Judge: Armen Tamzarian, Case: 23STLC01829, Date: 2023-11-01 Tentative Ruling

Case Number: 23STLC01829    Hearing Date: February 1, 2024    Dept: 52

Defendant City of Hawthorne’s Special Motion to Strike

Defendant City of Hawthorne moves to strike plaintiff Barry Rosen’s complaint under Code of Civil Procedure section 425.16.

Evidentiary Objections

            Defendant makes 22 pages of unnumbered objections to plaintiff’s evidence.  Regarding motions for summary judgment, California Rules of Court, rule 3.1354(b) requires that “[e]ach written objection must be numbered consecutively.”  Though this rule does not apply to anti-SLAPP motions, consecutively numbering objections—especially voluminous objections—is necessary for the court to make clear rulings on them.  All of defendant’s objections are overruled.

Public Interest Exemption

Plaintiff relies on the public interest exemption in Code of Civil Procedure section 425.17(b):

“Section 425.16 does not apply to any action brought solely in the public interest or on behalf of the general public if all of the following conditions exist:

(1) The plaintiff does not seek any relief greater than or different from the relief sought for the general public or a class of which the plaintiff is a member. A claim for attorney’s fees, costs, or penalties does not constitute greater or different relief for purposes of this subdivision.

(2) The action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons.

(3) Private enforcement is necessary and places a disproportionate financial burden on the plaintiff in relation to the plaintiff’s stake in the matter.”

Courts address the exemption before undertaking the usual analysis under the anti-SLAPP statute.  (Exline v. Gillmor (2021) 67 Cal.App.5th 129, 138.)  (Exline v. Gillmor (2021) 67 Cal.App.5th 129, 138.)  This provision is narrowly construed, and the plaintiff bears the burden of proving it applies.  (Ibid.)

Plaintiff does not meet his burden.  This is not an action brought solely in the public interest or on behalf of the general public.  “Use of the term ‘solely’ expressly conveys the Legislative intent that section 425.17(b) not apply to an action that seeks a more narrow advantage for a particular plaintiff.  Such an action would not be brought ‘solely’ in the public’s interest.  The statutory language of 425.17(b) is unambiguous and bars a litigant seeking ‘any’ personal relief from relying on the section 425.17(b) exception.”  (Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 316–317.) 

Plaintiff’s complaint seeks declaratory relief regarding, among other things, his rights “under a written instrument” (CCP § 1060): a “notice of traffic violation bearing citation number 215975HA (‘Instrument’ or ‘Citation’)” for allegedly running a red light.  (Comp., ¶ A.)  The complaint’s prayer for relief begins:

“WHEREFORE, Plaintiff prays:

A. That a determination be made of the rights and duties of the Rosen and the City concerning the Instrument, as to be set out in the proposed judgment to be lodged and/or as the Court deems just and proper;

B. That the determination be that the Instrument is invalid, Rosen owes nothing to the City, the City cannot press the citation under the Instrument on Rosen, and that the ATES at the Location is unauthorized and unlawful, as to be set out in the proposed judgment to be lodged concurrently and/or as the Court deems just and proper.”

(Comp., p. 15.)

Plaintiff thus specifically prays for personal relief that benefits him alone: that he “owes nothing to the City” and “the City cannot” enforce its citation against him.  This complaint therefore is not brought solely in the public interest or on behalf of the general public.  The exception under section 425.17 does not apply. 

Legal Standard for Anti-SLAPP Motion

            Courts use a two-step process for resolving anti-SLAPP motions under Code of Civil Procedure section 425.16: “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.”  (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).)  The defendant must show “the cause of action is based on the defendant’s protected free speech or petitioning activity.”  (Id. at p. 89.) 

Second, once the defendant establishes the first element, courts “must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim.”  (Navellier, 29 Cal.4th at p. 88.)  “[T]he plaintiff need only have stated and substantiated a legally sufficient claim.”  (Ibid., internal quotes and citations omitted.)  “[C]laims with the requisite minimal merit may proceed.”  (Id. at p. 94.)  “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.’ ”  (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)

1. Protected Activity

Defendant only meets its burden of showing some of plaintiff’s action arises from protected activity.  “[T]he moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them.  When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage.”  (Baral v. Schnitt (2016) 1 Cal.5th 376, 396 (Baral).)  Protected activity includes any statement or writing “made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law” (CCP § 425.16(e)(1)) or “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” (id., subd. (e)(2)). 

