Filed 5/11/15 McVeigh v. Trinity Christian Center of Santa Ana CA4/3




                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     FOURTH APPELLATE DISTRICT

                                                DIVISION THREE


JOSEPH MCVEIGH,

     Plaintiff,                                                        G049461

         v.                                                            (Super. Ct. No. 30-2012-00547030)

TRINITY CHRISTIAN CENTER OF                                            OPINION
SANTA ANA, INC., et al.,

     Defendants and Appellants,

TYMOTHY S. MACLEOD,

     Movant and Respondent.



                   Appeal from an order of the Superior Court of Orange County, Charles
Margines, Judge. Reversed and judgment vacated.
                   Mahaffey Law Group, Douglas L. Mahaffey and James F. Rumm for
Defendants and Appellants.
                   Parker Shumaker Mills, David B. Parker and Theodore W. Frank for
Movant and Respondent.
              This appeal challenges a trial court’s order correcting a prior judgment nunc
pro tunc. Trinity Christian Center of Santa Ana, Inc. (Trinity), International Christian
Broadcasting, Inc. (ICB), and Redemption Strategies, Inc. (Redemption) (collectively
referred to in the briefing as Trinity Broadcast Network and will be referred to as TBN in
this opinion unless the context requires otherwise), filed an appeal raising the following
arguments: (1) the trial court lacked authority to modify the prior judgment nunc pro
tunc; (2) there was no clerical error to correct; and (3) the modification materially
changed the rights of the parties. TBN also complains attorney Tymothy S. MacLeod
(MacLeod) lacked standing to request a clerical correction to the judgment and for this
additional reason the court’s order must be reversed.
              We invited the parties to submit supplemental briefing on several questions
relating to whether the prior judgment should be set aside as void, rather than being
corrected nunc pro tunc. TBN argued the judgment was not void, and alternatively, if the
court acted in excess of its jurisdiction, the judgment was merely voidable and not subject
to collateral attack. TBN also asserted this court lacks authority to set aside a void
judgment in the first instance, it would be unfair to treat MacLeod’s underlying motion as
a motion to vacate the judgment, and MacLeod lacked standing to bring a motion to
vacate the judgment. TBN is wrong. The prior judgment ruling on the merits of the case
was made in excess of the court’s fundamental jurisdiction and is void on its face. Code
of Civil Procedure section 425.16, subdivision (c)(1), expressly limited the trial court’s
jurisdiction after the case was voluntarily dismissed to the entry of an attorney fee award
because a special motion to strike was pending.1 Consequently, the trial court’s order
correcting a void judgment is also void and must be reversed.


1             All further statutory references are to the Code of Civil Procedure, unless
otherwise indicated. Section 425.16 is commonly referred to as the anti-SLAPP statute.
SLAPP is an acronym for “Strategic Lawsuits Against Public Participation.” (Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, fn. 1.)

                                              2
                                              I
              This appeal concerns but one of many lawsuits filed between the parties
following Trinity’s termination of Brittany Crouch Koper and her husband Michael
Koper from their employment and their removal from Trinity’s board.2 Brittany is the
granddaughter of TBN’s founders.
A. The Koper Action
              In September 2011 TBN filed a lawsuit seeking $1.3 million and alleging
money had been embezzled from the company by Brittany and Michael (hereafter the
Koper Action). In December, TBN added Michael’s uncle, Joseph McVeigh (McVeigh),
and Michael’s father, William Koper, as defendants.
              McVeigh hired MacLeod to represent him. MacLeod successfully removed
the lawsuit to the United States District Court for the Central District of California and
the suit was assigned to Judge David O. Carter. In early January 2012, TBN dismissed
the action.
              Relevant to this appeal, TBN had asserted two causes of action against
McVeigh for (1) conversion, and (2) breach of a promissory note. TBN alleged ICB
loaned McVeigh $65,000, and he executed a promissory note agreeing to repay the loan
with interest. In the Koper Action, TBN accused McVeigh of defaulting on his loan
payment obligations.
B. McVeigh’s Malicious Prosecution Action
              In February 2012, McVeigh, represented by MacLeod, filed a malicious
prosecution action (hereafter the McVeigh Action) against TBN and its two lawyers
Douglass S. Davert and David C. Loe, individually and as partners of Davert & Loe
(hereafter collective referred to in the singular as D&L). The complaint alleged that soon

2             As is often done in family law cases, we will refer to members of the Koper
family by their first names to avoid confusion.

