MONTEBELLO, CITY OF v. VASQUEZ (ARAKELIAN ENTERPRISES)

Appellants’ Reply Brief on the Merits

Cal.January 26, 2015

$219052 IN THE Supreme Court OF THE STATE OF CALIFORNIA FILED CITY OF MONTEBELLO, Plaintiffand Respondent, JAN 26 2015 VS. Frank A. McGuire Clerk ROSEMARIE VASQUEZ,etal., Defendants andAppellants, Deputy ARAKELIAN ENTERPRISESINC., Intervener. REPLY BRIEF ON THE MERITS AFTER A DECISION BY THE COURT OF APPEAL SECOND APPELLATEDISTRICT, DIVISION ONE [2d Civil No. B245959] REVERE & WALLACE FRANK REVERE,BARNO. 32290 355 South Grand Avenue, Suite 2450 Los Angeles, California 90071-1560 (213) 943-1333 Attorneyfor Appellants ROSEMARIE VASQUEZ, ROBERT URTEAGA, KATHY SALAZARand RICHARD TORRES Lawyers Brief Service * Appellate Brief Printers + (213) 613-1013 * (626) 744-2988 3219052 IN THE Supreme Court OF THE STATE OF CALIFORNIA CITY OF MONTEBELLO, Plaintiffand Respondent, vs, ROSEMARIE VASQUEZ,etal., Defendants and Appellants, ARAKELIAN ENTERPRISESINC., Intervener. REPLY BRIEF ON THE MERITS AFTER A DECISION BY THE COURT OF APPEAL SECOND APPELLATEDISTRICT, DIVISION ONE [2d Civil No. B245959] REVERE & WALLACE FRANK REVERE,BARNO.32290 355 South Grand Avenue, Suite 2450 Los Angeles, California 90071-1560 (213) 943-1333 Attorneyfor Appellants ROSEMARIE VASQUEZ, ROBERT URTEAGA, KATHY SALAZARand RICHARD TORRES TABLE OF CONTENTS Page TABLE OF AUTHORITIES ..............000. 0. ccc ccc cece ence nes ii INTRODUCTION... 0...ccc ccc cence ccc ee cnnneennes 1 LEGAL DISCUSSION ........ 0... ccc ccc cee cece eee eee ences 1 A. THERE ARE NO EXEMPTIONS, STATUTORY OR OTHERWISE, WHICH BAR APPELLANTS FROM BRINGING AN ANTI-SLAPP MOTIONIN THIS CASE ........ I 1. The Public Enforcement Exemption Does Not Apply... 0...ccccence een eeeeenes 2 2. The City's Attempt To Create A New Exemption Under Section 425.16 For Complaints Alleging a Violation of Government Code Section 1090 Is Contrary To Decisions Of This Court 2.0... 0...enee e eens 8 3. The Mere Allegation of Illegal Conduct Does Not Bar an Anti-SLAPP Motion .................... cece eee 12 B. THE CITY FAILED TO RESPOND TO CASES AND ARGUMENTS MADEBYAPPELLANTS ................... 14 1. Political Contributions Do Not Equate To A Conflict of Interest .......0..... 0.00 ccc cece eee ee eee 15 2. The Court ofAppeal Decision In This Case Is In Conflict With San Ramon and Schwarzburd ............... 17 C. THE CITY'S INTERPRETATION OF THE BURDEN OF PROOF REQUIRED WOULD RENDER SECTION 425.16 A NULLITY IN CASES ALLEGING A CONFLICT OF INTEREST ......0.0..0.0..0. 000... c eee eee ee 18 D. THE ARGUMENT OF AMICI HAS BEEN REJECTED BY THIS COURT IN VARGAS...............0000. cee eee 19 CONCLUSION ..... 0... ccc ccc cee cee cece cee eeeneannns 22 CERTIFICATE OF COMPLIANCE .......... 2.0.00. cece cece eee eeeee 23 TABLE OF AUTHORITIES Page State Cases Briggs v. Eden Councilfor Hope & Opportunity (1999) 19 Cal. 4th 1106 2...cccence eee nes 9 City ofColton v. Singletary (2012) 206 Cal. App. 4th 751 2...ccccee eneee 5, 6, 8 City ofCotati v. Cashman (2002) 29 Cal. 4th 69 2.cececent nee e teen enes 9 City ofLong Beach v. California Citizensfor Neighborhood Empowerment (2003) 111 Cal. App. 4th 302 ................. 3,4, 5, 6, 8 City ofLos Angeles v. Animal Defense League (2006) 135 Cal. App. 4th 606 22.0...cece ee eee eee 4,8 Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 530 0.ccccence teen een eens 9 Estate ofMcDill (1975) 14 Cal. 3d 831 2...ccccen cnet n ene n ences 21 Flatley v. Mauro (2006) 39 Cal. 4th 299 2.cecee cent eens 12, 14 Jarrow Forumulas, Inc. v. La Marche (2003) 31 Cal. 4th 728 2...cece cee ees 4,5, 9, 10, 11, 19 Lefebvre v. Lefebrve (2011) 199 Cal. App.4th 696 2.0.0... ccc ccc cee cnet n teen eas 14 Lexin v. Superior Court (2010) 47 Cal. 4th 1050 0...cccccc cet n eee een neees 18 Mendoza v. ADP Screening and Selection Services, Inc. (2010) 182 Cal. App. 4th 1644 2.0...cencecnn 13 -ii- Page Navellier v. Sletten (2002) 29 Cal. 4th, 82 20.cccee cence ten nen ees 9 Schwarzburd et al v. Kensington Police Protection & Community Services District Board (2014) 225 Cal. App. 4th 1345 0ccccence ene 17, 18 Simpson Strong-Tie Company, Inc. v. Gore (2010) 49 Cal. 4th 12 ceee ene e ene ee nees 2 Vargas v. City ofSalinas (2009) CO OF.) 15, 19 Vargas v. City ofSalinas (2011) 200 Cal. App. 4th 1331 2...ccccen eee 20, 21 Woodland Hills Residents Association, Inc. v. City Council (1980) 26 Cal. 3d 938 2...ceceee tte e eee n ene eees 16 Federal Cases Buckley v. Valeo (1976) 424A US. occce tne e eee nent e cence nees 16 Nevada Com. on Ethics v. Carrigan (2011) 564 U.S. _, 131 S.Ct. 2343 occee ees 8, 9, 14, 15 Statutes Cal. Code of Civ. Proc. section 425.16 20... 0.cceee eee 5, 8-10, 12, 14-19, 21 section 425.16, subd. (d) ......... cece cette eens 1, 3,4, 6 section 425.17 ........... eee ee ee eee eee eee eee eee e eee 2 section 425.17, subd. (b) . 