Plaintiff’s complaint alleges one cause of action for declaratory relief against defendant.  The complaint begins, “This Verified Complaint seeks declaratory relief on the ground that Defendant is not compliant with the prerequisites of California Vehicle Code §§ 21455.5, 21455.7 to operate its Automated Traffic Enforcement Systems (‘ATES’) capturing vehicles on the Westbound Left Turn at the intersection of Rosecrans and Hindry (‘Location’) and is precluded from issuing traffic citations related thereto to anyone including to Plaintiff.”  (Id., p. 2.)  Plaintiff alleges the City’s ATES does not comply with the law for four reasons: (1) the yellow light does not last long enough (¶¶ H, 9(i)); (2) the City did not provide the required 30-day warning period (¶¶ J, 9(ii)); (3) the City did not adequately control and supervise the ATES (¶¶ K, L, 9(iii)); and (4) the City’s contract with Redflex regarding ATES violates the cost-neutrality provision of Vehicle Code section 21455.5(h) (¶¶ M, 9(iv)).

Rather than specifically identifying allegations of protected activity, defendant argues the entire action arises from its protected activity of collecting and providing evidence of plaintiff’s traffic violation.  Defendant’s argument conflates plaintiff’s allegations about how defendant purportedly violated the law in general with plaintiff’s allegation that his traffic citation was illegal and invalid.  “ ‘That a cause of action arguably may have been triggered by protected activity does not entail that it is one arising from such.’ ”  (USA Waste of California, Inc. v. City of Irwindale (2010) 184 Cal.App.4th 53, 62.) 

Plaintiff’s action seeks a declaration that the City has violated the Vehicle Code in the four ways described above.  Plaintiff alleges, for example, that the City’s contract with Redflex violates the cost-neutrality requirement.   That does not arise from protected activity.  A contract with an ATES supplier is not a statement or writing made before or in connection with an official proceeding.  Plaintiff further alleges the yellow light at the subject intersection does not last long enough.  The duration of a yellow traffic signal is not a statement or writing or any other form of communicative conduct.  It is not merely incidental to litigation or an official proceeding.  A traffic light’s chief purpose is to direct traffic, not to provide evidence of traffic violations.   

Gotterba v. Travolta (2014) 228 Cal.App.4th 35 is analogous.  There, the defendant’s anti-SLAPP motion argued the plaintiff’s “declaratory relief lawsuit arises from the protected petitioning activity of prelitigation demand letters.”  (Id. at p. 40.)  The court held the plaintiff’s “complaint is not based upon [defendant’s] sabre-rattling demand letters.  The complaint seeks declaratory relief regarding the validity of the asserted termination agreements and not the propriety of [the] demand letters.”  (Id. at p. 41.)  “In deciding whether a lawsuit is a SLAPP action, the trial court must distinguish between speech or petitioning activity that is mere evidence related to liability, and liability that is based on speech or petitioning activity.”  (Id. at p. 42.)

Here, plaintiff does not solely allege the City violated the law by issuing him a traffic citation.  He alleges the traffic citation is invalid because the City violated the law in several ways regarding establishing and maintaining the ATES and in setting the duration of the yellow light.  The traffic citation itself is protected activity.  But, assuming plaintiff’s allegations are true, the City violated the Vehicle Code before it cited plaintiff and continues to violate the Vehicle Code regardless of that citation.  The court therefore reaches the second step of the anti-SLAPP analysis solely with respect to allegations that the City violated the law by issuing a citation to plaintiff.

2. Probability of Prevailing

Plaintiff does not meet his burden of showing minimal merit to his claims for relief arising from the City’s protected activity of issuing him a traffic citation.  “If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached.  There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated.”  (Baral, supra, 1 Cal.5th at p. 396.) 

Plaintiff fails to meet this burden for two reasons.  First, his traffic citation is not a proper subject for declaratory relief, which is his sole cause of action.  Declaratory relief “operates prospectively” and is not proper “where there is an accrued cause of action for an actual breach of contract or other wrongful act.”  (Baldwin v. Marina City Properties, Inc. (1978) 79 Cal.App.3d 393, 407.)  “[D]eclaratory relief operates prospectively only, rather than to redress past wrongs.”  (Gafcon, Inc. v. Ponsor & Associates (2002) 98 Cal.App.4th 1388, 1404.)

Defendant issued the citation to plaintiff in 2022.  (Comp., ¶ A.)  Any controversy is not prospective.  There is already an ongoing traffic proceeding against plaintiff.  As the opposition argues, “The citation proceeding independently moves forward apart from [this] complaint.”  (Opp., p. 13.)  That proceeding is the only means for plaintiff to fight his traffic citation.  This court cannot issue a judicial declaration effectively stating plaintiff is innocent in a separate quasi-criminal proceeding.  (See Yount v. City of Sacramento (2008) 43 Cal.4th 885, 893 [“civil tort actions are not appropriate vehicles for challenging the validity of outstanding criminal judgments”] People v. $6,500 U.S. Currency (1989) 215 Cal.App.3d 1542, 1548 [“ ‘If a judgment, no matter how erroneous, is within the jurisdiction of the court, it can only be reviewed and corrected by one of the established methods of direct attack’ ”].)

