Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Fresno County, No. 08CECG01249, Alvin M. Harrell III, Judge.
Laura Guzman Magill and Charles F. Magill for Defendant and Appellant.
Miller & Ayala and Nathan S. Miller for Plaintiff and Respondent.
OPINION
CORNELL, Acting P.J.
Appellant Dolores Marie Mullins and respondent Randy Williams have a history of civil litigation between them dating back to 2005 when Mullins obtained a restraining order against Williams. In 2008, Williams sought and obtained a temporary restraining order against Mullins. Mullins filed a special motion to strike the temporary restraining order as strategic litigation against public participation (SLAPP). The trial court denied the SLAPP motion. We affirm the order of denial.
FACTUAL AND PROCEDURAL SUMMARY
On December 1, 2005, in Fresno Superior Court case No. 05CECG03300, Mullins obtained a restraining order prohibiting Williams from harassing her or her family. Williams later was found to be in contempt of court for violating the restraining order and was sentenced to two days in jail and ordered to pay a $1,000 fine.
In February 2007, Sandra Williams, the wife of Williams, filed for restraining orders against Mullins and her boyfriend, Oney Durney. The trial court denied both restraining order requests.
In September 2007, Mullins obtained an order to show cause regarding contempt (OSC) against Williams in case No. 05CECG03300. Williams responded with a motion to dissolve the restraining order, which the trial court denied. Shortly thereafter, Mullins moved to dismiss the OSC, and the trial court dismissed it.
In October 2007, Williams filed a complaint against Mullins and Durney for defamation, filing false child abuse charges, invasion of privacy, and infliction of emotional distress. In January 2008, the trial court granted Mullins’s motion to strike the complaint pursuant to Code of Civil Procedure section 425.16. In April 2008, Mullins was awarded attorney fees for prevailing on the motion.
All further statutory references are to the Code of Civil Procedure unless otherwise specified.
On April 10, 2008, Williams obtained a temporary restraining order against Mullins in the current action, case No. 08CECG01249. Williams submitted a declaration in support of the petition to obtain the restraining order. Attached to Williams’s declaration were three police reports. Each police report contained allegations that Mullins photographed Williams, his wife, or his work equipment in the front yard or driveway of Williams’s home and that Mullins did so from the street or public areas in their neighborhood. No criminal charges resulted from any of the reports filed by Williams.
Williams’s declaration acknowledged that he and Mullins had been involved in several court proceedings against each other over the past few years. Williams alleged that ever since Mullins obtained the restraining order against him, Mullins had been following him and harassing him. Specifically, Williams alleged that Mullins frequently photographed him at home, followed him to work and photographed him, and pointed, laughed, and taunted him. In an effort to secure privacy for himself and his family, Williams erected extended fencing around his house. Williams also claimed Mullins had lied in her pleadings in order to obtain the restraining order against him.
Mullins responded with her own declaration, attaching documentation showing Williams had been cited three times for disturbing the peace. Mullins denied going onto Williams’s property, following him to work, laughing or taunting him, or photographing him in his backyard. Mullins stated she was scared of Williams, especially after witnessing his verbal assault on his own daughter, which prompted a response from the Clovis police. Mullins acknowledged that she carried a camera and occasionally took pictures of Williams to document his violations of the restraining order she had against him. Mullins also acknowledged that she had complained to the City of Clovis and code enforcement because Williams was operating a business out of his home without the proper licensing.
Mullins filed a special motion to strike the petition and temporary restraining order. The matter eventually was heard and argued on May 23, 2008. The trial court took the motion under submission and issued a written order denying the motion on June 3, 2008.
DISCUSSION
Mullins contends the trial court erred in denying her special motion to strike the petition and temporary restraining order.
General Principles Regarding Section 425.16
Enacted in 1992, section 425.16 sets out the procedure for filing a special motion to strike certain lawsuits that are “brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (Id., subd. (a), added by Stats. 1992, ch. 726, § 2, p. 3523.) Because section 425.16 allows for the early dismissal of SLAPP suits, it often is called the “anti-SLAPP” statute.
Section 425.16, subdivision (b)(1) provides: “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the 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.” Subdivision (e) of section 425.16 defines the phrase “‘act in furtherance of a person’s right of petition or free speech... in connection with a public issue’” to include: “(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.” (Ibid.)
The Legislature’s purpose in enacting the anti-SLAPP statute is set forth in its findings and declarations. “The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process.” (§ 425.16, subd. (a).) Furthermore, to accomplish this purpose, the Legislature has directed that the statute “‘be broadly construed.’” (Ibid.) To this end, when construing the anti-SLAPP statute, where possible, “we follow the Legislature’s intent, as exhibited by the plain meaning of the actual words of the law.” (California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 632.)
