Judge: Joel R Wohlfeil, Case: 37-2021-00052364-CU-MC-CTL, Date: 2024-04-12 Tentative Ruling

SUPERIOR COURT OF CALIFORNIA,

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HALL OF JUSTICE

TENTATIVE RULINGS - April 10, 2024

04/12/2024  09:00:00 AM  C-73 COUNTY OF SAN DIEGO

JUDICIAL OFFICER:Joel R. Wohlfeil

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Civil - Unlimited  Misc Complaints - Other Motion Hearing (Civil) 37-2021-00052364-CU-MC-CTL PROJECT FOR OPEN GOVERNMENT VS COUNTY OF SAN DIEGO CAUSAL DOCUMENT/DATE FILED: Motion to Strike, 03/13/2024

The Motion (ROA # 22) of Defendant County of San Diego ('Defendant' or 'County') to strike the first cause of action in the First Amended Complaint ('FAC') by asserted in Plaintiff PROJECT FOR OPEN GOVERNMENT ('Plaintiff'), and for attorneys' fees, is DENIED.

Defendant's Request (ROA # 24) for judicial notice is GRANTED IN PART and DENIED IN PART. The Court takes judicial notice of Exh's '4 and 5' and declines to take judicial notice of Exh's '1 – 3.' Plaintiff's objections (ROA # 29) are SUSTAINED to Exh's '1 – 3' and overruled to Exh's '4 and 5.' Regarding timeliness, the Court has already exercised its discretion and granted leave to file this Motion pursuant to Code of Civil Procedure section 425.16(f).

The remainder of this ruling addresses the substantive merits.

Statutory Exemption Per Section 425.17 Section 425.17 provides the following exemption: '(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.' Before engaging in the anti-SLAPP Motion two-step analysis, the Court must consider any claims by Plaintiff that a statutory exemption contained in section 425.17 applies. San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal. App. 4th 611, 622.

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3103279 CASE NUMBER: CASE TITLE:  PROJECT FOR OPEN GOVERNMENT VS COUNTY OF SAN  37-2021-00052364-CU-MC-CTL Section 425.17 identifies two statutory exemptions, one of which is the 'public interest' exemption at issue in this case. Id. Plaintiff has the burden to establish the applicability of this exemption. Id. Plaintiff is not required to make an evidentiary showing in order to establish the public interest prong of the exception. Tourgeman v. Nelson & Kennard (2014) 222 Cal. App. 4th 1447, 1463.

Whether the action would benefit the public is determined by examining the complaint to determine whether the lawsuit is of the kind that seeks to vindicate public policy goals. Id. The third prong of the public interest exemption requires a comparison of Plaintiff's financial stake in the outcome with the potential costs of a legal victory. San Diegans for Open Government v. Har Construction, Inc., supra at 628.

The relevant inquiry is whether the cost of Plaintiff's legal victory transcends their personal interest. Id. Plaintiff who does not seek any financial benefit from the lawsuit will generally satisfy the statute's 'disproportionate financial burden' requirement. Id. Moreover, the applicability of the public interest exemption (including the financial burden element) is determined by examining the allegations of the complaint, and does not require the plaintiff to proffer affirmative evidence. Id. Plaintiff's action, as alleged in the FAC, satisfies all three prongs such that the section 425.17(b) public interest exemption applies. Plaintiff does not seek relief greater than the relief sought for the general public. This action, if successful, would enforce an important right affecting the public interest. Private enforcement is the only option and places a disproportionate financial burden on the plaintiff.

Subsection 425.17(d)(2) provides the following exception to the exemption from section 425.16: '(d) Subdivisions (b) and (c) do not apply to any of the following: ....

(2) Any action against any person or entity based upon the creation, dissemination, exhibition, advertisement, or other similar promotion of any dramatic, literary, musical, political, or artistic work, including, but not limited to, a motion picture or television program, or an article published in a newspaper or magazine of general circulation.' This Court agrees with plaintiff: Official government decisions that enact or adopt new laws, rules, regulations, and/or policies are not 'political works' within the meaning of Section 425.17(d)(2) merely because they were drafted by a government agency. There is no legal authority supporting this interpretation. The case law cited by the County is inapposite because each case involved written materials from politicians and political candidates (candidate filings and advertisements), not official enactments or policies of a governing or legislative body. The County's argument would completely insulate all laws, rules, regulations and policies enacted by government agencies from future challenge.

Specifically, the failure to disclose certain business interest and income on a politician's personal 'Statement of Economic Interests California Form 700' (see Exline v. Gillmor (2021) 67 Cal. App. 5th 129) is distinct from a legislative enactment by the County Board of Supervisors.

First Prong: Protected Activity Even if the section 425.17(b) exemption does not apply, this Motion is not persuasive because adoption of Resolution 21-174 is not protected activity, as discussed below.

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3103279 CASE NUMBER: CASE TITLE:  PROJECT FOR OPEN GOVERNMENT VS COUNTY OF SAN  37-2021-00052364-CU-MC-CTL A party seeking the protection of section 425.16 has the initial burden of establishing that the statute applies. Code Civ. Proc. 425.16(b).

