City of Montebello v. Vasquez , 1 Cal. 5th 409 ( 2016 )

Filed 8/8/16
IN THE SUPREME COURT OF CALIFORNIA
CITY OF MONTEBELLO, )
)
Plaintiff and Respondent, )
) S219052
v. )
) Ct.App. 2/1 B245959
ROSEMARIE VASQUEZ et al., )
) Los Angeles County
Defendants and Appellants; ) Super. Ct. No. BC488767
)
ARAKELIAN ENTERPRISES INC., )
)
Intervener and Respondent. )
____________________________________)
The City of Montebello sued three of its former councilmembers and a
former city administrator, claiming they violated Government Code section 1090
by voting on a waste hauling contract in which they held a financial interest.1 It
sought to invalidate the contract and force defendants to disgorge campaign
contributions made by the company that was awarded the contract. Defendants
1 “[C]ity officers or employees shall not be financially interested in any
contract made by them in their official capacity . . . .” (Gov. Code, § 1090, subd.
(a).) We sometimes refer to Montebello as the “City.”
SEE CONCURRING AND DISSENTING OPINION
moved to strike the complaint under the anti-SLAPP statute. (Code Civ. Proc.,
§ 425.16.)2 The trial court denied the motion, and the Court of Appeal affirmed.
We hold, as did the courts below, that this case does not come within the
statutory anti-SLAPP exemption for public enforcement actions. However, the
votes cast in favor of the contract at issue were protected activity under section
425.16. The Court of Appeal’s judgment to the contrary is reversed.
I. BACKGROUND
In 2008, the franchise for residential waste collection in Montebello was
held by intervener Arakelian Enterprises, doing business as Athens Disposal
Company (Athens). Athens had been the City’s residential waste hauler for over
40 years, but a number of companies provided commercial waste services.
Athens’s executive vice-president, Dennis Chiapetta, was approached by
defendant Robert Urteaga, who suggested that Athens consider seeking an
exclusive commercial waste hauling contract.3
During subsequent negotiations over adjustments to the residential contract,
City representatives invited Athens to submit a proposal for a commercial and
industrial waste hauling contract. Chiapetta agreed. He negotiated primarily with
the city administrator, defendant Richard Torres, but also with the city attorney.
Chiapetta said Torres had previously opposed the idea of an exclusive contract,
but changed his mind because the waste hauling industry was undergoing
2 SLAPP is an acronym for “strategic lawsuit against public participation.”
(Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 57 (Equilon).)
Hereafter, unspecified statutory references are to the Code of Civil Procedure.
3 The timing of Urteaga’s initial contact with Chiapetta is not entirely clear.
Chiapetta’s deposition testimony unequivocally stated both that it occurred in
2008, and that Urteaga was not yet a member of the city council. However,
Urteaga was elected in 2007. The complaint alleges that the meeting occurred
“[e]ither before or shortly after his election.”
2
consolidation, landfills were preparing to close, and the City faced compliance
issues under the Integrated Waste Management Act (Pub. Resources Code,
§ 40000 et seq.). Under a proposed comprehensive contract, Athens would pay
the City $500,000, improve its residential services, and indemnify the City for any
failure to comply with the Integrated Waste Management Act.
At a city council meeting, more than 20 people spoke against the contract.
Nevertheless, it was approved by a three to two vote. Urteaga and codefendants
Kathy Salazar and Rosemarie Vasquez voted in favor. Mayor William Molinari
was in the minority. When presented with the finalized contract, Molinari
declined to sign it because of various misgivings. He sought the advice of the city
attorney, who told him he had a ministerial duty to execute the document. The
city attorney advised Molinari in writing that a decision not to sign would
“warrant a determination that for purposes of this Agreement only, you are
deemed ‘absent’ thus vesting in the mayor pro tem the authority to execute this
contract.” The city attorney stated he would instruct the mayor pro tem to sign,
with an annotation reflecting her authority to perform that duty in the mayor’s
absence.
Acting as mayor pro tem, Vasquez signed the contract with the city
attorney’s annotation. Thereafter, Molinari asked the Los Angeles County District
Attorney’s office to investigate possible money laundering by Salazar, along with
Brown Act violations by all three councilmembers who had voted for the contract.
(See Gov. Code, § 3500 et seq.) The office responded that Brown Act violations
could not be investigated without some evidence of an illegal closed session, but
that it would look into the money laundering allegation.
The district attorney’s office ultimately filed no charges against Salazar. Its
investigation revealed no impropriety in her alleged use of campaign donations
from Athens to make loans to a nonprofit organization where she served as
3
executive director. Nor did Athens’s donations to that organization disqualify
Salazar from voting on the Athens contract. There was no evidence she had
offered to vote for the contract in exchange for money. While a technical conflict
of interest might “possibly” be established under Government Code section 1090,
the district attorney did not believe Salazar had a corrupt motive in voting on the
Athens contract.
Montebello resident Mike Torres sued the City in April 2009, seeking to
invalidate the Athens contract on various grounds.4 The trial court denied an anti-
SLAPP motion filed by the City, and it appealed. Mayor Molinari and
Councilmember Vasquez were up for reelection in November 2009. Montebello
voters qualified a recall of Councilmembers Urteaga and Salazar, and a special
election was set for February 2010. Athens contributed $37,300 to defeat
Molinari, $45,000 to reelect Vasquez, and $352,912.73 to defeat the recall.5
Despite those efforts Molinari was reelected, Vasquez was not, and Urteaga and
Salazar were recalled. Richard Torres announced his retirement as city
administrator shortly after the November election.
The City abandoned its appeal in the Mike Torres action, and substituted
new counsel in place of the city attorney. In May 2011 it filed an amended
answer, declaring it no longer disputed the material allegations of the petition.
Athens, however, continued to defend its contract as real party in interest in the
Mike Torres litigation.
4 Mike Torres is evidently unrelated to defendant Richard Torres. His
lawsuit is distinct from the suit subsequently filed by the City, which is the subject
of this appeal.
5 The City does not dispute defendants’ claim that these contributions were
properly reported; indeed, it relies on the forms Athens filed with the Fair Political
Practices Commission as supporting evidence.
