Dumb Case, But Not a SLAPP

Supershuttle Int’l, Inc. v. Labor & Workforce Dev. Agency, No. B292054 (D2d8 Oct. 7, 2019)

Supershuttle won a case in Sacto Superior against various state labor agencies, which resulted in a ruling that some of its drivers were independent contractors, not employees. But then the Labor Commissioner served Supershuttle with a bunch of so-called Berman notices in administrative wage claims brought by drivers in LA. 

The whole Berman procedure  doesn’t apply to independent contractors. But the Labor Commissioner indicated she didn’t intend to be bound by the Sacto ruling. So Supershuttle filed an action in LA Superior, seeking dec relief that the agencies were collaterally estopped from re-litigating the IC/employee issue on behalf of the drivers in the Berman hearings.

The Commissioner filed an anti-SLAPP motion, which the trial court denied. The Commissioner appeals. 

This is all a little hard to follow, because Supershuttle’s moves are kind of procedurally screwy. As the Court points out, Supershuttle could have just argued collateral estoppel in the trial de novo it gets in superior court on appeal of an adverse Berman ruling. So it’s not clear why this declaratory relief action is procedurally legit. (The collateral estoppel point also seems a little fraught, given that the drivers who are making the wage claims weren’t parties to the Sacto case. “Due process prohibits estopping [non-parties to prior cases] despite one or more existing adjudications of the identical issue which stand squarely against their position.” Blonder-Tongue Labs., Inc. v. Univ. of Illinois Found., 402 U.S. 313, 329 (1971).)

In any event, just because a case is dumb or procedurally flawed doesn’t make it a SLAPP. Here, the action arises from and challenges the Commissioner’s official quasi-judicial act of declining to apply preclusive effect to the prior judgment. Although official acts of government bodies are sometimes preceded or conveyed in communications, the acts themselves are not exercises of speech or petitioning. They are thus not subject to anti-SLAPP treatment. The Supreme Court was pretty clear on that in both Park and City of Montebello.

Affirmed.

Sue the City, Not Its Employees

Area 51 Prods. v. City of Alameda, No. A144654 (D1d4, on rehearing Feb. 20, 2018) 
 
This opinion takes to heart the key lesson of the Supreme Court’s decision in City of Montebello v. Vasquez, 1 Cal. 5th 409 (2016): While the anti-SLAPP statute generally does not apply to lawsuits challenging the official decisions of government entities, it can apply to lawsuits attacking the participation of individual government employees in coming to and announcing those decisions. 

The case is about the City of Alameda’s decision to stop licensing city property to an event planning company for its events. The court here affirms the denial of an anti-SLAPP motion as to the City’s alleged breaches of its contacts with the Event Planner. But it reverses the denial as to the employees of the city and a city contractor who helped managed the licenses. The allegations against these folks were based on their communicative activities related to the City’s official proceedings, and thus protected activity under Code of Civil Procedure § 425.16(e)(2). And since there was no reason they would be held liable on the city’s contracts, Event Planner also had shown no probability of prevailing against them.

Affirmed

But How Can a Brown Act Claim Be a SLAPP?

Cruz v. City of Culver City, No. B265690 (D2d8 Aug. 8, 2016)
 
We’ve had a pretty good run of decent anti-SLAPP decisions lately, so I guess I shouldn’t be too disappointed with this one. But it’s a real stinker.

Plaintiffs sued a city for violating the Brown Act by taking official actions that weren’t on its meeting agendas. The City filed an anti-SLAPP motion. According to the Court Appeal, the public interest litigation exception in Code of Civil Procedure § 425.17(b) does not apply to any party “seeking any personal relief.” Because the substantive city issue under consideration that Plaintiffs contend resulted in the Brown Act violations—something about parking regulations—was an issue in which Plaintiffs had some financial interest, the court finds that the exception does not apply.

Plaintiffs’ then apparently conceded that the case actually arises from protected activity. They disastrously failed to anticipate City of Montebello—decided by the Supreme Court on the same day this opinion was ordered published—which made abundantly clear that actions challenging the official legislative actions of governments (as opposed to individual capacity suits against government officials) don’t “arise from protected activity” under the anti-SLAPP statute.

The court goes on to find that plaintiffs failed to establish a probability of prevailing to prevail in their Brown Act challenge.

Affirmed.

This is a terrible precedent. There’s still a motion to modify pending. We'll see.

More on How to Deal with CCP § 425.16(e)(4).

City of Montebello v. Vasquez, No. S219052 (Cal. Aug.8, 2016).

Another big anti-SLAPP opinion drops from the Cal. Supremes.

Graft, Garbage, and Protected Activity

City of Montebello v. Vasquez, No. B245959 (D2d1 May 30, 2014).
 
Yet another (inadvertent) split of authority.