Section 425.16(b)(1) requires the Court to engage in a two-step process. Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 67-68.

First, the Court decides whether Defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. Id. Defendant's burden is to demonstrate the acts of which Plaintiff complains were taken in furtherance of Defendant's right of petition or free speech under the United States or California Constitutions. Id. In making this determination, a court considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' Code Civ. Proc. 425.16(b)(2).

Section 425.16(e) sets forth the following protected activity: '(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, or (4) 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.' For example: 'Midland's cause of action for breach of contract is based on the Kings' submission of the High Density Tract Map to the planning commission and city council. These acts were in the course of an official proceeding and were clearly in furtherance of the Kings' right of petition and free speech.' Midland Pacific Building Corp. v. King (2007) 157 Cal. App. 4th 264, 272.

However, the mere fact that an action is filed after protected activity takes place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. Episcopal Church Cases (2009) 45 Cal. 4th 467, 477 (quoting Navellier v. Sletten (2002) 29 Cal. 4th 82, 89).

Moreover, that a cause of action arguably may have been 'triggered' by protected activity does not entail it is one arising from such activity. Id. In the anti-SLAPP context, the critical consideration is whether the cause of action is based on Defendant's protected free speech or petitioning activity. Navellier v. Sletten, supra.

'In filing this action, the Los Angeles Diocese sought to resolve a property dispute. The property dispute is based on the fact that both sides claim ownership of the same property. This dispute, and not any protected activity, is the gravamen or principal thrust of the action .... The additional fact that protected activity may lurk in the background - and may explain why the rift between the parties arose in the first place - does not transform a property dispute into a SLAPP suit.' Episcopal Church Cases, supra at 477, 478.

The Court examines the claim's 'gravamen by identifying [t]he allegedly wrongful and injury-producing conduct ... that provides the foundation for the claim.' Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal. App. 5th 581, 594.

The Court looks 'to see whether the essence or bulk of the cause of action is based on protected activity.' Okorie v. Los Angeles Unified School Dist. (2017) 14 Cal. App. 5th 574, 588.

The focus 'is on determining what the defendant's activity [is] that gives rise to' the 'asserted liability' Calendar No.: Event ID:  TENTATIVE RULINGS

3103279 CASE NUMBER: CASE TITLE:  PROJECT FOR OPEN GOVERNMENT VS COUNTY OF SAN  37-2021-00052364-CU-MC-CTL and 'whether that activity constitutes protected speech or petitioning.' Id. In Hastings College Conservation Committee v. Faigman (2023) 92 Cal. App. 5th 323, 333, the opinion states: 'It is well established that anti-SLAPP protection 'extends to statements and writings of governmental entities and public officials on matters of public interest and concern that would fall within the scope of the statute if such statements were made by a private individual or entity.' (Vargas v. City of Salinas (2009) 46 Cal. 4th 1, 17.) It appears to be an open question whether a challenge based on a speech-related enactment, rather than on other activities undertaken by public entities or officials in furtherance of their rights to free speech or to petition, may give rise to an anti-SLAPP motion. (See San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees' Retirement Assn. (2004) 125 Cal. App. 4th 343, 357 [suggesting that a public entity's speech-related enactment may implicate its exercise of free speech for anti-SLAPP purposes]; City of Montebello v. Vasquez, supra, 1 Cal. 5th at pp. 425 – 427 [discussing San Ramon and noting concern that applying section 425.16 to a public entity's enactment may chill citizens' exercise of their right to challenge government action].) But we need not decide that question here. Even assuming that AB 1936 is a 'speech-related' measure and that plaintiffs' challenge to its enactment may be subject to an anti-SLAPP motion, such a motion would properly be brought by the public entity that enacted it: the State, not the College Defendants ....' In City of Montebello v. Vasquez (2016) 1 Cal. 5th 409, the Supreme Court determined that council members' public statements and votes in connection with award of waste-hauling contract, and an administrator's involvement in negotiating the waste-hauling contract was protected activity under section 425.16. Importantly, in reaching this conclusion the opinion noted the distinction as between suits against public officials and suits against government entities: 'We address one other matter that troubled the Court of Appeal: the concern that affording anti-SLAPP protection to these defendants would chill the rights of those seeking to challenge legislative decisions. The court's apprehension was based on a misreading of San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees' Retirement Assn. (2004) 125 Cal. App. 4th 343 (San Ramon ).

In San Ramon, a fire district challenged a county retirement board's decision to increase contributions payable by the district and its employees .... The court affirmed the denial of an anti-SLAPP motion, holding that the board's 'collective action' in requiring additional contributions did not implicate its 'rights of free speech or petition.' ...