0... eecece teen eee enees 2 section 425.17, subd. (C) 20...eccee cence eee n eee 2 Section 527.8 (8) 0.0... cece ccc cc cee eee een eee n teen eens 4 - ili - Page Cal. Gov. Code section 1090.0...ccceee eee aes 2, 7,9, 12, 14-19 section 1097 2...ccceee eee cece eee eeeeeeaeees 8 section 36900...0.eeecece cece cece eeeeees 6 ~iv- Defendants and Appellants, Rosemarie Vasquez, Robert Urteaga, Kathy Salazar and Richard Torres (“Appellants”) hereby submit their Reply Brief on the Merits. INTRODUCTION The City's presentation of the facts consists largely of unsubstantiated allegationslifted from the unverified complaint on file in this action. In fact, the City concedesthatits version of the facts are nothing morethan allegations by prefacingits recitation of the facts on page four of the Answering BriefOn The Merits ("Answering Brief’) with the disclaimer "The City alleges that:.". Appellants have provided this Court with a summary ofthe facts that includes propercitations to the record in their Opening BriefOn The Merits ("Opening Brief") and ask that the City's allegations which are mischaracterized as facts be disregarded. LEGAL DISCUSSION A. THERE ARE NO EXEMPTIONS, STATUTORY OR OTHERWISE, WHICH BAR APPELLANTS FROM BRINGING AN ANTI-SLAPP MOTIONIN THIS CASE. The City presents two arguments in the attempt to deny Appellants the right to bring an anti-SLAPP motion. First, the City argues that the public enforcement exemption found in Cal. Code of Civ. Proc., section 425.16, subd. (d), bars Appellants’ anti-SLAPP motion. Next, the City argues that because the Complaint in this action alleges a violation of Government Codesection 1090, the Appellanis thereby forfeit any right to bring an anti-SLAPP motion. Both arguments are unavailing. 1. The Public Enforcement Exemption Does Not Apply. Bystatute there are three situations in which the anti-SLAPP statute is unavailable for defendants: (1) section 425.16, subd. (d), which exempts public enforcementactions; (2) section 425.17, subd. (b), which exempts actions brought "solely in the public interest"; and (3) section 425.17, subd. (c), which exempts causes of action that involve certain forms of commercial speech. The City asserts only the public enforcement exemption to this case as an applicable exemption and makesno argument that the two exemptions found in section 425.17 apply in this case so those exemptionswill not be addressed. Both the trial court and the Court of Appeal rejected the City's attempt to squeeze into the public enforcement exception, and with good reason. Asthe party benefitting from it, the City has the burden of proof to demonstrate the applicability of an exemption. Simpson Strong-Tie Company, Inc. v. Gore (2010) 49 Cal. 4th 12, 25. The City hasfailed to meet its burden of proofon this issue. The public enforcement exception is found at Code of Civil Proc. section 425.16, subd. (d) and provides: (d) This section shall not apply to any enforcementaction brought in the nameofthe people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor. Notwithstanding the fact that (1) this is not an enforcementaction, (2) is not broughtin the nameofthe people of the State of California, and (3) is not brought by the City Attorney in Montebello, the City nevertheless arguesit should fall within this exemption citing City ofLong Beach v. California Citizensfor Neighborhood Empowerment (2003) 111 Cal. App. 4" 302 ("City ofLong Beach"). In City ofLong Beach the City Attorney brought an enforcement action against a political fundraising group andits treasurer, seeking civil penalties and injunctive relief alleging that the fundraising group accepted contributions for independent expendituresin support of a mayoral candidate in excess ofthe limits set forth in the Long Beach Municipal Code, andfailed to timely report independent expenditures in violation of the Long Beach Municipal Code. The enforcementaction also sought injunctiverelief. Thetrial court granted the anti-SLAPP motion brought by the defendants, but the Court ofAppeal reversed. In reversingthetrial court, the Court of Appeal looked beyond the usual and ordinary meaning ofthe wordsin the statute to ascertain legislative intent, including statements by Governor Pete Wilson; the beliefs of the bill’s author Senator William Lockyer; and comments by the Assembly Subcommittee on the Administration of Justice. Jd. at p. 308. Ultimately, the Court of Appeal held that the complaint filed by the City ofLong Beachfell within the public enforcement exemption in section 425.16(d) even though the case was not brought in the name ofthe people of the state of California, and reversedthetrial court noting that if the defendant citizen group’s arguments were followed, then “‘any political subcommittee could avoid having to comply with local election laws.” Jd. at p. 309. However, subsequent to the City ofLong Beach decision, this Court issued the decision in Jarrow Forumulas, Inc. v. La Marche (2003) 31 Cal. 4" 728 ("Jarrow"), where the Court stated: As wepreviously have observed, “[n]Jothing in the statute itself categorically excludes any particular type of action from its operation.” (Navellier, supra, 29 Cal.4th at p. 92, 124 Cal.Rptr.2d 530, 52 P.3d 703.) ... The Legislature clearly