                                              3
after Brittany was promoted to Chief Financial Officer at TBN she discovered TBN’s
officers and directors were engaged in illegal financial schemes. Brittany and her
husband refused to participate and reported TBN to the authorities. TBN fired them and
filed the Koper Action. McVeigh maintained the two causes action alleged against him
in the Koper Action were meritless and part of a “malicious retaliation campaign against
. . . Brittany[.]” McVeigh alleged he was named as a codefendant “to put wrongful
pressure” on Brittany. The complaint stated the Koper Action was dismissed after TBN
“admitted in writing that the contracts on which they were suing [McVeigh] simply did
not exist.”
              McVeigh also sought declaratory relief concerning the status of his
promissory note. He alleged ICB refused to acknowledge the note existed and it would
not acknowledge his payments. ICB had accused McVeigh of stealing money even
though he was current on his loan payments.
              In April 2012, TBN filed three anti-SLAPP motions (one by D&L, one by
ICB, and one by Trinity), arguing the McVeigh Action was not viable because the Koper
Action was voluntarily dismissed. The motions did not contain requests for attorney fees.
A few weeks later, McVeigh voluntarily dismissed the malicious prosecution action and
the court clerk took the motions off calendar. The clerk then returned the motions to the
calendar based on TBN’s request.
              McVeigh made an ex parte motion to have the motions taken off calendar.
At the May 11, 2012 hearing, the court refused to take the motions off calendar.
Approximately one month later, on June 12, 2012, the TBN entities filed three separate
motions for attorney fees. McVeigh hired a new attorney and MacLeod substituted out as
counsel.
              i. The Minute Order
              On July 25, 2012, Judge Francisco F. Firmat held a hearing. In its minute
order the court stated it had considered oral argument and “confirms the tentative ruling

                                            4
as follows: [¶] The [s]pecial [m]otions to [s]trike and the [j]oinder are moot since
[McVeigh] dismissed the [c]omplaint on May 7, 2012. The three motions for attorney
fees are granted. The court finds that [the TBN entities] are the prevailing parties and
entitled to reasonable attorney fees and costs per . . . section 425.16.”
              The court added, “This court disregards the bizarre argument that McVeigh
had no longer any standing to defend against these motions after dismissal of the case.
[McVeigh] is not a stranger to this action and [TBN is] seeking that this court grant
motions for attorney fees against [McVeigh]. [McVeigh] has an absolute due process
right to participate in these post-dismissal motions; [McVeigh’s] briefs connected to
these motions were relevant and were considered by this court. [¶] [TBN’s] evidentiary
objections are overruled.”
              Judge Firmat calculated attorney fees as follows: This court notes that
these are simple motions; the issue of prevailing party is a simple issue as a result of
[McVeigh’s] dismissals. [¶] This court awards to [D&L] 70 hours at $300 per hour as
reasonable attorney fees, for a total award of $21,000. [¶] This court finds that ICB,
Redemption and Trinity had joint issues and even some joint counsel. These two motions
could have been prepared without duplication. This court awards a reasonable and
necessary total of $21,000 to these moving parties, payable $10,500 to Trinity and
$10,500 to Redemption/ICB. [¶] Attorney fees are payable within 30 days. [¶] Counsel
for moving party to prepare the [o]rder and give notice of rulings.”
              ii. Judge Firmat’s Final Judgment
              TBN prepared a final judgment and served it on the parties. It did not serve
a copy of the judgment on former counsel MacLeod. The judgment stated, “The court
enters judgment in favor of . . . prevailing parties [D&L] and [TBN], on the one hand,
and against . . . [McVeigh] on the other hand . . . .” It elaborated as follows: “(1) The
[c]ourt enters judgment in favor of [D&L] and against [McVeigh] on his first cause of
action for malicious prosecution and further awards these defendants the sum of ”

                                              5
$21,000 against McVeigh “for their reasonable attorney[] fees[;] and “(2) The [c]ourt
enters judgment in favor of [TBN] and against [McVeigh] on his first cause of action for
malicious prosecution . . . [and] on his second cause of action to determine [if the]
promissory note [was] valid. The [c]ourt further awards [Trinity $10,500, Redemption
$5,250 and ICB $5,250] for their reasonable attorney[] fees . . . .”
              Judge Firmat signed the judgment on August 16, 2012. The parties did not
appeal this judgment and the attorney fees were paid.
C. The TBN’s New York and California Actions
              TBN filed a malicious prosecution action in New York against McVeigh
(Trinity Christian Center of Santa Ana Inc., et al., v. Joseph McVeigh (New York
Supreme Court Case for the County of Nassau, Case No. 13-002228). In August 2013,
TBN amended the complaint to add MacLeod as a defendant.
              D&L filed a separate lawsuit against McVeigh and MacLeod in New York.
(Davert & Loe, et al. v. Joseph McVeigh and Tymothy S. MacLeod (New York Supreme
Court Case for the County of Nassau, Case No. 13-010092). We will refer to these
lawsuits as the New York Actions.
              In August 2013, TBN filed a malicious prosecution action against McVeigh
and MacLeod in California, and MacLeod successfully removed it to federal court.
(Trinity Christian Center of Santa Ana Inc., et al., v. Joseph McVeigh et al. (United
States District Court Case No. SACV13-01334). We will refer to this lawsuit as the
California Action.
              The New York Actions and the California Action were all based on TBN’s
assertion Judge Firmat’s written judgment declared TBN the prevailing party on all
causes of action in the McVeigh Action. TBN maintained McVeigh did not appeal the
judgment and the time to appeal had expired. The trial courts in New York and
California eventually dismissed the actions, however TBN is currently appealing the
California Action’s dismissal.

