Filed 6/15/15 Stuck in the Rough v. Swadley CA4/1
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
STUCK IN THE ROUGH, LLC, D065166
Plaintiff and Respondent,
v. (Super. Ct. No. 37-2013-00054876-
CU-WM-NC)
JERRY SWADLEY et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of San Diego County, Earl H.
Maas III, Judge. Affirmed.
Lounsbery Ferguson Altona & Peak, Kenneth H. Lounsbery, Jacqueline S.
Vinaccia; Niddrie, Fish & Addams and David A. Niddrie for Defendants and Appellants.
Manatt, Phelps & Phillips and Michael M. Berger for Plaintiff and Respondent.
Appellants Escondido Country Club Homeowners Organization, and its members
Jerry Swadley, Betty Ferrell and Jack Hall (collectively, ECCHO) appeal from an order
denying their special motion to strike under the under the anti-SLAPP statute (Code of
Civ. Proc., § 425.16).1 The special motion to strike was brought in a lawsuit filed by real
estate developer Stuck in the Rough, LLC (the Developer) challenging the legality of an
initiative petition circulated by ECCHO in the City of Escondido (City), which sought to
stop the Developer from building homes on a defunct golf course.
As we will explain, we conclude that the trial court properly denied the special
motion to strike, and we accordingly affirm the trial court's order.
I
FACTUAL AND PROCEDURAL BACKGROUND
In the 1960's a golf course, known as the Escondido Country Club, surrounded by
residences, was built in the City. The Developer acquired the golf course property in
October 2012 by purchasing a note that was secured by a deed of trust on the golf course
property and then foreclosing on the note. The Developer concluded that it would not be
profitable to continue to operate the golf course, and it therefore announced in February
2013 that it would close the golf course effective in April 2013. The Developer
announced that it planned to build homes on the land on which the golf course had been
located.
In April 2013, ECCHO began circulating an initiative petition (the Initiative) in an
attempt to stop the Developer from building houses on the golf course property. The
1 Unless otherwise indicated, all further statutory references are to the Code of Civil
Procedure. SLAPP is an acronym for strategic lawsuit against public participation.
(Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109 & fn. 1
(Briggs).)
2
Initiative, titled "Citizen's Property Rights Initiative," sought to amend the City's general
plan to designate the golf course property as "Open Space-Park," which would permit the
operation of a golf course on the property but not allow a housing development. The text
of the Initiative cited a City planning commission resolution from the 1960's that ECCHO
interpreted as expressing an intent that the golf course property would continue to be used
as a golf course. Under the Elections Code, if ECCHO collected the required number of
signatures, the City's options would be to place the Initiative on the ballot, order a report
on the Initiative, or adopt the Initiative as a City ordinance. (Elec. Code, §§ 9214, 9215.)
In June 2013, while ECCHO was still collecting signatures for the Initiative, the
Developer filed this lawsuit, consisting of a petition for writ of mandate and complaint
against ECCHO; the City; and the City's clerk, Diane Halverson (the Complaint). The
Complaint alleged that the Initiative was illegal and invalid because, among other things,
it created inconsistencies with the City's general plan and zoning laws, it lacked an
enacting clause, it improperly required the enactment of future legislation, and it
impermissibly created " 'spot zoning.' " The Complaint contained three causes of action,
only two of which were directed against ECCHO.
The first cause of action sought a petition for writ of mandate only against the City
and Halverson based on the allegation that the Initiative was illegal. The Developer
specifically sought an order directing the City and Halverson "not to certify the signatures
on the Initiative or take any action to approve or place the Initiative on a ballot even if its
proponents submit it with a facially sufficient number of signatures."
3
The second cause of action, directed only against ECCHO, sought a declaration
concerning the parties' "respective rights and duties concerning the Initiative," and
specifically declaring "that the Initiative is illegal such that no election should take place
with regard to it."
The third cause of action, which named the City, Halverson and ECCHO as
defendants, sought a declaration "that, if the Initiative is adopted, the City will owe [the
Developer] just compensation for the taking of the [golf course property]." Unlike the
first and second causes of action, the third cause of action did not seek an order
preventing the Initiative from going forward.
On July 10, 2013, ECCHO delivered signatures on the Initiative to the City for
certification. On July 23, 2013, the Developer filed an ex parte application for
preliminary injunctive relief to prevent the City from placing the Initiative on the city
council agenda and ordering that the Initiative be held in abeyance until the trial court
could make a ruling on its validity. ECCHO filed an opposition, and on July 24, the trial
court denied the ex parte application.
