Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CIV064116
Richman, J.
Appellant Bruce Seltzer appeals from the denial of his special motion to strike (Code Civ. Proc., § 425.16) a petition seeking an injunction prohibiting harassment pursuant to section 527.6 (Petition). The Petition was filed by Seltzer’s neighbors, Peter and Sophie Pappas (the Pappases), seeking to enjoin Seltzer from harassing them and their children based largely on allegations that Seltzer had deliberately driven his car in a menacing manner in the driveway shared by the Pappases and Seltzer. We conclude that the trial court properly denied the anti-SLAPP motion because Seltzer’s alleged harassment is not protected conduct under the anti-SLAPP statute. We thus affirm.
All further statutory references are to the Code of Civil Procedure unless otherwise noted. Section 425.16 is the anti-SLAPP statute. “SLAPP” is an acronym for “strategic lawsuit against public participation.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 85.)
The Pappases have filed a separate motion for sanctions on the ground that Seltzer’s appeal is frivolous. We agree, and grant the motion, awarding sanctions against Seltzer in the amount of $6,750.
BACKGROUND
The Pappases’ Petition was filed September 19, 2006, pursuant to section 527.6. It sought to enjoin Seltzer from coming within 50 yards of any member of the Pappas family, from making threats or engaging in intimidating or harassing conduct toward them, and from deliberately driving past Sophie Pappas or the Pappas children at excessive speeds, including on the shared driveway.
Section 527.6 “establishes a special procedure specifically designed to provide for expedited injunctive relief to persons who have suffered civil harassment. [Citation.] For purpose of the statutory remedy, ‘harassment’ is defined as ‘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.’ (§ 5276., subd. (b).) Moreover, the conduct must by its nature be such as to cause a reasonable person to suffer substantial emotional distress, and must actually cause substantial emotional distress to the plaintiff to be enjoined. (§ 527.6., subd. (b).)” (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 648 (Thomas).)
According to the declarations the Pappases filed in support of the Petition, Seltzer’s “menacing conduct” began in 2002, when he deliberately backed his car into a car belonging to a construction worker that was parked on the Pappases’ property. Since that time, the Pappases’ property was vandalized in various ways, such as when the window of their truck was slammed with a large rock. The declarations also accused Seltzer of five specific instances of harassment, that he: (1) called the sheriff’s department to complain “without any legitimate grounds for complaint,” such as when Seltzer complained that the Pappases were trespassing on his property, but they were not; (2) made menacing gestures such that Sophie Pappas became afraid to face him, afraid to go out of her house alone, and afraid to allow her children to go outside alone; (3) drove his car on the shared driveway at great speed past Sophie Pappas’s car, causing her to fear for her safety and her children’s safety, including an incident in May 2006 where he did so after Sophie Pappas’s car had stalled in the driveway; (4) trespassed on the Pappases’ property to collect tree trimmings to present at a September 12, 2006 Marin County Board of Supervisor’s meeting where he complained about the development of their property; and (5) approached the Pappases’ thirteen-year-old son to ask him, “using threatening hand and body gestures,” whether he had “moved into the house yet?” and whether he had “had any sleepovers up there yet?” Finally, the declarations stated that, after the sheriff warned Seltzer to stay away from the Pappases’ property because of this last incident and had walked away, Seltzer made “threatening gestures and pump[ed] his fist in the air, pointing towards [their] property.”
Neither of the Pappases’ declarations actually asserts that Seltzer was responsible for the four instances of vandalism they allege.
The trial court set a hearing on the Petition for October 11, 2006, and declined to issue a temporary restraining order in the interim. It is unclear from the record when Seltzer received notice of the Petition, but according to Seltzer at some point the October 11 hearing on the Petition was rescheduled for November 17, 2006 “[p]ursuant to a stipulated continuance.”
Two days before the November 17 hearing, Seltzer filed (1) an answer to the Petition, denying its allegations; (2) evidentiary objections to the Pappases’ declarations; and (3) an anti-SLAPP motion to strike the Petition, along with a voluminous declaration with exhibits.