                                              6
G. Section 473 Motion to Correct the Judgment
             On October 15, 2013, MacLeod filed a motion to correct the August 16,
2012, judgment pursuant to section 473, subdivision (d), and the court’s “inherent
power.” He argued TBN was using an errant judgment to wrongly pursue malicious
prosecution actions against him in California and New York. Because Judge Firmat had
retired, the case was reassigned to Judge Charles Margines.
             On November 21, 2013, Judge Margines held a hearing and considered oral
argument. He issued a seven-page minute order containing the following findings.
             First, Judge Margines recited the procedural history of this “internal family
and corporate dispute.” He noted TBN’s anti-SLAPP motions were set for hearing on
May 16, 2012, and McVeigh dismissed the entire action without prejudice on May 7,
2012. MacLeod substituted out as counsel, McVeigh was self-represented for a time, and
on July 5, 2012, Michael Koper substituted in as attorney.
             Judge Margines explained TBN filed separate motions for attorney fees on
June 18, 2012, and scheduled a hearing for the court to consider the anti-SLAPP motions
and the attorney fee motions. Judge Margines determined, “On [July 25, 2012, Judge
Firmat] heard oral argument and ruled on all the motions. [Judge Firmat] found that the
anti-SLAPP motions were moot due to McVeigh’s dismissal of his action. [Judge
Firmat] then found [TBN was] entitled to fees under the anti-SLAPP statute . . . and
awarded fees.”
             Judge Margines noted there was no evidence the proposed judgment was
served on MacLeod and there was no proof of service for notice of entry of this
judgment. He stated, “MacLeod states he was not served with the judgment. He first
became aware of it when he was sued by [TBN] for malicious prosecution in August
2013.” Judge Margines then recited the portion of the judgment stating judgment was
entered in favor of TBN on McVeigh’s two causes of action.



                                            7
              Based on the above facts, Judge Margines reached the following
conclusions: First, he cited section 473, subdivision (d), providing a court may correct
clerical mistakes in its judgment and may set aside any void judgment. Judge Margines
reasoned a trial court has the inherent power to correct a judgment when it is clearly
wrong and the error was a result of clerical, rather than judicial error. He elaborated the
judgment was not consistent with [Judge Firmat’s] minute order because the minute order
clearly stated there would be no ruling on the substantive anti-SLAPP motions.
              Judge Margines cited Law Offices of Andrew L. Ellis v. Yang (2009)
178 Cal.App.4th 869 (Yang) to support his conclusion Judge Firmat did not rule on the
merits of the anti-SLAPP motion. Judge Margines explained the Yang case held a trial
court lacked jurisdiction to consider an anti-SLAPP motion if the complaint has been
voluntarily dismissed. In these circumstances, a trial court is only permitted to decide if
attorney fees and costs should be awarded.
              Judge Margines concluded it could not be assumed Judge Firmat assessed
the merits of the anti-SLAPP in order to award fees. He noted there was conflicting case
authority regarding whether a trial court must adjudicate the merits of the motion to strike
when the complaint is dismissed before awarding attorney fees. (Cf. Lui v. Moore (1999)
69 Cal.App.4th 745, 752 [must adjudicate merits]; Coltrain v. Shewalter (1998)
66 Cal.App.4th 94, 107 (Coltrain) [need not adjudicate because defendant is presumed to
be the prevailing party].) Judge Margines concluded Judge Firmat must have applied the
Coltrain standard because, in his minute order, Judge Firmat noted the attorney fee
motions were “simple” due to the fact McVeigh voluntarily dismissed his lawsuit. Judge
Margines concluded, “This language strongly suggests that the court . . . did not analyze
the substantive merits of [TBN’s] separate anti-SLAPP motions.”
              Judge Margines rejected TBN’s argument the minute order was superseded
by the judgment. It explained the issue was not whether the minute order survives as the