4
The City filed the action now before us in July 2012, represented by the
same outside counsel who took over in the Mike Torres case. The complaint
states a single cause of action against Urteaga, Salazar, Vasquez, and Richard
Torres for conflict of interest in violation of Government Code section 1090. It
seeks a declaration that the Athens contract is void, and an order requiring the
councilmember defendants to disgorge the campaign contributions they received
from Athens.
Three days after the City filed its complaint, the trial court in the Mike
Torres action issued a writ of mandate setting aside the Athens contract.6
Defendants then moved to strike the City’s complaint under the anti-SLAPP
statute. Noting that the Athens contract had been voided, they contended the
City’s action was little more than a politically driven attempt to punish them for
exercising their constitutional right of free speech in connection with issues of
public interest related to their official duties. The City claimed its action fell
within the public enforcement exemption of section 425.16, subdivision (d)
(hereafter, § 425.16(d)). Alternatively, the City argued that voting by public
officials is not protected under the First Amendment, citing Nevada Commission
on Ethics v. Carrigan (2011) 564 U.S. 117 (Carrigan). If the court were to
disagree and consider the likelihood of the lawsuit succeeding, the City maintained
that its case was sufficiently strong.
6 The court declared the contract void both because it imposed an
unconstitutional property-related fee, and because Vasquez lacked the authority to
sign it as mayor pro tem. That judgment was ultimately affirmed. The Court of
Appeal sustained the trial court’s findings that the contract was not validly
executed, and that Salazar had no improper financial interest in it. (Torres v. City
of Montebello (2015) 234 Cal. App. 4th 382, 389.)
5
The trial court denied the motion to strike. It ruled that the public
enforcement exemption did not apply because, contrary to the requirements of
section 425.16(d), the action was not “brought in the name of the people” by the
city attorney as a public prosecutor. Deciding that defendants’ actions were
protected activity for purposes of section 425.16, the court went on to consider the
likelihood the City would prevail. (§ 425.16, subd. (b)(1).) It found sufficient
evidence of a conflict of interest in the showing that Urteaga and Richard Torres
had encouraged Athens to seek an exclusive contract, and that Athens contributed
to the campaigns of Urteaga, Salazar, and Vasquez after the contract was
approved.
The Court of Appeal affirmed. It agreed that the public enforcement
exception did not apply. However, it held that defendants’ votes on the contract
were not protected activity under section 425.16. Accordingly, the court did not
review the question of whether the City could establish a probability it would
prevail. We address the exemption first, because its application would take the
case entirely out of the anti-SLAPP statutory scheme.
II. DISCUSSION
A. The Public Enforcement Exemption
The Legislature enacted section 425.16 in 1992, noting “a disturbing
increase in lawsuits brought primarily to chill the valid exercise of the
constitutional rights of freedom of speech and petition for the redress of
grievances.” (§ 425.16, subd. (a).) The statute authorizes defendants to file a
special motion to strike in order to expedite the early dismissal of unmeritorious
claims. (§ 425.16, subds. (b)(1), (f).) “[T]o encourage continued participation in
matters of public significance,” and to ensure “that this participation should not be
chilled through abuse of the judicial process,” the Legislature has specified that
the anti-SLAPP statute “shall be construed broadly.” (§ 425.16, subd. (a).)
6
The statute has always included an exemption for public enforcement
actions. (Stats. 1992, ch. 726, pp. 3523-3524.) Section 425.16(d) provides: “This
section 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.” A split of authority has developed on the
scope of this exemption. On one side, two opinions from the Second District
Court of Appeal have taken an expansive view. (City of Long Beach v. California
Citizens for Neighborhood Empowerment (2003) 111 Cal. App. 4th 302 (City of
Long Beach); City of Los Angeles v. Animal Defense League (2006) 135
Cal. App. 4th 606 (City of Los Angeles).) On the other, the Fourth District has
applied the statutory language narrowly. (City of Colton v. Singletary (2012) 206
Cal. App. 4th 751 (City of Colton).) We conclude that the narrow interpretation is
consistent with the statutory language and with our decisions construing
exceptions to the anti-SLAPP statute.
In City of Long Beach, the city sued an organization and its treasurer for
violating municipal campaign contribution limits. (City of Long Beach, supra, 111
Cal.App.4th at p. 304.) In response to the defendants’ anti-SLAPP motion, the
city claimed its action was exempt. The defendants argued that the exemption did
not apply because the action was “not brought in the name of the people of the
State of California,” as required by section 425.16(d). The Court of Appeal
agreed. It relied on legislative history to conclude that the public enforcement
exemption was meant to apply to actions in the name of local authorities, as well
as the people of California. In a brief opinion, the court conceded that the history
of section 425.16 was silent on this point. It referred instead to comments in a bill
analysis pertaining to a different statute: section 998, which governs cost awards
after offers to compromise. The Legislature added a public enforcement
7
exemption to section 998 in 2001, using terms identical to those of section
425.16(d). (§ 998, subd. (g)(2); Stats. 2001, ch. 153, § 1, p. 1444.)
The section 998 bill analysis explained that when section 425.16 was
enacted in 1992, subdivision (d) was included “[a]t the request of the Attorney
General’s office.” (Sen. Com. on Judiciary, Analysis of Assem. Bill No. 732
(2001–2002 Reg. Sess. July 3, 2001, p. 5.) “Legislative staff involved in the
drafting of the [anti-SLAPP] bill report that this provision was not included to
provide a special exemption that otherwise would have been considered
nonexistent, but rather to confirm the existence of the prosecutorial exemption
assumed by the drafters.” (Ibid.) The City of Long Beach court relied on this
passage to support its belief that the section 998 exemption was intended to “apply
broadly to ‘civil enforcement actions’ seeking injunctions, restitution and civil
penalties, but not damages.” (City of Long Beach, supra, 111 Cal.App.4th at p.
307.) Based on that inference, the court reasoned that nearly a decade after the
anti-SLAPP statute was enacted, “the Legislature understood the language at issue
in this case (albeit in the context of section 998) to encompass the type of lawsuit
now before us.” (Ibid.)
