IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SIXTH APPELLATE DISTRICT

ANGELINA MORFIN VARGAS, )

MARK DIEROLF )

) No. H035207

Plaintiffs-Appellants, )

v. )

)

CITY OF SALINAS, )

DAVE MORA, et aI., )

)

Defendants-Respondents. )

On Appeal from the Superior Court of California County of Monterey

Monterey County Superior Court Case No. M61489 (The Honorable Susan M. Dauphine)

APPELLANTS' REPL Y BRIEF

Steven J. Andre

Attorney at Law #132633 26540 Carmel Rancho Blvd. Carmel, CA 93923

(831) 624-5786

Attorney for Plaintiffs -Appellants, Angelina Morfin Vargas and Mark Dierolf and Intervenor

TABLE OF CONTENTS

TABLE OF CONTENTS

TABLE OF AUTHORITIES iii

I. THERE WAS NO WAIVER OF ANY ARGUMENT AGAINST THE

FEE AWARD IN FAVOR OF DEFENDANTS 1

II. FEE AWARDS DO CHILL PETITIONING RIGHTS 4

III. THE LEGISLATURE'S TREATMENT OF FEE AWARDS IN

FAVOR OF GOVERNMENT AGENTS 5

IV. SECTION 425.17 PRECLUDES AN AWARD OF FEES HERE 11

A. SECTION 425.17 DOES NOT INCLUDE AN EXCEPTION

FOR ALL GOVERNMENT ACTIVITIES 11

B. THE SUPREME COURT DID NOT ADDRESS THE MERITS OF

PLAINTIFFS' RELIANCE UPON 425.17 "BY IMPLICATION" 15

C. PLAINTIFFS DO NOT ASSAIL THE GENERAL STATUTORY

PROTECTIONS BESTOWED UPON GOVERNMENT BY §425.16 16

V. THE BURDENING OF PETITION RIGHTS SUBJECT TO THE NOERRPENNINGTON DOCTRINE IS NOT RESTRICTED TO IMPOSITION OF

CIVIL OR CRIMINAL LIABILITY 16

VI. THE AWARDING OF FEES AGAINST PETITIONING CITIZENS AND

IN FAVOR OF GOVERNMENT AGENTS DOES NOT INVOLVE

NARROW-TAILORING OF THE STATUTE 23

VII. DEFENDANTS' SUGGESTION THAT THIS COURT WOULD BE ENGAGING IN JUDICIAL ACTIVISM BY PROTECTING PETITION RIGHTS AGAINST THE CHILLING EFFECT OF FEE AWARDS IN

FAVOR OF GOVERNMENT AGENTS IS MISPLACED 27

VIII. DEFENDANTS' ASSERTION THAT THE ONLY ISSUE LITIGATED ON

APPEAL WAS THEIR ANTI-SLAPP MOTION IS WISHFUL THINKING 28

IX. DEFENDANTS' LEGAL ANALYSIS REGARDING THEIR ENTITLEMENT TO COURIER FEES AND OTHER COST ITEMS IS

FLAWED 29

X. THIS COURT SHOULD ADHERE TOTHE ESTABLISHED RULE THAT FOR PURPOSES OF A PRIVATE ATTORNEY GENERAL FEE AWAB,D, SUCCESS IS EVALUATED IN TERMS OF THE IMPACT OF THE

LITIGATION RATHER THAN LEGALISTIC CONCEPTIONS 31

A. PLAINTIFFS SUCCEEDED IN OBTAINING A DECLARATION OF THE OBLIGATIONS OF DEFENDANT WITH RESPECT TO

EXPENDITURES OF PUBLIC FUNDS ON ELECTION MATTERS 32

B. AN AWARD OF FEES TO PLAINTIFFS IS CONSISTENT WITH

THE OBJECTIVES OF §1021.5 36

C. DEFENDANTS' PROPOSED MODIFICATION OF THE "SUCCESS" REQUIREMENT IS INCONSISTENT WITH WELL-REASONED AND ESTABLISHED LAW AND SHOULD

BE REJECTED 36

D. THIS COURT SHOULD REJECT DEFENDANTS' REQUEST THAT IT NOT FOLLOW THE RULE RECOGNIZED IN NUMEROUS CASES CONCERNING THE MEANING OF

"SUCCESS" 39

CONCLUSION 52

CERTIFICATION OF WORD COUNT 52

PROOF OF SERVICE 53

II

TABLE OF AUTHORITIES

Cases: Page

Alyeska Pipeline Service Company v. Wilderness Society (1975)

421 U.S. 240 30

Bach v. County of Butte (1989) 215 Cal.App.3d 294 20

BE&K Construction Co. v. NLRB (2002) 536 U.S. 516 7

Benson v. Greitzer (1990) 220 Cal.App.3d 11 20

Bernardo v. Planned Parenthood Federation of America (2004)115 Cal.

App.4th 322 25

Bouvia v. County of Los Angeles (1987) 195 Cal.App.3d 1075 47-48

Briggs v. Marshall (S.D.lnd. 1995) 881 F.Supp. 414 37

Brown v. Board of Education (1954) 347 U.S. 483 5

Buckhannon Bd. & Care Home v. West Virginia Dept. of Health &

Human Resources (2001) 532 U.S. 598 37-39

Buckley v. Valleo (1976) 424 U.S. 1 34

Burns v. United States (1991) 501 U.S. 129 5

Cafasso v. General Dynamics C4 Systems, Inc. (9th Cir. Mar. 24, 2011)

_ F.3d _ (Case Nos. 09-16181/09-16607) 20

California Transport v. Trucking Unlimited (1972) 404 U.S. 508 6-7

Carpenters Southern Cal. Admin. Corp. v. Russell (9th Cir. 1984) 726

F.2d 1410 21

Children's Hospital & Medical Center v. Bonta (2002) 97 Cal.App.e" 740 3-4

Christiansburg Garment Co. v. E.E.O.C. (1978) 434 U.S. 412 19-22

Ciani v. San Diego Trust & Savings Bank (1994) 25 Cal.App.s" 563 46-47

Citizens for a Better Environment v. The Steel Co. (ih Cir. 2000)

230 F .3d 923 20

City of Fresno v. Press Communications, Inc. (1994) 31 Cal.App.e" 32 37

City of Long Beach v. Bozek (1982) 31 Cal.3d 527 6,18

11I

Common Cause v. Stirling (1983) 147 Cal.App.3d 518 36

Compton Community College etc. Teachers v. Compton

Community College Dist. (1985) 165 Cal.App.3d 82 45-46

Concerned Citizens of La Habra v. City of La Habra

(2005) 131 CaLApp.4 1329 50

Counta of San Luis Obispo v. Abalone Alliance (1986) 178 Cal.

App.3 848 37

Doers v. Golden Gate Bridge, Hwy & Trans. Dist. (1979) 23 CaL3d 180 3

Eastern Railroad Conference v. Noerr Motor Freight (1961) 365 U. S. 127 6-8

Ebbetts Pass Forest Watch v. California Dept. of Forestry

(2010) 187 Cal.App.a" 376 48-51

Empress LLC v. City and County of San Francisco (9th Cir. 2005)

419 F.3d 1052 17-18

Environmental Protection Information Center v. California Department

of Forestry (2010) 190 Cal.App.e" 217 40-41

Eguilon Enterprises LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53 23,25

Faraci v. Hickey-Freeman (2d Cir. 1979) 607 F.2d 1025 5

Folsom v. Butte County Asn. of Governments (1982) 32 Cal.3d 668 42,48

Foothill-De Anza Community College Dist. v. Emerich (2007)

158 Cal.App.4th 11 31

Gage v. Wexler (N.D. Cal. 1979) 82 F.R.D. 717 20

Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.e" 44 20

Graham v. DaimlerChrysler Corp. (2004) 43 Cal.4th 553 36-39

Hamilton v. Lokuta (E.D.Mich. 1994) 871 F.Supp. 314 37

Harbor v. Deukmejian (1987) 43 Cal.3d 1078 49-50

Harper v. Virginia Bd. of Elections (1966) 383 U.S. 663 17

Hughes v. Rowe (1980) 449 U.S. 5 20

IV

Karuk Tribe of Northern California v. California Regional Water

Quality Control Bd. (2010) 183 Cal.App.e" 330 50-51

Ladas v. California State Automobile Assn. (1993) 19 Cal.App.a" 761 31

Leiserson v. City of San Diego (1988) 202 Cal.App.3d 725 40-43

Los Angeles Police Protective League v. City of Los Angeles

(1986) 188 Cal.App.3d 1 45

Ludwig v. Superior Court (City of Barstow) (1995) 37 Cal.App.s" 8 6

Mandocino v. Maggard (1989) 210 Cal.App.3d 1413 45

Marbled Murrelet v. Babbitt (9th Cir. 1999) 182 F.3d 1091 21

Marbury v. Madison (1803) 5 U.S. 137 6,27

Marine Forests Society v. California Coastal Com. (2005)

36 Cal.4th 1, 24-25 30

Montgomery v. Yellow Freight System. Inc. (10th Cir. 1982) 671 F.2d 412 20

M.W. Erectors, Inc. v. Niederhauser Ornamental & Metal Works Co.,

Inc. (2005) 36 Cal.4th 412 1-2

N.A.A.C.P. v. Button (1963) 371 U.S. 415 26

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

Opinion of the Justices (N.H. 1994) 641 A.2d 1012 10

People v. Drennan (2000) 84 Cal.App.e" 1349 12

Perry v. Sinderman (1972) 408 U.S. 593 17

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

508 U.S. 49 19

Protect Our Mountain Env't v. District Court (Colo. 1984) 677 P.2d 1361 10

Riverwatch v. County of San Diego Department of Envronmental Health

(2009) 175 Cal.App.c" 768 47

Rounseville v. Zahl (2nd Cir. 1994) 13 F.3d 625 20

v

Rushing v. Powell (1976) 61 Cal.App.3d 597 13-14

Sagaser v. McCarthy (1986) 176 Cal.App.3d 288 49-50

San Ramon Valley Fire Prot. Dist. v. Contra Costa County

Employees' Ret. Assn. (2004) 125 Cal.App.s" 343 23

Schmier v. Supreme Court (2002) 96 Cal.App.e" 873 39-40,42

Schroeder v. City of Irvine (2002) 97 Cal.App.e" 174 23-24

Simpson v. Municipal Court (1971) 14 Cal.App.3d 591 24

Snider v. Superior Court (2003) 113 Cal.App.e" 1187 12

Somers v. Gabor (1995) 40 Cal.App.e" 1455 4

Sperber v. Robinson (1994) 26 Cal.App.e" 736 3

Stanson v. Mott (1976) 17 Cal.3d 217 29-33,44

Stenseth v. Greater Fort Worth (5th Cir. 1982) 673 F.2d 842 20

Tily B.! Inc. v. City of Newport Beach (1998) 69 Cal.App4th 1 25-26

Townsend v. Holman Consulting Corp. (9th Cir. 1991) 929 F.2d 1358 7

Travers v. Louden (1967) 254 Cal.App.2d 926 34

United Mine Workers v. Pennington (1965) 381 U. S. 657 6

United States Steel v. United States (3d Cir. 1975) 519 F.2d 359 20

Urbaniak v. Newton (1993) 19 Cal.App.c" 1837 43

Wilcox v. City of Reno (9th Cir. 1994) 42 F .3d 550 37

Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809 8,9

Woodland Hills Residents Assn.! Inc. v. City Council (1979) 23 Cal.3d 917 48

Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.e" 43

17

VI

Statutes and Rules:

Cal. Const. art. III, §3

30

CaI.Const., art. VI, §12

15

Cal. Rules of Court, Rule 8.278

29-30

Cal. Rules of Court, Rule 8.516

15

Code of Civil Procedure section 425.16

passim

Code of Civil Procedure section 425.17

11-16

Code of Civil Procedure section 1021.5

passim

Code of Civil Procedure section 1033.5

30

Code of Civil Procedure section 1034

30

Code of Civil Procedure Section 1061

34

F.R.C.P., Rule 11

21

42 U.S.C. § 2000e-5(k) 42 U. s. C. § 3613(c)(2)

5

37

u.s. Const., amendment 1

passim

u.S. Const. amendment 14

28

Other Authorities:

Andrews, Carol, "Motive Restrictions on Court Access: A First

Amendment Challenge" (2000) 61 Ohio St.L.J. 665 21

Black's Law Dictionary 39

26 Cal.Jur.3d (Rev.) (Decl. Relief) sec. 13 33

"Comment: Rule 11 and the Policing of Access to the Courts after

Professional Real Estate Investors" (1994) 61 Chi.L.Rev. 1037 22

Federalist Papers #78 27

Vll

Horowitz, Donald, "The Courts and Social Policy" (Brookings Inst. 1977) 36

Lemos, "The Other Delegate: Judicially Administered Statutes and

the Nondelegation Doctrine" (2008) 81 S.Cal.L.Rev. 405 30

Myers, Gary, "Antitrust and First Amendment Implications of Professional

Real Estate Investors" (1994) 51 Wash. & Lee L.Rev. 1199 21

"Note: Awards of Attorneys' Fees to Unsuccessful Environmental

Litigants" (1983) 96 Harv.L.Rev. 677 38

"Note: A Petition Clause Analysis of Suits Against the Government:

Implications for Rule 11 Sanctions" (1993) 106 Harv.L.Rev. 111 22

Pring, George, "SLAPPs: Strategic Lawsuits Against Public

Participation" (1989) 7 Pace Env.L.Rev.1 9

Pring and Canan, "SLAPPs: Getting Sued for Speaking Out" (1996) 9

Sarat, Austin & Scheingold, Stuart, "Cause Lawyering" (Oxford 1998) 36

Solovny, et. ai, "Sanctions Under Rule 11: A Cross-Circuit Comparison"

(2004) 37 Loyola L.Rev. 727 22

Witkin, Cal.Proc. (Pleading, 5th ed.) sec. 378, sec. 384 33

VllI

I. THERE WAS NO WAIVER OF ANY ARGUMENT AGAINST THE FEE AWARD IN FAVOR OF DEFENDANTS

Defendants commence their opening briefby asserting that plaintiffs are

procedurally prevented from raising any challenge to the trial court's award of nearly

one-quarter million dollars in fees. This shabby argument appears to take a number of

forms - waiver, forfeiture and judicial estoppel. The specious nature of the contention is

apparent from the dearth of authority cited and the absence of support provided by the

scant cases that are cited. The essential claim - that the issue has been litigated already

and may not be reconsidered - would seem to entirely undermine defendants' fee claim

and preclude them from seeking any more than the $3000 or so they were awarded in

2004. Assuming defendants are not hoisted by their own petard in seeking additional

fees related to the same issue, then there seems to be no good legal or logical reason to

preclude plaintiffs from raising new defenses to the new claim for about $250,000.00.

And the legal authorities - including those cited by defendants - support the view that

plaintiffs have not lost the ability to assert defenses to the new claim.

Defendants rely upon M.W. Erectors, Inc. v. Niederhouser Ornamental & Metal

Works Co., Inc. (2005) 36 Cal.4th 412, for the proposition that plaintiffs' failure to raise a

First Amendment-based defense in 2004 means they cannot raise it now. But the

material composing this argument begins to unravel when the case is reviewed. M.W.

Erectors was a contract licensure case where the plaintiffs argued that a defendant was

estopped to raise plaintiffs non-licensure as a defense because in a related litigation it

had taken the opposite position. The court held that judicial estoppel was not

J

appropriately applied to preclude the defense. The court's reasoning leaves defendants'

contention in tatters:

" , "Judicial estoppel precludes a party from gaining an advantage by taking one position, and then seeking a second advantage by taking an incompatible position. [Citations.] ... " , [Citation.] The doctrine [most appropriately] applies when: '( I) the same party has taken two positions; (2) the positions were taken in judicial or quasi-judicial administrative proceedings; (3) the party was successful in asserting the first position (i.e., the tribunal adopted the position or accepted it as true); (4) the two positions are totally inconsistent; and (5) the first position was not taken as a result of ignorance, fraud, or mistake.' " (Aguilar v. Lerner (2004) 32 CaI.4th 974, 986-987 (Aguilar); Scripps Clinic v. Superior Court (2003) 108 CaI.App.4th 917, 943; Jackson v. County of Los Angeles (1997) 60 CaI.App.4th 171, 183 (Jackson).)

" I "The doctrine's dual goals are to maintain the integrity of the judicial system and to protect parties from opponents' unfair strategies. [Citation.]" , " (Aguilar, supra, 32 CaI.4th 974,986.) Consistent with these purposes, numerous decisions have made clear that judicial estoppel is an equitable doctrine, and its application, even where all necessary elements are present, is discretionary. [citations omitted]

Id. at 422. The equitable concern over unfair advantage obtained from opportunistic

legal flip-floppery is entirely absent in this case. If anything, plaintiffs did not raise

affirmative defenses to a fee award for entirely transparent strategic reasons - i.e, it was

not worth fighting a major battle over such a small amount and it would distract from

their key issue on appeal- whether the City's "express advocacy" standard was incorrect.

No disadvantage can be claimed from plaintiffs' not asserting the defense in 2004. The

most that can be said is that defendants did not have to fight over $3000 and that, if

anything, was an advantage to them.

The situation here is also a far cry from that involved in either of the other cases

cited by defendants, which both involve a party appealing from a trial court decision with

which they expressly consented. Declining to raise a defense is hardly tantamount to expressly agreeing the defense does not apply, as in Nevada County Office of Education v. Riles (1983) 149 CaI.App.3d 767 ("The Superintendent has in effect waived his right to attack the trial court's decision (including the findings of fact and conclusions ofIaw) by expressly defending or agreeing to the administrative and trial court action he now objects to on appeal." Id. at 779) or Sperber v. Robinson (1994) 26 Cal.App.a" 736 (where the party agreed in the trial court that the issue of an equitable lien was for the court, not the jury, and the court held: "Such agreement constitutes a waiver of the issue, since appellant and counsel acquiesced in and contributed to any such error." Id. at 742-

743).

The argument that a "waiver" or "forfeiture" has occurred is similarly threadbare.

The cases relied upon cannot patch the holes in defendants' argument. In Doers v. Golden Gate Bridge, Hwy & Trans. Dist. (1979) 23 Ca1.3d 180, the Supreme Court held that the mere filing of a lawsuit does not constitute a waiver of a right to arbitrate under a collective bargaining agreement. Waiver would only occur where the party had litigated the case on the merits through judgment. Doers simply has no bearing on the facts in this case. It provides no support for the proposition that because plaintiffs did not raise an argument to a fee claim in 2004, they cannot raise it now when the fees are astronomically greater.

Children's Hospital & Medical Center v. Bonta (2002) 97 Cal.App.d'" 740, unlike the situation here, addressed a supplemental letter brief wherein, for the first time on

J

appeal, a party raised an argument that the respondent was not entitled to a fee award pursuant to § I 021.5. The Court considered the argument "doubly waived" because it "was never presented to the trial court" and it "was never raised in the opening and reply briefs" on appeal. Id. at 776-777. By contrast, plaintiffs did raise the argument that defendants are not entitled to a fee award very emphatically in the trial court and did raise it prominently in their opening brief. See also, Somers v. Gabor (1995) 40 Cal.App.4th 1455 (m A party is not permitted to change his [or her] position and adopt a new and different theory on appeal. To permit him [or her] to do so would not only be unfair to the trial court, but manifestly unjust to the opposing party. '" Id. at 1468)

II. FEE A WARDS DO CHILL PETITIONING RIGHTS

Defendants argue that the Noerr-Pennington requirement that a "sham" must be demonstrated before petition rights may be burdened does not apply here because the $250,000.00 fee award is not a burden. Defendants seek to characterize the awarding of fees as just an ordinary incident of litigation. (ROB 18, 29) Not only does this entirely overlook the American Rule requiring that each party bear its own fees, but it does a sad job of gussying up the pig. All the lipstick in the world cannot obscure the fact that fee awards are an imposition and do affect significant determinations with respect to litigation - whether to file, whether to continue, whether to pursue other recourse. One court, describing the impact of fee awards upon a party's approach to judicial proceedings, astutely observed:

The standard by which we allocate counsel fees between a victorious litigant and his opponent can have a substantial effect on settlement negotiations, and, indeed, on a prospective plaintiffs very decision to bring suit. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U.S. 714, 718, 87 S.Ct. 1404, 18 L.Ed.2d 475 (1967). In the early days of the Republic, American courts and legislatures recognized the strong disincentive against the institution of meritorious suits engendered by the British practice of routinely awarding full attorneys' fees to prevailing defendants. [ footnote omitted]

Faraci v. Hickey-Freeman (2d Cir. 1979) 607 F.2d 1025, 1028-1029 (reducing fee award

against plaintiff under 42 U.S.C. § 2000e-5(k), for frivolous suit to $200 in view of

equitable considerations relating to the plaintiffs ability to pay).

III. THE LEGISLATURE'S TREATMENT OF FEE AWARDS IN FAVOR OF GOVERNMENT AGENTS

Defendants argue that §425.16 is "legislatively-imposed" and "legislatively

mandated" (ROB 18) as though, ipse dixit, that means such awards should survive

judicial review. Defendants persist, asserting that because the Legislature had the

opportunity to correct the oversight and did not do so, such fee awards should survive

constitutional challenge. (ROB 19-20) The premise is unsound. As the United States

Supreme Court has recognized in rejecting such an inference from legislative inaction,

'''not every silence is pregnant." Bums v. United States (1991) 501 U.S. 129, 136.

Obviously, legislative bodies do not always act when a problem presents itself. Brown v.

Board of Education (1954) 347 U.S. 483, amply illustrates a situation where the judiciary

identified a social problem requiring legislative intervention which was met by

congressional inaction for well over a decade. And, sometimes when legislative bodies

5

do act, their action presents constitutional issues that render that action unlawful. Marbury v. Madison (1803) 5 U.S. 137.

In any event, defendants' historical background is inadequate and incomplete.

The Legislature designed §425 .16 to address a specific problem. The same problem was recognized by the Supreme Court in Eastern Railroad Conference v. Noerr Motor Freight (1961) 365 U. S. 127, where trucking companies sued a group of railroads to restrain them from allegedly monopolizing the long-distance freight business in violation of antitrust laws. (See, Ludwig v. Superior Court (City of Barstow) (1995) 37 Cal.App.d'" 8, 21-22) While holding that no cause of action was alleged insofar as the action was predicated upon mere petitioning to influence Congress for the passage of laws or the Executive Branch for their enforcement, the Court did recognize that the same traditional right that enables parties to shape law and government policy, could be deployed as a weapon barring rivals from meaningful access to judicial redress.

The Court later pointed out in California Transport v. Trucking Unlimited (1972) 404 U.S. 508, that Noerr was fundamentally about popular sovereignty and the essential dependence of the process of self-government upon the ability of the people ''to make their wishes known to their representatives." Accordingly, the Legislature could not impair that ability. Id. at 511. See also, United Mine Workers v. Pennington (1965) 381 U. S. 657, 669-671. One such mechanism for the people to make their concerns known is, of course, the courts. City of Long Beach v. Bozek (1982) 31 Ca1.3d 527. "[Tjhe bringing of meritorious lawsuits by private individuals is one way that public policies are

advanced." Townsend v. Holman Consulting Corp. (9th Cir. 1991) 929 F.2d 1358, 1362.

Even unsuccessful suits are not wholly without value and merit First Amendment

protection:

Even unsuccessful but reasonably based suits advance some First Amendment interests. Like successful suits, unsuccessful suits allow the 'public airing of disputed facts,' and raise matters of public concern. They also promote the evolution of the law by supporting the development of legal theories that may not gain acceptance the first time around.

BE&K Construction Co. v. NLRB (2002) 536 U.S. 516, 532.