                                             8
operative order, “the point is that the minute order, as a record of the court’s ruling that
day, expresses the court’s intent as to its ruling. [Citation.]”
              Judge Margines also rejected TBN’s argument that it mattered why
McVeigh dismissed his complaint or whether the court relied on section 1032 or section
1033.5 to define prevailing party. Judge Margines determined these issues were not
relevant because McVeigh did not seek to correct the finding TBN was the prevailing
party under section 425.16, subdivision (c).
              Next, Judge Margines considered whether the discrepancy between the
judgment and the court’s intended ruling was the result of clerical error. Citing relevant
legal authority, Judge Margines recognized the pending motion was being made to a
different judge from the one who issued the ruling. He wrote, “Here, the court is not
being asked to reconsider, and is not reconsidering, the advisability or correctness of a
prior order. It is reviewing the record to identify inconsistencies between the court’s
minute order and the [j]udgment drafted and presented by counsel.” He reasoned that
when there is clerical error, the correction can be made at any time. Judge Margines
ruled MacLeod’s motion was timely and must be granted.
              In the next paragraph of his minute order, Judge Margines stated the
judgment was also void and must be corrected for this additional reason. Citing section
473, Judge Margines stated “judgments void on the face of the record may be vacated at
any time . . . .” He explained a plaintiff has the absolute right to voluntarily dismiss an
action, and after exercising that right, the trial court “lacks jurisdiction to enter further
orders in the dismissed action.” (Citing § 581 & Lewis C. Nelson & Sons, Inc. v. Lynx
Iron Corp. (2009) 174 Cal.App.4th 67, 76 (Lewis).) Judge Margines recognized the trial
court has limited jurisdiction to award costs and attorney fees after the voluntary
dismissal, but other orders would be void. He concluded, “In short, once . . . McVeigh
filed his dismissal of his complaint, the court no longer had the jurisdiction to enter
judgment against him on that compliant. The [j]udgment, which purports to do just that,

                                               9
is therefore void to that extent. All the court had jurisdiction to do on [June 25, 2012,]
was to award [TBN attorney] fees and costs under the anti-SLAPP statute. Accordingly,
this is the only part of the [j]udgment that can stand. [¶] For this independent reason the
[j]udgment must be vacated as to the portions that refer to entering judgment, or finding,
for [TBN] and against . . . McVeigh on the complaint or any causes of action therein.
Accordingly, MacLeod’s motion can be granted on this alternative ground as well.”
              The trial judge concluded, “For all of the foregoing reasons, . . . MacLeod’s
motion for [an] order correcting the [August 16, 2012,] judgment entered in this action is
[granted]. The judgment will be corrected nunc pro tunc to reflect the court’s [July 25,
2012,] ruling.” Judge Margines directed MacLeod to prepare an amended judgment with
language the trial judge drafted regarding TBN’s attorney fee award.
                                             II
              TBN contends Judge Margines lacked authority to “act as an appellate
capacity and modify Judge Firmat’s August 16, 2012[,] judgment.” (Capitalization &
bold omitted.) It argues the judgment did not need to be corrected because it was
“completely consistent” with Judge Firmat’s minute order declaring TBN the prevailing
party. TBN acknowledges the minute order’s language indicating the anti-SLAPP
motions were moot “created potential ambiguity” as to whether Judge Firmat addressed
the merits of those motions. However, TBN maintains this ambiguity was resolved after
the court signed the judgment declaring TBN the prevailing party in the action and there
was no legal basis for a different trial judge to enter a correction nunc pro tunc. This
argument (and the rest of the arguments in the briefing) entirely misses the larger
problem we found in this case: It appears Judge Margines properly recognized Judge
Firmat’s judgment was void on its face, but he corrected the judgment rather than
vacating it. For this reason, we asked the parties to submit letter briefing on the
following relevant issues:



                                             10
“(1) On July 25, 2012, the trial court issued a minute order ruling on defendants’
anti-SLAPP motions. Because plaintiff had voluntarily dismissed the underlying
action after defendants filed their anti-SLAPP motions, did the trial court lose
jurisdiction to rule on the anti-SLAPP motions? (See Law Offices of Andrew L.
Ellis v. Yang (2009) 178 Cal.App.4th 869, 879 (Yang).)
“(2) On July 25, 2012, the trial court also issued a minute order ruling on
defendants’ motions for attorney fees and costs pursuant to . . . section 425.16.
Did the trial court continue to have jurisdiction, despite dismissal of the
underlying case, for the limited purpose of ruling on the motions for attorney fees
and costs? And if so, was the trial court required to determine who was the
prevailing party in the anti-SLAPP motion before awarding fees and costs?
(Compare Tourgeman v. Nelson & Kennard (2014) 222 Cal.App.4th 1447, 1456
and Coltrain v. Shewalter (1998) 66 Cal.App.4th 94, 107.)
“(3) On August 16, 2012, the trial court signed a judgment prepared by the
defendants relating to the motions heard at the July 25, 2012 hearing (i.e., the
anti-SLAPP and attorney fee motions). The judgment repeatedly states the trial
court enters ‘judgment’ in favor of defendants on the underlying causes of actions.
It contains an ‘award’ of attorney fees. There are no ‘orders’ granting or denying
the motions that were before it. Did the trial court have jurisdiction to enter a final
judgment on the merits of plaintiff’s first and second causes of action or was its
jurisdiction limited to entering an order relating to . . . section 425.16 attorney
fees?
“(4) If the trial court lacked jurisdiction to enter a final judgment on plaintiff’s
causes of action, does this error result in a voidable or void judgment subject to
collateral attack?
“(5) If we assume the August 16, 2012 judgment is void because it was made in
excess of the court’s jurisdiction, and it is subject to collateral attack, what is the

