HARMUN TAKHAR, Crоss-complainant and Respondent, v. THE PEOPLE ex rel. FEATHER RIVER AIR QUALITY MANAGEMENT DISTRICT, Cross-defendant and Appellant.
C082021
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (Yuba)
Filed 9/11/18
CERTIFIED FOR PUBLICATION; (Super. Ct. No. CVCV150000455)
APPEAL from a judgment of the Superior Court of Yuba County, Stephen W. Berrier, Judge. Reversed with directions.
MICHAEL R. BARRETTE for Cross-complainant and
This appeal challenges the trial court‘s denial of a special motion to strike pursuant to
BACKGROUND
Regulatory Overview
We begin with a brief overview of California‘s air quality regulatory scheme in order to place the facts of this case in their proper context.
California has divided responsibility for control of air pollution between the California Air Resources Board and 35 local and regional air quality management districts. One of these districts is the plaintiff in this matter. Under this regulatory scheme, the District is responsible for “control of air pollution from all sources other than vehicular sources” (
Subject to an exception not applicable here,
This case involves dust. Pursuant to its rulemaking authority, the District adopted its rule 3.16 “to reasonably regulate operations which periodically may cause fugitive dust emissions into the atmosphere.” (Feather River Air Quality Management District Rules, rule 3.16(A.) (Rule 3.16), adopted Apr. 11, 1994 <https://www.arb.ca.gov/drdb/fr/cur.htm> [as of Sept. 7, 2018] archived at <https://perma.cc/PM6D-7MVZ>.)3 “Fugitive Dust” is defined as: “Solid airborne matter emitted from any non-combustion source.” (Rule 3.16(B.1).) The rule requires all individuals within the District‘s jurisdiction to “take every reasonable precaution not to cause or allow the emissions of fugitive dust from being airborne beyond the property line from which the emission originates, from any construction, handling or storage activity, or any wrecking, excavation, grading, clearing of land or solid waste disposal operation.” (Rule 3.16(C.).) Rule 3.16 also has an exemption for “Agricultural Operations,” defined as: “The growing and harvesting of crops, including timber, or the raising of fowls, animals or bees, for the primary purpose of earning a living, or making a profit.” (Rules 3.16(D.), 1.1(B.2).) This subject will be addressed further in the discussion portion of the opinion.
Various provisions of the Health and Safety Code, including
Takhar‘s Clearing Activities
Takhar owned a piece of property in Yuba County. In June 2014, he began the process of converting that property from pasture land to an almond orchard. This process required the clearing, grading, and disking of the land
On June 23, after three such complaints were received, District staff investigated and observed a tractor operating in the northwest corner of Takhar‘s property. A large plume of dust emanating from the property was being carried onto neighboring properties to the northeast. District staff contacted Takhar, informed him the dust emissions were impacting neighboring properties causing a public nuisance, and requested he take reasonable precautions to prevent the dust from reaching the affected properties, such as waiting for the wind to change directions before engaging in earthwork.
On July 1, three additional complaints were received. These complaints alleged the dust created by Takhar‘s clearing activities was causing breathing problems for one of the neighboring property owners; the dust was “terrible” and “all over” their properties. District staff again investigated and again observed dust being carried across Takhar‘s property onto the neighboring properties. Takhar was again warned of the violation and advised to discontinue the nuisance. Two days later, a seventh complaint was received. This complaint claimed the dust was causing health problems requiring one of the residents of the affected property to temporarily relocate and was also negatively impacting that property‘s well and solar panels.
The District received its eighth and ninth complaints regarding dust emanating from Takhar‘s property on July 13 and 14, respectively. One of the property owners again complained the dust was making it difficult for her to breathe. District staff again investigated and observed a dust cloud about 100 feet in the air migrating from Takhar‘s property to neighboring properties to the north and northeast. This time, when District staff contacted Takhar about the continuing nuisance, he told thеm to contact his attorney. The tenth complaint, received on August 13, was also investigated. District staff confirmed the accuracy of this complaint as well.
