Opinion
Robert Holbrook and Herb Katz, both members of the Santa Monica City Council, filed a petition for writ of mandate and complaint for declaratory relief claiming that the city council’s meetings violated the California and United States Constitutions, the Ralph M. Brown Act (Brown Act) (Gov. Code, 1 § 54950 et seq.), and the California Occupational Safety and Health Act of 1973 (Lab. Code, § 6300 et seq.) (Cal-OSHA). The trial court sustained the City of Santa Monica’s demurrer and granted its special motion to strike, and then entered judgment in the city’s favor. We affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The gravamen of Holbrook and Katz’s lawsuit is the fact that Santa Monica City Council meetings frequently run late into the night and include public comment as the final order of business. Forcing the public to wait so
long
The City of Santa Monica filed a demurrer and a special motion to strike the complaint as a strategic lawsuit against public participation (SLAPP) pursuant to California Code of Civil Procedure section 425.16.
The trial court granted the special motion to strike on the grounds that the lawsuit arose from an act by the city in furtherance of the right of free speech, and that plaintiffs could not show that they were likely to prevail in their lawsuit because they lacked standing to sue. The
DISCUSSION
I. Applicability of Code of Civil Procedure Section 425.16
The majority of Holbrook and Katz’s action—all but the final cause of action under the Labor Code—is governed by Code of Civil Procedure section 425.16, the anti-SLAPP statute. The anti-SLAPP statute targets lawsuits that chill “a party’s constitutional right of petition” or free speech
(State Farm General Ins. Co.
v.
Majorino
(2002)
Code of Civil Procedure “[s]ection 425.16 posits ... a two-step process for determining whether an action is a SLAPP. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. ([Code Civ. Proc.,] § 425.16, subd. (b)(1).) ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in [Code of Civil Procedure] section 425.16, subdivision (e)’
(Braun v. Chronicle Publishing Co.
(1997)
Here, with respect to Holbrook and Katz’s constitutional claims and asserted violations of the Brown Act, the causes of action arise from protected activity: governmental speech and legislative action at city council meetings. For purposes of the anti-SLAPP statute, an “ ‘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 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; (4) or 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.” (Code Civ. Proc., § 425.16, subd. (e).)
All four criteria are satisfied here. The city council’s exercise of its right of free
Holbrook and Katz argue, however, that the anti-SLAPP statute does not apply to their third and fourth causes of action, which assert violations of section 54954.3, subdivisions (a) and (b). Holbrook and Katz argue that the city cannot bring an anti-SLAPP motion that is designed to protect rights other than its own and conclude that the third and fourth causes of action do not pertain to the city’s speech or petition rights because their claims do “not in any way curfew City or council member speech or petition” and only “challenge[] the City’s scheduling of public comment after 11:00 p.m. If the City wishes to exercise its First Amendment rights or anything else after 11:00 p.m. under this cause of action it may, so long as its [sic] holds public comment beforehand.”
This is entirely inconsistent with Holbrook and Katz’s petition and complaint, in which they demand that the city council be “command[ed] ... to adjour[n] and complete their meetings prior to 11:00 p.m.,” and enjoined from “holding any meeting which stays in session beyond 11:00 p.m.” We are unable to reconcile these demands with Holbrook and Katz’s assertion that their claims do “not in any way curfew City or council member speech or petition.” How may the city council freely “exercise its First Amendment rights or anything else after 11:00 p.m. under this cause of action,” while at the same time it is to be compelled to conclude all meetings by 11:00 p.m.? Far from attempting to use the anti-SLAPP statute as a means of protecting others’ speech rights, the city opposes a complaint that arises from—and is designed to restrict the city council’s ability to hold—public meetings during which council members exercise their own freedoms of speech and petition in their interactions with other council members and with the public, and the city council, a legislative body, exercises its freedom of speech and considers issues of public concern. Holbrook and Katz have not established with this argument that these causes of action fall outside the ambit of Code of Civil Procedure section 425.16.
Holbrook and Katz also argue that the action does not arise from protected activity because they are challenging a content-neutral act of governance. They rely on
City of Cotati
v.