                                       11
       appropriate remedy in this appeal? Can this court treat the motion to correct the
       judgment as a motion for relief from a void judgment? (§ 473, subd. (d).)”
Both parties submitted supplemental letter briefs addressing these issues, which we
conclude are dispositive. We will address in turn each issue below.
A. The Trial Court’s Limited Jurisdiction Following a Voluntary Dismissal
              “Section 581 allows a plaintiff to voluntarily dismiss an action, with or
without prejudice, at any time before the ‘actual commencement of trial.’ (§ 581,
subds. (b)(1), (c).) As stated by the California Supreme Court: ‘Apart from certain . . .
statutory exceptions, a plaintiff’s right to a voluntary dismissal [before commencement of
trial pursuant to section 581] appears to be absolute. [Citation.] Upon the proper
exercise of that right, a trial court would thereafter lack jurisdiction to enter further orders
in the dismissed action.’ [Citation.] ‘Alternatively stated, voluntary dismissal of an
entire action deprives the court of both subject matter and personal jurisdiction in that
case, except for the limited purpose of awarding costs and . . . attorney fees. [Citations.]’
(Gogri v. Jack in the Box, Inc. (2008) 166 Cal.App.4th 255, 261.)” (Lewis, supra,
174 Cal.App.4th at pp. 75-76.) “‘[A]ll subsequent proceeding [are] void.’” [Citations.]”
(Yang, supra, 178 Cal.App.4th at p. 776.)
              “[T]he anti-SLAPP statute, . . . section 425.16, anticipates circumstances in
which parties dismiss their cases while motions to strike are pending. In such
circumstances, the trial court is given the limited jurisdiction to rule on the merits of the
motion in order to decide if it should award attorney fees and costs to the defendants.
[Citations.] Thus, here, when plaintiff dismissed its case at a time when defendants’ anti-
SLAPP motion was pending, the trial court continued to have jurisdiction over the case
only for the limited purpose of ruling on the defendants’ motion for attorney fees and
costs. [Citations.]” (Yang, supra, 178 Cal.App.4th at p. 879.)
              In this case, there is no dispute Judge Firmat exercised his jurisdiction and
awarded attorney fees and costs to TBN. The parties devote a great deal of their briefing

                                              12
to discussing the conflicting case authority about how exactly a trial court should
consider the “merits of the motion” to determine whether there is a prevailing party
entitled to post dismissal attorney fees. They debate whether Judge Firmat used the
wrong approach in awarding attorney fees. However, we conclude we need not address
this issue because the attorney fee portion of the judgment is not being challenged on
appeal. Indeed, MacLeod stated he paid those fees, and TBN is not concerned with the
fee award portion of the judgment.
              The obvious problem with Judge Firmat’s judgment is not his ruling on the
attorney fee motion, but that the judgment also contains rulings on the anti-SLAPP
motions and the merits of the underlying lawsuit. In other words, Judge Firmat’s written
judgment reflects the court exercised its jurisdiction far beyond the confines of an
attorney fee determination under section 525.16, subdivision (c)(1). Declaring TBN the
prevailing party on the anti-SLAPP motions and on the merits of the underlying causes of
action (the very same two causes of action McVeigh voluntarily dismissed), renders the
judgment void on its face.
B. The Judgment Entered was in Excess of the Trial Court’s Limited Jurisdiction
              As stated above, it is well settled that after an action is voluntarily
dismissed, the trial court generally lacks jurisdiction to enter any further orders in the
case. One exception to this rule is found in section 425.16, subdivision (c)(1), which
confers limited jurisdiction to decide the narrow issue of whether attorney fees should be
awarded to the moving party of an anti-SLAPP motion. (Wells v. Marina City
Properties, Inc. (1981) 29 Cal.3d 781, 784 [court’s lack jurisdiction following dismissal];
Yang, supra, 178 Cal.App.4th at p. 876; Lewis, supra, 174 Cal.App.4th at pp. 75-76;
Gogri v. Jack in the Box, Inc., supra, 166 Cal.App.4th at p. 261 (Gogri).)
              Any ruling beyond the narrow issue of attorney fees would be made in
excess of the court’s fundamental jurisdiction. (Lewis, supra, 174 Cal.App.4th at



