*1 Dist., D040627. Fourth Div. One. Dec. [No. 2003.] L.P., PADRES Plaintiff and Respondent, HENDERSON,
J. BRUCE Defendant and Appellant.
Counsel B. Cannon and M. Roy for Defendant and Stephen Hogan Appellant. Freidenrich, Gray, Cary, Ware & E. Karcher and Kathryn Mark C. Zebrowski Plaintiff and Respondent. Mullin, Richter & B. Sheppard, Karin Hampton, Timothy Taylor Dougan for San Vogel Diego Chamber of Commerce Regional as Amicus Curiae on behalf of Plaintiff and Respondent.
Opinion McINTYRE, J. L.P., the owner of the San Diego Padres Major Padres Baseball League (the Padres), Team sued J. Bruce Attorney Henderson for malicious prosecution out of a arising series of lawsuits he filed challenging actions taken (the San Diego City), collaboration with the Padres, to a new baseball develop denial park. appeals partial of his motion to special strike the Padres’ malicious claims prosecution to Code of Civil pursuant Procedure section 425.16 known (commonly as anti-SLAPP statute). (All references are statutory to the Code of Civil Procedure that, unless otherwise He specified.) contends in accordance with Beach Long 527, (1982) 31 Cal.3d Bozek Cal.Rptr. [183 (Bozek), 645 P.2d vacated judgment and cause remanded (1983) 137] U.S. 712], L.Ed. 2d 103 S.Ct. [74 reiterated 33 Cal.3d 1072], 661 P.2d Cal.Rptr. he was to file absolutely privileged actions and underlying thus the Padres cannot sue him for malicious that, He also prosecution. to the argues extent their claims are not otherwise barred, the Padres did not meet their burden statutory showing probabil ity of success on their malicious causes of action. find We that no absolute privilege actions, applies Henderson’s filing but underlying agree that the Padres have not made the of lack of requisite showing cause in of two support of their three malicious prosecution claims. We action, reverse the trial court’s order as to those causes of but it affirm as to claim. remaining FACTUAL AND PROCEDURAL BACKGROUND Much of the factual and is taken from procedural background this court’s unpublished in the opinions actions prior involving City, Padres Henderson.
Since Qualcomm (for- has owned and Stadium operated Jack merly, Stadium and Stadium) San Murphy originally Diego home field team; for the San Diego National Football Chargers League football *7 1996, In field for the Padres. has also been the home since the stadium needed its the Padres a force to determine whether established task City and to to remain competitive have the opportunity in order “to own ballpark so, and, should City participate if whether the stable” financially become in the force answered both questions after the task its development. and affirmative, recommend a site another task force to formed City 1998[,] January for a new baseball ballpark. alternatives financing “[I]n be new facility . . . that the recommending proposed a task force issued report in order to San Diego, effort in downtown a larger redevelopment part Padres began and the the benefits of redevelopment.” obtain and of a redevelopment for the construction ballpark negotiations area. surrounding an enacted an election ordinance placing the City
In early August ballot. Proposition C on the November 1998 known as Proposition initiative (MOU) understanding a to enter memorandum C called for the into other agencies regarding the Padres and certain with agreements and related in the Centre the construction of ballpark, including redevelopment project, (2001) 86 v. Dunkl (City Diego San East area of downtown. (Dunkl).) Cal.Rptr.2d 388-390 269] Cal.App.4th ordinance, Henderson filed election after the Shortly passage and declaratory injunctive for writ relief and complaint for petition Mailhot Jerry and others on behalf of the Padres City, relief against GIC723318) No. County, Ct. San (Mailhot Diego v. Abdelnour (Super. C, and the ballot the MOU that (Mailhot I)). alleged Proposition The petition statements; C violated that Proposition contained misleading materials duties on a and private by conferring rights imposing California Constitution violated, the San the California Constitution’s that C entity; Proposition rule; a vote on Charter) “one subject” Charter’s (City Diego City certified had not or the City prepared because C was premature Proposition under (EIR) required project report an environmental impact Code, et. (Pub. seq. Resources Act Quality § Environmental California Charter, vote was that, a two-thirds to the City (CEQA)); pursuant financial obligations the City’s C because Proposition required pass exceeding year fiscal a debt for 1998-1999 thereunder constituted in its Henderson’s writ petition The court denied resources. available City’s 9, 1998. on November and entered judgment entirety September from judgment. noticed an appeal C a 60 election, the voters approved Proposition In the November 1998 certain the Padres and the City, and thereafter margin to 40 percent percent (Dunkl, Cal.App.4th the MOU. executed agencies redevelopment toward the contribution financial City’s 389.) The MOU provided *8 million, $225 would be at with the Padres ballpark project capped responsible $115 for million and amounts needed to cover cost contributing any ballpark overruns. The included MOU a number of matters the City’s requiring issues facilities and infra- subsequent approval, including relating parking structure and the Padres’ of sufficient assurances provision regarding ancillary (Id. The MOU was conditioned on the development. City’s also $225 to obtain for its million contribution on ability financing reasonably terms, (Ibid.) on a basis. acceptable fully tax-exempt 1999, In the Council February City an ordinance the passed amending annual ordinance it had appropriation for fiscal previously adopted year 1998-1999. The amendment established a capital improvements program, $225 million for the appropriated authorized the transfer ballpark project $3,500,000 of to the ($225 as interim capital improvements program funding time, Ordinance). Million At the the made a Appropriation City finding its the ordinance was not a adoption to the “project” subject requirements CEQA.
In March Henderson filed a second action on Mailhot’s behalf (Mailhot the City v. San Diego (Super. against City, Padres and others (Mailhot II)). Ct. San Diego GIC728676) No. County, This action $225 to invalidate the sought Million Ordinance on Appropriation grounds (1) ordinance constituted a adoption under “project” CEQA of an environmental requiring preparation (EIR) impact report (2) and/or was an amendment of the improper midyear previously adopted annual ordinance and appropriation violated the “balanced City Charter’s budget” requirements.
In July Council its annual City ordinance adopted appropriation for (1999 fiscal year Ordinance), 1999-2000 Annual which set Appropriation forth for its City’s budget 1999-2000 fiscal year. City’s budget contained an executive summary revenues and which in- expenditures, cluded estimated $225 revenues for the million from “Lease project Revenue Bonds” and the $225 million as a previously appropriated “special project” expenditure. August court denied Henderson’s superior requests II, in Mailhot (1)
relief finding CEQA action for an alleged statutes; (2) violation was not filed under the validation properly $225 Million Ordinance did not violate Appropriation Charter; (3) the third cause of action for a mandate rendered writ of was by Coalition Excellence moot Advocating Redevelopment San Diego GIC730641) Ct. San No. (Super. Diego County, of Coalition (the action)), in which the court further work on the enjoined EIR; of an ballpark project pending preparation a two-thirds vote required contention that appropriation Henderson’s could not and therefore raised in his pleadings the electorate was not properly the resulting judgment. noticed an from be considered. Henderson appeal court, affirmed the II this court While Mailhot in the superior pending I in an The decision held in Mailhot opinion. unpublished judgment in the did $225 invest million project MOU’s provisions requiring and that the act of placing a two-thirds vote a “debt” requiring not constitute *9 CEQA and thus as defined by ballot was not a C on the “project” Proposition 23, (Mailhot v. Abdelnour (July an EIR. the did not require preparation thereafter, an EIR 1999, the certified D032123) City Shortly [nonpub. opn.].) for the ballpark project. 1999, the the Padres City, a third action against Henderson filed
In August behalf, Annual the 1999 to invalidate seeking on Mailhot’s others the $225 million for it Ordinance insofar as appropriated Appropriation (Mailhot San County, Ct. San City Diego (Super. Diego v. ballpark project III)). Henderson (Mailhot 1999, alleged In his GIC734367) complaint, No. including certain Charter City provisions, that the violated appropriation 99, CEQA. section Zoebisch filed a notice Kane Dunkl and Philip
In November Michael voters, the the If by circulate an initiative petition. adopted of intent that certain have made initiative) findings C would (the initiative Proposition failed, the have terminated C had would by Proposition conditions required and would have imposed under the MOU contingent obligations City’s or incur could reinstate City before two-thirds voter approval requirement 388, 390-391.) In (Dunkl, at 86 Cal.App.4th supra, pp. obligations. similar alleging actions filed relief declaratory and the Padres City January not be on invalid and should placed C initiative was that the Proposition in the Dunkl and Zoebisch (Id. 388.) at Henderson represented ballot. p. 388, 396, 402.) id. at pp. (See actions. coordinated authorizing enacted an ordinance the City Also in January finance and fund its bonds to in lease revenue $299 million issuance later, Ordinance). A month Bond (the to the ballpark project contribution on behalf of Padres and others City, filed an action against San Diego County, Ct. San (Currie City Diego (Super. Steven J. Currie and asserting (Currie)), seeking a writ of mandate GIC743443) No. The action Ordinance. invalidate the Bond relief to declaratory claim for $225 million cap C’s exceeded Proposition the Bond Ordinance that alleged Annual and violated in the ballpark project on the investment City’s budget balanced requirement Charter’s and the Ordinance Appropriation It that year. budget exceed the authorized would because the expenditure also certain argued conditions C had not subsequent required by Proposition been met and that the Padres had not made certain disclosures under required Charter section 225. the trial February court motions granted summary judgment and the Padres in their action C challenging Proposition initiative. It ruled that the factual set forth in the initiative findings proposed were of the made in an administra- type normally by governmental agency decision, tive and because those were administrative rather than findings nature, legislative were not for determination proper subjects (Dunkl, initiative. Cal.App.4th 1, 2000,
