___________

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SUPREME COURT OF CALIFORN1A ANGELINA MORFIN VARGAS, et al., Plaintiffs, Appellants Petitioners, and Case No. S198996 (Sixth Dist. Case No. H035207; Mont Co. Super. Ct. Case No. M61489)

v.
CITY OF SALINAS, et al., Defendants and Respondents. STEVEN J. ANDRE, Intervenor and Appellant.

ANSWER TO PETITION FOR REV1EW

on Appeal from an Appealable Post-Judgment Order of the Superior Court of California, in and for the County of Monterey, Hon. Susan M. Dauphine, Judge

Affirmed by Unanimous Opinion of the Court of Appeal, Sixth Appellate District

Vanessa W. Vallarta, Esquire California State Bar Member, No. 142404 City Attorney
200 Lincoln Avenue Salinas, California 93901-2639 Telephone: (831) 758-7256
OFFICE OF THE CITY ATTORNEY CITY OF SALINAS

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

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

SUPREME COURT OF CALIFORNIA ANGELINA MORFIN VARGAS, et al., Plaintiffs, Appellants Petitioners, v. CITY OF SALINAS, et al., Defendants and Respondents. STEVEN J. ANDRE, Intervenor and Appellant. and Case No. S198996 (Sixth Dist. Case No. H035207; Mont Co. Super. Ct. Case No. M61489)

ANSWER TO PETITION FOR REVIEW

© 2012 Joel Franklin and Office of the City Attorney of the City of Salinas

TABLE OF CONTENTS

Table of Contents Table of Authorities Certificate of Compliance with Word Limitations I. II. III. INTRODUCTION QUESTIONS PRESENTED FOR REVIEW REVIEW SHOULD BE DENIED BECAUSE THE COURT OF APPEAL CORRECTLY APPLIED SETTLED LAW A. Plaintiffs' Asserted Grounds for Review Are Unsupported 1. 2. No Need to Secure Uniformity of Decision Exists No Need to Settle an Important Question of Law Exists

i

iii viii 1 2 3 3 3
5

B.

Award of Attorneys' Fees to a Successful Anti~SLAPP Public-Entity Defendant Does Not Unconstitutionally Burden Plaintiffs' Petition Rights 1. Plaintiffs Are Bound by this Court's Earlier Decision the Anti-SLAPP Statute Encompasses Government Defendants Anti-SLAPP Fee-Shifting Recovery by a Government Defendant Is Constitutional and Consistent with California Precedent

6

6

2.

9

a.

Equilon Found that Fee~ Shifting under the Anti-SLAPP Statute Did Not ImposeCivil Liability on Plaintiffs' Petitioning Fee-Shiftinq Is Not a Tax or Penalty on Petitioning Activity

9

b.

12

ANSWER TO PETITION FOR REVIEW
Vargas. et al. v. City -of Salinas. et al. Cal. S. Ct. Case No. S198996

i

TABLE OF CONTENTS (cont'd)

C.

The Court of Appeal Opinion Follows Bozek s Decision that Government May Recover Attorneys' Fees under FeeShifting Statutes The Anti-SLAPP Statute and its Fee-Shifting Clause Are Content- Neutral Restrictions Using the Least-Restrictive Means Which Still Achieve the Important Legislative Purposes of These Provisions

13

d.

15

IV.

REVIEW SHOULD BE DENIED BECAUSE' PLAINTIFFS' CLAIMS ON THE ISSUE OF THE APPLICABILITY OF SECTION 425. 17'S EXEMPTION AND EXCEPTION WAS RELEVANT AND NECESSARY TO THE MATTERS FINALLY DECIDED IN THE FIRST APPELLATE PROCESS THE LAW THAT REQUIRES PUBLIC-INTEREST LITIGANTS ACHIEVE AT LEAST SOME OF THE RELIEF SOUGHT BY THEIR COMPLAINT IN ORDER TO "SUCCEED" UNDER SECTION 1021.5 IS SETTLED AND REVIEW IS UNNECESSARY CONCLUSION

19

V.

28 40

VI.

Vargas, et al. v. City of Salinas. et al. Cal. S. Ct. Case No. S198996

ANSWER TO PETITION FOR REVIEW

ii

TABLE OF AUTHORITIES

Cases
Abood v. Detroit Bd. of Education 431 U.S. 209 (1977) 25

Agricultural Labor Relations Bd. v. Tex-Cal Land Management. Inc. (1987) 43 Ca1.3d 696 Bowman v. City of Berkeley (2005) 131 Cal.App.4th 173 Briggs v. Eden Council for Hope & Opportunity (1999) 19 Ca1.4th 1106 Buckhannon Bd. and Care Home. Inc. v. West Virginia Dept. of Health & Human Resources (2001) 532 U.S. 598 Cal. Common Cause v. Duffy (1987) 200 Cal.App.3d 730 Church of Scientology v. Wollersheim 42 Cal.App.4th 628 (1996)

24 38,39

10

38 35 11

Ciani v. San Diego Trust and Sav. Bank (1994) 25 Cal.App.4th 563 City of Long Beach v. Bozek (1982) 31 Ca1.3d 527, cert. gtd.! judgment vac. and remanded (1983) 459 U.S. 1095, clarified in 33 Ca1.3d 727,727-728, on remand Ctr. for Biological Diversity v. Cal. Fish and Game Comm'n (2011) 195 Cal.App.4th 128 Eastern RR. Presidents Freight, Inc. (1961) 365 U.S. 127 Conference v. Noerr Motor

33
passim

34

passim

Ebbetts Pass Forest Watch v. Cal. Dept. of Forestry and Fire Protection (2010) 187 Cal.App.dth 376

32,33

Vargas. et al. v. City of Salinas. et al. Cal. S. Ct. Case No. S198996

ANSWER TO PETITION FOR REVIEW

iii

TABLE OF AUTHORITIES (cont'd)

Cases (cont'd) Eldridge v. Burns (1982) 136 Cal.App.3d 907 Eller Outdoor Advertising (1979) 89 Cal.App.3d 76 Co. v. Bd. of Supervisors 23

8

Environmental Protection Information Ctr. v. Cal. Dept. of Forestry and Fire (2010) 190 'Cal.App.dth 317 Equilon Enterprises, Inc. (2002) 29 Cal. 4th 53 L.L.C. v. Consumer Cause,

33

passim
25 13 8,25 29,30,37,38 13 37

First National Bank of Boston v. Bellotti (1978) 435 U.S. 765 Follett v. McCormick (1944) 321 U.S. 573 Gerawan Farming, Inc. v. Lyons (2000) 24 Ca1.4th 468 Graham v. DaimlerChrysler 34 Cal.4th 553 Corp. (2004)

Grosjean v. American Press Co. (1936) 297 U.S. 233, 244 Harbor v. Deukmejian'(1987) 43 Cal.3d 1078 Karuk Tribe of Northern Cal. v. Cal. Reg. Water Qual. Control Bd. (2010) 183 Cal.App.4th 330 Major v. Silna (2005) 134 CaLApp.4th 1485

34,35 24

ANSWER TO PETITION FOR REVIEW Vargas, et al. v. City of Salinas, et al. Cal. S. Ct. Case No. S198996

iv

TABLE OF AUTHORITIES (cont'd)

Cases

(cont'd) Mandocino v. Maggard (1989) 210 Cal.App.3d 1413 Maria P. v. Riles (1987) 43 Ca1.3d 1281 Marine Forests Societyv. Cal. Coastal Comm'n (2008) 160 Cal.App.4th 867 Mejia v. City of Los Angeles (2007) 156 Cal.app.4th 151 Mills v. Alabama (1966) 384 U.S. 214 Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue (1983) 460 U.S. 575 Murdock v. Pennsylvania 319 U.S. 105 People v. Alfaro (1986) 42 Ca1.3d 627 People v. Davis (1905) 147 Cal. 346 People v. Guerrero (1988) 44 Ca1.3d 343 People v.Mirmirani (1981) 30 Ca1.3d 375 Planned Parenthood of Santa Barbara, Ventura and San Luis Obispo Counties, Inc. v. Aakhus (1993) 14 Cal.App.4th 162 Pleasant Grove City v. Summum (2009) 555 U.S. 460
ANSWER TO PETITION FOR REVIEW Vargas. et al. v. City of Salinas, et al. Cal. S. Ct. Case No. S198996

