COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

ANGELINA MORFIN VARGAS, et al.,

Plaintiffs and Appellants,

v.

CITY OF SALINAS, et al.,

Defendants and Respondents.

STEVEN J. ANDRE,

Intervenor and Appellant.

Case No. H035207 (Mont Co. Super. Ct.

Case No. M61489)

RESPONDENTS' BRIEF

on Appeal from an Appealable Post-Judgment Order of the Superior Court of the State of California,

in and for the County of Monterey,

by the Honorable Susan M. Dauphine, Judge

Vanessa W. Vallarta, Esquire California State Bar Member, No. 142404 City Attorney

OFFICE OF THE CITY ATTORNEY CITY OF SALINAS

200 Lincoln Avenue Salinas, California 93901-2639 Telephone: (831).758-7256

Joel Franklin; Esquire California State Bar Member, No. 69705 LAW OFFICES OF JOEL FRANKLIN 2100 Garden Road, Suite G Monterey, California 93940-5393 Telephone: (831) 649-2545

Counsel for Defendants and Respondents, CITY OF SALINAS and DAVE MORA

COURT OF APPEAL OF THE STATE OF CALIFORNIA SIXTH APPELLATE DISTRICT

ANGELINA MORFIN VARGAS, et al.,

Plaintiffs and Appellants,

v.

CITY OF SALINAS, et al.,

Defendants and Respondents.

STEVEN J. ANDRE,

Intervenor and Appellant.

Case No. H035207 (Mont Co. Super. Ct.

Case No. M61489)

RESPONDENTS' BRIEF

© 2010 Joel Franklin

Table of Contents Table of Authorities

TABLE OF CONTENTS

i

v

Certificate of Compliance with Word Limitations

xiii

1. II.

INTRODUCTION

STATEMENT OF THE CASE AND FACTS

1 5

A.

. B.

Procedural History: Underlying Action and Appellate Proceedings

5

1.

The Allegations and Relief Sought in the Action

The Anti-SLAPP Motion and Award of Attorneys' Fees under Section 425.16

8

5

2.

Appeal of the Order Granting the Motion to Strike the Complaint in Its Entirety

Procedural History: After Remittitur in First Appeal

3.

9

11 11

1. 2.

Appellants' Motion for New Trial The City's and Appellants' and Intervenor's Motions to Recover Attorneys' Fees and Costs, Hearing and Superior Court's Decision on Fee Motions

12

LEGAL DISCUSSION

III. THE CITY IS ENTITLED TO RECOVER ITS ATTORNEYS' FEES AND COSTS INCURRED IN SUCCESSFULLY DEFENDING THE STRIKING OF

THE COMPLAINT IN ITS ENTIRETY 14

A.

14

Standard of Review

14

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TABLE OF CONTENTS (cont'd)

B.

The City is Entitled to Recover Its Attorneys' Fees and Costs Upon Prevailing on its Anti-SLAPP Motion

1.

Appellants Waived Challenge to the City's Entitlement to Recover Attorneys' Fees and Costs Upon Prevailing on the Anti-SLAPP Motion

2.

The Noerr-Pennmrrton Doctrine Does Not Bar the City from Recovering its Attorneys' Fees and Costs

a.

The Legislature Has Had the Opportunity to Remove Government Defendants' Entitlement to Bring antiSLAPP Motions or to Recover Attorneys' Fees After Making a Successful Motion

b.

Appellants' Argument NoerrPennington Precludes an Award of Attorneys' Fees Here Relies on Two Claims the California Supreme Court Decision Resolved Against Them

(i) Public Entities and Staff Acting in Their Official Capacities Do Have Protected Rights Encompassed Within the Anti-SLAPP Statute

(ii) The Exemption from the Anti-SLAPP Statute for Public- Interest Lawsuits Does Not Apply to this Case

RESPONDENTS' BRIEF

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Sixth Dist. Case No. H035207 .

ii

15

15

18

19

24

24

25

TABLE OF CONTENTS
(cont'd)
Page
(iii) Government
Defendants Have
Protected Rights to
Speak Within the Anti-
SLAPP Statute 27
c. An Award of Attorneys' Fees
to a Governmental Defendant
Does Not Offend Noerr-
Pennington 29
d. Appellants' N oerr -Pennington
Cases Do Not Hold that
Government Defendants in
Public-Interest Litigation
Cannot Recover Attorneys'
Fees 31
e. The Only Case Involving a
Government Defendant Which
Made a Successful Anti-
SLAPP Motion to Address the
Noerr-Pennington Theory
Held It Did Not Bar the
Government's Recovery of
Attorneys' Fees 36 C.

The Trial Court Did Not Abuse Its Discretion in Determining the Reasonable Amount of Attorneys' Fees to Award or in Awarding the Appellate Costs Requested by the City

40

1.

The Hourly Rate Applied to Experienced Appellate Counsel Assisting Lead Counsel Fell Within Hourly Rates for Comparable Attorneys and Comparable Work in the Community

The Rules of Court Specifically Provide for Recovery of the Items Awarded as Costs on Appeal

40

2.

42

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iii

TABLE OF CONTENTS (cont'd)

3.

The City's Attorneys' Fees for Opposing the 1021.5 Motion for Private Attorney General Fees Wholly Arose from the Anti-SLA,PP Proceedings and Such Fees Were Properly Awarded Under the AntiStAPP Statute

43

IV. APPELLANTS AND INTERVENOR DID NOT SUCCEED IN ENFORCING THE IMPORTANT PUBLIC RIGHT THEY PURSUED AND, THEREFORE, THE TRIAL COURT PROPERLY DENIED THEIR MOTION FOR INTERVENOR TO RECOVER ATTORNEY'S FEES UNDER CODE OF CIVIL PROCEDURE SECTION

1021.5 46

A. B. C.

Standard of Review

46 47

Intervention by Appellants' Counsel Appellants and Intervenor Failed to Succeed as Required Within the Section 1021. 5 Criteria

48

1.

To Be Successful, Appellants and Intervenor Were Required to Achieve Some of the Benefit They Sought in Bringing Suit

The California Supreme Court's. Explanation of Stanson Does Not Equate with Appellant's Success in the Case

56

49

2.

The Superior Court's Failure to Sustain Intervenor's Evidentiary Objection Was Neither Erroneous Nor Prejudicial

D.

63 65

V.

CONCLUSION

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iv

TABLE OF AUTHORITIES

Cases

Auto Equity Sales. Inc. v. Super. Ct. (1962) 57 Cal.2d 450

Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379

Bill Johnson's Restaurants. Inc. v. N.L.R.B. (1983) 461 U.S. 731

Bradbury v. Super. Ct. (1996) 49 Cal.App.4th 1108

Bouvia v. County of Los Angeles (1987) 195 Cal.App.3d 1075

Bowman v. City of Berkeley (2005)

131 Cal.App.4th 173

Cal. Common Cause v. Duffy (1987) 200 Cal.App.3d 730

Children's Hosp. & Med. Ctr. v. Bonta (2002) 97 Cal.App.4th 740

Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628

Ciani v. San Diego Trust and Sav. Bank (1994) 25 Cal.App.4th 563

City of Long Beach v. Bozek (1982)

31 Cal.3d 527, cert. gtd., judgment vac . . and remanded (1983) 459 U.S. 1095,

clarified in 33 Ca1.3d 727,727-728, on remand

Compton Community College Federation of Teachers V. Compton Community College Dist. (1985)

165 Cal.App.3d 82

Connerly v. State Personnel Bd. (2006) 37 Cal. 4th 1169

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Page 14,27

15,40-41

36

32,39

59

50,51,55

52, 55

17

40

58

34,35

59

14,47

TABLE OF AtrrHORITIES (cont'd)

Cases

(cont'd)

County cjf Colusa v. California Wildlife Cons. Bd.

~OO~ .

145 Cal.App. 4th 637

County of Orange v. Barratt American. Inc. (2007) 150 Cal.App.4th 420

DiQuisto v. County of Santa Clara (2010) 181 Cal.App.4th 236

Doers v. Golden Gate Bridge. Hwy. & Transportation Dist.

(1979) 23 Cal.3d 180

Eastern RR. Presidents Conference v. Noerr Motor Freight. Inc. (1961)

365 U.S. 127

Ebbetts Pass Forest Watch v. Cal. Dept. of Forestry and .. Fire Protection (2010)

187 Cal.App.4th 376

Environmental Protection Information Ctr. v. Cal. Dept. of Forestry and Fire (2010)

190 Cal.App.4th 317

Equilon Enterprises. L.L.C. v. Consumer Cause. Inc. (2002)

29 Cal. 4th 53

Folsom v. Butte County Assn. of Governments (1982) 32 Cal. 3d 668

Gage v Wexler (N.D. Cal. 1979) 82 F.R.D. 717

Gerawan Farming. Inc. v. Lyons (2000) 24 Ca1.4th 468

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vi

52, 55

48

8, 10

17

passim

passim

58

passim

51

31

26

TABLE OF AUTHORITIES (cont'd)

Cases

(cont'd)

Gilbert v. Nat'l Corp. for Housing Partnerships (1999)

71 Cal.App.4th 1240· ... .

Graffiti Protective Coatings. Inc. v. City of Pico Rivera (2010)

181 Cal.App.4th 1207

Graham v. DaimlerChrysler Corp. (2004) 34 Cal. 4th 553

Hi-Top Steel Corp. v. Lehrer (1994) 24 Cal.App.4th 570

Hogar v. Community Development Comm'n of City

of Escondido (2007) .

157 Cal.App.4th 1358

In re S.B. (2004)

32 Cal.4th 1287

Isbister v. Boys' Club of Santa Cruz. Inc. (1985) 40 Cal.3d 72

Karuk Tribe of Northern Cal. v. Cal. Reg. Water Qual. Control Bd. (2010)

183 Cal.App.4th 330

Kearney v. Foley & Lardner. LLP (9th Cir. 2009) 590 F.3d 638

Ketchum V. Moses (2001) 24 Ca1.4th 1122

Leiserson V. City of San Diego (1988) 202 Cal.App.3d 725

Lopez V. Aransas County Indep. Sch. Dist. (5th Cir. 1978)

570 F.2d 541

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15,42

passim

passim

35

52,54

17

23

60

2

22,23

59

31

TABLE OF AUTHORITIES (cont'd)

Cases

(cont'd)

Los Angeles Police Protective League v. City of Los

Angeles (1986) . ... .

188 Cal.App.3d 1

Mandocino v. Maggard (1989)

210 Cal.App.3d 1413

Maria P. v. Riles (1987)

43 Ca1.3d 1281

58

58

passim

Marine Forests Society v. Cal. Coastal Comm'n

(2008) .

160 Cal.App.4th 867

passim

Mission Oaks Ranch. Ltd. v. County of Santa Barbara (1998)

65 Cal.App.4th 713

32,39

MW Erectors. Inc. v. Niederhauser Ornamental & Metal Works Co .. Inc. (2005)

36 Cal.4th 412

16

Nat'l Parks and Conservation Ass'n v. County of Riverside (2000)

81 Cal.App.4th 234

Nevada County Ofc. of Education v. Riles (1983) 149 Cal.App.3d 767

Oison v. Cory (1983)

35 Cal. 3d 390

49,51

16-17

14,27

People v. McGuire (1993) 14 Cal.App.4th 687

People v. Trevino (2001) 26 Ca1.4th 237

22

23

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viii

TABLE OF AUTHORITIES (cont'd)

Cases

(cont'd)

Planned Parenthood of Santa Barbara. Ventura and -san Luis Obispo Counties. Inc. v. Aakhus (1993)

14 Cal.App.4th 162

Pleasant Grove City v. Summum (2009)

_ U.S. _,129 S.Ct. 1125, 172 L.Ed.2d 853

PLCM Group. Inc. v. Drexler (2000)

22 Ca1.4th 1084

Professional Real Estate Investors. Inc. v. Columbia Pictures Industries. Inc. (1993)

508 U.S. 49

Protect Our Water v. County of Merced (2005) 130 Cal.App.4th 488

Riverwatch v. County of San Diego Dept. of Env. Health (2009)

175 Cal.App.4th 768

Roybal v. Governing Bd. of Salinas City Elementary Sch. Dist. (2008)

159 Cal.App.4th 1143

San Ramon Valley Fire Prot. Dist. v. Contra Costa County Employees' Ret. Assn. (2004)

125 Cal.App.4th 343

Schmier v. Supreme Ct. of Cal. (2002) 96 Cal.App.4th 873

Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174

Sosa v. DIRECTV. Inc. (9th Cir. 2006) 437 F.3d 923

Sperber V. Robinson (1994) 26 Cal.App.4th 736

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52

27,28,29

41

35

49, 59

58

14,47,48

34

59,60

passim

14

17

TABLE OF AUTHORITIES

(cont'd)

Cases

(cont'd)

Stanson v. Mott (1976) 17 Cal.3d 217

passim

Thompson Pac. Constr .. Inc. v. City of Sunnyvale (2007)

