Trashing your Neighbors Is Not Speech in the Public Interest

Dubac v. Itkoff, No. B317061 (D2d8 Apr. 19, 2024)

This is an ugly beef between neighbors who dislike each other. A lot. Over a several month period in 2020, two of the neighbors (a husband and wife couple) sent a number of emails impugning the character of the other neighbor. They called him racist, accused him of accosting various women, called him a liar, and accused him of various and sundry misconduct connected to his role as a member of the board of the HOA of a six-unit condo building they all live in. 

Neighbor B sued Neighbors A for defamation and other torts along that line. Neighbors A respond with an anti-SLAPP motion, which the trial court mostly denied. Neighbors A appeal. The rub of the appeal is that, for the statements at issue to be “protected activity” under the anti-SLAPP statute, Code of Civil Procedure § 425.16, they need to have been made in connection with a “public issue” or an “issue of public interest.”

Here, they weren’t. They were made on small fora, where the general audience was the other homeowners in the condo. Even the statements that weren’t just personal attacks—like the claims about mismanaging the condo board—were not matters of public interest such that large numbers of people would care about them. 

The Court does a useful canvass of “name-calling” cases in the anti-SLAPP contexts, confirming that essentially private disputes are not the stuff of anti-SLAPP protection. As the court puts it:

The general public did not and could not know about this intra-building tiff. The audience was always tiny. It was never the ‘public.’

Affirmed.

Calling Mr. Wilson...

Golden Gate Land Holdings LLC v. Direct Action Everywhere, A163315 (D1d1 July 13, 2022)

As they sometimes do, some animal rights Protesters created a ruckus at a horse racing Track in Berkeley. They successfully prevented a day’s worth of races. Track sued Protesters and the Organization of which they are members for trespass and interference with contract. Organization was sued on a nebulous alter ego/agent/conspiracy theory. Organization brought an anti-SLAPP motion, arguing that because it did was not alleged to have participated in the disturbance as an organization, the claims could only arise from its First Amendment protected petitioning activity. The trial court denied it.

The Court of Appeal rejects the Organization’s claim that the claims arise from petitioning. Relying on the analysis from Park, it looks to the elements of the claims. And here, the conduct that makes up those elements are the trespass on to the Track’s property. Of course, the Track would also need to plead and prove some degree of authorization/ratification/direction/etc. to put the Organization on the hook vicariously. 

But, relying on Spenser v. Mowat, Simmons v. Bauer Media Group, and Richmond Compassionate Care Collective v. 7 Stars Holistic Foundation,  the Court finds that the claims cannot arise from that additional vicarious-liability-creating element. And indeed, the complaint doesn’t actually allege any facts that would make up that element, and the Organization submitted a declaration denying involvement. But the Court notes it is reviewing an anti-SLAPP motion, not a demurrer or summary judgment, which might properly apply. And since the trespass from which the claims arise is clearly not protected, the motion was correctly denied.

Affirmed.

Two things here. The first is a little nitpicky. The Court swats down the trespass as obviously not protected. But because that activity has what appears to be a speech or petitioning based motivation, the court needs to ask if it is “other conduct in furtherance” under § 425.16(e)(4) using the test in Wilson. That test essentially (in my words) asks if the conduct would plausibly be First-Amendment protected. Which it wouldn’t be. 

The second issue is more complicated. As I discussed in my post on Spenser, the acts that create vicarious liability could be quintessential protected activity. After all, a conspiracy is just an agreement, and much of political activism is agreeing with like-minded people in an effort to achieve a political goal. So the idea that a claim categorically cannot arise from the “conduct that allegedly established the vicarious liability” is overbroad. 

It is also inconsistent with the holding in Wilson that protected conduct is adequate to satisfy the arising from test if it “supplies one or more elements of a plaintiff’s claims.” One would be hard pressed to argue that an agreement is not an element if a civil conspiracy claim or that control is not an element in a claim grounded in agency.