Notice of Violation and Settlement Attempt
On August 14, 2014, the District issued Takhar a notice of violation, asserting he violated
Takhar did not take the District up on its settlement offer and instead continued with his clearing activities. As we set forth in greater detail below, the District alleged he repeatedly violated
Action for Recovery of Civil Penalties and Injunctive Relief
In May 2015, the District brought a civil enforcement action against Takhar asserting causes of action for public nuisancе based on his repeated violation of
Takhar‘s Cross-complaint
On October 8, 2015, after an unsuccessful demurrer, Takhar answered the complaint and filed a cross-complaint against the District. The cross-complaint asserts a taxpayer action for waste of public funds under
With respect to the taxpayer action, as relevant to the issues raised in this appeal, the cross-complaint alleges: “[Takhar] brings this taxpayer action on the grounds that the enforcement against him specifically in this case, constitutes a waste and misuse of taxpayer funds for the prosecution of fugitive dust emissions in that Cross-Complainant is specifically exempt pursuant to [District] Rule 3.16[(D)], of the Fugitive Dust Regulations in that at all times during the alleged Notices of Violations, [Takhar] was engaged in the preparation of land for the purpose of planting and growing almond trees for the primary purpose of earning a living or making a profit.” (Italics
With respect to the declaratory relief cause of action, Takhar alleges an actual controversy exists between himself and the District concerning the interpretation of rule 3.16, specifically whether or not subdivision D. exempts him from complying with the rule, and whether or not the District may “enforce fugitive dust violations under princip[les] of nuisance law as contained in . . . [Health and Safety Code section] 41700 and other related sections contained under [section] 3479 of the Civil Code, thereby bypassing the specific exemptions set forth in District [r]ule 3.16.”
Anti-SLAPP Motion
The District filed an anti-SLAPP motion arguing the causes of action asserted in the cross-complaint arose from the District‘s protected petitioning activity, i.e., bringing the civil enforcement action against Takhar for fugitive dust violations. With respect to the second stage of the anti-SLAPP analysis, the District argued Takhar could not demonstrate a probability of prevailing on the merits because: (1) a taxpayer waste action may not be brought to challenge a “lawful exercise of prosecutorial discretion“; (2) the District “is not among the government entities covered by the taxpayer statute because [the District] is funded by . . . revenue sources that are not tax-based or tax-derived“; (3) there is no “nexus between the payment of any tax and the [District], let alone in the year prior to filing the [cross-complaint]“; and (4) far from illegally expending or wasting public funds, the District took “reasonable, legal action” against Takhar in accordance with “its statutory mandate [to] reduce air pollution within its jurisdiction.” The District also disputed Takhar‘s assertion that he was bringing the taxpayer action on behalf of other similarly-situated individuals, arguing its records revealed only Takhar was emitting fugitive dust while engaging in land clearing preparatory to agricultural operations. Finally, the District argued Takhar did not qualify for the public interest exception to the anti-SLAPP statute, set forth in
Turning to the anti-SLAPP analysis, Takhar argued: (1) his cross-complaint does not arise from petitioning activity, but “only seeks relief to prevent waste of public funds in investigating fugitive dust claims against those engaged in agricultural operations” and declaratory relief “to determine the scope and meaning of [District] rule [3].16 as it applies to the Agricultural Operations exemption“; and (2) he can demonstrate a probability of prevailing оn the merits of his taxpayer waste claim because he has paid taxes within the District‘s jurisdiction within the previous year, the source of the District‘s funding is irrelevant, and any resources expended by the District “to investigate fugitive dust violations against those claiming to be exempt [because of the] ‘Agricultural Operations‘[ exemption] are a ‘waste’ of public funds which can be enjoined pursuant to [section] 526a.”
Trial Court Ruling
The trial court denied the anti-SLAPP motion after reaching only the first stage of the anti-SLAPP analysis, stating: “Takhar‘s cross-complaint alleges causes of action for taxpayer waste and declaratory relief relating to the application and meaning of ‘fugitive dust’ regulations. Neither arises out of any act in furtherance of [the District‘s] petition or free speech rights. [¶] Having failed to meet their initial burden, it is unnecessary to consider, at this time, the probability of Takhar prevailing on the merits. It is also unnecessary to consider whether Takhar‘s cross-complaint is exempt from a . . . section 425.16 motion pursuant to . . . section 425.17.”