155 Cal.App.4th 525

Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049

30-31

14,32

United Mine Workers of America v. Pennington (1965)

381 U.S. 381 U.S. 657

passim

Urbaniak v. Newton (1993) 19 Cal.App.4th 1837

USA Waste of Cal., Inc. v. City of Irwindale (2010) 184 Cal.App.4th 53

Vargas v. City of Salinas (2009)

46 Ca1.4th 1

61

33,34

passim

Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43

Wood v. Santa Monica Escrow Co. (2009) 176 Cal.App.4th 802

57

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x

TABLE OF AUTHORITIES

(cont'd)

Constitutional.Provisions. Statutes. Enactments. Legislative Materials. Regulations. Ordinances and Court Rules

California Constitution

Art. IV, §10, subd. (c) Art. VI,§13

20 64

20

California Legislature Joint Rules, R. 56 California Rules of Court

R. 8.104, subd. (b)

R. 8.278

R. 8.278, subd. (d)(l)

R. 8.278, subd. (d)(l)(D) R. 8.278, subd. (d)(l)(E)

17 42 42

42,43 42,43

Code of Civil Procedure § 128.5 (former)

§ 425.16

§ 425.16, subd. (b)(l) § 425.16, subd. (c)

§ 425.16, subd. (e)

§ 425.17

§ 425.17, subd. (b)

§ 425.17, subd. (d)(2) § 425.18, subd. (b)(l) § 425.18, subd.(i)

§ 904.1, subd. (a)(2) § 1021.5

§ 1021.5, subd. (a) § 1021.7

35 passim 10,25,38 passim 25

passim 25 25 21 21

13, 17 passim 53 35

Evidence Code

§ 1152, subd. (a) § 1220

64 16

Government Code § 6259

§ 11130

§ 1130.3

§ 54960

§ 54960.1

Penal Code, § 72

20 20 20 20 20

35

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xi

TABLE OF AUTHORITIES (cont'd)

Constitutional Provisions. Statutes. Enactments. Legislative Materials. Regulations. Ordinances and Court Rules

(cont'd)

S.B. 1188 (1998-1999 Reg. Sess.) as introduced, Feb. 26, 1999

as introduced, Feb. 26, 1999, Leg. Counsel Digest

Complete Bill History

Stats. 1992, ch. 726, § 2 Stats. 1993, ch. 1239, § 1 Stats. 2003, ch. 338, § 1 Stats.2005,ch.535

§1 §2

Stats. 2009, ch. 65

S.B. 786 (2009-2010 Reg. Sess.)

Leg. Counsel Digest (Apr. 22, 2009 Am.)

Other Authorities

1 Witkin, Cal. Evidence (4th ed. 2000) Hearsay, § 97

Eisenberg, Horvitz and Weiner, California Practice Guide: Civil Appeals and Writs (The Rutter Group 2010 Rev. No.1)

Ch. 8, Scope and Limits of Appellate Review § 8:96.1

§ 8:244

§ 8:249-8:261.1 § 8:264-8:265

§ 8:268

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19 19

20 23 23 21

21 21

20 20

16

64 17 17 17 17

CERTIFICATE OF COMPLIANCE WITH WORD LIMITATIONS

I, Joel Franklin, certify that:

The length of the attached Respondent's Brief complies with the requirements of California Rules of Court, Rule 8.204, subdivision (c)(l), and, according to the word-processing program used to prepare this brief, the number of words in this brief is:

13,943.

Dated:

January.2~ 2011

Counsel for Defendants and Respondents,

CITY OF SALINAS and DAVE MORA

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Vargas, et al. v. City of Salinas, et al.; Andre v. City of Salinas, et al. Sixth Dist. Case No. H035207

xiii

I.

,

INTRODUCTION

Plaintiffs and Appellants, ANGELINA MORFIN VARGAS and MARK DIEROLF [collectively, "Appellants"], represented by Intervenor and Appellant, STEVEN J. ANDRE rIIntervenor"], brought suit in October 2002 against Defendants and Respondents, CITY OF SALINAS and DAVE MORA [collectively, "the City"], alleging the City had used public funds and resources

. to engage in an unlawful partisan campaign against a local taxrepeal ballot measure pending before the city's voters in the upcoming November 2002 election. The City brought a special motion to strike the compaint as a strategic lawsuit against public participation under Code of Civil Provision" section 425.16 [the Ilanti-SLAPP" statute], which the. superior court granted. Appellants appealed that order, and this Court and the California Supreme Court, in an opinion issued April 20, 2009, upheld the granting of the anti-SLAPP motion. (Vargas v. City of Salinas (2009) 46 Ca1.4th 1 ["Vargas"].)

Following the case's return to the superior court, the City

made a motion to recover its attorney's fees and costs incurred on

appeal under the provision of section 425.16, subdivision (c), for a mandatory award of fees to a defendant who prevails in bringing an anti-SLAPP motion. Likewise, Appellants and Intervenor made

1 All unspecified statutory references are to the Code of Civil

Procedure.

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a motion ' under section 1021.5 [sometimes, "1021.5") for Intervenor to recover fees for his efforts on appeal representing Appellants.

The superior court granted the City its appellate fees and costs over Appellants' objection that the City was not entitled to recover them, and denied Appellants' and Intervenor's motion to recover fees, finding they were not successful in the superior or reviewing courts, so they had not enforced an important public right or conferred a significant public benefit, as required by section 1021.5. Appellants appeal from the granting of the City's appellate fees and costs, and Appellants and Intervenor appeal from the denial of appellate fees to Intervenor.

This appeal primarily addresses two issues. First, whether the mandatory award of attorneys' fees under the anti-SLAPP statute may not be granted to this City who successfully made an anti-SLAPP motion, without running afoul of the "NoerrPennington" doctnne" which provides immunity to plaintiffs from liability being imposed on their exercise of the right to petition the government for redress of grievances, unless their exercise of those rights was a sham. And, second, whether Appellants and Intervenor who failed to establish any illegal expenditure of public funds or obtain any relief for which they prayed may, nevertheless,

2 Eastern RR. Presidents Conference v. Noerr Motor Freight.

Inc. (1961) 365 U.S. 127, 136-144; United Mine Workers of America v. Pennington (1965) 381 U.S. 381 U.S. 657, 661-670. (See Kearney v. Foley & Lardner. LLP (9th Cir. 2009) 590 F.3d 638,644.)

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be found to have succeeded in enforcing this important public right and to have succeeded in conferring a significant public benefit despite the failure to enforce that right.

The answer is, yes and no, respectively.

The City has a right to recover its attorneys' fees as a successful anti-SLAPP defendant which is not precluded by the Noerr-Pennington doctrine. Appellants argue Noerr-Pennington prevents the mandatory fee award and rely on a theory, that the City's speech is unprotected, which has been finally decided against them by the California Supreme Court in its opinion in this very case and by the United States Supreme Court. Both high courts have noted the need and protection for government speech about its operations. The express Legislative authorization for a mandatory award of fees to defendants sued based on their protected speech activity, the Legislative and statutory history of this and connected statutes showing refusal to exclude government defendants from anti-SLAPP protections and adoption of a limitation on awards of fees to successful government defendants which is not applicable to this action, all dictate NoerrPennington's inapplicability to the City's fee request. Lastly, Legislatively-authorized fee shifting does not impose liability for exercise of Appellants' petition rights, demonstrating NoerrPennington is not implicated under the circumstances here.

II

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Hundreds of California statutes provide for an award of attorney fees to the prevailing party .... Fee shifting simply requires the party that creates the costs to bear them.... It does not make a party "liable" for filing a lawsuit.

Eguilon Enterprises. L.L.C. v. Consumer Cause. Inc. (2002) 29 Cal.4th 53,62-63 [rejecting argument for Noerr-Pennington immunity against anti-SLAPP attorneys' fees].)

As to Appellants' and Intervenor's motion under 1021.5. A necessary, and here unsatisfied, prerequisite to private attorney general fee award is a successful public-interest suit. That the unsuccessful public-interest litigation resulted in a published opinion clarifying or interpreting the law does not transform this lawsuit into a successful one.

[A]ppellants .,. did not have a factually meritorious lawsuit and ... their only victory ... clarified why they should lose.

(Ebbetts Pass Forest Watch v. Cal. Dept. of Forestry and Fire Protection (2010) 187 Cal.App.4th 376, 387-388 [denying 1021.5 fees].)

The award of fees and costs to the City and denial of fees to Intervenor should be affirmed.

1/

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II.

STATEMENT OF THE CASE AND FACTS

Because the Appellants' and Intervenor's challenges to the superior court's order primarily assert issues of law, this summary of the record will be abbreviated.

A. Procedural History: Underlying Action and Appellate Proceedings.

This Court is aware of the procedural history of this case from its own files, of which the Court has taken judicial notice." Therefore, the City's summary of the background of this matter up to issuance of the remittitur in the first appeal is generally limited generally, and subsequent proceedings is summarized in more

detail.

1. The Allegations and Relief Sought in the Action.

Both the California Supreme Court's opinion in the first appeal of this matter and this Court's preceding opinion in the same appeal, contain summaries of the litigation brought by Appellants and Intervenor. (See Vargas, supra, 46 Cal.4th at pp.9-

3 Thevolume numbers of the Reporters' Transcript [I!RT"],

Clerk's Transcript [I!CT"] and Augmented Clerk's Transcript rlAug. CT"] will immediately precede the record citation. For example, Volume III of the Clerk's Transcript will be cited as IIIIICT". The two Augmented Reporter's Transcripts will be referenced by I!Aug. RT" and the date of the oral proceedings. References to the record in the first appeal in this matter (Sixth Dist. Case No. H027693 [Cal. S. Ct. Case No. 8140911]) will be preceded by "First Appeal".

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Sixth Dist. Case No. H035207 .

5

13 & fn. 6, 21, 22, 35; Slip Opn., Sixth Dist. Case No. H027693 r~Slip Opn. "], pp. 2-4; see also Vargas, supra, 46 Cal.4th at pp. 9-13 [background to initiation of litigation].)

Appellants sued the City, its City Manager, and a number of City employees as "Doe" defendants, alleging theyilleqally expended public funds on "campaign materials" against a taxrepeal ballot measure, Measure 0, pending before the City's citizens in the November 5, 2002 election. (First Appeal ICT 1-10, First Appeal IIICT 718-730.)4 Appellants' operative complaint filed March 3,2004 alleged "interference with the democratic electoral process" and violations of constitutional rights, and sought declaratory, injunctive and equitable relief against the City and damages against its City Manager for illegal expenditure of public funds. (First Appeal ICT 1-10, First Appeal IIICT 636-637,718- 731.)

The crux of Appellants'claimschallenged the City for "prepar[ing] and distribut[ing] pamphlets, newsletters and website materials" which "falsely portrayed the effects of Measure

0" to the voting public. (First Appeal IIICT 719.) Appellants

asserted the City's dissemination of materials on Measure 0 was "partisan political activity" and did not provide a "fair presentation

4 On November. 29, 2010, upon The City' request, this Court took judicial notice of the record in the first appeal in this matter (Angelina Morfin Vargas. et al. v. City of Salinas. et al., Sixth Dist. Case No. H027693.)

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of the facts" or a "balanced analysis of the arguments in favor of and against Measure 0." (First Appeal ICT 3, First Appeal IIICT 720.) Appellants alleged the City's "campaign materials" were "designed primarily for the purpose of influencing the voters" in the election. (First Appeal ICT 3, First Appeal IIICT 720-721.) According to Appellants,.the City's expenditure of public resources to engage in such "political advocacy" violated their constitutional free speech protections. (First Appeal IIICT 722; First Appeal IRT 5.) No allegations in the Supplemental Complaint explained how Appellants' First Amendment rights were affected.

More specifically, Appellants prayed for the following relief: (1) that the City Manager and other employees be required to pay back the City for the amount of the assertedly-illegally expended funds, alleged to exceed $300,000.00; (2) that the court declare

"that the campaign materials are improper and violate voters'

rights and that defendant CITY OF SALINAS' expenditures of public resources and funds to produce and distribute the campaign materials is, likewise, improper, illegal and violates taxpayer rights"; (3) that the court issue a preliminary and permanent injunction ordering the City to remove all the of alleged improper campaign materials from all locations and to refrain from any further "engaging in partisan political activities"; (4) for equitable and any other appropriate relief; and (5) attorneys' fees under section 1021.5 and costs. (IIICT 728-729.)

II

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Vargas explained that the gravamen Appellants' allegations was the City's and its officials' utilization of "public resources and funds" to engage in "unlawful campaign activities" and prepare "campaign materials'" which did not provide a "balanced

analysis" of the ballot measure, and that Appellants sought "declaratory, injunctive, and equitable relief, as well as the

recovery of the public funds alleged to have been unlawfully expended". (Vargas, supra, 46 Ca1.4th at p. 13 & fn, 6; see id., at pp. 9-13, 21, 22, 35; cf. DiQuisto v. County of Santa Clara (2010) 181 Cal.App.4th 236, 252.)