On August 12, 2013, ECCHO filed a special motion to strike under the anti-
SLAPP statute. The special motion to strike was directed only against the first and third
causes of action.2 ECCHO specifically explained that it was not seeking an order
striking the second cause of action because it recognized that the Developer "may have a
2 "A special motion to strike may be addressed to individual causes of action and
need not be directed to the complaint as a whole." (Coretronic Corp. v. Cozen O'Connor
(2011) 192 Cal.App.4th 1381, 1387.)
4
right at some point to have its second cause of action challenging the validity of the
[Initiative] heard and determined." However, ECCHO contended that the first and third
causes of action were subject to a special motion to strike because they were purportedly
aimed at discouraging ECCHO from exercising its constitutional right of petition.
The trial court denied the special motion to strike in November 2013. As to the
first cause of action, the trial court concluded that ECCHO did not have standing to bring
a special motion to strike, as it was not sued in that cause of action, which sought a
petition for writ of mandate directed only at the City and Halverson. As to the third cause
of action, the trial court concluded that ECCHO had met its burden on the first prong of
the anti-SLAPP analysis to establish that the third cause of action arose from protected
petitioning or free speech activity, but that the special motion to strike failed because the
Developer had met its burden on the second prong of the anti-SLAPP analysis to
establish a probability of prevailing on the claim.
Meanwhile, during the pendency of the special motion to strike, the City took
action on the Initiative. Specifically, on August 14, 2013, the City reviewed and
approved the Initiative and it became a City ordinance without the need to place it on the
ballot for a vote of the electorate.
Due to the City's adoption of the Initiative as an ordinance, most of the relief that
the Developer sought in the Complaint became moot, as the Complaint had sought a
ruling preventing the City from taking action on the Initiative. Accordingly, at the
hearing on the special motion to strike, the Developer stated that it would be filing a new
lawsuit specifically challenging the City's enactment of the ordinance, which it later filed
5
and litigated, leaving the only issue in this case whether the anti-SLAPP motion was
properly denied.3
ECCHO appeals from the order denying its special motion to strike, arguing that
the motion should have been granted and it accordingly should have been awarded the
attorney fees it incurred in defending against the challenged causes of action.
II
DISCUSSION
A. Overview of the Anti-SLAPP statute
The anti-SLAPP statute provides: "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." (§ 425.16, subd. (b)(1).)
"The analysis of an anti-SLAPP motion thus involves two steps. 'First, the court
decides whether the defendant has made a threshold showing that the challenged cause of
action is one "arising from" protected activity. (§ 425.16, subd. (b)(1).) If the court finds
3 ECCHO has requested that we take judicial notice of the petition for writ of
mandate/complaint filed in the Developer's second lawsuit, Stuck in the Rough, LLC v.
City of Escondido (Super. Ct. San Diego, 2013, No. 37-2013-00074375-CU-WM-NC), in
which only the City and its city council were named as respondents/defendants. The
Developer does not oppose the request for judicial notice to the extent that it is limited to
showing the issues presented in that action. We therefore grant the request to take
judicial notice.
6
such a showing has been made, it then must consider whether the plaintiff has
demonstrated a probability of prevailing on the claim.' [Citation.] 'Only a cause of action
that satisfies both prongs of the anti-SLAPP statute — i.e., that arises from protected
speech or petitioning and lacks even minimal merit — is a SLAPP, subject to being
stricken under the statute.' " (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811,
819-820 (Oasis West).) " 'If the defendant does not demonstrate [the] initial prong, the
court should deny the anti-SLAPP motion and need not address the second step.' "
(Zucchet v. Galardi (2014) 229 Cal.App.4th 1466, 1476 (Zucchet).)
Section 425.16, subdivision (e) specifies the type of activity protected by the anti-
SLAPP statute: An " 'act in furtherance of a person's right of petition or free speech . . .
in connection with a public issue' includes: (1) any written or oral statement or writing
made before a legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law, (2) any written or oral statement or writing made in
connection with an issue under consideration or review by a legislative, executive, or
judicial body, or any other official proceeding authorized by law, (3) any written or oral
statement or writing made in a place open to the public or a public forum in connection
with an issue of public interest, or (4) any other conduct in furtherance of the exercise of
the constitutional right of petition or the constitutional right of free speech in connection
with a public issue or an issue of public interest." (Ibid.)4
4 When the first two subparts of section 425.16, subdivision (e) are at issue (i.e.,
speech or petitioning before a legislative, executive, judicial or other official proceeding;
or statements made in connection with an issue under review or consideration by an
7
" 'We review de novo a ruling on a special motion to strike under section 425.16.
