CITY OF ROCKLIN, Plaintiff and Respondent, v. LEGACY FAMILY ADVENTURES-ROCKLIN, LLC, et al., Defendants and Appellants.
C091172
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado)
Filed 12/21/22
CERTIFIED FOR PUBLICATION; Super. Ct. No. PC20190309
Weintraub Tobin Chediak Coleman Grodin and Brendan J. Begley for Defendants and Appellants.
Downey Brand, Sean J. Filippini and Christopher M. Kolkey for Plaintiff and Respondent.
Plaintiff City of Rocklin (City) filed an action against defendants Legacy Family Adventures-Rocklin, LLC, (LFA) and David Busch asserting 12 causes of action related to their joint undertaking involving the construction and operation of a theme park, Quarry Park Adventures. Defendants filed an anti-SLAPP1 special motion to strike the first four causes of action pursuant to
On appeal, defendants assert (1) their special motion to strike was not frivolous because, even if we conclude a theme park is not an artistic work, reasonable attorneys could differ on the matter, (2) the trial court erred in failing to follow the mandatory procedures set forth
FACTUAL AND PROCEDURAL BACKGROUND
Background and the City‘s Complaint
According to the complaint, in 2016, Busch approached the City with a proposal for an adventure park. He “trumpeted his unrivaled experience and expertise in developing amusement and adventure parks” in Texas and furnished the City with a financial statement to demonstrate that, “if the City invested millions of dollars to build the park, [Busch] would make it a financial success.”
On January 24, 2017, the Rocklin City Council met to consider whether to enter into a master agreement with LFA, of which Busch was chief executive officer and sole member. Busch “spoke extensively about his past successes with adventure and amusement parks and the unqualified success that the City‘s (yet to be constructed) Adventure Park would become under his direction.” He characterized two of the Texas parks as “wildly successful.”
However, according to the City, Busch “misrepresented and concealed that his only adventure park projects . . . were abject failures that were actively being investigated for child labor law violations.” According to the City, those Texas adventure parks were “operational and financial disasters.” They
The City alleged that, in reliance on Busch‘s misrepresentations and concealments, it entered into the master agreement with LFA. The adventure park, Quarry Park Adventures, was completed in September 2018 at a cost of $7 million, more than 200% higher than projected by LFA.
After the parties entered into a new operating agreement, and after the park opened, LFA furnished the City with revised projections. Among other things, year one operating profits were revised to an amount $300,000 less than projected six months earlier and the profits for the first three years were revised to be less than $600,000 as opposed to the $2 million originally projected. The revised projected attendance for the first 10 years was about half of prior projections. The revised projections established that LFA would not be able to honor its financial obligations to the City.
The City then performed a thorough investigation into Busch‘s background, which, according to the City, “revealed the . . . misrepresentations and concealments relating to Busch‘s Texas business dealings.” The City entered into an exit agreement with LFA requiring LFA to vacate the park and cede control to the City.
The City filed a complaint asserting 12 causes of action. Four causes of action would become the subject of defendants’ special motion to strike. The first cause of action, for fraud, pertained to Busch “tout[ing] his business acumen and alleged prior success in operating amusement parks, concealing and not disclosing his prior business failings,” and misrepresenting the successfulness and viability of the theme parks in Texas. The second cause of action, also for fraud, was based on defendants’ alleged misrepresentations and concealments “concerning the projected profitability and attendance levels for the adventure park, and the amount of capital necessary to design, construct, and operate the adventure park.” The third cause of action, for negligent misrepresentation, was based on Busch‘s “numerous material misrepresentations . . . , including but not limited to representations concerning his business acumen, his alleged prior success in operating amusement parks, the projected profitability and attendance levels for the adventure park, and the anticipated amount of capital necessary to design, construct, and operate [the] adventure park.” The fourth cause of action, for violation of the unfair
Defendants’ Special Motion to Strike
Defendants filed an anti-SLAPP special motion to strike the first four causes of action pursuant to
Defendants asserted that, because all challenged claims were based, at least in part, on protected activity, the burden shifted to the City to establish a probability of success on the merits. They asserted the City could not meet this burden. Defendants asserted Busch‘s communications before the Rocklin City Council were privileged under
Exline‘s Expert Declaration
In their memorandum of points and authorities, defendants did not address whether the speech at issue was commercial speech within the meaning of
Exline opined that theme parks should be included in the definition of art because of the “billions of attendees who have now experienced and had their perceptions transformed and emotions influenced by the art of theme parks.” He differentiated theme parks from amusement parks: “‘theme’ is another word for ‘story.’ So as you visit a theme park, you are visiting a ‘story park’ because the attractions are based upon stories or ideas rather than just being rides or conveyance systems set on an asphalt parking lot.” Exline continued: “theme parks are comparable to movies in that they both serve as a temporary escape from the daily travails of life while triggering the imagination and senses of patrons such that they become oriented to the themes that the park or movie projects.”