33 29,30,28,39

30, 38 16, 17 24-25

13 13 24, 25 4, 19 24 24

(1943)

30 18

v

TABLE OF AUTHORITIES (cont'd)

Cases
(cont'd) Premier Elec. Const. Co. v. N.E.C.A .. Inc. (7th Cir. 1987) 814 F.2d 358 Preston v. Goldman (1986) 42 Cal.3d 108 Professional Real Estate Investors. Inc. v. Columbia Pictures Industries. Inc. (1993) 508 U.S. 49 Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174 Serrano v. Stefan Merli Plastering Co. (2011) 52 Cal.4th 1018 U. S. v. O'Brien (1968) 391 U.S. 367 Stanson v. Mott (1976) 17 Cal.3d 217 Swaggart Ministries v. Cal. Bd. of Equalization (1990) 493 U.S. 378 United Mine Workers of America v. Pennington (1965) , 381 U.S. 657 Urbaniak v. Newton (1993) 19 Cal.App.4th 1837 U. S. v. Frame (3rd Cir. 1988) 885 F.2d 1119 U. S. v. Playboy Entertainment 529 U.S. 803 Vargas v. City of Salinas (2009) 46 Ca1.4th 1
ANSWER TO PETITION FOR REVIEW Vargas. et al. v. City of Salinas, et al. Cal. S. Ct. Case No. S198996

5, 15 24

9 5, 16, 17, 18 31,35-36 16, 17 27, 31

13

passim
35 8

Group. Inc. (2000)

16

passim

vi

TABLE OF AUTHORITIES (cont'd)

Cases (cont'd) Varian Med. Systems. Inc. v. Delfino (2005) 35 Cal.4th 180 Wolfgram v. Wells Fargo Bank (1997) 53 Cal.App.4th 43 Wood v. Santa Monica Escrow Co. (2009) 176 Cal.App.4th 802 Constitutional Provisions. Statutes. Regulations. Legislative Materials. Ordinances. Rules of Court California Constitution, Art. I, §2 7 1, 19 17 9 31

California Rules of Court, R. 8.500, subd. (b)(l) Code of Civil Procedure § 425.16 § 425.16, subd. (a) § 425.16, subd. (c) § 425.16, subd. (e) § 425.17 § 425.17, subd. (b) § 425.17, subd. (d)(l) § 425.17, subd. (d)(2) § 425.17, subd. (d)(3) § 1021.5 United States Constitution, Amendment 1

passim
20,22,26,27

passim

17

passim passim passim passim passim

22 22

Other Authorities Eisenberg, Horvitz and Weiner, California Practice Guide: Civil Appeals and Writs (The Rutter Group upd 2011), Ch. 13, Review by California Supreme Court, § 13:1 Witkin, Cal. Proc. (5th ed. 2008) Appeal, §476

4, 19 23

ANSWER TO PETITION FOR REVIEW Vargas. et al. v. City of Salinas. et al. Cal. S. Ct. Case No. S198996

vii

CERTIFICATE OF COMPLIANCE WITH WORD LIMITATIONS I, Joel Franklin, certify that:

The length of the attached Answer to Petition for Review complies with the requirements of California Rules of Court, Rule

8.504, subdivision (d)(l), and the number of words according to the word-processing 8,371. program used to prepare this brief is;

Dated:

January'<r,

2012

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

ANSWER TO PETITION FOR REVIEW Vargas, et al. v. City of Salinas. et al. CaL S. Ct. Case No. S198996

viii

I. INTRODUCTION Respondents, City of Salinas and Dave Mora [collectively,

"the City"], file this Answer to the Petition for Review of Plaintiffs, Appellants and Petitioners, ANGELINA MORFIN VARGAS and MARK DIEROLF [collectively, "Plaintiffs"]. The City notes that, although the Petition for Review is entitled "Appellants' Petition

for Review," Appellant Steven J. Andre is not named as a Petitioner in the Petition. ["Ptn. Rev."], p. 1.) (See Appellants' Petition for Review

Plaintiffs petition this Court for review, arguing this case presents important questions of law for this Court to decide and the opinion by the Sixth Appellate District of California, by Premo, J., Rushing, P.J., and Elia, J., concurring (published, Vargas v. City of Salinas (2011) 200 Cal.App.4th 1331) [USlipOpn."], creates a split of authority between the district courts of appeal in California. (Cal. R. Ct., R. 8.500, subd. (b)(l).) No need to restore uniformity of authority or settle an important question of law exists, as discussed herein.

Except as supplemented

in this Answer, Respondents

rely

on the court of appeal's procedural and factual summary in its opinion.

II
II
ANSWER TO PETITION FOR REVIEW
Vargas, et al. v. City of Salinas, et al. Cal. S. Ct. Case No. S198996

1

II.
QUESTIONS PRESENTED FOR REVIEW 1. "Is a petition to government for redress of grievances

in the form of a lawsuit entitled to enhanced constitutional protection such that statutory fee-shifting to a government defendant under Code of Civil Procedure §425.16 imposes an unlawful burden upon petition rights of a good faith, non-frivolous public interest litigant challenging a government policy?"

2.

"Is the doctrine of law of the case inapplicable to

preclude a party from raising a defense where the prior reviewing court's decision did not dispose of that defense and manifest injustice would result from denying the party's ability to raise the defense?"

3.

"Should this Court reject the court of appeal's

departure from the "impact" standard of success for private attorney general fee awards, requiring that a party must obtain some relief beyond a vindication of an important right affecting the general public?" //

//

/1 II II /1
ANSWER TO PETITIOW FOR REVIEW
Vargasi et al. v. City of Salinas, et al. Cal. S. Ct. Case No. S198996

2

III. REVIEW SHOULD BE DENIED BECAUSE THE COURT OF APPEAL CORRECTLY APPLIED SETTLED LAW
A. Plaintiffs' Asserted Unsupported. Grounds for Review Are

Plaintiffs argue the court of appeal's decision creates a split of authority, and decides an important issue "left unresolved" by Equilon Enterprises. L.L.C. v. Consumer Cause.! Inc. (2002) 29

Ca1.4th 53 [HEquilon"], City of Long Beach v. Bozek (1982) 31 Ca1.3d 527 [{{Bozek"],cert. gtd., judgment vac. and remanded (1983) 459 U.S. 1095, clarified in 33 Ca1.3d·727, 727-728, on remand, and Vargas Rev. 3-4.)
V.

City of Salinas (2009) 46 Ca1.4th 1 [nVargas I"]. (Ptn.

1.

No Need to Secure Uniformity of Decision Exists. The only

The opinion below creates no split of authority. decisions on the permissibility government defendant

under law of a successful

in an anti-SLAPP motion recovering its

attorneys' fees and costs under Code of Civil Procedure" section 425.16 [nanti-SLAPP statute"]' subdivision (c), including that of the

appellate court here, all hold such an award is legally permissible.

II II
All unspecified statutory references are to the Code of Civil Procedure, and all unspecified references to Rules are to the California Rules of Court.
ANSWER TO PETITION FOR REVIEW Vargas, et al. v. City of Salinas, et al. Cal. S. Ct. Case No. S198996
1

3

As with the other question presented

for review, the Petition

argues the appellate court incorrectly applied this Court's decisions in Bozek and Eguilon. Plaintiffs' argument amounts to an criticism the appellate court opinion is wrongly decided, which is not, in and of itself, a ground for review.
(See People v. Davis

(1905) 147 Cal. 346, 348; Eisenberg, Horvitz & Wiener, California Practice Guide: Civil Appeals and Writs (The Hutter Group upd. 2011) ["Civil Appeals and Writs"], Ch. 13, Review by California Supreme Court, § 13:1, p. 13-1.)

Plaintiffs attempt to create a false conflict between this Court's decision in Eguilon and Bozek. (See Ptn. Rev. 3-10.) As the appellate court correctly explained, no such conflict exists. Indeed, the decisions are harmonious.

