*1 Aug. S099999. 2002.] [Nо. COTATI, Plaintiff and Appellant, OF
CITY al., and Respondents. et Defendants GENE CASHMAN *3 Counsel Heater, Lincoln, E. Heater, Henry R.
Endeman, Lincoln, & Donald Turek Plaintiff and A. for Reich; Jeffrey & Pistole and Walter Linda B. Walter Appellant. Radford, L. and Harold E. Foundation, R. Meriem Hubbard S. Legal
Pacific for Defendants and Respondents. Johnson as Amici Curiae J. Moneer Office of James J. Moneer James
Law of Defendants and Respondents. behalf Goller; Rossi, Olson; Harold W. Ram, Karl Karlene W. Olson &
Levy, Fuson, Publishers Jr.; Newton for California Newspaper and Thomas W. Press, Inc., as Amici Curiae. Association, Times and Angeles Copley Los Opinion this a municipality’s We mustdecide in case whether
WERDEGAR, J. of a relief declaratory respecting court action state to federal ordinance, response filed rent stabilization mobilehome park owners respecting brought park relief action ordinance, against public participation lawsuit strategic same constitutes within the of Code of (SLAPP)1 purview Civil Procedure section 425.16 425.16; (section the anti-SLAPP We statute). conclude it does not.2
Background of Cotati (City) adopted mobilehome rent stabilizаtion program. (Cotati Ord. No. ch. adding 19.14 to Cotati Mun. After Code.) enacted others, Gene Cashman and program, owners of mobilehome parks (collectively sued in the Owners), United States District Court for the Northern District of California. de- sought relief, an claratory injunction, and damages allegedly resulting ordinance. requesting declaratory judgment, Owners “the alleged following question in actual controversy between the Whether parties: [is] effects [City] an uncompensated regulatory taking by imрlementing and enforcing Ordinance, rent-restriction in violation of the Fifth and Four- *4 teenth Amendments to the United States Constitution.” sued
Subsequently, City
Owners in Sonoma County
Court.
Superior
City’s
complaint outlined
cause of action for
relief.
City
alleged that “An actual
has arisen
controversy
and now exists betweén [City]
and
relative to their
and
in that
respective rights
duties
[City]
[Owners]
contends that the
rent
park
ordinance and reso-
[mobilehome
stabilization]
lution
enforceable,
are valid and
both on their face and as
by
construed
hand,
the other
[City], On
ordinance,
contend that said
on its face
[Owners]
unenforceable, invalid,
and
as
void
effecting
unconstitutional taking
belief,
. . . .” On information and
also
City
that Owners
alleged
contended
the ordinance effected a
in violation of the
taking
California Constitution.
City sought
judgment “declaring the respective
and duties of the
rights
under the ordinance in
parties
and
that
ordinance is
question
constitu-
tional, valid, and enforceable on its face and as
to
After
applied
[Owners].”
filed,
state court action was
filed a
in
City
motion
federal
asking
court
that Owners’ action be
dismissed
abstention
v.
grounds.
Harris
(Younger
(1971)
City purpose of mobile- its to litigate forum which more favorable state applicable Certain potentially home rent stabilization ordinance. park notes, were favor rent regulation, law decisions on mobilehome Parkowners Montclair (See its in the underlying able to dispute. position 598]; Assn. v. Montclair Cal.App.4th Village City Carpinteria Mobile Sandpiper the state court action сoncedes that filing also Cal.Rptr.2d 623].) to abstain from the federal court it intended seek subsequently persuade suit. hearing motion. on the anti-SLAPP trial court ruled in favor of Owners
The action, federal filed after Owners’ shortly action was Noting therein, only and named involved “the exact contention” made Owners had, outset, at the defendants, the trial concluded Owners right out of their burden to that the action “arose carried show [Owners’] (See Constitution defined under U.S. [section 425.16].” *5 carried their that had cоncluded Owners §425.16, Having subd. (b)(1).) a the had demonstrated burden, initial trial court considered whether not, the trial its had Concluding City on claim. probability prevailing action dis- Owners’ anti-SLAPP motion and ordered court granted petition granted missed. The Court of reversed. We Appeal review.
