Case Number: BC539808    Hearing Date: July 22, 2014    Dept: 46

Posted 7-21-2014 at 12:55 p.m.
Regarding Cal. Matter #10 on 7-22-2014

Case Number: BC539808
MATTHEW PAPPAS VS CHARLES PARKIN ET AL
Filing Date: 03/19/2014
Case Type: Injunct Relief-not Dom/Harrassmt (General Jurisdiction)

07/22/2014

DEFENDANT PARKIN’S “SLAPP” MOTION TO STRIKE

TENATIVE RULING: Motion is granted. Plaintiff’s complaint as against Defendant Parkin is dismissed. A motion for attorney’s fees to be pursued by separate noticed motion. Case management conference is off calendar as the case has been dismissed. However, the voluntary dismissal does not divest the court from determination of the Anti-SLAPP motion or a motion for Attorney’s Fees by the prevailing defendant. S.B Beach Properties v. Berti (2006) 39 Cal.4th 374, 379.

1. The complaint in this matter was filed on 3/19/14. Plaintiff seeks Injunctive Relief Pursuant to CA Election Code §18350 against Defendants Charles Parkin (hereinafter, “Parkin”); Long Beach Police Officers Association (hereinafter, “LBPOA”); Steve James (hereinafter, “James”); AFL-CIO and DOES 1-20. Election Code § 18350 states as follows: “Every person is guilty of a misdemeanor who, with intent to mislead the voters in connection with his or her campaign for nomination or election to a public office or in connection with the campaign of another person for nomination or election to a public office, does either of the following acts:

(a) Assume, pretend, or imply, by his or her statements or conduct, that he or she is the incumbent of a public office when that is not the case.

(b) Assume, pretend, or imply, by his or her statements or conduct, that he or she is or has been acting in the capacity of a public officer when that is not the case.
Any violation of this section may be enjoined in a civil action brought by any candidate for the public office involved.”

2. Plaintiff contends that he and Parkin were (at the time the complaint was filed) both candidates for the elected office of Long Beach City Attorney. In 2/2014, Plaintiff received a mailer from LBPOA that included the facsimile of a signed letter of the LBPOA’s President, James, which advertised that voters should “Re-elect City Attorney Charles Parkin.” In 3/2014, Parkin, on his official campaign website, included an article published by the Long Beach Register newspaper, along with a printed statement that sections of the article are “bolded for emphasis by Parkin for City Attorney.” Thereafter, a bolded section of the article reports that Parkin is the incumbent City Attorney of Long Beach. ln 3/14, Long Beach registered voter Lawrence King (hereinafter, “King”) received a phone call from a solicitor identifying themselves as a representative of AFL-CIO. During the call, the phone solicitor stated to King that Parkin had criminally prosecuted drug offenders and prostitutes and that Parkin should be “re-elected” city attorney of Long Beach. Plaintiff asserts that Parkin has never been elected City Attorney of Long Beach and was, instead, appointed as same following the resignation of now retired and formerly elected City Attorney Robert Shannon in 7/2013. Plaintiff seeks a TRO, preliminary and permanent injunction Defendants from violating Elections Code §18350 and seeks a public rescission of the aforesaid statements.

3. Parkin’s motion. Parkin now moves this court, per CCP § 425.16, for an order granting his special motion to strike Plaintiff’s complaint. He will seek attorney’s fees and costs via a subsequently filed motion. Plaintiff claims that Parkin violated Elections Code §18350 by reason of the way that the Long Beach Register described Parkin in its endorsement, rather than because of anything Parkin himself said. There is nothing misleading, however, about the endorsement or its posting on the website, as it clearly references the fact that Parkin is holding the office of City Attorney by reason of Council appointment in 2013. Parkin, moreover, did not write the endorsement. Injunctive relief is not available to enjoin a candidate from posting information on his/her website or in other campaign material. The activity that is the focus of Plaintiff’s complaint—i.e., the posting of an endorsement on a candidate’s webpage—is within the scope of 1st Amendment activities protected by CCP §425.16(e)(3)&(4). Regarding the allegations Plaintiff has made against the other Defendants, Parkin contends that has not participated in any manner in the preparation of the mailer by D LBPOA, nor did he or his campaign staff coordinate in any way with LBPOA regarding its decision to publish the mailer or its content. He has not had any involvement or coordination with the L.A. County Federation of Labor regarding any phone calling efforts.