knowshow to create an exemption from the anti-SLAPP statute when it wishesto do so. Id. at p. 735. Three yearslater in City ofLos Angeles v. Animal Defense League (2006) 135 Cal. App.4" 606, the City of Los Angeles soughtprotective orders under Codeof Civil Procedure Section 527.8(a) on behalf of some of its employees to shield them from workplace violence. The Court of Appeal acknowledged that previously in City ofLong Beachit had extended the plain languageofthe statute, but emphasized that “any further erosion of the specific requirements of that provision is unwarranted in light of this Court's decision in Jarrow v. La Marche (2003) 31 Cal. 4" 728, 735 ... that the plain language of section 425.16 is to be respected and that exceptionsto the statute’s broad reach must not be lightly implied...” Jd. at p. 620. The Court of Appeal furtherstated: Although section 425.16, subdivision (d), thus applies somewhat more broadly thantheliteral language of the provision may suggest, only actions brought by a governmental agency to enforce laws aimed generally at public protection qualify for this exemption to anti-SLAPP scrutiny. (Ud. at p. 618). Theforay into legislative history made by the Court of Appeal in City ofLong Beach wasagain rejected in 2012 in City ofColton v. Singletary (2012) 206 Cal. App. 4" 751 ("City ofColton") where the Court of Appealstated: Wedo not find Long Beach to be persuasive authority. The well-settled rule of statutory constructionis that “‘we look first to the words of the statute, giving the languageits usual ordinary meaning. If there is no ambiguity in the language [then] we presume the Legislature meant what it said, and the plain meaningofthe statute governs.” [Citation]” [Citation]” Long Beach, supra, 111 Cal. App. 4" at p. 305). The language of section 425.16 is clear and unambiguous:the subdivision applies only to lawsuits “brought in the name of the people of the state of California.” Accordingly, we disagree with the Long Beach opinion’s reasoning becauseit goes beyondthe plain languageofthe statute, despite the clarity of the statute’s wording. Id. at p. 777. The City ofColton decision also rejected the “absurd result” exception cited in the City ofLong Beach opinion which suggested that “any political committee could avoid having to comply with local election laws.” The Court ofAppeal in City ofColton noted because the violation of a city ordinance is a misdemeanorit may be prosecuted bycity authorities in the name ofthe people ofthe State ofCalifornia, citing Gov. Code Section 36900. Ibid. The City concedes, as it must, thatthis action is not brought bya city attorney acting as a public prosecutor but rather by a private attorney retained by the City. Nevertheless, the City makesa half-hearted attemptto excuse this non-compliance with the express language in section 425.16, subd. (d), by arguing that outside counsel hadto behiredto bring this action becauseof a purported conflict of interest. This alleged conflict of interest -- which is not mentioned in the Complaint in this action nor supported by a declaration of counsel offering any evidenceofthis alleged conflict -- is based solely on a declaration from William Molinari, the one- time Mayor ofMontebello who unsuccessfully attempted to have Appellants in this case prosecuted by the District Attorney. 3 CT 553-564. Molinari's declaration, which is dated July 18, 2011 -- over a year before this case waseverfiled -- was submitted in a different (but related) case and recites his version of events that took piace in the summerof2008 whenthe Athens Contract had been approved by the Montebello City Council. The portion of Molinari's declaration which supposedly supports the claimed conflict of interest reads as follows: 19. Instead, the City Attorney (whose firm had employedthe[sic] Mr.Chiappetta's daughter), the then City Administrator, and then Mayorpro tem Vasquez conspired to usurp the mayoralauthority .. . (3CT553) The most that may be gleaned from this parenthetical commentis that Mr. Chiappetta's daughter was employed at the same law firm as the City Attorney prior to August of 2008, but was no longer employed by the City Attorney's law firm in August of 2008. Neither Mr. Chiappetta norhis employer, Athens Services, is accused of a violation of Gov. Code section 1090 in this action. There is no explanation in the record why the employment ofMr. Chiappetta's daughter at the City Attorney's law firm in 2008 would create a conflict of interest in July of 2012 when the City filed this lawsuit that would require the City to hire separate outside counsel.! Nodeclarations are offered from the City Attorney, the attorney of record in this action, or anyone from the City to support this claim of conflict of interest. The City has offered absolutely no evidence to support its claim * No conflict was asserted when the City Attorney represented Montebello — in Torres v. City ofMontebello (CITE) from 2009 to 2011. There, the City Attorney stepped aside after a change in the makeup of the City Council