2. The Anti-SLAPP Motion and Award of Attorneys'Fees under Section 425.16.

The City brought an anti-SLAPP motion to strike the entire Complaint, which the trial court granted. (First Appeal VICT 1512- 1513, 1514-1515 [Order, amended May 21,2004]; see First Appeal IIICT 732 .. VCT 1232 [motion].) Appellants sought reconsideration in light of section 425.17 and, upon reconsideration, the court again granted the anti-SLAPP motion. (First Appeal VCT 1494- VIeT 1511, 1535-1537.} Appellants appealed from both orders. (First Appeal VICT 1538.)

On May 27,2004, following order on the anti-SLAPP motion, the City requested recovery of its attorneys' fees incurred up to that point, pursuant to section 425.16, subdivision (c). (First Appeal, IIICT 733,749; IAug. CT 23-25,39-59, 68-74.)

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Appellants did not contest the City's entitlement to recover

. fees in their opposition to the City's first motion for attorneys' fees following the superior court proceedings; rather, Appellants acknowledged the City's right to recover fees. (See generally Aug.

CT 26-38; see IAug. CT 31 [II. 18-21],35 [II. 11-13,21].) Appellants'

opposition to the City's fees by motion to tax costs mostly focussed on the hourly rate to be applied to the City's "in-house" attorneys.

(IAug. CT 29-35,62-66.)

The superior court reduced the fees requested to the amount it determined reasonable and awarded the City attorneys' fees.

(See IAug. CT 78-79; 08/27/04 Aug. RT 1-3; 09/17/04 RT 1-3.)

Appellants did not appeal the award of attorneys' fees to the

City.

3. Appeal of the Order Granting the Motion to Strike the Complaint in Its Entirety.

In its opinion issued December 29, 2005, this Court affirmed the granting of the motion to strike the entire complaint.

Appellants petitioned for and obtained review by the California Supreme Court.

The Supreme Court affirmed this Court's and the superior court's decisions that the anti-SLAPP statute reached the

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protected government speech here, satisfyinq the first prong of the anti-SLAPP motion. (See Vargas, supra, 46 Ca1.4th at pp. 16-19; § 425.16, subd. (b)(l).)

Moving to the second prong, whether Appellants had shown a likelihood of success on the merits, the Supreme Court reaffirmed

the general standards of Stanson v. Mott (1976) 17 Ca1.3d 217, rejecting the standard used by the trial court and this Court for determining whether a public entity had illegally expended public funds on campaigning. (Vargas, supra, 46 Ca1.4th at pp. 27-34.) The Court explained the analysis required by the standards set forth in Stanson. (Vargas, supra, 46 Ca1.4th at pp. 23-27, 29-35.)

Applying this standard to the record of the City's statements and actions, the Supreme Court affirmed trial court's granting of the motion and the court of appeal's upholding of the granting of the motion. (See Vargas, supra, 46 Ca1.4th at pp. 35-39.)

The high court rejected the plaintiffs' challenge, ultimately concluding that lithe City engaged in permissible informational rather than campaign activity" with respect to the website postings. (Id. at p. 37, 92 Cal.Rptr.3d 286,205 P.3d 207.) The court reached similar conclusions concerning the newsletter and the one-page summary. (Id. at pp. 37-38, 92 Cal.Rptr.3d 286, 205 P.3d 207.)

(DiQuisto, supra, 181 Cal.App.4th at p. 252.)

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The court then summarized the factors of its analysis in determining whether challenged material is "more properly characterized as providing information than as campaigning: (1) the information conveyed generally involved past and present facts ... ; (2) the communications avoided argumentative or inflammatory rhetoric and did not urge voters to vote in a particular manner or to take other actions in support of or in opposition to the measure; and (3) the information provided and the manner in which it was disseminated were consistent with

established practice .... " (Vargas, supra, 46 Ca1.4th at p. 40.)

Appellants filed a Petition for Rehearing in the Supreme Court on May 5,2009, along with a request for judicial notice of

. several documents not in the appellate record. On June 17, 2009, the Supreme Court denied judicial notice and rehearing, and issued its Remittitur to this Court.

This court issued the Remittitur returning the case to the trial court, ordering the City recover its costs, on June 24,2009.

B. Procedural Histozy: After Remittitur in First Appeal.

1. Appellants' Motion for New Trial.

Appellants filed a motion for new trial seeking to set aside the 2004 anti-SLAPP order, which the superior court denied. (See

lCT 5,159,171, IICT 395-399,417.) II

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2. The City's and Appellants' and Intervenor's Motions to Recover Attorneys' Fees and Costs, Hearing and Superior Court's Decision on Fee

Motions. .

The City made a motion seeking recovery of its attorneys' fees and costs pursuant to section 425.16, subdivision (c), and this Court's Remittitur. (ICT 121-299, nCT 300-348.)

Appellants brought a motion seeking an award of fees to Intervenor under section 1021.5. Appellants and their counsel made a motion for their counsel to intervene in the action for

purposes of seeking the award of attorney's fees under that section directly to him, as his engagement contract with

. Appellants provided they would not have to pay him fees for the litigation (and they apparently had not). (ICT 7-70; see ICT 10-11, 22,38.)

Following opposition and reply briefing and supporting submissions (IICT 349-590), the superior court held a lengthy hearing on Intervenor's motion for section 1021.5 attorney's fees and on the City's motion for fees under the anti-SLAPP statute, taking both motions under submission. (IRT 1-73.)

In its order filed January 11, 2010, the superior court granted the City's motion for recovery of fees and costs under section 425.16, subdivision (c), awarding most but not all of the fees

II

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requested and all the claimed appellate costs. (See nCT 593-596; compare nCT 160-171, 416-418.)

The court denied Intervenor's motion for fees pursuant to section 1021.5, stating,

Plaintiffs lost their case before the trial court and on appeal. After review and consideration of the record and the arguments, the Court determines that Plaintiffs' efforts did not result in the enforcement of an important right affecting the public interest, nor confer a significant benefit on the public or large class of persons.

(nCT 594.)

Appellants and Intervenor timely filed a Notice of Appeal from this order. (IICT 597-598; see § 904.1, subd. (a)(2).) Appellants appealed from the award of attorneys' fees and costs to the City, and Appellants and Intervenor appealed from the denial of their motion for an award of attorney's fees. (nCT 597-

598.) II II II II II II

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LEGAL DISCUSSION III.

THE CITY IS ENTITLED TO RECOVER ITS ATTORNEYS' FEES AND COSTS INCURRED IN SUCCESSFULLY DEFENDING THE STRIKING OF THE COMPLAINT IN ITS ENTIRETY

A. Standard of Review.

Determining whether the City is entitled to recover attorneys' fees and costs under section 425.16, subdivision (c), is a question of law subject to de novo review here. (See Connerly v.

State Personnel Ed. (2006) 37 Cal.4th 1169, 1175-1176; Roybal v. Governing Ed. of Salinas City Elementary Sch. Dist. (2008) 159 Cal.App.4th 1143, 1148.)

As this Court has observed, the Noerr-Pennington doctrine is a rule of statutory construction. (Tichinin v. City of Morgan Hill

(2009) 177 Cal.App.4th 1049,1064-1065, citingSosa v. DIRECTV. Inc. (9th Cir. 2006) 437 F.3d 923,929-931.) As such, its

applicability is a question of law and subject to de novo review.

(See Connerly, supra, 37 Cal.4th at pp. 1175-1176; Roybal, supra, 159 Cal.App.4th at p. 1148.)

Appellants also argue the standard of review on applicability of section 425.17 is de novo. As the section 425.17 issue was finally decided in the first appeal in this case, no review of Appellants' assignment of error on this ground is available, under any standard. (Olson v. Cory (1983) 35 Ca1.3d 390, 399; Auto Equity Sales. Inc. v. Super. Ct. (1962) 57 Cal.2d 450, 455.)

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Once it is determined the City is entitled to an award of attorneys' fees under section 425.16, subdivision (c), this Court reviews the aspects of the superior court's determination of the proper amount of attorneys' fees and costs which are challenged on appeal for an abuse of discretion. (Bernardi v. County of Monterey (2008) 167 Cal.App.4th 1379, 1394.) "Reversible abuse

exists only if there is no reasonable basis for the court's action." (Gilbert v. Nat'l Corp. for Housing Partnerships (1999) 71 Cal.App.4th 1240,1250.)

B. The City is Entitled to Recover Its Attorneys' Fees and Costs Upon Prevailing on its Anti-SLAPP Motion.

An award of reasonable attorneys' fees and costs incurred in

appellate proceedings to a defendant prevailing in an anti-SLAPP motion are mandated by the anti-SLAPP statute. (§ 425.16, subd. (c); Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 194- 197.) The Remittitur from this Court also provided that the City

was entitled to recover its appellate costs.

1. Appellants Waived Challenge to the City's Entitlement to Recover Attorneys' Fees and Costs Upon Prevailing on the Anti-SLAPP Motion.

Not only did Appellants not contest the City's entitlement to recover fees in their opposition to the City's first motion for attorneys' fees following the superior court proceedings on the anti-SLAPP motion, they acknowledged the City's right to recover

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fees. (IAug. CT 29 ["A number of cases have upheld Section 425.16, fee awards to public entities."]; id., at p. 26 ['The motion (to tax costs memorandum) .. , is made on the grounds that the Memorandum ... seeks an award of fees in excess of what is

reasonable and in excess of what is allowed by law], emph, added; id., at p. 35 [Defendant is '" not entitled to receive an award of fees in excess of what the evidence reveals it actually spent. This limits defendant's recovery to its actual expenditure on attorney's fees .... "], emph. added; ibid. ['Defendants actual fees are what they are entitled to recover. An award in the range of ... is appropriate here. "], emph. added; see Appellants' Petition for Rehearing rRhrg. Ptn."], served on this Court, p. 28 [Appellants'

right to recover their attorney's fees would "of course, be

diminished by (the City's) claim under Section 425.16.11]; see generally IAug. CT "29-35, 62-63, 65; see also 09/17/04 Aug. RT 1.)

This legalconcession should be binding on them in this matter. (See Evid. Code, § 1220; MW Erectors. Inc. v. Niederhauser Ornamental & Metal Works Co., Inc. (2005) 36 Cal.4th 412,422 [legal admission binding by judicial estoppel]; 1 Witkin, Cal. Evidence (4th ed. 2000), Hearsay, § 97, p. 799 and

,

cases cited therein [judicial admission, whether affirmative or by failure to deny, is conclusive concession].)

This acknowledgment is itself a waiver, preventing challenge to the City's entitlement to recover fees. (Nevada

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County Ofc. of Education v. Riles (1983) 149 Cal.App.3d 767,779; Sperber v. Robinson (1994) 26 Cal.App.4th 736, 742-743; Eisenberg, Horvitz and Weiner, California Practice Guide: Civil Appeals and Writs (The Rutter Group 2010 Rev. No.1) ["Civil Appeals and Writs"] Ch. 8, Scopeand Limits of Appellate Review, §§ 8:244, 8:249-8:261.1; pp. 8-161, 8-165 to 8-166.) Moreover, Appellants failed to challenge the first award of fees by appeal. The January 2005 order awarding fees was an appealable order, in accordance with section 904.1, subdivision (a)(2). The failure to appeal the order, and challenge the City's right to recover attorneys' fees under 425.16, subdivision (c), also works a waiver, or forfeiture, preventing such a challenge to be raised at this point. (See Doers v. Golden Gate Bridge. Hwy. & Transportation Dist. (1979) 23 Cal.3d 180, 184-185; Children'S Hosp. & Med. Ctr. v. Bonta (2002) 97 Cal.App.4th 740, 776-777; Civil Appeals and Writs, Ch. 8, supra, §§ 8:264-8:265, 8:268; see also Cal. R. Ct., R. 8.104, subd. (b); In re S.B. (2004) 32 Cal.4th 1287, 1293, fn. 2.)

Accordingly, this Court should reject the challenge to the City's entitlement to recover reasonable attorneys' fees and costs as prevailing party in the anti-SLAPP motion, and move to Appellants' challenges addressed to the appropriate amount of the

award. (See AOB, pp. 46-48.) II

II

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2. The Noerr-Pennington Doctrine Does Not Bar the City from Recovering its Attorneys' Fees and Costs.

Despite Appellants' waiver of a challenge to the City's right to recover fees, the City will address the substance of the Appellants' argument that, as a governmental entity, the City is not entitled to recover fees.

Noerr-Pennington does not apply here, because no "liability" is being imposed on Appellants. (See Eguilon, supra, 29 Cal.4th at pp. 62-63; see post, at pp. 29-30.) The mandatory award of attorneys' fees and costs under section 425.16, subdivision (c), is a permissible "legislatively-imposed condition[ or] restriction[]" on the right to petition, as it is "narrowly drawn to achieve a substantial governmental interest that is content neutral and unrelated to the suppression of the exercise of First Amendment rights." (See Schroeder, supra, 97 Cal.App.4th at pp. 196-197; see post, at pp. 37-38.)