In his answer to the Petition, Seltzer alleged that he had engaged in conduct protected under the anti-SLAPP statute by successfully appealing land use decisions relating to the Pappases’ property and by reporting unauthorized construction by them to the Marin County Board of Supervisors. According to Seltzer’s declaration, in 2000 the Pappases began construction of a 4,811 square foot residence on their property, and starting in 2005, Seltzer began complaining about their “runaway development” to various Marin County agencies. For example, Seltzer successfully appealed to the Marin County Planning Commission from a 2005 design review clearance determination which the Pappases had obtained. Peter Pappas then appealed that decision to the Marin Board of Supervisors, but lost. About five pages of Seltzer’s declaration and nearly 100 pages of attached exhibits describe his efforts to oppose development of the Pappases’ property.
Seltzer denied in his declaration engaging in the harassing conduct alleged in the Pappases’ declarations. He explained that he did not trespass on the Pappases’ property on September 12, 2006. Instead, he entered the property of another neighbor, Robin Robinson, with her permission. There, he gathered evidence which he contended showed that the Pappases had been destroying the roots and limbs of Robinson’s cedar trees by engaging in unauthorized grading. He later presented this evidence at a Marin County Board of Supervisors meeting. He admitted calling the sheriff to complain about parking by the Pappases’ construction workers. He slammed shut the door to Sophie Pappas’s car when it was “parked” in the middle of the driveway because he was frustrated about ongoing interference with access to the road caused by the Pappases’ construction. And he admitted asking the Pappases’ son whether he had moved into the house and whether anyone was sleeping there, but said he did so in a non-threatening manner.
On November 16, 2006, the Pappas filed their opposition to Seltzer’s anti-SLAPP motion. Seltzer did not file a reply.
The next day, November 17, the trial court held a hearing on both the anti-SLAPP motion and the Petition. At the outset, the court quickly denied the anti-SLAPP motion on the ground that the Petition was not based on protected conduct by Seltzer, but was instead based on “essentially vehicular conduct along with an address to one of the Pappas children.”
After the court had denied the anti-SLAPP motion, Seltzer’s counsel asked that the hearing be continued so that he could file a reply memorandum. The court denied his request, noting that the “timeliness or untimeliness of the [anti-SLAPP] motion has been waived by the Pappases. And so I don’t know that you’re in much of a position to complain that you didn’t get a chance to reply to the response given the fact that the motion itself was not timely filed. . . . [¶] . . . [¶] The interest of justice in this case, I think require that this matter be heard and decided.”
The court then proceeded to the merits of the Petition, hearing testimony principally by Sophie Pappas and Seltzer regarding Seltzer’s alleged harassment as well as his efforts to oppose development of the Pappases’ property. The court ultimately denied the Petition on the ground that the Pappases had failed to establish the requirements of section 527.6 by clear and convincing evidence. (Thomas v. Quintero, supra, 126 Cal.App.4th at p. 652, fn. 12 [“no injunction can be ordered unless the court finds harassment as defined by the statute . . . has occurred by ‘clear and convincing evidence’ ”].) However, the court noted that if the burden of proof had been preponderance of the evidence, it would have ruled in the Pappases’ favor. The court further observed that Seltzer “is perhaps a little obsessed with the Pappases. And I think the quality of his testimony reflected a strong antagonism for the Pappases.” The court also denied attorney fees to both parties, stating it believed the Petition was brought in good faith.
We could not find in the record below a request by the Pappas as for attorneys fees.
On November 30, 2006, the court entered an order which among other things denied the motion to strike. On January 12, 2007, Seltzer filed an appeal, which we treat as being from the order denying the motion to strike. The Pappases did not file an appeal from the order denying the Petition.
The notice of appeal actually checks a box indicating that it is from the November 30, 2006 “Judgment after court trial.”
DISCUSSION
I. The Anti-SLAPP Motion
A. The Anti-SLAPP Statute and the Standard of Review on Appeal
“A SLAPP suit has been described as ‘a meritless suit filed primarily to chill the defendant’s exercise of First Amendment rights.’ ” (Macias v. Hartwell (1997) 55 Cal.App.4th 669, 672) The anti-SLAPP statute was a response to the pervasive use of these suits “to discourage citizens from seeking governmental action.” (Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 14, fn. omitted.) The statute provides that 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).)
