civil Procedure section 527.6.” (Brekke, supra, 125 Cal.App.4th at p. 1409.)
Likewise here. While Dunn’s articles may not have been as expressly threatening as those in Brekke, without question they focused on a private dispute between him and Moskowitz arising out of Dunn’s dissatisfaction with the results of the custody battle. And like that of the defendant in Brekke, supra, 125 Cal.App.4th at p. 1409, Dunn’s speech did not present First Amendment concerns. It was not outside the scope of section 527.6, and the restraining order was properly issued.
Dunn also complains that the TRO was “an unconstitutional viewpoint-based” order and that it was not narrowly tailored. We need not address these concerns because the TRO, whether proper or improper, was superseded by the restraining order, which we have concluded was properly issued. The issue is therefore moot.
B. The Trial Court Properly Denied Dunn’s Motion To Strike
1. Statutory Framework Of Section 425.16
Section 425.16, commonly known as the anti-SLAPP statute (Rivero v. American Federation of State, County and Municipal Employees (2003) 105 Cal.App.4th 913, 916, fn. 2) (Rivero), provides in relevant part, “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.” (§ 425.16, subd. (b)(1).)
“SLAPP” is an acronym derived from “strategic lawsuit against public participation.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 85 (Navellier).)
As explained by the California Supreme Court in Navellier, supra, 29 Cal.4th at p. 88, “Section 425.16 posits . . . a two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision (e)’ [citation]. If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.”
“[I]n order to establish the requisite probability of prevailing [citation], the plaintiff need only have ‘ “stated and substantiated a legally sufficient claim.” ’ [Citations.] ‘Put another way, the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” ’ ” (Navellier, supra, 29 Cal.4th at pp. 88-89.)
Only a claim that satisfies both prongs of the anti-SLAPP 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, supra, 29 Cal.4th at p. 89.) “On appeal we review independently whether the complaint against the appellant arises from appellant’s exercise of a valid right to free speech and petition and if so, whether the respondent established a probability of prevailing on the complaint. [Citation.]” (Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 456.)
With this statutory framework in mind, we turn to Dunn’s motion to strike.
2. The Effect Of Moskowitz’s Amended Petition For Restraining Order
Preliminarily, we address Dunn’s arguments that Moskowitz could not “escape the anti-SLAPP statute by amending [his] complaint,” and that “the court erred by denying defendant’s anti-SLAPP motion based on the amended complaint, not the original complaint.” Dunn’s arguments derive from Sylmar Air Conditioning v. Pueblo Contracting Services (2004) 122 Cal.App.4th 1049 (Sylmar), in which cross-defendant Pueblo demurred to a cross-complaint filed by Sylmar and moved to strike the third cause of action for fraud pursuant to section 425.16. Prior to the hearing on both matters, Sylmar filed a first amended cross-complaint which pleaded the fraud claim in greater detail. The trial court granted the SLAPP motion, struck the third cause of action, awarded attorneys’ fees to Pueblo, and found the demurrer moot. (Id. at p. 1053.)
On appeal, Sylmar contended “that the trial court erred in hearing the SLAPP motion because it filed a first amended complaint pursuant to section 472 prior to the hearing on the motion.” (Sylmar, supra, 122 Cal.App.4th at p. 1054.) The Court of Appeal disagreed, observing first that “Sylmar received the benefit of section 472 when it was permitted to file the first amended complaint. The filing of the first amended complaint rendered Pueblo’s demurrer moot . . . .” (Ibid.) The court then noted the well-settled principle “that a plaintiff may not avoid liability for attorney fees and costs by voluntarily dismissing a cause of action to which a SLAPP motion is directed.” (Ibid.) The court held that “the trial court did not err in addressing the merits of the SLAPP motion,” since allowing a SLAPP plaintiff to amend a complaint without having to show a probability of prevailing on the merits would undermine the purpose of the statute. (Id. at pp. 1055-1056.) Dunn contends that rule pertains here, and thus it was improper for the trial court to consider Moskowitz’s amended petition when it ruled on Dunn’s motion to strike. We disagree.