While concluding that it would be destructive of petition rights to burden those

citizens using the channels and procedures of state and federal agencies and courts to

advocate their causes and points of view with statutory penalties, the Court in California

Transport recognized that there may be instances where the activity in actuality "is a

mere sham to cover what is actually nothing more than an attempt to interfere directly

with the business relationships of a competitor and the application of the Sherman Act

would be justified." Noerr at 144. Just like a SLAPP, it is disguised as petitioning

activity, but in reality use of the process is designed to punish and prevent legitimate

activity by others - to deprive others of meaningful access to agencies and courts:

"[S]uch a purpose or intent, if shown, would be 'to discourage and ultimately to prevent

the respondents from invoking' the processes of the administrative agencies and courts,

and thus fall within the exception to Noerr," Id. at 512.

7

The California Legislature, perceiving that traditional remedies for such abusive

litigation were ineffective (Wilcox v. Superior Court (1994) 27 Cal. App. 4th 809, 817),

enacted §425.l6 to protect petitioning activity and other First Amendment activity from

procedurally coercive tactics. The anti-SLAPP law was warranted because the law was

otherwise impotent to stop such manipulations and abuses of process:

[L Jack of merit [in one's claims] is not of concern to [a SLAPPing] plaintiff because the plaintiff does not expect to succeed ... only to tie up the defendant's resources for a sufficient length of time to accomplish plaintiffs underlying objective. [Citation.] As long as the defendant is forced to devote its time, energy and financial resources to combating the lawsuit its ability to combat the plaintiff in the political arena is substantially diminished .... [~ ... Because winning is not a SLAPP plaintiffs primary motivation, defendants' traditional safeguards against meritless actions (suits for malicious prosecution and abuse of process, requests for sanctions) are inadequate to counter SLAPP's. Instead, the SLAPPer considers any damage or sanction award which the SLAPPee might eventually recover as merely a cost of doing business. [Citation.] By the time a SLAPP victim can win a 'SLAPP-back' suit years later the SLAPP plaintiff will probably already have accomplished its underlying objective.

Id atpp. 816-817.

By contrast, the lawsuit here involved no effort to stifle citizen petitioning or

speech activity whatsoever. It was itself general petitioning activity, challenging and

seeking to get government to change its wayward ways. Moreover, it was seeking to

prevent government conduct which had the effect of interfering with the very democratic

process the court in Noerr recognized as protected by the First Amendment right to

petition. At least a component of the suit, if not the basic thrust, entailed an effort to

clarify the City's policy with respect to disseminating election materials. Once the policy

was identified, plaintiffs challenged that unlawful policy through the appellate process.

Anti-SLAPP laws had been conceived of to prevent misuse of the legal process to

discourage petitioning activity.' California's hybrid statute - because it includes

government actions and non-petitioning activity within its ambit - creates a problem not

contemplated by those who conceived of SLAPP defendants as limited to NGOs (non-

government officials) engaging in petitioning activity' For fairly obvious reasons, a

government agency does not bother to petition itself. Thus, the problem of a government

official utilizing an anti-SLAPP motion against an individual or group never came up.

F or the same reason, the notion of a government responding to pure citizen

petitioning activity with an anti-SLAPP motion would have seemed so incongruous as to

have escaped the imagination of the progenitors of anti-SLAPP legislation. But the state

Legislature's effort to extend protection to other First Amendment conduct beyond

petitioning has created a conflict between the statutorily created protections afforded to

government under section 425.16 and the constitutionally protected right to petition (via a

lawsuit) government for redress of grievances. Even where the express purpose of

1 "SLAPPs are ... a counter-attack against petition-clause-protected activity." Pring, George, "SLAPPs: Strategic Lawsuits Against Public Participation" (1989) 7 Pace Env .L.Rev.1, 12; "[P]articipation should not be chilled through abuse of the judicial process." (§ 425.16 (a), italics added.); "SLAPP suits are brought to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff. ... [Tjhe plaintiff does not expect to succeed in the lawsuit, only to tie up the defendant's resources .... " Wilcox v. Superior Court, supra, 27 Cal. App. 4th at p. 816.

2 Pring and Canan defined a SLAPP as suits filed against "non-government individuals and/or groups" and did not include free speech activity, limiting it to "communications to a government body, official, or the electorate". In addition, they defined a SLAPP as limited to petitioning activity concerning issues of public interest or concern. Pring, George, "SLAPPs: Strategic Lawsuits Against Public Participation" (1989) 7 Pace Env.L.Rev. 1, 8; Pring and Canan, "SLAPPs: Getting Sued for Speaking Out" (1996) 8-9, 15.

9

§425.16 did not mitigate against allowing government to burden citizen petition rights with an award of fees as a matter of statutory construction, the constitutional right would trump the statutory interest sought to be achieved by the Legislature. In this regard, §425.16, short of being found unconstitutional, should, consistent with its purpose and history, be construed to comply with the First Amendment's petition clause such that the fee award provisions cannot apply in favor of government defendants.

Where anti-SLAPP procedures conflicted with the constitutional right to have factual determinations made by a jury, the Supreme Court of New Hampshire invalidated that state's law: "A solution cannot strengthen the constitutional rights of one group of citizens by infringing upon the rights of another group." Opinion of the Justices (N.H. 1994) 641 A.2d 1012, 1015. Solicitude for one party's statutory protection cannot come at the expense of the other party's superior right. "[T]he right to seek judicial relief for redress of grievances [is] too fundamental in character to permit petitioning activity to be turned against the petitioning party in the absence of a showing that the petitioning activity had lost its constitutionally privileged status .... " Protect Our Mountain Env't v. District Court (Colo. 1984) 677 P.2d 1361, 1367. Since, as defendants concede, a showing cannot be mustered that plaintiffs' lawsuit falls within an exception to the Noerr-Pennington doctrine, the statutory claim for fees must fail in the face of plaintiffs' right to petition government for redress of grievances. Upholding the right of government agents to obtain fee awards under §425.16 would undermine a litigant's right to petition, the objective of §425 .16, our democratic processes, and our justice system as a whole.

/0

IV. SECTION 425.17 PRECLUDES AN A WARD OF FEES HERE

A. SECTION 425.17 DOES NOT INCLUDE AN EXCEPTION FOR ALL GOVERNMENT ACTIVITIES

Rather than argue that plaintiffs' lawsuit is not a public interest lawsuit,

defendants take the position that the exception from the anti-SLAPP statute's provisions

for such actions provided by §42S.17 does not apply. The argument is that this is because

the conduct at issue was "based upon the creation, dissemination, exhibition,

advertisement, or other similar promotion of any, dramatic, literary, musical, political, or

artistic work including, but not limited to, a motion picture or television program, or an

article published in a newspaper or magazine of general circulation." (§42S.17( d)(2).)

Defendants' argument that the exception to §42S.1Ts exception to §42S.16's

provisions would seem to have been completely dispelled by the Supreme Court's

determination that the specific materials that gave rise to this case did not amount to

political campaigning. Nevertheless, defendants intractably posit that anything a

government agent says or does - by virtue of its relationship with government and its

operations (ROB 26) - is per se "political" within the meaning of §42S.l7(d)(2). Under

defendants' extremely broad interpretation of the term's meaning, government is equated

with political. Consequently everything related to government is political. This reading

of the statute's language does not comport with context or statutory purpose.

The term "political" as commonly understood and as employed in tandem with

"literary" "musical" and "artistic" denotes activity designed to produce or prevent

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substantive change in policy - the election of leaders, the creation or change of laws. The mere administration - the implementation of the electorate's or the legislature's policy choices - is simply the fulfillment of what the political process determined. Informing voters of facts in a neutral manner -which is supposedly what defendants were doing here - is an administrative function. This, at least according to the Supreme Court in this case, is what keeps the conduct in question here from being unlawful. It is not political. It is administrative. And the exception (to the exception) for "political" materials does not apply.

An understanding of "political" that emphasizes its substantive aspect over its procedural manifestation is in concert with the statute's enumeration of items to be excepted from the exemption. The doctrine of noscitur a sociis (People v. Drennan (2000) 84 Cal.App.q" 1349, 1355), provides that words employed in tandem in a statute should be construed as given a related meaning. Snider v. Superior Court (2003) 113 Cal.App.a" 1187, 1208. The common aspect of all four terms itemized in §425.17 is the expression of novel ideas. The creative component of debating ideological, philosophical and sociological implications of particular policy choices is consistent with the expression of an artist's special vision in a sculpture or painting, the unique feeling evoked by a musical composition, or the searching new thoughts and imagination fired by a novelist's articulation of a story illuminating the human condition. This should be contrasted with the routine preparation of data evaluations and compilation of information perfunctorily generated in any bureaucratic setting, but which particularly

/2,

characterizes governmental agencies in an age in which the administrative state has

grown to gargantuan proportions.

Recognizing the predominant expressive aspect of the term "political" over its

operational meaning (the day-to-day functioning of governmental machinery) is also

consistent with the context in which the terms "dramatic, literary, musical, political, or

artistic work" are used. The statute employs these terms with regard to their creative or

expressive nature (referring to works such as "a motion picture or television program, or

an article published in a newspaper or magazine of general circulation." (§425.17(d)(2).),

not as encompassing virtually any administrative report, accounting or analysis. Such

number-crunching, bean-counting and other evaluations are merely the product of the

political debate that previously determined what policy choices should prevail and be

implemented by governmental bureaucracy. They do not represent political expression,

they are its manifestation. Consistent with that understanding, informational bulletins

generated by a government agency - such as the materials at issue here'' - do not fall

under the rubric of "political."

The undue attention lavished upon the term "political" by defendants undoubtedly

obscures the most important consideration in statutory construction - the intent of the

Legislature. As the court observed in Rushing v. Powell (1976) 61 Cal.App.3d 597:

3 Plaintiffs emphasize that the Supreme Court reached this determination on the basis of an inaccurate assumption concerning the regular and ordinary nature of the publications at issue. A different conclusion may have ensued had the issue reached a trier of fact. This was the point of plaintiffs' Petition for Rehearing and Motion for New Trial. For purposes of assessing the application of the term "political" to the materials here, however, the Supreme Court's finding that the materials were not of the nature of political campaigning should control the application of §425.17.

13

Words of a statute must be given such interpretation as will promote rather than defeat the general purpose and policy of the law. (City ofL. A. v. Pac. Tel. & Tel. Co. (1958) 164 Cal.App.2d 253,256-257.) Moreover, legislative intent should be gathered from the whole act rather than from isolated parts or words. (People v. King (1952) 115 Cal.App.2d Supp. 875, 878; People v. Sciortino, supra, 175 Cal.App.2d Supp. 905, 909.) The object sought to be achieved by the statute and the evil sought to be prevented are of prime consideration in its interpretation. (Freedland v. Greco (1955) 45 Cal.2d 462,467.)

Id. at 604. The intent of §425.17 is readily apparent - it was to exempt public interest

lawsuits from the application of the anti-SLAPP law. Presumably this relates to the

public policy involved in encouraging such litigation which frequently seeks to hold

government agencies accountable to the public interest. In keeping with this purpose,

how should a court reconcile the exception carved out for musical compositions, artistic

creations, literary oeuvres and political works? The exception was plainly intended to

lend extra protection to such core First Amendment expressive activity from SLAPPs.

Thus, even what qualifies as a public interest lawsuit, if brought targeting individual

musical, artistic and other expression is properly scrutinized under the anti-SLAPP

statute's protective gaze.

This logical understanding of the legislative objective behind enactment of

§425.17 is contrary to a construction of the terms "literary" or "political" that

encompasses administratively generated reports. Instead, it comports with a construction

that lends these terms a meaning that entails a point of view considering basic questions

of policy and public concern - a pamphlet arguing a position on a ballot measure or a

new way of structuring our national economy. But not a government report merely

assessing potential departmental impacts from a revenue loss. Moreover, the contrary

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interpretation - that government and corporate bureaucratic reports deserve extra

protection as "literary" or "political" works - would defeat the primary objective of

§425.17, which is to protect public interest actions brought against such entities.

B. THE SUPREME COURT DID NOT ADDRESS THE MERITS OF PLAINTIFFS' RELIANCE UPON 425.17 "BY IMPLICATION"

Nor does defendants' argument that the Supreme Court has by implication disposed of

this argument in some fashion (ROB 26) hold any water. Examination of the record

discloses that the Supreme Court - by granting review - wiped away the appellate court

ruling on the point. Careful review of the Supreme Court's decision, however, also

reveals the Court simply did not rule upon the applicability of §425.17 in any manner.