On March Henderson and Zoebisch at the city clerk’s appeared office to a referendum on the place ballot to the Bond Ordinance repeal or (the submit its terms initiative). voters Bond Ordinance the fact Despite ballot, this was the last date to submit matters for inclusion on the men left the office without leaving with the referendary petitions city clerk after being advised the clerk would accept petitions only *10 provisionally, subject verification of Henderson and validity. Zoebisch week, continued to collect signatures thereafter. Within a filed an Henderson (Zoebisch action on Zoebisch’s behalf v. Abdelnour Ct. San (Super. Diego 2000, clerk, GIC44483) (Zoebisch) No. County, the the )against city the City, others, and Padres that the alleging Bond Ordinance initiative was valid and submitted, properly thus its the on ballot. requiring placement 2000, In late March the trial court rejected Henderson’s contentions in Currie and granted the motion City’s (in which the summary judgment Padres in that joined) action. It found that the Bond Ordinance did exceed not the funding referenced in C and the cap Proposition MOU because the cap was not intended to include costs of It also held that obtaining financing. because the would not be ballpark the fiscal completed during 1999-2000 the year, $225 City’s million contribution would not have to be in its paid that and entirety during year thus did not violate the balanced budget The court also concluded requirement. that Charter section 225 City was not Padres and thus no applicable disclosure was It rendered required. judgment favor of the defendants on all of Currie’s claims and again Henderson appealed. thereafter,
Shortly court motion for sum- superior granted City’s (in mary judgment which the Padres III. joined) Mailhot The court found (1) $225 million annual in the Annual appropriation 1999 Appropria- tion (2) Ordinance was not a CEQA; the action was not “project” subject claim; (3) of validation did properly not complaint plead a claim that the violated the terms of the MOU and therefore appropriation claim was entered such a barred. It in favor of the and the judgment City from Padres. Henderson filed an appeal judgment. 2000,
In the trial court in favor of the May granted summary judgment named in Zoebisch. The found that the Bond defendants court proposed Ordinance initiative was invalid because it involved acts and administrative that the were not submitted. supporting timely petitions 2000, filed a on behalf August
In of Mailhot complaint (Skane GIC752505) County, Bruce Skane v. San No. Diego others, (Skane)) the Padres and that the against City, alleging City’s the Padres business transactions with were void due to conflicts prohibited interest made affiliates to involving Padres or its members gifts Council, that the under C and the MOU City’s obligations Proposition $10 had to their own terms and that a resolution pursuant authorizing expired million in interim for the under the financing invalid ballpark project Charter. The also Skane Padres had violated complaint alleged Act and the Influenced and Cartwright Organiza- Racketeering Corrupt (RICO) tions Act and had committed unfair business In October practices. and November Henderson recorded three lis pendens against property being that was for the based on Skane lawsuit. ballpark acquired project, trial court leave to January in Skane sustained without Act, the Padres’ to the RICO and amend demurrers unfair business Cartwright claims were on the those claims barred practice ground R. (Eastern (1961) doctrine v. Noerr Motor 365 U.S. Noerr-Pennington Conf. 523]; 127 L.Ed.2d S.Ct. Mine Pennington Workers [5 S.Ct. The court 1585]). granted U.S. L.Ed.2d motion *11 affect Henderson’s lis because the Skane did not expunge pendens complaint the title to or the real awarded and the and the possession City property motion, reasonable and in the Padres fees costs incurred attorney bringing the lis filed substantial finding that had been without implicitly pendens Proc., 2001, (see 405.38). Civ. the court August Code justification § entered of the noticed an from in favor Padres. Henderson judgment appeal the trial court’s rulings. 2000, court the Mailhot II. judgment
In November this affirmed in D034827, that (Mailhot City v. We held Diego, opn.].) San 2000 [nonpub. barred were claims were not because although procedurally Mailhot’s action, the lack of an moot as a “validation” his EIR was brought challenge an that Concluding in of the certification of EIR for the light project. City’s $225 Million Ordinance violative Mailhot’s to the as challenge Appropriation I, raised in Mailhot “essentially argument” of the Charter was same City that “no difference” between the MOU’s meaningful we held there was and the itself for appropriation provision appropriation purposes applying that, Charter’s vote City based on the supermajority requirement rejection I, of the in Mailhot Henderson argument to raise it collaterally estopped the decision held that the again. Finally, was not an mid-year appropriation amendment to the improper City’s 1999 Annual Ordinance. Appropriation In January this court affirmed the trial court’s granting summary in favor of the judgment and the Padres in their action City challenging C initiative. We concluded that Proposition C and the MOU Proposition constituted acts legislative for the and conferred establishing policy City, on City authority MOU implement by necessary appropriate (Dunkl, administrative and nonlegislative acts. Cal.App.4th 390, 402.) C pp. Noting authorized to amend or Proposition City modify agreements “as determined council [C]ity to be in the best interests of the to the City, criteria that the rights shall not increased,” be decreased and its not obligations we held that the determina- tion of whether certain conditions set forth in C had been Proposition and, satisfied was an such, administrative determination vested in the City those determinations could not be overturned aby voter initiative. proposed (Id. 399-402.) at pp.
inAlso January this court rejected Henderson’s in Mailhot III appeal insofar as he that the argued 1999 Annual Ordinance violated Appropriation certain provisions of MOU since the in that action did not complaint include of such allegations (Mailhot violations. (Jan. v. San Diego 2001, D035504) We [nonpub. also dismissed as opn.].) moot Henderson’s appeal challenging failure to City’s an EIR certify prior adopting 1999 Annual Ordinance “for the same Appropriation reasons as we did in our decision in the unpublished II.” appeal Mailhot In March court this affirmed the trial court’s in Zoebisch judgment on ground the referendum had not been petitions filed in timely accordance with the (Zoebisch San Diego Code. v. Abdelnour Municipal 9, 2001, (Mar. D035872) month, The same we affirmed the [nonpub. opn.].) judgment Currie on substantive and grounds, procedural noting prior decision in Dunkl had appellate addressed “some similar substantive issues” as those (Currie raised Currie. (Mar. San Diego 2000, D035891) We found that the [nonpub. opn.].) Bond Ordinance did not *12 C, violate the MOU or both of which that the Proposition contemplated City would finance its contribution toward the construction but did not project that specify costs were included within the financing We also spending cap. concluded that the Bond Ordinance did not the obligate to more City expend $225 than million in fiscal in year 1999-2000 violation of the Annual 1999 Ordinance, that Appropriation under C and the itMOU was Proposition up the the C conditions had Proposition subsequent determine whether did the City’s been met and that later in circumstances not invalidate changes Finally, the had been met an earlier time. we determination that conditions 225 nor the MOU Padres required found that neither Charter section to affirming In addition to make the disclosures Henderson. sought determinations, also its decision on trial court’s substantive we affirmed grounds. procedural in and January shortly
The Padres filed this action Henderson against Skane, in his appeal thereafter Henderson filed an brief abandoning appellate Act, on and unfair Cartwright to the trial court’s his RICO relating rulings brought In against business claims Padres. April practice strike the Padres’ malicious claims. The special motion to II, based on Mailhot motion, as to their claim except Padres opposed conceded was time-barred. which court motion as the causes of
The trial denied anti-SLAPP except Skane, II action based Mailhot of on to which Henderson’s as appeal After the trial court’s on his claims was still rulings against pending. case, challenged this this affirmed the trial court entry of in court judgment in Skane. rulings
DISCUSSION 425.16, that (b)(1) in relevant Section subdivision provides part “[a] act of in cause action from that against person arising any person of free under the United furtherance of the or right petition speech person’s shall in connection with a issue be public States or California Constitution strike, that determines to a motion to unless court subject special that that the will probability plaintiff prevail has established there is plaintiff is to encourage participation on the claim.” The statute purpose a court dismiss significance by allowing promptly matters public to chill another’s valid brought unmeritorious actions or claims are for the petition of freedom exercise of constitutional rights speech (Id., (a).) furtherance of this subd. grievances. purpose, redress (Ibid.; Ketchum v. Moses broadly. statute is to be construed anti-SLAPP 735].) P.3d (2001) 24 Cal.4th Cal.Rptr.2d [104 motion to strike must make a A defendant an anti-SLAPP bringing 425.16, i.e., to section suit is facie prima showing plaintiff’s of his constitu acts were taken furtherance challenged the defendant’s issue, with a public or free in connection tional rights petition speech Formulas, (Jarrow Inc. v. LaMarche (2003) 31 Cal.4th defined the statute. makes such a 737].) If defendant P.3d Cal.Rptr.3d
509 demonstrate, the burden to the showing, shifts admissible and plaintiff evidence, a reasonable competent that it will on the merits probability prevail 425.16, (§ at trial. DuPont Merck Pharmaceutical Co. v. (b)(1); subd. Court 562, Superior (2000) 755].) 78 567-568 Cal.App.4th Cal.Rptr.2d [92 must make a facie of facts that would be plaintiff prima showing sufficient to sustain a favorable under the judgment evidentiary applicable (Robertson v. standard. Rodriguez (1995) 36 358 Cal.App.4th [42 an Cal.Rptr.2d element of a claim must be clear and proven by 464] [where trial, convincing evidence at sufficiency facie plaintiff’s prima on an showing anti-SLAPP motion is determined with the standard of higher mind]; Looney v. Court (1993) see Superior proof 16 Cal.App.4th 182], 537-540 therein.) cases cited Cal.Rptr.2d [20 motion, an reviewing anti-SLAPP a court must consider 425.16, and the pleadings evidence submitted (§ (b)(2)); parties subd. however, evidence, it cannot weigh but instead must determine simply whether evidence is respective party’s sufficient to meet its burden of Luce, (Mattel, Forward, Inc. v. Hamilton & Scripps proof. (2002) 99 Cal.App.4th 794].) On we Cal.Rptr.2d appeal, independently [121 review the trial (Governor court’s on the motion Gray Davis ruling to strike. Com. v. American Alliance Taxpayers (2002) Cal.App.4th 534].) Cal.Rptr.2d
During of this pendency California Court appeal, Supreme confirmed that a cause of action for malicious to a prosecution Formulas, (Jarrow special motion to strike under the anti-SLAPP statute. LaMarche, Inc. v. 734-741; 31 Cal.4th see also pp. Chavez Mendoza Cal.App.4th Cal.Rptr.2d Although Padres argue anti-SLAPP statute does not in this case because apply waited to file suit until after “it was that Henderson was out of apparent legal challenges to the cite no for their ballpark project,” they authority contention. we will focus on Accordingly, Henderson’s to the challenges of the Padres’ viability claims for malicious prosecution.