In order for a cause of action to be subject to a motion to strike under section 425.16, the defendant must make a threshold showing that the cause of action against the defendant is one “arising from any act of that [defendant] in furtherance of the [defendant’s] right of petition or free speech . . . .” (§ 425.16, subd. (b)(1), italics added.) If the cause of action does not meet this threshold criterion, it is not subject to a motion to strike and the court never reaches the issue of whether the plaintiff can show a probability of success on the merits. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 76, 80-81 (City of Cotati).)
Anti-SLAPP motions may challenge section 527.6 petitions because such petitions are “causes of action” under section 425.16. (Thomas v. Quintero, supra, 126 Cal.App.4th at p. 642.) It was Seltzer’s burden to show that the Petition arose from activity protected under that statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002)29 Cal.4th. 53, 67.) “ ‘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) . . . .’ ” (City of Cotati, supra, 29 Cal.4th at p. 78.) There are four categories of protected activities: “ ‘(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.’ ” (Thomas, supra, 126 Cal.App.4th at p. 644-645, quoting § 425.16, subds. (e)(1)-(4).)
We review de novo the order denying Seltzer’s special motion to strike. (Thomas, supra, 126 Cal.App.4th at p. 645.) We “apply our independent judgment to determine whether [the Petition] arose from acts by [Seltzer] in furtherance of [Seltzer’s] right of petition or free speech in connection with a public issue.” (Ibid.) In so doing, we consider the Petition, as well as the supporting and opposing declarations. “ ‘However, we neither ‘weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the [Pappases] [citation] and evaluate [Seltzer’s] evidence only to determine if it has defeated that submitted by the [Pappases] as a matter of law.’ ” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
Consistent with these authorities, and contrary to what Seltzer appears to assert in his reply brief, we need not consider as part of our review the live testimony in support of and opposition to the Petition, as it came after the trial court ruled on the anti-SLAPP motion.
B. The Appeal Is Not Moot
As a threshold issue, and as an alternative to affirming the order denying the anti-SLAPP motion, the Pappases argue that Seltzer’s “appeal be dismissed as moot, since the underlying request [for an injunction against Seltzer] is no longer pending,” and thus “there is no present controversy between the parties.” Such argument is not well taken, as our opinion in Thomas, supra, 126 Cal.App.4th 635 makes clear. There, we reviewed the appeal from a denial of an anti-SLAPP motion challenging a section 527.6 petition in the setting where the underlying petition was dismissed ten days after the anti-SLAPP motion was denied. (Id. at p. 643.) And we held that the appeal was not moot. (Id. at p. 642, fn. 2.) The facts here are nearly identical: the anti-SLAPP motion was denied just before the Petition itself was denied, albeit during the same hearing.
Moreover, the issue of Seltzer’s entitlement to attorney fees remains. “The award of attorney fees to the party bringing a successful special motion to strike under section 425.16 is ‘mandatory.’ ” (City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, 627.) “The dual purpose of this mandatory attorney fee award is to discourage meritless lawsuits and to provide financial relief to the victim of a SLAPP lawsuit ‘by imposing the litigation costs on the party seeking to “chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” ’ ” (Id. at p. 627, fn. 19.) Consequently, in City of Los Angeles v. Animal Defense League, the court concluded that although one of the section 527.6 petitions at issue had been dismissed pending the appeal, the defendant was still “entitled [under the anti-SLAPP statute] to recover its attorney fees and costs incurred in connection with that proceeding, as well as the subsequent appeal.” (Id. at p. 628, fn. 20.)
The Pappases admit as much in their respondents’ brief, when they explain that, “[e]essentially, it appears that SELTZER is seeking his attorney’s fees for filing the Special Motion to Strike . . . .”
Thus, we turn to the substance of Seltzer’s appeal, and conclude it has no merit—the petition does not arise from protected conduct.
C. The Petition Does Not Arise From Protected Conduct
Seltzer admits that the Pappases’ allegations that he used his “automobile as an instrument of assault” does not trigger application of the anti-SLAPP statute. However, he contends that some of the conduct referred to by the Pappases in their declarations—which he describes as calling the sheriff’s department, attending a board of supervisor’s meeting, making a statement in connection with an issue under consideration by a legislative body, and responding to a police investigation—is protected under the anti-SLAPP statute. We are not persuaded.
