Schwarzburd v. Kensington Police Protection & Community Services District Board
225 Cal. App. 4th 1345
Cal. Ct. App.2014Background
- Kensington is a stand-alone district with a five-member Board that sets Harman’s police chief salary under a multimember vote in July 2012.
- Petitioners filed a writ of mandate challenging the Board’s vote to increase Harman’s compensation and a retention/merit bonus, alleging improper notice and unlawful meeting extension.
- Trial court denied the Board’s special motion to strike under § 425.16, relying on San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees’ Retirement Ass’n.
- Appellants argue the petition arises from protected First Amendment activity and that the Board itself is not a proper target for anti-SLAPP.
- Appellants also invoke § 425.17 public-interest exemption, arguing the case enforces an important public-right, while petitioners contend the action targets internal Board procedures.
- The appellate court held the three individual Board members are protected by § 425.16, but the Board as an entity is not subject to the anti-SLAPP motion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did petitioners’ suit arise from protected activity by individual Board members? | Petitioners contend speeches/votes were protected. | Defendants argue activity was unrelated to petition/free speech for Board. | Yes as to individuals; Board not covered. |
| Does § 425.17 public-interest exemption apply to bar anti-SLAPP? | Action enforces public access/open-meeting rights. | Does not enforce an important public right; no broad public benefit. | No; exemption not satisfied. |
| Is the Board an entity subject to § 425.16 anti-SLAPP strike? | Board’s collective action violates policy and thus is actionable. | San Ramon bars applying § 425.16 to an entity’s challenged action. | Board as entity not subject to anti-SLAPP. |
| Did petitioners show probability of prevailing on the merits (second prong) for the individual defendants? | Violate Board policy; improper notice and extension. | No substantial merit; actions consistent with Board policy and law. | Petition lacks merit for both protected-activity and procedural grounds. |
| Were noticed-and-procedural contentions about meeting extension and notice dispositive? | Board failed to follow Brown Act/open-meeting requirements. | Record shows compliance with timing and notice. | No reasonable probability of success on these grounds. |
Key Cases Cited
- San Ramon Valley Fire Prot. Dist. v. Contra Costa County Emps’ Ret. Ass’n, 125 Cal.App.4th 343 (Cal. App. Dist. Two 2004) (anti-SLAPP in public-entity actions not automatic; distinct from individual officials)
- City of Cotati v. Cashman, 29 Cal.4th 69 (Cal. 2002) (test for whether action arises from protected activity)
- Martinez v. Metabolife Int’l, Inc., 113 Cal.App.4th 181 (Cal. App. 2003) (incidental protected activity not automatically subject to anti-SLAPP)
- Schroeder v. Irvine City Council, 97 Cal.App.4th 174 (Cal. App. 2002) (votes may be implicated; dicta on protection extending to officials' statements)
- Vergos v. McNeal, 146 Cal.App.4th 1387 (Cal. App. 2007) (First Amendment protection in public-issues context)
- Donovan v. Dan Murphy Found., 204 Cal.App.4th 1500 (Cal. App. 2012) (vote not automatically sufficient to demonstrate protected activity; context matters)
- Northern Cal. Carpenters Reg’l Council v. Warmington Hercules Assocs., 124 Cal.App.4th 296 (Cal. App. 2004) (public-interest actions and anti-SLAPP implications)
- Navellier v. Sletten, 29 Cal.4th 82 (Cal. 2002) (two-prong test for anti-SLAPP: protected activity and probability of prevailing)
- Thomas v. Quintero, 126 Cal.App.4th 635 (Cal. App. 2005) (de novo review of anti-SLAPP motions; independent record review)
- ComputerXpress, Inc. v. Jackson, 93 Cal.App.4th 993 (Cal. App. 2001) (two-step anti-SLAPP analysis; burden shifting)