4. The court concludes from the moving an opposition papers that Parkin’s motion should be, and it is hereby, GRANTED pursuant to CCP §425.16. The issue regarding the amount of
attorney’s fees to be awarded has been reserved for subsequent motion.

4.a. CCP § 425.16 states, in pertinent part, as follows:

“(b)(1) A cause of action against a person arising from any act of that
person in furtherance of the person’s right of petition or free speech
under the United States or California Constitution in connection with a
public issue shall be subject to a special motion to strike, unless the
court determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim.
(2) In making its determination, the court shall consider the pleadings,
and supporting and opposing affidavits stating the facts upon which
the liability or defense is based.
(3) If the court determines that the plaintiff has established a probability
that he or she will prevail on the claim, neither that determination nor
the fact of that determination shall be admissible in evidence at any
later stage of the case, or in any subsequent action, and no burden of
proof or degree of proof otherwise applicable shall be affected by that
determination in any later stage of the case or in any subsequent
proceeding…
(e) As used in this section, ‘act in furtherance of a person’s right of
petition or free speech under the United States or California Constitution
in connection with a public issue’ includes: (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…”

4.b. “A special motion to strike under section 425.16—the so-called anti-SLAPP statute—allows a defendant to seek early dismissal of a lawsuit that qualifies as a SLAPP. ‘SLAPP is an acronym for “strategic lawsuit against public participation.”’ (Jarrow Formulas, Inc. v. LaMarche (2003) 31 C.4th 728, 732, fn. 1). A SLAPP is ‘[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue.’ (§ 425.16, subd. (b)(1).).” Nygard, Inc. v. Uusi-Kerttula (2008) 159 C.A.4th 1027, 1035.

4.c. “A SLAPP is subject to a special motion to strike ‘unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.’ In this case, the court finds that Parkin has met his burden, based upon Plaintiffs allegations as are set forth at length below, of showing that the action falls within the class of suits that is subject to CCP §425.16.

4.c.i. The moving party bears the initial burden of showing that the action falls within the class of suits subject to the special motion to strike. Matson v. Dvorak (1995) 40 C.A.4th 539, 548; Dixon v. Superior Court (1994) 30 C.A.4th 733, 742; Wilcox v. Superior Court (1994) 17 C.A.4th 809, 819. A defendant need not first establish that his actions are constitutionally protected under the First Amendment as a matter of law. Wilcox, supra, 17 C.A.4th at 820. However, a defendant is required to make a prima facie showing that plaintiff’s suit arises from any act of defendant in furtherance of his right to petition or his right of free speech under the federal or state constitution in connection with an issue of public interest. § 425.16(e); Equilon Enterprises v. Consumer Cause (2002) 29 C.4th 53, 67. The act which forms the basis for the plaintiff’s cause of action must itself have been an act in furtherance of the right of petition or free speech. City of Cotati v. Cashman (2002) 29 C.4th 69, 76-78; ComputerXpress, Inc. v. Jackson (2001) 93 C.A.4th 993, 1003; Dowling v. Zimmerman (2001) 85 C.A.4th 1400, 1417; Braun v. Chronicle Publishing Co. (1997) 52 C.A.4th 1036, 1043.

4.c.ii. A defendant may meet this burden by showing that the act which forms the basis for the plaintiff’s suit was (1) any written or oral statement made before a legislative, executive or judicial proceeding; (2) a statement or writing made in connection with an issue under consideration in such a proceeding or “any other official proceeding authorized by law;” (3) any written or oral statement 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 an issue of public interest. § 425.16(e); Equilon Enterprises, supra, 29 C.4th at 66; Dixon, supra, 30 C.A.4th at 742.