Discussion alia, “A of action a against inter that cause 425.16 Section provides, the right that furtherance of person’s act of in any from person arising person California Constitution free the United States or or under speech petition a motion to to subject special in with a issue shall be connection public that there the has established strike, the determines that unless court plaintiff the claim.” (Id., the will prevail is a probability section, right in of a this ‘act furtherance person’s “As used in (b)(1).) or Constitution States California or free under United speech petition or or oral statement any a includes: written connection with issue’ public executive, or judicial any or legislative, proceeding, before a writing made law; written or oral statement (2) any other official authorized proceeding or made in writing connection with issue under consideration or review a executive, by legislative, or judicial other official body, any proceeding authorized (Id., law . . . .” subd. (e).)
Owners in their asked us to address two issues—whether a defendant in order to on an prevail anti-SLAPP motion must demonstrate targeted action was intended to chill defendant’s free speech petition rights; whether moving defendant must show that the action had effect of such We chilling rights. conclude that defendants moving under the anti-SLAPP Nevertheless, statute have neither burden. because action arose from the underlying controversy respecting validity of City’s lawsuit, ordinance rather than from Owners’ federal we further conclude that City’s action was not to motion to strike special under section 425.16.
A. Intent to Chill
City states that it filed this action in an to obtain a more attempt favorable forum than federal court in which to litigate оf its mobilehome rent stabilization ordinance. initial to “City’s use goal the state action to the federal to persuade abstain favor of the state proceeding.” in fact filed a motion federal district court asking the federal action be dismissed on a number of grounds, including abstention in favor of the “A state action. claims, secondary, goal,” alternative to to “was try obtain favorable quick decision upholding Ordinance which then could be used for res in the judicata federal court.” purposes argue City’s real intention this filing action went beyond desire for a favorable forum. Owners speculate City actually “hoped discourage continuing litigate by burdening them with [Owners] new, defending costly, and lawsuit in duplicative a second jurisdiction.” *6 Whether City’s were, motivations for subjective this action in filing reality, them, describes primarily or with primarily accordance cannot be speculation, ascertained with certainty from record. concede, As Owners ultimately intent. . will “City’s subjeсtive . probably never be known.” of Fortunately, question intent subjective is relevant. As 53, discussed detail in Equilon, 29 Cal.4th the anti supra, statute, SLAPP construed in accordance with its plain language, incorporates no intent-to-chill or at pleading proof requirement. (Id. Conse 58-67.) pp. a defendant who quently, meets its burden under the statute of demonstrating a of action one targeted cause is from” “arising protected activity subd. (§425.16, faces no additional of (b)(1)) requirement proving plaintiff’s subjective intеnt. at (Equilon, supra, pp. 66-67.)
B. Chilling Effect bar judicial generally, of law and policy,
The same considerations
requirement
of an intent-to-chill proof
statute
on the anti-SLAPP
imposition
(See Equilon,
proof requirement.
of a chilling-effect
imposition
bar judicial
& Hope
Eden Council
58-67; see also
Briggs
29 Cal.4th at pp.
supra,
471,
P.2d
Cal.Rptr.2d
19 Cal.4th
(1999)
[81
Opportunity
a
interest” proof
“public
imposition
(Briggs) [rejecting judicial
564]
language
the plain
29 Cal.4th
Here, as in Equilon, supra,
requirement].)
such requirement.
intent preclude any
of legislative
of the statute and indicia
to
anti
in order
Thus,
nowhere states that
prevail
section 425.16
of action
demonstrate that the cause
motion, a defendant must
SLAPP
have,
had,
chilling
the actual effect
or will
complained
Nor is there anything
rights.
defendant’s exercise of speech
chill
or even
suggesting
sections implying
section 425.16’s operative
nor implies
section 425.16 neither states
Since
proof requirement.
ing-effect
City suggests
to
one—as
for us judicially
impose
such
rеquirement,
construction.
statutory
rule of
we should—would violate
foremost
intent, as
statutes,
the Legislature’s
“we follow
When interpreting
....