resulted in the City abandoningits defense of the Athens Contract, and instead siding with Athens' competitors who financed the Torreslitigation. See Opening Brief, p. 10-11). that a conflict of interest causedit to hire outside counselto file this case, and evenif it had, there is no evidencethat counselis acting in the public prosecutorrole of the City Attorney. This case is not a criminal prosecution under Gov. Code section 1097, but is a civil action seeking declaratory relief. Here, the City's lawsuit against Appellants was not broughtin the nameofthe People of the State of California, nor is the City suing on an issue of state-wide concern because the waste hauling contract concerns only Montebello andits citizens. The departure from the usualrules ofstatutory construction that the ' City advocates is disfavored following this Court's opinion in Jarrow as well as the Court ofAppeal decisionsin City ofLos Angeles and City of Colton. TheCity's reliance on City ofLong Beach as authority for applying the public enforcement exemptionto this case should be soundly rejected. 2. The City's Attempt To Create A New Exemption Under Section 425.16 For Complaints Alleging a Violation of Government CodeSection 1090 Is Contrary To Decisions Of This Court. Appellants' Opening Briefdemonstrated that the plain language of section 425.16 affords far broader protection for petitioning activity and free speech than the protections under consideration in Nevada Com. on Ethics v. Carrigan (2011) 564 U.S. _, 131 S.Ct. 2343 ("Carrigan); and that appiying Carrigan to the facts of this case would be contrary to this Court's decisions in Briggs, Navellier and Vargas. The broad application of the anti-SLAPP statute mandated by section 425.16, subd. (a) has been repeatedly affirmed by this Court. See, Briggs v. Eden Councilfor Hope & Opportunity (1999) 19 Cal. 4th 1106, 1118 ["The Legislature's stated intent is best served, therefore by a construction of section 425.16 that broadly encompassesparticipation in official proceedings . . ."]; Jarrow Formulas Inc. v. La Marche, supra, 31 Cal. 4th at p. 734 ["Andin trio of opinionsissued last year, we held the plain language ofthe “arising from" prong encompassesany action based on protected speech or petitioning activity as defined in the statute. . ." (citing Navellier v. Sletten (2002) 29 Cal. 4th, 82, 89-95; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 58; and City of Cotati v. Cashman (2002) 29 Cal. 4th 69,750).] But the City's response to these judicial endorsements of the broad application of the anti-SLAPPstatute is simply to note that Briggs, Navellier and Jarrow did not involve claims of conflict of interest under Gov. Code section 1090, as if this somehow negates the broad application of section 425.16 and thereby renders section 425.16 unavailable to legislators accused of violating Gov. Code section 1090. Section 425.16 provides no exemption for conflict of interest causes of action and this Court has rejected previous attempts to carve out judicial exemptions for specific causes of action. For example, in Jarrow, this Court considered whether malicious prosecution claims should be exempted from the provisions of section 425.16. Plaintiff Jarrow, like the City in this case, argued that applying section 425.16 to malicious prosecution claims wouid have the effect of denying malicious prosecution victims a remedy. This Court rejected that claim stating: In asserting that the anti-SLAPPstatute, if applied, would have the effect of barring malicious prosecution claims, Jarrow “fall{s] prey ... to the fallacy that the anti-SLAPP statute allows a defendant to escape the consequences of wrongful conduct....” (Navellier, supra, 29 Cal.4th at p. 93, 124 Cal.Rptr.2d 530, 52 P.3d 703.) In fact, “the anti-SLAPP statute neither constitutes—norenables courts to effect—any kind of ‘immunity’.... When a ‘ “complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgmentif the evidence submitted by the plaintiff is credited” [citation], it is not subject to being stricken as a SLAPP." (/bid.) Id. at p. 738. The City's Answering Briefalso makes dire predictions about rampant public corruption if legislators and others public servants are permitted to use section 425.16: "Allowing public officials to use the Anti- SLAPP schemeas a means of avoiding the consequencesofself-dealing would in large part render Section 1090 meaningless." Answering Brief, p. 41. But again, similar predictions ofgloom and doomifsection 425.16 is given broad application have been soundly rejected by this Court because 10 sufficient statutory protections are in place so that meritorious claims can proceed. This wasbestillustrated in Jarrow wheretheplaintiff argued that allowing the anti-SLAPPstatute to be used in response to a malicious prosecution action would give a green light to parties and counselto bring meritless actions and would render unscrupulouslitigators and attorneys "exempt from any accountability for their acts." Jd. at p. 745. This Court rejected that