Bozek determined

a prevailing government defendant may

not bring a malicious prosecution action due to Noerr-Pennington2 concerns, but left to the Legislature to permit an award of attorneys' fees to prevailing government parties by statute. (Bozek, supra, 31 Cal.3d at p. 538.)

By specifically allowing for recovery of attorney fees under the pertinent statutes, Bozek confirmed that an award of attorney fees in favor of a government defendant does not per se violate a plaintiff's
2

Eastern RR. Presidents Conference v. Noerr Motor Freight, Inc. (1961) 365 U.S. 127, 136;.144;United Mine Workers of America v. Pennington (1965) 381 U.S. 657, 661-670.
ANSWER TO PETITION FOR REVIEW Vargas. et al. v. City of Salinas, et al. Cal. S. Ct. Case No. S198996

4

constitutional right of petition. Indeed, what Bozek teaches is that the individual's right to sue the government does not come free of cost. (See Premier{

Elec. Canst. Co. v. NE.G.A., Inc. (7th Cir..1987»),supra,
814 F.2d[ 358,] at p. 373 ["The exercise of rights may be costly, and the first amendment does not prevent the government from requiring a person to pay the costs incurred in exercising a right."].)

(Slip Opn. 12.)

This Court's more recent decision in Equilon determined a statutory fee-shifting provision, as contemplated does not run afoul of Noerr-Pennington. by Bozek, also

(Equilon, supra, 29 Ca1.4th

at p. 62.) "The fee-shifting provision of section 425.16, subdivision (c) "simply requires the party that creates the costs to bear them." (Slip Opn. 11, quoting Equilon, supra 62.)

2.

No Need to Settle an ImportantQuestion of Law Exists.

The appellate court's decision is consistent with and follows Bozek and Equilon, and other cases applying established constitutional analysis, including Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174 ["Schroeder"], recognizing correctly that strict, or "exacting" scrutiny was not required but, rather, intermediate scrutiny was the appropriate standard in this instance.

II
ANSWER TO PETITION FOR REVIEW Vargas. et al. v. City of Salinas. et al. Cal. S. Ct. Case No. S198996

5

[W]hen a government regulation results in incidental limitations upon First Amendment freedoms the regulation may be justified "if it is within the constitutional power of the Government; if it furthers an important or substantial governmenta.l interest; if the governmental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest. "

(Slip Opn. 13.)

B.

Award of Attorneys' Fees to a Successful Anti-SLAPP Public-Entity Defendant Does Not Unconstitutionally . Burden Plaintiffs' Petition Rights.
1.

Plaintiffs Are Bound by this Court's Earlier Decision the Anti-SLAPP Statute Encompasses Government Defendants.

Plaintiffs argue the anti-SLAPP statute should not apply to government defendants. (Ptn. Rev. 11-12, 14; see also id., p. 4 &

fn.4.) According to Plaintiffs,

There is no support found in the statutory language or the legislative history for the proposition that an objective of enacting §425.16 was to protect government activity, let alone speech.

(Ptn. Rev. 12.)

II
II
ANSWER TO PETITION FOR REVIEW Vargas, et al. v. City of Salinas, et al. Cal. S. Ct. Case No. S198996

6

This Court in Vargas I already decided this issue, and the Plaintiffs' argument on it seeks to avoid the Vargas I decision.

Plaintiffs argue the appellate court improperly balanced the interest in governmental dissemination of information on issues of

public concern against the Plaintiffs' petition rights in determining the prevailing governmental defendant in an anti-SLAPP motion may recover attorneys' fees and costs. (See § 4:25.16,subd. (c); Ptn. Rev. 11-12; see also Ptn. Rev. 4 & fn. 4, pp. 6-8,12-18.) However, as the court below noted,

Vargas I expressly concluded that this case is subject
to the anti-SLAPP law. In particular, the Supreme Court held, "Whether or not the First Amendment of the federal Constitution or article I, section 2 of the California Constitution directlyprotects government speech in general or the types of communications of a municipality that are challenged here -- significant constitutional questions that we need not and do not decide -- we believe it is clear, in light of both the language and purpose of California's anti-SLAPP statute, that the statutory remedy afforded by section 425.16 extends to statements and writings of governmental entities and public officials on matters of public interest and concern that would fall within the scope of the statute if such statements were made by a private individual or entity." (Vargas 1, supra, 46 Ca1.4th at p. 17.)

(Slip Opn. 7, emph. in orig.)

ANSWER TO PETITION FOR REVIEW
Vargas. et al. v. City of Salinas, et al. CaL S. Ct. Case No. S198996

7

This language suggests the government at least indirectly possesses constitutional speech and/or petition rights, acting on

behalf of the citizenry who seek (petition for) and receive (listen to) information from the government.
(See Gerawan Farming. Inc. v.

Lyons (2000) 24 Ca1.4th 468,490-491 ["Gerawan"]; U. S. v. Frame (3rd Cir. 1988) 885 F.2d 1119,1131.) The "public expression of its collective views on matters immediately affecting its constituency[] is a traditional and salutary function" of a representative government. (Eller Outdoor Advertising Co. of Cal.

v. Bd. of Supervisors (1979) 89 Cal.App.3d 76,80.) In this sense, by informing the public, the City served the rights of all citizens and "petitioners": supporters of the ballot measure like Plaintiffs were not the only interested citizens. This Court found in Vargas I the (Id., 46 Cal.4th at

City lawfully provided information to all citizens. pp.34-40.)

As a result, the court of appeal determined,

the government has an interest in speaking out on issues of public concern.and in being free of the costs of defending meritless lawsuits aimed at infringing the government's free-speech activities. Section 425.16, subdivision (c) protects the government's interests by shifting the cost of defending such suits to the plaintiff.

(Slip Opn. 18.)

II
ANSWER TO PETITION FOR REVIEW Vargas. et al. v. City of Salinas. et al. Cal. S. Ct. Case No. S198996

8

2.

Anti-SLAPP Fee-Shifting Recovery by a Government Defendant Is Constitutional Consistent with California Precedent.

and

The court of appeal opinion follows and is consistent with this Court's decision in Eguilon determining attorneys'

with

an award of

fees does not impose liability for bringing the lawsuit,

analyzed in Eguilon under the authority of Professional Real Estate Investors. Inc. v. Columbia Pictures Industries. 49, a Noerr-Pennington case. Inc. (1993) 508 U.S.

a.

Equilon Found that Fee-Shifting under the Anti-SLAPP Statute Did Not Impose Civil Liability on Plaintiffs' Petitioning.

Costs, including attorneys' unconstitutionally

fees, are not liability and do not The appellate court

chill the right of petition.

noted, contrary to Plaintiffs' view,

Reasonable, narrowly drawn restrictions designed to prevent abuse of the [petition] right can be valid. (Wolfgram[ v. Wells Fargo Bank (1997)], supra, [43, ]at p.57.)
Equilon Enterprises v. Consumer Cause, Inc. (2002) 29

Ca1.4th 53 (Equilon), held, as a general matter, that the anti-SLAPP law as a whole does not impermissibly chill the right of petition ....

(Slip Opn, 9.)

II
ANSWER TO PETITION FOR REVIEW Vargas. et al. v. City of Salinas, et al. Cal. S. Ct. Case No. S198996

9

Like the additional requirement proposed by the plaintiff and rejected by this Court in Equilon, refusing to impose a higher burden on governmental defendants before they may recover attorneys' fees under the anti-SLAPP statute, will not chill petitioning raising legitimate grievances (Slip Opn. 9-10), even claims made in the public interest, because,

u •••

substantive

and procedural limitations [exist] that

protect plaintiffs against overbroad application of the anti-SLAPP mechanism." (Briggs [v. Eden Council for Hope & OppoItunity(1999)] 19 Ca1.4th [1106] at pp. 1122-1123.)"

(Slip Opn. 9, quoting Equilon, supra, 29 Ca1.4th at p. 65.)

Among these limitations are that the suit must be one chaUenging protected speech or petitioning activity, and an antiSLAPP motion will be denied when plaintiffs meet the relatively low burden of showing prima facie support for their complaint.
(See id., at p. 67.)