Much like a movie triggers the senses of viewers to orient to the emotions or stories or circumstances of the characters in the film, a theme park triggers the senses of patrons to orient to the theme(s) being projected there. Theme parks, like movies, create an atmosphere where the guest is immersed in an environment beyond their own. For example, Disneyland projects a theme of fantasy characters and well-known children‘s stories. Similarly, Marine World projects a theme of oceanic life, and Six Flags is themed on the six flags that flew over Texas during its fight for independence with Mexico. Likewise, Worlds of Fun (which is made up of five themed worlds) is based upon Jules Verne‘s Around the World in 80 Days.”
Exline also opined that Quarry Park Adventures as conceived constituted an artistic work. As we will discuss post, the trial court would sustain the City‘s evidentiary objection to these paragraphs.
The City‘s Opposition
In opposition, the City asserted its claims fell within the commercial speech exemption in
Defendants’ Reply
In reply, regarding the City‘s request for the imposition of sanctions, defendants only stated: “Defendants pause to note the City‘s frivolous claim that Defendants should be sanctioned for filing their anti-SLAPP motion. The City‘s position on this point is so facially untenable that it does not merit any further attention in this brief.”
Tentative Ruling
In a tentative ruling, the trial court denied defendants’ special motion to strike and granted the City‘s request for an award of attorney fees in an amount to be determined in a separate noticed motion.
The trial court sustained the City‘s objection to paragraphs 14 to 16 of Exline‘s declaration, in which he opined that Quarry Park Adventures was a work of art, as well as appended exhibit B, renderings on which Exline relied in forming his opinion, as inadmissible case-specific hearsay. The court further concluded that, to the extent Exline opined a theme park qualifies as an artistic work under
The trial court determined that the commercial speech exemption applied. The court further concluded the artistic work exception to the commercial speech exemption did not apply. The court stated that, to accept defendants’ argument would “exceed the Legislature‘s intent . . . beyond all reason . . . .”
Turning to the City‘s request for attorney fees, the trial court noted defendants had not cited case law directly supporting their position. The court concluded any reasonable attorney would agree that a motion asserting the subject speech amounted to communications concerning an artistic work under
After oral argument, the trial court adopted its tentative ruling, denying defendants’ special motion to strike and awarding the City attorney fees and costs pursuant to
unreasonable to argue the applicability of the artistic work exception (
Motion for Attorney Fees
The City moved for attorney fees and costs in the amount of $72,854.41. In the absence of a request for oral argument, the trial court adopted its tentative ruling, as modified, awarding the City attorney fees in the amount of $72,798.65 plus $1,053.31 in costs for a total award of $73,851.96.
DISCUSSION
I
The Anti-SLAPP Special Motion to Strike and Relevant Statutory Provisions
California‘s anti-SLAPP statute provides that “[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.” (
potentially subject to a
II
Whether Assertion of the Artistic Work Exception Was Frivolous
Defendants assert their special motion to strike and their invocation of the artistic work exception were meritorious or, at the least, not frivolous.
“If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney‘s fees to a plaintiff prevailing on the motion, pursuant to
In asserting the trial court‘s determination was erroneous, defendants raise contentions addressed to two general issues. The first issue is the trial court‘s evidentiary determinations. The second issue is the merits of the court‘s determination that their motion was frivolous because the speech at issue did not involve an artistic work within the meaning of
A. Evidentiary Determinations
Defendants assert the trial court erred in dismissing Exline‘s opinion that theme parks in general may be considered artistic works. In this regard, the court stated: “[T]o
the extent . . . Exline is purporting to state a legal opinion that the construction and operation of a Theme/Amusement Park is a creation, dissemination, exhibition, advertisement, or other similar promotion of any dramatic, literary, musical, political, or artistic work, the court will not consider such an opinion as binding. It is merely an inadmissible legal opinion/conclusion.” According to defendants, weighing the value of Exline‘s opinion in this manner was error.
