Opinion
B245959
2014-01-01
CITY OF MONTEBELLO, Plaintiff and Respondent, v. Rosemarie VASQUEZ et al., Defendants and Appellants; Arakelian Enterprises Inc., Intervener.
See 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1025 et seq. APPEAL from a judgment of the Superior Court of Los Angeles County, Rolf Treu, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC488767)
As Modified May 30, 2014
Affirmed.
See 5 Witkin, Cal. Procedure (5th ed. 2008) Pleading, § 1025 et seq. APPEAL from a judgment of the Superior Court of Los Angeles County, Rolf Treu, Judge. Affirmed. (Los Angeles County Super. Ct. No. BC488767) Revere & Wallace, Frank Revere, Los Angeles, for Defendants and Appellants.
AlvaradoSmith, Raul F. Salinas, and Mary M. Monroe, Angeles; Leibold McClendon & Mann, John G. McClendon, Laguna Hills, for Plaintiff and Respondent.
Respondent City of Montebello (the City) sued appellants, Montebello City Council members Rosemarie Vasquez, Robert Urteaga, and Kathy Salazar, and city official Richard Torres, seeking declaratory relief for violations of Government Code section 1090, which prohibits city officers and employees from having a financial interest in any contract made by them in their official capacity. The trial court denied appellants' special motion to strike the complaint under Code of Civil Procedure section 425.16, the anti-SLAPP statute. On appeal, appellants contend the trial court erred in denying their motion because the City's lawsuit arises from protected activity and the City failed to demonstrate a probability of prevailing on the merits. We disagree and affirm.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
The City first argues its lawsuit is exempt from the anti-SLAPP statute pursuant to the public enforcement exemption under section 425.16, subdivision (d). Section 425.16, subdivision (d), provides that the anti-SLAPP statute “shall not apply to any enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor.” (§ 425.16, subd. (d).)
Relying on City of Long Beach v. California Citizens for Neighborhood Empowerment (2003) 111 Cal.App.4th 302, 3 Cal.Rptr.3d 473, the City argues the public enforcement exemption applies here because its lawsuit was brought in the name of the City of Montebello to enforce a law aimed at public protection. In City of Long Beach, the court determined that despite the statute's plain language exempting only actions “brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor,” it could reasonably infer the exemption “extended to all civil actions brought by state and local agencies to enforce laws aimed at consumer and/or public protection.” ( Id. at pp. 306, 308, 3 Cal.Rptr.3d 473.) The court therefore concluded the exemption applied to an action brought by the City of Long Beach. ( Id. at pp. 307–308, 3 Cal.Rptr.3d 473.)
In City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 142 Cal.Rptr.3d 74, the court disagreed. There, the court found the language of section 425.16, subdivision (d) to clearly and unambiguously apply only to an action “brought in the name of the people of the State of California.” ( Id. at pp. 775–776, 142 Cal.Rptr.3d 74.)
We agree with City of Colton that the plain language of section 426.15, subdivision (d) limits the public enforcement exemption to actions brought in the name of the people of the State of California, not to all civil actions brought by state and local agencies to enforce laws aimed at public protection. (See Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735, 3 Cal.Rptr.3d 636, 74 P.3d 737 [“The Legislature clearly knows how to create an exemption from the anti-SLAPP statute when it wishes to do so”].) This limitation is designed to exempt enforcement actions on issues of state-wide concern. Actions solely based on parochial issues are not aimed at protecting the citizenry at large and are thus undeserving of the exemption.
Here, the City's lawsuit against appellants was not brought in the name of the People of the State of California, nor is the City suing on an issue of state-wide concern. The waste hauling contract concerns only Montebello and its citizens. We therefore conclude the public enforcement exemption does not apply.
Appellants argue the council members' public statements and votes and Torres's actions relating to the Athens contract constituted protected activity within the meaning of section 425.16. We disagree. A legislator's vote and “acts of governance mandated by law, without more, are not exercises of free speech or petition.” ( Nev. Commission on Ethics v. Carrigan (2010) ––– U.S. ––––, 131 S.Ct. 2343, 2350, 180 L.Ed.2d 150; San Ramon Valley Fire Protection District v. Contra Costa County Employees' Retirement Association (2004) 125 Cal.App.4th 343, 354, 22 Cal.Rptr.3d 724.)
In Carrigan, a city council member challenged a Nevada law prohibiting a legislator who had a conflict of interest both from voting on a proposal and advocating for or against it, arguing the law violated the First Amendment. ( Nev. Commission on Ethics v. Carrigan, supra, 131 S.Ct. at p. 2345.) The United States Supreme Court held the restriction did not violate the legislator's right to free speech because a legislator's voting power does not constitute speech. The Supreme Court reasoned that because a legislator casts his vote as a political representative executing the legislative process on behalf of his constituents, he has no personal right in his vote. ( Id. at p. 2350.) A legislator's act of voting is therefore “conduct engaged in for an independent governmental purpose,” not an act of communication conveying the legislator's personal message. ( Id. at pp. 2350–2351.)
This ruling is directly contrary to dictum in Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 118 Cal.Rptr.2d 330, in which the court opined that “voting is conduct qualifying for the protections afforded by the First Amendment” and would therefore constitute protected activity under section 425.16. ( Id. at p. 183, fn. 3, 118 Cal.Rptr.2d 330.)