Seltzer is correct that, in general, such conduct can be privileged under section 425.16, depending upon the circumstances. (See Ludwig v. Superior Court, supra, 37 Cal.App.4th at p. 19 [“seeking administrative action” is privileged]; Wang v. Hurtunian (2003) 111 Cal.App.4th 744, 749 [a report to police is privileged]; § 425.16, subd. (e)(2) [a written or oral statement or writing made in connection with an issue under consideration or review by a governmental body is privileged].) However, as discussed in detail post, Seltzer mischaracterizes or overstates these references in the declarations—not to mention disregards several well-settled principles of anti-SLAPP law.
The most fundamental principle is that “it is the principal thrust or gravamen of the plaintiff’s cause of action that determines whether the anti-SLAPP law applies.” (Martinez v. Metabolife Internat. Inc. (2003) 113 Cal.App.4th 181, 188; City of Cotati, supra, 29 Cal.4th 69 at p. 79.) We confirmed this principle in Thomas, going on to note that, even if there are other allegations referring to arguably protected activity, they “ ‘should not subject the cause of action to the anti-SLAPP statute’ ” if they are only incidental to the cause of action alleged: these allegations are only “ ‘collateral allusions.’ ” (See Thomas, supra, 126 Cal.App.4th at pp. 653; see also ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1000-1001 [rejecting defendant’s argument “that, in deciding whether section 425.16 applies, all of the acts alleged in all of [plaintiff’s] causes of action must be considered together”].)
Applying these rules, numerous cases have recognized that the anti-SLAPP statute does not apply where the claimed protected activities are “merely incidental” or “collateral” to the unprotected conduct. (See, e.g., Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1245; Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 671; Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519-520; Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 103-105.)
All this law is acknowledged by Seltzer, who cites the above cases, and others, in an accurate statement of the governing principles, in a lengthy exposition of over five pages. But this law is then followed by Seltzer’s brief legal argument which, reading the Pappases’ petition and declarations in what can only be called myopic fashion, is as follows:
“D. Analysis of the Facts Upon Which The Pappases Relied Conclusively Establish[es] Appellant’s Entitlement to anti-SLAPP Relief
“In the case at bar, the Pappas specifically identified Seltzer to have engaged in six courses of activity upon all of which claimed facts they based their claim for injunctive relief from his “harassment.”
“1. The vandalization of their property. (AA 7:27-8:18; 11:27-12:7)
“2. Seltzer’s calls to the Sheriff’s Department on multiple occasions ‘without any legitimate grounds for complaint.’ (AA 8:8-10; 12:8-10)
“3. Seltzer’s ‘menacing’ use of his automobile to pass close by Sophie Pappas at ‘excessive speed’ (AA 8:14-17; 12:14-13:8) and to ram a worker’s car and then ‘smile’ about it. (AA7:23-26; 11:23-26)
“4. Seltzer’s participation at a December 12, 2006 Board of Supervisor’s Meeting where he complained about the ‘Pappas development.’ (AA 8:18-21; 13:9-12)
“5. Seltzer asking 13-year old Luke Pappas ‘Have you moved into the house yet?’ (AA 8:22-27; 13:13-18)
6. In the presence of police that the Pappas had called, Seltzer ‘making threatening gestures and pumping his fist in the air, pointing towards our property.’ (AA8:28-9:3)”
And from there, Seltzer proceeds to argue, however conclusorily, in less than two pages, why four of the “courses of activity” alleged in the petition are protected. Seltzer could not be more wrong.
Seltzer asserts that the first “course of activity,” the vandalism, was objected to by him and ultimately sustained.
First, Seltzer argues that calling the sheriff’s department, which the Pappases allege he did “without any legitimate grounds for complaint,” is protected under the anti-SLAPP statute. However, a reading of the Petition and the declarations makes clear that calling the sheriff’s department is not the principal thrust or gravamen of the Petition. Nowhere in the Petition itself is there any indication that the Pappases relied on this conduct in seeking the injunction. Nor is there any indication that the Pappases sought to enjoin Seltzer from contacting the sheriff’s department or other law enforcement authorities. The reference to Seltzer’s calls to the sheriff can only be a “collateral allusion.” (See Thomas, supra, 126 Cal.App.4th at p. 653.)