Defendants rely on language relevant to weighing evidence in considering a special motion to strike. The Supreme Court has described the second step of the anti-SLAPP inquiry, where the plaintiff must establish a probability of prevailing on the merits, “‘as a “summary-judgment-like procedure.” [Citation.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally
Of course, the second step of the inquiry is not what is at issue here. Rather, here, at issue was the first step of the inquiry, whether “the challenged claim arises from activity protected by
court erred in stating that it would not consider Exline‘s opinion that a theme park can constitute an artistic work as “binding.” As we discuss immediately post, the court properly did not find itself bound to accept Exline‘s opinion that a theme park can constitute an artistic work and thus, in effect, cede to Exline the legal determination based on statutory interpretation as to whether a theme park can constitute an “artistic work” within the meaning of
An expert may testify to an opinion “[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.” (
Defendants contend that the trial court improperly substituted its own opinion about what is and is not art for Exline‘s opinion. We disagree. We conclude that the trial
court merely carried out its duty to interpret the statute and made its determination as a matter of law as to whether a theme park can qualify as an artistic work under
Defendants also assert the trial court committed error in excluding Exline‘s specific opinions that Quarry Park Adventures could be considered an artistic work. The trial court sustained the City‘s objections to paragraphs 14 to 16 of the Exline declaration. Those paragraphs contained Exline‘s description of Quarry Park Adventures, based on his review of renderings detailing defendants’ vision for the theme park, and his opinion based on that review that Quarry Park Adventures would constitute a work of art. The trial court correctly sustained the City‘s objection to so much of these paragraphs as relayed case-specific hearsay. (People v. Sanchez (2016) 63 Cal.4th 665, 676 [“Case-specific facts are those relating to the particular events and participants alleged to have been involved in the case being tried“], 686 [“What an expert cannot do is relate as true case-specific facts asserted in hearsay statements, unless they are independently proven by competent evidence or are covered by a hearsay exception“].) As defendants note, an “expert may still rely on hearsay in forming an opinion, and may tell the jury in general terms that he did so.” (Id. at p. 685.) However, Exline described the case-specific facts of the park as envisioned, which is why the court sustained the City‘s hearsay objection.
Defendants maintain that “even if it could be said that Exline‘s reliance on such material was problematic, the Superior Court was still required, as a matter of law, to consider his opinion.” They assert that, because they could cure at trial any admissibility issues related to the matters on which Exline relied, the trial court was obligated as a matter of law to consider those matters.6 They rely on Fashion 21 v. Coalition for
Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138 (Fashion 21). In Fashion 21, in the second step of the
Fashion 21 addresses the consideration of evidence in the second, summary-judgment-like step of the
In any event, assuming the rule in Fashion 21 applies to these different circumstances, assuming that rule is available to a defendant in attempting to satisfy the first step showing on a special motion to strike, assuming the hearsay objections would be easily overcome at trial, and assuming Exline‘s opinion testimony about the nature of the proposed theme park as envisioned would be admissible, we shall conclude in part
II.B., post, that the trial court properly determined that Quarry Park Adventures is not an artistic work within the statutory meaning of
Defendants also assert the trial court erred in excluding evidence they submitted with their opposition to the City‘s subsequent noticed fee motion relevant to whether reasonable attorneys could differ on whether a theme park can be deemed an artistic work and thus whether their motion was nonfrivolous. Defendants assert this was new evidence they “were precluded from filing previously” because they could not submit new evidence with their special motion to strike reply papers.
The case on which defendants rely states that “[t]he general rule of motion practice, which applies here, is that new evidence is not permitted with reply papers.” (Jay v. Mahaffey (2013) 218 Cal.App.4th 1522, 1537.) Based on this rule and logic, defendants could certainly
opportunity to respond and elected not to and after the court rendered its determination on the matter.
B. The Determination That the Motion Was Frivolous
Defendants maintain the trial court‘s “conclusions concerning the artistic-work [exception] were . . . prejudicially wrong,” and its “reasons for rejecting the artistic-work [exception] ran afoul of controlling precedents and fundamental principles of California law.” They assert that, even if we were to conclude a theme park is not an artistic work, reasonable attorneys could differ on the matter. Defendants emphasize that their expert‘s opinion supported their position and the absence of authority to the contrary. They assert their reliance on the artistic work exception presented a unique issue that no court had decided in a published decision.