Cashman, supra,
This argument lacks merit. First, the petition and complaint does not challenge Resolution No. 9932—in fact, it does not even mention that resolution, which is no surprise because the petition and complaint was filed before Resolution No. 9932 was enacted. 2 More importantly, this lawsuit arises from the existence of prolonged City Council meetings, not from a resolution. Resolution No. 9932 does not mandate late-night meetings. 3 In the pertinent causes of action, Holbrook and Katz do not attack the resolution, but the late-night meetings, which they contend violate the Brown Act and the state and federal Constitutions because neither council members nor the public should be expected to address their government so late at night. This is a challenge to the legislative body’s conduct of public meetings, not to the procedural elements of a resolution or to the resolution’s compatibility with other state laws. It is the actual practice of holding late-running city council meetings—of the council engaging in the business of governing, with the accompanying exercise of speech and petition rights until late at night—that prompts this action. This argument does not establish that Code of Civil Procedure section 425.16 does not apply to these causes of action.
Finally, Holbrook and Katz claim that the safe harbor provision of Code of Civil Procedure section 425.17, subdivision (b) removes their action from the sweep of the anti-SLAPP statute. Code of Civil Procedure section 425.17, a legislative response to perceived abuse of the anti-SLAPP statute, provides that the anti-SLAPP law does not apply to “any action brought solely in the public interest or on behalf of the general public if all the following conditions exist: [f] (1) The plaintiff does not seek any relief greater than or different from the relief sought for the general public or the class of which the plaintiff is a member. ... [I] (2) The action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons, [f] (3) Private enforcement is necessary and places a disproportionate financial burden on the plaintiff in relation to the plaintiff’s stake in the matter.” (Code Civ. Proc., § 425.17, subd. (b).)
The trial court concluded that this exception did not apply because the action was not brought solely in the public interest, as it concerned Holbrook and Katz’s preferences for particular working hours. We agree that the action is certainly not brought solely in the public interest, as Holbrook and Katz complain extensively in
Finally, even if we assume that private enforcement is necessary here, we see nothing disproportionate about the dissenting city council members bearing the cost of the litigation, for while the relief they seek may not be different than the relief the general public would receive, Holbrook and Katz (who have been outnumbered in their opposition to late-night meetings) stand chiefly to benefit from the cap on meeting times that they seek. The safe harbor provision of Code of Civil Procedure section 425.17, subdivision (b) does not apply here.
II. Likelihood of Success on the Merits
When a defendant makes a prima facie showing that a cause of action arises out of protected activity, the trial court must then determine whether
the plaintiff has demonstrated a probability of prevailing on the claim. (Code Civ. Proc., § 425.16, subd. (b)(1).) The trial court concluded that Holbrook and Katz did not demonstrate a probability of success on the merits because they lacked standing, and granted the special motion to strike. Holbrook and Katz contend that the trial court erred in its ruling on the special motion to strike because they do in fact have standing to sue. We review the court’s ruling de novo.
(Thomas v. Quintero
(2005)
Relying on
Carsten v. Psychology Examining Com.
(1980)
A. Beneficial Interest
To obtain a writ of mandate a petitioner must have a beneficial interest in the matter. (Code Civ. Proc., § 1086.) “The requirement that a petitioner be ‘beneficially interested’ has been generally interpreted to mean that one may obtain the writ only if the person has some special interest to be served or some particular right to be preserved or protected over and above the interest held in common with the public at large.”
(Carsten, supra,
Holbrook and Katz claim that they have “a beneficial interest in the competent exercise of their rights and duties as public officials and in a safe and healthy workplace.” They argue that working what they claim to be 20-hour days on meeting days creates an unhealthy and unsafe working environment, and that the long hours hamper them in performing their official duties as council members because they struggle to digest information when they are tired, have difficulty asking questions and representing their constituents competently late at night, and sometimes leave before meetings conclude.