                                              13
pp. 75-76 [after voluntary dismissal court lacks jurisdiction to grant motion to vacate the
dismissal]; Gogri, supra, 166 Cal.App.4th at p. 262 [after voluntary dismissal court did
not have jurisdiction to grant motion for summary judgment]; Kyle v. Carmon (1999)
71 Cal.App.4th 901, 909-910 [right to voluntary dismissal absolute and court lacks
jurisdiction to enter further orders on pending demurrer or dispositive pretrial motion].)
Where a plaintiff has filed a voluntary dismissal of an action, the court is without
fundamental jurisdiction to act further, and its subsequent orders are void. (Paniagua v.
Orange County Fire Authority (2007) 149 Cal.App.4th 83, 89.)
              In its letter brief, TBN appears to disagree with this well-established body
of case authority because it asserts the trial court had a duty to rule on the anti-SLAPP
motion and its failure to do so would have been grounds for reversal. Without discussing
or attempting to distinguish the relevant case authority, TBN boldly asserts in its letter
brief that a trial court absolutely retains jurisdiction to rule on anti-SLAPP motions after a
case has been voluntarily dismissed because malicious prosecution cases are different
from other types of cases. TBN points out the element of malice in malicious prosecution
actions is the same required finding for a successful anti-SLAPP motion. It maintains,
“Reaching the specific elements of the underlying cases may not always be required to
decide if the moving party prevails, but when an anti-SLAPP motion attacks a malicious
prosecution action, the trial court must decide the motion on its merits, which means the
underlying merits of the alleged malicious case must be evaluated.” (Italics added.)
              Very telling is that TBN provides no legal authority to support this unique
theory, nor does it explain why the large body of case law clearly reaching an opposite
conclusion is inapt or wrongly decided. Moreover, TBN does not offer any examples of
the types of cases it suggests would not require an examination of the specific underlying
elements before deciding if the moving party would have prevailed on its anti-SLAPP
motion. Such a holding would conflict with the well-established rule that all anti-SLAPP
motions require the trial court to engage in a two-step process. (§ 425.16, subd. (b)(1).)

                                             14
First, the court must determine if the moving party has shown the action arises from
protected activity, and second, it must decide if the moving party has demonstrated a
probably of prevailing on the underlying claim. (Equilon Enterprises v. Consumer
Cause, Inc. (2002) 29 Cal.4th 53, 67.) Accordingly, all types of cases require the trial
court to examine the underlying elements of the alleged causes of action when
considering who would have been the prevailing party on the now moot anti-SLAPP
motion. TBN cites to no cases, and we found none, holding there are special or different
rules when the case challenged is not alleging malicious prosecution.
              As aptly stated by MacLeod, the statutory scheme confers limited
jurisdiction to honor both a plaintiff’s right to voluntary dismiss an action and the
Legislature’s desire to provide recompense for the defendant’s efforts in filing the
anti-SLAPP motion before its dismissal. TBN offers no sound policy reason to disturb
the balancing of these two important interests simply because the underlying claim is for
malicious prosecution.
              TBN suggests the court could not have decided the attorney fee motion
without also ruling on the anti-SLAPP motion. This is simply untrue. The motions are
not dependent on each other. To the contrary, there is a large body of persuasive case
authority holding the trial court lacks jurisdiction to rule on the anti-SLAPP motion after
the case has been voluntarily dismissed but may separately decide an attorney fee request.
A trial court considers the merits of the anti-SLAPP motion only in the context of
deciding whether attorney fees should be awarded. We found nothing to support TBN’s
suggestion the court is unable to rule on the attorney fee motion without also entering a
ruling on the anti-SLAPP motion.
              In addition, TBN maintains Judge Firmat had the authority to enter a
judgment on the underlying causes of action because he had to consider the merits in
deciding the anti-SLAPP motion. This argument fails for the same reason as TBN’s
other arguments. Judge Firmat only had authority to consider the underlying merits of

