Case Number: BC545191    Hearing Date: August 19, 2014    Dept: 82

James Redden
v.
Nikos Kokotakis

Tentative Order Granting Anti-SLAPP Motions filed by the City and Real Parties

This lawsuit was filed on May 9, 2014 by eleven “electors” in the City of Santa Monica against the City Clerk, City Attorney, City Council, and three individual proponents of a charter amendment. The proposed amendment would add a new provision to Santa Monica’s charter requiring voter approval of certain decisions about the Santa Monica Municipal Airport. The operative pleading is 64-pages long, not including exhibits, and asserts six causes of action. Although the Complaint is not a model of clarity, it appears that Plaintiffs seek to prevent the proposed charter amendment from appearing on the ballot in November 2014 or June 2016.

Before the Court are two motions: the City’s motion to strike the third and fourth causes of action, and the real parties’ or charter proponents’ motion to strike all of the causes of action. Both motions are brought under California’s anti-SLAPP law, Code of Civil Procedure section 425.16. The matters were argued and submitted on August 19, 2014. Both motions are granted.

Requests for Judicial Notice and Objections

Plaintiffs’ request for judicial notice of the following exhibits is denied: D, E, F, G, H, I, K, L, and R. The request for judicial notice of the remaining exhibits is granted.

The City’s requests for judicial notice are granted.

The following objections by Real Parties in Interest are sustained: Exhibits 1, 2, 3, and 8 (page 1026). The remaining objections are overruled.

Discussion

The anti SLAPP statute involves a two step approach. First, the defendant must show that the act or acts of which the plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue.” CCP § 425.16(b)(1). The defendant must demonstrate that the plaintiff’s cause of action arises from the exercise of the defendant’s free expression or petition rights. Shekhter v. Financial Indemnity Co., (2001) 89 Cal.App.4th 141, 151. A cause of action “arises from” the defendant’s protected act if the act underlying the plaintiff’s cause of action was an act made in furtherance of the right of petition or free speech. City of Cotati v. Cashman, (2002) 29 Cal.4th 69, 78. Acts in furtherance 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. Code Civ. Proc., § 425.16(e).

Second, if the defendant carries the initial burden, the burden shifts to the plaintiff “to establish a probability of success on the merits . . . [by showing 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.’” Fleishman v. Superior Court, (2002) 102 Cal.App.4th 350, 355 (internal citation omitted). “The plaintiff cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial.” Integrated Healthcare Holdings, Inc. v. Fitzgibbons, (2006) 140 Cal.App.4th 515, 527. Therefore, to establish a probability of prevailing, 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.’” Id. The defendant has the burden in the first step, and the plaintiff has the burden on the second. Kajima Engineering & Construction, Inc. v. City of Los Angeles, (2002) 95 Cal.app.4th 921, 928. In making both determinations, the trial court considers “the pleadings, and opposing affidavits stating the facts upon which the liability or defense is based.” Equilon Enterprises, LLC v. Consumer Cause, Inc., (2002) 29 Cal.4th 53, 67.

1. The “Public Interest” Exception Does Not Bar Application of the anti-SLAPP Law

As a preliminary matter, Plaintiffs argue that both motions should be denied because the lawsuit falls outside the anti-SLAPP law under the “public interest” exception in CCP § 425.17(b). However, subdivision (d)(2) of section 425.17 provides that this “public interest” exception to the anti-SLAPP law does not apply to “[a]ny 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.”

The challenged actions in this lawsuit involve political speech or political “work” within the meaning of subdivision (d)(2). See Major v. Silna, (2005) 134 Cal. App. 4th 1485. The Legislature’s goal in enacting section 425.17 was to limit corporate abuse of the anti-SLAPP law, not to exclude individuals from participating in the political process. See subdivision (a) of section 425.17 (“[T]here has been a disturbing abuse of Section 425.16, the California Anti-SLAPP Law, which has undermined the exercise of the constitutional rights of freedom of speech and petition for the redress of grievances, contrary to the purpose and intent of Section 425.16. 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 or Section 425.16.”). Further, Plaintiffs cannot establish that their lawsuit, if successful, would enforce an important right affecting the public interest. In fact, the opposite is true–Plaintiffs seek to force the City to abandon its neutral role in preparing impartial ballot materials. Accordingly, Plaintiffs’ lawsuit is not subject to the “public interest” exception to the anti-SLAPP law.

2. This Lawsuit Arises From Acts in Furtherance of Protected Activity

The moving parties have met their initial burden of showing that they have engaged in activity protected by the anti-SLAPP statute.

Concerning the City defendants’ motion, the claims set forth in the third and fourth causes of action arise from conduct and written statements made, or not made, by the City Attorney in response to the filing of a proposed charter amendment. Of course, the filing of the proposed charter amendment is itself a form of petitioning activity protected by the First Amendment. See Costa v. Superior Court, (2006) 37 Cal. 4th 986, 1008 (“[W]hen a preelection challenge is brought against an initiative measure that has been signed by the requisite number of voters to qualify it for the ballot, the important state interest in protecting the fundamental right of the people to propose statutory or constitutional changes through the initiative process requires that a court exercise considerable caution before intervening to remove or withhold the measure from an imminent election.”). Here, Plaintiffs sued the City Attorney based on discretionary decisions made by her on what to write or not write, or whether or not to commence litigation, in connection with other voters’ petitioning activity. As discussed by our Supreme Court, “a long and uniform line of California Court of Appeal decisions explicitly holds that governmental entities are entitled to invoke the protections of section 425.16 when such entities are sued on the basis of statements or activities engaged in by the public entity or its public officials in their official capacity.” Vargas v. City of Salinas, (2009) 46 Cal. 4th 1, 17.