Section 425.16 allows a trial court to strike any cause of action that arises from the defendant’s exercise of his or her constitutionally protected rights of free speech or petition for redress of grievances. (Id., subd. (b)(1).) “‘Because these meritless lawsuits seek to deplete “the defendant’s energy” and drain “his or her resources” [citation], the Legislature sought “‘to prevent SLAPPs by ending them early and without great cost to the SLAPP target.’” [Citation.]’” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278.) “Section 425.16 therefore establishes a procedure where the trial court evaluates the merits of the lawsuit using a summary-judgment-like procedure at an early stage of the litigation. [Citation.]” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)
The California Supreme Court repeatedly has rejected attempts to read into section 425.16 requirements not explicitly contained in the plain language of the statute. (See, e.g., Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735 [no categorical exemption for malicious prosecution actions under § 425.16 where the Leg. has not created such an exemption]; City of Cotati v. Cashman (2002) 29 Cal.4th 69, 74-76 [declining to read into § 425.16 a requirement that a defendant demonstrate that the plaintiff’s action actually intended to chill the defendant’s exercise of his or her protected rights]; Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1113-1117 (Briggs) [§ 425.16, subd. (e)(1), (2) does not require that statements made before, or in connection with an issue pending before an official proceeding, also involve an issue of public significance absent statutory language to that effect].)
In short, anti-SLAPP jurisprudence has attempted to effectuate the central purpose of the statute by carefully examining the words of the statute and giving them their plain meaning. As noted, the purpose of section 425.16 is to prevent the chilling of “the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances” “through abuse of the judicial process.” (Id., subd. (a).)
As a necessary corollary to this statement, because not all speech or petition activity is constitutionally protected, not all speech or petition activity is protected by section 425.16. (See, e.g., Lam v. Ngo (2001) 91 Cal.App.4th 832, 851 [violence and other criminal acts are not protected by the First Amendment, even if committed out of political motives at a political demonstration, nor would Doe defendants who engage in such activity be protected by the anti-SLAPP statute].) “The scope of [section 425.16] is not without limits, as demonstrated in... cases finding lawsuits were not within its protection. [Citations.]” (Paul v. Friedman (2002) 95 Cal.App.4th 853, 864.)
Standard of Review
In ruling on a section 425.16 motion to strike, a court generally should engage in a two-step process: “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.… If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon Enterprises).)
Accordingly, in order to avoid dismissal of each claim under section 425.16, Mullins had the burden of establishing that she was engaging in protected activity. If established, Williams then bore the burden of demonstrating a probability that he would prevail on the particular claim. In Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811 (Wilson), the California Supreme Court explained what such a showing entails: “In order to establish a probability of prevailing on the claim [citation], a plaintiff responding to an anti-SLAPP motion must ‘“state[] and substantiate[] 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.’ [Citations.]” (Id. at p. 821.)
“In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim. [Citation.]” (Wilson, supra, 28 Cal.4th at p. 821; see also Equilon Enterprises, supra, 29 Cal.4th at p. 63 [§ 425.16 “subjects to potential dismissal … those causes of action as to which the plaintiff is unable to show a probability of prevailing on the merits [citation], a provision we have read as ‘requiring the court to determine only if the plaintiff has stated and substantiated a legally sufficient claim’”].)
This court reviews an order granting or denying a motion to strike under section 425.16 de novo. (Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1056.) We consider “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).) However, we neither “weigh credibility [nor] compare the weight of the evidence. Rather, … [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.’ [Citations.]” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212 (HMS Capital).)
Analysis
In its ruling denying the anti-SLAPP motion, the trial court here found that “[Mullins’s] alleged conduct was not in connection with any such public issue or public interest.” The trial court did not address the issue of whether Williams was likely to prevail on the merits. Having found that Mullins’s conduct did not “constitute an act in furtherance of the right of petition or free speech, ” the trial court denied the anti-SLAPP motion filed by Mullins.
Mullins maintains that the trial court improperly denied her motion because her conduct fell within the litigation privilege and therefore was protected activity under that privilege, as well as under the anti-SLAPP statute.
A. The litigation privilege and section 425.16
In support of his petition, Williams asserted that Mullins had filed and obtained a restraining order and sought OSC’s where, according to Williams, Mullins lied in her declarations. Williams also complained that Mullins took pictures of him, his employees, and his equipment in the front of his house.