I
The Anti-SLAPP Statute
“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by
“Before engaging in this two-step analysis, a court must consider any claims by the plaintiff that a statutory exemption contained in
Our review is de novo. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055; Save Westwood Village v. Luskin (2014) 233 Cal.App.4th 135, 143.) ” ‘We consider “the pleadings, and supporting and opposing affidavits upon which the liability or defense is based.” (
II
The Public Interest Exemption
The public interest exemption to the anti-SLAPP statute is set forth in
We need go no further than the first condition to determine Takhar does not qualify for the exemption. Because applicability of the exemption “requires that an action be brought ‘solely in the public interest,’ ” the first condition of the exemption requires that the plaintiff―here, cross-complainant―“cannot seek ‘any’ relief greater than or different from the relief sought for the general public.” (Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 318, quoting
Here, Takhar‘s taxpayer waste cause of action alleges: “[Takhar] brings this taxpayer action on the grounds that the enforcement against him specifically in this case, constitutes a waste and misuse of taxpayer funds for the prosecution of fugitive dust regulations . . . .” (Italics added.) The prayer for relief seeks “relief pursuant to [section] 526a that [the District] is unlawfully using and wasting taxpayer funds to enforce fugitive dust regulations in any actions against HARMUN TAKHAR in the enforcement actions undertaken in this case . . . .” (Italics added.) Such relief would include injunctive relief preventing the District from maintaining the enforcement action against Takhar personally. (See
With respect to the declaratory relief cause of action, Takhar‘s prayer for relief makes clear this cause of action is inextricably tied to the individualized relief sought in connection with the taxpayer waste cause of action. Takhar asks for “relief pursuant to [section] 526a that [the District] is unlawfully using and wasting taxpayer funds to enforce fugitive dust regulations in any
III
The Threshold Issue
Only those causes of action “arising from any act . . . in furtherance of the . . . right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue” are “subject to a special motion to strike” under the anti-SLAPP statute. (
Takhar does not dispute that the District‘s filing of the civil enforcement action against him amounts to protected petitioning activity. Nor could he. ” ‘The filing of lawsuits is an aspect of the First Amendment right of petition’ [citation], and thus is a protected activity under the anti-SLAPP statute. [Citations.]” (Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1165-1166.) Moreover, as our Supreme Court has explained, because a cause of action “arising from any act . . . in furtherаnce of the . . . right of petition” is subject to the anti-SLAPP motion (
So too does the District‘s investigation of Takhar‘s alleged violation of the air pollution control laws, issuance of a notice of violation, and offer of settlement. In so concluding, we consider Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049 (Tichinin) to be instructive. There, the Court of Appeal was required to determine whether or not the right of petition protected an attorney‘s hiring of a private investigator to investigate rumors of an affair between the city manager and the city attorney, the outcome of which would determine how that attorney proceeded in a matter he was retained to handle. (Id. at pp. 1057, 1059, 1064.) Concluding this investigative conduct was protected, the court found pertinent a line of federal cases applying the Noerr-Pennington doctrine,6 which “immunizes conduct encompassed by the Petition Clause―i.e., legitimate efforts to influence a branch of government―from virtually all forms of civil liability,” because “in deciding whether the doctrine applies, a court must first determine whether conduct falls within the right to petition.” (Id. at p. 1065.)
The Court of Appeal explained that it considered the line of federal cases “persuasive authority for the proposition that non-petitioning conduct is within the protected ‘breathing space’ of the right of petition if that conduct is (1) incidental or reasonably related to an actual petition or actual litigation or to a claim that could ripen into a petition or litigation and (2) the petition, litigation, or claim is not a sham.” (Tichinin, supra, at p. 1068.) Applying that standard to the attorney‘s hiring of a private investigator to investigate “a possible conflict of interest due to an alleged inappropriate romantic relationship between public officials,” the court concluded such activity fell “within the protected ‘breathing space’ of the right of petition,” explaining: “When one suspects that another has caused harm, a preliminary investigation is usually necessary in order to know whether one has a potential legal claim, evaluate the likelihood of success, and decide whether or not to assert it. Consequently, the investigation of a potential
Finally, with respect to whether the litigation was a sham, the court explained the analysis of this issue arose in the context of the second stage of the anti-SLAPP analysis, i.e., whether or not the attorney had established a probability of prevailing on his claim against the City for unlawful retaliation against him for exercising his constitutional right of petition (brought under
Similarly, here, investigation into complaints about Takhar‘s ground clearing activities causing fugitive dust emissions was required in order to enable the District to determine whether or not Takhar was violating the air pollution control laws. Once that investigation confirmed the accuracy of the complaints, and the District determined such a violation was occurring, the District issued a notiсe of violation and offered to settle the claim. As in Tichinin, the investigation preceding that letter was sufficiently related to petitioning activity to fall “within the protected ‘breathing space’ of the right of petition.” (Tichinin, supra, 177 Cal.App.4th at p. 1068.) The same reasoning is equally applicable to the intervening issuance of the notice of violation. (See CKE Restaurants, Inc. v. Moore (2008) 159 Cal.App.4th 262, 269 (CKE Restaurants) [issuance of a Proposition 65 notice of violation is a protected activity under the anti-SLAPP statute].) All such conduct is protected activity unless the evidence conclusively establishes the District‘s investigation of Takhar for fugitive dust violations, the notice of violation, and the settlement offer “were just a sham.” (Tichinin, supra, 177 Cal.App.4th at pp. 1071-1072.) We conclude there was no evidence presented in connection with the anti-SLAPP motion conclusively establishing