Section 472 provides: “Any pleading may be amended once by the party of course, and without costs, at any time before the answer or demurrer is filed, or after demurrer and before the trial of the issue of law thereon, by filing the same as amended and serving a copy on the adverse party, and the time in which the adverse party must respond thereto shall be computed from the date of notice of the amendment.”
Unlike in Sylmar, supra, 122 Cal.App.4th 1049, Moskowitz’s amendment made no changes to the allegations concerning Dunn’s conduct on which the restraining order petition was based. Rather, the changes involved only the relief requested. The motion to strike, however, is unconcerned with the scope of the requested injunctive relief, instead considering only the alleged conduct that gives rise to the claim. (§ 425.16, subd. (b)(1).) Moskowitz’s counsel accurately summarized this point at the hearing on Dunn’s motion to strike: “It is extremely important to take into consideration the fact that the amendment that was made didn’t change the nature of the cause of action pled. . . . [I]t was a harassment restraining order request. Didn’t change any of the allegations that were made. The only thing that the amendment did was withdraw some of the requested aspects of relief. That’s extremely important in analyzing this situation, because I would ask the court to consider what would have happened if we had never amended that initial pleading. We would have had the same pleading before the court, the same allegations supporting the pleading . . . .”
On the other hand, Dunn’s failure to appreciate this critical distinction is exemplified by his counsel’s statement during the same hearing: “As I’ll discuss, the filing of the SLAPP motion will, in effect, freeze the application in its original form, thus making any subsequent amendment irrelevant for the purposes of a ruling on the SLAPP motion.” Nothing in Sylmar, supra, 122 Cal.App.4th 1049,suggests that any amendment to a complaint, or in this case a section 527.6 petition, no matter how insignificant, is prohibited once an anti-SLAPP motion to strike has been filed. Rather, Sylmar is concerned only with an amendment to the allegations regarding the purportedly protected conduct—and Moskowitz made no such amendment.
In sum, in ruling on the motion to strike, the focus of the court must be on Dunn’s conduct, and the allegations regarding his conduct remained the same in both versions of the petition. Sylmar is inapposite.
Curiously, Dunn himself recognizes this to be the case when he argues that “the court erred by focusing on relief requested in the complaint instead of whether the complaint arose from protected activity.”
3. Dunn Was Not Engaged In Protected Activity
As noted above, Dunn bears the initial burden of demonstrating that he was engaged in a “protected activity.” (§ 425.16, subd. (b)(1).) Section 425.16, subdivision (e) sets forth four categories of activities that are designated “protected” and therefore come within the scope of the anti-SLAPP statute. Dunn argues that his distribution of the articles comes within all four categories. We discuss them in turn.
Section 425.16, subdivision (e)(1) protects a “statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law.” Dunn contends his activities fall within this category because he “has applied repeatedly for changes in his child custody order, and the trial court retained jurisdiction on the issue of child custody . . . .” However, and as Moskowitz correctly notes, the articles were not distributed in the context of the underlying dissolution action, were never submitted to the court in the dissolution action, and were not specifically directed at changing the custody order. Dunn concedes that “reasonable minds could differ on whether [his] statements were made as part of an official proceeding,” and we easily conclude they were not.
We also disagree that Dunn’s articles were “made in connection with an issue under consideration or review by a legislative, executive, or judicial body.” (§ 425.16, subd. (e)(2).) According to Dunn, his statements concerned the Shared Parenting Bill, which “has been under consideration by the California Legislature since 2005. . . .” However, he concedes that the Shared Parenting Bill is inactive and was thus not in fact pending before a legislative body.
Additionally, the articles were generally unrelated to the Shared Parenting Bill. The first article, nearly two pages in length, contained two sentences about the bill: “Author Dunn, working with assembly member Merv Dymally (D-Los Angeles), aims to pass the Shared Parenting Bill. The bill would require courts to give children nearly equal access to mom and dad where both are fit parents.” The other two articles did not mention the bill at all. If the articles were in fact intended as advocacy for the bill, surely they would have been designed to educate the recipients about it, which was not the case. Indeed, Dunn makes no attempt to explain—nor could he—how distributing one of the articles to Moskowitz’s neighbors under the guise of a “Neighborhood Corruption Watch” has any bearing on the issue of child custody arrangements.