Even though the Noerr-Pennington doctrine has been applied to civil liability cases, this Court should agree,

[t]he Noerr-Penninaton doctrine has no application in this case. The doctrine immunizes legitimate petitioning activity from civil liability but fee shifting is not civil liability within the meaning of the NoerrANSWER TO PETITION FOR REVIEW Vargas, et al. v. City of Salinas, et al. Cal. S. Ct. Case No. S198996

10

As our Supreme Court held in Equilon, being charged with the costs of a suit is not the same thing as being civilly liable for having filed the suit .... The fee-shifting provision of section 425.16, subdivision (c) "simply requires the party that creates the costs to bear them." (Citations.)

Pennington doctrine.

(Slip Opn. 11, citingEguilon,

supra, 29 Ca1.4th at p. 62.) Fee-

shifting "does not make a party 'liable' for filing a lawsuit." (Eguilon, supra, at p. 62.)

As Justice Werdegar wrote in Eguilon,

Nor do the anti-SLAPP statute's fee-shifting provisions inappropriately punish plaintiffs. Plaintiffs as well as defendants may recover fees: defendants, as discussed, only when the plaintiff burdens free speech with an unsubstantiated claim (Rosenthal[ v. Great Western Fin. Securities Corp. (1996)]. supra, 14 Cal.4th [394, ]at p. 412 ... ); plaintiffs whenever a defendant's motion to strike is "frivolous or is solely intended to cause unnecessary delay" (§ 425.16, subd. (c)). Equilon fails to persuade that such a fee-shifting provision overburdens those who exercise the First Amendment right of petition by filing lawsuits. "The right to petition is not absolute, providing little or no protection for baseless litigation" (Church of
Scientology! v. Wollersheim (1996)], supra, 42

Cal.App.4th[ 628,] at p. 648, fn. 4 ...).

(Eguilon, at pp. 63-64, emph. added.)

ANSWER TO PETITION FOR REVIEW
Vargas, et al. v. City of Salinas, et al. Cal. S. Ct. Case No. S198996

11

Fee-shifting occurs,

only if the plaintiff cannot demonstrate that the complaint "is legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." This is not a high bar. If the plaintiff fails to clear that bar the suit, by definition, is not worthy. Imposing the costs of defending such suits upon the persons responsible for fiHng them discourages the filing of such suits in the first place. By reducing the likelihood of such suits, and insuring that the government will be reimbursed for its defense of those that are filed, section 425.16, subdivision (c) protects the government's right to speak and the interest of the general public to hear what its government has to say, thereby fostering public discourse on topics of public interest.

(Slip Opn. 16, citations omitted.)

b.

Fee-Shifting Is Not a Tax or Penalty on Petitioning Activity.

In criticizing Equilon, Plaintiffs assert fees awarded under the anti-SLAPP statute, are "a crippling tax on their exercise of the right to seek redress from their government ...." (Ptn. Rev. 6.) The "direct tax" cases on which Plaintiffs rely are inapposite.

Plaintiffs argue the potential for an award of fees under section 425.16, subdivision (c), is a tax restraining their exercise of
ANSWER TO PETITION FOR REVIEW
Vargas, et al. v. City of Salinas, et al. Cal. S. Ct. Case No. S198996

12

petition rights.

(Pet. Rev. 7, citing Follett v. McCormick (1944) 321

U.S. 573.) The responsibility to determine whether a planned lawsuit has prima facie support is imposed on all civil litigants and is a far cry from a direct tax as a precondition to exercise of First Amendment rights. It is only when such a tax is imposed, effectively restraining exercise of the right, that it may constitutionally infirm. (SwaggartMinistries v. Cal. Bd. of

Equalization (1990) 493 U.S. 378, 387, citing Murdock v. Pennsylvania (1943) 319 U.S. 105, 113-114, and Follett, supra, 321 U.S. 573.)

Minneapolis Star & Tribune Co. v. Minnesota Commissioner of Revenue (1983) 460 U.S. 575, 581-582, and Grosjean v. American Press Co. (1936) 297 U.S. 233, 244, 251, also cited by Plaintiffs, both involved direct taxes on the exercise of First Amendment rights.

Plaintiffs' misplaced analogy to the "direct tax" cases provides no reason for this Court to grant review.

c.

The Court of Appeal Opinion Follows BozeJ( s Decision that Government May Recover Attorneys' Fees under FeeShifting Statutes.

In Bozek, this Court held a government defendant may not pursue a malicious prosecution case, but if the Legislature has provided another remedy, a government defendant may proceed under such a statute.

tId. 31 Ca1.3d at pp. 532-534, 537-538.)

ANSWER TO PETITION FOR REVIEW .
Vargas. et al. v. City of Salinas. et al. Cal. S. Ct. Case No. S198996

13

Conspicuously absent from Plaintiffs' Petition for Review is a recognition this Court in Bozek held that, while malicious prosecution actions are an improper burden on petition rights, a legislatively-provided unconstitutionally fee-shifting remedy does not

burden the exercise of those rights. (Id., 31

Ca1.3d at pp. 532-534, 537-538; Ptn. Rev. 8-9.)

The appellate court understood this reasoning of Bozek, and properly held,

[O]ur Supreme Court has granted special status to suits against the government in Bozek, supra, 31 Ca1.3d 527, but Bozek does not stand for the proposition that meritless suits against the government are constitutionally immune from feeshifting.... Bozek ... concluded that, since the government's principal reason for filing a malicious prosecution suit is to be reimbursed for the cost of defending the prior malicious suit ...•

fee-shifting remedies provided by the Legislature adequately served that purpose. (Slip Opn. 11-12, citing Bozek, supra, 31

Ca1.3d at pp. 537-538.)

Read together, recovery of fees by a governmental defendant under the anti-SLAPP statute does not impose liability on Plaintiffs' petitioning.
(See Eguilon, supra, 29 Ca1.4th at p. 62;

Bozek, supra, at pp. 537-538.) It is a consequence of bringing a

ANSWER TO PETITION FOR REVIEW
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SLAPP suit against the government having no facial merit or evidentiary support.

[W]hat Bozekteaches

is that the individual's right to

sue the government does not come free of cost. (See Premier, supra, 814 F.2d at p. 373 ["The exercise of rights may be costly, and the first amend.ment does not prevent the government from requiring a person to pay the costs incurred in exercising a right. "].) .... We do not dismiss the notion that a fHeshifting clause can discourage the filing of some lawsuits. Indeed, that is precisely what such clauses are frequently designed to do. But to the extent section 425.16, subdivision (c) imposes an incidental restriction upon legitimate petitioning rights, it is warranted by the governmental interests involved..

(Slip Opn. 12.)

d.

The Anti-SLAPP Statute and its FeeShifting Clause Are Content-Neutral Restrictions Using the Least-Restrictive Means Which Still Achieve the Important Legislative Purposes of These Provisions.

There is nothing novel about the court of appeal's analysis of this issue: The appellate court applied the traditional test for the constitutionality petition rights. of burdens on First Amendment speech or

II II
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Plaintiffs argue the appellate court erred because it did not apply "exacting" scrutiny to the mandatory, prevailing-party attorneys' fees awards, under their theory the statute burdens their exercise of petition rights. is somewhat tautological. (Ptn. Rev. 10-17.) This reasoning

The need for the constitutionality

analysis presupposes

an

impact on the exercise of First Amendment rights. The question to be assessed in deciding whether the restriction or burden is

content neutral, is whether the impact's application depends on the content of the speech. (Mejia v. City of Los Angeles (2007) 156 restrictions on the right

Cal.app.4th 151, 162.) It is content-based

of free speech or petitioning which are subject to the strict scrutiny test. (Slip Opn. 12-13, citing, inter alia, Mejia, supra, 156 Group.

Cal.App.4th at p. 162, and U. S. v. Playboy Entertainment Inc. (2000) 529 U.S. 803, 813.)

If the restriction applies evenly without regard to the

content of the speech, then it is content neutral (Schroeder, supra, 97 Cal.App.4th at pp. 196-197), and intermediate scrutiny is the appropriate test, not strict or "exacting" scrutiny (U. S. v. O'Brien (1968) 391 U.S. 367, 377).