1. Was Henderson Absolutely to File the Privileged Underlying Actions?
Henderson asserts that the underlying actions were absolutely privileged There, accordance with the California Court’s decision in Supreme Bozek. Long Beach brought malicious action Bozek prosecution against after he sued it and two of unsuccessfully its officers for false police and related imprisonment torts out of arising alleged misconduct. police Bozek challenged city’s that a complaint, arguing governmental agency could not sue for malicious because of the chilling potential effect on the right of to obtain petition grievances redress through institution of judicial proceedings. *14 It argument. recog- Court with Bozek’s agreed
The California Supreme to meritless litigation, like all defendants subjected nized that the government, defend the to fees to attorney the extent it was required pay was to injured and injury interest in for this recovering and that the government’s lawsuit that a was similar to private person. unwarranted lawsuits deterring However, act suit a filing against that “the recognized the court also high thus the right petition an exercise of governmental entity represents 534.) at (Bozek, 31 Cal.3d supra, p. invokes constitutional protection.” agency chilled if a governmental that would be Finding right impermissibly action, held the court a malicious retaliatory prosecution to file permitted is “absolutely privi- a against governmental agency that a citizen’s lawsuit the in a agency civil to liability and cannot form the basis for leged” con- 531-534.) The court (Id. action. at malicious prosecution pp. Bozek right effect the constitutional chilling to avoid the upon cluded order “[i]n to maintain if we were to allow municipalities would result petition [that] to defer to” the best course is malicious we conclude actions for prosecution, remedies, and attorney sanctions including provi- existing legislative other (Bozek, 31 Cal.3d at Procedure. in the Code of Civil sions contained 538.) p. Bozek, that, he was absolutely in accordance with
Henderson contends Padres can no more actions and that to file the underlying privileged “[t]he against City” malicious on lawsuits their own claims of prosecution base However, does not stand for proposition than could the itself. Bozek brought against that was also in an action sued parties private a mali- bringing from constitutionally are agency precluded governmental fact, recognized possibil- court cious action. Bozek than the agency named other actions by parties of malicious prosecution ity deterrent effect on case, officers) would have a individual (in that police (Bozek, 31 agency. that also named governmental unwarranted lawsuits Cal.3d of the Padres in interests to distinguish respective
The dissent attempts Bozek, named as defendants those of the officers this case and police recovering damage interests in that the officers’ dignity contending allegations improper distress from and for emotional their reputations while remedy, need for a tort rise to a “real” them gives conduct resulting costs of the ballpark project additional recovering interest in Padres’ to make the cost action that was intended and frivolous from a malicious However, of the the nature although not. would prohibitive project officers’, not distinction does that of the this different from Padres’ injuries it in former. the latter instance but denying of relief in the denial support a difference. a distinction without It is
Pursuant C the Padres Proposition agreements, implementing were for cost overruns responsible relating project, point relied on in C ballot initiative to the promoting Proposition public. the dissent contends that the “could Although readily Padres have” negotiated a different allocation risk to costs or losses from relating arising that, it strains to believe if repeated legal challenges project, credulity event, this were so would not have done so. In *15 easily any accomplished, not, to, the fact that the Padres did or were unable a different risk negotiate allocation does not render their loss less “real” than those suffered any by officers in police Bozek. however,
Henderson also that the argues, considerations relied on policy by the court in are where the a equally claim is Bozek applicable underlying reverse validation which definition proceeding, challenges governmental action. He argues that the scheme statutory already burdens on imposes heavy action, one who a reverse brings validation the exclusive means which a contracts, citizen may of a challenge validity governmental agency’s 869; and and Planning Conservation v. obligations (§ indebtedness League Department Water Resources (2000) 83 Cal.App.4th 921 [100 of 173]), and that Cal.Rptr.2d allowing of civil imposition liability malicious in addition to the prosecution existing burdens will create an chill on unacceptable citizens’ to assert such a rights challenge.
The California Court has Supreme recognized validation statutes permit governmental to validate agency its contractual deal- effectively ings—even those embodying decisions important policy affecting public but large—by doing nothing, “commensurately public’s restrict[]” to opportunity challenge those that a dealings by reverse validation requiring be Ontario v. Court proceedings within 60 Superior brought days. (City of (1970) However, 2 Cal.3d 341-342 693].) 466 P.2d Cal.Rptr. [85 these are difficulties inherent a reverse validation action to bringing challenge governmental contractual and decision exist irrespective whether a citizen who an brings such action is liable for malicious prosecu- tion there arising from.