[Citation.] Thus, we apply our independent judgment, both to the issue of whether the
cause of action arises from a protected activity and whether the plaintiff has shown a
probability of prevailing on the claim.' " (South Sutter, LLC v. LJ Sutter Partners, L.P.
(2011) 193 Cal.App.4th 634, 657, italics added (South Sutter).)
B. The Trial Court Properly Denied the Special Motion to Strike the First Cause of
Action
The first issue we consider is whether the trial court erred in denying the special
motion to strike as to the first cause of action. As we have explained, the first cause of
action sought a writ of mandate against the City and Halverson. Specifically, on the basis
that the Initiative was purportedly illegal, the first cause of action requested that the trial
court issue an order directing the City and Halverson to refrain from certifying the
signatures on the Initiative or taking any action to approve the Initiative or place it on the
ballot. Because ECCHO was not sued in the first cause of action, the trial court
concluded that ECCHO lacked standing to bring an anti-SLAPP motion as to that cause
of action. As we will explain, the trial court was correct.
As an initial matter, we note that there is no question that ECCHO had standing to
appear on the first cause of action, either as a real party in interest or an intervener, in
order to defend the Initiative that it backed. (Perry v. Brown (2011) 52 Cal.4th 1116
(Perry) [proponents of statewide initiative have standing to appear in a proceeding
official body), the moving party is not required to independently demonstrate that the
matter is a " 'public issue' " within the statute's meaning. (Briggs, supra, 19 Cal.4th at
p. 1113.)
8
against public officials that challenges the validity of the initiative in order to defend it,
even if they are not sued].) Indeed, ECCHO participated without objection in opposing
the Developer's application for preliminary injunctive relief to prevent the City from
taking further action on the Initiative until its legality was decided.
Based on its undisputed standing to participate in the litigation of the first cause of
action, ECCHO argues that because it has "standing to oppose Developer's first cause of
action" it "follows therefore that [ECCHO] also ha[s] standing to invoke the anti-SLAPP
statute to protect [its] interests in the initiative process." The argument is flawed. As we
will explain, a party's standing to participate in defending against a cause of action
challenging the validity of an initiative when the party is not sued in that cause of action
is a different issue from whether that party is statutorily authorized to bring a special
motion to strike that cause of action under the anti-SLAPP statute.
The scope of the anti-SLAPP statute is defined by its specific provisions.
According to section 425.16, subdivision (b)(1), a special motion to strike may be
brought in response to "[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 . . . ." (Ibid.) As our
Supreme Court has explained, "[T]he statutory phrase 'cause of action . . . arising from'
means simply that the defendant's act underlying the plaintiff's cause of action must itself
have been an act in furtherance of the right of petition or free speech. [Citation.] In the
anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was
based on an act in furtherance of the defendant's right of petition or free speech." (City of
Cotati v. Cashman (2002) 29 Cal.4th 69, 78, some italics added (Cotati).) Here, because
9
ECCHO was not sued in the first cause of action, it may not bring a special motion to
strike as to that cause of action.5
We find the decision in Foundation for Taxpayer & Consumer Rights v.
Garamendi (2005) 132 Cal.App.4th 1375 (Garamendi) to be persuasive here. In
Garamendi, a public interest group filed a petition for writ of mandate and complaint
against the Insurance Commissioner to invalidate legislation regulating insurance
companies. Although the complaint did not sue Mercury Insurance Group (Mercury) or
seek any relief against it, the complaint alleged that the challenged legislation was
"insurer-sponsored" and that Mercury made significant monetary contributions to
lawmakers in support of the legislation. (Id. at p. 1380.) Mercury was permitted to
intervene in the action, and it then filed a special motion to strike under the anti-SLAPP
statute. The trial court in Garamendi denied the motion, concluding among other things,
that Mercury did not have standing to bring an anti-SLAPP motion because it was not
named as a defendant. (Id. at p. 1384.) Further, the trial court awarded attorney fees to
5 We recognize that the first cause of action is styled as a petition for a writ of
mandate, and that therefore the proper term for a party named in such a petition is
"respondent" rather than "defendant." We note, however, that the anti-SLAPP statute
specifically states that all references to the term "defendant" in section 425.16 includes
the term "respondent" (§ 425.16, subd. (h) ["For purposes of this section, 'complaint'
includes 'cross-complaint' and 'petition,' 'plaintiff' includes 'cross-complainant' and
'petitioner,' and 'defendant' includes 'cross-defendant' and 'respondent.' "].) Significantly,
although ECCHO contends that it should have been named as a real party in interest in
the first cause of action, the anti-SLAPP statute expressly includes respondents, but not
real parties in interest, within the scope of the parties referred to as "defendants" entitled
to bring a special motion to strike.
