Referral to the DA Is Protected Activity

Santa Clara Wastewater Co. v. County of Ventura, Envtl. Health Div., No. B27867 (D2d6 Nov. 30, 2017)

After an explosion and fire at a wastewater treatment facility, a local regulator, coordinating with the county’s DA, conducted an investigation. The regulator determined that the Facility was storing hazardous waste without a permit. Although the regulator had the power to bring an administrative enforcement action against the facility, it declined to do that. Instead, it referred the matter to the DA for criminal prosecution.

The Facility sought a writ of mandamus in superior court. It claimed that the Regulator was required to provide a full administrative hearing before making a final determination on whether the Facility was, in fact, handling hazardous waste. The Regulator filed both a demurrer, which was granted, and an anti-SLAPP motion, which was denied. The Regulator appealed the anti-SLAPP ruling.

So this is yet another anti-SLAPP case that raises the Park issue. That is, it asks whether governmental conduct is protected activity. As the Supreme Court explained in Park, official governmental actions are not protected activity. But statements by governmental officials in the course of making those decisions can be. Determining the difference between the two requires an examination of whether it is the official action or the statements that make up the elements of the alleged claims. Suing your city councilperson for insulting you during public citizens’ question hour implicates protected activity. Suing a city for approving the permit for your neighbor’s quarry operations in a residential neighborhood, doesn’t, notwithstanding the vigor of the debate leading up to the approval. There is quite a bit of gray in between.

The court here doesn’t cite Park. Indeed, essentially all of the authority cited in the opinion regarding the application of the anti-SLAPP statute to government defendants is pre-Park. Regardless, the court holds that because the Regulator did not take any enforcement steps of its own, the gist of the cause of action is the communication of an enforcement referral to the DA. That, according to the court, is precisely the kind of governmental speech that is protected under the anti-SLAPP statute.

I think that’s probably right. But there’s a nuance that isn’t clear. If what the Regulator did here was nothing more than referring the case to the DA for potential criminal prosecution, it’s clearly protected activity under Code of Civil Procedure § 425.16(e)(2). What I can’t tell from the opinion, however, is the role and function of the Regulator’s “decision” that the materials being stored were “hazardous waste,” as defined under some statute. If the decision is informal—just something that influences when to refer, that will have to be proven up in the criminal case—it’s probably fine. But if there’s more formality to it—like if the hazardous waste decision has some grander legal or administrative significance—we might be within the “official acts” world of Park. 

Perhaps to illustrate. Suppose the criminal enforcement statute says it’s a misdemeanor to handle a hazardous substance without a permit. If the definition of “hazardous substance” is just a generic definition to be applied by a jury, or even a cross reference to a regulatory list compiled by some process unrelated to the Regulator’s investigation in this case, there’s no pertinent official act by Regulator and what we are dealing with is speech, not official action. But what if the criminal statute says that hazardous materials are any materials that the Regulator has decided are hazardous materials? If so, Regulator’s decision has an independent legal significance that adversely could affect affect the Facility in the criminal case. So if that’s the case, we’re likely in Park territory.

The tone of the opinion seems to suggest we are in the informal referral territory. The tone of the quotes from the Facility’s brief suggests it is something more, however. In any event, the statutory and administrative scheme here is really complicated and I’m not going to get to the bottom of it just to illustrate the point.

Finally, the court finds that because a demurrer was correctly granted, the Facility hasn’t met its burden to show potential success on the merits, which requires, at minimum, a legally viable claim. Although the trial court had afforded leave to amend, the court says that a plaintiff can’t avoid an anti-SLAPP motion by amending its complaint. 

The law on the amendment issue, however, isn’t as clear-cut as the court makes it out to be. It is indisputably the law that you can’t amend around an anti-SLAPP motion by taking out the allegations that make the claim subject to an anti-SLAPP motion in the first place. But it is not entirely clear if a plaintiff who comes forward with prima facie evidence to sustain her claim can amend to fix a curable pleading defect that would otherwise preclude a likelihood of success. A well-reasoned case says that should be allowed. See Nguyen-Lam v. Cao, 171 Cal. App. 4th 858, 871 (2009) (amendment for that purpose permitted). But the case cited in this case—Hansen v. Dep’t of Corr. & Rehab., 171 Cal. App. 4th 1537, 1547 (2008)—and now this case suggest it can’t.

Reversed.