4.c.iii. Plaintiff has alleged, in relevant part, as follows:

“1. At all times mentioned herein, Plaintiff Matthew Pappas was and
is a resident of Long Beach, California and is a candidate for the elected office of Long Beach City Attorney.
2. Defendant Charles Parkin is an individual who resides in Long Beach, California and is also a candidate for the elected office of Long Beach City Attorney.
3. The primary election for Long Beach City Attorney will be held on April 8, 2014.
4. Defendant Long Beach Police Officer Association (LBPOA) is an association that has endorsed Parkin in the election. The LBPOA has formed an independent expenditure supporting Parkin for the 2014 election.
5. Defendant AFL-CIO is an entity of unknown type that has formed an independent expenditure supporting Parkin for the 2014 election.
6. Defendant Steve James is an individual and is the president of the LBPOA…
12. In February, 2014, Pappas received a true and correct copy of a mailer sent to thousands of Long Beach voters by the LBPOA (‘LBPOA Mailer,’ Exhibit 1) that included the facsimile of a signed letter of the LBPOA President, Steven James, which advertised that voters should ‘Re-elect City Attorney Charles Parkin.’
13. In March, 2014, Charles Parkin, on his official campaign Website included an article published by the Long Beach Register newspaper (‘Parkin Website,’ Exhibit 2) along with a printed statement that sections of the article are ‘bolded for emphasis by Parkin for City Attorney.’ Thereafter, a bolded section of the article reports that Parkin is the incumbent City Attorney of Long Beach.
14. ln March, 2014, Long Beach registered voter Lawrence King received a telephone call from a solicitor identifying themselves as a representative of defendant AFL-CIO. During the call, the phone solicitor stated to King that Charles Parkin had criminally prosecuted drug offenders and prostitutes and that Parkin should be ‘re-elected’ city attorney of Long Beach. (Declaration of Lawrence King, Exhibit 3).
15. Charles Parkin has never been elected City Attorney of Long Beach.
16. Charles Parkin was appointed Long Beach City Attorney following the resignation of now retired and formerly elected City Attorney Robert Shannon in July, 2013.
17. Charles Parkin is not an incumbent as that term is defined in the California Elections Code. (Cal. Elec. Code § 13107(a)(2).)…
25. At no time has defendant Parkin ever criminally prosecuted a drug dealer or prostitute…
27. The statement by the LBPOA that Parkin should be ‘re-elected’ City Attorney when Parkin has never been elected to that position implies that Parkin is an incumbent and violates section 18350 of the Election Code.
28. The statement by the AFL-CIO that Parkin should be ‘re-elected’ City Attorney when Parkin has never been elected to that position implies that Parkin is an incumbent and violates section 18350 of the Election Code.
29. The statement by Parkin on his campaign Website rendered in bold print for emphasis that Parkin is the incumbent City Attorney violates section 18350 of the Election Code.
30. The statement by the AFL-CIO that Parkin criminally prosecuted drug dealers and prostitutes is false and violates section 18350(b) of the Elections Code…” (Complaint, ¶¶ 1-6, 12-17 and 25-30).

4.c.iv. The only conduct, then, that Plaintiff complains of as against Parkin personally is in connection with Parkin’s website. Plaintiff mistakenly and improperly relies upon cases that are not controlling here such as cases involving statements made on an official election document, such as a ballot or an official initiative petition, as opposed to statements made in campaign literature. See San Francisco Forty-Niners v. Nishioka (1999) 75 C.A.4th 637, 647-650.

4.c.v. As Parkin points out, “[P’s] lawsuit goes to the very core of political speech and the democratic process—namely, a posting of a newspaper endorsement on Parkin’s election website. The activity that forms the alleged basis of the action fits within two types of statements and conduct protected by the anti-SLAPP law: (1) statements made in ‘place[s] open to the public or a public forum in connection with an issue of public interest’ (CCP § 425.16(e)(3)); and (2) other conduct in furtherance of the exercise of the constitutional right of free speech in connection with a public issue or an issue of public interest’ (CCP § 425.16(e)(4)).” (Motion, 7:5-12).

5. The court does not agree with Plaintiff’s contention that this case falls within the very narrow CCP §425.17(b) exception to the anti-SLAPP statute.