The next two categories present a more difficult question. Section 425.16, subdivision (e)(3) includes statements or writings “made in a place open to the public or a public forum in connection with an issue of public interest”; and subdivision (e)(4), a catch-all category, encompasses “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.” Thus, to succeed under either category, Dunn bears the burden of proving that the disputed activity involved a “public issue” or an “issue of public interest.” If his activity did not concern such an issue, then his motion to strike must fail.
We begin with discussion of two cases we find particularly informative on the issue of what constitutes a matter of public interest. The first is Rivero, supra, 105 Cal.App.4th 913, in which we considered whether the trial court properly denied a section 425.16 motion to strike brought by a union against a supervisor of janitors who sued the union and others for libel, slander, and other claims after information about the supervisor, including allegations that he had solicited bribes, hired family members, engaged in favoritism, and harassed and abused employees, appeared in the union’s publications. (Id. at pp. 917-918.) In answering this question, we analyzed in detail the “[f]ew published cases [that] have interpreted the terms ‘public issue’ and ‘public interest’ as they are used in section 425.16, subdivision (e).” (Id. at p. 919.) Those cases were Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468 (Damon); Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226; Church of Scientology of California v. Wollersheim (1996) 42 Cal.App.4th 628 (disapproved on another ground in Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68) (Church of Scientology); Seelig v. Infinity Broadcasting Corp. (2002) 97 Cal.App.4th 798; Ludwig v. Superior Court (1995) 37 Cal.App.4th 8; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400; and M.G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623. (Rivero, supra, 105 Cal.App.4th at 919-924.) We will not repeat that lengthy analysis here, but will quote our conclusion: “None of these cases defines the precise boundaries of a public issue, but in each of these cases, the subject statements either concerned a person or entity in the public eye (see Sipple, supra, 71 CalApp.4th at p. 239 [‘nationally known figure’]; Church of Scientology, supra, 42 Cal.App.4th at p. 651 [extensive ‘media coverage’]; Seelig, supra, 97 Cal.App.4th at pp. 807-808 [discussion of participant in ‘a television show of significant interest to the public and the media’]), conduct that could directly affect a large number of people beyond the direct participants (Damon, supra, 85 Cal.App.4th 468; Ludwig, supra, 37 Cal.App.4th 8; Dowling, supra, 85 Cal.App.4th 1400; Church of Scientology, supra, 42 Cal.App.4th at pp. 650-651) or a topic of widespread public interest (see M.G., supra, 89 Cal.App.4th at p. 629.).” (Rivero, supra, 105 Cal.App.4th at p. 924.)
Ultimately we concluded that the activity at issue in Rivero, supra, 105 Cal.App.4th 913,did not concern a matter of public interest. We explained, “Here, the Union’s statements concerned the supervision of a staff of eight custodians by Rivero, an individual who had previously received no public attention or media coverage. Moreover, the only individuals directly involved in and affected by the situation were Rivero and the eight custodians. Rivero’s supervision of those eight individuals is hardly a matter of public interest.” (Id. at p. 924.)
Two years later, we decided Thomas v. Quintero (2005) 126 Cal.App.4th 635 (Thomas), the second case we find to be of assistance. There, a landlord sought a section 527.6 restraining order to prevent a tenant from further demonstrating and leafleting at the landlord’s church in protest of the landlord’s rental practices. (Id. at pp. 642-654.) The tenant filed a motion to strike pursuant to section 425.16, which the trial court denied on the ground that section 425.16 does not apply to section 527.6 petitions. (Thomas, supra, 126 Cal.App.4th at pp. 643, 646.)
On appeal, we reversed, holding that section 527.6 petitions are in fact subject to special motions to strike. (Thomas, supra, 126 Cal.App.4th at pp. 646-652.) As is pertinent to the case before us, we then considered what constitutes an “issue of public interest” within the meaning of the anti-SLAPP statute. We analyzed such cases as Averill v. Superior Court (1996) 42 Cal.App.4th 1170 (Averill), in which a homeowner who was seeking to prevent a residence in her neighborhood from being converted into a battered women’s shelter sought to dissuade her employer from making a charitable donation in support of the conversion, and was sued by the charitable organization for defamation and intentional interference with prospective economic advantage. (Id. at pp. 1172-1173.) On appeal, the court held that the homeowner’s motion to strike should have been granted, stating, “Here, the allegedly slanderous statements arose in the context of a public issue, i.e., the placement of a shelter in petitioner’s neighborhood. Petitioner was an outspoken critic of the project. She had petitioned the city council, arguing against the project and had written to the local newspaper expressing her concern regarding the project and its director.” (Id. at p. 1175.)