10
the plaintiff on the ground that Mercury's anti-SLAPP motion was frivolous. (Id. at
p. 1385.)
On appeal from the attorney fee award, the Court of Appeal in Garamendi agreed
that the anti-SLAPP motion was frivolous. As it explained, "Section 425.16 provides a
remedy with respect to '[a] cause of action against a person arising from any act of that
person in furtherance of a person's right of petition or free speech . . . .' (§ 425.16, subd.
(b)(1), italics added.) Petitioners did not name Mercury as a defendant in the complaint,
nor did they seek any relief against Mercury in the complaint. Therefore, Mercury did
not satisfy the requirement of showing the action was brought against it." (Garamendi,
supra, 132 Cal.App.4th at p. 1392.) Further, the court "reject[ed] Mercury's claim that its
status as an intervener on the side of the defense placed it in the shoes of a defendant and
as such gave it the same right to bring an anti-SLAPP motion as a defendant. The
complaint in intervention did not transform Mercury into a defendant. . . . Mercury . . .
could not intervene to make itself a self-styled 'defendant' for purposes of an anti-SLAPP
motion when it was not a defendant to the complaint and the complaint did not purport to
assert any claim against it." (Ibid., citation omitted.)
Here, similar to Mercury's status as an intervener in the Garamendi lawsuit, there
is no dispute that as a proponent of the challenged Initiative, ECCHO had standing to
participate in the litigation of the first cause of action, which sought to prevent the City
from taking action on the Initiative. (Perry, supra, 52 Cal.4th 1116.) However, as in
Garamendi, the fact that ECCHO had a right to participate in the litigation of the first
cause of action to defend the Initiative does not mean that it had standing to bring an anti-
11
SLAPP motion as to that cause of action. The anti-SLAPP statute expressly authorizes
only parties sued in a cause of action to bring a special motion to strike. (§ 425.16, subd.
(b)(1).) We accordingly conclude that the trial court properly denied the special motion
to strike as to the first cause of action because ECCHO was not sued in that cause of
action.
C. The Special Motion to Strike Was Properly Denied as to the Third Cause of Action
The remaining issue is whether the trial court erred in denying the special motion
to strike as to the third cause of action.
On our de novo review, we first examine whether ECCHO met its burden on the
first prong of the anti-SLAPP analysis, which is to make " 'a threshold showing that the
challenged cause of action is one arising from protected activity.' " (Soukup v. Law
Offices of Herbert Hafif (2006) 39 Cal.4th 260, 278.)6
6 ECCHO has taken the position that we should not review the trial court's ruling in
its favor on the first prong of the anti-SLAPP analysis because the "Developer has not
challenged that finding by way of a cross-appeal," and "it is therefore final." ECCHO's
position lacks merit. An appeal may be taken from "an order granting or denying a
special motion to strike." (§ 904.1, subd. (a)(13), italics added.) A trial court's decision
on the first prong in the anti-SLAPP analysis is not an order, it is a threshold ruling
preliminary to the order itself. (Oasis West, supra, 51 Cal.4th at pp. 819-820 [meeting
the first prong on an anti-SLAPP motion is " 'a threshold showing,' " and " '[o]nly a cause
of action that satisfies both prongs of the anti-SLAPP statute . . . is a SLAPP, subject to
being stricken' "].) Here, although ECCHO made a threshold showing on the first prong,
the Developer was the prevailing party in the order ruling on the anti-SLAPP motion. As
only an aggrieved party may appeal (§ 902), the Developer had no basis to file a cross-
appeal from the ruling on the anti-SLAPP motion. Moreover, ECCHO's argument fails to
acknowledge that when an order ruling on an anti-SLAPP motion is appealed, we review
the trial court's ruling on a de novo basis as to both of the prongs of the anti-SLAPP
analysis. (South Sutter, supra, 193 Cal.App.4th at p. 657.) On our de novo review, "[i]f
the trial court's decision denying an anti-SLAPP motion is correct on any theory
12
As we have explained, the anti-SLAPP statute protects against causes of action
"against a person arising from any act of that person in furtherance of the person's right of
petition or free speech." (§ 425.16 (b)(1).) ECCHO contends that the third cause of
action falls under the protection of the anti-SLAPP statute because the cause of action
arises from the exercise of its right to petition. There is no dispute that the act of
circulating and seeking to enact a citizen initiative is protected petitioning activity
covered by the anti-SLAPP statute. (Mission Springs Water Dist. v. Verjil (2013) 218
Cal.App.4th 892, 907 (Verjil).) "Advocacy for an Initiative and adoption of the measure
are, without question, a fundamental exercise of the First Amendment right to petition."