We note also that it is a misdemeanor to knowingly make a false crime report to the police. (Pen. Code, § 148.5, subd. (a).) Such illegal activity is not protected under the anti-SLAPP statute. (See Flatley v. Mauro (2006) 39 Cal.4th 299, 305, 320.)
Second, Seltzer argues that trespassing on the Pappases’ property to collect tree trimmings which he later presented at a December 12, 2006 board of supervisor’s meeting constituted “seeking administrative action.” However, a reading of the declarations reveals that the focus of this particular allegation is on Seltzer coming onto the Pappases’ property without permission—not on his participation at board of supervisor meetings. The Petition itself says nothing about attending board of supervisor meetings. And there is no indication that the Pappases sought to enjoin Seltzer from either of these activities. Additionally, trespassing, which is by definition illegal, is not a protected activity under the anti-SLAPP statute, even if done to collect evidence for a board of supervisor’s meeting. (Flatley v. Mauro, supra, 39 Cal.4th at pp. 305, 320 [action taken in furtherance of the defendant’s exercise of protected speech or petition rights which is “illegal as a matter of law” is not protected “by constitutional guarantees of free speech and petition” and cannot be relied upon “to strike the plaintiff’s action”].)
Contrary to what Seltzer’s counsel asserted at oral argument, the Petition did not seek to in effect enjoin Seltzer from attending board of supervisor meetings or from engaging in other protected conduct because it sought to enjoin Seltzer from coming with 50 yards of any member of the Pappas family. Indeed, section 527.6 specifies that an injunction prohibiting harassment may not enjoin “[c]onstituionally protected activity.” (§ 527.6, subds. (a), (b)(3).) Consequently, had the Petition been granted, by definition it could not have encompassed any such protected activity.
Third, Seltzer argues that asking 13-year-old Luke Pappas whether he had moved into the house yet constituted “a statement made in connection with an issue under consideration by a legislative body.” To begin with, Seltzer ignores the essence of the reference to his involvement with Luke, that he questioned him “using threatening hand and body gestures and with an unsettling smile.” Seltzer argues that he posed questions to Luke to find out “whether the family had moved into the residence, a move which without an occupancy permit would have been illegal.” Seltzer relies on testimony by Sophie Pappas during the hearing on the Petition regarding when the Pappases obtained an occupancy permit, as well as evidence of Seltzer’s general opposition to the development of the Pappases’ property, to establish the claimed context for his questions to Luke. In his declaration, Seltzer admitted asking Luke these questions, and only disputed that he did so in a threatening manner. But the evidence does not explain why Seltzer felt it necessary to ask a thirteen-year-old boy about this issue, instead of simply asking the Pappases themselves, and why he also needed to ask the boy about sleepovers. In sum, there is no evidence to show a connection between Seltzer’s questions to Luke about sleeping at his home and an issue under consideration by a legislative body.
As we discuss in footnote 6 ante, we need not consider as part of our review this live testimony on the merits of the Petition.
Finally, Seltzer argues that “making threatening gestures and pumping his fist in the air, pointing towards” the Pappases’ property after the sheriff spoke to him regarding confronting Luke Pappas constituted “conduct in response to a police investigation.” However it is characterized, this conduct was not protected under the anti-SLAPP statue. The conduct was directed at the Pappases, not at the sheriff or some governmental entity, and there is no evidence that it was in furtherance of any activity protected by the First Amendment. (See § 425.16, subd. (e)(4).)
In his reply brief, Seltzer appears to argue that the vandalism alleged in the Pappases’ declaration was also protected conduct. Seltzer contends, without citing any authority in support, that the fact that Sophie Pappas brought up this vandalism during a September 12, 2006 board of supervisor’s meeting “demonstrated a link between allegations in the [P]etition and [Seltzer’s] protected activity.” There is no evidence that these acts of vandalism—throwing away tools, applying spray paint, turning off a “back flow shut-off valve,” cutting dripping system wires, and damaging a truck—involved protected activity, and the fact that Sophie Pappas complained to the board of supervisors about them does not change their character.