The court also noted that a committee analysis of the first anti-SLAPP bill,
which was ultimately vetoed, had reflected the Attorney General’s concern over
the unintended consequence of hindering enforcement of consumer protection
laws by local as well as state agencies. (City of Long Beach, supra, 111
Cal.App.4th at pp. 307-308.) It pointed out that the anti-SLAPP statute was meant
to thwart abusive lawsuits intended to chill the exercise of First Amendment
rights, whereas “ ‘[t]he prosecutor’s motive derives from the constitutional
mandate to assure that the laws of the state are uniformly enforced and to
prosecute any violation of these laws . . . .’ ” (Id. at p. 308.) The court declared
its unwillingness to allow political committees to “use section 425.16 as a shield
8
behind which to hide from otherwise valid local election regulations.” (Id. at p.
309.)
City of Los Angeles, decided by the same division of the Second District,
reaffirmed the City of Long Beach holding but declined to extend it further. Los
Angeles sought protective orders against animal rights activists who had protested
at a city employee’s home. (City of Los Angeles, supra, 135 Cal.App.4th at pp.
609-610.) The court reversed the denial of the protesters’ special motions to
strike. It maintained its earlier view that “although the express language of the
statute limits the exemption to enforcement actions ‘brought in the name of the
People of the State of California,’ an otherwise exempted enforcement action
brought in the name of a city or county itself, rather than ‘the People’ is not
necessarily outside the ambit” of section 425.16 (d). (City of Los Angeles, at p.
618, citing City of Long Beach, supra, 111 Cal.App.4th at pp. 307-308.)
Nevertheless, the court reasoned that “only actions brought by a governmental
agency to enforce laws aimed generally at public protection qualify for this
exemption to anti-SLAPP scrutiny.” (City of Los Angeles, at p. 618.) Because the
city was acting as an employer to protect its employee, not as a prosecutor
protecting the public interest, the exemption did not apply. (Id. at p. 619.)
The City of Los Angeles court acknowledged that City of Long Beach was
out of step with this court’s subsequent anti-SLAPP jurisprudence. “[A]lthough
[we] departed from the express language of section [425.16(d)], in [City of Long
Beach], supra, 111 Cal.App.4th at pages 307-308, when we applied the exemption
to a civil enforcement action that had not been brought literally ‘in the name of the
people of the State of California,’ any further erosion of the specific requirements
of that provision is unwarranted in light of the Supreme Court’s subsequent
admonition in Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal. 4th 728, 735,
that the plain language of section 425.16 is to be respected and that exceptions to
9
the statute’s broad reach must not be lightly implied: ‘The Legislature clearly
knows how to create an exemption from the anti-SLAPP statute when it wishes to
do so.’ (Jarrow Formulas, Inc. v. LaMarche, at p. 735.)” (City of Los Angeles,
supra, 135 Cal.App.4th at p. 620.)7
Subsequently, a divided court in the Fourth District disagreed with City of
Long Beach. In City of Colton, supra, 206 Cal. App. 4th 751, a developer sued to
enforce a contract with the city even though he had been convicted of procuring it
through bribery. When the city cross-complained, the developer filed an anti-
SLAPP motion to strike the city’s causes of action for unfair business practices
and injunctive relief. (Id. at pp. 758-759.) The City of Colton court rejected the
city’s claim that its cross-action qualified for the public enforcement exemption.
The majority disagreed with City of Long Beach over whether an action must be
brought in the name of the people to qualify for the exemption. It found the
reasoning in City of Long Beach inconsistent with the “clear and unambiguous”
terms of section 425.16(d). (City of Colton, at p. 777.)8 The dissent agreed that
the public enforcement exception did not apply, but for a different reason: it
deemed section 425.16(d) inapplicable because the action was not brought by the
city attorney. Therefore, the dissent found it unnecessary to disagree with City of
Long Beach. (City of Colton, at p. 794 (dis. opn. of Richli, Acting P. J.).)
7 In Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at page 735, we
declined to infer an exemption from section 425.16 for malicious prosecution
actions, mentioning section 425.16(d) to make the point that the Legislature knows
how to articulate exemptions when it so desires.
8 Addressing the City of Long Beach court’s concern that violations of local
campaign contribution laws might be shielded by the anti-SLAPP statute, the
Colton majority noted that violations of city ordinances may be prosecuted in the
name of the People of the State of California under Government Code section
36900, subdivision (a). (City of Colton, supra, 206 Cal.App.4th at p. 777.)
10
Both the majority and the dissent in City of Colton are correct. The terms
of section 425.16(d) unambiguously limit the scope of the exemption to
enforcement actions brought both “in the name of the people of the State of
California” and “by the Attorney General, district attorney, or city attorney, acting
as a public prosecutor.” The Legislature’s choice of this specific language reflects
its understanding that actions brought in the name of local entities, or by attorneys
other than the public officers identified in the statute, are not included in the
exemption.9
As to section 425.16, we have said that “ ‘[t]he plain language of the statute
establishes what was intended by the Legislature.’ [Citation.) ‘ “If the language is
clear and unambiguous there is no need for construction, nor is it necessary to
resort to [extrinsic] indicia of the intent of the Legislature . . . .” ’ [Citation.]”
(Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at p. 735; see Equilon,
supra, 29 Cal.4th at p. 61.) We may consult the legislative record to supply
context, but the fragments of history recited by the City of Long Beach court are at
best inconclusive. Moreover, expansive interpretation of exemptions from the
anti-SLAPP statute is inconsistent with the Legislature’s express intent that the
statute’s core provisions “shall be construed broadly.” (§ 425.16, subd. (a).) We
have repeatedly emphasized that the exemptions are to be “narrowly construed.”