Defendants' assertion that such a ruling must be implied from the fact that the Supreme

Court held that §4 25.16 applies to the cause of action asserted by plaintiffs simply cannot

be drawn. It would ignore the power of the state's highest court to grant certiorari and to

define the issues for review. (Cal. Const., art. VI, § 12; Cal. Rules of Court, Rule 8.516)

All that can be said is that the Court did not reach the issue. The vacated ruling

concerning the applicability of §425.17 does not stand as the law of the case for the

simple reason that the Court did not review that issue. Consequently, the question

remains open of whether §425.l7 prevents application of §425.l6's provision for an

award of fees against plaintiffs.

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C. PLAINTIFFS DO NOT ASSAIL THE GENERAL STATUTORY PROTECTIONS BESTOWED UPON GOVERNMENT BY §425.16

Finally, it should be observed that plaintiffs' argument with respect to §425.l7 is

not that "government defendants in general and the City in particular possess no

protections encompassed within prong one of the anti-SLAPP statute". (ROB 27)

Plaintiffs do not challenge the idea that §425 .16 provides protection to government

agents and entities. They acknowledge that protection is provided to government

defendants for conduct itemized by §425.l6. But that does not mean the conduct

specified in the anti-SLAPP statute is endowed with constitutional dimension. It does not

mean that government has a constitutionally protected right to speak - only that such

conduct is protected by the provisions of §425.l6. And, as far as what plaintiffs are

arguing, it is merely that §425.l7 prevents application of the fee-shifting provisions of

the anti-SLAPP statute to public interest lawsuits, including the one here.

v. THE BURDENING OF PETITION RIGHTS SUBJECT TO THE NOERRPENNINGTON DOCTRINE IS NOT RESTRICTED TO IMPOSITION OF CIVIL OR CRIMINAL LIABILITY

The protection of petitioning activity provided by the First Amendment is not

restricted to immunity from laws imposing "liability," as suggested by Defendants. (ROB

29-30) Although the Noerr-Pennington doctrine was developed in the context of

prosecutions seeking to impose liability for petitioning, the First Amendment's language

16

is plainly not so narrowly drawn. It applies to all laws abridging that right." Thus, it

includes governmental action other than efforts to impose liability. Accordingly, even in

impositions upon petitioning activity that do not involve liability, "any impairment of the

right to petition, including any penalty exacted after the fact, must be narrowly drawn."

Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43,57. Thus, the imposition ofa

fee to address a municipal council or to submit a letter expressing a citizen's concerns

over a proposed project would be subject to scrutiny under Noerr-Pennington,5 just as the

burden of a poll tax would fail under similar scrutiny. 6 The scope of protection for

petitioning a government agency concerning a subject of public concern was recognized

as going beyond sheltering petitioners from antitrust liability under the Sherman Act in

Empress LLC v. City and County of San Francisco (9th Cir. 2005) 419 F.3d 1052:

"The Supreme Court has described the right to petition as 'among the most precious of the liberties safeguarded by the Bill of Rights' and 'intimately connected, both in origin and in purpose, with other First Amendment rights of free speech and free press.'" White v. Lee, 227 F.3d 1214, 1231 (9th Cir. 2000) (quoting United Mine Workers of America, Dist. 12 v. Illinois State Bar Ass'n, 389 U.S. 217, 222, 19 L. Ed. 2d 426,88 S. Ct. 353 (1967)). Under the NoerrPennington doctrine, those who petition all departments of the government for

4 The First Amendment is not framed in terms ofliability at all. It speaks in terms of governmental action that inhibits the exercise of the right. It provides that "Congress shall make no law ... abridging ... the right of the people peaceably to assemble, and to petition the government for a redress of grievances." U.S. Const., Amend. I. 5 The problem with burdening a right is that it is in effect no different than forbidding the exercise of the right altogether. In Perry v. Sinderman (1972) 408 U.S. 593, the United States Supreme Court recognized the problem with a refusal to rehire someone because of their exercise of first amendment rights: "For if the government could deny a benefit to a person because of his constitutionally protected speech or associations, his exercise of those freedoms would in effect be penalized and inhibited. This would allow the government to 'produce a result which [it] could not command directly.' Speiser v. Randall, 357 U. S. 513, 357 U. S. 526. Such interference with constitutional rights is impermissible." ld. at 597. Just as the government may not forbid petitioning activity, it likewise may not burden it.

6 The Supreme Court in Harper v. Virginia Bd. of Elections (1966) 383 U.S. 663, held, "wealth or fee paying has, in our view, no relation to voting qualifications; the right to vote is too precious, too fundamental to be so burdened or conditioned." Id. at 670.

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redress are generally immune from liability. Manistee Town Ctr. v. City of Glendale. 227 F.3d 1090, 1092 (9th Cir. 2000). Although the Noerr-Pennington doctrine originally immunized individuals and entities from antitrust liability, Noerr-Pennington immunity now applies to claims under § 1983 that are based on the petitioning of public authorities. Id. "Noerr-Pennington is a label for a form of First Amendment protection; to say that one does not have Noerr-Pennington immunity is to conclude that one's petitioning activity is unprotected by the First Amendment." White, 227 F.3 d at 1231 (footnote omitted).

Id.

Defendants point to cases, including one by this court, involving awards of fees to

government entities against private persons.i Evidently the argument is one of analogy -

if courts have upheld such awards in other situations, this court should, ipso facto,

uphold the one here. Overlooking for a moment the fact that the cases cited might

7 That this is hardly a revelation is evinced by defendants' relegation of this information to a footnote. (ROB 30, n.9) The dissent in Bozek makes precisely this point to no avail - the dissent overlooks the significant difference between general and judicial petitions. In addition, the dissent does not analyze why the cases it cites impose a higher threshold for fee awards in favor of government agents. The dissent even includes two of the cases referenced by defendants:

I must confess that I fmd it difficult to understand how the majority can conclude that it would be unconstitutional to permit the city to recover such attorney fees in this setting, particularly in light of the long line of United States Supreme Court decisions ... Numerous federal cases have indicated that under this "bad faith" doctrine government defendants may recover attorney fees against private parties who have maliciously pursued civil actions against them. (See, e.g., Gage v. Wexler (N.D.CaJ. 1979) 82 F.R.D. 717, 719-720; Abneyv. Ward(S.D.N.Y.1977)440F.Supp. 1129, 1131-1 132; Blackburn v. City of Columbus, Ohio (S.D. Ohio 1973) 60 F.R.D. 197, 198-199; cf. Acevedo v. Immigration and Naturalization Service (2d Cir. 1976) 538 F.2d 918, 920-921.) The majority's constitutional conclusion flies in the face of these authorities. [FN4]

Footnote four elaborates on the attorney fee award question:

4. In fact, the relevant decisions demonstrate that even in the absence of bad faith, there is nothing unconstitutional in requiring a losing plaintiff to pay attorney fees to a prevailing government defendant under a generally applicable attorney fee statute. (See, e.g., Gage v. Wexler, supra, 82 F.R.D. 717, 718-719 (applying standard enunciated in Christiansburg Garment Co. v. EEOC (1978) 434 U.S. 412,421-422 [54 L.Ed.2d 648, 656-657, 98 S.Ct. 694]); Anthony v. Marion County General Hospital (5th Cir. 1980) 617 F.2d 1164, 1169-1170; Lujan v. State ofN.M. Health & Soc. Servo (10th Cir. 1980) 624 F.2d 968, 970; Lopez v. Aransas Cty. Independent Sch. Dist, (5th Cir. 1978) 570 F.2d 541,545.)

Bozek (Kaus, J., dissenting). None of the cases cited addresses the petition rights issue.

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actually represent situations involving government qua private citizen (i.e., in contract

disputes and other issues involving essentially disputes of an entirely private character),

there is a reason defendants do not press the argument more forcefully. And that reason

has nothing to do with the fact - as defendants candidly concede - that none of the cases

address the petition rights question. The cases are counter to defendants' position that a

fee shifting provision should be treated identically in a public policy lawsuit as in any

other. The reason for this has to do with a well established judicial policy of holding

such awards in situations promoting public policy objectives to a much higher threshold

in spite of straightforward, uninhibited fee-shifting language in a statute.

True, there are cases where fees are awarded to government entities on the basis of

a statutory fee-shifting provision. The leading case is Christiansburg Garment Co. v.

E.E.O.C. (1978) 434 U.S. 412. Christiansburg held that a fee award should not be

allowed in favor ofa prevailing defendant in action to enforce Title VII of the Civil

Rights Act of 1964 without a showing that the action was "frivolous, unreasonable or

groundless." Id. at 422, In other words, the court looked to the objective aspect of what

composes the Noerr-Pennington exception. Significantly, the Court did not consider the

question of petition rights at all. It was looking at congressional intent in allowing fees to

defendants under the Civil Rights Act?8 The Court relied upon Congress's primary

objective in encouraging such lawsuits as a matter of public policy and promoting private

8 Oddly enough Christiansburg is mentioned in a significant Noerr-Pennington case. But not by way of an example of fee awards burdening of petition rights. Instead, it is simply referenced as a cautionary statement concerning a judge's tendency to engage in post hoc reasoning that because a party lost their case, it must have had no merit from the get-go. Professional Real Estate Investors Inc. v. Columbia Pictures (l993) 508 U.S. 49, fn. 5.

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prosecution of those violating the law. It regarded the congressional objective in making

the provision mutual as one merely designed to discourage suits that were frivolous,

groundless or unreasonable. Id. at 420-422. The United States Supreme Court would

later apply the same rule to other federal attorney's fee provisions. Hughes v. Rowe

(1980) 449 U.S. 5.

The rule has subsequently been applied in numerous lower court cases." And,

although cases after Christiansburg have referred to the "chilling effect" of such fee

awards upon public policy lawsuits'" as a basis for the higher threshold, mention of the

petition rights question and the Noerr-Pennington standard are not to be found - at least

not by plaintiffs' counsel. This rule that a higher threshold exists for awards favoring

defendants has been the rule accepted in California as well to achieve "the avoidance of

undue chilling effect on the assertion oflitigants' rights." Benson v. Greitzer (1990) 220

Cal.App.3d 11, 15. See also, Bach v. County of Butte (1989) 215 Cal.App.3d 294,310

(observing the fee statute "must be read so as to avoid a serious chilling effect on the

assertion of litigants' rights on appeal.").

9 See, e.g., Citizens for a Better Environment v. The Steel Co. (7th Cir. 2000) 230 F.3d 923;

10 E.g., Rounseville v. Zahl (2nd Cir. 1994) I3 F.3d 625; Stenseth v. Greater Fort Worth (5th Cir. 1982) 673 F.2d 842, 848-849: "courts are reluctant to award attorney's fees against plaintiffs undertaking to enforce their constitutional rights."; United States Steel v. United States (3d Cir. 1975) 519 F.2d 359, 364-365: "A routine allowance of attorney fees to successful defendants in discrimination suits might effectively discourage suits in all but the clearest cases, and inhibit earnest advocacy on undecided issues."; Montgomery v. Yellow Freight System, Inc. (10th Cir. 1982) 671 F.2d 412, 413-414: "In order to penalize the plaintiff with attorneys' fees, we must be persuaded that the record is devoid of any evidence of discrimination."; Gage v. Wexler (N.D. Cal. 1979) 82 F.R.D. 717, 720: "This Court is mindful of the possibly chilling effect an award of attorney's fees to a prevailing defendant may have upon other potential plaintiffs seeking to vindicate their civil rights."; Cafasso v. General Dynamics C4 Systems, Inc. (9th Cir. Mar. 24, 2011) _ F.3d _ (Case Nos. 09-16181/09-16607) "We take seriously Cafasso's concern that awarding fees against a qui tam claimant may chill prospective relators from exposing frauds on the government. This consideration generally counsels against a fee award, and courts should not reject such arguments out of hand."