argumentstating: Neither section 425.16 itself nor anything in our anti-SLAPP jurisprudence diminishesthe viability of meritorious malicious prosecution claims that may be articulated against such persons. The Legislature ... has provided, and California courts have recognized, substantive and procedural limitations that protect plaintiffs against overbroad application of the anti-SLAPP mechanism.” (Briggs, supra, 19 Cal.4th at pp. 1122-1123, 81 Cal.Rptr.2d 471, 969 P.2d 564.) “Courts deciding anti-SLAPP motions, for example, are empoweredto mitigate their impact by ordering, where appropriate, ‘that specified discovery be conducted notwithstanding’ the motion's pendency. [Citation.] And if ‘the court finds that a special motion tostrike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion.’ ” (Equilon, supra,) 29 Cal.Ath at p. 66, 124 Cal.Rptr.2d 507, 52 P.3d 685.) Thus, as we repeatedly have observed, the Legislature'sdetailed anti- SLAPP scheme“ensur[es] that claims with the requisite minimal merit may proceed.” (Navellier, supra,) 29 Cal.4th at p. 94, 124 Cal.Rptr.2d 530, 52 P.3d 703.) Id. at pp. 745-746. Finally, the Jarrow opinion declined to create a categorical exemption from the anti-SLAPPstatute for malicious prosecution claims noting that it was up to the Legislature to create exemptions from the 11 protections provided by section 425.16. Ibid. Likewisein this case, there exists no statutory ground or public policy reason to create a new exemption from section 425.16 for claims based on Gov. Code section 1090. 3. The Mere Allegation of Illegal Conduct Does Not Bar an Anti-SLAPP Motion The only judicially recognized exemption to the anti-SLAPP statute is found in Flatley v. Mauro (2006) 39 Cal. 4th 299, where this Court affirmed the denial of an anti-SLAPP motion in an action filed by an entertainer against an attorney alleging causes of action based on extortionate demands from the attorney whothreatened to go public with a rape allegation unlessthe plaintiffpaid a settlement of $100,000,000. The Flatley decision held that "[S]ection 425.16 cannot be invoked by a defendant whoseassertedly protected activity is illegal as a matter of law and for that reason, not protected by constitutional guarantees of free speech andpetition." Jd. at p.317. In holding that the defendant was precluded from using the anti-SLAPPstatute to strike plaintiffs complaint, the Flatley opinion limited the application of this bar to situations where "[E]ither the defendant concedes, or the evidence conclusively establishes, that the assertedly protected speech orpetition activity was illegal as a matter of law." Jd., at p. 320. The Flatley opinion wasalso careful to note 12 that this finding ofillegality as a matter of law is to be madeaspart of the first prong of the anti-SLAPPanalysis: Id. In reaching this conclusion, we emphasize that the question of whether the defendant's underlying conduct wasillegal as a matter of law is preliminary, and unrelated to the second prong question of whetherthe plaintiff has demonstrated a probability of prevailing, and the showing required to establish conduct illegal as a matter of law—ceither through defendant's concession or by uncontroverted and conclusive evidence—is not the same showingasthe plaintiff's second prong showing ofprobability of prevailing. Later cases also affirm the critical distinction betweena plaintiff's bare allegations of criminal acts and uncontroverted evidence of criminal acts. In Mendoza v. ADP Screening and Selection Services, Inc. (2010) 182 Cal. App. 4th 1644, the Court ofAppeal interpreted the term "illegal" to mean criminalillegality, and not merely the alleged violation of a statute. Ourreading ofFlatley leads us to conclude that the Supreme Court's use of the phrase “illegal” was intended to mean criminal, and not merely violative of a statute. First, the court in Flatley discussed the attorney's underlying conduct in the context of the Penal Code's criminalization of extortion. Second, a reading ofFlatley to push any statutory violation outside the reach of the anti-SLAPP statute would greatly weaken the constitutional interests which the statute is designed to protect. As SASScorrectly observes, a plaintiff's complaint always alleges a defendant engagedinillegal conductin that it violated some commonlaw standard of conductor statutory prohibition, giving rise to liability, and we decline to give plaintiffs a tool for avoiding the application of the anti-SLAPP statute merely by showing any statutory violation. 