The problem for Holbrook and Katz is that the courts have not recognized a beneficial interest in the operation of the governmental entity arising from membership in that entity. In neither
Carsten, supra,
Holbrook and Katz complain in their constitutional cause of action that “Plaintiffs/Petitioners[’] and the City[’]s residents^] rights to instruct their representatives and petition the government have been and will continue to be violated. Defendants/Respondents cannot expect Plaintiffs/Petitioners or the public in general to address their government at such late night hours and under such unreasonable circumstances.” In their first Brown Act claim, they assert that the result of the late-night meetings is that “the later part of the City Council meetings are not open and public. Plaintiffs/Petitioners, and the general public, are being denied their right to attend meetings, address their elected representatives, and take an active part in open government.” In their second and third Brown Act claims, Holbrook and Katz neglect to mention themselves at all, alleging only that “members of the public are not afforded an opportunity to address the City Council at the Public Comment period” because the meetings run so late, effectively denying “members of the public . . . their opportunity to address the City Council,” and that “[m]embers of the public cannot be expected to stay up until such hours to address their legislature.” None of these allegations demonstrate any beneficial interest on the part of Holbrook and Katz that differs from the general interest of all citizens in the effective and legal operation of their governmental entities.
Not only do Holbrook and Katz assert no interest that differs from that of the general public, they claim no personal damages or consequences distinct from those of the populace that could create a beneficial interest in them. Instead, they allege that “[t]he violations committed by the Defendants/Respondents are continuing and are causing grievous harm to numerous members of the public,” and that the late-night meetings inflict “irreparable damage to the operation of our system of
All these allegations pertain to the effective operation of government and the rights of the public, not to specific interests or rights of Holbrook and Katz individually. We cannot discern any reason why the public would have any less interest than the council members in a city council in which members fulfill their duties as public officials and operate in accordance with applicable law. As no beneficial interest in the workings of a governmental entity is conferred by serving on that entity, Holbrook and Katz have not established any beneficial interest sufficient to confer standing. 5
Holbrook and Katz analogize their situation to that in
Degrassi v. Cook
(2002)
B. Brown Act Standing
As Holbrook and Katz have not demonstrated that they have a beneficial interest sufficient to confer standing to petition for writ of mandate, we then turn to their alternative proffered ground for standing: the Brown Act. Section 54960, subdivision (a) provides that “The district attorney or any interested person may commence an action by mandamus, injunction or declaratory relief for the purpose of stopping or preventing violations or threatened violations of [the Brown Act] by members of the legislative body of a local agency or to determine the applicability of [the Brown Act] to actions or threatened future action of the legislative body, or to determine whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid or invalid under the laws of this state or of the United States . . . .” Similarly, section 54960.1, subdivision (a) entitles the district attorney or “any interested person” to “commence an action by mandamus or injunction for the purpose of obtaining a judicial determination that an action taken by a legislative body of a local agency in violation of [specified sections of the Brown Act] is null and void under this section.” Holbrook and Katz contend that they are interested persons within the meaning of the Brown Act and thus have statutory standing to bring their suit.
The term “any interested person” has been defined broadly for purposes of the Brown Act. In
McKee
v.
Orange Unified School Dist.
(2003)
The court in
McKee
observed the similarities between this prefatory language in the Brown Act and assertions of fundamental rights of citizenship in important American documents and speeches: “The principles articulated in the Brown Act’s statement of intent echo the preamble to the United States Constitution, beginning ‘We the People,’ and President Lincoln’s statement in the Gettysburg Address that our government is one ‘of the people, by the people, for the people.’ The Brown Act similarly reflects the objective of the Declaration of Independence to provide an open government: ‘We hold these truths
The
McKee
court emphasized that the rights at which the Brown Act is directed are the core rights of citizens: “[T]he right to disclosure under the Brown Act is an attribute of
citizenship
of the State of California.”
(McKee, supra,
Although Holbrook and Katz argue that
McKee
establishes that they have standing to sue here,
McKee
actually is fatal to their claim.
McKee
demonstrates thoroughly and persuasively that the standing conferred by the Brown Act is standing based on citizenship—precisely the kind of standing that a citizen forfeits when he or she becomes a public official. (See
Green v. Obledo
(1981)
The Supreme Court offered what it termed “persuasive legal and policy reasons” why citizen-taxpayer standing may not be exercised by public officials to sue the governmental body on which they serve.