The lack of any principled basis to uniformly apply the rule to prevent awards in favor of defendants in situations not involving the public policy considerations identified in Christiansburg and Hughes has troubled some courts in cases involving private litigants. See, Marbled Murrelet v. Babbitt (9th Cir. 1999) 182 F.3d 1091 (discussing whether the standard should change under different statutory schemes). It is probably more than safe to surmise that the reason some courts have balked at applying the higher standard to awarding fees to private defendants is that the logic fails when a general petition is not conjoined with a judicial petition, or at least when a private attorney general action prosecuted in the public interest is not involved. Carpenters Southern Cal. Admin. Corp. v. Russell (9th Cir. 1984) 726 F.2d 1410, 1416 (declining to apply Christiansburg to award of fees to private employer for defense against action to enforce section 515 of ERISA, 29 U.S.C. Sec. 1145); Iron Workers Local No. 272 v. Bowen (5th Cir. 1980) 624 F.2d 1255, 1264-66.

The difficulties with an across-the-board application of Christiansburg'S standard are not just from the defendant's perspective. The objective standard bears resemblance to that relating to sanctions under the 1983 revision of Rule 11, ignoring the "improper purpose" clause. Dissatisfaction with a more objective approach to fee awards resulted in more revisions to Rule 11 in 1993, and the approach did not escape notice and outcry in view of the conflict with the "sham" exception to the Noerr-Pennington doctrine. Andrews, Carol, "Motive Restrictions on Court Access: A First Amendment Challenge" (2000) 61 Ohio St.L.1. 665; "Myers, Gary, "Antitrust and First Amendment Implications

of Professional Real Estate Investors" (1994) 5 I Wash. & Lee L.Rev. I 199; "Note: A Petition Clause Analysis of Suits Against the Government: Implications for Rule 11 Sanctions" (1993) 106 Harv.L.Rev. Ill; "Comment: Rule 11 and the Policing of Access to the Courts after Professional Real Estate Investors" (1994) 61 Chi.L.Rev. 1037; Solovny, et. aI, "Sanctions Under Rule 11: A Cross-Circuit Comparison" (2004) 37 Loyola L.Rev. 727. A more consistent approach to the problem would be to subject civil rights, qui tam and other public interest actions against private entities to the Christiansburg objective lack of merit standard. Lawsuits challenging government misconduct - involving general petitioning - would fall under the Noerr-Pennington requirement that a "sham" must be established - requiring both the subjective and the objective showing - to allow an award of fees to a prevailing government defendant.

In any event, the reason defendants do not press the approach set forth in Christiansburg and its progeny is that even under its single, objective prong approach, plaintiffs' lawsuit was not frivolous, groundless or unreasonable. Defendants do not argue that it was. Under the more protective "sham" requirement of No err-Pennington the improper purpose prong is not satisfied either. So either way, and no matter how unsettled the law may be in certain respects, there is still no question that the cases involving fee awards in favor of government agents do not help defendants.

VI. THE A WARDING OF FEES AGAINST PETITIONING CITIZENS AND IN FAVOR OF GOVERNMENT AGENTS DOES NOT INVOLVE NARROWTAILORING OF THE STATUTE

In spite of all the beating about the bush, defendants are in agreement with

plaintiffs on one essential point: Schroeder v. City of Irvine (2002) 97 Cal.App.s'" 174, is the

only case addressing the facts here.(ROB 36; 39) Schroeder does not, however, reach

the same question - the burden placed upon general petition rights by imposition of a fee

award against a citizen and in favor of a government agency. Schroeder is disting-

uishable, as pointed out in Appellants' Opening Brief (AOB 42) because it involved the

concession by plaintiff's counsel that a competing First Amendment right was set against

the petition right at issue there. Schroeder at n.3; San Ramon Valley Fire Prot. Dist. v.

Contra Costa County Employees' Ret. Assn. (2004) 125 Cal.App.4th 343,356. This

essentially offset the general petition rights factor in the equation. Although defendants

rely upon Schroeder and Eguilon Enterprises LiC v. Consumer Cause, Inc. (2002) 29

Ca1.4th 53 (which was not a general petition case) as their primary authority, they are

mute with respect to why this Court should disregard this critical distinguishing aspect.

Defendants likewise do not address the feasibility of narrow drafting of the anti-

SLAPP statute - whether it could have accomplished its purpose without burdening

petition rights. This might have been achieved where the statute allowed government

agents to make a motion to strike, without imposing a requirement that petitioning

citizens pay government's fees as a condition of exercising their rights. Here again,

defendants point to Schroeder as addressing the narrow-tailoring question. (ROB 38) But

Schroeder was considering a petition right countered by a First Amendment right of

23

similar magnitude. For this reason, it evaluated the rights of the petitioners involved in

light of the case of Simpson v. Municipal Court (1971) 14 Cal.App.3d 591. (Schroeder at

196-197) Simpson involved a situation pitting rights of First Amendment picketers

against the interest of the state Legislature to ensure the quality of its deliberative process

and the right of others to avoid an oppressive atmosphere that would chill their speech.

Schroeder at 196. In light of the countervailing rights at stake, the court in Simpson, as

recounted in Schroeder, declined to enforce the picketers' "freedom of speech in

disregard of the rights of others." Id.

With regard to gauging the narrowness of the tailoring, the court in Schroeder did

not depart from this countervailing rights approach (which is inappropriate here):

Simpson upheld the law because it banned all picketers equally and without regard to the content of their message, was narrowly tailored to achieve legitimate and substantial governmental interests, and banned only a narrow type of picketing while omitting other forms of picketing from its ambit. (Simpson v. Municipal Court, supra, 14 Cal.App.3d at p. 599.) The same analysis convinces us that section 425.16, subdivision (c) is valid. The attorney fee clause applies to all unmeritorious lawsuits premised on acts taken in furtherance of the defendant's constitutional rights of petition or free speech, regardless of the point of view espoused by the plaintiff. It applies only to that narrow category of lawsuits against governmental entities that are premised on acts taken in furtherance of the defendant's rights of speech , and leaves untouched any other type oflawsuit against governmental entities.

Id. at 197 (emphasis and italics supplied). Thus. Schroeder must be limited to its

unusual facts involving the peculiar situation where a government entity was exercising a

constitutionally, rather than statutorily, protected speech right.

The Schroeder court did not analyze the narrowness of the tailoring of the statute in terms of the imposition of fees against someone petitioning government where the government agency was not exercising a First Amendment right. And it did not analyze whether allowing a fee award in favor of a government entity was essential to fulfilling §425.16's purpose. Defendants have not attempted the analysis either. There is undoubtedly a reason they have not ventured down that road - it leads to a dead end for their fee claim.

The motivation behind a private attorney general suit against a government agency stands in contrast to the personal pecuniary motivation driving litigation between private parties. More importantly for strict scrutiny and narrow-tailoring analysis, unlike actions between private individuals and entities a suit against a government impacts the fundamental right to petition government for redress of grievances. (Compare, Bernardo v. Planned Parenthood Federation of America (2004)115 Cal.App.4th 322, 367.) Accepting that the anti-SLAPP statute is within the constitutional power of government and furthers an important and substantial interest that is unrelated to suppressing First Amendment rights, the narrow-tailoring question is reached. Tily B., Inc. v. City of Newport Beach (1998) 69 Cal.App.d" I, 17. Analysis of that question follows.

As recognized by the Supreme Court in Equilon (at 59-60), the anti-SLAPP statute's objective is stated in its preamble. That objective, towards achievement of which the statute is to "be construed broadly" is "to encourage continued participation in matters of public significance" (§425.16(a». So the question for analysis is whether

awarding fees in favor of a government agency and against a citizen - who is, by

petitioning it, participating in a matter of public significance - is consistent with

§425 .16' s purpose. More specifically, the court must assess whether "the incidental

restriction on the alleged First Amendment freedoms is no greater than is essential to the

furtherance of that interest." Tily B., Inc. at 17. "These freedoms are delicate and

vulnerable, as well as supremely precious in our society. The threat of sanctions may

deter their exercise almost as potently as the actual application of sanctions. [ citations]

Because First Amendment freedoms need breathing space to survive, government may

regulate in the area only with narrow specificity." N.A.A.C.P. v. Button (1963) 371 U.S.

415,433.

The problem approached from this proper perspective is obvious - awarding fees

against someone who is petitioning government discourages citizen participation in

matters of significance to the public. It is flatly contrary to the statutory objective.

Moreover, such discouragement is entirely unnecessary to fulfilling the statute's

objective. That objective is entirely satisfied without the discouraging aspect of a fee

award against petitioning citizens. II

II Plaintiffs' position is that in light of the history of §425.16 which bears out that the Legislature did not contemplate its application to government agents, the appropriate mechanism for addressing this problem is properly one of judicial construction. An interpretation that fee awards may not be awarded against petitioning citizens and in favor of government agents would salvage the statute in all other respects.

VII. DEFENDANTS' SUGGESTION THAT THIS COURT WOULD BE ENGAGING IN JUDICIAL ACTIVISM BY PROTECTING PETITION RIGHTS AGAINST THE CHILLING EFFECT OF FEE A WARDS IN FAVOR OF GOVERNMENT AGENTS IS MISPLACED

Defendants propose that a ruling by this court that government's fees cannot be

shifted to a petitioning citizen would amount to judicial adoption of a rule in

contravention of the Legislature's policy determination to shift fees away from taxpayers.

This assertion is flawed for many reasons. First, it is far from clear that the Legislature

ever intended to burden citizens suing government with the requirements of §425.16.

While the language of the statute is certainly comprehensive of all persons and entities

including government, there is nothing to show that this inclusion was actually

contemplated. Every indication is to the contrary - only NGOs were understood as

subject to anti-SLAPP provisions. The purpose of the statute was to promote petitioning

activity, not to burden it. And the legislative history divulges nothing to demonstrate that

this possibility even crossed the Legislature'S collective mind.

More significantly, the notion that this court - by upholding protections plainly

stated in the First Amendment to our nation's Constitution - is somehow 'judicially

adopting" (ROB 40) a rule is, frankly, appalling. It is stunningly at odds with the

fundamental notion of judicial review recognized by the Founding Fathers (The

Federalist Papers No. 78) and judicially accepted by the United States Supreme Court at

least since it expressly recognized that function in Marbury v. Madison (1803) 5 U.S.

137. The basic idea of judicial review - that the courts are empowered by the supreme

law of the land, the United States Constitution - to reconcile lesser laws - congressional

enactments and (later by virtue of the 14th amendment) state laws - with the will of the

People as expressed in the Constitution, should not lightly be fobbed off as judicial

policy-making at this point in history. It is well established after two centuries that a

court is required to find a statute in conflict with the constitution to be void absent some

interpretation that would avoid constitutional infirmity.

The "theory" (ROB 40) defendants are inveighing against this court "judicially

adopting," is the recognition that the right to petition government for redress of

grievances limits the Legislature'S ability to impose a fee award against someone

exercising that right. But this is, in actuality, a Constitutional right, not a mere homespun

legal ''theory.'' Any judicial act by this court upholding that right in the face of a statute

that burdens it is improperly characterized as judicial policy making. It does not involve

assessing who should properly bear the burden of litigation involving government

agencies. It is simply fulfilling the court's constitutional role in recognizing that the

Constitution does not permit a law making body to inflict a $250,000.00 burden upon a

concerned citizen who challenges a government action by means of exercising their First

Amendment right.

VIII. DEFENDANTS' ASSERTION THAT THE ONLY ISSUE LITIGATED ON APPEAL WAS THEIR ANTI-SLAPP MOTION IS WISHFUL THINKING

In response to plaintiffs' articulation of the legal requirement that one prevailing

on a motion brought pursuant to §425 .16 may only recover fees incurred for that motion

- not other aspects of the litigation - defendants assert that in the reviewing courts "the

anti-SLAPP motion was the entire suit". This was hardly the case. The key issue being

litigated on appeal was whether defendants' "express advocacy" policy comported with

the constitutional requirement recognized in Stanson v. Mott (1976) 17 Ca1.3d 217. From

plaintiffs' perspective, the point of the lawsuit and the appeal was to get a determination

that the City's policy that it could campaign on electoral issues so long as it avoided

express advocacy was unlawful, contrary to Stanson, a perversion of campaign finance

regulatory standards, a threat to our state's democratic processes, and a misuse of public

funds.