13 See also Lefebvre v. Lefebrve (2011) 199 Cal. App.4th 696 where the filing of a false police report -- which uncontroverted evidence showed wasin fact a false police report -- did not involve protected activity because it was uncontroverted that the act wasillegal. These cases confirm that the mere allegation ofillegal conductis insufficient to trigger the application of Flatley and barthe right of Appellants to bring a motion under section 425.16. Under Flatley, the underlying illegal conduct must be either concededasillegal by the defendants or conclusively established by the evidence, and neither of these events have occurred in this case. The defendants have vigorously denied all of the allegations of a violation of Gov. Code section 1090 in multiple declarations in the record. (Torres Decl. 2CT441; Urteaga Decl. 2CT445; Vasquez Decl. 2CT449; and, Salazar Decl. 2CT453) B. THE CITY FAILED TO RESPOND TO CASES AND ARGUMENTSMADEBY APPELLANTS. Appellants demonstrated in their Opening Briefthat the scope of section 425.16 extends well beyond the scope of Carrigan to includeacts in furtherance of a person's right of petition or free speech under the California Constitution in connection with a public issue. Rights guaranteed by the California Constitution are not dependent on those granted by the United States Constituion. Opening Brief, pp. 24-25. The 14 City failed to so muchas addressthe application of the California Constitution in its Answering Brief. Even more surprising wasthe failure of the City to so much as mention the case of Vargas v. City ofSalinas (2009) 46 Cal. 1, a decision of this Court that rejected the claim that speech by public officials or employeesacting in their official capacity is not protected activity under section 425.16. Ignoring Vargas, the City limits its analysis of Carrigan to the simple conclusory statement "The rule of Carrigan is clear: a legislator's vote is not protected activity." Answering Brief, p. 26. But no one disputes what Carrigan holds. The dispute is whether the scope of section 425.16 is broader than the narrow holding of Carrigan. The express statutory language of section 425.16 and the holdings ofNavellier and Vargas confirm that the scope of section 425.16 is indeed broader than the holding of Carrigan and any claim that a cause ofaction allegingillegal activity should be categorically exempt from the protections of section 425.16 was putto rest in Flatley and subsequent decisions followingit. Supra, pp. 12-15. 1. Political Contributions Do Not Equate To A Conflict of Interest. The only "evidence" offered by the City in support of the claim of a violation of Gov. Codesection 1090 and a resulting "cognizable interest" in the Athens Contractis that the three city council members who are 15 Appellants received political contributions-- fully reported political contributions -- from Athens. Appellants' Opening Briefexplained that the mere existence of political campaign contributions does not proveillegality or a violation of Gov. Code section 1090 citing Buckley v. Valeo (1976) 424 US. 1 and WoodlandHills Residents Association, Inc. v. City Council (1980) 26 Cal. 3d 938. Again, the City does not so much as mention these cases in its brief and instead attempts to avoid confronting its lack of evidence with the conclusory statement: "It is not the fact that contributions were madebutrather that the contributionsin this instance resulted in the formercity council members and city administrator having financial interests in securing the AEI contract, something whichis prohibited by Section 1090." Answering Brief, p. 38. This statement, which lacks any factual or evidentiary support, is simply stunningin its lack of understanding ofthe Constitutional protections afforded to political activity and the extensive bodyofpolitical case law authorizing political fundraising. Appellants have briefed the issue of whypolitical contributions do not equate to a violation of Gov. Codesection 1090 at pp. 42-47 of their Opening Briefand see no need to repeat those arguments here, particularly when the City has not bothered to address them. But if any one statementin this case illustrates why legislators should be permitted to use section 425.16 to promptly weed out politically motivated nuisancesuits, it is the statement by the City that fully 16 reported political contributions by Athens to three membersofthe Montebello City Council -- with nothing more -- must equate to an interest in the Athens Contract and thus a violation of Gov. Code section 1090. As this Court noted in Jarrow, the public enforcement exemption insures that actions involving violations of statutes (such as Gov. Codesection 1090) will be brought by the proper authorities. But as demonstrated above,this action is not brought by a party recognized in the public enforcement exemption andinstead in this action the City seeks only to escape repaying Athens the $500,000.00 franchise fee that the City gladly accepted in April 2009 before it changedits positionin thislitigation in 2011. See Opening Brief, pp. 10-11. 