(Simpson Strong-Tie Co. v. Gore (2010) 49 Cal. 4th 12, 22 [commercial speech
exemption of § 425.17, subd. (c)]; Club Members for an Honest Election v. Sierra
9 We note that various statutes authorize city attorneys to prosecute actions in
the name of the People of the state, including the Government Code section noted
by the City of Colton majority. (Gov. Code, § 36900; see, e.g., Bus. & Prof. Code,
§ 17206 [civil penalties for unfair competition under the UCL]; Civ. Code, § 52.1
[interference with civil rights]; Code Civ. Proc., § 731 [action to abate public
nuisance].)
11
Club (2008) 45 Cal. 4th 309, 316 [public interest exemption of § 425.17, subd.
(a)].)10
Here, the City’s action was not brought in the name of the People by the
city attorney’s office, acting as a public prosecutor. Instead, with private counsel
and in its own name, the City seeks to set aside a contract and obtain disgorgement
of campaign contributions. The action does not qualify for the public enforcement
exemption.
B. Protected Activity
In the absence of an applicable exemption, a special motion to strike under
section 425.16 involves a two-step process. First, the moving defendant must
make a prima facie showing “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,’ as defined in the statute.” (Equilon, supra, 29 Cal.4th at p. 67.) If the
defendant makes this initial showing of protected activity, the burden shifts to the
plaintiff at the second step to establish a probability it will prevail on the claim.
(Ibid.) The plaintiff need only state and substantiate a legally sufficient claim.
(Oasis West Realty, LLC v. Goldman (2011) 51 Cal. 4th 811, 820.) The plaintiff’s
evidence is accepted as true; the defendant’s evidence is evaluated to determine if
it defeats the plaintiff’s showing as a matter of law. (Ibid.) The procedure is
meant to prevent abusive SLAPP suits, while allowing “claims with the requisite
minimal merit [to] proceed.” (Navellier v. Sletten (2002) 29 Cal. 4th 82, 94.)
10 City of Long Beach v. California Citizens for Neighborhood Empowerment,
supra, 111 Cal. App. 4th 302, and City of Los Angeles v. Animal Defense League,
supra,135 Cal. App. 4th 606, are disapproved insofar as they are inconsistent with
this opinion.
12
The City contends defendants cannot make the threshold showing that their
votes fell within the scope of section 425.16. It relies on Carrigan, supra, 564
U.S. 117, for the proposition that voting by elected officials is not protected under
the First Amendment. In Carrigan, the Nevada Commission on Ethics ruled that a
city councilmember had violated a conflict of interest statute by voting to approve
a hotel/casino project on which his long-time friend and campaign manager had
worked as a paid consultant. (Id. at p. 120.) The councilmember challenged the
constitutionality of the statute. The Nevada Supreme Court sustained the
challenge, holding that the act of voting by a public officer is speech protected by
the First Amendment. (Id. at pp. 120-121; see Carrigan v. Commission on Ethics
(Nev. 2010) 236 P.3d 616, 621.)
The high court reversed, noting that conflict of interest rules are a long-
established feature of federal and state law. (Carrigan, supra, 564 U.S. at pp. 122-
124.) It reasoned that “restrictions upon legislators’ voting are not restrictions
upon legislators’ protected speech,” because “a legislator’s vote is the
commitment of his apportioned share of the legislature’s power to the passage or
defeat of a particular proposal. The legislative power thus committed is not
personal to the legislator but belongs to the people; the legislator has no personal
right to it.” (Id. at pp. 125-126.) “[T]he act of voting [is] . . . nonsymbolic
conduct engaged in for an independent governmental purpose.” (Id. at p. 127.)
The Court of Appeal below found Carrigan controlling. It concluded that
defendants’ votes on the Athens contract did not implicate their right to free
speech or convey any symbolic message. “To hold otherwise,” said the court,
“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.”
13
Carrigan, however, is not dispositive here. The Legislature did not limit
the scope of the anti-SLAPP statute to activity protected by the constitutional
rights of speech and petition. It went on to include “any act . . . in furtherance of”
those rights. (§ 425.16, subd. (b)(1), italics added.) We must give meaning to this
statutory term, under settled principles of statutory construction. (Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal. 4th 1106, 1118.) The
Legislature’s directive that the anti-SLAPP statute is to be “construed broadly” so
as to “encourage continued participation in matters of public significance”
supports the view that statutory protection of acts “in furtherance” of the
constitutional rights incorporated by section 425.16 may extend beyond the
contours of the constitutional rights themselves. (§ 425.16, subds. (a), (b)(1); see
Briggs, at pp. 1119-1120.)11
The Legislature spelled out the kinds of activity it meant to protect in
section 425.16, subdivision (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
11 As defendants point out, the Legislature saw fit to include the free speech
protections of both the state and federal Constitutions in the anti-SLAPP statute,
and “the California liberty of speech clause is broader and more protective than
the free speech clause of the First Amendment.” (San Leandro Teachers Assn. v.
Governing Bd. of San Leandro Unified School Dist. (2009) 46 Cal. 4th 822, 842;
see § 425.16(b)(1).) The Court of Appeal gave no consideration to defendants’
rights under our state Constitution. On the other hand, defendants make no
specific argument supporting broader protection under the liberty of speech clause
than under the First Amendment for votes cast by elected officials. We need not
consider that constitutional issue, given our conclusion on the scope of the
statutory protection provided by section 425.16.
14
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.”
Because of these specifications, courts determining whether a cause of
action arises from protected activity are not required to wrestle with difficult
questions of constitutional law, including distinctions between federal and state
protection of free expression. “The only means specified in section 425.16 by
which a moving defendant can satisfy the requirement is to demonstrate that the
defendant’s conduct . . . falls within one of the four categories described in
subdivision (e), defining subdivision (b)’s phrase, ‘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.’ ” (Equilon, supra, 29 Cal.4th at p. 66; see
Vargas v. City of Salinas (2009) 46 Cal. 4th 1, 17-18 (Vargas); Jarrow Formulas,
Inc. v. LaMarche, supra, 31 Cal.4th at p. 734; City of Cotati v. Cashman (2002) 29
Cal. 4th 69, 78.) As explained in Schaffer v. City and County of San Francisco
(2008) 168 Cal. App. 4th 992, courts determining whether conduct is protected
under the anti-SLAPP statute look not to First Amendment law, but to the
statutory definitions in section 425.16, subdivision (e). (Schaffer, at p. 1001;
accord, City of Costa Mesa v. D’Alessio Investments (2013) 214 Cal. App. 4th 358,
372; see Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010)
184 Cal. App. 4th 1539, 1548-1549.)
Requiring the moving party to make a constitutional case in support of
every anti-SLAPP motion would be inconsistent with the Legislature’s desire to
15
establish an efficient screening mechanism for “disposing of SLAPP’s quickly and
at minimal expense to taxpayers and litigants.” (Equilon, supra, 29 Cal.4th at p.