The San Ramon court drew a distinction between action taken by a government body and the expressive conduct of individual representatives. '[T]he fact that a complaint alleges that a public entity's action was taken as a result of a majority vote of its constituent members does not mean that the litigation challenging that action arose from protected activity, where the measure itself is not an exercise of free speech or petition. Acts of governance mandated by law, without more, are not exercises of free speech or petition.' (San Ramon, supra, 125 Cal. App. 4th at p. 354.) The court noted that 'an action against individual lawmakers, challenging their vote cast in the exercise of individual legislative prerogative,' might arguably 'be held to arise from conduct in the furtherance of the exercise of speech rights, protected by section 425.16.' (San Ramon, at p. 356.) No individual board members were sued in San Ramon, however, so the court did not reach that question.

Here, the Court of Appeal seized on the San Ramon court's observation that holding acts of governance to be protected activity under section 425.16 'would significantly burden the petition rights of those seeking mandamus review for most types of governmental action. Many of the public entity decisions reviewable by mandamus or administrative mandamus are arrived at after discussion and a vote at a public meeting. [Citation.] If mandamus petitions challenging decisions reached in this manner were routinely subject to a special motion to strike,' the result would be to 'chill the resort to legitimate judicial oversight over potential abuses of legislative and administrative power ....' (San Ramon, supra, 125 Cal. App. 4th at pp. 357 – 358.) Calendar No.: Event ID:  TENTATIVE RULINGS

3103279 CASE NUMBER: CASE TITLE:  PROJECT FOR OPEN GOVERNMENT VS COUNTY OF SAN  37-2021-00052364-CU-MC-CTL These comments pertained only to the San Ramon court's reservations about burdening actions challenging government decisions, not the acts of individual officials. It is not necessary to sue government officers in their personal capacities to challenge the propriety of a government action.

Notably, here the Athens contract was successfully challenged in a citizen's suit brought against the City.

We have observed that the Legislature was specifically concerned with actions against public officials as individuals when it reconsidered the scope of section 425.16 in 1997 ....

Section 425.16 was first enacted in 1992. In 1997, in response to several Court of Appeal decisions that had narrowly construed the scope of the statute, the Legislature amended the measure to clarify its intent that the provisions of the statute are to be interpreted broadly. (Stats.1997, ch. 271, § 1 [amending § 425.16, subd. (a) ].) A legislative analysis of this amendment approvingly quoted a passage from a then recent law review article that identified as 'a typical SLAPP suit scenario' a situation in which an abusive lawsuit is brought against both public officials and private individuals. (Assem. Com. on Judiciary, Analysis of Sen. Bill No. 1296 (1997 – 1998 Reg. Sess.) as amended June 23, 1997, p. 2, quoting Sills, SLAPPS: How Can the Legal System Eliminate Their Appeal? (1993) 25 Conn. L. Rev. 547 (Sills article).' (Vargas, supra, 46 Cal. 4th at p. 19, fn. 9.) ' 'Just as SLAPPs filed against individuals have a 'chilling' effect on their participation in government decision making, SLAPPs filed against public officials, who often serve for little or no compensation, may likely have a similarly 'chilling' effect on their willingness to participate in governmental processes.' ' (Ibid., quoting the Sills article, supra, at p. 550.) The San Ramon court's distinction between public agencies and individual officials was reaffirmed in Schwarzburd v. Kensington Police Protection & Community Services Dist. Bd. (2014) 225 Cal. App. 4th 1345, which also centered on votes by public representatives. There, a local board as well as individual board members were named respondents in a writ proceeding challenging a merit bonus awarded to a city official .... The court followed San Ramon in holding that the action did not arise from protected activity insofar as it targeted the board as an entity .... However, it held that the actions of the individual board members were protected by the anti-SLAPP statute. The petition claimed they had violated board policy by voting to extend a meeting, and discussing and voting on a matter that was not properly noticed. They were sued not 'simply because they voted, but based on how they voted and expressed themselves.' (Id. at p. 1355.) The Schwarzburd court noted that the claims against the board members arose out of 'protected First Amendment voting and legislative deliberative activities,' without considering Carrigan 's holding precluding First Amendment protection for votes. (Schwarzburd, supra, 225 Cal. App. 4th at p. 1353.) Its conclusion, however, is consistent with our reasoning that votes taken after a public hearing qualify as acts in furtherance of constitutionally protected activity. And Schwarzburd, like this case, demonstrates that elected officials may assert the protection of section 425.16 when sued over how they voted without chilling citizens' exercise of their right to challenge government action by suing the public entity itself.' Id. at 425 – 427 (emphasis added, some internal citations and footnote omitted).

This action is directed at the public entity County challenging the legality of the adopted Resolution. The FAC is not alleged against the individual Supervisors who voted to adopt the resolution. As discussed above, section 425.16 is directed at actions against public officials as individuals, and is not intended to curtail or burden actions challenging the legality of government decisions. Acts of governance, by themselves, do not constitute the exercise of free speech or petition. In short, this action does not arise from protected activity insofar as it targets the Board as an entity and its adoption of the Resolution.

Second Prong: Prevailing on the Merits Where a claim arises from protected activity the burden shifts to Plaintiff to establish a probability of prevailing on the merits. Code Civ. Proc. 425.16(b)(1). As Defendant has not satisfied the initial burden on prong one, it is not necessary for the Court to address the second prong of the analysis.

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