2. The Court of Appeal Decision In This CaseIs In Conflict With San Ramon and Schwarzburd. The City also claimsthat there is no conflict between the decision in this case and Schwarzburdet al v. Kensington Police Protection & Community Services District Board (2014) 225 Cal. App. 4th 1345 ("Schwarzburd") stating: "No conflict exists between the First District in Schwarzburd and the decision of the Second District in this case as the decisions are easily reconciled." Answering Brief, p. 22. The City concedes that both cases involved challenges to how legislators voted but again claims that the mere presence ofan alleged violation of Gov. Codesection 1090 should magically exempt the City's complaint from the protections 17 afforded the Appellants by section 425.16. The absenceof an alleged section 1090 violation in either Schwarzburd (or San Ramonfor that matter) does not renderthe holdingin that case a nullity. The express holdings of Schwarzburd, and a hostofothercases (see infra., p. 20) recognize that membersofa legislative body or district board have the right to bring an anti-SLAPP motion. Only this case stands alone as not recognizing that right. Reversal of the Court ofAppeal decision in this case will confirm uniformity in state law and recognize the right of a legislator to bring an anti-SLAPP motionin response to a meritless case challenging actions taken bya legislator. Cc. THE CITY'S INTERPRETATION OF THE BURDEN OF PROOF REQUIRED WOULD RENDER SECTION 423.16 A NULLITY IN CASES ALLEGING A CONFLICT OF INTEREST. Underthe interpretation ofLexin v. Superior Court (2010) 47 Cal. Ath 1050 ("Lexin") urged bythe City, the mere allegation ofreceipt of political contributionsis sufficient to meet the burden of proof underthe second prong ofsection 425.16, and establish a "cognizable interest" in the Athens Contract for the three former city council members. Such an overbroadinterpretation of the term "cognizableinterest" wouldeffectively deny legislatorsthe right to file a motion under section 425.16 anytime a conflict of interest is simply alleged to exist in a matter before a legislative 18 body involvinga past or future contributor. This attemptto create a backdoor exemption under section 425.16 for claims alleging a violation of Gov. Code section 1090 should likewise be rejected by this Court. Under Jarrow, supra, 31 Cal. 4th at 741 the City "must demonstrate that the Complaintis both legally sufficient and supported by aprimafacie showing offacts to sustain a favorable judgment," something the City's unsupportedallegations and character assassination have failed to do in this case. Simply stated, campaign contributions are not the functional equivalent of bribes as the City wrongfully asserts, and these bare allegations are insufficient to meet the burden of proof imposed on the City in the second prongofsection 425.16. D. THE ARGUMENTOFAMICI HAS BEEN REJECTED BY THIS COURTIN VARGAS. The brief ofAmicus Curiae urges this Court to find that absolutely no governmentalactivity qualifies for protection under section 425.16. In order to accomplish this result, the Court would have to overrule a substantial body of case law starting with Vargas and including a host of other cases including Schwarzburd. If this argument sounds vaguely familiar it is because Amici are represented by the same attorney who represented Mr. Vargasin this Court in Vargas v. City ofSalinas (2009) where the same arguments were rejected by this Court: 19 Althoughplaintiffs acknowledge that a long and uniform line of California Court ofAppeal decisions explicitly holds that governmental entities are entitled to invoke the protections of section 425.16 when suchentities are sued on the basis of statements or activities engagedin by the public entity or its public officials in their official capacity (see, e.g., Bradbury v. Superior Court (1996) 49 Cal. App. 4th 1108, 1113-1116, 57 Cal. Rptr. 2d 207; Schroderv. Irvine City Council (2002) 97 Cal. App. 4th 174, 183-814, 118 Cal. Rptr. 2d 330; San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees' Retirement Assn. (2004) 125 Cal. App. 4th 343, 353, 22 Cal. Rptr. 3d 724; Tutor-Saliba Corp. v. Herrera (2006) 136 Cal. App. 4th 604, 609, 39 Cal. Rptr. 3d 21; Santa Barbara County Coalition Against Automobile Subsidies v. Santa Barbara County Assn. ofGovernments (2008) 167 Cal. App.4th 1229, 1237-1238, 84 Cal. Rptr. 3d 714; Schaffer v. City and County ofSan Franciso (2008) 168 Cal. App. 4th 992, 1001-1004, 85 Cal. Rptr. 3d 880 (Schaffer), plaintiffs essentially contend that all of these decisions were wrongly decided and should be disapproved. Wereject plaintiffs’ contention. Whetheror not the First Amendmentofthe federal Constitution orarticle I, section 2 ofthe California Constitution directly protects government speech in general or the types of communications of a municipality that are challenged here—significant constitutional questions that we need not and do not decide— webelieveit is clear, in light ofboth the language and purpose of California's anti-SLAPPstatute, that the statutory remedy afforded by section 425.16 extends to statements and writings of governmentalentities and public officials on matters of public interest and concern that would fall within the scopeofthe statute if such statements were made by a private individualorentity. Id. at p. 17.7 * In the later attorneys’ fee litigation captioned Vargas v. City ofSalinas (2011) 200 Cal. App. 4th 1331 this argument wasalso rejected by the Third District Court ofAppeal. 