5.a. §425.17(b) reads as follows:

“(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.”

5.b. “Section 425.17(b)’s exception applies only to actions 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 C.4th 309, 316-317. “In addition, because section 425.17(b) is a statutory exception to section 425.16, it should be narrowly construed. (City and County of San Francisco v. Ballard (2006) 136 C.A.4th 381, 400).” Id. at 316.

5.c. Plaintiff alleges that he and Parkin were both candidates for the elected office of Long Beach City Attorney. He infers that Parkin was obtaining an unfair advantage in the election via the mailer, phone solicitation and newspaper article posted on Parkin’s website. It is clear that Plaintiff filed this instant lawsuit for personal political reasons as is shown by Plaintiff’s reference to this lawsuit during a candidates’ debate sponsored by the Long Beach Bar Association. (Parkin’s Supplemental Declaration, ¶ 6) and on his website. (Katherine Jenson [hereinafter, “Jenson”] Supplemental Declaration, ¶ 7).

5.d. In Club Members For An Honest Election v. Sierra Club (2008) 45 C.4th 309, 316-31, the CA Supreme Court has determined that the 425.17(b) exemption is not applicable in such scenarios. At page 317 the Supreme Court stated:

“[W]e reject CMHE’s argument that insertion of the word ‘or’ in Section 42517(b) (‘[Anti–SLAPP statute is not applicable to] any action brought solely in the public interest or on behalf of the general public’ (italics added)) means that section 425.17 protects suits brought on behalf of the general public even if the suit is not exclusively in the public interest. It makes little sense for the Legislature to provide that an action brought ‘in the public interest’ must be brought solely for that purpose, while an action brought ‘on behalf of the general public’ would allow a plaintiff to seek personal relief. Such an interpretation would render the first phrase useless because a plaintiff would simply invoke the second phrase, as CMHE attempts to do so in this case.” Sierra Club, supra, at 317, fn. 6.

6. Plaintiff may not now state that he was acting solely on behalf of the public, inasmuch as he was willing to drop the case once he was no longer in the race due to his elimination in the primary. (Jenson Supplemental Declaration, ¶ 2, Exhibit “A”).

7. Plaintiff cannot show how naming Parkin in this lawsuit promoted the public interest; as Parkin points out, “[a]s to [him], [P] alleges nothing more than the web posting of a newspaper endorsement that clearly specified that Mr. Parkin had been appointed to the position of City Attorney by the City Council.” (Reply, 4:14-16). The alleged actions of the LBPOA, the former City Attorney, and the City Prosecutor are not under the control of Parkin. (See Parkin Declaration, ¶¶ 9 & 10).

8. Also, Plaintiff does not establish that his personal stake was disproportionate to the financial burden of pursuing the case.

9 . Plaintiff Has Not Met His Burden

9.a. Once a defendant has made his/her/its prima facie showing that plaintiff’s complaint “arises from” their constitutionally protected free speech activity, “the burden shifts to plaintiff to establish a ‘probability’ that plaintiff will prevail on whatever claims are asserted against defendant. [See CCP § 425.16(b)].” Weil & Brown, supra, at ¶ 7:1005, p. 7(II)-52.

9.b. “’(P)laintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment.’ [Premier Med. Mgmt. Systems, Inc. v. California Ins. Guar. Ass’n (2006) 136 C.A.4th 464, 476 (emphasis in original; internal quotes omitted)—whether complaint could be amended to state valid claim is immaterial; see also Soukup v. Law Offices of Herbert Hafif (2006) 39 C.4th 260, 291].” Id. (emphasis theirs).

9.c “The burden is on plaintiff to produce evidence that would be admissible at trial—i.e., to proffer a prima facie showing of facts supporting a judgment in plaintiff’s favor. [Chavez v. Mendoza (2001) 94 C.A.4th 1083, 1087].” Id.. “The ‘probability of prevailing’ is tested by the same standard governing a motion for summary judgment, nonsuit, or directed verdict. I.e., in opposing a SLAPP motion, it is plaintiff’s burden to make a prima facie showing of facts that would support a judgment in plaintiff’s favor…” Id. at ¶ 7:1008, p. 7(II)-53 (emphasis theirs). “Plaintiff must present evidence to overcome any privilege or defense to the claim that has been raised, in order to demonstrate a ‘probability of success on the merits’…” Id. at ¶ 7:1015, p. 7(II)-54 (citation omitted).