Indeed, the Court seems to leave a little window open for that when it distinguishes Contreras v. Dowling, a case where an attorney was sued on a theory of vicarious liability. But the act that established vicarious liability in Contreras was the attorney’s act of communicating on behalf of a client, which is fundamentally communicative. And, unmentioned here, in Ratcliff v. Roman Catholic Archbishop of L.A., after a summary reversal by the Supreme Court, the 2/5 recently found that vicarious-liability-creating conduct did not implicate the anti-SLAPP statute. Unlike its pre-reversal opinion, it did not come to that result because legally, a claim can’t arise from that element. Instead, the Court of Appeal held that, under the facts of that case the liability-causing conduct was not actually proteced activity. Any protected activity alleged was incidental to the claim.

So if a case can arise from conduct creating vicarious liability, provided that such conduct is sufficiently communicative, the question remains: is that the case here? As the Court notes, the track didn’t plead anything in this regard—it just listed a series of conclusory theories of vicarious liability. But Wilson says in examining what a claim arises from, we also need to consider evidence submitted by the moving defendant. Here, the pleading is silent and the only evidence appears to be an uncontradicted declaration that the Organization engaged in regular old First Amendment advocacy stuff and did not command or solicit the trespass. If that’s the case, then, per Wilson, the Organization has made a prima facie case that the claim arises from protected activity. 

Would not be surprised to see a review petition out of this one.

A Firm Line in the Peer Review Sand

Bonni v. St. Joseph Health Sys., No. S244148 (Cal. Jul. 29, 2021)

There has been a lot of litigation over the application of the anti-SLAPP statute employment litigation touching on hospital peer review processes. Peer review is an “official proceeding,” so questions often arise regarding whether employment decisions made in connection with a peer review process are “protected activity” under Code of Civil Procedure § 425.16(e). 

I have been droning on about the appropriate line to draw for years. If the rub of the litigation is that someone is liable for some statement made in connection with a peer review process, it is protected. But the ultimate decision or result of a peer review—generally a decision to continue or discontinue a physician’s employment or privileges—is not such a statement. So, for instance, when a doctor sues a hospital for retaliatory discharge, but the hospital claims that its peer review decision grounded in quality of care was a legitimate non-retaliatory reason for the firing, no protected activity is involved.

That’s basically what the Court of Appeal held in this case in 2017. And that’s what the Supreme Court, in a unanimous opinion by Justice Kruger, holds here. 

There is one little twist to the analysis, however. In Wilson, the Supreme Court refined the elements based “arising from” analysis from its prior decision in Park to specify that if any single element of a cause of action constitutes protected activity, it satisfies the test. So in Wilson the defendant—CNN—claimed that the very act of firing the plaintiff for plagiarism was protected because it itself was an act of journalistic ethics enforcement and thus affected its ability to speak on an issue of public concern. In reaching that result, the Court disapproved of the Court of Appeal’s decision in this case, to the extent that it somewhat categorically suggested that the act of terminating someone categorically cannot constitute protected activity. But that doesn’t really matter here, because, unlike CNN, the hospital here doesn’t claim that terminating the doctor for alleged poor care—the result of the peer review—was itself some kind of protected expressive act or otherwise an act in furtherance of its ability to speak. 

The Court also addresses a second issue, although it seems like that issue was already settled by the Court in Baral, which held that the anti-SLAPP analysis needs to parse and strike only the protected allegations within a claim. Plaintiff’s claim here was mixed—some of his allegations were addressed to protected statements made during the peer review, while others were addressed only to the unprotected outcome. 

But defendant’s motion—filed pre-Baral—was addressed only to the cause of action as a whole. So Plaintiff argues that Baral should only apply when the moving defendant specifies the sub-parts of a cause of action that should be struck. Otherwise, says the plaintiff, courts should apply the “gravamen” test that some courts used prior to Baral. The Supreme Court, however, isn’t buying it. If a moving defendant fails to show that specific portions of a cause of action arise from protected activity, it has not met its burden on those claims under Baral and the analysis of those claims needs to proceed no further.

Court of Appeal affirmed.

Paying $50k Is Not a Favorable Termination

Citizens of Humanity v. Ramirez, No. B299469 (D2d5 Apr. 19, 2021)

Employer settled a wage and hour case with employee, on an individual basis, for $50k. Then it sued her and her lawyer for malicious prosecution. But you can’t do that. An element of malicious prosecution is a termination of the prior action in a manner favorable to the current plaintiff. Obviously, a $50k settlement is not a favorable termination, even if it ends the litigation with a dismissal. And since a malicious prosecution claim is a lawsuit based on a prior lawsuit, the anti-SLAPP statute is implicated. Here, such a motion should have been granted. 