In San Ramon Valley Fire Protection District, the board of a county retirement system voted to require a fire protection district to increase its pension contributions to the retirement system. ( San Ramon Valley Fire Protection District v. Contra Costa County Employees' Retirement Association, supra, 125 Cal.App.4th at pp. 347–348, 22 Cal.Rptr.3d 724.) Seeking to contribute a lesser amount, the district sued the board for mandamus and declaratory relief. The board brought a special motion to strike under the anti-SLAPP statute, arguing its decision to require additional pension contributions after a public hearing and a majority vote of the board's members constituted protected activity. ( Id. at pp. 348–349, 353, 22 Cal.Rptr.3d 724.) The trial court denied the motion, and the appellate court affirmed, holding the board's adoption of a pension contribution requirement was not an exercise of free speech or the right to petition. ( Id. at pp. 346, 357, 22 Cal.Rptr.3d 724.)
The court observed that a contrary decision would significantly burden the petition rights of those seeking review of government actions. ( San Ramon V alley Fire Protection District v. Contra Costa County Employees' Retirement Association, supra, 125 Cal.App.4th at pp. 357–358, 22 Cal.Rptr.3d 724.) Because many public entity decisions are arrived at after discussion and a vote at a public meeting, petitioners challenging those decisions would be forced to make a prima facie showing of merit at the pleading stage, which would “chill the resort to legitimate judicial oversight over potential abuses of legislative and administrative power.” ( Id. at p. 358, 22 Cal.Rptr.3d 724.)
Here, the City's claim against Vasquez, Urteaga, and Salazar is based on the council members' votes to approve a contract in which they had a financial interest. Their acts of voting represented the commitment of their legislative power to the approval of a city contract, which did not implicate their own right to free speech nor convey any symbolic message (see Nev. Commission on Ethics v. Carrigan, supra, 131 S.Ct. at pp. 2350–2351), and therefore those acts fail to qualify as protected activity within the meaning of section 425.16. To hold otherwise would cause the anti-SLAPP statute to swallow all city council actions and require anyone seeking to challenge a legislative decision on any issue to first make a prima facie showing of the merits of their claim. (See San Ramon Valley Fire Protection District v. Contra Costa County Employees' Retirement Association, supra, 125 Cal.App.4th at pp. 357–358, 22 Cal.Rptr.3d 724.) We decline to extend the purview of the anti-SLAPP statute in such a manner.
Council members Vasquez, Urteaga, and Salazar rely on Holbrook v. City of Santa Monica (2006) 144 Cal.App.4th 1242, 51 Cal.Rptr.3d 181 to argue their actions in approving the Athens contract constitute protected legislative activity. Holbrook is distinguishable. There, an individual sued a city, its city council, and city council members, alleging that by running city council meetings late into the night and allowing public comment only at the end of the meeting, the defendants deprived the public of the fundamental right to address their local representatives. The complaint sought an injunction compelling the city council to end its meetings by 11:00 p.m. ( Holbrook v. City of Santa Monica, supra, 144 Cal.App.4th at pp. 1245–1246, 51 Cal.Rptr.3d 181.) The trial court granted defendants' special motion to strike, and the appellate court affirmed, holding the lawsuit arose from protected activity because it “[arose] from—and [was] designed to restrict the city council's ability to hold—public meetings during which council members exercise[d] their own freedoms of speech and petition in their interactions with other council members and with the public.” ( Id. at pp. 1246, 1248–1249, 51 Cal.Rptr.3d 181.) In the instant case, the lawsuit arose from, and was designed to restrict, the council members' acts of voting to approve a contract in which they had a financial interest, which does not implicate the exercise of the council members' own freedom of speech or petition.
The City's claim against Torres is based on his involvement in negotiating a contract in which he had a financial interest. Nothing about Torres's acts to negotiate a routine city contract as part of his job as City Administrator implicated his exercise of free speech or the right to petition.
Torres relies on Santa Barbara County Coalition Against Automobile Subsidies v. Santa Barbara County Association of Governments (2008) 167 Cal.App.4th 1229, 84 Cal.Rptr.3d 714 to argue his actions in negotiating the Athens contract constituted protected activity. This case is distinguishable. In Santa Barbara County, a non-profit political organization sued a local transportation authority, alleging the transportation authority engaged in a government-sponsored political campaign in favor of a ballot measure, and sought to enjoin it from advocating passage of the measure or expending funds for such advocacy. ( Id. at pp. 1234–1235, 84 Cal.Rptr.3d 714.) The trial court granted the transportation authority's special motion to strike, and the appellate court affirmed. The court noted section 425.16 “extends to government entities and employees that issue reports and take positions on issues of public interest relating to their official duties,” and held the lawsuit challenged conduct expressly defined by the anti-SLAPP statute as acts in furtherance of free speech rights, as the transportation authority made oral and written statements concerning the county's transportation issues in official proceedings and public forums, and those statements concerned issues of public concern (§ 425.16, subd. (e)). ( Id. at pp. 1237–1238, 84 Cal.Rptr.3d 714.)
Here, the City's complaint alleged Torres asked Athens to submit a proposal to become the exclusive waste hauling franchise in Montebello, and thereafter negotiated the terms of an exclusive contract on behalf of the City. Unlike the lawsuit in Santa Barbara County, which was based on a government entity's political campaign in favor of a ballot measure, the City's claim against Torres is predicated on his negotiation of the Athens contract, not on any actions publicly advocating for its passage. Nothing about Torres's duties as City Administrator to negotiate contracts on the City's behalf implicated Torres's right to take positions on issues of public interest.
We note that we do not hold a governmental act may never constitute protected speech within the meaning of section 425.16.
Appellants have failed to make a threshold showing that their challenged actions arose from protected activity within the meaning of section 425.16. We therefore need not reach the second prong of the anti-SLAPP analysis.
The judgment is affirmed. The City is entitled to recover costs on appeal.