From defendants' perspective, perhaps this point was entirely subsumed or

engulfed by the SLAPP question. Nevertheless, the Supreme Court separately addressed

that question, agreed with plaintiffs, overruled the trial court and this Court of Appeal to

vindicate Stanson and deride the City's "express advocacy" policy before determining

that on the facts it was considering this would not produce a different outcome under

§425.16. The motion for plaintiffs' fees was an aspect of the litigation that was separate

from the anti-SLAPP motion. Defendants, therefore, may not recover for fees incurred

opposing that motion.

IX. DEFENDANTS' LEGAL ANALYSIS REGARDING THEIR ENTITLEMENT TO COURIER FEES AND OTHER COST ITEMS IS FLAWED

Defendants correctly observe that appellate costs under the California Rules of Court,

Rule 8.278, may "if reasonable" include "postage" - an item which they analogize to the

messenger fees they incorrectly sought under the rubric of "filing fees" and "service of process."

29

The problem is that defendants presume from this language that all postage expenses should be granted and, therefore, all courier expenses should be awarded. This ignores the controlling language of §1033.5, which Rule 8.278 implements. Obviously, this Rule of Court cannot provide for cost awards that are disallowed by the Legislature or exceed what the Legislature has deemed proper.

The proper source of any award for the cost items in question here is § I 033.5. That section sets up costs that are not allowed and costs that are mandatory and discretionary. Discretionary costs remain subject to the requirement that they be "be reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation." (§1033.5(c)(2» Nor is this standard established by the state Legislature for cost awards altered by § 1 034. That section, providing that the Judicial Council is to establish rules regarding allowable costs on appeal, should not be construed as a wholesale delegation of legislative authority relating to costs to the judicial branch. Alyeska Pipeline Service Company v. Wilderness Society (1975) 421 U.S. 240,249. That authority is plainly meant to be consistent with the provisions for costs allowed by the Legislature under §1033.5. To construe it as a plenary grant of legislative power to another branch of state government would blatantly violate the nondelegation doctrine. Cal. Const. art. III, §3; Marine Forests Society v. California Coastal Com. (2005)36 Ca1.4th 1,24-25; Lemos, "The Other Delegate: Judicially Administered Statutes and the Nondelegation Doctrine" (2008) 81 S.Cal.L.Rev.405.

Postage is specifically not allowed, "except when expressly authorized by law". (§1033.5(b)(3» Rule 8.278, therefore, only allows awards of postage where a statute specifically does authorize an award of that cost item. The Rule is not itself, as

30

defendants suggest, an express statutory authorization. The language defendants rely

upon only has meaning by virtue of statutory provisions that do allow postage as a cost

item in spite of §1033.5(b)(3). There is no such applicable law here. Consequently,

defendants' analogy fails because there was no express statutory authorization for their

courier/postage fees.

The courier expenses are at worst, like faxes, not allowed and, at best a disfavored

discretionary item. As construed by the court in Ladas v. California State Automobile

Assn. (1993) 19 CaI.App.4th 761,775-776, and the other cases previously cited by

plaintiffs (AOB 49-51), an award of these cost items requires substantial evidence that

they were reasonably necessary to the conduct of the litigation rather than merely

convenient for the party. See also, Foothill-De Anza Community College Dist. v.

Emerich (2007) 158 Cal.App.4th 11,29-30; Gorman v. Tassajara Development Corp. (2009) 178 Cal.App.d'" 44, 75. There was no evidence supporting such a finding. The

trial court erred in allowing the courier expenses.

x. THIS COURT SHOULD ADHERE TO THE ESTABLISHED RULE THAT FOR PURPOSES OF A PRIVATE ATTORNEY GENERAL FEE AWARD, SUCCESS IS EVALUATED IN TERMS OF THE IMPACT OF THE LITIGATION RATHER THAN LEGALISTIC CONCEPTIONS

Defendants acknowledge that the right involved in this litigation - that

government agents must remain neutral and not intrude into the political process during

elections, as stated in Stanson, is important. But they argue that plaintiffs did not succeed

in vindicating it. (ROB 52)

31

On the other hand, plaintiffs insist they succeeded in protecting the Stanson

standard from being undermined by an approach that is less protective of the electoral

process, thereby vindicating voting rights. The difference between defendants' and

plaintiffs' respective positions can be isolated in the fact that what plaintiffs succeeded in

vindicating was an abstract principle - that the electoral process was not adequately

protected by an "express advocacy" standard.

Undeniably, plaintiffs obtained a ruling from the Supreme Court that recognized

that public agencies cannot do what defendants claimed they should be able to do. From

that point, the parties part company. Defendants focus on whether that achievement had

an actual impact on the outcome of the anti-SLAPP motion. It did not - plaintiffs lost on

the ruling on that motion. Plaintiffs, meanwhile, focus on their litigation's

accomplishments beyond the narrow aspect of the motion.

Plaintiffs, in the following exegesis of the legal authorities, will demonstrate that

defendants' narrow conception of success is incorrect and that this honorable court

should not depart from an approach that comprehends the impact of litigation as

encompassing considerations beyond the mere outcome of a motion.

A. PLAINTIFFS SUCCEEDED IN OBTAINING A DECLARATION OF THE OBLIGATIONS OF DEFENDANT WITH RESPECT TO EXPENDITURES OF PUBLIC FUNDS ON ELECTION MATTERS

Defendants complain that plaintiffs did not seek a clarification of Stanson's

enduring vitality in the content of their complaint. (ROB 57) This argument is obviously

32

strained. Legal citations and argument simply have no place in the body of a complaint. §425.10(a)(l); Witkin, Cal.Proc. (Pleading, s" ed.) §378, §384). What matters is that plaintiffs' objective in their lawsuit and through their appellate challenges was to achieve a determination as to the validity of the city's policies with regard to the law. The appropriate place for citation to Stanson is legal argument - briefs supporting motions. And, indeed, there it is - found in plaintiffs' October 7,2001, points and authorities supporting injunctive relief ( CT I pp. 399-406) - filed simultaneously with their lawsuit. There should be no serious question that the primary point of plaintiffs , lawsuit was to vindicate the Supreme Court's decision in Stanson. Contrary to defendants' implication, plaintiffs did not need to specify the precise legal analysis of their declaratory relief request before they even knew what the City's precise policy was - it was enough that they sought by their lawsuit and litigation to ascertain via declaratory relief the proper rights and duties of the parties.

Defendants would have this court misconceive the function of declaratory relief.

The "actual controversy" required for such relief does not depend upon whether or not damages are available. It includes disputes between parties over the construction of statutory language as well as where they "dispute whether a public entity has engaged in conduct or established policies in violation of an applicable law." 26 CaI.Jur.3d(Rev.) (Decl. Relief) § 13. The purpose of obtaining a judicial declaration of rights in advance of an anticipated breach, tort or other wrongful act. is to permit parties to shape their

conduct so as to avoid a breach:

33

There is unanimity of authority to the effect that the declaratory procedure operates prospectively, and not merely for the redress of past wrongs. It serves to set controversies at rest before they lead to repudiation of obligations, invasion of rights or commission of wrongs; in short, the remedy is to be used in the interests of preventive justice, to declare rights rather than execute them. (See 22 Am.Jur.2d, Declaratory Judgments, §§ 1,6; 15 Cal.Jur.2d, Declaratory Relief, § 5; Hannula v. Hacienda Homes, 34 Ca1.2d 442,448 [211 P.2d 302, 19 A.L.R.2d 1268]; Borchard, Declaratory Judgments (2d ed. 1941), pp. 499-560.)

Travers v. Louden (1967) 254 Cal.App.2d 926,931.

A court has the discretion to not grant declaratory relief where it would not be

necessary or warranted under the circumstances. Code of Civil Procedure Section 1061.

Indeed, that was precisely the case here. Having resolved the rights of the parties with

respect to the City's use of public funds in relation to elections, it was entirely

unnecessary for the Supreme Court to award declaratory relief or remand for the trial

court to do so. This would have been absolutely redundant since the high Court had

already clarified the law, vindicated Stanson and declared the "express advocacy"

approach wrong. The public benefit had been bestowed without any need for a

declaration of rights.

Defendants argued before the Supreme Court that government election speech

should be regulated identically to constitutionally protected private speech under the

standard laid down in Buckley v. Val1eo (1976) 424 U.S. 1. And they complained at

length that Stanson's standard was "vague" and that they were unable to figure out what

their obligations were under the law without the clarity of an "express advocacy"

standard. (Respondents Supreme Court Answer Brief, pp. 45-55) Following the

34

Supreme Court's decision rejecting the "express advocacy" standard and clarifying the obligations of public entities under Stanson, the fog was lifted. Defendants announced that clarity was restored - even though they didn't get what they wanted, the Supreme Court had drawn them a roadmap. (CT 443)

Now, however, defendants contend that this litigation resolved nothing and motivated no change in behavior. (ROB 53) But matters have progressed too far for defendants - who so vigorously defended their "express advocacy" policy throughout this litigation - to now say that the case had nothing to do with determining whether their approach was wrong.

Plaintiffs brought their action to preclude defendants from using public funds to engage in election advocacy. They sought to accomplish this by identifying defendants' approach and having it declared unlawful and making sure that it did not happen in the future. They had good reason to believe that defendants were following and would continue to make expenditures that did not comport with Stanson. Once it was confirmed that the City's policy was that it was only limited in such expenditures when it employed words of "express advocacy" (and certainly by the time the trial court upheld that policy and unquestionably by the time this Court ratified that policy), plaintiffs' objective in pursuing their litigation was to prevent future expenditures in that vein. Nothing defendants said or did gave plaintiffs any cause to believe that defendants would not continue to follow that approach to election expenditures.

35

Absent plaintiffs' litigation - in particular their appellate challenges - it could

virtually be assured that defendants would employ that policy in the future. As the court

in Common Cause v. Stirling (1983) 147 Cal.App.3d 518, recognized under similar

circumstance, plaintiffs' litigation in clarifying the law created a public benefit which

entitles them to an award of their fees. Id. at 524.

B. AN A WARD OF FEES TO PLAINTIFFS IS CONSISTENT WITH THE OBJECTIVES OF §1021.5

Section 1021.5' s unmistakable direction that courts are to consider factors outside

the isolated bipolar framework of the particular litigation at hand flows realistically from

the very nature of the litigation the Legislature was seeking to promote. Private attorney

general suits serve a laudable public purpose. Graham v. DaimlerChrysler Corp. (2004)

43 Ca1.4th 553,565. The objectives of public interest suits are to achieve significant

social change that extends beyond the bounds of the resolution to the dispute as framed

between the discrete parties to those lawsuits. (Sarat, Austin & Schein gold, Stuart,

"Cause Lawyering" (Oxford 1998) p. 4; Horowitz, Donald, "The Courts and Social

Policy" (Brookings Inst. 1977) pp. 284-287)

C. DEFENDANTS' PROPOSED MODIFICATION OF THE "SUCCESS" REQUIREMENT IS INCONSISTENT WITH WELL-REASONED AND ESTABLISHED LA W AND SHOULD BE REJECTED

Defendants seek to woo this court away from assessing the impact of the litigation

to a new approach. They would have the court limit fee awards to situations where an

assessment reveals that the party seeking fees has actually achieved an adjudication

36

requiring the change sought to be effected in the complaint. (ROB 58) Initially, it

should be observed that this approach fails to account for the situation where a defendant

seeks fees under section 1021.5. Such awards are appropriate where a party defends an

existing right from erosion and is entitled to fees for vindicating the right without

achieving any affirmative relief. (e.g. County of San Luis Obispo v. Abalone Alliance

(1986) 178 CaLApp.3d 848; City of Fresno v. Press Communications, Inc. (1994) 31 Cal.App.4th 32, 43-44).