Reversed.

Anti-Slapp Coverage Is Close, But Not the Same, as Civil Code § 47

RGC Gaslamp v. Ehmcke Sheet Metal Co., No. D095615 (D4d1 Oct. 23, 2020)

As a step generally predicate to litigation, the recording of a mechanic’s lien constitutes “protected activity” under the anti-SLAPP statute. See Code Civ. Proc. § 425.16(e)(1), (2). As the Court of Appeal here explains, that’s the case even if the recording was somehow defective under the mechanic’s lien statutes. Nor, in meeting its initial burden, does the party seeking anti-SLAPP relief need to show that the lien, in actuality, relates to litigation that is contemplated in good faith and under serious consideration. That, no doubt, is a requirement for the protection of pre-litigiation communications under the litigation privilege in Civil Code § 47(b). But that’s an anti-SLAPP step 2 issue about the merits, not an issue over whether a claim “arises from protected activity” under step 1.

The Court of Appeal also finds that it was an abuse of discretion to strike evidence that the moving defendant submitted on reply. This wasn’t some brand new evidence that could have been included with the motion. It was, instead, supplemental to that offered in the opening papers, offered in order to rebut a specific argument raised in the opposition. Despite the common exhortations against reply evidence, that’s ok.

Affirmed.

You Are (Not) (the Government)

Patel v. Chavez, No. B291695 (D2d1 Apr. 30, 2020)

Plaintiff brought a federal civil rights claim under 42 U.S.C. § 1983 and a petition for writ of administrative mandate against former employee for giving false testimony before the Labor Commissioner. 

That doesn’t really make any damn sense, for any number of reasons. (Plaintiff also sued the Commissioner, who got out on demurrer.) But it does provide a basis for an anti-SLAPP motion. Because giving testimony, true or false, in an administrative proceeding is most certainly protected activity under Code of Civil Procedure § 425.16(e)(1). 

The question, however, is whether the anti-SLAPP statute can apply to a purely federal law claim. As with most issues that implicate the Erie doctrine, it’s confusing. 

The Ninth Circuit has held that, as a matter of California law, the anti-SLAPP statute creates a substantive immunity from suit. Batzel v. Smith, 333 F.3d 1018, 1025 (9th Cir. 2003). But not without controversy. See Travelers Cas. Ins. Co. of Am. v. Hirsh, 831 F.3d 1179, 1182 (9th Cir. 2016) (Kozinski, J., concurring) (calling for en banc review of Batzel); Planned Parenthood Fed'n of Am., Inc. v. Ctr. for Med. Progress, 890 F.3d 828, 835 (9th Cir. 2018) (Gould, J., concurring) (same). Thus, an anti-SLAPP motion can be brought in federal courts, at least to the extent the procedures in § 425.16 don’t conflict with on-point federal rules of civil procedure. Cf. Metabolife Int'l, Inc. v. Wornick, 264 F.3d 832, 846 (9th Cir. 2001) (holding that the discovery stay in § 425.16(g) conflicts with Fed. R. Civ. P. 56(d)’s right to obtain targeted discovery to oppose summary judgment). But the motion can only apply to California state law claims. Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010) (“[A] federal court can only entertain anti-SLAPP special motions to strike in connection with state law claims[.]”).

a federal court can only entertain anti-SLAPP special motions to strike in connection with state law claims,

Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010)

a federal court can only entertain anti-SLAPP special motions to strike in connection with state law claims,

Hilton v. Hallmark Cards, 599 F.3d 894, 901 (9th Cir. 2010)

On the other hand, California state courts—including the Supreme Court—view the anti-SLAPP remedy as “a procedural device for screening out meritless claims[.]” Jarrow Formulas, Inc. v. LaMarche, 31 Cal. 4th 728, 737 (2003).* As such, a federal-law cause of action filed in state court can be attacked with an anti-SLAPP motion unless there’s some federal law reason such as obstacle preemption that requires it not to apply.