The government interests served by the anti-SLAPP statute are protecting the exercise of free speech or petition rights by any defendant, including a governmental entity, from facially meritless

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litigation, bringing such litigation to an early end, and ensuring the defendants whose rights are burdened by the SLAPP action

are not further burdened by the attorneys' fees incurred in the successful pursuit of the anti-SLAPP motion. (See § 425.16, subd. (a); see Eguilon, supra, 29 Ca1.4th at pp. 65 67; Varian Med. Systems. Inc. v. Delfino (2005) 35 Ca1.4th 180, 193; see Vargas I,

supra, 46 Ca1.4th at pp. 16-19.) These purposes and their
application to government defendants are content-neutral-the

only question thereafter is whether plaintiffs' claims have prima

facie merit.

Under O'Brien, an important government interest in regulating the nonspeech element can justify incidental restrictions on the right of free speech ....

(Mejia, supra, 156 Cal.App.4th at pp. 162-163, citation omitted; see Slip Opn. 14.)

This is the same analysis followed by Schroeder, so the appellate court's reliance in part on Schroeder here is correct. (See Slip Opn. 13, citing Schroeder, supra, 97 Cal.App.4th at p. 196; see
id., at pp. 195-197.)

The mandatory award of attorneys' fees a.nd costs under section 425.16, subdivision (c), is a permissible "leqislativelyimposed condition[ or] restriction[)" on the right to petition, as it is "narrowly drawn to a~hieve a substantial
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------,,-------------

which is content neutral and unrelated to the suppression of the exercise of First Amendment rights. "(See Schroeder, supra, 97 Cal.App.4th at pp. 196-197.)

If plaintiffs cannot establish their case ha.s prima facie merit,

then their petitioning activity in bringing the lawsuit is only incidentally impacted and that impact is outweighed by the interests protected by the anti-SLAPP statute and the government defendants' important protected activities (see Slip Opn, 14-17;

Schroeder, supra, 97 Cal.App.4th at pp. 196-197), which promotes dissemination of information to"the public and furthers public

discourse (see Pleasant Grove City v. Summum (2009) 555 U.S. 460, 468; Slip Opn. 15). In Vargas I, this Court determined actions had served these purposes. the City's

(Vargas I, supra, 46 Ca1.4th at

pp. 19,37-40.) Requiring plaintiffs to reimburse the government defendant who was the subject of the SLAPP action, thereby reimbursing taxpayer-provided funds, serves the same purposes,

as well as the further Legislative goal of the anti-SLAPP statute by shifting the cost of a SLAPP suit to the plaintiffs who brought it. (See Slip Opn. 13-14, 16.)

The appellate court properly found the anti-SLAPP statute and its fee-shifting provision were narrowly tailored to the least restrictive means which would achieve the purposes of the statute outlined above. The court noted that imposing a further, nonstatutory "sham
II

or frivolousness requirement,

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would reduce the law's effectiveness in protecting the interests identified. It 'Would add a burden to the prevailing government defendant and wholly prevent reimbursement in meritless cases that may not descend to the level of frivolousness.

(See Slip. Opn. 17; see generally Slip Opn. 16-17.)

Review of this issue should be denied.

IV. REVIEW SHOULD BE DENIED BECAUSE PLAINTIFFS' CLAIMS ON THE ISSUE OF THE APPLICABILITY OF SECTION 425. 171S EXEMPTION AND EXCEPTION WAS RELEVANT AND NECESSARY TO THE MATTERS FINALLY DECIDED IN THE FIRST APPELLATE PROCESS Neither ground for review in Rule 8.500, subdivision (b)(l) exist in the section 425.17 issues under the circumstances case. Plaintiffs argument is simply that the court of appeal wrongly decided the section 425.17 issues below (and in the first appellate proceedings in this case), asserting the appellate court failed to follow the law. This argument is not a ground for review. of this

(See People v. Davis, supra, 147 Cal. at p. 348; Civil Appeals and
Writs, supra, Ch. 13, Review by California Supreme Court, § 13:1, p. 13-1.)

No important question concerning the application of the exemption and exceptions of section 425.17 in this case needs

II
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settling by this Court.? The issue whether the "political work" exception to the 425.17, subdivision (b), anti-SLAPP exemption for actions brought in the public interest applied in this case was at issue and decided in the first appellate proceedings in this case, as will be discussed more fully below.

The appropriate time to seek this Court's review of the court of appeal's decision in the first appeal would have been in the petition for review from that appellate opinion, but Plaintiffs did not seek review of the applicability of section 425.17, subdivisions (b) and (d)(2), in their petition for review in the first appeal. Plaintiffs did not identify as one of their questions presented for review the issue of the applicability of the provisions of section 425.17 to this case or in general to government communications which satisfy section 425.16, subdivision (e). (See Petition for Review in the first appeal ["First Appeal Ptn. Rev."], pp. 1-2.) While section 425.17 was referenced in one of the argument headings and briefly mentioned in that argument, Plaintiffs did not urge this court's review of the appellate court's decision of those issues and presented no substantive analysis or argument on the

II
3

As an initial matter, no split of authority exists between the courts of appeal or between any court of appeal decision and this Court's opinions, as it appears no published opinion has found communications related to an election not to be political work, or has addressed the meaning of "political work" in section 425.17, subdivision (d)(2), as applied to a government defendant's communications which otherwise satisfy section 425.16, subdivision (e), and, thereby, the first prong of the anti-SLAPP statute.

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merits of the section 425.17 issues or grounds for their review. (See First Appeal Ptn. Rev. 35-36; see generally id., pp. 30-36.)

While the Petition for Review did not seek review of the section 425.17 issues, the parties did address them in the remaining pleadings on the Petition for Review and in their briefs on the merits after this Court granted review. (See, e.g., Reply to Answer to the Petition for Review in the first appeal ["First Appeal Ptn. Rev. Reply"], pp. 30-33; Petition for Rehearing in the first appeal ["First Appeal Ptn. Rhrg."], pp. 44-45; Answer to the Petition for Review in the first appeal ["First Appeal Ptn, Rev. Answer"], pp. 3, 8, 24-26; Answer to Petition for Rehearing in the first appeal ["First Appeal Ptn. Rhrg. Answer"], pp. 17-18.)

Plaintiffs ultimately argued the exemption of section 425.17, subdivision (b), applied to their action brought in the public interest, and the exception to the exemption in subdivision (d)(2) for political work did not. The City argued the subdivision (d)(2) exception for political work did apply, preventing the exemption in subdivision (b) from barring its anti-SLAPP motion. After this Court's opinion, in the Petition for Rehearing, Plaintiffs argued this Court's determination the City's communications were not

partisan, campaign material meant, a fortiori, the materials also could not be "political work." (See First Appeal Ptn. Rhrg. 45.) Rehearing was denied.

II
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This Court's identification of the issues taken for review in the decision does not mention the section 425.17 question as one of the issues on review. (See Vargas I, supra, 46 Ca1.4th at pp. 8, 16; First Appeal Ptn. Rev. 1-2.) The opinion of this Court in Vargas

I did not expressly analyze and decide the section 425.17 issues.
However, there is a final decision that the exception of section 425.17, subdivision (d)(2) for political work applied to prevent application of the subdivision (b) exemption from the antiSLAPP statute.

Implicit in the analysis underlying the conclusions the City could proceed with its anti-SLAPP motion and had satisfied the first prong under the provisions of section 425.16, subdivision (e), and, in particular, upholding the order granting the City's antiSLAPP motion, rather than remanding for further consideration in light of this Court's decision on the questions of law (see Vargas I,

supra, 46 Ca1.4th at pp. 17, 19, 37-39, 40-41), is the necessity that
the section 425.17, subdivision (b) anti-SLAPP exemption did not bar the City's motion, because one of the exceptions applied; the only- possible exception was that contained in subdivision (d)(2) of section 425.17, for political work."

II

4

Subdivision (d)(l) applies to members of the press or any other person disseminating ideas or expression in books or academic journals, and subdivision (d)(3) applies to non-profit organizations. (See § 425.17, subd. (d)(l), (3).)