We also considered Foothills Townhome Assn. v. Christiansen (1998) 65 Cal.App.4th 688, disapproved on another ground in Equilon Enterprises, supra, 29 Cal.4th at p. 68, where, as we summarized in Thomas, supra, 126 Cal.App.4th at p. 660, “a suit by a homeowners association to recover an unpaid $1,300 assessment needed to replenish the association’s capital reserves brought against a recalcitrant homeowner ‘involved matters of sufficient public interest made in a sufficiently public forum to invoke the protection of section 425.16.’ ” (Id. at p. 660, quoting Foothills Townhome, supra, 65 Cal.App.4th at pp. 695-696.)
And we again examined Damon, supra, 85 Cal.App.4th 468, which involved a defamation action by the manager of a residential community of 1,633 homes against members of the community who were critical of his performance. (Id. at p. 473.) The Damon court concluded that the dispute implicated an “issue of public interest” because private conduct can be a public issue where it “impacts a broad segment of society.” (Id. at p. 479.)
We also examined at length Weinberg v. Feisel (2003) 110 Cal.App.4th 1122 (Weinberg), in which both plaintiff and defendant were aficionados of token collecting and were members of the National Token Collectors’ Association, which publishes a monthly newsletter called Talkin’ Tokens. (Id. at p. 1127.) At a token show, defendant showed plaintiff his “good-for” encased coin collection, only to subsequently discover that one of his good-for encased coins was missing. Defendant accused plaintiff of stealing the token, which plaintiff denied. (Id. at p. 1128)
As explained in Weinberg, “A ‘good-for’ encased coin appears to be a token that encases an actual coin. The tokens were issued by merchants, who would exchange the identified ‘good-for’ items for the token.” (Weinberg, supra, 110 Cal.App.4th at pp. 1127-1128.)
In the words of the Weinberg court, “Defendant [then] began what can be characterized as a campaign to oust plaintiff from the token collecting avocation.” (Weinberg, supra, 110 Cal.App.4th at p. 1128.) He began by publishing an advertisement in Talkin’ Tokens in which he described, without identifying plaintiff as the suspected thief, the circumstances surrounding the disappearance of his token. He then sent a letter to over 20 collectors in which he did identify plaintiff as the collector who purportedly stole his token, along with alleging that plaintiff engaged in misrepresentations, misstatements of fact, and outright lies. Defendant later procured a vote barring plaintiff from attending an upcoming token jamboree. Defendant also published another statement in a subsequent issue of Talkin’ Tokens concerning the disappearance of his token, which he followed with a second letter to other token collectors, asserting that plaintiff was a thief and chronic liar. He reported his success at having plaintiff excluded from a previous token jamboree and suggested that efforts be made to exclude plaintiff from other token shows. (Id. at pp. 1128-1129.) He also “proposed ideas for further action includ[ing] an advertisement to be printed in association journals that could be used as handouts at token shows, buttons showing plaintiff’s initials with a slash through them to be worn at token shows, coordinated submission of individual letters to plaintiff in which ‘the writer could say almost whatever he wanted (no threats, however) without fear of any legal implications,’ and simultaneous submission of ethics complaints to the national association where ethics violations have occurred.” (Id. at p. 1129.) Finally, defendant contacted a sergeant at the Los Angeles police department and purportedly reported that plaintiff, who was a retired Los Angeles police officer, had a violent temper, that people were fearful if plaintiff attended an upcoming token show, and that plaintiff had been stealing at several shows. (Id. at p. 1129.)
In response, plaintiff filed a complaint for libel, slander, and intentional infliction of emotional distress. Defendant responded with a special motion to strike pursuant to section 425.16, which the trial court denied, finding that defendant failed to demonstrate the case was subject to the anti-SLAPP statute. (Weinberg, supra, 110 Cal.App.4th at p. 1129.)