Mullins contends that all her filings with the court, including any declarations, allegedly false, were protected activity covered by a litigation privilege. Mullins invokes the litigation privilege set forth in Civil Code section 47, subdivision (b). She argues that Civil Code section 47, subdivision (b) provides an absolute privilege for any publication made in a judicial proceeding or other official proceeding, as well as communications that have some relation to anticipated proceedings.
The principal purpose of Civil Code section 47, subdivision (b) is to afford litigants the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions. (Silberg v. Anderson (1990) 50 Cal.3d 205, 213 (Silberg).) Additionally, the privilege promotes effective judicial proceedings by encouraging “‘open channels of communication and the presentation of evidence’” without the “‘external threat of liability’” (ibid.) and “by encouraging attorneys to zealously protect their clients’ interests.” (Id. at p. 214.) “Finally, in immunizing participants from liability for torts arising from communications made during judicial proceedings, the law places upon litigants the burden of exposing during trial the bias of witnesses and the falsity of evidence, thereby enhancing the finality of judgments and avoiding an unending roundelay of litigation, an evil far worse than an occasional unfair result.” (Ibid.)
To accomplish these objectives, the privilege is “an ‘absolute’ privilege, and it bars all tort causes of action except a claim for malicious prosecution.” (Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 360 (Hagberg).) The litigation privilege has been applied in “numerous cases” involving “fraudulent communications or perjured testimony.” (Silberg, supra, 50 Cal.3d at p. 218; Doctors’ Co. Ins. Services v. Superior Court (1990) 225 Cal.App.3d 1284, 1300 [subornation of perjury]; see also Home Ins. Co. v. Zurich Ins. Co. (2002) 96 Cal.App.4th 17, 20, 22-26 [attorney’s misrepresentation of available insurance policy limits to induce the settlement of a lawsuit]; Carden v. Getzoff (1987) 190 Cal.App.3d 907, 915 [perjury]; Steiner v. Eikerling (1986) 181 Cal.App.3d 639, 642-643 [preparation of a forged will and presentation of it for probate]; O’Neil v. Cunningham (1981) 118 Cal.App.3d 466, 472-477 [attorney’s letter sent in the course of judicial proceedings allegedly defaming his client].) The litigation privilege also has been held to apply to “statements made prior to the filing of a lawsuit.” (Hagberg, at p. 361.)
There is, of course, a relationship between the litigation privilege and the anti-SLAPP statute. Prior judicial decisions have looked to the litigation privilege as an aid in construing the scope of subdivision (e)(1) and (2) of section 425.16 with respect to the first step of the two-step anti-SLAPP inquiry-that is, by examining the scope of the litigation privilege to determine whether a given communication falls within the ambit of subdivision (e)(1) and (2).
For example, in Briggs, supra, 19 Cal.4th 1106, the California Supreme Court declined to read into section 425.16, subdivision (e)(1) and (2), which protects statements made before or in connection with an issue pending before an official proceeding, a further requirement that the statements concern an issue of public significance. That court observed that imposing a “‘public issue’ requirement” as a condition to protecting litigation-related communications under the anti-SLAPP statute would produce an “anomalous result.” (Briggs, at p. 1121.) Litigation-related communications that do not involve a public issue would not be protected under the anti-SLAPP statute but nonetheless would be privileged under the litigation privilege and protected by state and federal constitutional guarantees of the right of petition. (Ibid.)
The litigation privilege also is relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense the plaintiff must overcome to demonstrate a probability of prevailing. (See, e.g., Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926-927 [where plaintiff’s defamation action was barred by Civ. Code, § 47, subd. (b), plaintiff could not demonstrate a probability of prevailing under the anti-SLAPP statute]; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 783-785 [defendant’s prelitigation communication was privileged and trial court therefore did not err in granting motion to strike under the anti-SLAPP statute].)
Notwithstanding this relationship between the litigation privilege and the anti-SLAPP statute, the two statutes do not serve the same purposes. The litigation privilege embodied in Civil Code section 47, subdivision (b) serves broad goals of guaranteeing access to the judicial process, promoting the zealous representation by counsel of their clients and reinforcing the traditional function of the trial as the engine for the determination of truth. (Silberg, supra, 50 Cal.3d at p. 214.) Section 425.16 is not concerned with securing for litigants freedom of access to the judicial process. The purpose of section 425.16 is to protect the valid exercise of constitutional rights of free speech and petition from the abuse of the judicial process (id., subd. (a)) by allowing a defendant to bring a motion to strike any action that arises from any activity by the defendant in furtherance of those rights (id., subd. (b)(1)).