20 The Vargas opinion wentonto note that subsequent amendments of section 425.16 by the Legislature after the many reported decisions recognizing the ability of public entities to bring a motion undersection 425.16 laid that questionto rest. /d. at p.19. See also Estate ofMcDill (1975) 14 Cal. 3d 831, 837-838 : "The failure of the Legislature to change the law in a particular respect whenthe subject is generally before it and changesin other respects are madeis indicative of an intent to leave the law as it stands in the aspects not amended." There is no dispute that the Vargas opinion soundly rejected the very arguments again put forth by Amici: In view ofthis legislative purpose and history, as well as the language of section 425.16, subdivision (e) and section 425.18, subdivision (i), discussed above, we conclude that section 425.16 may not be interpreted to exclude governmentalentities and public officials from its potential protection. Accordingly, we agree with the numerous Court ofAppeal decisions cited above (ante, 92 Cal.Rptr.3d at pp. 296-297, 205 P.3d at p. 216) that have reached this same conclusion. Id. at p. 19. In view ofthis clear rejection by this Court in 2009 of the arguments put forth by Amici, Appellants see no need to address these matters any further. 21 CONCLUSION For the foregoing reasons, Defendants and Appellants, Rosemarie Vasquez, Robert Urteaga, Kathy Salazar and Richard Torres, respectfully request rulings from this Honorable Court determining that (1) individual membersofa legislative body are entitled to rely on the anti-SLAPP statute in responseto actions challenging their votes or statements made in connection with an issue under consideration and review in an official proceeding authorized by law despite the holding in Nevada Commission on Ethics v. Carrigan; (2) individual membersofa legislative body may bring an anti-SLAPP motion in responseto an action challenging votes or statements made by those individuals in connection with an issue under consideration or review in an official proceeding authorized by law; and (3) parties challenging decisions made by individual membersofa public entity after discussion and vote at a public meeting are required to make a prima facie showing of the merits of their claim in the face of an anti- SLAPP motion. DATED:January 22, 2015. Respectfully submitted: REVERE & WALLACE BY: FRANK REVERE Attorneysfor Defendants and Appellants 22 CERTIFICATE OF COMPLIANCE Counsel of Record herebycertifies that pursuant to Rule 8.204(c)(1) and 8.360(b)(1) of the California Rules of the Court, the enclosed Reply Brief on the Merits of Defendants and Appellants, ROSEMARIE VASQUEZ, ROBERT URTEAGA, KATHY SALAZAR and RICHARD TORRESis produced using 13-point Times New Romantypeincluding footnotes and contain approximately 5,408 , which is less thanthetotal words permitted by the rules of the court. Counsel relies on the word count feature of the computer program, Microsoft Word 2010, used to prepare this brief. DATED: JanuaryWU 2015 REVERE & WALLACE By:Lon Frank Revere Attorney for Defendants and Appellants 23 REPLY BRIEF ON THE MERITS PROOF OF SERVICE BY MAIL In Re: REPLY BRIEF ON THE MERITS; No. S219052 Caption: CITY OF MONTEBELLO v. ROSEMARIE VASQUEZ,etal. Filed: IN THE SUPREME COURT OF THE STATE OF CALIFORNIA (Constructively filed on this date pursuant to CRC R. 8.25(b)(3)(B).) STATE OF CALIFORNIA ) ) ss: COUNTY OF LOS ANGELES ) Iam citizen ofthe United States and a resident of or employedin the County ofLos Angeles; I am overthe age of eighteen years and nota party to the within action; my business addressis: 200 East Del Mar Blvd., Suite 216, Pasadena, CA 91105. On this date, I served the persons interested in said action by placing one copy ofthe above-entitled documentin sealed envelopes with first-class postage fully prepaid in the United States post office mailbox at Pasadena, California, addressed as follows: LAUREN D. FRIEDMAN,ESQ. JOHN G. McCLENDON, ESQ. COURTNEYR. DREIBELBIS, ESQ. Leibold McClendon & Mann, PC Gibson, Dunn & Crutcher LLP 23422 Mill Creek Drive, Suite 105 3161 Michelson Drive Laguna Hills, CA 92653 Irvine, CA 92612 (Attorneys for City of Montebello) (Attorneys for Arakelian Enterprises Inc.) RAULF. SALINAS, ESQ. PAUL T. GOUGH,ESQ. MARY M. MONROE,ESQ. THOMASW. HILTACHK, ESQ. AlvaradoSmith Bell, McAndrews & Hiltachk, LLP 633 W.Fifth Street, Suite 1100 13406 Valleyheart Drive North Los Angeles, CA 90071 Sherman Oaks, CA 91423 (Attorneys for City of Montebello) (Attorneys for Arakelian Enterprises Inc.) CLERK, COURT OF APPEAL JOHN CLARKE, SECOND APPELLATE DISTRICT Los Angeles County Superior Court DIVISION ONE FOR: HON. ROLF TREU 300 S. Spring Street, Room 2217 111 North Hill Street, Room 105E Los Angeles, CA 90013-1213 Los Angeles, CA 90012 I certify (or declare) under penalty of perjury that the foregoingis true and correct. Executed on January 23, 2015, at Pasadena, California. a / (Sota len. E. Gonzales Lawyers BriefSerge * Appellate Brief Printers * (213) 613-1013 * (626) 744-2988 new number