On appeal, after agreeing that defendant’s conduct did not fall within section 425.16, subdivisions (e)(1) and (e)(2) (Weinberg, supra, 110 Cal.App.4th at pp. 1130-1132), the court turned to subdivisions (e)(3) and (e)(4) and observed that both categories “are subject to the limitation that the conduct must be in connection with an issue of public interest.” (Weinberg, supra, 110 Cal.App.4th at p. 1132.) Noting that the statute does not define what constitutes “an issue of public interest,” the court outlined a “few guiding principles”: “First, ‘public interest’ does not equate with mere curiosity. [Citations.] Second, a matter of public interest should be something of concern to a substantial number of people. [Citation.] Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. [Citations.] Third, there should be some degree of closeness between the challenged statements and the asserted public interest [citation]; the assertion of a broad and amorphous public interest is not sufficient [citation]. Fourth, the focus of the speaker’s conduct should be the public interest rather than a mere effort ‘to gather ammunition for another round of [private] controversy . . . .’ [Citation.] Finally, ‘those charged with defamation cannot, by their own conduct create their own defense by making the claimant a public figure.’ [Citation.] A person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people. [Citations.]” (Id. at pp. 1132-1133.)
Then, after comparing and contrasting various cases, the court concluded that it found Rivero, supra, 105 Cal.App.4th 913 persuasive, stating, “Defendant has failed to demonstrate that his dispute with plaintiff was anything other than a private dispute between private parties. The fact that defendant allegedly was able to vilify plaintiff in the eyes of at least some people establishes only that he was at least partially successful in his campaign of vilification; it does not establish that he was acting on a matter of public interest.” (Weinberg, supra, 110 Cal.App.4th at pp. 1134.)
After analyzing the above noted cases, we stated, “Given these authorities’ expansive interpretation of the phrase ‘issue of public interest’ and in light of the statute’s mandate that we construe the law broadly so as to ‘encourage continued participation in matters of public significance’ (§ 425.16, subd. (a)), we conclude that [the tenant’s] activities here were protected under section 425.16, subdivision (e)(3).” (Thomas, supra, 126 Cal.App.4that p. 661.)
With these authorities providing guidance, we consider Dunn’s contention that the issue of shared parenting, and specifically the Shared Parenting Bill, along with reform of the child custody system are matters of public interest. As he explains it, “ ‘Shared parenting’ is a contentious and current debate about whether mothers and fathers have equal parental rights. Shared parenting implicates many of the institutions at the core of liberty, such as marriage, the courts, and parents’ roles in the lives of their children. The statements by Mr. Dunn, his book, and his website all support his advocacy of the Shared Parenting Bill and in any event support free and fair debate on the topic of shared parenting because child custody evaluation is a central part of the existing family law system. Among other things, [Assembly Bill No.] 1307 [(2005-2006 Reg. Sess.)] seeks to impose new standards on child custody evaluators.” We reject Dunn’s contention for two reasons.
First, as explained above, Dunn’s articles did not advocate for the passage of the Shared Parenting Bill, mentioning the bill in two sentences in one article and not at all in the other two articles. Nor can it be said that the articles advocated for shared parenting in general. The concept of shared parenting is mentioned in the first article’s subtitle, where it states, “new book promotes shared parenting.” However, neither the words “shared parenting” nor any discussion of the concept appear anywhere else in the article. The second and third articles fare even worse, not even mentioning shared parenting one single time. Similarly, none of the articles specifically discuss reform of the family law child custody system. As stated in Weinberg, supra, 110 Cal.App.4th at pp. 1132-1133,“there should be some degree of closeness between the challenged statements and the asserted public interest [citation]; the assertion of a broad and amorphous public interest is not sufficient [citation].” Dunn’s conduct and the asserted public interest similarly lacked the required nexus. (See also Connick v. Myers (1983) 461 U.S. 138, 148-149 [discipline and morale in the workplace were issues of public interest, but the focus of the employee’s questionnaire was not to evaluate the performance of the office, as she claimed, but rather to gather ammunition for another round of controversy with her superiors].)