The award of fees to a prevailing defendant in an antiSLAPP motion is legislatively mandated. (Id., at pp, 193-194 & fn. 13; ~ee § 425.16, subd. (c).)

II

II

II

II

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a. The Legislature Has Had the Opportunity to Remove Government Defendants' Entitlement to Bring anti-SLAPP Motions or to Recover Attorneys' Fees After Making a Successful Motion.

The Legislature has on several occasions addressed the question of the applicability of the anti-SLAPP statute generally, and the fee provision in specific types of cases, to prevailing governmental defendants, but has nowhere provided either that the motion itself was unavailable to a government defendant or that a government defendant may not recover its fees and costs in accordance with the statute.

In 1999, the Legislature considered a proposed amendment to the anti-SLAPP statute with the sole purpose of barring application of the statute to government defendants. That amendment clearly was not adopted. No such bar appears in the anti-SLAPP statutes. And, more particularly here, no such bar appears in the subdivision providing for a prevailing defendant's recovery of attorneys' fees. (S.B. 1188 (1998-1999 Reg. Sess.), as introduced, Feb. 26, 1999 [to add a new subdivision (i), and redesignate existing subdivision (i) as subdivision (j); see S.B. 1188, as introduced, Feb. 26, 1999, Leg. Counsel Digest r!Thls bill would specify that a public entity or a public officer, as defined, acting in his or her official capacity does not constitute a person

. who may make a special motion to strike under these

provisions. " ] . )

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Appellants apparently believe the mere consideration of such an amendment supports their position. (See IICT351 & fn. 1.) However, there is an important fact Appellants fail to note: That modification of the statute did not pass. (See S.B. 1188 Complete Bill History''; Cal. Const., Art. IV, §10, subd. (c); Cal. Legislature Jt. Rules, R. 56.)

Further, the Legislature in 2009 considered an amendment to the anti-SLAPP statute, which addressed amending the attorneys' fees provision. The Legislature considered, amended and passed that bill, after the decision in this case was handed down by the California Supreme Court." (Stats. 2009, ch. 65 (S.B. 786) (2009-2010 Reg. Sess.), Leg. Counsel Digest (Apr. 22, 2009 Am.); see id., Complete Bill History; Cal. Const., Art. IV, § 10, subd. (c).) The amendment prevents defendants who succeed in antiSLAPP motions from recovering attorneys' fees -- but the Legislature only applied this bar in cases brought under Government Code sections 6259 (the Public Records Act), 11130 and 11130.3 (the Open Meeting law) and 54960 and 54960.1 (the II

5 See bill status, history, analysis and votes at

< http://www.leginfo.ca. gov I cgi-bin/postquery?bill_ number= sb _1 188&sess = 9900&house= B&author= haynes>.

6 The Supreme Court's decision in Vargas was issued on April

20, 2009. Following amendments on May 6 and 20, 2009, the full Senate passed the bill on May 28, 2009, and the full Assembly passed it on July 13, 2009 (it was signed by the Governor on August 5, 2009). See bill status, history votes and analyses at

< http://www.leginfo.ca. gov Icgi - bin/postquery?bill_ number = sb _7 86&sess=CUR&house=B&author=yee>. (See Stats. 2009, ch. 65.)

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Brown Act) -- all of which normally would have government entities or officials as the defendants.

In addition, the California Supreme Court in yargas noted that a public entity may file a uSLAPPback" lawsuit, which is a

malicious prosecution or abuse of process action brought after granting of such a defendant's anti-SLAPP motion, an action which would be filed against the plaintiff in the former action.

(See Vargas, supra, 46 Ca1.4th at p. 18, citing§ 425.18, subd.(i); see id., subd. (b)(l).)7 If a governmental entity is legally permitted to bring a SLAPPback action for malicious prosecution or abuse of process action for damages, which would include recovery of reasonable attorneys' fees and costs incurred in defending the first action, then a governmental entity like the City must be able to seek and recover its reasonable attorneys' fees and costs by a motion in the (stricken) SLAPP action itself, pursuant to section 425.16, subdivision (C).8

II II

7 The SLAPPback statute was passed by the Legislature in

2005 -- like the passage of section 425.17 and certain amendments to section 425.16, after Schroeder was decided (in 2002). (See Stats. 2005, ch. 535, §§ 1, 2; Stats. 2003, ch. 338, § 1.)

8 Appellants, after the Supreme Court decided Vargas, asked

the court to grant rehearing and change its opinion, and advanced the position that a successful government defendant's "crushing" award of fees against public-interest plaintiffs would chill their petition rights in contravention of the principles embodied in the Noerr-Pennington doctrine. Nevertheless, the Supreme Court declined to reopen the case.

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It would have been simple in all of these instances for the Legislature to provide that no governmental defendants may make an anti-SLAPP motion or recover attorneys' fees after succeeding on one - or that they may only recover them if the litigation was a "sham" and brought for an improper purpose. It did not.

Several tenets of statutory construction are pertinent here.

The doctrine of expresio unius est exclusio alterius indicates that, the limitation on prevailing governmental defendants' recovery of attorneys' fees in certain circumstances, does not apply to other circumstances not included in the limitation. Further, the Legislature's use of the frivolousness requirement for prevailing plaintiffs in an anti-SLAPP motion to recover their fees and the preclusion on recovery of attorneys' fees to successful government defendants in certain types of cases is considered an intentional omission to.apply those restrictions to other situations, such as all governmental defendants prevailing in an anti-SLAPP motion.

(See Schroeder, supra, 97 Cal.App.4th at p. 194, fn. 13.)

"The Legislature lis deemed to be aware of statutes and judicial decisions already in existence, and to have enacted ... a

statute in light thereof. '" (Ketchum v. Moses (2001) 24 Cal. 4th 1122, 1136, quoting People v. McGuire (1993) 14 Cal.App.4th 687, 694; see Ketchum, supra, 24 Ca1.4th at pp. 1135-1136.) The

rejected amendment to preclude application of the anti-SLAPP motion to government defendants was proposed in 1999 after the

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mandatory fee-shifting provision was already part of the antiSLAPP statute. (Cf. Stats. 1992, ch. 726, § 2 [as-enacted version of 425.16, containing attorneys' fees provision]; see also Stats. 1993, ch. 1239, § 1 [making mandatory the previously-discretionary costs and fees award for a prevailing plaintiff as a sanction when antiSLAPP motion was frivolous or solely intended to cause unnecessary delay].) In addition, the anti-SLAPP statute generally and the attorneys' fees provision specifically have been considered and amended by the Legislature, including in relation to a public

entity's entitlement to recover attorneys' fees in certain instances,

since the decision in Schroeder that the Noerr-Pennington doctrine did not bar a government defendant's recovery of attorneys' fees.

So, if the Legislature had intended to deny prevailing public . entities the right to recover attorneys' fees or to impose additional criteria for such a recovery, they could and would have done so. They did not. The Legislature certainly knew how to do so. (See

. People v. Trevino (2001) 26 Ca1.4th 237, 241; Isbister v. Boys' Club of Santa Cruz. Inc. (1985) 40 Ca1.3d 72, 83-84; see, e.g., Ketchum, supra, 24 Ca1.4th at p. 1135 & fn. 1 [Legislature amended private attorney general statute to preclude public entity from recovering multiplier in fees awarded to it].)

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b. Appellants' Argument Noerr-Pennington Precludes an Award of Attorneys' Fees Here Relies on Two Claims the California Supreme Court Decision Resolved Against Them.

(i) Public Entities and Staff Acting in Their .Official Capacities Do Have Protected Rights Encompassed Within the Anti-SLAPP Statute.

In support of their Noerr-Pennington argument, Appellants continue to argue in this appeal that the government does not have a protected right to speak under the first prong of the antiSLAPP motion. This point was resolved in Vargas (in what Appellants characterize as an "unthinking application" of the first

prong of section 425.16 [see AOB, p. 31]). (See Vargas, supra, 46 Ca1.4th atpp. 16-19.)

In deciding that government defendants, including the City in this case, do indeed have protected rights encompassed within

the first prong of the anti-SLAPP statute and motion, the Supreme Court held,

the statutory remedy afforded by section 425.16 extends to statements and writings of governmental entities and public officials on matters of public interest and concern that would fall within the scope of the statute if such statements were made by a private individual or entity.

(See Vargas, supra, 46 Ca1.4th at p. 17.)

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Appellants complain this statement injects an additional category of protected activity covered by the anti-SLAPP statute: speech, petitioning or subdivision (e) activities. (See AGB, pp. 27, 31-33,35-36.) This notion is a fallacy. The very terms of subdivision (e) make it clear the speech and conduct identified therein are not separate protected activities, but rather are four types of speech or conduct the Legislature has itself decided in all instances satisfy the first prong of the statute, set forth in subdivision (b)(1). Specifically, subdivision (e) provides,

"Ials used in this section, 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes [four listed types of statements or conduct]. "

(§ 425.16, subd. (e) [referencing first prong of anti-SLAPP test in

subd. (b)(1)].)

(ii) The Exemption from the Anti-SLAPP Statute for Public-Interest Lawsuits Does Not Apply to this Case.

Likewise already finally rejected in this case is Appellants' claim (AGB, p. 27) that section the 425.17, subdivision (b) exemption from the anti-SLAPP statute applies to their case and the exception from that exemption for political works under subdivision (d)(2) does not make the anti-SLAPP statute available

to the government.

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After granting the anti-SLAPP motion in 2004, the superior court reconsidered its order in light of section 425.17, and found its exemptions from the application of the anti-SLAPP statute inapplicable. (See First Appeal, IICT 1535, 1536.) The California

Supreme Court did not overturn that ruling, and that order is now final.

The anti-SLAPP statute encompasses protected activities on issues of public interest, so that the Supreme Court's affirmance of the granting of the anti-SLAPP motion determined that the City's activity related to a matter of public interest. Further, Appellants continue to confuse the concept of political campaigning with political works. The former is advocacy in connection with an electoral matter, either a candidate or ballot measure; the latter encompasses statements related to government and its operations. (See Gerawan Farming, Inc. v. Lyons (2000) 24 Cal.4th

468,486.)

More importantly, the California Supreme Court's decision affirming the granting of the City's anti-SLAPP motion implicitly confirmed the applicability of the political-works exception to the general section 425.17 anti-SLAPP exemption for cases brought in the public interest (as it would appear clear that the Appellants' action was brought in the public interest). If this implied determination did not occur, then the Appellants' suit was exempt

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under 425.17 from the anti-SLAPP statute and the order granting the anti-SLAPP motion would have had to be reversed.

Both as law of the case and as stare decisis, Appellants' continued assertion that government defendants in general and the City in particular possess no protections encompassed within prong one of the anti-SLAPP statute has been finally decided against that argument and, therefore, provides no premise for Appellants' argument against the City's recovery of attorneys' fees against them. Appellants are bound by the determination of the California Supreme Court that the City has satisfied the first prong of the motion and, by implication, that generally governmental defendants are capable of satisfying that prong. (Olson v. Cory, supra, 35 Ca1.3d at p. 399; Auto Equity, supra, 57 Ca1.2d at p. 455.)

(iii) Government Defendants Have Protected Rights to Speak Within the Anti-SLAPP Statute.

The California Supreme Court is not alone in recognizing the freedom of the government and its officials to speak.

The United States Supreme Court, in a case cited by Appellants, recently addressed at some length the protection for government to speak. Appellants' statement of the proposition for which they cite Pleasant Grove City v. Summum (2009) _ U.S. _,129 S.Ct. 1125, 172 L.Ed.2d 853, is incorrect. (See AOB, p. 33.) The High Court did not state the First Amendment did not protect

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the speech of government actors. The court said the First Amendment did not regulate it. (Pleasant Grove, supra, 129 S.Ct. at p. 1131.) There is a difference, as illustrated by the High Court's additional statements in that case. The High Court observed:

The Free Speech Clause restricts government regulation of private speech; it does not regulate government speech. See Johanns v. Livestock Marketing Assn., 544 U.S. 550, 553, 125 S.Ct. 2055, 161 L.Ed.2d 896 (2005) C[T]he Government's own speech ... is exempt from First Amendment scrutiny"); Columbia Broadcasting System, Inc. v. Democratic National Committee, 412 U.S. 94, 139, n. 7, 93 S.Ct. 2080, 36 L.Ed.2d 772 (1973) (Stewart, J., concurring) CGovernment is not restrained by the First Amendment from controlling its own expression"). A government entity has the right to "speak for itself. Board of Regents of Univ. of Wis. System v. Southworth, 529 U.S. 217, 229,120 S.Ct. 1346, 146 L.Ed.2d 193 (2000). "[I]t is entitled to say what it wishes," Rosenberger v. Rector and Visitors of Univ. of Va., 515 U.S. 819, 833, 115 S.Ct. 2510, 132 L.Ed.2d 700 (1995), and to select the views that it wants to express. See Rust v. Sullivan, 500 U.S. 173, 194, 111 S.Ct. 1759, 114 L.Ed.2d 233 (1991); National Endowment for Arts v. Finley, 524 U.S. 569, 598, 118 S.Ct. 2168, 141 L.Ed.2d 500 (1998) (SCALIA, J., concurring in judgment) (lilt is the very business of government to favor and disfavor points of view").