Nevertheless, framing his cross-complaint as a simple declaratory relief action, Takhar argues it does not arise from any of these protected activities. Instead, relying primarily on Cotati, supra, 29 Cal.4th 69, Takhar argues that while his cross-complaint was filed in response to the District‘s civil enforcement action, it does not arise from that protected activity or “any prelitigation procedures,” but rather from “a desire to obtain declaratory relief as to the meaning of the fugitive dust regulations of [the District] and whether [he] and other farmers [are] exempt from those regulations while engaged in agricultural activities.” He is mistaken. First, ignoring the taxpayer waste cause of action does not make that portion of the cross-complaint disappear. A cause of action under
With respect to the declaratory relief cause of action, we first note Takhar‘s reliance on Cotati, supra, 29 Cal.4th 69 is misplaced. There, owners of mobile home parks brought an action in federal court challenging the constitutionality of the City of Cotati‘s rent control ordinance. In response, and in an аttempt to gain a more favorable forum, the City filed an action in state court seeking a judicial declaration as to the constitutionality of the ordinance. The owners filed an anti-SLAPP motion in state court, which was granted. (Id. at pp. 72–73.) Our Supreme Court reversed, concluding the City‘s declaratory relief action did not arise from protected petitioning activity. The court explained: “It is indisputably true, as the trial court observed, that City‘s action was filed shortly after Owners filed their claim in federal court. But the mere fact an action was filed after protected activity took place does not mean it arose from that activity. The anti-SLAPP statute cannot be read to mean that ‘any claim asserted in an action which arguably was filed in retaliation for the exercise of speech or petition rights falls under section 425.16, whether or not the claim is based on conduct in exercise of those rights.’ [Citations.] [¶] While City‘s complaint repeatedly refers to the underlying subject matter of Owners’ federal action (i.e., the mobilehome park rent stabilization ordinance and arguments respecting its validity), it contains no reference to the action itself. California courts rightly have
Here, unlike Cotati, supra, 29 Cal.4th 69, Takhar‘s cross-complaint was not simply filed in response to the District‘s civil enforcement action. It was based on that action and other conduct incidental to the filing of that action. With respect to the taxpayer waste cause of action, we have already explained why this is so and need not repeat ourselves here. With respect to the declaratory relief cause of action, as we noted previously, the allegations in the cross-complaint make clear Takhar is seeking a judicial declaration that the District is wasting its resources by enforcing fugitive dust regulations against him because, he asserts, rule 3.16(D.) exempts his land clearing activities from the reach of the prohibition on emitting fugitive dust and the District may not override that exemption by enforcing fugitive dust violations under
The more analogous authority is CKE Restaurants, supra, 159 Cal.App.4th 262, in which the Court of Appeal held a declaratory relief action, filed by an operator of fast food restaurants in response to a 60-day notice of violation of the Safe Drinking Water and Toxic Enforcement Act of 1986 (Proposition 65), arose from protected petitioning activity. The action sought “a judicial declaration that ingestion of its food products does not pose any significant risk of causing cancer or reproductive harm in humans; that CKE is not required to provide any Proposition 65 warnings; and that CKE is in compliance with Proposition 65.” (Id. at p. 267.) Distinguishing Cotati, supra, 29 Cal.4th 69 and holding this declaratory relief action arose from the filing of the notice of violation, the court explained: “The facts before us differ markedly from those in Cotati. In its complaint, CKE directly challenged the merits of the 60–day notice by referring to and quoting from
Similarly, here, the cross-complaint‘s prayer for declaratory relief refers to the District‘s “enforcement actions undertaken in this case.” Such enforcement actions include the investigation into the complaints of fugitive dust violations, issuance of the notice of violation, offer of settlement, and commencement and prosecution of the civil enforcement action itself, all of which are protected activity. Indeed, in attempting to distinguish CKE Restaurants, Takhar concedes, “[h]e is attacking [the District‘s] entire scope of conduct in prosecuting farmers for fugitive dust violations when such conduct is exempt.” While he refers to “farmers” in general, there is no evidence in the record that anyone other than Takhar was prosecuted for such a violation under the circumstances he claims exempt him from the prohibition on emitting fugitive dust. Thus, much like CKE sought a judicial determination that its food products complied with Proposition 65, thereby challenging the allegations in the 60-day notice of violation, Takhаr is seeking a judicial determination that he is exempt from rule 3.16, and thereby challenging the District‘s protected enforcement activities, including issuance of the notice of violation and commencement and prosecution of the civil enforcement action itself. As in CKE Restaurants, without these protected enforcement activities, ” ‘there would have been no actual, present controversy, and no controversy at all.’ ” (CKE Restaurants, supra, at p. 271.)