Moreover, even if the articles had been directly related to the issue of shared parenting, Dunn has not demonstrated that the issue is one of public interest. The record is devoid of any evidence showing that anyone other than Dunn himself, and perhaps Assemblyman Dymally who sponsored the Shared Parenting Bill, is even familiar with the concept of shared parenting. Dunn claims that his book Comeback Dads advocates for shared parenting, but there is no indication of any interest in his book, which he self-published, such as how many copies have been sold. Dunn’s claim that “ ‘shared parenting’ is a contentious and current debate” is nothing more than an unsubstantiated assertion.
Alternatively, Dunn contends that it is also of public interest “whether Mr. Moskowitz acted ethically in Mr. Dunn’s case, because as Mr. Dunn alleged, Mr. Moskowitz’s referral of cases to Dr. Singer without disclosing the referral relationship may have affected hundreds of divorce cases in Sonoma County alone.” Again, the record is devoid of any evidence concerning how many divorce cases in Sonoma county involve custody disputes in which Moskowitz and Singer are participants. (See Rivero, supra, 105 Cal.App.4th at p. 924 [public issue involves “conduct that could directly affect a large number of people beyond the direct participants”]; Weinberg, supra, 110 Cal.App.4th at pp. 1132-1133 [“a matter of public interest should be something of concern to a substantial number of people”].) In the absence of any indication that the articles “impact[ed] a broad segment of society” (Damon, supra, 85 Cal.App.4th at p. 479), it becomes evident that the articles merely reflect a private dispute between Dunn and Moskowitz stemming from Dunn’s displeasure with the custody outcome in his marital dissolution action. (See Rivero, supra, 105 Cal.App.4th at p. 924; Weinberg, supra, 110 Cal.App.4th at pp. 1134.)
The summary in the very recent decision in Kurwa v. Harrington, Fox, Dubrow & Canter LLP (2007) 146 Cal.App.4th 841, 848 is apt: “there was no ‘ongoing controversy, debate or discussion,’ participation in which the anti-SLAPP statute was meant to encourage. Rather this was a private matter. . . . ” Dunn’s conduct did not constitute protected activity within the meaning of section 425.16, subdivision (b)(1), and his motion to strike was properly denied.
4. Moskowitz Demonstrated A Likelihood Of Prevailing On The Merits By Obtaining The Restraining Order
Because Dunn has not demonstrated that he was engaged in protected activity within one of the four categories of conduct embraced by section 425.16, subdivision (e), we need not reach the second prong of the SLAPP analysis. However, assuming arguendo that Dunn had met his burden on the first prong, his motion to strike was still properly denied because Moskowitz demonstrated a likelihood of prevailing on the merits. In fact, he did better than that—he actually did prevail on the merits. (See Slauson Partnership v. Ochoa (2003) 112 Cal.App.4th 1005, 1022 [success on a preliminary injunction claim can be used to satisfy the second prong of a section 425.16 motion to strike]; Thomas, supra, 126 Cal.App.4th at p. 664 [same].)
Dunn disputes this conclusion because, according to him, Sylmar, supra, 122 Cal.App.4th 1049, means that the amended application could not be considered for purposes of ruling on the anti-SLAPP motion. We explained above the error in this argument and need not repeat it here. We reiterate, though, that because the allegations concerning the disputed conduct did not change, the amended application was properly before the court for purposes of ruling on the anti-SLAPP motion. And because Moskowitz prevailed on the amended application by obtaining the restraining order, he satisfied his burden of demonstrating a likelihood of prevailing on the merits.
5. Moskowitz Submitted Evidence In Opposition To Dunn’s Motion To Strike
On a procedural note, Dunn contends that Moskowitz “offered no admissible evidence in response to [his] anti-SLAPP motion” and “therefore did not make the evidentiary showing to [sic] needed to oppose [Dunn’s] motion.” In support, he cites Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 613-614 (Roberts), for the proposition that “[i]n opposing an anti-SLAPP motion, plaintiff must present admissible evidence and cannot rely on the allegations of the complaint.” Dunn submits that Moskowitz violated this rule by “merely attach[ing] the amended application for Civil Harassment Restraining Orders to the Declaration of one of [his] attorneys.” Dunn is wrong.