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As Plaintiffs themselves note,

Witkin, observing precisely the situation here (the "most perplexing problem II that arises when a "point could have been determine [sic] in the first appeal" but the decision "does not expressly mention it") queries, "May a point be deemed impliedly decided for the purpose of law of the case?" Witkin, Cal.Proc. (5th ed. [ 2008]) Appeal §476. The answer is an exception to the general rule that the doctrine does not extend to points of law not determined in the prior appeal: "Where the particular point was essential to the decision, and the appellate judgment could not have issued without its determination, a necessary conclusion is that the point was impliedlvdecided, even though the point was not raised by counselor expressly mentioned. [citations

r

Eldridge v. Burns

(1982) 136 Cal.App.3d 907,921.

(Ptn. Rev. 19-20, italics in orig., other emph. added.)

If this Court did not impliedly decide the issue, an alternative view of the final decision on the section 425.17 exemption and its exception is available. The decision of the appellate court in the first appellate proceedings is the controlling decision, and its conclusion the political work exception of subdivision (d)(2) applies (Slip Opn., Angelina Morfin Vargas. et al. v. City of Salinas. et al. (Dock. No. H027693 Dec. 29, 2005) ["First Appeal Ct. App, Slip Opn."], pp. 14-16), is the law of the case as between the parties to this action.
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If the Supreme Court decides only limited issues, other issues in the cause will be disposed of by the Court of Appeal as the Supreme Court directs. If the Court of Appeal is not directed to take further action, the original Court of Appeal resolution of the other issues stands as between the parties.

(People v. Alfaro (1986) 42 Ca1.3d 627, 637, fn. 9, emph. added, citation omitted, disapproved on other grounds in People v. Guerrero (1988) 44 Ca1.3d 343,345-356; Agricultural Labor Relations Bd. v. Tex-Cal Land Management, Inc. (1987) 43 Ca1.3d

696, 709, fn. 12; Preston v. Goldman (1986) 42 Ca1.3d 108, 127.)

The court of appeal's determination

of this issue in the first

appeal was proper. Plaintiffs conflate the term "political work" with "political" campaigning. (See First Appeal Ptn. Rhrg. 44-45.)

While one appellate court has determined that written materials concerning a candidacy and ballot measure are "political works"
(see Major v. Silna (2005) 134 Cal.App.4th 1485, 1492-1497), the

concept of political work or political speech is not limited to partisan speech related to elections. This Court has defined

"political" as, "of or relating to government, the conduct of governmental affairs, or politics." (People v. Mirmirani (1981) 30

Ca1.3d 375,384; accord, Mills v. Alabama (1966) 384 U.S. 214, 218 ["a major purpose of that [First] Amendment was to protect the free discussion of governmental discussions of candidates, affairs. This of course includes

structures and forms of government, the

manner in which government is operated or should be operated,
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and all such matters relating to political processes. ,,].)5 This Court has also defined political speech as "speech dealing with governmental affairs." (Gerawan, supra, 24 Ca1.4th at p. 486,

citing First National Bank of Boston v. Bellotti (1978) 435 U.S. 765,
777; see Abood v. Detroit Bd. of Education (1977) 431 U.S. 209, 231

["the free discussion of governmental

affairs"].)

In the first appeal, the court of appeal found, "under that definition, the defendants' works." writings plainly constitute political

(First Appeal Ct. App. Slip Opn. 15.) The Plaintiffs are (People

bound by this decision under the law of the case doctrine.

v. Boyer (2006) 38 Ca1.4th 412,441; Alfaro, supra, 42 Ca1.3d at p. 637, fn. 9.)

The recovery by the City of its attorneys' fees 'incurred in the first appellate proceedings is consistent with this Court's ultimate

disposition of the anti-SLAPP motion in the City's favor, and this Court's decisions in Bozek and Eguilon. (See ante, pp. 9-12, 13-14.)

II II

Plaintiffs have also asserted "political work" refers to "speech which occurs inthe context of election contests or concerns the intrinsic nature of our political system rather than to routine paperwork generated by its administrative processes." (First Appeal Ptn. Rev. 35, fn. 12.) The concept of political work is not so narrow. The City's communications at issue here were not routine administrative paperwork, but informational materials related to "the manner in which government is operated or should be operated" and a ballot measure election contest. (See Vargas I, supra, 46 Ca1.4th at pp. 37-40.)
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In light of this Court's decision in Vargas I and the authority of Bozek and Equilon, the order awarding the City its appellate fees does not work a manifest injustice.

Indeed, some "manifest injustice" may result to government defendants who are the subject of SLAPP suits from granting review of the section 425.17 issues at this stage of the litigation. Because the decision affirming the order granting the City's antiSLAPP motion is final for all purposes, the challenge to the applicability of the political work exception to the section 425.17 anti-SLAPP exemption in the context of the prevailing-party feeshifting motion is a collateral attack on the merits of that final order.

Moreover, if the Court were to grant review and determine the political work exception did not prevent application of the public-interest litigation exemption, it may weaken much of the value of the Court's efforts in the Vargas I opinion. This Court there confirmed the anti-SLAPP statute's availability to a government defendant who could satisfy one of the provisions of section 425.16, subdivision (e). Those provisions and the antiSLAPP statute itself are all premised on the requirement that the lawsuit challenges defendants' speech or petitioning on issues of

public interest or concern. Issues of public interest are frequently, if not mostly, at issue in suits against the government which satisfy subdivision (e) and, thereby, the first prong of the anti-

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SLAPP statute's

application.

That being the case, the section

425.17, subdivision (b), exemption for public-interest lawsuits would also almost always apply to cases which challenge the government's speech on a public issue. Unless the political work

exception also applied, then in many suits against the government which otherwise would satisfy section 425.16, subdivision (e) and prong one of the anti-SLAPP test, would nevertheless not be amenable to ananti-SLAPP motion, no matter how unfounded. This Court's decision in Vargas I the anti-SLAPP statute applied to government speech may then have little applicability.

In addition, in the context of suits related to claims of illegal .government campaign expenditures, the public-interest litigation

exemption seemingly will always apply despite the satisfaction of subdivision (e), making unnecessary any analysis of the suit for at least prima facie merit under Stanson v. Mott (1976) 17 Ca1.3d 217, as reaffirmed by this Court in Vargas I -- undermining the need for this Court to have done so.

For all these reasons, this case does not present grounds for review to settle the law, and this Court should deny review of the issue of the applicability of the exemption and exception of section 425.17 to this Case and the award of attorneys' fees.

II II II
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V. THE LAW THAT REQllRES PUBLIC-INTEREST LITIGANTS ACHIEVE AT LEAST SOME OF THE RELIEF SOUGHT BY THEIR COMPLAINT IN ORDER TO "SUCCEED" UNDER SECTION 1021.5 IS SETTLED AND REVIEW IS UNNECESSARY Once again, Plaintiffs simply assert the court of appeal wrongly decided the issue of whether Plaintiffs are entitled to fees under section 1021.5 [sometimes, 111021.5"], sserting the a appellate court failed to follow the law. As mentioned earlier, this argument is not a ground for review.

Plaintiffs essentially attempt to alter the test for satisfaction of the "success" criterion. The proposed new test is that, even if Plaintiffs lose on all claims in their complaint and none of the relief sought in the action is achieved, if some pronouncement occurs, then success has been established. of law

(Pet. Rev. 23-30.)

The appellate court correctly framed the issue:

The preliminary consideration under section 1021.5 is the plaintiff's success. Notwithstanding the judgment against them, plaintiffs maintain that this case meets all the elements required for a section 1021.5 attorney fee award, including the requirement of success. Plaintiffs were successful, they say, because they succeeded in having Vargas Ireject the "express advocacy" test. It is true that a-court may find a plaintiff was successful under section 1021.5 absent a favorable final judgment, but in order to do so, the court must generally find that the plaintiff obtained
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relief in some other way. Under Graham v. DaimlerChrysler Corp. (2004) 34 Ca1.4th 553, 567, a plaintiff is a successful party whenever he or she obtains the relief sought in the lawsuit, regardless of whether that relief is obtained" 'through a "voluntary" change in the defendant's conduct, through a settlement, or otherwise.'" To be deemed successful under Graham, the plaintiff must establish that the lawsuit was a catalyst motivating the defendant to provide the primary relief sought and that the lawsuit had merit and achieved its catalytic effect by threat of victory, not by threat of expense. (Tipton- Whittingham v. City of Los Angeles (2004) 34 Ca1.4th 604, 608.) Here, plaintiffs obtained no relief and their lawsuit had no merit. City never changed its position. The superior court, the appellate court, and the Supreme Court all agreed that publication of the challenged material was not a misuse of public funds. This is not success. The fact that the Supreme Court accepted part of plaintiffs' legal analysis does not change that.