By necessary implication, the anti-SLAPP statute does not protect activity that, because it is illegal, is not in furtherance of constitutionally protected speech or petition rights. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 819 [“If the defendant’s act is not constitutionally protected how can doing that act be ‘in furtherance’ of the defendant’s constitutional rights?”].) By its very terms, section 425.16 does not apply to activity that is not in furtherance of the constitutional rights of free speech or petition and this necessarily would include illegal activity that falls outside protected speech and petition rights. (See Wilcox, at p. 820 [the anti-SLAPP statute would not apply to a defendant’s act of burning down a developer’s office as a political protest].)
Therefore, we reject Mullins’s contention that any litigation-related activity in which she has engaged is necessarily protected under anti-SLAPP statute. Only that litigation or litigation-related activity that is in furtherance of the constitutional rights of free speech and/or petition and redress is necessarily protected under the anti-SLAPP statute.
B. Protected activity analysis
Mullins moved for an order dismissing the temporary restraining order and striking the petition for a civil harassment restraining order that was filed by Williams. Mullins based her motion on section 425.16. Section 425.16, subdivision (e) provides in part that an act in furtherance of a person’s right of petition or free speech includes any written or oral statement or writing made in any judicial proceeding or any other official proceeding, any written or oral statement or writing made in a place open to the public in connection with an issue of public interest, and any other conduct in furtherance of the exercise of the constitutional right to petition or the constitutional right of free speech in connection with a public issue.
The trial court found that Mullins’s conduct did not fall into any protected category. In reviewing the trial court’s ruling, we neither “weigh credibility [nor] compare the weight of the evidence. Rather, … [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.’ [Citations.]” (HMS Capital, supra, 118 Cal.App.4th at p. 212.)
We therefore review the evidence to determine if in fact Mullins made a threshold showing that her conduct was protected activity. “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.… If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Equilon Enterprises, supra, 29 Cal.4th at p. 67.)
In reviewing the evidence, we are mindful that the Legislature has decreed that courts broadly construe the anti-SLAPP statute to further the legislative intent of encouraging “continued participation in matters of public significance” by preventing the chilling of such participation “through abuse of the judicial process.” (§ 425.16, subd. (a).)
Williams alleged in his declaration that Mullins took pictures of him or his family “almost daily, ” following him to work to take pictures, standing on her roof to see into Williams’s backyard to take pictures, and laughing and making obscene gestures toward him. Attached to Williams’s declaration were police reports where officers had contacted Mullins in response to calls from Williams.
The official report for an incident on October 8, 2006, notes that Mullins was standing in front of the Williams home taking pictures. When spotted by Williams, Mullins laughed and stuck her tongue out at him. The officer watched the videotape of the security cameras on the Williams home to verify Mullins’s actions. Mullins admitted taking pictures of Williams and asserted it was to document that Williams was polluting the water and air and she, Mullins, was protecting the environment. The officer at one point noted that this was his third response in the past two months to calls regarding Mullins harassing the Williams family. The officer concluded that Mullins was “causing problems in the neighborhood by antagonizing, annoying, harassing, and instigating the problems.”
On May 20, 2007, a report was made that Williams was working in his garage, in violation of a municipal code. An officer responded and could not see any municipal code violations. Williams reported that Mullins had been driving past his house slowly, taking pictures.
A report dated May 30, 2007, noted that Williams had called and reported that Mullins was outside taking pictures of him and his work truck. The officer looked at the camera Mullins had used and viewed the pictures. There were several pictures of Williams’s work truck, but none included Williams or any of his employees. Mullins indicated she was taking the pictures because Williams was in violation of a municipal code by taking his work truck home. The officer reminded Mullins that she had a restraining order against Williams and she should not be in front of his house taking pictures.
On June 11, 2007, Williams again called the police to report Mullins standing outside his home taking pictures. Williams had taken a picture of Mullins taking pictures. The officer contacted Mullins and she acknowledged taking pictures of Williams, claiming he had photographed her first. The officer reminded Mullins of his request that she not take any more photographs of Williams and not antagonize him.
In Mullins’s declaration, she denied ever going onto Williams’s property, sticking her tongue out at him, or standing on her roof to photograph Williams in his backyard. Mullins admitted frequently photographing Williams in an attempt to document perceived violations of the restraining order or violations of the municipal code. Mullins maintained she had never followed Williams to work and that all complaints she had made against Williams were when she believed he was violating a law or the restraining order.
Williams did not seek to restrain Mullins’s actions in contacting police to report perceived illegal activity by Williams or violations of the restraining order, as Mullins alleges. Williams’s declaration addresses conduct other than reports to law enforcement.