66.) The statutory categories provided in section 425.16, subdivision (e) provide
objective guidelines that lend themselves to adjudication on pretrial motion. (See
Equilon, at p. 65.) Here, the councilmembers’ votes, as well as statements made
in the course of their deliberations at the city council meeting where the votes
were taken, qualify as “any written or oral statement or writing made before a
legislative . . . proceeding.” (§ 425.16, subd. (e)(1).) Anything they or City
Administrator Torres said or wrote in negotiating the contract qualifies as “any
written or oral statement or writing made in connection with an issue under
consideration or review by a legislative . . . body . . . .” (§ 425.16, subd. (e)(2).)
No conflict arises between Carrigan’s rule that city council votes are not
protected by the First Amendment and the definitions of section 425.16,
subdivision (e), due to the leeway provided by the “in furtherance” term of the
statute. The councilmembers’ participation in the meeting that preceded the vote
was constitutionally protected activity. “[P]ublic meetings, at which council
members discuss matters of public interest and legislate, are conduct in
furtherance of the council members’ constitutional right of free speech in
connection with public issues and issues of public interest. ‘Under the First
Amendment, legislators are “given the widest latitude to express their views” and
there are no “stricter ‘free speech’ standards on [them] than on the general public.”
[Citation.]’ (Levy v. City of Santa Monica (2004) 114 Cal. App. 4th 1252, 1261.)”
(Holbrook v. City of Santa Monica (2006) 144 Cal. App. 4th 1242, 1247-1248; see
Bond v. Floyd (1966) 385 U.S. 116, 136; Carrigan, supra, 564 U.S. at pp.129-132,
conc. opn. of Kennedy, J.) The councilmember defendants’ votes were cast in
16
furtherance of their rights of advocacy and communication with their constituents
on the subject of the Athens contract.12
There is an important exception to the protections established by the
statutory categories set out in section 425.16, subdivision (e). In Flatley v. Mauro
(2006) 39 Cal. 4th 299 (Flatley), we held that “section 425.16 cannot be invoked
by a defendant whose assertedly protected activity is illegal as a matter of law and,
for that reason, not protected by constitutional guarantees of free speech and
petition.” (Flatley, at p. 317.) We emphasized that section 425.16 was expressly
intended to protect valid speech and petitioning activity. (Flatley, at p. 317; see
§ 425.16, subd. (a); Paul for Council v. Hanyecz (2001) 85 Cal. App. 4th 1356,
1365.)
The City contends the illegal conflict of interest that infected the
councilmember defendants’ votes deprives them of protection under section
425.16. This assertion of illegality is premature. The first step of the anti-SLAPP
analysis is limited to whether a claim arises from protected activity. We made it
clear in Flatley that conduct must be illegal as a matter of law to defeat a
defendant’s showing of protected activity. The defendant must concede the point,
or the evidence conclusively demonstrate it, for a claim of illegality to defeat an
12 We note that Carrigan’s holding has no application to defendant Richard
Torres. As the city administrator, he had no vote on the contract.
We also note that, unlike Carrigan, this case presents no issue concerning
the constitutionality of a statute restricting legislators’ participation in debate.
(See Carrigan, supra, 564 U.S. at pp. 121-122 [“If Carrigan was constitutionally
excluded from voting, his exclusion from ‘advocat[ing]’ at the legislative session
was a reasonable time, place and manner limitation”].) If the councilmember
defendants in this case had no conflict of interest, as they claim, there was no
restriction on their participation in the debate at the council or in their
consultations with constituents, even though Carrigan establishes that their votes
were not constitutionally protected.
17
anti-SLAPP motion at the first step. (Flatley, supra, 39 Cal.4th at pp. 316-318,
320.)
We do not minimize the seriousness of the City’s conflict of interest
allegations. However, at this early stage of the litigation, defendants vigorously
dispute those allegations, both as a matter of law and a question of fact. As to the
law, they rely on Woodland Hills Residents Assn., Inc. v. City Council (1980) 26
Cal. 3d 938, 945-947, which held that the Political Reform Act (Gov. Code, § 8100
et seq.) does not bar city councilmembers from acting on matters involving
contributors. We noted that campaign contributions are constitutionally protected,
and “do not automatically create an appearance of unfairness.” (Woodland Hills,
at p. 947.) The bribery statutes, as well as the Political Reform Act itself, provide
“[a]dequate protection against corruption and bias.” (Ibid.) In Lexin v. Superior
Court (2010) 47 Cal. 4th 1050, 1091-1092, we observed that Government Code
section 1090 et seq. are in pari materia with the Political Reform Act. Lexin
involved a statutory exception to Government Code section 1090’s conflict of
interest provision. (Lexin, at p. 1085 et seq.) We construed the relevant
Government Code provisions to be consistent with parallel Political Reform Act
provisions, rendering the laws regulating “government contracts consistent with
the laws governing government decisions more generally.” (Lexin, at p. 1092.)
On the facts, defendants deny any quid pro quo in connection with the
Athens campaign contributions. The City concedes that its claim depends on
inferences to be drawn from circumstantial evidence of the councilmember
defendants’ advocacy and votes in favor of the Athens contract, followed by their
receipt of the campaign contributions. This state of the case forecloses a
resolution at the first step of the anti-SLAPP inquiry. “If . . . a factual dispute
exists about the legitimacy of the defendant’s conduct, it cannot be resolved within
the first step but must be raised by the plaintiff in connection with the plaintiff’s
18
burden to show a probability of prevailing on the merits.” (Flatley, supra, 39
Cal.4th at p. 316.)