Roberts, supra, 105 Cal.App.4th at pp. 613-614, prohibits a plaintiff from relying on the allegations in the complaint. Certainly, this makes sense because allegations in a complaint are just that, mere allegations that do not constitute evidence. Here, however, Moskowitz did not file a complaint; he filed a petition for a restraining order, which petition was supported by his lengthy declaration and exhibits. He then also submitted this evidence in support of his opposition to the motion to strike, clearly a different scenario than that contemplated in Roberts.
6. Dunn’s Objections To Evidence
In addition to arguing that Moskowitz did not offer any admissible evidence in response to the motion to strike because he merely submitted the 527.6 petition and supporting declaration, Dunn also notes that he “filed multiple Separate Statements of Evidentiary Objections although the court never ruled on them on the record.” Again, this argument has no merit.
First, with respect to Dunn’s objections to Moskowitz’s declaration, the court did in fact rule on the objections, as evidenced by Judge Cox’s statement in the order on submitted matter that “[t]he court has considered those objections and ruled upon them.” Perhaps Dunn confuses the instant situation with a motion for summary judgment, where the court is directed to “consider all of the evidence set forth in the papers, except that to which objections have been made and sustained by the court . . . .” (§ 437c, subd. (c).) We are aware of no authority in the context of a special motion to strike imposing a requirement that the court rule on the individual objections, either on the record or in a written order. Rather, where there is competent evidence in the record supporting the orders, “it will be presumed on appeal that the trial judge considered and relied upon the competent evidence in making his findings and rendering the judgment.” (Bixby v. Bixby (1953) 120 Cal.App.2d 495, 499.)
In Thomas, supra, 126 Cal.App.4th 635, we ruled on the objections on appeal. However, that case came before us in a unique procedural posture such that the trial court did not have occasion to rule on the objections below. (Id. at p. 656.)
Despite not having an obligation to do so, we have reviewed Dunn’s objections to Moskowitz’s declaration and conclude that many of them are not well taken and, moreover, they have no bearing on the issues before us. To the extent Moskowitz’s declaration addresses the Dunn dissolution proceeding and custody dispute, these issues are irrelevant to the motion to strike and restraining order petition. To the extent it addresses Dunn’s articles and his conduct surrounding the articles, Dunn himself concedes that those facts are not in dispute.
Finally, we note that Dunn also filed objections to the declaration of Moskowitz’s counsel in support of the opposition to the motion to strike. The court ruled on these objections as well, denying them in their entirety as untimely since they were filed on the same day as the hearing.
C. The Trial Court Properly Denied Dunn’s Motion For Attorneys’ Fees
Section 425.16, subdivision (c) states in pertinent part that “a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” We have held above that the trial court properly denied Dunn’s motion to strike. Accordingly, since he did not prevail on his motion, he is not entitled to attorneys’ fees or costs.
Dunn argues that his motion for attorneys’ fees should in fact have been granted, claiming Moskowitz “conceded that [Dunn’s] motion was meritorious [when Moskowitz] voluntarily dismissed most of [his] claims for relief in response” to Dunn’s motion to strike. This argument is again based on Dunn’s mistaken focus on the relief requested in Moskowitz’s petition, rather than on Dunn’s conduct that formed the basis for the restraining order. Simply, Dunn’s claim that his motion was meritorious is contrary to our conclusion above.
Once again citing Sylmar, supra, 122 Cal.App.4th 1049, Dunn also notes the “general rule . . . that a Plaintiff cannot escape an award of attorney fees and costs under the Anti-SLAPP statute by amending his complaint, nor does resolution of the underlying action moot a request for fees and costs under the statute.” As explained above, Dunn’s reliance on Sylmar is misplaced.
Finally, Dunn posits that “attorney fees and costs should have been awarded either with or without granting of the Anti-SLAPP motion.” Section 425.16, subdivision (c) authorizes an award of attorneys’ fees and costs to “a prevailing defendant.” Dunn provides no authority for the proposition that he should be considered “a prevailing defendant” even though his motion was denied, which is perhaps not surprising, as such a position is contrary to the language of the statute.
III. Disposition
The orders denying Dunn’s special motion to strike and granting Moskowitz’s petition for a restraining order are affirmed.
We concur: Kline, P.J., Lambden, J.