Similarly, the remaining causes of action arise from the Clerk’s, City Council’s, or charter proponents’ protected activity since their actions or inactions relate directly to a preelection challenge of a proposed charter amendment. As discussed in Mission Springs Water Dist. v. Verjil, (2013) 218 Cal. App. 4th 892, 907, when an entity or person “files a declaratory relief action in which it seeks to keep an initiative off the ballot, the action arises out of the proponent’s right of petition.” That is, “a preelection challenge to an initiative does implicate the personal constitutional rights of the initiative’s proponents” under the anti-SLAPP law. Id., p. 899. Here, the City defendants and charter proponents have been sued for actions or inactions taken by them relating to the right to petition the government through the initiative process. For example, in the first cause of action Plaintiffs seek to require the City Clerk to amend the real parties’ proposed petition (Complaint, ¶ 268), and in the second cause of action Plaintiffs’ proposed actions would deny the real parties the opportunity to place their proposed charter amendment on the ballot. (Complaint, ¶ 276).

3. Plaintiffs Have Not Demonstrated a Probability of Prevailing on their Claims

Plaintiffs have not submitted evidence that would support a judgment of relief in their favor as to any cause of action. In addition, the causes of action in the complaint would not satisfy demurrer. See Dowling v. Zimmerman, (2001) 85 Cal. App. 4th 1400, 1421.

As for the first cause of action, although Plaintiffs allege that the City Clerk failed to ensure that the proposed petition met certain requirement, they offer no evidence to support this contention. None of the exhibits cited by Plaintiffs on page 5 of their opposition supports their argument. Further, while Elections Code§ 9627 states that “[p]etitions that do not substantially conform to the form requirements of this article shall not be accepted for filing by the elections official,” Plaintiffs have not stated why this provision, or any other provision in the Elections Code, was violated by the City Clerk before she transmitted the proposed petition to the City Attorney for the preparation of the ballot title and summary. In fact, the real parties did not file their “petition” with the City Clerk on March 27, 2014; they filed a notice of intent to circulate petition. (Complaint, Exhibit 6).

In their second cause of action, Plaintiffs sued the City Council. As best as the Court can determine, Plaintiffs claim that the City Council would violate Elections Code sections 9214 or 9280 if it “undertake[s] to act to further the progress of the AOPA Petition.” (Complaint, ¶ 276). Elections Code section 9280, however, is directed at city attorneys, not city councils. Further, Plaintiffs have not cited any legal authority that would prohibit the City Council from acting under section 9280. In fact, city charter amendments, as opposed to ordinances, are always submitted to the voters for approval. Elections Code § 9255(c). Importantly, the act of placing an issue on the ballot as a proposed charter amendment is a ministerial act. Stein v. City of Santa Monica, (1980) 110 Cal. App. 3d 458, 461. And, since the challenged pleading was filed on May 9, 2014, and the challenged petition was not even filed with the City Clerk until June 10, 2014, the City Council had not taken any action that could be challenged as of May 9, 2014.

Plaintiffs refer, in passing, to the third cause of action in in their opposition to the City’s motion. Although they state that they only need to show that their claim has “minimal merit,” no evidence is mentioned or discussed.

As for the fourth cause of action, Plaintiffs argue that the City Attorney’s ballot summary: “fails to connect the dots;” falsely describes the supermajority voting requirement; and fails to use required statutory language. It appears that the actual ballot measure was prepared on July 22, 2014 (Plaintiffs’ RJN, Exhibit X), and the City Attorney’s impartial analysis was prepared shortly thereafter. (Plaintiffs’ RJN, Exhibit Y). That is, the actual ballot measure and impartial analysis were prepared after the Complaint was filed. Regardless, the Court agrees with Plaintiffs that the City Attorney ballot summary is “clear, well-written, concise and unbiased.” (Complaint, ¶ 211). While the City Attorney’s ballot title and summary, as reflected in Exhibits 6 and Y, may not outline every potential effect of the proposed charter amendment, such a comprehensive description of a proposed measure’s anticipated effect is not required. See Horneff v. City and County of San Francisco, (2003) 110 Cal.App.4th 814, 820 (“The test is not whether the [ballot] digest is complete, but rather whether it contains a statement of the major objectives or ‘chief purposes and points’ of the measure”). As for Plaintiffs’ “supermajority” voting requirement argument, they ignore the generally accepted definitions of “voter” and “majority.” The Court also finds that the heading of the proposed title and summary substantially complies with Elections Code § 9203(b).

Since Plaintiffs now concede that their fifth cause of action is actually a post-election challenge, this cause of action is not ripe for adjudication. (See Plaintiffs’ Response to Real Parties’ anti-SLAPP Motion, p. 6:3-4). Apart from this fatal concession, Plaintiffs’ remaining arguments have no merit. See, e.g., Pettye v. City and County of San Francisco, (2004) 118 Cal. App. 4th 233, 241 (the people through their charter have the right to vest in themselves the power to deal through initiative action with any matter within the realm of local affairs or municipal business, whether strictly legislative or not); Californians for an Open Primary v. McPherson, (2006) 38 Cal. 4th 735 (California has long construed the single subject provisions in an accommodating and lenient manner so as not to unduly restrict the Legislature’s or the people’s right to package provisions in a single bill or initiative).

Finally, in their sixth cause of action Plaintiffs sued the City Clerk to prevent her from putting the charter amendment on the ballot because of the alleged criminal conduct by the ballot proponents. Plaintiffs appear to have abandoned this claim. Anyway, unlike in San Francisco Forty-Niners v. Nishioka, (1999) 75 Cal. App. 4th 637, there is no evidence that the circulating initiative petition contained false statements intended to mislead voters and induce them to sign the petition.

Disposition

For these reasons, the anti-SLAPP motions are granted. In light of this ruling, all other pending motions are moot.

IT IS SO ORDERED