Accordingly, the City’s reliance on the alleged illegality of defendants’
conduct gains it no traction on the question of whether its cause of action arises
from protected activity. The Court of Appeal did not reach the second-step issue
of whether the City could establish a likelihood of success. It will have the
opportunity to do so on remand.
We address one other matter that troubled the Court of Appeal: the concern
that affording anti-SLAPP protection to these defendants would chill the rights of
those seeking to challenge legislative decisions. The court’s apprehension was
based on a misreading of San Ramon Valley Fire Protection Dist. v. Contra Costa
County Employees’ Retirement Assn. (2004) 125 Cal. App. 4th 343 (San Ramon).
In San Ramon, a fire district challenged a county retirement board’s decision to
increase contributions payable by the district and its employees. (Id. at pp. 347-
348.) The court affirmed the denial of an anti-SLAPP motion, holding that the
board’s “collective action” in requiring additional contributions did not implicate
its “rights of free speech or petition.” (Id. at p. 353.)
The San Ramon court drew a distinction between action taken by a
government body and the expressive conduct of individual representatives. “[T]he
fact that a complaint alleges that a public entity’s action was taken as a result of a
majority vote of its constituent members does not mean that the litigation
challenging that action arose from protected activity, where the measure itself is
not an exercise of free speech or petition. Acts of governance mandated by law,
without more, are not exercises of free speech or petition.” (San Ramon, supra,
19
125 Cal.App.4th at p. 354.)13 The court noted that “an action against individual
lawmakers, challenging their vote cast in the exercise of individual legislative
prerogative,” might arguably “be held to arise from conduct in the furtherance of
the exercise of speech rights, protected by section 425.16.” (San Ramon, at p.
356.) No individual board members were sued in San Ramon, however, so the
court did not reach that question.
Here, the Court of Appeal seized on the San Ramon court’s observation that
holding acts of governance to be protected activity under section 425.16 “would
significantly burden the petition rights of those seeking mandamus review for
most types of governmental action. Many of the public entity decisions
reviewable by mandamus or administrative mandamus are arrived at after
discussion and a vote at a public meeting. [Citation.] If mandamus petitions
challenging decisions reached in this manner were routinely subject to a special
motion to strike,” the result would be to “chill the resort to legitimate judicial
oversight over potential abuses of legislative and administrative power . . . .” (San
Ramon, supra, 125 Cal.App.4th at pp. 357-358.)
These comments pertained only to the San Ramon court’s reservations
about burdening actions challenging government decisions, not the acts of
13 In Vargas, we made it clear that when a public entity’s act is one taken in
furtherance of the right of free expression, it is protected by section 425.16. At
issue in that case were a city’s publicly funded communications opposing a
pending ballot measure. We concluded that this advocacy was protected activity:
“[T]he statutory remedy afforded by section 425.16 extends to statements and
writings of governmental entities and public officials on matters of public interest
and concern that would fall within the scope of the statute if such statements were
made by a private individual or entity.” (Vargas, supra, 46 Cal.4th at p. 17.) The
Vargas holding has no application here. Defendants’ participation in the making
of a government contract is not expressive activity of the kind that might be
engaged in by private individuals or entities.
20
individual officials. It is not necessary to sue government officers in their personal
capacities to challenge the propriety of a government action. Notably, here the
Athens contract was successfully challenged in a citizen’s suit brought against the
City. We have observed that the Legislature was specifically concerned with
actions against public officials as individuals when it reconsidered the scope of
section 425.16 in 1997. (Vargas, supra, 46 Cal.4th at pp. 18-19.)
“Section 425.16 was first enacted in 1992. In 1997, in response to several
Court of Appeal decisions that had narrowly construed the scope of the statute, the
Legislature amended the measure to clarify its intent that the provisions of the
statute are to be interpreted broadly. (Stats. 1997, ch. 271, § 1 [amending §
425.16, subd. (a)].) A legislative analysis of this amendment approvingly quoted a
passage from a then recent law review article that identified as ‘a typical SLAPP
suit scenario’ a situation in which an abusive lawsuit is brought against both
public officials and private individuals. (Assem. Com. on Judiciary, Analysis of
Sen. Bill No. 1296 (1997–1998 Reg. Sess.) as amended June 23, 1997, p. 2,
quoting Sills, SLAPPS: How Can the Legal System Eliminate Their Appeal?
(1993) 25 Conn. L.Rev. 547 (Sills article).” (Vargas, supra, 46 Cal.4th at p. 19,
fn. 9.) “ ‘Just as SLAPPs filed against individuals have a ‘chilling’ effect on their
participation in government decision making, SLAPPs filed against public
officials, who often serve for little or no compensation, may likely have a similarly
‘chilling’ effect on their willingness to participate in governmental processes.’ ”
(Ibid., quoting the Sills article, supra, at p. 550.)
The San Ramon court’s distinction between public agencies and individual
officials was reaffirmed in Schwarzburd v. Kensington Police Protection &
Community Services Dist. Bd. (2014) 225 Cal. App. 4th 1345 (Schwarzburd), which
also centered on votes by public representatives. There, a local board as well as
individual board members were named respondents in a writ proceeding
21
challenging a merit bonus awarded to a city official. (Id. at p. 1349.) The court
followed San Ramon in holding that the action did not arise from protected
activity insofar as it targeted the board as an entity. (Id. at p. 1353.) However, it
held that the actions of the individual board members were protected by the anti-
SLAPP statute. The petition claimed they had violated board policy by voting to
extend a meeting, and discussing and voting on a matter that was not properly
noticed. They were sued not “simply because they voted, but based on how they
voted and expressed themselves.” (Id. at p. 1355.)
The Schwarzburd court noted that the claims against the board members
arose out of “protected First Amendment voting and legislative deliberative
activities,” without considering Carrigan’s holding precluding First Amendment
protection for votes. (Schwarzburd, supra, 225 Cal.App.4th at p. 1353.) Its
conclusion, however, is consistent with our reasoning that votes taken after a
public hearing qualify as acts in furtherance of constitutionally protected activity.