Indeed, it is not easy to imagine how government could function if it lacked this freedom. "If every citizen were to have a right to insist that no one paid

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by public funds express a view with which he disagreed, debate over issues of great concern to the public would be limited to those in the private sector, and the process of government as we know it radically transformed." Keller v. State Bar of ca. 496 U.S. 1, 12-13, 110 S.Ct. 2228, 110 L.Ed.2d 1 (1990). See also Johanns, 544 U.S., at 574, 125 S.Ct. 2055 (SOUTER, J., dissenting) eTo govern, government has to say something, and a First Amendment heckler's veto of any forced contribution to raising the government's voice in the 'marketplace of ideas' would be out of the question" (footnote omitted».

(Pleasant Grove, supra, 129 S.Ct. at p. 1131; see Vargas, supra, 46 Ca1.4th at p. 42, conc. opn, of Moreno, J.)

Thus, Appellants' premise for the application of NoerrPennington, that the City's challenged activities did not arise out of protected conduct, is faulty.

c. An Award of Attorneys' Fees to a Governmental Defendant Does Not Offend Noerr -Pennington.

Equilon noted that fee-shifting statutes do not create liability for exercise of petition rights:

... Equilon asserts that the First Amendment generally bars liability for filing lawsuits, the only exception being for "sham" lawsuits ....

II

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E quilon fails to demonstrate that its proffered construction of section 425.16 is constitutionally compelled. Hundreds of California statutes provide for an award of attorney fees to the prevailing party. Fee shifting simply requires the party that creates the costs to bear them. (Premier Elec. Const. Co. v. N.E.CA., Inc. (7th Cir.1987) 814 F.2d 358,373.) It does not make a party "liable" for filing a lawsuit. This distinguishes Professional Real Estate Investors[, Inc. v. Columbia Pictures Industries, Inc. (1993)], supra, 508 U.S. 49[, 60-62], 113 S.Ct. 1920, 123 L.Ed.2d 611, Equilon'scentral authority, which concerns not fee shifting but the scope of antitrust liability for engaging in litigation.... The high court held that one who initiates litigation is immune from antitrust liability for doing so unless the litigation is a "sham." (Id. at pp. 60-61, 113 S.Ct. 1920.) The case did not involve a feeshifting provision nor did the court anywhere suggest that its "sham" litigation rationale might apply in the fee-shifting context. Equilon cites no case in which a fee-shifting provision has been held unconstitutional under Professional Real Estate Investors or its rationale. (See generally AJyeska Pipeline Co. v. Wilderness Society (1975) 421 U.S. 240, 262, 95 S.Ct. 1612,44 L.Ed.2d 141 [finding it "apparent that the circumstances under which attorneys' fees are to be awarded and the range of discretion of the courts in making those awards are matters for Congress to determine"]. )

(Equilon, supra, 29 Ca1.4th at pp. 62-63, emph. added.)"

9 Prevailing government defendants have been awarded

attorneys' fees. For example, Thompson Pac. Constr .. Inc. v. City

(continued ... )

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d. Appellants' Noerr-Pennington Cases Do Not Hold that Government Defendants in Public-Interest Litigation Cannot Recover Attorneys' Fees.

As detailed later, Schroeder addressed and rejected a challenge, based on the same petition-rights argument asserted here, to the mandatory award of attorneys' fees to a public entity defendant which prevails in its anti-SLAPP motion. (See Schroeder, supra, 97 Cal.App.4th at pp. 193-197.) First, however, the City addresses the primary cases Appellants cite for the proposition that their exercise of the right to petition the government for redress of grievances by bringing this action precludes the City's recovery of fees under the anti-SLAPP statute.

9

( ... continued)

of Sunnyvale (2007) 155 Cal.App.4th 525, decided by this Court, affirmed an award of attorneys' fees to the city defendant pursuant to statutory authorization. The private plaintiff apparently did not assert the Noerr-Pennington defense, even though that case, like this one, involved both a "judicial" petition and a II general " petition. (See id., at pp. 555-558.) Similarly, however, the plaintiff there, as do Appellants here, sought to impose an additional requirement not contained in the statute -- frivolousness -- before a government defendant would be able to recover fees. (See id., pp. 556-557.) As this Court observed, II [g]iven the mandatory language of the statute, the trial court had no discretion to refuse to award fees to a prevailing party." (Id., p. 557; see also Gage v Wexler (N.D. Cal. 1979) 82 F.R.D. 717 [holding, also without a Noerr-Pennington analysis, that prevailing government agency and staff may recover their attorneys' fees having defeated a civil rights claim that was "frivolous, unreasonable, or without foundation," or IIgtoundless" (pp. 718-720 & fn, 1), whether brought with or without bad faith (p. 720) without unduly chilling other potential plaintiffs (p. 720)]; Lopez v. Aransas County lndep. Sch. Dist. (5th Cir. 1978) 570 F.2d 541,545 [recognizing prevailing government defendant may recover fees not only when suit was a sham., but also if it is merely "frivolous, unreasonable or groundless"]. )

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None of the cases on which Appellants rely deny recovery of attorneys' fees to a prevailing government defendant, in antiSLAPP contexts or otherwise, on Noerr-Pennington grounds. Accordingly, Schroeder and Eguilon remain the only cases discussing the issue directly and, along with Bradbury v. Super. Ct. (1996) 49Cal.App.4th 1108, and Mission Oaks Ranch. Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713, permit a public

entity to recover its fees under an authorizing statute (assuming the criteria for the award are met, of course).

Tichinin, supra, 177 Cal.App.4th 1049, cited by Appellants, is inapplicable. There, this Court relied on the guidance of the Noerr-Pennington doctrine (id., at p. 1064) to deci~e whether the plaintiff bringing a civil rights action showed a prima facie case to defeat the second "probability of success" prong of the anti-SLAPP requirements. This Court determined that Morgan Hill burdened the plaintiff's petition right by publicly sanctioning his investigation of grounds for separate litigation. The court found this sufficient to make out a prima facie case, and reversed the

granting oftheanti-SLAPP motion. (See id., at pp. 1064-1071.) Consequently, this Court did not address the issue of the right to recover attorneys' fees by a governmental-entity defendant who successfully brings an anti-SLAPP motion, much less hold the Noerr-Pennington doctrine prevented an such award.

II II

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The two most recent cases on which Appellants repeatedly rely, Graffiti Protective Coatings. Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207, and USA Waste of Cal., Inc. v. City of Irwindale (2010) 184 Cal.App.4th 53, do not stand for the

proposition Appellants claim -- that permitting the government to bring anti-SLAPP motions against citizen suits violates their

petition rights (see AOB, p. 31).

Neither case holds that the government has no protected rights encompassed within the anti-SLAPP statute and that , therefore, such defendants can never satisfy prong one of the antiSLAPP analysis. Rather, both decisions reach the first prong analysis and simply find that, in the circumstances of those cases, the governmental defendants had not been engaged in protected activity for which they were then sued. (See Graffiti, supra, 181 Cal.App.4th at pp. 1214-1215 [noting distinction between a plaintiff's protected activity as evidence in support of the suit and a defendant's protected activity being an alleged basis for liability and thereby supporting an anti-SLAPP motion], 1218-1219 [activity involved was failure to use competitive bidding as required by

law]; see id., at pp. 1218-1225; USA Waste, supra, 184 Cal.App.4th at pp. 63-66 [the government activity involved there was application of land-use guidelines to determine a quarry's backfill standards under a government contract].) Thus, neither case faced an issue of government's right to recover fees as a prevailing anti-SLAPP movant and decide fees must be denied.

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Like Graffiti and USA Waste, San Ramon Valley Fire Prot.

Di~t. v. Contra Costa County Employees' Ret. Assn. (2004) 125 Cal.App.4th 343, is a case which only found the government defendant's anti-SLAPP motion failed to satisfy the first prong of the statutory criteria for such a motion, as the activity which formed the gravamen of the plaintiff's suit was not protected activity encompassed within the anti-SLAPP statute. (See id., at pp.353-354.) However, San Ramon also recognized "that a public official or government body, just like any private litigant, may make an anti-SLAPP motion where appropriate." (Id., at p. 353.)

These cases cited by Appellants which are based on the failure to satisfy the elements of an anti-SLAPP motion and, therefore, failure to prevail on such a motion, are inapplicable here, as the prior appeal in this case established the City did satisfy prong one, showing the suit arose out of its protected rights. (See

. Vargas, supra, 46 Ca1.4th at pp. 16-19.)

Other cases Appellant's reference likewise do not bar a government defendant from obtaining fees under mandatory statutes if the criteria for recovery are met.

City of Long Beach v. Bozek [nBozek"] (1982) 31 Ca1.3d 527, . cert. gtd., judgment vac. and remanded (1983) 459 U.S. 1095, clarified in 33 Ca1.3d 727,727-728, on remand, determined that

malicious prosecution and abuse of process actions seek to impose

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liability for petitioning conduct, so are not permitted under NoerrPennington. (Id., at pp. 532-534.)10 Nevertheless, Bozek stated that fee shifting or other penalties based on sanctionable conduct in exercising petition rights (such as under the former version of § 128.5) or other express Legislative authorization for recovery of attorneys' fees (such as under § 1021.7, or prosecution under Penal Code § 72 [filing false government claims]) is not barred by NoerrPennington. (Bozek, supra, 31 Ca1.3d at pp. 537-538.)

Both Hi-Top Steel Corp. v. Lehrer (1994) 24 Cal.App.4th 570,

and Professional Real Estate Investors. Inc. v. Columbia Pictures

Industries. Inc. (1993) 508 U.S. 49, were also antitrust liability

cases, like Noerr and Pennington. Neither involved a government defendant and, thus, did not address whether an award of attorneys' fees to government defendant runs afoul of the NoerrPennington doctrine, and unconstitutionally burdens the right to petition the govern.ment for redress of grievances.

Lastly, of note is another case referenced by Appellants

(AOB, p. 44, fn. 28), Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43, which determined that a vexatious litigant finding did not unconstitutionally burden the alleged vexatious litigant's

10 The court in Bozek did note, however, that individual

defendants sued for conduct in their official capacities, like the City Manager and other City staff who Appellants sued as Does, might be able to maintain a malicious prosecution or abuse of process action without offending the unsuccessful plaintiff's petition rights. (Id., at p. 538 & fn. 9.)

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right to petition. (Id., at pp. 55-58.) Wolfgram refused to add a

frivolousness or "sham" requirement to the vexatious litigant criteria in order to avoid the asserted unconstitutional chilling of right to petition for redress. (See id., at pp. 58-59.) The purpose

served by the vexatious litigant statute is similar to that served by anti-SLAPP statute: to prevent or terminate an unmeritorious action.

e. The Only Case Involving a Government Defendant Which Made a Successful AntiSLAPP Motion to Address the NoerrPennington Theorv Held It Did Not Bar the Government's Recovery of Attorneys' Fees.

The court in Schroeder addressed the very argument . Appellants make against the award of fees to the City, and rejected it. (Id., 97 Cal.App.4th at pp. 194-197.)

The Schroeder court noted the SLAPP action was a meritless

suit, and observed, "baseless litigation is not immunized by the First Amendment right to petition." (Schroeder, supra, 97 Cal.App.4th at p. 195, quoting Bill Johnson's Restaurants. Inc. v. N.L.R.B. (1983) 461 U.S. 731, 743, and citingWolfgram, supra, 53 Cal.App.4th at p. 56; see Schroeder, supra, 97 Cal.App.4th at pp.

196-197.)

The court first noted that Schroeder's argument would require the court to add provisions to the express statutory

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language, changing the test for a prevailing defendant on an antiSLAPP motion to recover its attorneys' fees, which the court found impermissible. (Id., at p. 194.)

We may not insert words into a statute under the guise of interpretation (In re Miller (1947) 31 Cal.2d 191, 199,187 P.2d 722), and subdivision (c) contains no language suggesting a legislative intent to exclude governmental entities from the class of defendants entitled to a mandatory attorney fee award.

(Id., at p. 194.)11

The court found that "a substantial governmental interest in deterring unmeritorious lawsuits" exists "and that interest

assumes greater weight in the arena governed by section 425.16, subdivision (c) .... " (Id., at p. 196.) The court also found the antiSLAPP statute and its provision for awarding prevailing defendants their attorneys' fees and costs content-neutral. (Id., at p. 197.) Under the statute", all successful defendants are entitled

11

This would seem particularly the case here, where the Legislature has considered various bills to eliminate applicability of the anti-SLAPP statute to government defendants or in particular cases, and to restrict recovery of attorneys' fees by successful governmental defendants under the anti-SLAPP statutes,and has not adopted the general bar to application of the anti-SLAPP statute to governmental defendants or a bar to all successful governmental defendants' recovery of attorneys' fees, (See discussion of statutory and bill history, ante, pp. 19-23.)