‘This
of the actual words of the law
exhibited
plain meaning
it
as to make
conform to
has no
to rewrite the statute so
court
power
”
Assn. v.
is not
Teachers
(California
intention which
presumed
expressed.’
Dist.
Cal.4th
632-633
Bd. Rialto
School
Governing
Unified
671,
Finally, Equilon, imposing chilling-effect proof requirement would deprive anti-SLAPP that is protection petitioning absolutely privi under the leged Code, 47, litigation privilege (Civ. subd. whenever a (b)) moving defendant could separately prove targeted cause chilled, action has chill, actually will “It is a protected speech. fundamental rule of construction that statutory statutes should be construed to avoid anomalies.” (State South Dakota v. Brown Cal.3d Cal.Rptr. 576 P.2d We 473].) have ad previously hered that rule in construing anti-SLAPP statute (Briggs, supra, 1121; Cal.4th at p. see also аt Equilon, supra, Cal.4th and we pp. 64-65), do here so as well. sum, judicial of a imposition chilling-effect would proof requirement
contradict the anti-SLAPP statute’s plain undermine the language, Legisla- intentions, ture’s create expressed anomalies. The statute contains no such requirement. ”
C. From “Arising As more explained fully 29 Cal.4th Equilon, supra, section 425.16 that a court requires in a engage when two-step process determining whether a defendant’s First, anti-SLAPP motion granted. should be the court whether decidеs the defendant has made a threshold showing cause of challenged action is one “arising from” protected activity. (§ If the made, court finds such a been (b)(1).) showing has it then must consider whether the demonstrated a probability on the prevailing (See claim. at generally As will Equilon, supra, pp. 66-67.) defendant this case their appear, failed meet threshold burden of demonstrating that action is one from Owners’ arising protected speech petitioning. true, observed,
It is as the trial court indisрutably City’s action filed after Owners filed their claim in court. shortly federal But mere fact an action was filed after took protected does not mean it arose activity place
77 cannot be to mean that “any read The anti-SLAPP statute from that activity. retaliation for the filed in an action which was arguably claim asserted in 425.16, whether or section rights or falls under of speech petition exercise rights.” (Computer- in exercise of those claim based on conduct not the is 993, Cal.Rptr.2d 1002 v. 93 Cal.App.4th Inc. Jackson [113 Xpress, from” means at 625]; also Cal.4th Briggs, supra, p. see [“arise “based upon”].) matter the underlying subject refers to
While
complaint repeatedly
rent stabilization
mobilehome
federal action
(i.e.,
Owners’
it
no reference to
its
contains
validity),
ordinance
arguments respecting
a
the notion “that
rejected
courts
have
rightly
the action itself. California
from’ an act in fiirtherance
shown
be one ‘arising
lawsuit
adequately
long
brought
or free
suit
of thе
rights
speech
after
act,
basis
whether or not
purported
the defendant
in such
engaged
Jackson,
suit is
act itself.”
Inc. v.