(Slip Opn. 4-5, fn. omitted.)

The appellate court's reasoning is echoed by established law from this Court. In Maria P. v. Riles (1987) 43 Ca1.3d 1281, the Court wrote,

"plaintiffs may be considered "prevailinq parties" for attorney's fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit. '"
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(Id., at p. 1292, emph. added.)

Similarly, in order to prevail,

"[alt the very least, a plaintiff must establish 'the precise factuaillegal condition that [it] sought to change or affect' "

(Graham v. Daimler-Chrysler Corp. (2004) 34 Cal.4th 553, 576 ["Graham"], emph. added; see, e.g., Marine Forests Society v. Cal. Coastal Comm'n (2008) 160 Cal.App.4th 867,878-879 rtThe allegations of Marine Forests's complaint disclose that its primary goal was to save its reef, not to have (Public Resources Code) section 30312 declared unconstitutional or to change the

composition of the Coastal Commission, " emph. added]; Planned Parenthood of Santa Barbara. Ventura and San Luis Obispo Counties, Inc. v. Aakhus (1993) 14 Cal.App.4th 162, 174 [t![w]hether or not a party is successful depends upon whether the underlying action contributed substantially to remedying the conditions at which it was directed," emph. added].)

Here, Plaintiffs' complaint sought to establish the City illegally expended public funds on campaigning (First Appeal ICT

3; First Appeal IIICT 718-722) and to obtain the relief of , reimbursement to the City for the funds alleged to have been

illegally spent, a declaration the City acted illegally, and an injunction against maintaining the alleged campaign materials and against any further partisan activities (First Appeal ICT 8-9;

II
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First Appeal IIICT 728-729). (See generally First Appeal ICT 1-10; First Appeal IIICT 718-730.)

The litigation did not succeed in establishing the City illegally used public funds to campaign, quite the opposite. The

reviewing courts ruled at every step the complaint should be stricken as Plaintiffs failed to show a prima facie case to support it.
(See Vargas I, supra, 46 Ca1.4th at pp. 14,37-40.) None of the

violations of law claimed were proved and none of the remedies sought were achieved. fn. 6, 21, 22, 35.) (See Vargas I, supra, 46 Ca1.4th at pp. 13 &

Nevertheless,

Plaintiffs insist here, as they did below, that

clarification of Stanson was a vindication of rights which they sought in Vargas I, making them a successful party under section 1021.5. (Pet. Rev. 24, 27-29.) Partially or even wholly prevailing on appeal does not mean a party has succeeded for purposes of recovering fees under 1021.5. (See Serrano v. Stefan Merli Plastering Co., Inc. (2011) 52 Ca1.4th 1018, 1029 ["because an appellate opinion is certified for publication does not mean it involves an important right affecting the public interest"]; Wood v. Santa Monica Escrow Co. (2009) 176 Cal.App.4th 802, 804-808.)

The appellate court rejected Plaintiffs' "clarification-equalssuccess
II

argument.

II
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A similar situation was considered by the court in
Ebbetts Pass II, supra, [Ebbetts Pass Forest Watch v. Cal. Dept. of Forestry and Fire Protection (2010)] 187

Cal.App.4th 376. In that case, two environmental groups had challenged the approval of a timber harvesting plan they claimed violated certain environmental laws. Upon review of the judgment, the Supreme Court agreed with the plaintiffs' preliminary contentions but decided the merits against them. (Ebbetts Pass Forest Watch v.
California Dept. of Forestry & Fire Protection (2008) 43

Ca1.4th 936.) In subsequent proceedings the trial court denied the plaintiffs' motion for attorney fees - under section 1021.5 and Ebbetts Pass II upheld that decision. The appellate court concluded that to find the plaintiffs successful under the circumstances "would be an unwarranted expansion of section 1021.5." (Ebbetts Pass II, supra, at p. 388.) The plaintiffs lost "because the record did not justify their winning under the law. While it may be argued that their contentions resulted in clarification of legal issues, the fact remains that contentions do not supplant evidence. The real problem is that regardless of the expansion of the law, they did not have a factually meritorious lawsuit and, when the dust settled, their only victory was in a statement of law that when applied to the record clarified why they should lose." (Id. at pp. 387-388.)

(Slip Opn. 6.)

The court in Ebbetts Pass Forest Watch v. Cal. Dept. of Forestry and Fire Protection (2010) 187 Cal.App.4th 376 ["Ebbetts
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Pass II" 1, further observed,

while the [Supreme 1 Court may have clarified the law regarding plaintiffs' legal contentions, the court rejected those contentions because they lacked support in the record and denied plaintiffs the relief they requested. To conclude that plaintiffs were successful under these circumstances would be an unwarranted expansion of section 1021.5.

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

Moreover, in those cases where "success in conferring of a significant benefit" prong of section 1021.5 nominally rests on appellate opinions, all the decisions either affirm a lower court's granting of at least a portion of the relief sought in the feeapplicants' initial pleadings or, more commonly, reverse a denial of all or a portion of such relief. Such results satisfy the standard test for success in vindicating an important public right and in conferring a substantial public benefit: that the litigation by the

party seeking fees actually achieve some portion, not de minimis, of the relief sought or some portion of the change sought to be effected in the complaint or petition. (See, e.g., Mandocino v.

Maggard (1989) 210 Cal.App.3d 1413,1416-1417,1419; Ciani v. San Diego Trust and Sav. Bank (1994) 25 Cal.App.4th 563,579; see, e.g., Environmental Protection Information Ctr. v. Cal. Dept. of Forestry and Fire (2010) 190 Cal.App.4th 317, 356, 357-359, 364-366 [reversing appellate court in part and affirming trial court in part,
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granted petitioners' approvals J.)

relief in striking two administrative

In denying the request of the successful appellant for 1021.5 fees, the appellate court in Ctr. for Biological Diversity v. Cal. Fish and Game Comm'n (2011) 195 Cal.App.4th 128, acknowledged the appellants' success on appeal in obtaining a correct application of

law, but pointedly recognized the action was not instituted to do so, but to obtain the affirmative relief sought by the action. Like Plaintiffs here, the Center attempted to recast the gravamen of its action. The court rejected the revisionist view of the Center's action and denied fees. (Id., at p. 141 [no success on strategic objective of actionl.)

The court of appeal's decision is also in harmony with the decision in Karuk Tribe of Northern Cal. v. Cal. Reg. Water Qual. Control Bd. (2010) 183 Cal.App.4th 330. In Karuk Tribe, the only relief obtained was an order for an administrative agency to clarify

its decision rejecting plaintiff's request to the agency that it issue waste discharge requirements and order submission of pollution However, after clarification

reports by hydroelectric companies.

by the agency, the trial court upheld the agency's rejection of plaintiff's request. The appellate court rever-sed the attorneys' fees

award, noting clarification of the agency's decision was not any of the relief sought by plaintiffs. The court pointedly stated, the "cold hard reality is that plaintiffs lost," rejecting as "completely

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unpersuasive"

the plaintiffs' "attempt to recast the purpose, scope,
(Id., at pp. 364-365; see also

and outcome of the litigation."

Urbaniak v. Newton (1993) 19 Cal.App.4th 1837, 1842 [party whose action was dismissed, with appellate affirmance, not successful party who could recover 1021.5 fees from the prevailing party].)

The several other cases on which Plaintiffs rely to support their "no-actual-relief-is-necessary" theory for challenging the or are consistent

court of appeal opinion are either distinguishable,

with the appellate court's reasoning in this case. Plaintiffs chide the court of appeal here for departing from the "accepted impact approach to success." (See Ptn. Rev. 29, citingCal. Common

Cause v. Duffy (1987) 200 Cal.App.3d 730.) The plaintiffs in Duffy accomplished what Plaintiffs here did not: Common Cause succeeded in establishing an illegal expenditure of public funds.