                                             15
the action in the context of an attorney fee award. The trial judge lacked jurisdiction after
the case was voluntarily dismissed to enter a judgment in the action or to rule on the
anti-SLAPP motion.
              Finally, we are unpersuaded by TBN’s contention Judge Firmat “had a duty
to enter a final [j]udgment” because TBN was entitled to file a SLAPPback action.
(§ 425.18.) Not so. A SLAPPback action is an additional remedy available only to
defendants who prevail on their anti-SLAPP motions and after the court has entered a
judgment of dismissal. (§ 425.18 [prior action dismissed pursuant to special motion to
strike].) TBN cites to no cases, and we found none, holding a SLAPPback action is
available in situations where the plaintiff has voluntarily dismissed the action.
              TBN asserts the above rule creates an unequitable “safe haven” for
malicious litigants. TBN argues that without the opportunity to recover on a SLAPPback
action, malicious litigants will be permitted to “wound[] [their] target, dismiss [the
complaint] and walk away without further consequences.” TBN’s objections to the
statutory language should be directed at the Legislature which clearly and plainly limited
the remedies available to defendants following a plaintiff’s voluntary dismissal of the
complaint.
C. The Judgment is Void not Voidable
              As explained by our Supreme Court, “Essentially, jurisdictional errors are
of two types. ‘Lack of jurisdiction in its most fundamental or strict sense means an entire
absence of power to hear or determine the case, an absence of authority over the subject
matter or the parties.’ [Citation.] When a court lacks jurisdiction in a fundamental sense,
an ensuing judgment is void, and ‘thus vulnerable to direct or collateral attack at any
time.’ [Citation.] [¶] However, ‘in its ordinary usage the phrase “lack of jurisdiction” is
not limited to these fundamental situations.’ [Citation.] It may also ‘be applied to a case
where, though the court has jurisdiction over the subject matter and the parties in the
fundamental sense, it has no “jurisdiction” (or power) to act except in a particular

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manner, or to give certain kinds of relief, or to act without the occurrence of certain
procedural prerequisites.’ [Citation.] ‘“[W]hen a statute authorizes [a] prescribed
procedure, and the court acts contrary to the authority thus conferred, it has exceeded its
jurisdiction.”’ [Citation.] When a court has fundamental jurisdiction, but acts in excess
of its jurisdiction, its act or judgment is merely voidable. [Citations.] That is, its act or
judgment is valid until it is set aside, and a party may be precluded from setting it aside
by ‘principles of estoppel, disfavor of collateral attack or res judicata.’ [Citation.] Errors
which are merely in excess of jurisdiction should be challenged directly, for example by
motion to vacate the judgment, or on appeal, and are generally not subject to collateral
attack once the judgment is final unless ‘unusual circumstances were present which
prevented an earlier and more appropriate attack.’ [Citations.]” (People v. American
Contractors Indemnity Co. (2004) 33 Cal.4th 653, 660-661 (American Contractors).)
              As stated above, a voluntary dismissal terminates the trial court’s personal
and subject matter jurisdiction. (Lewis, supra, 174 Cal.App.4th at pp. 75-76.) Judge
Firmat lacked jurisdiction in the fundamental sense to enter a judgment in favor of TBN
on the merits or on the anti-SLAPP motion. These rulings are void and subject to
collateral attack at any time.
              TBN cites the same Supreme Court case authority (American Contractors,
supra, 33 Cal.4th 653) to support its argument the judgment was voidable, not void. It
contends, “There is no coherent argument wherein it can be said that Judge Firmat lacked
an ‘entire absence of power to hear or determine the case’ or ‘an absence of authority
over the subject matter of the parties’ as required for a judgment to be deemed void.
Plainly he had general subject matter jurisdiction over the anti-SLAPP motion and claim
for attorney fees and had a duty to resolve these motions for or against the moving party.
[¶] Additionally, . . . McVeigh continued to submit filings (including the declaration
challenging the anti-SLAPP and attorney’s fees previously referenced) with the full
intention of having Judge Firmat rule on the issues presented. Jurisdiction existed to rule

                                              17
on these post dismissal motions.” TBN then concludes “if” the court exceeded its
jurisdiction the judgment would be voidable not void.
              Making the argument the court retained jurisdiction to rule on the
anti-SLAPP motion and underlying claims does not support the legal conclusion the
judgment was voidable not void. Stated another way, TBN’s refusal to present an
alternative argument acknowledging the judgment may have exceeded the court’s
jurisdiction precludes any meaningful discussion about whether the jurisdictional nature
of the error was fundamental (resulting in a void judgment) or non-fundamental (resulting
in a voidable judgment). TBN’s suggestion McVeigh conferred jurisdiction by
submitting arguments on the merits is meritless. “Subject matter jurisdiction is a
fundamental requirement for judicial consideration of claims[,]” and cannot be
“‘“‘conferred by consent, waiver, agreement, acquiescence, or estoppel.’” [Citation.]’”
(Saffer v. JP Morgan Chase Bank, N.A. (2014) 225 Cal.App.4th 1239, 1248 (Saffer).)
“‘The principle of “subject matter jurisdiction” relates to the inherent authority of the
court involved to deal with the case or matter before it.’ [Citation.] Thus, in the absence
of subject matter jurisdiction, a trial court has no power ‘to hear or determine [the] case.’
[Citation.] And any judgment or order rendered by a court lacking subject matter
jurisdiction is ‘void on its face . . . .’ [Citation.]” (Varian Medical Systems, Inc. v.
Delfino (2005) 35 Cal.4th 180, 196 (Varian); see also American Contractors, supra,
33 Cal.4th at p. 660 [“[w]hen a court lacks jurisdiction in a fundamental sense, an
ensuing judgment is void”].) Such is the case here.
D. Judge Margines Recognized the Judgment was Void
              Judge Margines recognized the judgment was invalid on its face. One need
only look at the judgment roll to see the case was voluntarily dismissed long before the
court entered a final judgment purportedly deciding the merits of the dismissed case.
Judge Margines correctly determined a post dismissal order could only contain a ruling
on the attorney fee motions. In his minute order, Judge Margines determined the