(Carsten, supra,
Finally, significant policy concerns “militate against permitting disgruntled governmental agency members to seek extraordinary writs from the courts. Unquestionably the ready availability of court litigation will be disruptive to the administrative process and antithetical to its underlying purpose of providing expeditious disposition of problems in a specialized field without recourse to the judiciary. Board members will be compelled to testify against each other, to attack members with conflicting views and justify their own positions taken in administrative hearings, and to reveal internal discussions and deliberations. Litigation—even the threat of litigation—is certain to affect the working relationship among board members. In addition, the defense of lawsuits brought by dissident board members—and such suits would undoubtedly be frequent—will severely tax the limited budgetary resources of most public agencies.”
(Carsten, supra,
The Supreme Court acknowledged that public officials are also taxpayers (and of course state citizens), but noted that these types of suits arise not from the petitioners’ everyday experience as taxpaying citizens, but from their experiences in government: “While it is true that this petitioner is not only a board member but also a taxpayer, it is as a board member that she acquired her knowledge of the events upon which she bases the lawsuit. Her interest in the subject matter was piqued by service on the board, not by virtue of the neutrality of citizenship. The suit was brought in the former, not the latter capacity.”
(Carsten, supra,
We think the Supreme Court’s conclusion entirely applicable here in the context of legislators attempting to exercise citizen-taxpayer standing to sue the legislative body on which they sit. The standing Holbrook and Katz seek to assert is based on the same fundamental citizenship rights as the citizen-taxpayer standing asserted by the petitioner in
Carsten, supra,
HI. The Labor Code Cause of Action *
DISPOSITION
The judgment is affirmed. The City of Santa Monica shall recover its costs, if any, on appeal.
Perluss, P. J., and Johnson, J., concurred.
Appellants’ petition for review by the Supreme Court was denied February 21, 2007, S148971.
Notes
Unless otherwise indicated, all further references are to the Government Code.
The petition and complaint does describe two resolutions, Santa Monica City Council Resolution Nos. 9614 and 9698, both of which were repealed by Resolution No. 9932.
Resolution No. 9932 provides that “Unless otherwise determined by a majority of those Councilmembers present, all City Council meetings shall adjourn at 11:00 p.m., or as soon thereafter as the requirements of state law governing public comment are fulfilled.”
The City of Santa Monica, in connection with this issue, filed a request for judicial notice of the agenda dated August 8, 2006, which was denied. The city subsequently filed a request for reconsideration which the court has also denied.
Were Holbrook and Katz subject to particular liabilities by virtue of their membership on the city council, the beneficial interest analysis might well be different. Damages, however, are not among the remedies provided by law for a violation of the Brown Act (§§ 54960, 54960.1, 54960.5), and to the extent costs and fees are available to successful Brown Act litigants, the Brown Act specifically provides that those costs and fees will not be borne personally by government officials or employees. (§ 54960.5.) Section 54959 makes it a misdemeanor for a member of a legislative body to attend a meeting of that body if action is taken in violation of the Brown Act and if the member intends to deprive the public of information to which the member knows or has reason to know the public is entitled under the Brown Act. Nothing in the record before us suggests any possibility that Holbrook or Katz could possibly face criminal liability for the alleged Brown Act violations here: They have not asserted that they had the requisite intent to deny the public information to which the public was entitled, nor have they raised the specter of criminal prosecution as a threat to them. The mere existence of criminal penalties for certain deliberate violations of the Brown Act cannot confer a beneficial interest on Holbrook and Katz as it appears inconceivable that they would face charges under the facts in this record.
Holbrook and Katz allege that they are beneficially interested in the issuance of the writ of mandate because “they have a right to the performance of [the city’s] duties and are concerned that [the city] perform its clear, present and ministerial duty under the law to give members of the public an opportunity to address the City Council at a reasonable hour.” They assert that “[t]he duty at issue is one of public right,” and that they seek a writ of mandate “to procure the enforcement of a public duty or to prohibit the named Defendants/Respondents from continuing to act contrary to their public duty.”
We recognize that in
Ingram
v.
Flippo
(1999)
Similarly, in
Johnson v. Bradley
(1992)
See footnote, ante, page 1242.