C. No official proceedings or litigation privilege
Contrary to Williams’s assertion and the trial court’s finding, Mullins’s activity, if connected to an official proceeding, does not have to pertain to a public issue. (§ 425.16, subd. (e)(1), (2); Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 842-843.) Mullins’s conduct, however, was not in furtherance of litigation or in furtherance of an official proceeding. In order to invoke a litigation privilege, or to assert that conduct was in furtherance of an official proceeding, the proposed litigation must be under serious consideration or the official proceeding must be pending. (A.F. Brown Electrical Contractor, Inc. v. Rhino Electric Supply, Inc. (2006) 137 Cal.App.4th 1118, 1128-1129 (A.F. Brown).)
None of the activity Mullins acknowledged engaging in involved any violation of the restraining order Mullins had obtained against Williams. In each instance, Williams was on his own property. Mullins herself told responding officers that her conduct was an attempt to protect the environment and enforce unspecified municipal codes. If Mullins was attempting to document violations of the restraining order, she failed to express that intent to officers. Furthermore, according to the official reports, officers did not find any evidence of violation of any municipal codes. Mullins, despite frequent calls to police and frequently photographing Williams, utterly failed to obtain any proof of municipal code or restraining order violations.
There was no pending litigation or action for contempt; thus no pending proceeding. Mullins’s unexpressed intent to identify any violations of the restraining order was insufficient to establish that litigation was imminently contemplated. (A.F. Brown, supra, 137 Cal.App.4th at pp. 1128-1129.) The “anticipated allegations of violations” are too tenuous a connection. Thus, Mullins’s conduct was not protected by the litigation privilege or as conduct in furtherance of an official proceeding. (Id. at p. 1129.)
D. No public interest
The anti-SLAPP statute does protect the exercise of freedom of speech made in connection with a matter of public interest. (§ 425.16, subd. (e)(3), (4).) To rise to the level of a public interest, the matter should be of concern to a substantial number of people; the focus of the conduct should be a matter of public concern, not private controversy; and the assertion of a broad and amorphous public interest is insufficient. (Hailstone v. Martinez (2008) 169 Cal.App.4th 728, 736.)
We do not discern any public interest in Mullins’s activity. Despite her frequent photographs of Williams, she apparently was unable to catch him violating his restraining order, a municipal code, or any other provision of law, because there was no evidence that any of her activity or photographs resulted in any citation being issued to Williams. No officer who responded to calls issued any citation or order to Williams. One officer did advise Mullins not to take any more photographs of Williams, an instruction she ignored. Mullins essentially was photographing Williams and his family going about their daily business, which was not a matter of public interest.
While Mullins is correct in that photographing someone from a public street enjoys some First Amendment privilege, not every act that falls within the First Amendment is a defense under the statute. (Dible v. Haight Ashbury Free Clinics, Inc. (2009) 170 Cal.App.4th 843, 848-849 (Dible).) Mullins’s exercise of her First Amendment right must be in furtherance of some public issue to fall within the anti-SLAPP statute. (Ibid.;§ 425.16, subd. (b)(1).) We have determined that Mullins’s conduct was not in furtherance of any public issue.
Aside from the statutory requirement that the exercise of First Amendment rights be in furtherance of a public issue to fall within the statute, there are limits on the exercise of one’s First Amendment privilege, including the limit imposed by the common law tort of intrusion. (Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 169-170.) The First Amendment does not allow harassment of others in the exercise of those rights. (Ibid.)
At most, Mullins’s conduct appears to involve incidental arguably protected activity, with largely unprotected activity. Incidental protected activity, with largely unprotected activity, does not suffice to bring the conduct within section 425.16. (Dible, supra, 170 Cal.App.4th at p. 849.)
E. Conclusion
We conclude Mullins’s conduct did not fall within any of the protected categories under section 425.16, subdivision (e). Therefore, the trial court did not err in denying her anti-SLAPP motion. Having reached this conclusion, we need not address whether Williams ultimately was likely to prevail.
F. Attorney fees request
Although Williams has requested an award of attorney fees under section 425.16, subdivision (c), we decline the request. Section 425.16, subdivision (c)(1) permits an award of attorney fees to a prevailing party only when a special motion to strike has been found to be frivolous or intended solely for the purpose of causing delay. The trial court did not find Mullins’s motion to be frivolous or solely for delay. Williams did not file any cross-appeal challenging the denial of attorney fees.
DISPOSITION
The order is affirmed. Each party shall pay his or her own costs.
WE CONCUR: DAWSON, J., POOCHIGIAN, J.