9.d. Plaintiff has not shown that Parkin had anything to do with the campaign brochures that referenced him and used the word “re-elect” or to contradict Parkin’s assertion of lack of involvement. The sole allegation against Parkin in the complaint relates to his posting of the Long Beach Press Enterprise endorsement on his campaign website, which read as follows:

“We found the incumbents, current City Attorney Charles Parkin
and City Prosecutor Doug Haubert, to be the most suitable
candidates, and we endorse them heartily.

In the city attorney race, Mr. Parkin faces off against current Seventh
District Councilman and CSULB law professor James Johnson and
local civil rights attorney Matthew Pappas.

Last year, the City Council appointed Mr. Parkin, then an assistant city
attorney, to the head post following the departure of his long-serving
predecessor Bob Shannon.” (Complaint, Exhibit “2;” emphasis made by
Parkin campaign).

Moreover, Parkin did not author the subject article; he merely re-posted it and highlighted certain language.

10. Plaintiff fails to address Friends of Assemblywoman La Follette v. Superior Court (1982) 134 C.A.3d 832. In that case, Assemblywoman Marian La Follette (herein La Follette) had been elected to the 38th Assembly District in 1980 as it was then constituted. After the 1980 census, the Legislature altered the boundaries of the 38th Assembly District so that it included new communities. Less than two weeks before the 1982 Primary Election, a candidate for the Assembly from an opposing party sought an injunction to restrain La Follette from distributing a brochure which described her as representing the voters in those communities which had been added to the district since the last general election. The trial court granted a preliminary injunction against La Follette and her election committee and the committee sought a writ of mandate or prohibition to command dissolution of the injunction. The 2nd District, Division 4 granted the writ; in doing so, it concluded that, even if the material in the brochure had been incorrect regarding whether La Follette was the representative of the voters in the new communities, an injunction would not lie:

“Even if, arguendo, the statements in the election brochure were to
be deemed misstatements of fact, the proper forum to seek correction
is the public forum of the election process itself rather than through the
courts. The vitality of the right of each election candidate to speak freely
must be protected and preserved.

We are mindful of the words of the United States Supreme Court, in
another context, when dealing with the election process as it relates to
free speech under the First Amendment. In Brown v. Hartlage (1982) 56
U.S. 45, 61, he Supreme Court stated: ‘[A]lthough the state interest in
protecting the political process from distortions caused by untrue and
inaccurate speech is somewhat different from the state interest in
protecting individuals from defamatory falsehoods, the principles
underlying the First Amendment remain paramount. Whenever compatible
with the underlying interests at stake, under the regime of that
Amendment “we depend for … correction not on the conscience of judges
and juries but on the competition of other ideas.” Gertz v. Robert Welch,
Inc. [(1974) 418 U.S. 323,] at 339-340. In a political campaign, a
candidate’s factual blunder is unlikely to escape the notice of, and
correction by, the erring candidate’s political opponent. The preferred
First Amendment remedy of “more speech, not enforced silence,” Whitney
v. California (1927) 274 U.S. 357, 377, thus has special force…” Id. at 840.

11. For the foregoing reasons, the court finds that Plaintiff’s Complaint as against Defendant Parkin is subject to the Anti-SLAPP statute and must be GRANTED. The Plaintiff’s complaint is ordered stricken and the action is ordered dismissed as to Defendant Parkin. Dupont Merck Pharmaceutical Co. v. Superior Court 78 Cal.App.4th 562, 564. Attorney’s fees to Parkin are mandatory pursuant to CCP §425.16(c)(1). The court retains jurisdiction to make an order regarding attorney’s fees which should be presented by separate noticed motion. Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 611, 631.

IT IS SO ORDERED:

Frederick C. Shaller, Judge