Although Henderson out that the of malicious correctly points possibility liability make citizen think twice before a reverse prosecution may filing action, validation we do not believe that is There no this inappropriate. reason to file policy citizens who frivolous reverse protect maliciously validation actions that are to thwart designed public projects through delay, and increased costs therefrom litigation resulting by disallowing project are who such conduct from for private parties individually injured by suing Hillcrest Co. Pace Motor (See malicious prosecution. generally 476, tort of malicious Cal.App.3d Cal.Rptr. 662] [“[t]he
i hailed into court maliciously an individual who is lied to compensate action”].) availability a fabricated cause forced to defend against who to persons adequate protection the anti-SLAPP procedure provides nonmeritorious mali validation claims against reverse legitimately pursue balances such an action. This claims from arising cious prosecution rights litigation protecting frivolous discouraging policies actions. challenge governmental citizens to the Noerr-Pennington underlying
The dissent that federal argues principles be held liable for that one cannot (which generally doctrine recognizes out of efforts arising petition of federal antitrust laws violations case, or to this either directly the redress of grievances) government apply to the an exception and accuses us of “creating unprecedented by analogy, that Henderson was not absolutely in finding right petition” scope However, acknowl as the dissent file the actions. underlying privileged Noerr-Pennington immunity where one uses exists an edges, exception *16 anticom outcome) as a sham to cover (rather than its governmental process does not conduct; immunity to which a of conduct “classic example” petitve . . . to solely and actions judicial “administrative brings is where one apply (Columbia v. of success.” and with no delay, expectation impose expense 382, 365, Inc. Advertising, Omni Outdoor (1991) U.S. 380 L.Ed.2d 499 [113 the Noerr-Pennington the sham 1344].) 111 S.Ct. As with exception doctrine, activity for recovery only petitioning malicious permits prosecution that We do not believe our be frivolous and malicious. that is shown to both of the right to the scope creates an exception opinion unprecedented on one hand the of right petition but instead balances petition, appropriately tort law in accordance to recover under state and the of an right injured party & Gas (See California Court precedents. with Supreme applicable Pacific 1118, 1135, & Co. Electric Co. v. Bear Stearns Cal.3d 1137 (1990) 50 [270 Blank v. Kirwan 322-323 587]; (1985) 39 Cal.3d P.2d 791 Cal.Rptr. 58].) P.2d 703 Cal.Rptr. [216 similarity that with the dissent’s contention
We also disagree of a the specter in the the Padres and the City project “raise[s] interests of right exercise of to discourage legitimate retaliatory designed policy (Bozek, supra, court. Bozek that concerned the the courts” through petition to, cannot, and not fn. The Padres have attempted Cal.3d at p. the litigation a result of suffered damages recover recognizes, public-private As dissent challenging ballpark project. a of the necessity, develop- and in fact are a modem reality, collaborations Disallowing private the state. works across ment of major public projects are actions that from damages from recovering in such projects participants of such viability will diminish and frivolously maliciously prosecuted light protections for financing public projects. mechanism anti-SLAPP we conclude that procedure, application analysis (See does not such a result. require Bozek post.) reasons, For these we conclude that the of a bringing reverse valida tion action is not and that citizen who such an absolutely privileged brings action is not from civil for malicious automatically liability protected pros However, ecution to a who in the action. this is not private party participates that say any who chooses to in a reverse validation party appear proceed is entitled sue ing for malicious if the action to be proves action, unsuccessful. a validation an in rem Although is result proceeding of which is on the affected (Planning binding “and all other agency persons” Resources, and Conservation v. League Department Water 921), the validation will have a Cal.App.4th more substantial proceeding on who have a and substantial in the impact persons interest unique project. For it is example, here that the Padres had a direct and undisputed substantial financial interest in the that at the ballpark project foundation of the in Mailhot III and Currie. governmental actions Henderson challenged Because the Padres’ interest in the was distinct from ballpark project that of the other members of the their were public, rights directly at risk uniquely placed reverse validation and it is to proceedings be Sierra would expected (See such participate proceedings. Club, Inc. Coastal Com. Cal.App.3d California an action Cal.Rptr. to invalidate a seeking issued for permit project, 190] [in circumstances, was an developer Under such it indispensable party].) appropriate who have a and substantial parties interest in a unique project *17 and who in a reverse validation action to that participate interest are protect action, entitled to seek redress for suffered damages as a result of the if they are able to establish that the underlying action was frivolous and with brought malice.
Because Henderson’s actions in the actions were not filing underlying absolutely we privileged, address the of whether the proceed question Padres made a sufficient of the of the showing success on merits probability of their claims.
2. Elements a Malicious Prosecution Claim
To establish a cause of action the for malicious of a civil prosecution a must and that the proceeding, plaintiff action was plead prove underlying (1) commenced or at the direction of the defendant and to a legal pursued favor; cause; termination in the (2) without and plaintiff’s brought 666, (Crowley v. Katleman (3) initiated with (1994) malice. 8 Cal.4th 676 [34 386, 1083].) P.2d 881 We review the Padres’ evidence in Cal.Rptr.2d support 514 determine claims to whether have made a
of their malicious prosecution elements, the facie of each of below. showing prima A. Termination Favorable
A element of a cause of action for malicious necessary prosecution that the terminated the malicious underlying favorably prosecu proceeding (1998) First Bank 318 (Ray tion v. Federal plaintiff. Cal.App.4th [71 was based on a (Ray).) A termination is “favorable” if it Cal.Rptr.2d 436] is, fault the the the action—that to the relating determination of merits of defendant, (Lackner v. than on a technical or ground. rather procedural 393].) P.2d (1979) 25 Cal.3d LaCroix Cal.Rptr. [159 Favorable termination is a element because the essence of necessary very an or malicious action is unwarranted bringing unjustifi (1941) action 18 Cal.2d (Jaffe able defendant. v. Stone against 335]; P.2d 354-355 Cowles Carter 115 Cal.App.3d [171 269].) Cal.Rptr.
i. Mailhot III action, Annual
In this invalidate sought Appropria- CEQA it certain and ground tion Ordinance on that violated provisions The trial motions in which granted summary judgment Charter. court the Padres was not a “project” joined, finding appropriation CEQA, the were not of validation claims purposes properly and that terms of action Henderson’s violated arguments appropriation thus were the MOU related to matters outside scope complaint it it is clear from the record on (Although irrelevant and not improper. appeal, Henderson did not from the trial and court opinions appears appellate of his Charter MOU independent raise challenge relating CEQA court dismissed as moot Henderson’s On this arguments.) appeal, as we in . . . Mailhot IF affirmed “for the same reasons did challenges violated the trial his argument court’s rejection appropriation We did MOU such claims were not pled complaint. because properly as a validation reach of whether the matter was brought not the issue properly action. *18 was not based on CEQA
This dismissal of Henderson’s challenges court’s on The decision the merits those but instead based mootness. challenges a termination for of malicious thus did not constitute favorable purposes (See (1997) 52 894 Cal.App.4th action. Robbins v. Blecher prosecution on 815].) based Similarly, judgment affirmance Cal.Rptr.2d [60 ordinance adoption to include allegations Henderson’s failure merits, grounds. but on violated the MOU was not based on the procedural
515 LaCroix, Stone, 150-151; (See Cal.2d at Lackner v. 18 supra, pp. Jaffe 751-752.) 25 Cal.3d at becomes whether this court’s pp. question resolution of on the Padres grounds Henderson’s appeals procedural precludes “ from on the trial court’s substantive determination as a favorable relying in claim. We conclude termination” of their malicious prosecution support that it does not.
Where an action is resolved on the issue of underlying finally appeal, whether the malicious obtained a termination favorable prosecution plaintiff be determined reference to the rather than may court’s decision appellate that of the trial court. For 61 at Ray, supra, example, Cal.App.4th pages 318-319, the trial court granted on statute of limitations summary judgment in the action grounds but on underlying legal malpractice, appeal, court affirmed the trial court’s based on a that the law appellate ruling finding firm had not violated to its client and any duty did not reach the issue of whether the action was filed. untimely
In the law firm’s action ensuing former client for malicious against the Court of prosecution, concluded that the Appeal underlying appellate decision established a favorable termination in favor of the firm. It held “the decision in the appellate affirming summary judgment case both malpractice marked and constituted favorable termination of that case. Not only ‘favorable,’ observed, decision it also the final termina- just accomplished tion of the case. The case was not terminated until conclusion of malpractice and the affirmance of the appeal, favor of law judgment [client’s] [the constituted a favorable termination on the merits.” (Ray, supra, firm] 318-319; accord Cal.App.4th (1985) Friedman v. Stadum Cal.App.3d no favorable termination where Cal.Rptr. [finding [217 585] the underlying action was to a pending appeal].) that an decision on the
Although Ray recognizes appellate reflecting merits of a claims establish a favorable plaintiff’s may termination for action, of a malicious it does not that the purposes establish decision reached solely on a trial court’s appellate procedural grounds trumps determination of the merits there is no favorable requires finding fact, termination. In it well that a established favorable termination exists someone, when decision relied “reflects ‘the either the upon opinion trial court or the lacked merit or if action prosecuting party, pursued ” (Eells would result in a decision in favor of the defendant.’ v. Rosenblum 323].) A trial court’s Cal.App.4th Cal.Rptr.2d determination of the merits of the claims adverse to the plaintiff plaintiff’s meets this standard and we conclude that it is sufficient to constitute it favorable termination unless is later an court. rejected by appellate *19 Here, for this court’s were holdings procedural bases although substantive, determination that the trial court made a substantive rather than was sufficient to III were without merit. Its determination the Mailhot claims mali needed to a claim for a “favorable termination” as support constitute cious prosecution.