And as the court here explains, nothing in the anti-SLAPP regime stands as a obstacle to litigating meritorious § 1983 claims in California state court. In particular, the court holds that the discovery stay in § 425.16(g)—which can be lifted on good cause—and the attorney fee-award provisions in §425.16(c) do not unduly burden a plaintiff’s ability so litigate a §1983 claim.

Moving onto the anti-SLAPP analysis, as I said, “arising from” is basically self-evident. And so far as the minimal merit prong goes, both § 1983 and mandamus apply to state actors. Being a witness in a Labor Commission proceeding does not make you the government. 

Affirmed.

*The Ninth Circuit case that found the anti-SLAPP statute created a “substantive immunity” was decided in 2003 and relied almost entirely on legislative history to make that determination. See Batzel, 333 F.3d at 1025. But it did, at least implicitly, seem to recognize that whether the statute crated a procedural or substantive rule was a question of, or at least significantly informed by, California state law. 

If we accept that premise, it’s hard to understand why the anyone should view Batzel as good law of the circuit, absent a disapproval en banc. The California Supreme Court has literally described the anti-SLAPP scheme as “procedural” no fewer than five times since Batzel was decided. See Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism, 4 Cal. 5th 637, 645 (2018); Rusheen v. Cohen, 37 Cal. 4th 1048, 1056 (2006); Flatley v. Mauro, 39 Cal. 4th 299, 312 (2006); Soukup v. Law Offices of Herbert Hafif, 39 Cal. 4th 260, 280 (2006); Kibler v. N. Inyo Cty. Local Hosp. Dist., 39 Cal. 4th 192, 202 (2006); Jarrow, 31 Cal. 4th at 737. And many other cases implicitly recognize the procedural nature of the motion, even if they don’t say so quite so explicitly. See, e.g., Wilson v. Cable News Network, Inc., 7 Cal. 5th 871, 883 (2019).

So there’s no need to go en banc. Since the California Supreme Court binds everyone on questions of California law, this is a pure Miller v. Gammie, 335 F.3d 889, 892–93 (9th Cir. 2003) (en banc) situation, where the panel decision can be deemed so undermined by controlling, higher, precedent, that it doesn’t need to be followed, even in the absence of an explicit reversal en banc or by the U.S Supreme Court.

FWIW, now that we’ve fully grocked out on law of the circuit, the second verse of this 32 year-old SoCal classic does really feel kind of right for the time.

The Logical Limits of an Element Based Anti-SLAPP Analysis

Spencer v. Mowat, No. B295738 (D2d5 Mar. 24, 2020)

Plaintiffs in this case allege that defendants are a gang of local surfers in the PV who have conspired in a campaign of intimidation and violence to prevent outsiders from surfing their break. Two defendants—alleged to have been members of the conspiracy but not to have personally committed any violent acts—brought an anti-SLAPP motion. It was denied.

On appeal, the court makes relatively short shrift of the argument that the claims arise from protected activity. In doing so, it focuses on the various violent acts committed by others in furtherance of the alleged conspiracy, which cases like 7 Stars regard as a proper focus of applying “arising from” to a conspiracy.

Affirmed.

At high level of generality, the analysis here makes some practical sense, for the same reason I thought 7 Stars was not a particularly hard case.

But 7 Stars was decided several months before the Supreme Court’s decision in Wilson. There, the court (in a discrimination case) held that if conduct that makes up any element of a multi-element tort satisfies the arising from test, then the first prong of the anti-SLAPP analysis is satisfied. That is the case, notwithstanding the fact that liability turns on the proof of other elements that are clearly not protected activity. Thus, in Wilson, the fact CNN had a colorable claim that it fired the plaintiff to enforce journalistic ethics against plagiarism was adequate to be “protected activity.” That was the case even though the crux of plaintiff’s claim—that he was fired because of his or her race—is not protected by the First Amendment.

In a conspiracy case, the existence and scope of the agreement is a key element of the claim. So following Wilson, to decide whether a conspiracy claim arises from protected activity, a court would need to look at whether the agreement itself is could be “other conduct in furtherance” under Code of Civil Procedure § 425.16(e)(4), notwithstanding the fact that roughing up Barneys from the Valley is obviously not constitutionally protected. 