Because the District, as the cross-defendant, has made a threshold showing that the causes of action asserted in the cross-complaint arise from protected activity, we now turn to whether Takhar, as the cross-complainant, has demonstrated a probability of prevailing on the merits of these causes of action.
IV
Probability of Prevailing on the Merits
As a preliminary matter, we note Takhar‘s argument regarding the second stage of the anti-SLAPP analysis, both in the trial court and in this appeal, is limited to his taxpayеr waste cause of action. We therefore consider forfeited any assertion regarding his probability of prevailing on the declaratory relief
With respect to the taxpayer waste cause of action, we conclude Takhar did not carry his burden of demonstrating a probability of prevailing on the merits of this claim.
In Chiatello v. City and County of San Francisco (2010) 189 Cal.App.4th 472 (Chiatello), our colleagues at the First Appellate District provided the following cogent description of the scope of this provision: “Just what amounts to ‘waste’ is more readily intuited than enunciated. It has been described as ‘a useless expenditure . . . of public funds’ that is incapable of achieving the ostensible goal. [Citation.] Certainly it reaches outright fraud, corruption, or collusion. [Citations.] Even when ’ “done in the exercise of a lawful power,” ’ public spending may qualify as waste if it is ’ “completely unnecessary,” ’ or ’ “useless,” ’ or ‘provides no public benefit.’ [Citations.] Waste is money that is squandered, or money that is left uncollected, and thus is a constitutionally prohibited gift of public resources. [Citations.]” (Id. at p. 482.) However, the court continued: “Waste does not encompass the great majority of governmental outlays of money or the time of salaried gоvernmental employees, nor does it apply to the vast majority of discretionary decisions made by state and local units of government: ’ “[T]he term ‘waste’ as used in section 526a means something more than an alleged mistake by public officials in matters involving the exercise of judgment or wide discretion. To hold otherwise would invite constant harassment of city and county officers by disgruntled citizens and could seriously hamper our representative government at the local level. Thus, the courts should not take judicial cognizance of disputes which are primarily political in nature, nor should they attempt to enjoin every expenditure that does not meet with a taxpayer‘s approval.” ’ [Citation.]” (Id. at pp. 482-483, italics added.)
Takhar does not argue the District is expending funds enforcing an illegal statute or rule. Thus, his reliance on the foregoing line from Chiatello, supra, 189 Cal.App.4th 472 is misplaced. So too is his reliance on Ebel v. City of Garden Grove (1981) 120 Cal.App.3d 399, where the plaintiffs challenged enforcement of a facially unconstitutional ordinance. (Id. at p. 403-404.) Instead, Takhar argues the District “refuses to follow the law,” specifically rule 3.16(D.), which he asserts allows him to emit fugitive dust while converting pasture land to orchard land. His reliance on Thompson v. City of Petaluma (2014) 231 Cal.App.4th 101 is closer to the mark. There, after the trial court granted the City‘s demurrer without leave to amend because the complaint “fail[ed] to allege waste, illegal expenditures, or the use of taxpayer funds to implement an unconstitutional statute,” the Court of Appeal held the plaintiff should have been allowed to amend the complaint to allege facts demonstrating the City‘s actions were in violation of that statute. (Id. at pp. 109-111.)
Here, however, in the second stage of the anti-SLAPP analysis, the burden is on Takhar to demonstrate a probability of prevailing on the merits. He has failed to do so. The asserted violation of law is that the District enforced the prohibition on emitting fugitive dust against Takhar despite his claim that his activities are purportedly exempt from that prohibition by virtue of rule 3.16(D.), which he asserts also precludes the District from prosecuting him under
DISPOSITION
The trial court‘s order denying the anti-SLAPP motion is reversed and vacated. The trial court is directed to enter a new order granting the motion and dismissing the cross-complaint. Because the People ex rel. Feather River Air Quality Management District should have prevailed on the anti-SLAPP motion, they are entitled to fees and costs incurred both in the trial court and on appeal, to be determined by the trial court. (
/s/
HOCH, J.
We concur:
/s/
MURRAY, Acting P. J.
/s/
DUARTE, J.