ii. Currie at- Henderson’s challenges
The Padres’ malicious prosecution complaint following the Bond Ordinance on the grounds: in Currie to invalidate tempts Ordinance, and the violated the Annual (1) Appropriation the ordinance the Padres had not made balanced budget requirement; Charter’s City trial court Charter section 225. The City certain disclosures required by Henderson’s in favor of the City, rejecting granted summary judgment on their merits. arguments on affirmed the trial court’s judgment proce
On this court appeal, that the Bond We held in relevant grounds. part dural and substantive $225 than million in the more Ordinance did not obligate expend Annual Ordi in violation of the 1999 year Appropriation fiscal 1999-2000 the Padres. section 225 did not disclosures require nance and Charter determination that in Currie was based on a substantive This court’s opinion a final merit. The decision constituted Henderson’s claims were without in favor of the Padres thus will support termination of the action claim. malicious prosecution
iii. Zoebisch Zoebisch, referendum that the alleged peti proposed submitted, on the thus its placement
tion was valid and requiring properly and the in favor of summary judgment ballot. The trial court granted invalid Padres, initiative was that the Bond Ordinance finding proposed act and in any rather than a legislative because it involved an administrative to include submitted and failed timely were not event supporting petitions judgment affirmed the trial court’s certain materials. this court Although above, the trial as discussed grounds,” on “entirely procedural Zoebisch constituted a favorable claims on their merits court’s of Henderson’s rejection in favor of the Padres. termination Probable Cause
B. Lack of must plaintiff a claim for malicious prosecution, To establish or at the was commenced by action demonstrate in part prior defendant, Co. v. (Sheldon cause. Appel without direction of the
517
Oliker,
336,
Albert &
supra,
If any reasonable would have considered the action attorney legally tenable, (Sheldon Co. v. & Albert Oliker cause is established. Appel probable 498].) 47 Cal.3d 765 P.2d This “lenient Cal.Rptr. standard” for a civil bringing action reflects “the important public policy of novel or avoiding chilling debatable claims” and allows legal attorneys “ correct, and ‘to litigants issues that are present even if it arguably Parker, (Wilson v. extremely unlikely will win . . . .’ [Citation.]” Chidester, Covert & supra, 817.) 28 Cal.4th at those actions that p. Only “ reasonable ‘any would and attorney agree totally without completely [are] ” (Ibid.) merit’ form the may basis for a malicious suit. prosecution The Padres assert that the trial court’s their motions for rulings granting summary in each of the three judgment actions constitutes evi- underlying However, dence that Henderson’s claims were not tenable. legally although the trial court’s are not irrelevant for this rulings necessarily purpose, alone, Padres do not how would explain rulings, standing support the conclusion that Henderson’s claims lacked cause at the time the probable actions were filed. “Favorable termination of the suit often establishes lack of merit, in a yet malicious action must plaintiff show prosecution separately differ, lack of cause. probable Reasonable can some as lawyers seeing merit, meritless suits which others believe and have some seeing totally and without merit suits which others see as completely only marginally meritless. Suits which all reasonable lack merit... are lawyers agree totally the least meritorious of all meritless suits. this of meritless Only subgroup Formulas, LaMarche, (Jarrow Inc. suits v. no cause.” present[s] probable Insurance, supra, Roberts 31 Cal.4th at fn. Sentry Life p. quoting Cal.App.4th this, recognizing Padres also cite to Apparently history in which Henderson was involved and ballpark litigation argue III, cause is established because in Mailhot Currie absence Zoebisch, claims that had been decided him in repeated against challenged that each of the actions other actions. Henderson responds of the other act and thus the resolution distinct separate of the actions on which Padres actions did not reflect on the tenability in turn claims. review each of the cases base their malicious We below. *21 III
i. Mailhot I, III, In Mailhot II and invalidate the ordinance Henderson to sought $225 voter the submission of C for authorizing Proposition approval, Ordi- and the Annual Appropriation Million Ordinance Appropriation nance, each action constituted a in on the that such ground respectively, part that an CEQA’s triggering requirement final of ballpark project, approval this by action. In the decision rendered only EIR be to such prepared prior III, in Mailot I Mailot this court’s filing opinion court prior C voter that the submission of concluded in relevant part Proposition C did CEQA and that was not a for purposes Proposition approval project Charter or single subject City require not violate requirement two-thirds voter approval. III, claim based on Mailhot of their malicious prosecution support in Mailhot II (but not the trial court’s ruling suggesting
Padres cite to in that case have been CEQA may that Henderson’s holding) challenge in CARE cease further City rendered moot decision requiring However, although of an EIR. work on the pending preparation project that it concerned that the trial statement was an indication was court’s CEQA in Mailhot II was moot (and that CEQA subsequent challenge be to have the also considered City might to various actions challenges of mootness did not constitute a determination the statement infirmity), same II, facie evidence that Henderson’s in Mailhot nor did it constitute prima in Mailhot III was without merit. and CEQA totally challenge completely CEQA challenge determination that the The Padres also cite to this court’s certification of an in Mailhot II was moot in the City’s intervening light II issued well over a However, in Mailhot our EIR for the project. opinion III and that Henderson filed Mailhot does not establish thus after year cause, outset, CEQA challenge at the to assert lacked probable in that case. claim in CEQA Henderson’s further contend that even if
The Padres I in Mailhot meritless, this court’s Mailhot III not established as opinion the Mailhot III claims lacked cause because all probable establishes that claim knowing file an identical analytically would attorney “no reasonable had in the case court that would review the judgment that the very appellate However, it the Padres neither assured defeat.” already analyzed way cite nor do this any persuasive authority support argument, they explain C under the California how challenges validity Proposition Constitution, I CEQA “analyti- and the Charter raised in Mailhot were identical” to Henderson’s to the Annual cally challenges Appropriation Ordinance under and the CEQA Charter in Mailhot III.
The Padres have not established a facie showing prima claims in Mailhot III were without merit and thus completely totally Henderson lacked cause in those claims. filing ii. Currie
The Padres’ third malicious cause of action is based on Henderson’s claims Currie that the Bond Ordinance violated the annual (To 1999/2000 Charter section 225. the extent the budget *22 Padres that argue other causes of action asserted in Currie were legally untenable, their of the of their argument goes beyond allegations scope malicious and thus is not on prosecution complaint considered properly aas basis for the trial appeal court’s denial of Henderson’s upholding motion.) anti-SLAPP The Padres to contend that the trial court’s appear of granting and this court’s decision in Dunkl summary judgment establish However, that the claims in Currie lacked cause. also admit probable that these came rulings Henderson filed Currie and thus rulings after Parker, (Wilson themselves do not establish a lack of cause. probable Chidester, Covert & 28 Cal.4th at fn. cause is [probable determined based on whether any reasonable would have considered attorney the action tenable in legally light facts known to the at the time lawyer filed].) suit was however,
The Padres also argue, facts establish underlying Currie claims’ lack of merit. As to of Henderson’s causes action asserting the Bond Ordinance called for the issuance of bonds in violation of the 1999 Ordinance, Annual in fact Padres that the ordinance Appropriation argue authorized the a to the funds only Financing raise Authority, entity, separate that would be used for the in the and thus City’s investment ballpark project did not violate the Annual ordinance or the Charter. Appropriation City The (see law at the time Henderson filed Currie clear in this regard was Rider v. San Cal.4th City Diego 1042-1045 [77 of 347]), P.2d both the trial recognized Cal.Rptr.2d expressly and court this court’s in Currie. The Padres’ argument unpublished opinion well taken. facie evidence in the record is likewise sufficient to support prima that there no
showing remaining was cause to assert Henderson’s is, (that based on Bond Ordinance allegations claims those under certain disclosures required because the Padres had not made invalid in relevant 225). Charter section 225 City provides part: Charter section City nor any “No title or interest in the real or right, City’s personal property, contract, lease, or out or be may granted title or interest right, arising otherwise, , or . . . to the City’s general municipal powers bargained pursuant a full and therefor makes bargaining complete unless the or person applying all or directly the name and and identity any persons disclosure of and all in the identity any persons involved indirectly application transaction and in the or proposed or involved directly indirectly, application all therein.” “Failure to fully nature of all interests of persons precise for denial enumerated above shall be grounds disclose all of the information or transfer and result may or transaction any application proposed and all that have been rights granted forfeiture of any privileges heretofore.” authorized
The Padres were not party agreements pursuant which the Bond Ordinance Bond and thus there was no basis on Ordinance Currie v. City (See 225. Charter section would trigger application Further, Diego, supra, 28, 2001, D035891) San (Mar. [nonpub opn.].) to unwind a transaction the charter authorizes although provision it does not City, disclosures are not made to purport which required citizens can force the set create a of action which right private facie These factors are sufficient to support prima aside transaction. on the to the Bond Ordinance based that Henderson’s showing challenges *23 Charter 225 were without merit. section City completely of the sufficiency that our finding regarding dissent opines cause in Currie will have “staggering” of lack of showing Padres’ in the record to We cannot There is a sufficient basis agree. consequences. and to Henderson’s motion to strike permit denial of special support claim of the Padres’ malicious prosecution further on validity proceedings of the Currie litigation. out arising
iii. Zoebisch is based on cause of action