As noted, the trial court at the November 17 hearing found that the focus of the Petition was “on essentially vehicular conduct along with an address to one of the Pappas children.” Seltzer argues that when the trial court made this observation regarding the essential nature of the Petition, it was improperly permitting a de facto amendment of the Petition, thereby pruning away the allegations of protected activity. Seltzer contends this de facto amendment had “adverse Due Process impact.” We disagree. There was no amendment to the Petition or to the supporting declarations. We interpret the trial court’s remarks during the hearing as simply “cut[ting] to the chase,” as the court put it. The court correctly identified the references in the Pappases’ declarations to privileged conduct as “peripherally relevant”—as indeed they were. They were “incidental” to the gravamen of the petition. They were “collateral allusions.” They did not subject the Petition to the anti-SLAPP statute. (See Thomas, supra, 126 Cal.App.4th at p. 653.)
But even assuming there was a de facto amendment, as part of our de novo review we have considered the entirety of the Petition and the supporting and opposing declarations. (See § 425.16, subd. (b)(2); Soukup v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 269, fn. 3.) And we conclude that all of the references to arguably protected conduct are “ ‘collateral allusions.’ ” (See Thomas, supra, 126 Cal.App.4th at p. 653.) Consequently, there cannot have been any due process impact to Seltzer from an amendment.
Seltzer also makes much of the fact that, after denying his anti-SLAPP motion, the trial court ruled on and granted many of his evidentiary objections as part of its consideration of the merits of the Petition. However, our conclusion would be the same even if we considered only the evidence remaining after the court ruled on Seltzer’s objections.
Seltzer also argues that by “denying [Seltzer’s] request for a continuance so as to be able to reply to the Pappas[es]’ opposition, . . . the trial court was able to proceed in derogation of [Seltzer’s] rights under the statute.” This refusal, according to Seltzer, denied him the opportunity to challenge the Pappases’ “de facto amendment.” First, Seltzer created the situation whereby he had no opportunity to file a reply. He stipulated to reschedule the hearing date from October 11 to November 17 and then proceeded to file his anti-SLAPP motion a mere two days before the hearing. (See § 1005, subd. (b) [moving and supporting papers must be served and filed at least 16 court days before the hearing].) Second, Seltzer has not shown he suffered any prejudice by not filing a reply memorandum. (See Cal. Const., art. VI, § 13 [error must result in miscarriage of justice for reversal].) In any event, and as discussed ante, there was no de facto amendment and consequently Seltzer was not deprived of the opportunity to challenge any such amendment.
Because we conclude that the trial court properly denied Seltzer’s anti-SLAPP motion, we also deny Seltzer’s request for attorney fees and costs.
II. The Motion for Sanctions
On November 14, 2007, the Pappases filed in this court a motion for sanctions accompanied by a lengthy supporting memorandum and a declaration of the Pappases’ counsel. The motion argued that the appeal was frivolous, citing Code of Civil Procedure, section 907 and California Rules of Court, rule 8.276. By order of November 16, 2007, we said that, “Respondents’ motion for sanctions will be taken under submission and decided with the appeal. Appellant may respond to respondents’ motion in his reply brief . . . .”
On December 21, 2007, Seltzer filed what he called “Appellant’s Reply Brief and Response to Motion for Sanctions.” The sum total of the brief addressing the motion for sanctions is in a five-line footnote: “After filing their brief, respondents filed a motion for sanctions. By its order filed November 16, 2009 [sic], the Court instructed appellant to respond to the motion in the context of his reply brief. Since the sanctions motion tracks the arguments respondents present in their Respondent’s Brief, appellant’s response thereto is implicit throughout the arguments set forth in this Reply Brief.” At oral argument we requested that Seltzer’s counsel address the motion for sanctions, which we now grant.
“When it appears to the reviewing court that the appeal was frivolous or taken solely for delay, it may add to the costs on appeal such damages as may be just.” (Code Civ. Proc., § 907.) California Rules of Court, rule 8.276, subdivision (a)(1) provides that a Court of Appeal may impose sanctions for “[t]aking a frivolous appeal or appealing solely to cause delay.” An appeal may be deemed frivolous because it was undertaken for an improper purpose or because any reasonable attorney would find it devoid of merit. (In re Marriage of Flaherty (1982) 31 Cal.3d 637, 649 (Flaherty).) “[A]n appeal taken despite the fact that no reasonable attorney could have thought it meritorious ties up judicial resources and diverts attention from the already burdensome volume of work at the appellate courts. Thus, an appeal should be held to be frivolous only when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit. [Citation.]” (Flaherty, supra, 31 Cal.3d at p. 650.)