And in doing that analysis, Wilson says a court needs to credit, to some significant degree, the moving Defendant’s evidence. So what if, in this case, Defendants put in evidence akin to CNN’s evidence in Wilson? Suppose defendants declared that they were an informal community organization concerned with the negative consequence of overuse of certain beaches, which Defendants believed merited a rule that beach access should be constrained to members of the local community? Taken at the same value the court gave the CNN’s evidence in Wilson, wouldn’t the agreement element of the conspiracy claim implicate the defendants’ freedom of association, and thus satisfy § 425.16(e)(4)? Notwithstanding that the overt act element of the claim entails stuff that is clearly outside of the First Amendment?

I've haven’t yet managed to come up with a fully-theorized answer to this that jives with Wilson. But it does illustrate how that there are a lot of unresolved questions left open by the formal element-based framework adopted by the Wilson court.

Straight-Up Park

Laker v. Bd. of Trustees of the Cal. St. Univ., No. H044836 (D6 Feb. 28, 2019)

This SLAPP case is a pretty straight-up application of the Supreme Court’s Park decision. Plaintiff—a Professor at San Jose State—complained to various university officials about the adequacy of the University’s investigation of a Title IX complaint a student had made against his Department Chair. Professor claims that in response, the Department Chair and the University ginned up some phony sexual harassment investigations against Professor. He sues for defamation in the statements that were made as part of the investigations and for retaliation under the FEHA.

As an astute reader of Park would know, the defamation claims arise from the protected activity, but the retaliation claims generally do not. 

It’s well-established that a public university’s internal investigations are “official proceedings authorized by law.” And under Park, claims whose fundamental elements rely on statements made in or in connection with them “arise from protected activity” under Code of Civil Procedure § 425.16(e)(1) or (2). 

Professor tries to throw up an argument that the proceedings were a “sham” and thus “illegal” and there for outside the purview of the anti-SLAPP statute under Flatley. But if you have learned one thing from reading this blog, you know that Flatley arguments almost always fail because the standard is almost impossible difficult to satisfy. Which is the case here too.

Moreover, for essentially the same reason the claims arise from protected activity, the statements in the investigations are privileged under the absolute “official proceedings” privilege in Civil Code § 47(b)(3).

The retaliation claims, however, are different. The gist of a retaliation claim is that the defendant made some adverse employment action to unlawfully punish the speech of the plaintiff. Most employment decisions aren’t protected, even if communications will be used as evidence to prove up the plaintiff’s claim. That said, when the adverse decision is itself a speech act (e.g., I complained so you trashed my reputation in the press)—it can be protected. 

So most of the retaliation claim stands. The University’s official decision to launch an investigation is not itself speech, even if it is sometimes carried out through it. But to the extent that Professor’s theory is that University retaliated against him by defaming him in the investigations that’s going to be protected and privileged under the Civil Code for the same reason as the defamation claim.

Reversed in part.

An Easy SLAPP Call

Richmond Compassionate Care Collective v. 7 Stars Holistic Foundation, Inc., No. A153305 (D1d2 Feb. 21, 2019).

We talk a lot about the kinds of activity that fall around the edges of protection under the anti-SLAPP law. Here’s something that clearly isn’t: When the operators of the three incumbent marijuana dispensaries in a city conspire to engage in fraud, intimidation, and other skullduggery to prevent any commercial landlord in their city from renting any space to a potential fourth competitor. That might violate the Cartwright Act, the Sherman Act, the UCL, and maybe even RICO. But it’s not protected activity.

Affirmed.

Eddie Money + Employment Litigation = SLAPP?

Symmonds v. Mahoney, No. B283529 (D2d1 Feb. 1, 2019)

Eddie Money fired his Drummer, who has cancer and a bad back. Drummer sued under FEHA, alleging disability and age discrimination. Eddie filed an anti-SLAPP motion, alleging that the claims arose from his First Amendment Protected write to make his music without being hassled by the man. Which the trial court, quite sensibly, denied.

But the Court of Appeal reverses. 