The Padres’ fourth malicious prosecution claims in Zoebisch was to accept required Henderson’s that the was proper Bond Ordinance initiative petition, petition attempted were on signatures petition for referendum and that voter ruling granting summary judgment The Padres on the trial court’s rely valid. Dunkl, determined in which the court and the Padres in in favor of the City the ballot C initiative on the Proposition that Henderson’s to attempt place than administrative rather it sought accomplish was because improper of the voters to As action and thus was legislative beyond power adopt. above, however, noted the trial summary judgment ruling, standing court’s alone, in does not suffice as a facie that Henderson’s showing attempt prima Zoebisch (See cause. the Bond Ordinance initiative lacked probable qualify Formulas, LaMarche, Jarrow Inc. 742-743.) 31 Cal.4th at pp. however, that the claims asserted in Zoebisch were The Padres also argue, not tenable in of Henderson’s failure to submit legally light timely clerk. clear referendary petition city light language code submission of referenda materials municipal provision requiring the clerk within 30 after the action and the of the days governmental purpose i.e., to the clerk allow to make a threshold determination of requirement, whether the materials with the complied applicable procedural requirements ballot, However, on the this facial in placement argument has appeal. Zoebisch, Henderson also asserted that the be should equitably estopped its conduct from asserting his this petition untimely. Although court Henderson’s we ultimately rejected argument, recog- equitable estoppel nized that the had in in connection “regrettably participated” posturing and, Henderson, with Henderson’s to file the like had attempt petition own in a “pursu[ed agenda[] Given the vigorous headstrong way.” its] assertion of such an and the argument existence of some apparent underlying facts that would such an we cannot conclude that support argument, failure to submit the timely rendered Henderson’s claims referendary petition in Zoebisch without merit. completely totally the Padres cite to a
Finally, statement made passing during the trial court in Dunkl in which he oral argument suggested City’s authorization of lease revenue bonds to finance its contribution to the ballpark would be project “just implementation” legislative established policy C and thus by Proposition administrative rather than in nature. legislative However, issue, although Henderson’s statement is relevant on the standing alone it does not establish that no reasonable would have considered attorney Zoebisch that the Bond Ordinance initiative tenable his legally contention *24 best, rather than administrative. At statement legislative Henderson’s reflected his beliefs about the nature of the Bond subjective proposed Ordinance initiative at issue in Zoebisch. Because the focus of cause probable a analysis rather than this evidence does not make objective subjective, Zoebisch were in showing claims untenable. legally a Padres have not submitted sufficient evidence to make prima claims asserted in Zoebisch were completely facie showing without merit. totally
C. Malice a have not met their burden of making prima
Because Padres cause, we that Mailhot III and Zoebisch lacked facie limit showing probable malice our of the element to Padres’ malicious claim analysis prosecution tort, out of Currie. For of a malicious malice arising prosecution purposes relates to intent or with which the defendant acted in subjective purpose Oliker, (Sheldon supra, Co. v. Albert & Appel action. initiating prior element, 874.) at Padres Cal.3d To establish this are show required p. had an in bringing that Henderson motive actions. improper prior Goldstein, (Swat-Fame, Inc. v. 633.) at supra, p. Cal.App.4th that, this, in make a facie to succeed the Padres must argues prima showing a clear finding of facts that would a of malice based on permit However, evidence standard. Henderson is mistaken this convincing 1363, 1371 Interiors v. Petrak regard. (Jacques Cal.App.3d a malice element of a standard Cal.Rptr. [applying preponderance 44] Thus, claim].) malicious we must determine whether the Padres prosecution have sufficient evidence to a facie prima showing establish presented malice evidence. by a preponderance (See Sheldon usually
Malice is circumstantial evidence. proved Oliker, Co. & a v. Albert 875.) at lack of Appel supra, Although Cal.3d p. cause, alone, malice, an does not inference of standing probable support an action knowingly malice still be inferred when without may party brings Goldstein, (Swat-Fame, Inc. v. at cause. 101 Cal.App.4th Here, have from which a the Padres submitted evidence filed actions chal reasonable could infer that Henderson repeatedly person actions to the in order to interfere lenging relating City’s ballpark project sufficient to with and/or derail This evidence is establish project. prima facie case as an element of the Padres’ malicious motive improper claims. prosecution
3. Conclusion
We action Henderson is not against conclude Padres’ although Bozek, not met their burden analalysis statutory barred under the have their on the merits of malicious success establishing probability conclude, claims based on Mailhot III and Zoebisch. We also prosecution however, each of three supporting that the Padres have evidence produced the Currie action and relating tort elements of malicious prosecution make a facie their prima showing support have satisfied their burden to reaching out of that lawsuit. this arising malicious claim conclusion, there be merit to any do not view on whether will any we express that, based on the We have determined merely the Padres’ claim trial. *25 us, the Padres have met their burden to show a record before probability success within the of section 425.16. meaning
DISPOSITION The order of the court Henderson’s motion to superior denying special strike is reversed as to the Padres’ and fourth causes of action. second Otherwise, the order is affirmed. Each is to bear its own costs of party appeal.
Nares, J., concurred.
BENKE, P. I dissent. Acting respectfully J.
Public officials in this state are to a of inconvenient subject myriad limitations on their to tax and those limitations are Today power spend. weaker than were With no its yesterday. authority pertinent supporting with to its position, controlling authority clearly contrary holding, major- ity citizens to be sanctioned and held liable for malicious permits prosecution where they to enforce one or more of limita- unsuccessfully those attempt tions. Following today’s holding bravest and wealthiest will dare only a challenge has its The way public agency interpreted powers. majority this error a compounds by allowing malicious action to be brought by with substantial in a private party interests citizen complaint against government entity, thus an creating unprecedented categorical to the doctrine of exception petition immunity.
I PROBABLE CAUSE adversaries, However Bruce Henderson be his whatever may perceived by be, his intentions he had subjective might cause to Currie v. probable bring San San Diego Diego County, No. GIC743443 (Super.Ct. (Currie). He was therefore not to sanction or in tort. liability A
As the majority the context of for malicious acknowledges, liability are the benefit prosecution, litigants given cause very generous probable ante, standard, standard. 516-518.) described (Maj. opn., pp. court in Roberts v. Sentry Insurance Cal.App.4th Life differ, 408], bears can some lawyers “Reasonable Cal.Rptr.2d repeating: merit, seeing as meritless suits which others believe have and some as seeing merit totally only margin- without suits which others see completely meritless. Suits which all reasonable ally [orig. lawyers agree totally italics] is, lack merit—that which lack the least those cause—are meritorious *26 524 meritless suits no Only subgroup present probable
all meritless suits. this Formulas, Inc. v. added; cause.” Jarrow with (Italics approval quoted 636, 728, 743, 737].) P.3d LaMarche (2003) Cal.4th fn. 13 74 Cal.Rptr.3d 31 [3 reflects “the As the the liberal standard majority recognizes, important of novel or debatable claims.” legal of avoiding chilling public policy 863, (Sheldon Co. v. Albert & Oliker (1989) 47 Cal.3d 885 Appel [254 In re 336, (Sheldon Marriage Appel); 765 P.2d see also Cal.Rptr. 498] 637, 508, 179].) (1982) 650 646 P.2d Flaherty 31 Cal.3d Cal.Rptr. [183 Indeed, whether or not there was cause for malicious “in evaluating probable a court must take into account evolution- purposes, properly prosecution (Sheldon 886.) at Appel, supra, 47 Cal.3d legal p. ary potential principles.” Thus, ‘warranted by there cause for a claim if it is “arguably is probable an objectively ‘good . . . law’ or at the least based on existing very faith ” extension, (Real existing or reversal law.’ argument modification, for Estate Investors v. Columbia Pictures (1993) 508 U.S. 65 S.Ct. [113 611], added.)1 L.Ed.2d italics 123 must be determined by also cause My colleagues acknowledge probable and that it must be decided on an objective the court as a of law question ante, 517; Sheldon 47 Cal.3d at Appel, basis. at (Maj. pp. opn., p. 878.)
B substantive and The has not set out the correct majority only procedural III it Mailhot those correctly (Maj. in discussing applies principles. principles, ante, limit malicious 518.) at I not so far as to Although might go opn., p. actions to claims which are identical” “analytically previously prosecution claims, would be showing I with the such litigated agree majority ante, at cause. (Maj. sufficient to demonstrate the absence of probable opn., 518.) showing fairly I also with the that such agree majority requires p. of that relitigation of how a claim foreclosed convincing explanation prior ante, claim in a later (Maj. opn., proceeding. malicious governing described
Having correctly principles III, then, them to Mailhot and majority inexplicably, actions applied 547], (1978) Cal.Rptr. this court Umansky Urquhart Cal.App.3d existing precedent would plaintiff’s attempt that a to overturn rejected itself the contention however, law, in is not immutable. It remains process a related abuse of claim: “The support diligent lawyers. change through the efforts of conscientious flux to allow for constructive that evolution of the law occurs. through legal imagination ingenuity pleading It is liability defect development product and the of strict examine the law of torts Whether we community property of retirement benefits as family or law and the division [citation] [citation], legal Statutes which withstand dynamics process. of the we note effect (See years.” also in later challenge year may one be declared unconstitutional constitutional 255].) (1987) Cal.Rptr. Cal.App.3d 1188 [241 Tullai v. Homan abandons when the Currie claim. With-
entirely considering those principles out to find concludes any attempt analytical identity, majority Henderson had the Currie claims. no cause to prosecute concludes that in of Rider v. San majority light Diego *27 1035, 189, 347], 18 Cal.4th P.2d Henderson 1042-1045 Cal.Rptr.2d [77 have that the did not violate Diego City should known bond ordinance San ante, annual at Charter provisions governing (Maj. opn., appropriations. addition, 519.) In the finds that Henderson should have realized p. majority the Padres was not to who disclosure on subject requirements imposed parties ante, 520.) obtain or contract the at In rights from property city. (Maj. opn., p. conclusions, reaching these affords the Currie claims majority opinion none of the freedom or by Sheldon required Appel provided by majority Moreover, itself in considering Mailhot III claim. its notwithstanding articulation of the Currie majority’s discussion required procedure, strongly suggests cause is a matter which will subjective ultimately be determined aby jury.