(City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43, 73 (Stewart).) However,
the issue in dispute is whether the third cause of action arises from ECCHO's exercise of
its right to petition for the enactment of the Initiative.
We turn to the general case law interpreting the first prong of the anti-SLAPP
statute to determine whether the third cause of action arose from protected activity.
"[T]he statutory phrase 'cause of action . . . arising from' means . . . that the
defendant's act underlying the plaintiff's cause of action must itself have been an act in
furtherance of the right of petition or free speech." (Cotati, supra, 29 Cal.4th at p. 78.)
"[T]he mere fact an action was filed after protected activity took place does not mean it
arose from that activity." (Id. at pp. 76-77, some italics added.) " 'In the anti-SLAPP
applicable to the case, we may affirm the order regardless of the correctness of the
grounds on which the lower court reached its conclusion." (City of Alhambra v.
D'Ausilio (2011) 193 Cal.App.4th 1301, 1307.)
13
context, the critical consideration is whether the cause of action is based on the
defendant's protected free speech or petitioning activity.' " (Episcopal Church Cases
(2009) 45 Cal.4th 467, 477.)
Here, the third cause of action is not based on any activity by ECCHO in
furtherance of its right to petition to get the Initiative enacted into law. The third cause of
action is limited to seeking a declaration that the City would be required to compensate
the Developer under the takings clauses of the federal and state Constitutions (U.S.
Const., art. V; Cal. Const., art. I, § 19) after the Initiative is eventually enacted into law.
The third cause of action thus assumes, for its purposes, that ECCHO has been fully able
to take advantage of its right to petition and has succeeded in enacting the Initiative into
law. Further, unlike the first and second causes of action, the third cause of action does
not seek to prevent the enactment of the Initiative. Because the third cause of action does
not attempt to interfere with ECCHO's right to petition for the enactment of the Initiative,
it does not arise from activity protected by the anti-SLAPP statute.
As ECCHO points out, case law recognizes that a cause of action for declaratory
relief against an initiative's proponents, and which "seeks to keep an initiative off the
ballot, . . . arises out of the proponent's right of petition." (Verjil, supra, 218 Cal.App.4th
at p. 907, italics added; see also Stewart, supra, 126 Cal.App.4th at pp. 74-75 [where a
cross-complaint by a municipality against proponents of an initiative sought a declaration
that the municipality was not required to certify the initiative because it was purportedly
illegal, the cross-complaint fell within the protection of the anti-SLAPP statute].)
However, as we have noted, the third cause of action did not seek to keep the Initiative
14
off the ballot or otherwise seek an order preventing the City from taking action on the
Initiative. Instead, the third cause of action merely seeks a declaration that after the
Initiative is enacted the City will be required to pay just compensation to the Developer
for taking its property pursuant to the federal and state takings clauses. Therefore, the
holdings of Verjil and Stewart do not apply here because the third cause of action does
not seek to prevent the Initiative from being enacted into law as part of ECCHO's
petitioning activity.
As ECCHO failed to meet its burden to establish that the third cause of action
arose from activity protected under the anti-SLAPP law, the special motion to strike was
properly denied as to that cause of action.7
DISPOSITION
The order denying ECCHO's special motion to strike is affirmed.
IRION, J.
WE CONCUR:
HUFFMAN, Acting P. J.
O'ROURKE, J.
7 Because we conclude that ECCHO did not meet its burden on the first prong of the
anti-SLAPP analysis, we need not and do not examine whether the Developer established
a probability of prevailing. (Zucchet, supra, 229 Cal.App.4th at p. 1476.)
15