12 As it existed at the time of the decision in Schroeder and the

anti-SLAPP proceedings in this case. An amendment to

(continued ... )

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by virtue of prevailing on an anti-SLAPP motion to an award of fees, whether they are private parties or governmental entities. While the award of attorneys' fees will always occur when plaintiffs are exercising their right of petition by very virtue of the fact that they have initiated litigation, the award of attorneys' fees is not restricted to any particular type of anti-SLAPP case or issue or conditioned upon only particular substantive claims. The only question in all cases is whether the case seeks to impose liability on the defendants because of their exercise of speech and petition

rights. (See § 425.16, subd. (b)(l).) The award of fees is thus content-neutral, simply depending on the fact of defendants' success in its anti-SLAPP motion.

Lastly, the court determined the statute was narrowly tailored to achieve the substantial governmental interest. (Id., at pp. 196-197.) The attorneys' fees award is narrowly-tailored: the requirements of the anti -SLAPP statute ensures the government is engaging in protected activity and ensures fees are awarded only in cases which lack even prima facie merit when the evidence is

viewed most favorably to the plaintiff. (See § 425.16, subd. (b)(l); Vargas, supra, 46 Ca1.4th at pp. 20, 40.)

II II

12

( ... continued)

subdivision (c) occurred after the Remittitur in this case and before the attorneys' fees motion by the City. The amendment did not, however, apply to this case. (See ante, at pp. 20-21 & fn. 6.)

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Thus, the Schroeder court determined a governmental entity's entitlement to recover attorneys' fees and costs as a prevailing defendant in an anti-SLAPP motion did not unconstitutionally burden the plaintiff's right to petition the government for redress of grievances. (See id., at pp. 195-197.)

The courts in Bradbury, Mission Oaks, and Schroeder all provided that governmental entities who, as defendants, prevail in anti-SLAPP motions are entitled to recover their attorneys' fees and costs, although Schroeder was the only opinion to expressly address the issue of the effect on the plaintiff's petition rights.

(See Schroeder, supra, 97 Cal.App.4th at pp. 193-197; see also id., at pp. 193-194 & fn. 1 [award of attorneys' fees is mandatory, and

no exception is made in the case of governmental entity

defendants]; Bradbury, supra, 49 Cal.App.4th atpp. 1116, 1119; Mission Oaks, supra, 65 Cal.App.4th at pp. 729-731.)

Appellants apparently argue all three of these cases were wrongly-decided on this issue, as each proceeded from the

determination or assumption which Appellants assert is in error,

that a governmental entity or a public employee acting in his or her official capacity may properly avail themselves of the protections of the anti-SLAPP statute. (See AOB, pp. 31-33 & fn. 18,35-36.) As noted earlier.fhis argument is put to rest by the decision of the California Supreme Court in this case and binding on Appellants.

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Lastly, it is important to note that judicially adopting Appellants' theory, altering the plain language of the anti-SLAPP statute, shifts the burden of the cost of their unmerited lawsuit from the those responsible for the cost of the meritless lawsuit to the innocent taxpayer. (Compare Eguilon, supra, 29 Cal.4th at p.

62.)

For all these reasons, the City is entitled to recover its attorneys' fees pursuant to the legislative authorization of section 425.16, subdivision (c), having succeeded in its special motion to strike under the anti-SLAPP statute.

C. The Trial Court Did Not Abuse Its Discretion in Determining the Reasonable' Amount of Attorneys' Fees to Award or in Awarding the Appellate Costs Requested by the City.

1. The Hourly Rate Applied to Experienced Appellate Counsel Assisting Lead Counsel Fell Within Hourly Rates for Comparable Attorneys and Comparable Work in the Community.

Appellants assert the superior court erred in the hourly rate it approved for the work of "[unior counsel." (AOB, p. 46.)

As discussed earlier, the determination of the reasonable

hourly rate for counsel, as part of the determination of the reasonable amount of attorneys' fees, is reviewed by this Court for an abuse of discretion. (See Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628,659.) "To determine the reasonable

hourly rate, the court looks to the 'hourly rate prevailing in the

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community for similar work.'" (Bernardi, supra, 167 Cal.AppAth at p. 1394, citing PLCM Group, Inc. v. Drexler (2000) 22 Ca1.4th 1084, 1095.) This standard was discussed in the briefing in connection with the City's motion. (See IC,;£, 129-133; nCT 367.) Likewise, the briefing and declarations detailed the facts supporting determination the hourly rate charged to and paid by the City for this attorney, Amy M. Larson. (See ICT 153-154, 159, 136, 146, 130- 134; nCT 408-411.)

Appellants made no attempt below to provide any opposing evidence of any knowledge of local rates for attorneys of like

experience, reputation and skill. (See nCT 349-371; :.IRT 1-73.)

Neil Shapiro, expert counsel, who reviewed all the work by both parties and all the amici on both sides, and the City's counsel's invoices, noted that the hourly rate charged for Ms. Larson was within the prevailing community rates charged for comparable counsel doing comparable work. "No sentient being could argue that the highly-discounted rates actually charged here were not 'reasonable' for the work performed in this matter." (ICT

147.)

The superior court found the hourly rate charged to and paid by the City for Ms. Larson's work was reasonable. On the record presented and the circumstances of the appellate ligation, the court's decision in this regard is not, as required for an abuse of

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discretion, a decision a reasonable jurist would not have made. (See Gilbert v. Nat'l Corp. for Housing Partnerships, supra, 71 Cal.App.4th atp. 1250.)

2. The Rules of Court Specifically Provide for Recovery of the Items Awarded as Costs on Appeal.

As pertinent, under California Rules of Court, Rule 8.278, subdivision (d)(l), the following items are recoverable costs on appeal:

(D) The costs to notarize, serve, mail. and file the record, briefs, and other papers; and

(E) The cost to print and reproduce any brief. including any petition for rehearing or review. answer, or reply.

(Emph. added.)

Appellants fail, as they did below, to recognize or even mention the language of Rule 8.278 detailing the types of recoverable appellate costs. (AOB, pp. 49-51; see IRT 66-72.)

The City presented an itemized listing of the appellate costs incurred and the total charges for each item, with citation to the portion of Rule 8.278 allowing for each item. (See ICT 170-171, 144- 145; nCT 412.) As with the hourly rates for counsel, Appellants

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presented no evidence to refute the need for these expenses or the reasonableness of the amount of them. (See IICT 349-371.)

The trial court awarded the City's appellate costs for the requested costs to print and reproduce briefs, the costs to file briefs and other papers, and the costs to serve briefs and other papers. These items are specifically allowed as recoverable

appellate costs under Rule 8.278, subdivisions (d)(l)(E), (d)(l)(D) and (d)(l)(D), respectively.

The trial court did not err in awarding these items of appellate costs, in the undisputed amounts set forth in the City's evidence in support of its motion below.

3. The City's Attorneys' Fees for Opposing the 1021.5 Motion for Private Attorney General Fees Wholly Arose from the AntiSLAPP Proceedings and Such Fees Were Properly Awarded Under the Anti-SLAPP Statute.

Appellants argue the City did not include in its motion a request to recover its attorneys' fees incurred in opposing Appellant's motion for attorney's fees under section 1021.5 and, therefore, are barred from recovering those fees. (AOB, p. 48.) In addition, Appellants argue that, because a successful anti-SLAPP defendant may recover its fees incurred "only on the motion to

strike, not the entire suit," (AOB, p. 47), the City was not entitled to recover these fees "[als a matter of law." (AOB, p. 48.)

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Contrary to Appellants' conception, the City was seeking these fees as incurred in connection with the motion to strike, and not on some other aspect of the suit. As the Supreme Court found, "all of the causes of action here at issue arise from activity

protected under the anti-SLAPP statute." (Vargas, supra, 46 Cal.4th at p. 19.) By the time the case reached the reviewing courts, the anti-SLAPP motion was the entire suit, as the superior court had stricken the entire complaint under the anti-SLAPP statute. (VICT 1512-1515.) Thus, the fees Intervenor sought, and the City opposed, for the appellate proceedings arose out of the anti-SLAPP motion because Intervenor's motion requested fees which were incurred in opposing the anti-SLAPP motion and order through the reviewing courts. (ICT 25-36, 12-15, nCT 427-435.) As a result, Intervenor's motion and the City's opposition also were wholly related to the anti-SLAPP proceedings.

The City did not waive recovery of its fees incurred in opposing Intervenor's motion to recover his fees for assertedly succeeding in vindicating an important public right on appeal. In fact, the City did request recovery of these fees in its moving papers, and reserved the right to establish the amount of them as part of its reply papers (as, by the time of the City's motion, its opposition to Intervenor's motion had not yet been written and filed, so the amount of the fees for doing so was unknown).

II II

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In the City's notice of motion, after requesting fees for preparation of its own motion and reply to opposition to its motion, then requested "the award of attorneys' fees include such fees as

are incurred in connection with their attorneys' fees motion, '' "their" being a reference to Appellants. (ICT 122.) In addition, the notice of motion (at ICT 122-123) expressly relies on, among other things, the moving papers including the declaration of the City's counsel, which reserves submission until Reply of amount of fees spent opposing the 1021.5 motion (lCT 171-172).

These fees are properly awarded to the City.

II II II II II II II II II II II II II II /1

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IV.

APPELLANTS AND INTERVENOR DID NOT SUCCEED IN ENFORCING THE IMPORTANT PUBLIC RIGHT THEY PURSUED AND. THEREFORE. THE TRIAL COURT PROPERLY DENIED THEIR MOTION FOR INTERVENOR TO RECOVER ATTORNEY'S FEES UNDER CODE OF CML PROCEDURE SECTION 1021.5

Intervenor seeks to recover attorney's fees under section 1021.5 for his representation of Appellants in the case. Intervenor seeks these fees from the City although he failed to achieve any of the relief which he sought when he brought this action in Appellants' names. Intervenor is essentially attempting to alter the test for satisfaction of the "success" criterion. The proposed new test is that, even if none of the relief sought in the action is achieved, if some pronouncement of law occurs, then success has

been established.

As he failed to succeed in vindicating the important public right or conferring a significant public benefit in this action, the motion was correctly denied.

A. Standard of Review.

On review of an award of attorney fees after trial, the normal standard of review is abuse of discretion. However, de novo review of such a trial court order is warranted where the determination of whether the criteria for an award of attorney fees and costs in this context have been satisfied amounts to statutory construction and [therefore] a question of law.

II

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(Connedy, supra, 37 Cal.4th at p. 1175, internal quotation marks omitted; Roybal, supra, 159 Cal.App.4th at p. 1148.)

B. Intervention by Appellants' Counsel.

While in this appeal Appellants and Intervenor argue intervention should have been granted (AGB, pp. 51-53), it effectively was.

Under the Lindelli v. Town of San Anselmo (2006) 139 Cal.App.4th 1499 case cited by Appellants in their request for

counsel's intervention and several other cases, intervention was

proper. (See id., at pp. 1512-1513.) And, due to Appellants' and

Intervenor's contractual arrangement, it is effectively only Intervenor who has a legal interest in the 1021.5 request in the trial court and on appeal. (ICT 22,38 [Intervenor "agreed to pursue this on appeal without charge" to Appellants], 11.)

The City did not object below to Appellants' counsel's intervention and have treated the request for fees under 1021.5 all along as Intervenor's motion. (See nCT 372-385, ICT 7-8, 11.)

Indeed, Appellant's counsel himself appealed the denial of 1021.5 fees as "Intervener". (See nCT 597.)

II II II

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As far as the City is concerned, Appellants' counsel has been Intervenor since Appellants and he moved for his

intervention.

C. Appellants and Intervenor Failed to Succeed as Required Within the Section 1021.5 Criteria.

Code of Civil Procedure section 1021.5 gives courts discretion to award attorneys' fees to the prevailing party in public-interest litigation. (County of Orange v. Barratt American, Inc. (2007) 150 Cal.App.4th 420,441.) Under section 1021.5, which

is a codification of the private attorney general doctrine (Roybal,

supra, 159 Cal.App.4th at p. 1147),

[AJ court rnay award attorneys' fees to a successful party against one or more opposing parties in any action which has resulted in the enforcement of an important right affecting the public interest if: (a) a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons, (b) the necessity and financial burden of private enforcement, or of enforcement by one public entity against another public entity, are such as to make the award appropriate, and (c) such fees should not in the interest of justice be paid out of the recovery, if any.

(§ 1021.5,emph. added; see Roybal, supra, 159 Cal.App.4th at pp. 1147-1148.)

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1. To Be Successful. Appellants and Intervenor Were Recnrlred to Achieve Some of the Benefit They Sought in Bringing Suit.