Defendants' proposed modification of the impact rule is remarkably akin to the

argument that the United States Supreme Court's limitation upon catalyst fee recovery

under the federal Fair Housing Amendments Act, 42 U. S. C. § 3613(c)(2) (See,

Buckhannon Bd. & Care Home v. West Virginia Dept. of Health & Human Resources

(2001) 532 U.S. 598, requiring that the catalyst must be judicially sanctioned), should

apply to fee awards under California's §1021.5. But that analogy has been soundly

rejected by the California Supreme Court in Graham v. Daimlerchrysler Corp. (2004) 34

C.4th 553. The Court in Graham saw no problem with gauging "success" by looking to

achievements outside of the litigation. 12

12 Adherence to the federal approach involving gauging success in terms of the plaintiffs legalistic achievement in the case at hand has resulted in some awkwardness. Courts have struggled with the anomaly of awarding disproportionately large fee awards in situations where a legally prevailing party achieved insignificant success as gauged by the broader impact of the litigation versus awarding insignificant fees where the plaintiff recovered nominal damages but vindicated what would commonly be understood as an important right. Wilcox v. City of Reno (9th Cir. 1994) 42 F.3d 550; Hamilton v. Lokuta (E.D.Mich. 1994) 871 F.Supp. 314; Briggs v. Marshall (S.D.Ind. 1995) 881 F.Supp. 414. Focusing upon the amount of individual damages sought or awarded as the gauge of success, rather than the broader impact of the litigation, skews analysis away from considerations ofa lawsuit's social benefits. Whether individual compensatory damages are large or small, the focus detracts from the practical benefits of the litigation in deterring civil rights abuses. If the amount awarded is nominal, this award does not reflect the public benefit achieved. If compensation is large it may indicate either that the plaintiff suffered significant personal damages as a result of the violation of the important right being vindicated by the action. Or it

37

The Court's analysis is especially appropriate with respect to defendants' proposed

modification of the impact approach. The Court in Graham emphasized that the

adjudicatory outcome was not the focal concern of the evaluation:

We continue to conclude that the catalyst theory, in concept, is sound. The principle upon which the theory is based=that we look to the "impact of the action, not its manner of resolution" (Folsom, supra, 32 Ca1.3d at p. 685)--is fully c-onsistent with the purpose-of seetion 1021.S: to financially rewardattomeys who successfully prosecute cases in the public interest, and thereby" 'prevent worthy claimants from being silenced or stifled because of a lack of legal resources.' " (Folsom, supra, 32 Ca1.3d at p. 683.) We therefore reaffirm our endorsement of the catalyst theory.

Id, at 568. This "impact" approach avoids the subjectivity entailed in an approach

assessing the prospective desirability of a lawsuit, rather than its effects. See, "Note:

Awards of Attorneys' Fees to Unsuccessful Environmental Litigants" (1983) 96

Harv.L.Rev.677. And it avoids the problem with overlooking the public interest by

focusing narrowly upon the adjudicatory outcome of the case at hand.

Especially significant, is the Court's determination in distancing this evaluation

from a traditional legalistic understanding of who "won" or "lost." The assessment of

"success" is clearly to be severed from the question of whether a party prevailed in

obtaining an adjudication awarding relief. "'Our prior cases uniformly explain that an

attorney fee award may be justified even when plaintiffs legal action does not result in a

may indicate that the plaintiffs This approach also creates an ethical quandary for plaintiffs counsel conflicted between seeking a substantial award of damages (indicating the lawsuit was instituted purely for plaintiff's personal economic gain) versus vindicating a purely abstract right (yielding a public benefit for which fees may be awarded).

38

favorable final judgment. '" Graham at 565. In this regard, the Court specifically rejected

the legalistic approach= of Buckhannon, where the United States Supreme Court looked

to Black's Law Dictionary to frame "success" in the legal profession's understanding of

the term ("a legal term of art" Buckhannon at 603) - specifically as one "in whose favor a

judgment is rendered." (Id.) The Graham Court's retort was: "[W]e are aware of no

judicial construction or legislative usage in California that limits the terms 'prevailing

party' or 'successful party' to the meaning found in the most recent edition of Black's Law

Dictionary to the exclusion of other meanings." Id. at 570. The Court instead accepted

the meaning of the term "success" to be what is ordinarily understood - a party that

achieves its objective. Id. at 571. In a nutshell, defendants' argument that the impact

approach should be modified to require an adjudicatory award of relief has already been

rejected by our state Supreme Court.

D. THIS COURT SHOULD REJECT DEFENDANTS' REQUEST THAT IT NOT FOLLOW THE RULE RECOGNIZED IN NUMEROUS CASES CONCERNING THE MEANING OF "SUCCESS"

In other respects as well, the approach pressed by defendants fails to comport with

the objectives of section 1021.5 as illuminated by that statute's provisions and by the

ponderous weight of judicial analysis construing that section's objectives. Defendants

attack the analysis of the decisions in Schmier v. Supreme Court (2002) 96 Cal.App.d"

13 The Court accepted the common understanding and rejected the legalistic interpretation of "success," stating: "[I]t is difficult to fathom why a plaintiff cannot be considered a prevailing or successful party when it achieves its litigation objectives by means of defendant's 'voluntary' change in conduct in response to the litigation." Id. at 572.

39

873, and Leiserson v. City of San Diego (1988) 202 CaI.App.3d 725, as unsound. (ROB 59) Those cases looked outside the traditional litigation test of success as gauged by the adjudication between the individual parties and considered the broader social implications of a party's accomplishments in litigating a case. Defendants suggest that the impact- based evaluation of success that involves pragmatically evaluating broad social considerations that was accepted by those courts (among many others) should be rejected by this court as "incorrect" and that this court should adopt a standard of success that looks instead to "the ordinary tests for success" (i.e., the legal adjudication of entitlement to relief). (ROB 60)

Defendants concede that "a number of cases" find that "success" is achieved by the appellate vindication of an important right or the significant benefit conferred by an appellate ruling. (ROB 57-58) In this regard, they cite as an exemplar of this analysis, Environmental Protection Information Center v. California Department of Forestry (2010) 190 Cal.AppAth 217, 233, which speaks in terms of the "conceptual," "doctrinal" and "intangible" nature of such success. That case actually involved a court evaluating the impact of a Supreme Court decision concerning a protracted dispute over logging of timberland with respect to §1021.5's significant benefit factor. Success was not disputed.

Rejecting an attempt to have it muddle the evaluation by balancing the relative benefits bestowed by the opposing litigants, the court recognized that weighing the relative success of each party was not a part of the process - the relevant question was simply whether the party seeking fees successfully "conferred a significant benefit on the

40

general public or a large class of persons." Id. at 232. The court found that a significant benefit had resulted from the litigation and remanded for the trial court to address the issue of necessity. In spite of the clear import of the rule recognized in Environmental Protection that intangible factors denote success, defendants cite a number of other cases in support of adoption of their proposed new test which departs from the impact approach

of Environmental Protedion.· The-problem-is-that-noneof-these cases relied upon by defendants provide support for a departure from the accepted impact analysis.

Initially, it should be observed that the court in Leiserson did not, as defendants suggest, deny attorney fees to the plaintiff who challenged police procedures in that case based upon the traditional legalistic understanding of success. The court went out of its way to reject application of such a procrustean standard to section 1021.5 determinations. It is this broad, pragmatic understanding of "success" that defendants object to here. It is, however, the standard accepted by the statute and the overwhelming judicial authority considering the question. The actual reason the court held Leiserson was not entitled to fees comported entirely with the impact approach to evaluating a party's success. First, the court recognized that Leiserson's suit was brought entirely for personal objectives:

"Leiserson confined his tort action prayer to civil damages for himself, never requesting a declaration of the access rights of the press at disaster sites ... his primary intent for pursuing the litigation was to advance his own personal economic interest." Id. at 738. Thus, even though his suit may have fortuitously and incidentally resulted in an important change, Leiserson failed to satisfy the requirement that the litigation benefit the general

41

public or a large class of persons. Second, he failed to establish success as considered through the lens of the impact analysis: "[H]e has not shown a causal nexus between his lawsuit and the voluntary action undertaken by the San Diego Police Department in revising its manual two years after he filed his lawsuit." Id. at 736.

What is significant here is the Leiserson court's treatment of the suggestion that it should resolve the case on the basis of the narrow, traditional legal indicia of "success." In rejecting a formulation of "success" as determined by which party is adjudicated the "loser" as "misplaced" (ld. at 736), the court relied upon the Supreme Court's statement of the rule in Folsom v. Butte County Asn. of Govemments ( 1982) 32 Ca1.3d 668, that the "inquiry requires more than a mechanical superficial glance at the 'mere appearance' of the matter", observing that "whether a party has been successful may be predicated on matters outside the merits ofthe underlying dispute. (ld. at p.685) In sum the governing factual barometer "is the impact of the action, not the manner of its resolution." Leiserson at 735-736. Although defendants characterize Leiserson's statement of the law as "incorrect" it is clear that the court in Leiserson was merely stating the very familiar articulation of the impact evaluation stated by the Supreme Court.

Defendants' attempt to have this court distance itself from the impact standard stated in Leiserson and repeated in Schmier involves their recoiling from those decisions' recognition that such an approach may properly warrant an award of fees based upon considerations outside the merits and apart from the relief granted in the suit itself. The reason for this casuistry is altogether obvious - plaintiffs here sought by their lawsuit and

42

appeals to challenge the manner in which defendants were using public funds with respect to elections and, although they were not directly adjudicated as entitled to or awarded such relief, the Supreme Court did - for all intents and purposes - favorably resolve the question and vindicate the very right plaintiffs sought to defend. Consequently, facing that judicial adumbration of how the question of "success" must be resolved in this case, defendants argue for an additional requirement that a plaintiff must obtain the relief sought in the suit by means of an actual adjudication - an actual award of that relief. The cases string-cited by defendants (without explication) for engrafting this new hurdle onto the law concerning § 1 021.5 fee awards do not support such an approach. Far from it. They actually support adherence to an impact approach.

For example, Urbaniak v. Newton (1993) 19 Cal.App.s'" 1837, involved an HIV positive patient who sued for negligent disclosure of his condition. A summary judgment motion granted in favor of the defendants was upheld on appeal with the exception of a right to privacy claim. A nonsuit was granted at trial. On the basis of the appellate success, attorneys fees were sought under § 1 021.5. On appeal of the trial court's award of fees, the court of appeal found that there was no benefit conferred upon a large class of persons and that "success" had not been established. Citing Leiserson, the court recognized "that to be a "successful party" a plaintiff need not achieve a favorable final judgment." Id. at 1842. Impact was enough. The court imposed no requirement that the plaintiff additionally obtain an adjudication and award of the specific

43

relief. Instead, the fact that Urbaniak had sought only personal remuneration rather than

altruistic benefits was critical:

Like the plaintiff in Leiserson, plaintiff herein confined his tort action to a prayer for civil damages. He did not request a declaration of privacy rights of other similarly situated people, nor did he seek injunctive relief to protect such rights. "By tactical design, the litigation was not intended to promote the rights of [ others] by obtaining a judicial declaration of those rights .... [I]n light of the narrow focus of [plaintiff s] tort pleadings, it is clear our published opinion was simply fortuitous." [citing Leiserson] (202 Cal.App.3d at p.738.)

Id. at 1842.

The contrast to the present case is plain. Plaintiffs here did seek a declaration of

rights with respect to the lawfulness of the City's expenditures. The lawsuit was not

brought for personal gain, but purely in the public interest and to promote the rights of

others. The Supreme Court's determination that the "express advocacy" standard does

not comport with the law as stated in Stanson, was far from fortuitous or incidental - it

was the primary focus of plaintiffs' litigation efforts. The only other focus - obtaining

reimbursement to the city treasury of funds spent prior to one election - while certainly

the point of the legal dispute at hand, was purely secondary in terms of the overriding

social objective sought to be achieved. Under an impact approach, the litigants'

immediate objectives pale in significance in comparison to the broader objective of

vindicating a right and preventing a practice from depleting public treasuries throughout

the state and polluting the free and fair pre-election debate between private factions.