1. Rider v. City San Diego of For the majority, in Rider v. San should have holding City Diego of made it “clear” to that the charter claims he advanced in city ante, However, 519.) Currie lacked merit. at (Maj. as Henderson opn., p. out in his for points fails to petition rehearing, majority fully accurately discuss claims he advanced in Currie. The majority opinion also fails to consider the nature of the in Rider v. holding City Diego. San Had the majority discussed Henderson’s claims and the in Rider v. holding San City more it could have Diego thoroughly, not found its clarity of summary yields. approach Rider v. San dealt City Diego with the debt limitation provisions of XVI, of article section 18 of the California Under article Constitution. XVI, section a local not incur a debt for more than one agency may without two-thirds year the consent of of the obtaining municipality’s voters. In this the court in Rider v. interpreting City Diego San provision of found that a created is not separate financing entity by municipality (Rider to section 18’s debt limitation v. San provisions. of Diego, supra, 1042-1044.) 18 Cal.4th at In so the court pp. doing case, conceded that in an earlier Rider v. San County Diego of 1000], 1 Cal.4th 11-12 820 P.2d it had Cal.Rptr.2d been to entities for unwilling of similar respect separate identity of tax distinct limitation of purposes interpreting provisions Proposition that, 13: Rider v. San stated when a or County Diego] city county “[In [w]e of creates and a local a court can infer ‘essentially taxing agency, controls]’ that the is a district’ ‘created to . . . circumvent agency ‘special Proposition 13.’ ... In Rider v. San we County Diego, expressly [Citation.] the conclusion that the essential control standard established rejected two entities: ‘Rather than attempting identity separate governmental entities, are identical demonstrate subject agency county applica- tion test ground reasonably of the “essential control” affords simply (Rider City v. an intent to 13.’ circumvent inferring Proposition [Citation.]” San 1044.) Diego, supra, 18 Cal.4th at p. a financing its willingness separate identity explaining respect XVI, it when in California Constitution article section
agency applying the court Rider v. do so in unwilling applying Proposition San were Diego noted that the terms two constitutional provisions while 13 also different: section 18 only applies municipalities, Proposition (Rider Diego, supra, San 18 Cal.4th covers districts. special it was considering, The court also noted the case *28 the in fact had a existence which would insulate financing agency separate case, “only from while in the earlier the city liability, entity’s Proposition tax the county. was to the taxes the revenues to purpose impose pass the no the voters’ and the was county’s arrangement From both perspectives, (Ibid.) different than if the had the taxes county imposed directly.” short, Rider v. San that Diego the makes clear is City of only principle clarity there is no to how will be financing with agencies respect separate the limitations the treated under of tax which myriad spending People Rather, court’s have on both state and local the governments. imposed some the that not be financing agencies stands for will opinion proposition and other financing agencies will some fiscal limitations treated as subject (Rider City Diego, supra, San subject to other fiscal limitations. be of Cal.4th at p. Currie in the by litigation us to the claims asserted Henderson
This brings and Rider v. on Henderson’s City Diego’s potential San them. impact of did the city Currie contention in was that C not Proposition permit principal $225 debt to meet its under to incur more than million in in order obligations the of the bond ordinance memorandum Because understanding. permitted indebtedness, that it violated the limitation $299 million in Henderson argued this C. In rejecting the voters when approved by they adopted Proposition found, as written C the trial and we argument agreed, Proposition court as long $225 debt million so the incur a in excess permitted city gross the was city to the ballpark project by net amount contributed city court relied $225 so neither the trial court nor this doing limited to million. In and, out, Henderson’s Diego Rider v. San as majority points upon claims malicious are the basis of his for liability not potential principal prosecution. claim,
However, an C Henderson asserted alternative to his Proposition that in ordinance the had also violated section 84 of city bond adopting charter, which that all annual be city by city requires expenditures of a because by way budget argued approved appropriation. $299 the bond ordinance authorized the to incur million in financing agency debt, $225 had exceeded its own million city July 1999 appropriation Both the trial court and this court found that under funding. ballpark Rider v. San was not to the Diego financing agency subject limitation of section 84. appropriation in Currie is now final and I have no with the opinion quarrel However, First,
conclusions we reached there. two issues bear al- noting. though city argued Currie that the debt incurred financing was not agency of section 84 of the subject appropriation requirements charter, the city $225 did make an million in its appropriation budget, which the city’s stated would come debt budget from issued financing While the when agency. city, that no was challenged, argued appropriation activities, needed for the it made an financing agency’s nonetheless appro- for those priation activities. Thus own conduct would have contrib- city’s uted, in to a reasonable part, belief attorney’s financing agency section 84 of the charter. city the debt Secondly, limitation discussed in Rider v. San Diego *29 different in from the limitation in section 84 important respects appropriation seen, the of charter. As we have city Rider v. San City Diego permitted of local to the agencies avoid voter of California Consti- approval requirements article, XVI, tution section because those are not requirements expressly on and imposed separate financing agencies because separate financing Here, it was in fact agency considering insulated the local from debt. agency Charter City section 84 for the of governs “any obligation expenditure conclude, It is reasonable money.” as we did without a deal of quite great Currie, discussion in of like the language language this provision, in considered Rider v. San does not of City Diego, govern obligation of hand, other than the itself. On the other in of the any entity city light city’s own conduct in an with to the funds to be making appropriation respect obtained and the fiscal which is an by financing agency transparency and obvious of section a con- important goal lawyer might reasonably clude that Rider v. to the San does not Diego apply appropriation of of charter. A reasonable conclude that requirements city attorney might the fact the was not one of its to default given city likely agencies permit bonds, on the those bonds had to be accounted for of an by way appropriation in Rider City in its annual there is v. San budget. nothing Importantly, of itself which forecloses such novel Diego argument. Because of the obvious differences between the constitutional provisions in Rider San and section considered the court v. Diego of charter, cannot be accused more than fairly doing making Henderson of city extension, modification, or argument an faith for “objectively ‘good ” Investors, Real Inc. v. reversal of law.’ Estate existing (Professional Industries, Inc., 65.) at Until he today, Columbia Pictures U.S. p. (See free malicious or liability could do so sanctions. any 885; Cal.3d In re Marriage Flaherty, supra, Sheldon at Appel, supra, p. at 650.) 31 Cal.3d p. absence discussion in the meaningful majority opinion of any in reasoning nature of or of the facts and Rider argument Henderson’s which relies Diego, majority finding San upon potentially ante, 519), in tort at strongly suggests majority liable (maj. opn., p. fuller is at this because it be for believes a discussion will unnecessary point of fact the final cause determination. The the trier to make probable percep- that the trier of fact some role in colleagues determining tion create has my cause confirmed its reference to a on a basis is subjective “prima probable ante, facie cause. Under Sheldon showing” (Maj. opn., of probable not a facie case to a cause is matter Appel presenting prima probable final as to and then make the determination whether a letting jury judge under Sheldon recognizes, claim was As the itself justified. majority Appel is the arbiter of cause the issue is be decided court final beliefs. regard without to a defendant’s subjective
2. Charter Section was city With to Henderson’s contention Padres respect Section 225 stronger. Henderson’s simpler charter section position all or bargaining mandates of the interests of persons “applying disclosure was (italics added) rights city. or contract from There property therefor” filed, not, in Currie definitive any interpretation until our opinion Padres, direct in the given charter 225. its interest section city Arguably transaction, who for” the bond “bargained could be considered a person Currie, can a broad it Until we such rejected interpretation ordinance. *30 Padres reasonable would have the attorney argued be said that no hardly acted within Again, to charter section 225. well was subject city cause. the broad confines of necessarily probable in the absence of any malicious liability
In finding potential prosecution terms of charter ambiguous city with to respect governing authority has, matter, 225, lack as Henderson’s a majority practical equated section cause. of course with absence of This is precisely of success probable forbids. what Sheldon Appel
529 II
PETITION IMMUNITY In addition to with the cause my disagreement majority’s holding, I disagree also with broad to categorical exception petition immunity my have created colleagues for who have a substantial interest in private parties in which a underlying litigation government policy challenged. (Maj. ante, 511-512.) opn., pp.