Many cases discuss what constitutes "success" for purposes of determining if a plaintiff is entitled to private attorney general attorneys' fees. "To recover fees under [section 1021.5], a claimant must show he or she was successful in the action." (Nat'l Parks and Conservation Ass'n v. County of Riverside (2000) 81 Cal.App.4th 234, 238; Protect Our Water v. County of Merced (2005) 130 Cal.AppAth 488,493.) Obviously, if Appellants had prevailed on the merits, they would have succeeded for 1021.5 purposes. They did not.

"[AJn attorney fee award may be justified even when plaintiff's legal action does not result in a favorable final judgment. (Westside Community for Independent Living, Inc. v. Obledo, [supra,] 33 Ca1.3d 348, 352 .... )"

(Maria P. v. Riles (1987) 43 Ca1.3d 1281, 1290-1291)

Appellants failed to establish a prima facie case of the allegations in their lawsuit and failed to achieve any of the relief they sought. Consequently, Appellants are not successful under

the standards for success.

As an initial matter, Intervenor should note the relevance of the term "prevailing party" to section 1021.5 considerations. They

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argue they "did not bring a motion to be determined 'the prevailing party' per se (they brought a motion for their fees)," as if whether they prevailed was irrelevant to the private attorney general criteria of 1021.5. On the contrary, as the California Supreme Court

has noted, "the terms 'prevailing party' and 'successful party,' as

used in section 1021.5, are synonymous." (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553,570; see also Maria P., supra, 43 Cal.3d at pp. 1291-1292 [using the terms interchangeably]. )

In order to effectuate the purpose of section 1021.5, courts "have taken a broad, pragmatic view of what constitutes a 'successful party. '" (Graham v. DaimlerChrysler Corp., supra, [(2004)l 34 Cal.4th [553] at p. 565, 21 Cal.Rptr.3d 331, 101 P.3d 140.) ... '""[P]laintiffs may be considered 'prevailing parties' for attorney's fees purposes if they succeed on any significant issue in litigati~n which achieves some of the benefit the parties sought in bringing suit."'" (Maria P. v. Riles (1987) 43 Cal.3d 1281, 1292, 240 Cal.Rptr. 872, 743 P.2d 932, italics added.)

(Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173, 178,

underscore emph. added, ital. in orig.; Marine Forests Society v.

Cal. Coastal Comm'n (2003) 160 Cal.App.4th 867,878-879.)

To show success, it is well established that the fee applicant must first show that he or she achieved some portion of what was sought by their complaint:

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"plaintiffs may be considered "prevailing parties" for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit.'"

(Maria P., supra, (1987) 43 Ca1.3d at p. 1292, quoting Hensley v. Eckerhart (1983) 461 U.S. 424, 433; see Marine Forests Society, supra, 160 Cal.App.4th at pp. 878-879 [liThe allegations of Marine

Forests's complaint disclose that its primary goal was to save its reef, not to have section 30312 declared unconstitutional or to change the composition of the Coastal Commission," emph. added); Graham, supra, 34 Ca1.4th at p. 560; Bowman, supra, 131 Cal.App.4th at pp. 177-178; National Parks & Conservation, supra, 81 Cal.App.4th at pp. 239-240.) Private attorney general cases addressing fee awards for plaintiffs when, as here, litigation is terminated without a favorable adjudication on the merits regularly describe success in similar terms.

A number of cases describe the standard for success as requiring the fee applicant to achieve some portion of the relief sought by the lawsuit. In order to prevail,

"Ialt the very least, a plaintiff must establish Ithe precise factual/legal condition that [it) sought to change.or affect'

"

(Graham, supra, 34 Ca1.4th at p. 576, emph. added, quotingFolsom v. Butte County Assn. of Governments (1982) 32 Ca1.3d 668,685

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[also assessing success by looking at "litiqation aim" (id., at p. 686)J; see, e.g., County of Colusa v. Cal. Wildlife Conserv. Bd. (2006) 145 Cal.AppAth 637, 649 r~achieve[J the relief they sought"J; Hogar v. Community Development Comm'n of City of Escondido (2007) 157 Cal.App.4th 1358, 1365 [plaintiff need not obtain a judgment in its favor to be a successful party, but plaintiff must "obtainj] the relief sought in its lawsuit .... "]; Planned Parenthood of Santa Barbara. Ventura and San Luis Obispo Counties. Inc. v.

Aakhus (1993) 14 Cal.App.4th 162, 174 r[w]hether or not a party is

successful depends upon whether the underlying action contributed substantially to remedying the conditions at which it was directed."], emph. added.)

What Intervenor misses is the actual elements of success

these and other cases require.

The City does not dispute that the right sought to be vindicated here -- freedom from illegal government use of public funds to campaign against a pending ballot measure -- is an

important one. (See Cal. Common Cause v. DuffyrDuffy"] (1987) 200 Cal.App.3d 730, 747.)

The problem for Appellants and Intervenor in requesting private attorney general fees is they did not succeed in vindicating it. The courts have conclusively determined that the City did not violate that right. (Vargas, supra, 46 Ca1.4th at pp. 35-40.)

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Failing to succeed in enforcing an important public right, Appellants also did not succeed in conferring a significant public

benefit. (See § 1021.5, subd. (a).)

Remembering that the first criterion of section 1021.5,

"success" in vindicating an important public right and in conferring a significant public benefit, is judged by reference to the relief sought by Appellants' complaint (see, e.g., Marine Forests Society, supra, 160 Cal.App.4th at pp. 878-879), this action

was unsuccessful.

The relief sought by Appellants in bringing the action (see ante, pp. 5-8; Vargas, supra, 46 Cal.4th at pp. 13 & fn, 6, 21, 22, 35)

was not obtained: none of the violations of law claimed were

proved and none of the remedies sought were achieved.

A plaintiff may be found to have succeeded !leven when litigation does not result in a judicial resolution if the defendant changes its behavior substantially because of, and in the manner sought by. the litigation." (Graham, supra, 34 Ca1.4th at p. 560, emph. added.)

This litigation "did not motivate [the City] either to provide the primary relief he sought or to modify [its] behavior," or result in Ita judicially sanctioned or recognized change in the legal

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relationship of the parties." (See Maria P., supra, 43 Ca1.3d at pp. 1291-1292; Marine Forests Society, supra, 160 Cal.App.4th at p.

877.)

The trial court did not, as Appellants argue (AOB, p. 7, fn. 3), depart markedly from the above standards for determining success under section 1021.5.

This Court may be guided by the fact no statutory or constitutional right was found violated. Thus, Appellants did not succeed in enforcing an important public right or conferring a public benefit. And no change of position by the City or any of its officials or staff was ordered or made.

Appellants argue they achieved success by reaffirming the Stanson standards for determining whether public funds have been spent illegally on campaigning (AOB, pp. 1,2-3, 13-18,20-22, 28-30), relying on cases like Maria P. and Graham, which state that a plaintiff need not obtain "judicial" relief (Le., that the litigation need not proceed to a final decision on the merits). A plaintiff may still "succeed" in public-interest litigation for purposes of recovering section 1021.5 attorneys' fees even if the this success is achieved at a preliminary phase of the case, by settlement, or by a defendant's apparently voluntary change of position that in reality was caused by the plaintiff's litigation. (See Hogar, supra, 157 Cal.App.4th at p. 1365, citing Graham, supra, 34 Ca1.4th at p. 567;

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County of Colusa, supra, 145 Cal.App. 4th at p. 649 ["The critical fact is the impact of the action, not the manner of its resolution. "].)

This is not a "catalyst" case, where the lawsuit induced

action by the City. (See Bowman, supra, 131 Cal.App.4th at pp. 178.) This is also not a case of partial success, as Appellants and Intervenor did not obtain some but not all of the relief sought or prevail on some causes of action but not others, and so this ground does not support an award of attorney's fees, either. (See Bowman, supra, 131 Cal.App.4th at pp. 177-178.)

The initial success of the plaintiffs in Bowman in obtaining a writ of mandate vacating approval of a housing project on due process grounds, but later losing their challenge to the subsequent re-approval, is in contrast to Appellants' status here. (Bowman,

supra, 131 Cal.App.4th at pp.175-176, 177.) Appellants did not

succeed at any step in "achievjinq] some of the benefit [they] sought in bringing suit". (Seeid., at p. 178, quoting Maria P., supra, 43 Ca1.3d at p. 1292.)

The case on which Intervenor relies, Duffy, supra, 200 Cal.App.3d 730 (see AOB, p. 9), is materially different: Common

Cause in that case succeeded in establishing an illegal expenditure of public funds and recovered fees under 1021.5. (See Duffy, supra, 200 Cal.App.3d at pp. 740-744.) Thus, the result in Duffy is consistent with the "success" standards discussed above.

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2. The California Supreme Court's Explanation of Stanson Does Not Equate with Appellant's Success in the Case.

Having accepted the City prevailed in the litigation (ICT 13; cf. AOB, pp. 12-13, 27), Intervenor argues the Petition for Review resulting in the California Supreme Court's disapproving the intermediate appellate court's reasoning in favor of reaffirming and explaining the Stanson test achieved a public benefit.

The complaint in this litigation was not brought to challenge an express advocacy standard and reaffirm Stanson to test government speech related to ballot measures.

It challenged speech by the City in relation to a specific ballot measure as an illegal expenditure of public funds and

sought recovery of the amount expended to produce such speech, and injunctive and declaratory relief. The focus of the entire complaint and litigation was establishing that the City and its staff had engaged in unlawful campaign speech. (See Vargas, supra,

46 Ca1.4th at pp. pp. 9-13 & fn. 6,21,22,35.)

The litigation did not succeed in establishing the City illegally used public funds to campaign, quite the opposite. The California courts ruled at every step the complaint should be stricken as Appellants failed to show a prima facie case to support their complaint. (See id., at pp. 14,37-40.)

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Intervenor argues he is entitled to his fees under section 1021.5 because of the reasoning of the California Supreme Court, despite its ultimate judgment. Partially or even wholly prevailing on appeal does not mean a party has succeeded. (See Wood v.

Santa Monica Escrow Co. (2009) 176 Cal.App.4th 802, 804-808.)

Clarification of Stanson was no part of Appellants' complaint. A question of Stan son's vitality did not exist until the City raised it in challenging the complaint.

A number of cases do base a finding of satisfaction of the "success in vindication of an important public right" prong of section 1021.5's criteria or the "success in conferring of a

significant benefit" prong on appellate opinions.

The courts observe, in various iterations, that,

"[Tlhe 'significant benefit' that will justify an attorney fee award need not represent a 'tanqible' asset or a 'concrete' gain but, in some cases, may be recognized simply from the effectuation of a fundamental constitutional or statutory policy." (Woodland Hills, supra, [(1979)] 23 Ca1.3d [917] at p. 939, 154 Cal.Rptr. 503,593 P.2d 200.) The benefit may be conceptual or doctrinal (Planned Parenthood v. Aakhus, supra, [(1993)] 14 Cal.App.4th [162] at p. 171, 17 Cal.Rptr.2d 510), and the California Supreme Court has recognized that "the litigation underlying the section 1021.5 award can involve rights or benefits that are

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somewhat intangible .... " (Adoption of Joshua 8., supra, [(2008)J 42 Cal. 4th [945J at p. 958, 70 Cal.Rptr.3d 372, 174 P.3d 192.)

(Environmental Protection Information Ctr. v. Cal. Dept. of Forestry and Fire (2010) 190 Cal.App.4th 317,364 ["EPIC III"].)

In every instance, however, the referenced appellate opinions either affirm a lower court's granting of at least a portion of the relief sought in the fee-applicants' initial pleadings or, more commonly, reverse a denial of all or a portion of such relief. Such results satisfy the standard test for success in vindicating an important public right and in conferring a substantial public benefit: that the litigation by the party seeking fees actually achieve some portion, not de minimis, of the relief sought or some portion of the. change sought to be effected in the complaint or petition. (See ante, pp. 48-55; Mandocino v. Maggard (1989) 210 Cal.App.3d 1413,1416-1417,1419; Ciani v. San Diego Trust and Sav. Bank (1994) 25 Cal.App.4th 563, 579; see, e.g., EPrC III, supra, 190 Cal.App.4th 317, 356, 357-358, 358-359, 364-366 [supreme court

reversing court of appeal in part and affirming trial court in part, granted petitioners' relief in striking two administrative approvals]; Riverwatch v. County of San Diego Dept. of Env. Health (2009) 175 Cal.App.4th 768,771-773,781,782-783 [partial success in challenge to EIR, with fees reduced accordingly]; Los Angeles Police Protective League v. City of Los Angeles (1986) 188 Cal.App.3d 1, 5-7, 14 [reversing denial of appellate fees to

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prevailing party in mandamus action to obtain compliance with administrative decision]; Bouvia v. County of Los Angeles (1987) 195 Cal.App.3d 1075, 1079-1081, 1083-1086 [reversing denial of fees for prevailing party in prior appeal seeking order to permit party not close to death to refuse life-sustaining medical treatment].) 13

Leiserson v. City of San Diego (1988) 202 Cal.App.3d 725,

denied attorneys' fees under section 1021.5 because the plaintiff did not succeed in obtaining any of the relief he sought, although the court stated that even if a plaintiff fails to succeed in obtaining the primary or any other relief requested that plaintiff may be found to be successfulwithin section 1021.5 if the case results in a published opinion that clarifies or expands the law. This statement (and the mention of it in Schmier v. Supreme Ct. of Cal.