Flaherty further cautions, however, that when evaluating whether an appeal is frivolous, we must be careful to “avoid a serious chilling effect on the assertion of litigant’s rights on appeal. Counsel and their clients have a right to present issues that are arguably correct, even if it is extremely unlikely that they will win on appeal. An appeal that is simply without merit is not by definition frivolous and should not incur sanctions. Counsel should not be deterred from filing such appeals out of fear of reprisals.” (Flaherty, supra, 31 Cal.3d at p. 650.) Indeed, because the borderline between a frivolous appeal and an appeal which simply has no merit is vague, this “punishment should be used most sparingly to deter only the most egregious conduct.” (Id. at p. 651.) Seltzer’s appeal here, we conclude, is such conduct.
The governing law of anti-SLAPP motions, and its proper application, is set forth above. Despite it, Seltzer takes a few isolated references out of a three-page declaration (references set forth, we hasten to add, to give context to certain of the complained-of conduct), and attempts to make them the focal point—the thrust or gravamen—of the Pappases’ petition. Seltzer’s approach would stand the anti-SLAPP law on its head. It cannot be condoned.
As quoted above, the trial court observed that the Pappases’ petition involved “essentially vehicular conduct.” We agree. But one other observation of the trial court is even more applicable: that Seltzer was “perhaps a little obsessed with the Pappases.” Whatever the proper psychological label, Seltzer went through an enormous effort to attempt to make the Pappases’ simple harassment petition a SLAPP suit, supporting his anti-SLAPP motion, as noted, with a 9-page declaration with over 100 pages of exhibits. And all the facts and exhibits deal with the anti-Pappas dealings with various Marin County agencies, which was apparently led by Seltzer and included participation by various other neighbors. What we perceive this to be, sad to say, is yet another example of a neighbor against neighbor dispute, disputes long recognized by California courts and others as being most extreme, most expensive, and most bitter. (See, e.g., Griffin v. Northridge (1944) 67 Cal.App.2d 69, 73, 76; Whitmer v. Munson (2002) 335 Ill.App.3d 501, 516 [781 N.E.2d 618, 631] [“[l]itigants may not deploy the use of legal process frivolously or falsely as a weapon in a feud between neighbors or otherwise”].) As the parties themselves recognized in the “Agreement Between Neighbors” at issue in Tusher v. Gabrielsen (1998) 68 Cal.App.4th 131, 148, “disputes between neighbors can be most harmful and bitter.”
We close with one last observation. Whether or not Seltzer was obsessed with the Pappases, he certainly had intense feelings about them. Perhaps the Pappases had strong feelings about Seltzer, their protagonist with the county agencies. Even so, the most that can be said about this even from Seltzer’s perspective is that the Pappases’ petition was filed after some events before the agencies. This, of course, is of no moment, as the law holds that the fact that the action was filed after defendant’s protected activity took place does not establish that it “arose from” a protected activity for purposes of the anti-SLAPP statute. (City of Cotati, supra, 29 Cal.4th at pp. 76-77.) As the Supreme Court there recognized in holding that the anti-SLAPP motion was wrongly granted, it is not enough to show that the action was “triggered by” or filed in response to or in retaliation for a party’s exercise of free speech rights. A cause of action may be “triggered by” protected activity without necessarily “arising from” such protected activity. (Id. at p. 78.)
The motion for sanctions is accompanied by a declaration from the Pappases’ counsel stating that he has spent over 22.5 hours in connection with preparation of the respondents’ brief, and that his hourly rate is $300. The motion thus seeks $6,750 as sanctions. Seltzer does not take issue with any of these representations, and the number of hours and hourly rate seem eminently reasonable to us. We therefore grant the Pappases’ motion for sanctions in the amount of $6,750, recoverable against Seltzer.
DISPOSITION
The November 30, 2006 order denying Seltzer’s anti-SLAAP motion is affirmed. The motion for sanctions is granted, awarding sanctions against Seltzer in the amount of $6,750 payable to Peter and Sophie Pappas.
We concur: Kline P.J., Lambden J.