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Inc.
(1961)
Beach (Bozek) 31 Cal.3d 533-535 Bozek Cal.Rptr. 137], 645 P.2d supports categorical exception right-to-petition immunity. In the court extended Bozek to citizens who have right-to-petition immunity sued unsuccessfully governmental in tort. In agencies damages Bozek sued the and two of its officers for plaintiff city false police imprisonment, arrest, false negligent assault and The suit was unsuccessful hiring, battery. and the a malicious action city brought prosecution against plaintiff. that a finding malicious action brought by governmental agency would interfere with the the court stated: “It is unduly right petition, essential of those who themselves to be protect ability perceive the activities of aggrieved by governmental authorities to seek redress all the through channels of A tort action government. against municipality but one of the available means of redress. If cities are seeking permitted *31 unsuccessfully actions those who have against malicious bring prosecution them, claims will be the as well as baseless legitimate legal sued institution of malicious difficult to though prove, The elements discouraged. prosecution, sue for malicious are cities to easily alleged. Allowing prosecu- [Citations.] unsuccessful former would provide municipalities tion against plaintiffs actions legal against a tool for retaliation those who against pursue with sharp Indeed, forego that even faith claimants would unlikely good them. it is not defend a against in order to avoid the to possibility having subsequent suit their action against city prove malicious action should prosecution (Id. 535-536.) unsuccessful.” pp. by immune from malicious actions brought citizens making prosecution the court also relied on the fact that the could agencies
government agencies, and deter frivolous lawsuits by seeking recover their costs litigation (Bozek, Procedure 128.5. sanctions under Code of Civil section obtaining 31 Cal.3d at supra, careful to limit its to claims made holding
The court in however was Bozek The individual officer’s claims themselves. by governmental agencies police and with to those claims court stated were not before the court respect themselves in at are different from suits entities by governmental “such suits First, have an interest in recovering two officers ways: police least important and for emotional distress caused by for harm to their damages reputations Second, by conduct on their suits police lawsuits alleging improper part. to retaliatory designed policy do not raise necessarily specter officers the courts. through exercise to right petition discourage legitimate issue, it conceivable that suits not is this case does Although present balance be that different might individual officers brought by police require underlying and the tort struck between the right petition policies fn. (Bozek, action.” 31 Cal.3d malicious cause of added.) italics Bozek, whether determining private party indicated the court in by
As at the nature of the we should look right petition, plaintiff whether litigation by and consider interest asserted being by plaintiff exercise designed discourage raise the of retaliation would specter plaintiff the case of the individual police the courts. In through right petition arrest, their the court noted unique had sued for false officers who been the dignity and the distress suffered. Given in their interest reputations them, the need for a tort against the claims made by interests implicated Moreover, actions which were the the individual could be real. very remedy did not necessarily the officers against of the underlying litigation genesis the officers such that city litigation any implicate policymaking Indeed, need did not itself. city plaintiffs retaliation by would suggest *32 individual claims bring against officers nor proceed against city, did need to claims in order to individual they bring against city pursue claims the officers. against
Here, we have a different The situation. Padres does not fall within quite of category individuals maintain a malicious opines might prosecu- Bozek tion action. Although Padres have suffered from the may damage apart incurred, and in addition to the city litigation costs it those were in damages the nature of known contract the risk of consequential damages, which was both the time by and the Padres at the city reached the ballpark suffered, unlike agreements. Thus injuries officers the Padres police could have negotiated with the with city to allocation of the risk of respect litigation challenging agreements itself from loss. Thus the protected need for a tort here is not as as in the remedy case of the apparent police Moreover, unlawful, officers. because Henderson was challenging, Padres, city’s decision to enter into the with the there ballpark agreements was no means which by Henderson could challenge city’s decision policy without the Padres’s implicating interests. Given the fact that the city’s policy decision and the Padres’s interests were bound tort inextricably together, any for liability that does in fact imposed challenge raise the of retaliation specter against Henderson for the exercise of First Amendment In this rights. regard of our decision on the impact of citizens to ability the activities challenge of their government cannot be overstated. The of modem reality municipal government is that bodies make governing of their most many important decisions policy with way agreements or affecting private parties. decision to finance a major works which was the public project, Henderson’s was in no sense challenge, unusual for the of San or city Diego other any ill, Its municipality. on the impact community, or will be good felt not, for many years to come. We should an affected by way permitting action, party bring a malicious from discourage citizens such challenging important policy decisions.
B Instead of an creating to the unprecedented exception scope right we petition, would be far better served ourselves to the narrower by confining “sham” which exception has been articulated in petition immunity already Noerr, 144; (See case law. 365 U.S. at supra, p. Transport, supra, California 513; 404 U.S. at City Columbia v. p. Omni Outdoor Advertising ; Kirwan, U.S. S.Ct. 113 L.Ed.2d Blank v. 382] Cal.3d at “First,
The sham is governed test. the lawsuit exception must two-part be baseless in the objectively sense no reasonable could realisti- litigant cally success on the merits. If an could expect objective conclude litigant outcome, the suit is calculated to elicit a favorable the suit is reasonably Noerr, on the sham and an antitrust claim premised immunized under may meritless objectively fail. if Only challenged litigation must exception this second part motivation. Under litigant’s a court examine the subjective *33 sham, on whether the baseless lawsuit the court should focus our definition of of a with the business directly relationships ‘an to interfere conceals attempt the governmental processas the ‘use through competitor,’ [of] [citation] the outcome of that that to to the outcome of processas opposed opposed re- This two-tiered process anticompetitive weapon,’ processan [citation]. before viability lawsuit’s challenged legal to quires plaintiff disprove (Real economic viability.” entertain evidence of the suit’s the court will Pictures, 60-61, fn. at Estate Investors v. Columbia 508 U.S. pp. omitted.) it did the sham exception, in Blank v. Kirwan the court discussed
Although Lehrer Steel 24 Cal.App.4th Hi-Top Corp. it. In not apply the sham 646], did explaining the court apply exception. Cal.Rptr.2d “ . . . reflects a judicial sham exception the court stated exception, ‘[t]he an effort to influence govern all as activity not recognition appears to At times of the first amendment right petition. ment is an exercise actually interfere directly an effort to is activity, disguised simply this petitioning, case, is not entitled activity a In that “sham” petitioning with competitor. amend an exercise because it is not to first amendment protection, of first ’ to interfere with ment are rights. attempting If defendants simply [Citation.] for redress government to petition a not genuinely attempting competitor, not interfere with their actions does then for liability of grievances, imposing for redress to . . . ‘right petition government their state constitutional “ ” (Id. do more than ‘. . . a must However plaintiff grievances.’ a sham in order activity that a defendant’s allege petitioning merely Otherwise, right petition the First Amendment privilege. overcome ‘sham’ The mockery. exception sanctions would become without fear of [Plaintiff], right. chill this constitutional cannot be used to [Citations.] . . . therefore, that defendants’ complaints facts that demonstrate must allege favorable were not truly seeking and that defendants were ruse merely ” (Id. neither the 581.) Suffice it to say, action. . . .’ at. p. governmental met in have been of the sham exception nor subjective requirements objective this case.
III with holding the majority’s I believe consequences Respectfully, to the Currie claim are staggering. respect outset, in this state institutions all government public
As I noted at the in various forth people within the limits set must conduct themselves forms, from charter such as section to amendments city provisions, Constitution, 13. As Rider v. San Diego our state such as Proposition demonstrate, and Rider v. San until those limitations County Diego today were often the conflicting majority, fiercely interpretations. however, conflicts: in a very has these gone long way eliminating fashion, citizens from ever powerful my discouraged arguing have colleagues with the government over limitations on its the Currie powers. Although claims were in no definitive manner barred either Rider v. San City of charter, or the Diego city has nonetheless found provisions majority that in Currie Henderson acted without cause. Given this pursuing it be holding would citizen or citizens pure folly any challenge group unsuccessful, action. If are any government their will opponents surely and, of the Maillhot III claim on the ignore majority’s relying disposition Currie seek sanctions and in tort if a holding, recovery private party *34 involved. citizens from discouraging to enforce limitations on attempting govern- action,
ment I think the has made a I majority serious mistake. would submit that as a general our laws embody proposition principle people we are far better off with citizens who feel free to challenge government leaders than with government leaders who feel free to the restraints we ignore have on them. placed 15, 2004,
A for a was denied and the petition rehearing January opinion Benke, J., was modified to read as above. was of the printed opinion should be petition granted. for review Appellant’s petition Supreme Kennard, J., Moreno, J., Court was denied 2004. were of the April that should be opinion granted. petition