(2002) 96 Cal.App.4th 873, 878-879) is, obviously, dicta and,

incorrect under the test for success in enforcing or vindicating a qualifying right articulated in such cases as Graham, Maria P. and Marine Forests Society, discussed earlier, which require that at least some portion of the relief sought be achieved in the complaint." Ultimately, Leiserson denied 1021.5 fees because of

13 See also, e.g., Protect Our Water, supra, 130 Cal.App.4th at

pp. 491-495 [seeking and obtaining invalidation of project approval and EIR]; Compton Community College Federation of Teachers v. Compton Community College Dist. (1985) 165 Cal.App.3d 82, 97-99 [seeking and obtaining back pay, but denying fees on lack of

. necessity for private enforcement].)

14

The reference to Leiserson in Schmeir was dicta because the (continued ... )

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the lack of success under the ordinary tests for success. (Id., 202 Cal.App.3d at p. 738.) As Schmier correctly noted, while such clarification or expansion of law is probative of whether a case conferred a significant public benefit, the fee claimant must still establish success in enforcing an important public right. (Id., 96

Cal.App.4th at p. 881.)

The cases in Karuk Tribe of Northern Cal. v. Cal. Reg. Water Qual. Control Bd. (2010) 183 Cal.App.4th 330, and Ebbetts Pass,

supra, involve appellate decisions more analogous to the outcome of the litigation here.

In Karuk Tribe, the only relief obtained was an order for an administrative agency to clarify its decision rejecting plaintiff's request to the agency that it issue waste discharge requirements and order submission of pollution reports by hydroelectric companies. However, after clarification by the agency, the trial court upheld the agency's rejection of plaintiff's request. The trial court based an award of attorneys' fees to plaintiff on its initial order requiring clarification of the agency decision. The attorneys' fees award was reversed because clarification of the agency's decision was not any of the relief sought by plaintiffs. Therefore, the court of appeal held the "cold hard reality is that plaintiffs

lost", rejecting as "completely unpersuasive" plaintiffs' "attempt to

14

( ... continued)

court in Schmeir determined their opinion did not do this. (Id., at p:p. 878-881.)

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· recast the purpose, scope, and outcome of the litigation". (Id., at pp. 364-365; see also Marine Forests Society, supra, at pp. 870-871, 878-879,880 [obtained Legislative amendment, but did not achieve objective of lawsuit; fees denied]; Urbaniak v. Newton (1993) 19 Cal.App.4th 1837, 1842 [party whose action was dismissed, with appellate affirmance, not successful party who could hold prevailing party responsible for 1021.5 fees].)

In Ebbetts Pass, after correctly describing the elements required for an award of section 1021.5 attorneys' fees (see id., at pp. 381-382), the court found the plaintiff was not entitled to recover attorneys' fees as it did not succeed in enforcing the public right they sought to vindicate in the litigation, to have logging plans overturned based on the administrative agency's asserted failure to follow the law in approving the plans. Even though the case resulted in a published California Supreme Court opinion clarifyinq the law and agreeing with some of the plaintiff's interpretations of law, the courts found the agency had complied with the proper legal standards and requirements. (Id., at pp. 379,

385-387,387-388.)

In our view, this case turns on a rather basic perspective of what constitutes a successful lawsuit. It seems anomalous that a party could bring a lawsuit, lose the lawsuit and effectively lose with respect to the goal of their lawsuit and still require the public to pay for their attorney fees. Yet that would be the consequence of plaintiff's argument ....

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Here, appellants lost because the record did not justify their winning under the law. While it may be argued that their contentions resulted in clarification of legal issues, the fact remains that ... regardless of the expansion of the law, they did not have a factually meritorious lawsuit and, when the dust settled, their

. only victory was in a statement of law that when applied to the record clarified why they should lose.

.... That petitioner may have, in part, received a favorable clarification of the law does not relieve them from proving the facts that under the clarification would justify relief.

(Id., at pp. 387-388.) .

Echoing the standards for success articulated earlier in the opinion, the court then restated its conclusion the appellants did not-satisfy the requirement to succeed under section 1021.5. (Ebbetts Pass, supra, 187 Cal.App.4th at p. 388.) The court then held,

while the Court may have clarified the law regarding plaintiffs' legal contentions, the court rejected those contentions because they lacked support in the record and denied plaintiffs the relief they requested. To conclude that plaintiffs were successful under these circumstances would be an unwarranted expansion of section 1021.5.

Because plaintiffs did not meet the threshold requirement of establishing that they were a

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successful party, we need not determine whether they meet the remaining requirements.

(Ebbetts Pass, supra, 187 Cal.App.4th at p. 388.)

Therefore, the California Supreme Court's decision in this case rejecting the illegal public campaign expenditure test urged by the City and approved by the trial court and court of appeal, and applying and explaining the standards in Stanson, did not provide Appellants the relief they sought, as the Court found the City had not violated that standard.

Accordingly, Appellants and Intervenor failed to succeed in enforcing an important public right and should be denied attorneys' fees under 1021.5.

D. The Superior Court's Failure to Sustain Intervenor's Evidentiary Objection Was Neither Erroneous Nor Prejudicial.

The City below argued the interest of justice did not warrant shifting Intervenor's fees to the City. As part of that point, the City argued Appellants' threatened bankruptcy to avoid paying the attorneys' fees awarded to the City against them, meant that the City would be unable to recover its fees for prevailing in the action while, if any fees were awarded to Intervenor under 1021.5, having to pay the losing side's attorneys' fees. Appellants objected to the portion of this argument which relied on a statement by Intervenor

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that Appellants would file such bankruptcies (see nCT 381-383, 387, 390-392), and here assert the superior court erred in failing to strike the reference to Intervenor's statement.

This implied evidentiary ruling is only reversible upon a prejudicial abuse of discretion. (Civil Appeals and Writs, Ch. 8, supra, § 8:96.1, p. 8-49; Cal. Const., Art. VI, §13.) The statement was admissible (see Evid. Code, § 1152, subd. (a» as it was not offered to prove Intervenor's or Appellant's liability, but to refute the City's liability, so the court below did not err in failing to exclude it. The reference to it and the related argument that the interests of justice did not necessitate awarding Intervenor fees against the City was one aspect of one point far outweighed by a substantial discussion of the law and reasons why Intervenor should not recover fees under 1021.5 because of the lack of success

on any portion of the relief sought. As such, any weight given it by the trial court was not prejudicial.

II II II II II II II II II

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V.

CONCLUSION

For the foregoing reasons, the superior court's order awarding appellate fees and costs to the City and denying appellate fees to Intervenor should be affirmed in both respects.

Dated:

JanuaryZ!. 2011

Respectfully submitted, Vanessa W. Vallarta, Esquire City Attorney

OFFICE OF THE CITY ATTORNEY CITY OF SALINAS

Counsel for Defendants and Respondents,

CITY OF SALINAS and DAVE MORA

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PROOF OF SERVICE

I, Amy M. Larson, declare as follows:

I am a United States citizen, over 18 years old; my business address in relation to this matter is 2100 Garden Road, Suite G, Monterey, California 93940; and I am not a party to the within action. On the date shown below I served a copy of:

RESPONDENTS' BRIEF

on the parties listed below, by placing true copies thereof in a sealed envelope addressed as indicated below, with postage fully prepaid thereon, in the United States Mail at Monterey, California, and/or, if and as so indicated below, by causing such document(s) to be hand-delivered, sent by overnight delivery, sent by facsimile transmission, or by electronic mail transmission, to each of the following parties at the addresses and/or facsimile telephone numbers set forth below:

Steven J. Andre, Esquire ATTORNEY AT LAW

26540 Carmel Rancho Blvd. Carmel, CA 93923 (Intervenor and Appellant, in propria persona,

and

Counsel for Plaintiffs and Appellants)

Clerk of the Court MONTEREY COUNTY SUPERIOR COURT

MONTEREY BRANCH

1200 Aguajito Road Monterey, CA 93940-4877

for delivery to the

Hon. Susan M. Dauphine

CITY OF SALINAS and DAVE MORA

(Defendants and Respondents) Addresses confidential

Clerk of the Court

SUPREME COURT OF CALIFORNIA 350 McAllister Street

San Francisco, CA 94102-4797

(4 copies)

I declare under penalty of perjury of the laws of the State of California that each of the foregoing statements is true and correct, and that this declaration was executed on January ~~ 2011, at

Monterey, California. ~ >

AmyM. La n

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~ .., BE FILED IN THE COURT OF APPEAL

APP-008

~ ..... "-.
COURT OF APPEAL, SIXTH APPELLA TE DISTRICT, DIVISION Court of Ap~I.C.ase·Numbei":
H035207
ATTORNEY OR PARTY WITHOUT ATTORNEY (Name, Stale Bar number and address): Superior Court Case Number;
Joel Franklin, Esquire, California State Bar Member, No. 69705 Mont. Co. Case NO.M61489
- LA W OFFICES OF JOEL FRANKLIN
2100 Garden Road, Suite G FOR COURT USE ONLY
Monterey, California 93940-5393
TELEPHONE NO.: (831) 649-2545 FAX NO. (Oplional):
E-MAil ADDRESS (OplionaQ: pOUrf of AD",?' , SiJttI< . Piat.
ATTORNEY FOR (Name): CITY OF SALINAS and DAVE MORA
APPELLANT/PETITIONER: ANGELINA MORFIN V ARGAS, et al. I I~ !".);\'
ocr 2 1 20m
RESPONDENT/REAL PARTY IN INTEREST: CITY OF SALINAS, et al. l\4ICHI~EL J. v t F~~_'y~ Cieri{
CERTIFICATE OF INTERESTED ENTITIES OR PERSONS ~y ------O-EPQ'fV ---
(Check one): [ZJ INITIAL CERTIFICATE o SUPPLEMENTAL CERTIFICATE
Notice: Please read rules 8.208 and 8.488 before completing this form. You may use this form for the initial
certificate in an appeal when you file your brief or a prebrieflng motion, application, or opposition to such a
motion or application in the Court of Appeal, and when you file a petition for an extraordinary writ. You may
also use this form as a supplemental certificate when you learn of changed or additional information that must
be disclosed. 1. This form is being submitted on behalf of the following party. (name): Respondents, City of Salinas and Dave Mora

2. a. [l] There are no interested entities or persons that must be listed in this certificate under rule 8.208. b. 0 Interested entities or persons required to be listed under rule 8.208 are as follows:

Full name of interested entity or person

Nature of interest I

(Explain):

L..--- _ ______;;".___;,__ __ .

(1) (2) (3) (4) (5)

~ ~ «:: IETW IE TI
OCT 2 2 2010 .
~
LAW OFFICES ilf JO.El FRANKLIN o Continued on attachment 2.

The undersigned certifies that the above-listed persons or entities (corporations, partnerships, firms, or any other association, but not including government entities or their agencies) have either (1) an ownership interest of 10 percent or more in the party if it is an entity; or (2) a financial or other interest in the outcome of the proceeding that the justices should consider in determining whether to disqualify themselves, as defined in rule 8.208(e)(2}.

Date: Octobe~ 2010

(TYPE OR PRINT NAME)

Joel Franklin

Pagolof1

Form Approved for Optional Use Judicial Council of CalWornia APP-008 [Rev. January 1,20091

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS

Cal. Rules of Court, rules 8.208, 8.488 www.courtinfo.ca.gov

PROOF OF SERVICE

I, Amy M. Larson, declare as follows:

I am a United States citizen, over 18 years old; my business address in relation to this matter is 2100 Garden Road, Suite G, Monterey, California 93940; and I !lID not a party to the within action. On the date shown below I served a copy of:

CERTIFICATE OF INTERESTED ENTITIES OR PERSONS (INITIAL)

on the parties listed below, by placing true copies thereof in a sealed envelope addressed as indicated below, with postage fully prepaid thereon, in the United States Mail at Monterey, California, and/or, if and as so indicated below, by causing such document(s} to be hand-delivered, sent by overnight delivery, or sent by facsimile transmission, to-each of the following parties at the addresses and/or facsimile transmission telephone numbers set forth below:

Steven J. Andre, Esquire ATTORNEY AT LAW

26540 Carmel Rancho Blvd. Carmel, CA93923

(Intervenor and Appellant, in propria persona,

and

Counsel for Plaintiffs and Appellants)

Clerk of the Court

MONTEREY COUNTY SUPERIOR COURT MONTEREY BRANCH

1200 Aguajito Road

Monterey, CA 93940-4877

for delivery to the

Hon. Susan M. Dauphine

CITY OF SALINAS and DAVE MORA (Defendants and Respondents)

. Addresses confidential

I declare under penalty of perjury of the laws of the State of California that each of the foregoing statements is true and correct, and that this declaration was executed on October ~,2010, at Monterey, California.

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