Second, assuming the City violated the law as plaintiff alleges, that would not mean his citation is invalid.  “[F]ailure to comply with the 30-day period of issuing warning notices before using a red light camera to issue citations is not a jurisdictional precondition to enforcement of the red light traffic law.”  (People v. Rekte (2015) 232 Cal.App.4th 1237, 1243.)  Nor does violation of the Vehicle Code’s cost-neutrality provision invalidate a citation.  (People v. Daugherty (2011) 199 Cal.App.4th Supp. 1, 6-9.)  “[T]he proper consequence” of such a violation “is to preclude the People from relying on the Vehicle Code section 1553 presumption of accuracy and to instead shift the burden to the People to prove by a preponderance of the evidence that the [ATES] photographs are accurate representations.”  (Id. at pp. 8-9.)  Plaintiff does not provide evidence of any unlawful conduct by the City that would invalidate his traffic citation.

Attorney Fees

            Defendant moves for $5,500 in attorney fees for this motion.  “[A] prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs.”  (CCP § 425.16(c)(1).)  A defendant who achieves “partial success” is only “entitled to recover attorney fees and costs incurred in moving to strike the claims on which they prevailed.”  (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) 

            Defendant moved to strike the entire complaint.  It only succeeded in striking limited portions of it.  This victory is substantial enough to make defendant the prevailing party entitled to recover expenses.  After carefully reviewing defendant’s papers and evidence, the court finds awarding all $5,500 in fees is appropriate.  All of defendant’s arguments and evidence apply broadly to plaintiff’s entire action.  Defendant would have reasonably incurred the same amount in attorney fees to file an anti-SLAPP motion limited to targeting the allegations the court now strikes.  The court therefore will award defendant all $5,500 in attorney fees it claims.    

Leave to Amend

            Plaintiff argues he should be permitted to file a first amended complaint.  “When a cause of action is dismissed pursuant to section 425.16, the plaintiff has no right to amend the claim.”  (Salma v. Capon (2008) 161 Cal.App.4th 1275, 1293.)  There is limited authority that courts may allow a plaintiff to amend the complaint, but doing so “effectively denie[s]” the anti-SLAPP motion.  (Nguyen-Lam v. Cao (2009) 171 Cal.App.4th 858, 865; Dickinson v. Cosby (2017) 17 Cal.App.5th 655, 676, fn. 8.) 

The court denies defendant’s motion in part.  Plaintiff may not amend the complaint to restate any allegations the court strikes in partially granting the motion.  Plaintiff may, however, file a noticed motion for leave to amend the complaint to add other allegations. 

Disposition

Defendant City of Hawthorne’s special motion to strike is granted in part.  The court hereby strikes the following portions of plaintiff Barry Rosen’s complaint without leave to amend:

(1) “is precluded from issuing traffic citations related thereto to anyone including to Plaintiff” (page 2, lines 5-6);

(2) “The Instrument citing Rosen for violation does not meet the underlying requirements of Section 21455.5 and renders not only the Instrument invalid but” (¶ N, page 9, lines 9-11);

(3) “the Instrument is unauthorized and unlawful because” (¶ P, page 9, line 18);

(4) “Rosen is asking the City to refrain enforcement of the Instrument until trial on this Verified Complaint” (¶ R, page 9, lines 26-27);

(5) “The written instrument appears to be without statutory support because unabated it is presumed valid and compliant and a determination under Code of Civil Procedure section 1060 is required to either confirm compliance under Section 21455.5 or determine non-compliance.  The Court is also asked to decide the respective rights and duties of the Instrument as the statutory writing as applied to law writing [sic] because a decision in favor of Rosen would essentially render all citations as unauthorized and unlawful.”  (¶ 8, page 12, lines 5-10);

(6) “In filing this Verified Complaint pursuant to Code of Civil Procedure section 1060, Rosen desires a declaration with respect to the Instrument along with his rights and duties with respect to the City along with the corresponding rights and duties of the City with respect to Rosen” (¶ 9, page 12, lines 19-22);

(7) “the Instrument does not comply with Section 21455.5 and” (¶ 9, page 12, lines 22-23);

(8) “Rosen, as the motorist, cited by Redflex on behalf of the City for the violation of running a redlight when the City” (¶ 10, page 14, lines 18-19);

(9) “of the Rosen’s [sic] rights with respect to the validity of the Instrument imposed by the City” (¶ 10, page 14, lines 20-21);

(10) “Instrument and” (¶ 10, page 14, line 21);

(11) “relieve Rosen from all obligations under the Instrument and purported citation for running a redlight captured and” (¶ 10, page 14, lines 27-28);

(12) all of prayer, paragraph A (page 15, lines 7-9); and

(13) “that the Instrument is invalid, Rosen owes nothing to the City, the City cannot press the citation under the Instrument on Rosen, and” (prayer, ¶ B, page 15, lines 11-12).

Plaintiff may file a noticed motion for leave to amend only to add new allegations consistent with this order.

Defendant City of Hawthorne shall recover $5,500 in attorney fees from plaintiff Barry Rosen.