for the
(ComputerXpress,
at
425.16,
as mean
in section
subdivision
“arising
(b)(1)
To construe
from”
to,”
in effect render all
“in
as Owners have
would
ing
response
urged,
intend
did not
cross-actions
SLAPP’s. We presume
Legislature
potential
23 Cal.4th
v. Mendoza
People
such an absurd result. (See generally
896,
aside, to
912,
431,
suggest
fn. 7
of the same or series of transactions or occurrences cause of the Proc., 426.10, action which (Code Civ. alleges” § id., 428.10, subd. see also (c); so but (b)(1)), may responsive § lawsuit arise independent from same transaction or occurrence alleged lawsuit, without preceding necessarily from that arising earlier lawsuit (See itself. Church 628, v. 42 Scientology Wollersheim (1996) Cal.App.4th of 651 Cal.Rptr.2d 620].) [49 Owners also have complained City filed its lawsuit so that tactically, would be “forced they ... bear the and burden of simulta expense neously litigating two different actions two different legal jurisdictions.” intent, But City’s discussed, subjective is not relevant anti under the SLAPP statute. As a corollary, to, claim filed in or in retalia response for, tion threatened or actual is litigation to the anti-SLAPP statute because it be simply may viewed as an oppressive tactic. litigation Construction, (Kajima & Inc. Engineering v. Los 95 Angeles (2002) Cal.App.4th 924 Cal.Rptr.2d That a cause of (Kajima).) [116 187] action have been arguably may triggered entail by protected activity does nоt is one it from such. To arising tactics, focus on City’s litigation rather lawsuit, than on substance of City’s risks Owners allowing to circumvent 425.16, the showing section expressly subdivision an required (b)(1) SLAPP arise alleged at protected speech (Kajima, petitioning. supra, 933, fn. p. 7.)4 short, the “cause . . statutory of action . from” phrase arising means that the act simply defendant’s underlying plaintiff’s cause of action must have been an act in furtherance of the free right petition or itself Inc. speech. (See Jacksоn, v. 93 at ComputerXpress, supra, Cal.App.4th p. 1001, and cases context, anti-SLAPP the critical cited.) point whether the plaintiffs cause action itself based an act in further ance of the defendant’s right free speech. (Equilon, supra, 67-68; Cal.4th at also see pp. Briggs, 19 Cal.4th at “A supra, p. 1114.) defendant meets this burden act demonstrating underlying cause fits one of out in plaintiffs categories section spelled subdivision . . . .” (e) Chronicle Co. (Braun Publishing 1036, 1043 also Cal.App.4th Cal.Rptr.2d 58]; see Wilcox v. Superior Court Cаl.App.4th 446].) 4Contrary implication, emphasize express to Owners’ thus to the anti-SLAPP statute’s requirements litigants confronting meritless, does retaliatory not leave countersuits without remedy. “If a [responsive complaint cross-defendant that a believes [defendant or] or] cross-complaint has ‘for an improper purpose, been filed such as to cause harass or to unnecessary delay or in the litigation,’ against needless increase cost of or that the claims it evidentiary sanctions, lacking support, may including are frivolous or then it move for attorney fees and to be expenses, (Kajima, other awarded in the trial court’s discretion.” Proc., quoting 128.7.) at Code Civ. §
D. Application for declaratory cause of action the or facts underlie activity
What is the existence relief basis of “The fundamental relief? Witkin, Cal. actual, subject.” (5 over a proper controversy present inaccu Pleading, p. 273.) ed. (4th 1997) Procedure *10 for an alleging that its basis acknowledged only has “City state that rately the owners had previously . was fact that park . . the controversy actual that Owners’ fact, argued only In has City the in federal court.” City sued an controversy of existence of actual the federal action informed action, itself, relief, consti that federal declaratory not Owners’ justifying that the the actual taken controversy. City consistently position tuted that has relief is the same as declaratory to it seeks with which controversy respect earlier sought declaratory to which Owners the with controversy respect court—i.e., constitutionality the controversy the over relief in federal And while the courts rent stabilization ordinance. mobilehome park City’s fact, have recognized from the both have drawn different conclusions below is same as that of Owners’ court action the that the state gravamen City’s court action. federal can be for
