Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County Ct. No. BC356548, Michael L. Stern, Judge. Affirmed.
Tom Topping, in pro. per., for Defendant and Appellant.
Dongell Lawrence Finney and Joshua N. Levine for Plaintiff and Respondent.
VOGEL, Acting P.J.
This is a pro se appeal from an order denying a defendant’s special motion to strike (and separate motion for attorney’s fees) under the anti-SLAPP statute, Code of Civil Procedure section 425.16. We affirm.
All section references are to the Code of Civil Procedure.
FACTS
Tom Topping publishes a newsletter (the Boulevard Sentinel) both in print in Eagle Rock and on the internet at Boulevardsentinel.com. During June and July 2006, Topping published stories in his newsletter (both versions) about James Perry (an unpaid member of the Eagle Rock Neighborhood Council), stating that the Los Angeles City Attorney had determined that Perry had violated various conflict of interest laws.
In August, Perry (in propria persona) filed a verified complaint against Topping for libel per se and invasion of privacy. In August, Topping (represented by counsel) filed an unverified answer. In September, Perry demurred to Topping’s answer on the ground that it was not verified. Three days later, Topping filed a verification.
On October 2, Perry filed a noticed motion to dismiss his own complaint without prejudice on the ground that he was too sick to litigate his claims at that time. Hearing was set for November 7.
On October 5, Topping filed a special motion to strike Perry’s complaint under the anti-SLAPP statute (§ 425.16), with the hearing set for November 1.
Perry obtained counsel and a substitution of attorney form was filed on October 17. The same day, Perry’s new lawyer filed an ex parte application to continue the hearing on Topping’s special motion to strike, explaining that it was moot in light of Perry’s pending motion to dismiss his own action. The trial court continued the hearing on Topping’s special motion to strike to November 7, the same day as the scheduled hearing on Perry’s motion to dismiss.
On October 23, Perry’s lawyer filed a request for the dismissal of Perry’s action (on the appropriate Judicial Council form), and his complaint was dismissed without prejudice the same day. On November 1, Perry and Topping (through their lawyers) stipulated to a continuance of the November 7 hearing, and the court continued the hearing to December 7.
On November 13, Topping filed a motion to recover his attorneys’ fees (§ 425.16, subd. (c)).
On December 7, the trial court denied Topping’s special motion to strike and denied his motion for attorney’s fees, explaining that the case was effectively dismissed before the anti-SLAPP motion was filed (construing Topping’s pro se motion to dismiss as the substantive equivalent of the subsequently filed request for dismissal).
Topping, representing himself, appeals from the order denying his motion to strike and his motion for attorney’s fees.
We summarily reject Perry’s contention that we should dismiss Topping’s appeal because Topping’s notice of appeal (a Judicial Council form) is insufficient (he failed to fill in most of the blanks). Liberally construed as required by rule 8.100(a)(2) of the California Rules of Court, and bearing in mind that there is only one order in this entire case, the notice is sufficient. (Luz v. Lopes (1960) 55 Cal.2d 54, 59; compare DeZerega v. Meggs (2000) 83 Cal.App.4th 28, 43.) There is no possibility that Perry was misled by the technically insufficient notice.
Topping contends the trial court should not have construed Perry’s pro se motion to dismiss his own action as tantamount to an actual voluntary dismissal. We disagree and thus need not reach the other issues raised in his brief.
When a case is voluntarily dismissed before a special motion to strike is filed, the motion to strike is moot and the court has no jurisdiction to award attorney’s fees under the anti-SLAPP statute. (S.B. Beach Properties v. Berti (2006) 39 Cal.4th 374, 380-383.) For purposes of this rule, Perry’s motion to dismiss his own complaint on the ground that he was too ill to proceed was substantively indistinguishable from the usual voluntary dismissal form, and there is no possibility that it would have been denied. Topping’s assertion that the motion could not be effective until actually granted because Perry could have withdrawn it at any time is moot in light of the fact that he didn’t withdraw it but, quite to the contrary, filed the proper form and voluntarily dismissed his action. Had Perry not retained counsel and filed the form, his motion to dismiss would have been granted as surely as night follows day.
In any event, Topping’s assumption -- that Perry’s dismissal necessarily makes Topping the prevailing party under the anti-SLAPP statute -- is simply wrong. A voluntary dismissal neither automatically precludes nor automatically requires a fee award -- because there may be good faith reasons (such as the illness established by Perry’s declaration filed in support of his pro se motion to dismiss) for the dismissal of the complaint having nothing to do with the merits of the action. (Liu v. Moore (1999) 69 Cal.App.4th 745, 752-753.)
DISPOSITION
The order is affirmed. Perry is entitled to his costs of appeal.
We concur: ROTHSCHILD, J., JACKSON, J.
Judge of the Los Angeles Superior Court, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.