                                              18
judgment could be corrected to reflect this, or alternatively, portions of the judgment
could be vacated to leave only the ruling on the attorney fee motions. He drafted and
executed an order correctly containing only post dismissal rulings on the attorney fee
motions.
              However, Judge Margines erroneously decided to correct the void judgment
rather than vacating it. “‘“A void judgment [or order] is, in legal effect, no judgment. By
it no rights are divested. From it no rights can be obtained. Being worthless in itself, all
proceedings founded upon it are equally worthless. It neither binds nor bars any one.”
[Citation.]’ (Bennett v. Wilson (1898) 122 Cal. 509, 513-514.)” (Rochin v. Pat Johnson
Manufacturing Co. (1998) 67 Cal.App.4th 1228, 1240.) Thus, an order to correct a void
judgment is itself void.
              The appropriate remedy was to vacate the judgment as void on its face. In
his letter brief, MacLeod contends that treating his motion to correct the judgment as a
motion for relief from a void judgment would be equitable because his motion was
brought under section 473, subdivision (d). That section provides, “The court may, upon
motion of the injured party, or its own motion, correct clerical mistakes in its judgment or
orders as entered, so as to conform to the judgment or order directed, and may, on motion
of either party after notice to the other party, set aside any void judgment or order.”
(§ 473, subd. (d), italics added.) Section 473, subdivision (d), authorizes the trial court to
correct its own judgment or set aside a void judgment.
              TBN argues it would be improper to convert a defective motion to correct
the judgment into the proper procedural device (a motion to vacate) for the following
reasons: (1) courts have inherent powers to correct judgments but not vacate them; (2) a
motion for relief from a void judgment is different from a motion to correct the judgment
although both are authorized by section 473, subdivision (d); (3) TBN would have
submitted a different response to address a motion to vacate and offered a significantly

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larger discussion on the issue of MacLeod’s standing to bring the motion; (4) “converting
the defective motion to a procedurally correct motion and allowing only a letter brief to
address the differences deprives [TBN] of due process. No precedent has been found that
allows this[;]” (5) many different arguments would have been presented below and this
court would abuse its discretion to substitute a different procedure on appeal.
              We conclude the issue may be considered for the first time on appeal.
“‘“[T]he adequacy of the court’s subject matter jurisdiction must be addressed whenever
that issue comes to the court’s attention”’” and “may be considered for the first time on
appeal [citation], and requires no particular procedural vehicle. [Citations.]” (Saffer,
supra, 225 Cal.App.4th at p. 1248.) “[A]s the question of jurisdiction is always
fundamental [citation], ‘a court has inherent power to inquire into jurisdiction of its own
motion, regardless of whether the question is raised by the litigants. [Citations.]’
[Citation.]” (In re Estevez (2008) 165 Cal.App.4th 1445, 1457-1458.)3
              “‘When, as here, there is an appeal from a void judgment, the reviewing
court’s jurisdiction is limited to reversing the trial court’s void acts.’ [Citation.]”
(Varian, supra, 35 Cal.4th at p. 200; Griset v. Fair Political Practices Com. (2001)
25 Cal.4th 688, 701.) We therefore reverse Judge Firmat’s August 16, 2012, judgment as
void and reverse Judge Margines’s minute order correcting the void judgment nunc pro
tunc.




3             This answers TBN’s meritless arguments about lack of standing. TBN does
not explain how a judgment void on its face due to lack of subject matter jurisdiction can
be saved for this reason.

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                                          III
             The trial court’s November 21, 2013, minute order correcting the August
16, 2012, judgment nunc pro tunc is reversed. The August 16, 2012, judgment is vacated
as void on its face. Movant and Respondent (MacLeod) shall recover his costs on appeal.



                                                O’LEARY, P. J.

WE CONCUR:



BEDSWORTH, J.



THOMPSON, J.




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