The parties have not offered any case law directly addressing whether a theme park does or can constitute an artistic work within the meaning of
“‘Under settled canons of statutory construction, in construing a statute we ascertain the Legislature‘s intent in order to effectuate the law‘s purpose. [Citation.] We must look to the statute‘s words and give them their usual and ordinary meaning. [Citation.] The statute‘s plain meaning controls the court‘s interpretation unless its words are ambiguous.’ [Citations.] If the words in the statute do not, by themselves, provide a reliable indicator of legislative intent, ‘[s]tatutory ambiguities often may be resolved by examining the context in which the language appears and adopting the construction
It may be said that, like beauty, art is in the eye of the beholder. And it is self-evident that, while many might agree as to whether any given thing constitutes an artistic work, often, not all will. We do not find the language of
Nor is resorting to dictionary definitions particularly helpful here. Two definitions of “work,” among many, are “something produced or accomplished by effort, exertion, or exercise of skill,” and “something produced by the exercise of creative talent or expenditure of creative effort : artistic production.” (Merriam-Webster‘s Collegiate Dict. (11th ed. 2011) p. 1442.) Two definitions of “artistic” are “of, relating to, or characteristic of art or artists,” and “showing imaginative skill in arrangement or execution.” (Merriam-Webster‘s Collegiate Dict. (11th ed. 2011) p. 70.) “Art” is defined, among other things, as “the conscious use of skill and creative imagination esp. in the production of aesthetic objects; also : works so produced.” (Merriam-Webster‘s Collegiate Dict. (11th ed. 2011) p. 69.) In light of a degree of inherent ambiguity in such a term, we resort to extrinsic aids to assist in our interpretation of the statute.7
“The Senate Analysis of
dissemination of any works of a motion picture or television studio. For claims arising from these activities,
“However, subsequent analyses depict the scope of this subdivision in more expansive terms. An Assembly Committee report states that the subdivision would permit ‘the anti-SLAPP motion to be employed against claims arising from gathering, receiving or processing information for communication to the public by a publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, press association or wire service, . . . or an action based upon the creation or promotion of a dramatic, literary, musical, political or artistic work.’ [Citation.] It further indicates that the subdivision in question excludes ‘specified persons and entities, such as those engaged in speech-related activities, specified nonprofits, and actions against persons or entities based on the creation or promotion of constitutionally protected artistic works and the like.‘” (Major v. Silna (2005) 134 Cal.App.4th 1485, 1497 (Major), quoting Assem. Com. on Judiciary, Analysis of Sen. Bill No. 515 (2003-2004 Reg. Sess.) as amended June 27, 2003, pp. 3 & 12.)
Aided by this legislative history, we conclude Quarry Park Adventures is not an enterprise of the character intended to be excepted from the commercial speech exemption to
information gathering or dissemination or anything remotely similar. (See Sen. Com. on Judiciary, Analysis of Sen. Bill No. 515 (2003-2004 Reg. Sess.) as amended May 1, 2003, p. 14; Dyer v. Childress, supra, 147 Cal.App.4th at p. 1283; Ingels v. Westwood One Broadcasting Services, Inc., supra, 129 Cal.App.4th at pp. 1067-1068.) Moreover, we would not characterize Quarry Park Adventures as involving constitutionally protected artistic works. (See Assem. Com. on Judiciary, Analysis of Sen. Bill No. 515 (2003-2004 Reg. Sess.) as amended June 27, 2003, pp. 3 & 12; Major, supra, 134 Cal.App.4th at p. 1497.)