That the of an ordinance proper relief lies is doubt. “An action declaratory relief without over the construction of the are fundamental parties disagreement when in in they entity engaged whether legislation, dispute public particular (Alameda law.” conduct or established violation policies applicable 1716, 1723 County City Hayward (1995) Cal.App.4th Land UseAssn. v. Cal.Rptr.2d 752].) met, a court con- from” “arising requirement whether deciding stating “the affidavits opposing siders and and pleadings, supporting 425.16, subd. liability (§ (b).) or defense is based.” facts which upon case City’s in this confirms contention Examination of relevant papers seeks a declara- controversy—and that of a alleges its action the existence mobilehome rent stabilization validity City’s tion—respecting mentioned, that actual in its complaint, ordinance. City alleged “[a]n and defendants and exists between controversy plaintiff has arisen now that contends to and duties rights plaintiff relative their respective and as enforceable, both on their face are valid оrdinance and resolution SLAPP, action as a to strike moving City’s construed by plaintiff.” the four affida- supporting to same Three of allegation. this pointed mobile- to that Cotati’s only demonstrate vits submitted Owners purport ordinance; no they contain with compliance home were in parks affidavit, by The other to Owners’ federal lawsuit. reference whatsoever action, Owners’ counsel in the federal demonstrate purports City, action, after its state court dismiss filing moved to the federal action on abstention grounds, does The point City dispute. materials only lodged opposition to the anti-SLAPP motion were cases tending the validity of the rent its support stabilization ordinance. And in briefing, reiterated that it “merely . . . seeking resolution of contro- versy” both lawsuits. underlying
The distinction City invokes between federal court action on the one hand and controversy that action underlying (as well own the other is not an action) ephemeral or formalistic one. The merely requirеment plaintiffs relief seeking declaratory “the existence of allege actual, Witkin, Procedure, present controversy” (5 Cal. supra, Pleading, 273) would be if a illusory could meet it simply to the pointing very lawsuit which he or she seeks relief. *11 the met Obviously, cannot be in such requirement a bootstrapping manner; “a for request relief will not create a of declaratory cause action that otherwise does not exist.” v. (Mallenbaum Adelphia Communications Corp. 29, 1994,
(E.D.Pa., 724981, Dec. Civ. A No. *6, 1994 WL fn. 93-7027) Rаther, actual, affd. Cir. (3d 1996) 74 F.3d “an present controversy must be and of “the facts the claims pleaded specifically” con respective the must cerning [underlying] Witkin, Procedure, be subject given.” (5 Cal. 275; see Alturas v. Gloster 16 Cal.2d of P.2d 810].) case, this stated, as the of Court exists between Appeal dispute over the of Ordinance parties Cotati No. 680. And just as Owners’ lawsuit not the itself was actual controversy underlying court, for request relief federal neither was lawsuit the declaratory actual controversy City’s state court underlying for request declaratory Rather, relief. the actual rise to both controversy actions—the funda giving mental basis each relief—was the same request underlying ordinance.5 cause of action controversy respecting City’s City’s therefore was not one from arising City’s Owners’ federal suit. action Accordingly, was not to a motion to strike. special
In view of our arise conclusion cause action did not from suit, Owners’ federal not we do reach the anti-SLAPP statutе’s secondary 5Thus, noted, correctly history trial as the “action references controversy enactment of Ordinance . . . and that an No. 680 then states actual exists plaintiff plaintiff between and in that that the valid defendants contends ordinance is whereas defendants contend that the is void described of the ordinance .... This contention is the exact contention made the defendants first of the their cause of action federal reason, that, trial Unfortunately, fallaciоusly, lawsuit. . . .” court went on since the underlying two controversy, lawsuits reference the same the second of the first. arose out will that [City] is a probability that there “established whether question event, while the any parties subd. (b)(1)). claim” (§ on the prevail for review neither the petition the merits argued point, their briefs on issue. address that that we for review requested to the nor the answer
Disposition affirmed. Appeal of the Court judgment
The Moreno, J., Kennard, J., concurred. J., and C. George, C., offered in For the reasons BROWN, part I concur the judgment. J. also suit. (See owners’ suit did arise of Cotati’s 530, 52 Cal.4th 98-100 Sletten Navellier Brown, other Accordingly, majority’s J.).) P.3d (dis. opn. 703] dicta, need not address. are which we grounds Chin, Baxter, J., J., concurred.