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Mandocino v. Maggard (1989) 210 Cal.App.3d 1413, does not support defendants'

position that the law relating to private attorney general fee awards requires more than the

vindication of a right (specifically that the party obtain an adjudication awarding the

damages or relief sought in the complaint). The case was decided on the issue of

significant benefit rather than success. The case concerned a claim for attorney's fees

relating to litigation challenging statements in a ballot argument. In holding that no

significant benefit had been bestowed by the litigation there, the court adhered to the

impact approach:

Under the statute, "the trial court, utilizing its traditional equitable discretion ..

. must realistically assess the litigation and determine, from a practical perspective, whether or not the action served to vindicate an important right so as to justify an attorney's fee award under a private attorney general theory." (Woodland Hills Residents Assn., Inc. v. City Council, supra, 23 Ca1.3d at p. 938.) We have determined that the modifications made to Carter's ballot argument were minimal in nature and cannot be considered to have conferred a significant benefit to the public. The award of attorney's fees in the instant case constituted an abuse of discretion. (See Press v. Lucky Stores, Inc. (1983) 34 Ca1.3d 311,317 ... )

Id. at 1416.

Likewise, Los Angeles Police Protective League v. City of Los Angeles (1986)

188 Cal.App.3d 1, was not a case dealing with the issue of't'success." The trial court

denied fees to the successful plaintiff on the basis that no substantial benefit had been

conferred or right had been vindicated. The appellate court overturned the trial court as

to fees incurred in the appellate stage of the litigation. The court did, however, refer to

the significance of the "impact" of the litigation as the pertinent inquiry. Id. at 8-11.

Similarly, defendants' citation to Compton Community College etc. Teachers v.

45

Compton Community College Dist. (1985) 165 Cal.App.3d 82, seems odd. That caseinvolving a dispute over the effect of a constitutional provision limiting the ability of government agencies to use funds for one fiscal year to pay obligations for a different year upon school teacher salaries - was decided on the basis of the "significant benefit" aspect of § 1021.5, not the "success" factor. The court in Compton found "it does not appear the benefits to nonlitigants are so out of proportion to the benefits received by the membership of appellant's union as to justify an attorney fee award as a means of encouraging similar lawsuits in the public interest." Id. at 98. Accordingly, it remanded to the trial court for appropriate determinations on the fee issues. Id.

And, with respect to Ciani v. San Diego Trust & Savings Bank (1994) 25 CaLApp.4th 563, the court was addressing the necessity factor, not the question of "success." A parallel lawsuit to Ciani's was brought by the California Coastal Commission. The question was whether Ciani's lawsuit was duplicative or had advanced significant factual or legal theories adopted by the court. The purported benefit bestowed by Ciani's litigation efforts was the clarification of a statutory provision pertaining to whether or not the Commission retained appellate jurisdiction. In upholding the trial court's denial of fees, the court of appeal rejected Ciani's suggestion that substantial assistance to the result obtained in the other litigation was sufficient to warrant fees as undercutting "the requirement for 'necessity' by reducing the threshold from 'necessary activity' to mere 'helpful activity." Id. at 573. It found that the statutory clarification

46

and Ciani's involvement in subsequent proceedings were not necessary and were

duplicative of the Commission's action.

Riverwatch v. County of San Diego Department ofEnvronmental Health (2009)

175 Cal.App.4th 768, upheld a fee award challenging all three §1021.5 factors. In holding

there was no merit to the argument that fees should be reduced because of the plaintiffs

failure to succeed on numerous issues in the case, the court stated an unadorned impact

approach to "success":

Courts take a "broad, pragmatic view of what constitutes a 'successful party' " in order to effectuate the policy underlying section 1021.5. (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 565.) The party seeking attorney fees need not prevail on all its claims alleged in order to qualify for an award. (See, e.g., Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 1103; Daniels v. McKinney (1983) 146 Cal.App.3d 42,55.) The litigant is considered "successful" under section 1021.5 if the litigation "contributed substantially to remedying the conditions at which it was directed." (Planned Parenthoodv. Aakus (1993) 14 CaLApp.4th 162, 174.) The critical fact is the impact of the litigation. (Ibid.) In other words, the "successful" party under section 1021.5 is generally the "prevailing" party, that is, the party that" , "succeed[s] on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit." , [Citation.]" (Tipton-Whittingham v. City of Los Angeles (2004) 34 Cal.4th 604, 610; Maria P. v. Riles (1987) 43 Cal.3d 1281, 1292.) Prevailing counsel who qualify for an award under section 1021.5 are entitled to compensation for all hours reasonably spent. (Serrano v. Unruh (1982) 32 Ca1.3d 621,632-633.)

Id. at 782-783.

Likewise, it is unclear why defendants cited Bouvia v. County of Los Angeles

(1987) 195 Cal.App.3d 1075, which overturned a denial of fees to a patient who

succeeded in vindicating the right of patients to refuse treatment, relying upon the

proposition that "It is well established that the enforcement of existing rights, as well as

47

the creation of new rights, may serve as a basis for awarding fees under the private attorney general doctrine. [citations omitted]" Id. at 1084. If anything, this case would seem to bolster plaintiffs' claim that their successful vindication of existing Stanson principles against the City's effort to erode them warrants an award of their attorney's fees. In terms of success, the Bouvia court reiterates the impact approach, noting, "At bottom, the inquiry is an intensely pragmatic one requiring a realistic assessment of the gains which have resulted in a particular action. [ citing the Supreme Court's decisions in Folsom and Woodland Hills Residents Assn., Inc. v. City Council (1979) 23 Ca1.3d 917]." Id. at 1083.

Finally, Ebbetts Pass Forest Watch v. California Dept. of Forestry (2010) 187 Cal.App.c" 376, from which defendants quote dicta at length, explicitly endorsed the impact approach to assessing "success." Id. at 382-383. In Ebbetts, the plaintiffs sought to halt a timber harvesting plan. The Supreme Court upheld the plans on appeal. The plaintiffs sought their fees under § 1021.5, on the basis that they had succeeded in obtaining a clarification of the law pertaining to the Department's obligation to evaluate herbicide use. Once again, what was significant for the appellate court's analysis was the fact that the plaintiffs did not seek a determination of the rights and duties affected by the government agency's conduct. Id. at 380. Indeed, the court's conclusion was that where a plaintiff failed both to win the litigation and to achieve any of the lawsuit's

48

objectives they could not be considered successful for purposes of a private attorney

general fee award. 14 Id. at 387.

In reaching this conclusion, the Ebbetts court compared and contrasted two cases:

Harbor v. Deukmejian (1987) 43 Ca1.3d 1078 and Sagaser v. McCarthy (1986) 176

Cal.App.3d 288. The analysis is instructive here. In Harbor, the plaintiffs prevailed on a

writ in having the Supreme Court hold that the Governor was not empowered to exercise

a line-item veto in a 71 item bill. It also found the bill violated the single subject rule.

The Court refused relief, however, with respect to the challenged bill. Nevertheless, in

spite of plaintiffs' failure to obtain any of the relief they sought, they were entitled to

their fees. "They were the successful party because the Court's decision vindicated the

principle upon which they brought the action". Id. at 382. The court in Ebbetts found

Harbor distinguishable because while both fee claimants failed to obtain the relief sought

by means of the litigation, the petitioner in Harbor did obtain their primary objective:

"[Wjhile they lost on their basic assertion to enforce a right they argued was wrongly

vetoed, the consequence was a significant determination of the Governor's veto power

and the conclusion that the Governor could not do what he did." Id. at 383.

The court also distinguished Sagaser. That case concerned a CEQA challenge to a

prison project that was dismissed as moot after legislation exempted the project from

compliance. The legislation also prohibited the prison from using local groundwater -

14 To be precise, the court stated, "It seems anomalous that a party could bring a lawsuit and effectively lose with respect to the goal of their lawsuit and still require the public to pay for their attorney's fees." Id. at 387.

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the primary concern of plaintiffs' suit. The court of appeal, adopting an impact analysis, held that upon a showing of causal connection between the litigation and the legislation, plaintiffs would be considered successful parties and entitled to their fees. The court in Ebbetts recognized that the determination of success was not confined to the outcome of the lawsuit, contrasting the Sagaser and Harbor plaintiffs' success in obtaining the primary objective of their lawsuits with the Ebbetts plaintiff's incidental clarification of a point of law: "[Tjheir only victory was in a statement of law that when applied to the record clarified why they should lose." Id. at 388.

The court in Ebbetts compared, Concerned Citizens of La Habra v. City of La Habra (2005) 131 Cal.App.4th 329, which also concerned a CEQA challenge. The trial court rejected five of six challenges. The court found on the one surviving count that the City's negative declaration required revision to support its conclusions. On appeal of the plaintiffs' claim for attorney' fees, the court of appeal considered the inadequacy of the declaration a minor and reparable defect that was unlikely to change the project. As such, "the mere vindication of a statutory violation was not sufficient to be considered a substantial benefit by itself." Id. at 384. The court in Ebbetts considered Concerned Citizens more analogous than either Harbor or Sagaser. Id at 383.

In addition, the court compared Karuk Tribe of Northern California v. California Regional Water Quality Control Bd. (2010) 183 Cal.App-l" 330, another case relied upon by defendants for their position that "success" requires that a party obtain actual reliefby means of adjudication in their litigation. In Karuk, the petitioners sought to

50

compel a water board to apply state law to federally licensed hydroelectric dams. The court, after remanding to the board, ultimately agreed with the water board that it lacked the enforcement authority at issue. The petitioners sought their fees on the basis that they had produced a determination from the board concerning its lack of authority. The court in Ebbetts, considering the significance of Karuk, again looked beyond the mere fact that the petitioners there did not obtain the relief they sought through adjudication - what mattered was that they also failed to achieve their strategic objective outside of the lawsuit: "As a result of the litigation, the Board merely augmented the reasoning behind its decision that it was without authority to grant the petitioners' request that it enforce state law." Id. at 385. Similarly, the Ebbetts court did not consider the minor clarification of law in question there of sufficient significance to constitute success for purposes of a fee award.

Thus, it is clear from examining case after case relied upon by defendants that the impact approach is the proper rule and that applying it involves gauging success by accomplishments other than achieving relief sought by means of an award in the actual litigation at hand. As in Harbor, success may occur where the court denies relief, but vindicates the principle which was the primary object of the litigation. Similarly, as all the other cases reveal, obtaining the vindication or relief outside of the lawsuit is unquestionably also to be comprehended as "success." Plaintiffs' success in successfully defending the Stan son standard against defendants' efforts to undermine its protection of

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our democratic electoral processes was significant, benefitted taxpayers and voters

statewide and merits an award of fees.

CONCLUSION

The award of attorney's fees in favor of defendants should be reversed as not

allowed by §425.17 and as precluded by the right to petition government for redress of

gnevances.

The denial of plaintiffs' motion for their fees pursuant to § 1 021.5 should be

reversed.

Dated: April 18, 2011

Steven J. Andre

Attorney for Plaintiffs and Appellants, ANGELINA MORFIN VARGAS

and MARK DIEROLF

CERTIFICATION OF WORD COUNT

I, Steven J. Andre, hereby certify that the word count of this brief according to the

word processing software on my computer is13,374 words.

Dated: April 18, 2011

52

PROOF OF SERVICE

STATE OF CALIFORNIA, COUNTY OF MONTEREY

I am employed in the county aforesaid, I am over the age of 18 years and not a party to the within action.

My business address is 26415 Carmel Rancho Blvd., Carmel, CA 93923.

The papers listed below were served this date by mailing them as follows:

Vanessa Vallarta City Attorney

City of Salinas

200 Lincoln Ave. Salinas, CA 93901

Clerk of the Superior Court

(for delivery to the Hon. Susan Dauphine) 1200 Aguajito Rd.

Monterey, CA 93940

Joel Franklin Attorney at Law

2100 Garden Rd., Suite G Monterey, CA 93940

Clerk of the Supreme Court of California (4 copies) 350 McAllister St.

San Francisco, CA 94102

Clerk of the Court of Appeal (orig + 3 copies) 333 Santa Clara St., Suite 1060

San Jose, CA 95113

APPELLANTS' REPLY BRIEF

I declare under penalty of perjury under the laws of the United States and the State of California that the

foregoing is true and correct.

Dated: April /2_, 2011

Steven Andre

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