And Schwarzburd, like this case, demonstrates that elected officials may assert the
protection of section 425.16 when sued over how they voted without chilling
citizens’ exercise of their right to challenge government action by suing the public
entity itself.
22
III. DISPOSITION
We reverse the Court of Appeal’s judgment, and remand for further
proceedings consistent with the views expressed above.
CORRIGAN, J.
WE CONCUR:
CANTIL-SAKAUYE, C. J.
WERDEGAR, J.
CHIN, J.
CUÉLLAR, J.
23
CONCURRING AND DISSENTING OPINION BY LIU, J.
The City of Montebello (City) sued three of its former councilmembers and
a former city administrator, claiming they violated Government Code section 1090
by voting for a waste-hauling contract in exchange for campaign contributions
from the contractor. Defendants filed an anti-SLAPP motion under Code of Civil
Procedure section 425.16, subdivision (b)(1) (hereafter section 425.16(b)(1)),
claiming that their votes were acts in furtherance of their constitutional right to
free speech. Settled law makes clear that the vote of a legislator is not protected
activity under the First Amendment to the United States Constitution, and the free
speech clause of the California Constitution (art. I, § 2, subd. (a)) provides no
independent basis for such protection. Yet the court concludes that the anti-
SLAPP statute protects the councilmembers’ votes anyway.
Today’s decision expands the anti-SLAPP statute beyond its proper bounds,
making it harder to combat public corruption in government contracting and other
abuses of power. Because the anti-SLAPP statute does not cover the act of voting
by an elected official, I respectfully dissent from today’s contrary holding.
Government Code section 1090, subdivision (a) states that “city officers or
employees shall not be financially interested in any contract made by them in their
official capacity, or by any body or board of which they are members.” This
statute reflects the “truism that a person cannot serve two masters simultaneously.”
(Thomson v. Call (1985) 38 Cal. 3d 633, 637.) “The duties of public office
demand the absolute loyalty and undivided, uncompromised allegiance of the
individual that holds the office.” (People v. Honig (1996) 48 Cal. App. 4th 289,
314.) Section 1090 recognizes that “ ‘an impairment of impartial judgment can
occur in even the most well-meaning men when their personal economic interests
are affected by the business they transact on behalf of the Government.’ ” (Stigall
v. City of Taft (1962) 58 Cal. 2d 565, 570, quoting U.S. v. Mississippi Valley
Generating Co. (1961) 364 U.S. 520, 549.)
The defendant councilmembers, facing a lawsuit alleging that their votes on
the waste-hauling contract violated Government Code section 1090, filed an anti-
SLAPP motion pursuant to section 425.16(b)(1), which states: “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 Constitution or the
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.”
The question is whether the councilmembers’ votes were acts in furtherance of
their constitutional right of free speech under section 425.16(b)(1).
In Nevada Commission on Ethics v. Carrigan (2011) 564 U.S. 117
(Carrigan), the United States Supreme Court held that a legislator’s vote is not an
exercise of speech protected by the First Amendment. Instead, “a legislator’s vote
is the commitment of his apportioned share of the legislature’s power to the
passage or defeat of a particular proposal. The legislative power thus committed is
not personal to the legislator but belongs to the people; the legislator has no
personal right to it. . . . [T]he legislator casts his vote ‘as trustee for his
constituents, not as a prerogative of personal power.’ In this respect, voting by a
legislator is different from voting by a citizen. While ‘a voter’s franchise is a
personal right,’ ‘[t]he procedures for voting in legislative assemblies . . . pertain to
2
legislators not as individuals but as political representatives executing the
legislative process.’ ” (Id. at pp. 125–126.)
Although the California Constitution’s free speech clause (Cal. Const., art.
I, § 2, subd. (a)) has sometimes been interpreted more broadly than the First
Amendment, “defendants make no specific argument supporting broader
protection under the liberty of speech clause than under the First Amendment for
votes cast by elected officials.” (Maj. opn., ante, at p. 14, fn. 11.) Nothing in the
language or history of California’s free speech clause suggests a concern with
protecting legislative votes, and I see no reason to depart from Carrigan’s sound
analysis in construing our state constitutional guarantee. The act of voting by a
municipal legislator is not an exercise of the “right of petition or free speech under
the United States Constitution or the California Constitution.” (§ 425.16(b)(1).)
Today’s opinion nonetheless concludes that the councilmembers’ votes are
protected activity under section 425.16(b)(1) because, in the court’s view, the
statute’s language covering “any act . . . in furtherance of” the constitutional right
of petition or free speech broadens the scope of protected activities “beyond the
contours of the constitutional rights themselves.” (Maj. opn., ante, at p. 14.) Code
of Civil Procedure section 425.16, subdivision (e) (hereafter section 425.16(e))
defines the phrase “ ‘act in furtherance of [a constitutional] right of petition or free
speech’ ” to 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” and “(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.” The court
says the councilmembers’ votes fall within these definitions. (Maj. opn., ante, at
p. 16.)
3
I do not read today’s opinion to mean that a legislator’s act of voting
qualifies as a “written or oral statement or writing” under sections 425.16(e)(1)
and 425.16(e)(2) simply because it involves the legislator writing or saying the
word “yea” or “nay” during a legislative proceeding. If that were the case, then
arguably electronic voting (pushing a button “yea” or “nay”) would fall outside the
scope of this language. As the catchall category of section 425.16(e) makes clear,
sections 425.16(e)(1) and 425.16(e)(2) are intended to capture types of “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.” (§ 425.16(e)(4).) The dispositive question here is whether a
legislator’s act of voting is a type of conduct in furtherance of the constitutional
right of free speech.
On this question, the court says: “Beyond doubt, the councilmembers’
participation in the meeting that preceded the vote was constitutionally protected
activity. ‘[P]ublic meetings, at which council members discuss matters of public
interest and legislate, are conduct in furtherance of the council members’
constitutional right of free speech in connection with public issues and issues of
public interest. “Under the First Amendment, legislators are ‘given the widest
latitude to express their views’ and there are no ‘stricter “free speech” standards
on [them] than on the general public.’ [Citation.]” [Citation.]’ [Citations.] The
councilmember defendants’ votes were cast in furtherance of their rights of
advocacy and communication with their constituents on the subject of the Athens
contract.” (Maj. opn., ante, at pp. 16–17, fn. omitted.)