(See id., at pp. 740-744.) Thus, the 1021.5 fee award in Duffy is consistent with the "success" standards discussed by the appellate court below. (See Slip Opn. 4-6.)

This Court's recent decision in Serrano v. Stefan Merli, supra, 52 Ca1.4th 1018, on which Plaintiffs rely, provides no basis upon which to grant review. There, unlike here, the plaintiffs won their case, achieved the relief they specifically requested from the superior court and ultimately from this Court, which permitted 1021.5 fees against the party "at least partly responsible for the policy or practice that gave rise to the litigation." (Serrano v.

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Stefan Merli, supra, 52 Ca1.4th at pp. 1020-1022, 1024, 1027-1028, 1030, citations and internal quotations omitted.) The case is unusual in that the losing party was not a party in the action, but a deposition court reporting service which the courts found charged an unreasonable fee and ordered it to refund the fee. This Court

held the prevailing party in the intra-litigation dispute vindicated an important public right because the deposition reporters were considered officers of the court who perform a service of "considerable importance" in the broader administration
(Id., at pp. 1028-1029.)

of justice.

Finally, the Court noted,

merely because an appellate opinion is certified for publication does not mean it involves an important right affecting the public interest. The fact that litigation results in significant appellate precedent is only one factor to be considered in that regard.

(Id., at p. 1029.) This observation is consistent with the appellate

court's analysis in this case. While this Court accepted part of Plaintiffs' legal analysis in Vargas I, that decision on the issue of law did not change the fact that, unlike the prevailing party in Serrano v. Stefan Merli, Plaintiffs did not prevail and obtained no relief because their lawsuit had no merit. (Slip Opn, 5; Vargas I,

supra, 46 Ca1.4th at pp. 35-40.) II
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Similarly, Harbor v. Deukmejian (1987) 43 Ca1.3d 1078, does not help Plaintiffs. Plaintiffs argue, as they did below, that the City's argument against 1021.5 is flawed, because, as Plaintiffs see it, the City asserts they must have obtained a portion of the relief they sought by a formal adjudication. (Pet. Rev. 27.) This is not As the

the City's argument and it is not the standard for success.

City argued below, the party moving for 1021.5 fees must have achieved some portion of the relief they sought in bringing the action, whether by adjudication, settlement, a change of position by the opposing party motivated by the litigation, or any other means caused by the suit. (See, e.g., Graham, supra, 34 Ca1.4th at p.567.) The rationale for awarding 1021.5 fees in Harbor is embraced within the appellate court's decision here and the usual standards for success: that the public-interest litigant achieve --

whether by adjudication or other resolution caused by the litigation -- some portion of what they sought to accomplish in initiating their action. (See Slip Opn. 5 ["catalyst" basis for awarding fees].)

The petitioners in Harbor succeeded, in part, by seeking and obtaining an invalidation of "the Governor's power to veto ... part of a bill which is not part of an appropriation bill." (Harbor, supra, 43 Ca1.3d at pp. 1089-1091,1101-1103,1085 ["petitioners' position

must prevail on this issue," emph. added].) For this reason, the petitioners were entitled to recover fees under 1021.5. (Harbor,

supra, at p. 1103.)
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Plaintiffs rely on Buckhannon Bd. and Care Home. Inc. v. West Virginia Dept. of Health and Human Resources (2001) 532 U.S. 598, for the proposition that "prevailing" for purposes of a public-interest fee award does not require the party to have (Pet. Rev. 26.) To the

achieved their objective in the litigation.

contrary, Buckhannon reflects the same, ordinary "success" requirement,

the term "prevailing party," [is] a legal term of art ... define[d] .... Also termed successful party." ... [A] "prevailing party" is one who has been awarded some relief ....

(Buckhannon, supra, 532 U.S. 598,603, italics in orig, emph. added,
disapproved on other grounds in Graham, supra, 34 Ca1.4th at p.

557 [California law does not require success by "formal judicial relief", but instead recognizes success by other means caused by the litigation]; see Buckhannon, supra, at pp. 603-604.)

Finally, this is not a catalyst or impact case which induced action by the City. (See Bowman v City of Berkeley (2005) 131 Cal.AppAth 173, 178.) Plaintiffs' litigation "did not motivate [the City] either to provide the primary relief [they] sought or to modify [its] behavior," or result in "a judicially sanctioned or recognized change in the legal relationship of the parties." (Maria P., supra,

43 Ca1.3d at pp. 1291-1292; Marine Forests Society, supra, 160 Cal.App.4th at p. 877.) Nor is this a partial success case, as
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Plaintiffs did not obtain some but not all of the relief sought or prevail on some causes of action but not others. (See Bowman, supra, 131 Cal.App.4th at pp. 177-178.) Plaintiffs did not succeed at any step in achieving any of the result they sought in bringing suit. (See id., at p. 178, quoting Maria P., supra, 43 Ca1.3d at p. 1292; Slip Opn. 4-5; see First Appeal lCT 1-10 [claims made and remedies sought]; First Appeal IIlCT 718-730 [same].)

Every court that has reviewed the case, both in the first appeal and in this fee litigation, has determined Plaintiffs did not succeed in this case under the standards of 1021.5 and the cases thereunder.

To permit a litigant who utterly lost on every claim made in their action and obtained none of the relief and remedies sought, by any means, to recover fees under section 1021.5 would substantially alter the jurisprudence of the standards for such fees, and potentially convert every losing case in which a published opinion was issued into a 1021.5 motion.

Review should be denied.

II II II II II
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VI.
CONCLUSION For the reasons set forth in this Answer, the court of appeal opinion and the City's briefing below, and in the interests of justice, Plaintiffs' Petition for Review should be denied.

Dated:

JanuarvZL.

2012 Respectfully submitted, Vanessa W. Vallarta, Esquire City Attorney
CITY OF SALINAS

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

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PROOF OF SERVICE I, Amy M. Larson, declare as follows: I am a United States citizen, over 18 years old; my business address as related to this matter is 2100 Garden Road, Suite G, Monterey, California 93940; and I am not a party to the within action. On the date shown below I served a copy of: ANSWER TO PETITION FOR REVIEW on the parties listed below, by placing true copies thereof in a sealed envelope addressed as indicated below, with postage fully prepaid thereon, in the United States Mail at Monterey, California, and/or, if and as so indicated below, by causing such document(s) to be hand-delivered, sent by overnight delivery, or sent by facsimile transmission, to each of the following parties at the addresses and/or facsimile transmission telephone numbers set forth below: Steven J. Andre, Esquire
ATTORNEY AT LAW

26540 Carmel Rancho Blvd. Carmel, CA 93923-8736 (Counsel for Plaintiffs, Appellants and Petitioners) Clerk of the Court 333 W. Santa Clara Street Suite 1060 San Jose, CA 95113-1717
SIXTH ApPELLATE DISTRICT

MORA

CITY OF SALINAS and DAVE

(Defendants and Respondents) Addresses confidential

Clerk of the Court
MONTEREY COUNTY SUPERIOR COURT MONTEREY BRANCH

1200 Aguajito Road Monterey, CA 93940-4877 for delivery to the Hon. Susan M. Dauphine

For additional addressees, see attached list. I declare under penalty of perjury of the laws of the State of . California that each of the foregoing statements is true and correct, and that this declaration was executed on January ~ 2012, at Monterey, California.

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-----------------------~---------.-----------------

..-----------------------------------------------------

SERVICE LIST FOR AMICUS CURIAE

1901 Harrison Street Suite 900 Oakland, CA 94612-3501 (Counsel for Amicus Curiae, Eugene Lee President 1175 Yosemite Street Seaside, CA 93955-6127

BURKE, WILLIAMS & SORENSEN, LLP

Manuela Albuquerque,

Esq.

LEAGUE OF CALIFORNIA CITIES)

Johan Jogans Chairman of the Board Post Office Box 3954 Salinas, CA 93912-3954
CITY WATCH, INC.

SEASIDE TAXPAYERS ASSOCIATION

Deborah J. LaFetra, Esq. Brian T. Hodges, Esq.
PACIFIC LEGAL FOUNDATION

930 G Street Sacramento, CA 95814-1802 (Counsel for Amicus Curiae,

PACIFIC LEGAL FOUNDATION)

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