Furthermore, while the parameters of what constitutes art may not be precisely clear, not everything can be called art. This is what undermines Exline‘s attempt at a definition of art: that definition is so broad it essentially encompasses everything. As the City urged, and the trial court concluded, this
Defendants assert the trial court misapplied or misunderstood the doctrine of ejusdem generis. ”Ejusdem generis means ‘of the same kind’ [citation], and provides that, ‘when a particular class of things modifies general words, those general words are construed as applying only to things of the same nature or class as those enumerated. [Citation.] This canon of statutory construction . . . “applies whether the specific words follow general words in a statute or vice versa. In either event, the general term or category is ‘restricted to those things that are similar to those which are enumerated specifically.‘“‘” (People v. Lucero, supra, 41 Cal.App.5th at p. 398.) Defendants assert the trial court improperly concluded that something only qualifies as an artistic work if it is of the specific type of work appearing in the statute. During oral argument, the trial court did ask whether the examples in the statute indicated “that they are definitely not talking about theme parks.” As defendants pointed out, “The phrase ‘including, but not limited to’ is a term of enlargement, and signals the Legislature‘s
intent that subdivision (d)(2) applies to items not specifically listed in the provision.” (Major, supra, 134 Cal.App.4th at p. 1495.) We see no indication the trial court misconstrued or misapplied the doctrine of ejusdem generis.
Defendants urge that, if we affirm, “it would be injudicious” for us to do so without providing “a suitable definition of art.” Of course, if there is to be a particular definition of what constitutes an artistic work, that is for the Legislature to supply. In our role of interpreting the law, we will not go so far as to draft and set forth what we believe to be the Legislature‘s intended definition of what constitutes an artistic work. (See California Teachers Assn. v. Governing Bd. of Rialto Unified School Dist. (1997) 14 Cal.4th 627, 633 [“‘the judicial role in a democratic society is fundamentally to interpret laws, not to write them. The latter power belongs primarily to the people and the political branches of government‘“].)
In sum, we conclude the trial court did not abuse its discretion in awarding attorney fees to the City pursuant to
Whether the Trial Court Failed to Follow Proper Procedure
Defendants assert the trial court failed to follow the mandatory procedures of
separate motion papers (
Because they did not raise their contentions concerning
IV
Due Process
Defendants assert that affirming the order and allowing the imposition of sanctions to stand will violate due process.
First, defendants assert that, because there has been no published decision leaving no doubt about the merit of their position, sanctioning them would violate due process. We have rejected defendants’ advancement of this standard, and thus there is no due process violation.9
Defendants assert that they “were prejudiced by the arbitrary rotation of trial judges,” and that the “musical chairs of jurists . . . frustrated due process.” They claim Judge Sullivan prepared the tentative ruling but then went on vacation, placing Judge Olney “in the awkward position of contradicting the inclination of the regular judge . . . .”10 Then, a third judge, Judge Proud, entertained the subsequent motion for attorney fees.11
Defendants assert that “[h]ad Judge Olney adjudicated the fees motion, he would have been free to reconsider his prior ruling based upon new evidence that Defendants submitted.” Regardless of whether or not Judge Proud lacked the authority to reconsider a decision issued by Judge Olney, a different judge sitting in the same court (see International Ins. Co. v. Superior Court (1998) 62 Cal.App.4th 784, 786, fn. 2 [although
“an order made by one judge ordinarily cannot be reconsidered by another judge of the same court, the unavailability of the first judge (such as by retirement) authorizes a new judge to entertain the reconsideration motion“]), defendants did not file a motion for reconsideration (
Defendants also raise the possibility of Judge Olney choosing to reconsider his finding of frivolousness on the court‘s own motion. We cannot conclude
Defendants further assert a due process violation resulted from the fact that a judge who did not participate in the underlying proceedings was not in as good a position to rule on the request for fees. Defendants rely on the principle that “the experienced trial judge is best positioned to evaluate the professional services rendered in his or her courtroom.” (Mikhaeilpoor v. BMW of North America, LLC (2020) 48 Cal.App.5th 240, 246.) This principle refers to the fact that a trial judge, considering matters unfolding in the trial court, is better suited to evaluate those matters than the appellate court reviewing the paper record. This principle does not suggest a due process violation occurred here because more than one judge was involved in the proceedings.
Defendants have not established any violation of their due process rights.
V
The City‘s Entitlement to Fees and Costs on Appeal
The City asserts that, if we affirm, we should direct the trial court to award the City its appellate attorney fees and costs.
“““A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise.” ” ” (Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1426; accord, Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499.)
The City successfully opposed defendants’ special motion to strike and the trial court found the motion to be frivolous, a determination we are affirming.
DISPOSITION
The order granting the City‘s motion for attorney fees and costs is affirmed. The City shall recover its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1), (2).) The matter is remanded for a determination of the City‘s attorney fees on this appeal.
HOCH, J.
We concur:
MAURO, Acting P. J.
BOULWARE EURIE, J.