But this last sentence characterizing the councilmembers’ votes runs
directly counter to the reasoning in Carrigan. There the high court considered and
rejected the argument that a legislator’s act of voting has an “ ‘expressive
character’ ” (Carrigan, supra, 564 U.S. at p. 128) of the sort posited above:
4
“Carrigan and Justice Alito say that legislators often ‘ “us[e] their votes to express
deeply held and highly unpopular views, often at great personal or political
peril.” ’ [Citation.] How do they express those deeply held views, one wonders?
Do ballots contain a check-one-of-the-boxes attachment that will be displayed to
the public, reading something like ‘( ) I have a deeply held view about this; ( ) this
is probably desirable; ( ) this is the least of the available evils; ( ) my personal
view is the other way, but my constituents want this; ( ) my personal view is the
other way, but my big contributors want this; ( ) I don’t have the slightest idea
what this legislation does, but on my way in to vote the party Whip said vote
“aye” ’? There are, to be sure, instances where action conveys a symbolic
meaning—such as the burning of a flag to convey disagreement with a country’s
policies, [citation]. But the act of voting symbolizes nothing. It discloses, to be
sure, that the legislator wishes (for whatever reason) that the proposition on the
floor be adopted, just as a physical assault discloses that the attacker dislikes the
victim. But neither the one nor the other is an act of communication. [Citation.]
“Moreover, the fact that a nonsymbolic act is the product of deeply held
personal belief—even if the actor would like it to convey his deeply held personal
belief—does not transform action into First Amendment speech. Nor does the fact
that action may have social consequences—such as the unpopularity that cost John
Quincy Adams his Senate seat resulting from his vote in favor of the Embargo Act
of 1807, [citation]. However unpopular Adams’ vote may have made him, and
however deeply Adams felt that his vote was the right thing to do, the act of voting
was still nonsymbolic conduct engaged in for an independent governmental
purpose.” (Carrigan, supra, 564 U.S. at pp. 126–127.)
Suppose a councilmember in this case had said before casting his vote, “I
am voting for this waste-hauling contract because I believe it’s the best value for
the City’s money.” What Carrigan elucidates is that while this statement has
5
expressive value and is protected speech, the councilmember’s act of voting itself
has no additional expressive value over and above the accompanying statement.
(See Carrigan, supra, 564 U.S. at p. 127 [analogizing to Rumsfeld v. Forum for
Academic and Institutional Rights, Inc. (2006) 547 U.S. 47, 66, as an instance
where “expressive value was ‘not created by the conduct itself but by the speech
that accompanies it’ ”].) As noted, “a legislator’s vote is the commitment of his
apportioned share of the legislature’s power to the passage or defeat of a particular
proposal”; beyond that, it “symbolizes nothing.” (Carrigan, at pp. 125–126.) A
legislator’s vote therefore cannot be understood as an act “in furtherance of” the
constitutional right of free speech within the meaning of section 425.16.
The court’s contrary holding will make it harder to enforce civil laws against
public corruption. “[U]nder Code of Civil Procedure section 425.16, subdivision (c),
any SLAPP defendant who brings a successful motion to strike is entitled to
mandatory attorney fees. The fee-shifting provision was apparently intended to
discourage such strategic lawsuits against public participation by imposing the
litigation costs on the party seeking to ‘chill the valid exercise of the constitutional
rights of freedom of speech and petition for the redress of grievances.’ (Id., subd.
(a).)” (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1131.) We have recognized that a
fee-shifting statute that awards attorney fees to prevailing defendants carries the risk
of chilling meritorious lawsuits. (Williams v. Chino Valley Independent Fire Dist.
(2015) 61 Cal. 4th 97, 101.) Today’s extension of anti-SLAPP protections, including
attorney fees for prevailing defendants, to the act of voting by legislators will
potentially lead to underenforcement of Government Code section 1090 as well as
other conflict of interest laws designed to ensure integrity and deter abuse of power in
government decisionmaking on matters beyond public contracting. (See Gov. Code,
§§ 8920, subd. (b)(5), 84308, subd. (c), 87100 et seq.)
6
For the reasons above, I would affirm the judgment of the Court of Appeal
on the ground that the defendant councilmembers’ votes were not protected by
Code of Civil Procedure section 425.16. In all other respects, I join the opinion of
the court.
LIU, J.
I CONCUR:
KRUGER, J.
7
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion City of Montebello v. Vasquez
__________________________________________________________________________________
Unpublished Opinion
Original Appeal
Original Proceeding
Review Granted XXX 226 Cal. App. 4th 1084
Rehearing Granted
__________________________________________________________________________________
Opinion No. S219052
Date Filed: August 8, 2016
__________________________________________________________________________________
Court: Superior
County: Los Angeles
Judge: Rolf M. Treu
__________________________________________________________________________________
Counsel:
Revere & Wallace and Frank Revere for Defendants and Appellants.
AlvaradoSmith, Raul F. Salinas, Mary M. Monroe; Leibold McClendon & Mann, Leibold McClendon and
John G. McClendon for Plaintiff and Respondent.
Joseph T. Francke and Steven J. André for Californians Aware, First Amendment Coalition, First
Amendment Project, Penelope Canan, Michael Harris, Libertarian Law Council, Klaus J. Kolb and Center
for Constitutional Jurisprudence as Amici Curiae on behalf of Plaintiff and Respondent.
No appearance for Intervener and Respondent.
Janis L. Herbstman for California State Association of Counties and League of California Cities as Amici
Curiae.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Frank Revere
Revere & Wallace
355 South Grand Avenue, Suite 2450
Los Angeles, CA 90071-1560
(213) 943-1333
Raul F. Salinas
AlvaradoSmith
633 West Fifth Street, Suite 1100
Los Angeles, CA 90071
(213) 229-2400
2