Waiting on Wilson

Rall v. Tribune 365 LLC, No. B284566 (D2d8 Jan. 17, 2019)

In 2015, a Cartoonist and blogger for the Los Angeles Times wrote a blog post complaining about the way an LAPD officer treated him during a jaywalking stop back in 2001. That must peeved the LAPD pretty bad. Because the cops dug up evidence that the stop—fourteen years in the past—didn’t go down the way Cartoonist claimed and gave it to the Times. The Times did its own investigation. It decided that Cartoonist wasn’t playing it straight. The Times ultimately published a statement and a report of its investigation. It cut ties with Cartoonist and stopped publishing his work. 

You Sue Me. I Sue You.

Moss Bros. Toy, Inc. v. Ruiz, No. E057240 (D4d2 Sept. 20, 2018)

An employer sued one of its former employees for bringing two employment related lawsuits instead of resolving the disputes in arbitration. If suing someone for suing you sounds like a SLAPP, that’s because it is. And since the employer can’t even prove up the existence of an arb agreement, it also can’t prevail. 

 

(Plaintiff could have also pointed out—per last-years Sargon decision—that damages are not a remedy for breach of a contract to arbitrate. Just specific performance.)

 

Affirmed.

Michael Jackson Is Not Michael Jackson

Serova v. Sony Music Entm’t, No. B280526 (D2d2 Aug. 28, 2018)

About a year and a half after Michael Jackson died, his Label released an album called Michael, which purported to contain his final recordings. There’s been some controversy about the record. In particular, there are rumors that Jackson didn’t sing lead on all or some of the tracks—a soundalike was used instead. Plaintiffs here brought a class action against the Label and Jackson’s estate under the UCL, FAL, and CLRA. Key to the issue on appeal is that they asserted that album’s cover and some promotion materials were misleading because they suggested that Jackson was the lead singer on everything.

Every Stupid Case Isn't a SLAPP

Yeager v. Holt, No. C079897 (D3 May 16, 2018)

Famed test pilot Chuck Yeager got successfully sued for fees by his former attorney. He apparently retaliated by suing the attorney for malpractice, breach of fiduciary duty, and other stuff. Attorney filed an anti-SLAPP motion. But this case isn’t a SLAPP. It is well-established that a case being motivated by a prior litigation does not necessarily mean the new case arises from the prior one. Yeager isn’t suing Attorney for suing him for fees. He’s suing him for doing a bad job. And while this lawsuit might be frivolous or barred by res judicata from the earlier case, that alone doesn’t make an anti-SLAPP motion the appropriate remedy to get it dismissed.

Affirmed.

Inspector General Investigations Merit Anti-SLAPP Protection

Blue v. Cal. Ofc. of the Inspector General, No. C083195 (D3 May 10, 2018)

Some prison Guards sued the Office of the Inspector General, a body created to provide oversight over internal affairs investigations and the disciplinary processes of the California Department of Corrections and Rehabilitation.

The Baral-Park 1-2 . . .

Newport Harbors Offices & Marina, LLC v. Morris Cerullo World Evangelism, No. G054146 (D4d3 May 9, 2018) 

This is a long-running real estate litigation over a sublease to an office building in the OC. There have been four different appeals in the case, including a trip to the Supreme Court last year. Most of them are disputes over anti-SLAPP motions. This one is too.

A Trade Association Is Not an Official Proceeding

Kettler v. Gould, No. B282160 (D2d8 Apr. 20, 2018)

Some Heirs are upset with the Trustee who manages their late parents’ trust, to which Heirs are beneficiaries. Heirs complained about Trustee’s conduct, quite vociferously. They accused him of embezzlement, elder abuse, perjury, and a bunch of other bad stuff to, among others, FINRA, the California Department of Insurance, the Certified Financial Planners Board of Standards, Trustee’s employer, and an insurance company.

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

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.

Park Rolls On

Shahbazian v. City of Ranch Palos Verdes, No. B271562 (D2d7 Nov. 22, 2017)

Some grumpy Palos Verdeans in a fence dispute with their neighbors sued a City for issuing an “over-the-counter after-the-fact permit” that approved the new fence. The City filed an anti-SLAPP motion, which the trial court denied on the basis that issuing a permit is not protected activity under Code of Civil Procedure § 425.16(b)(1). The City appealed.

It’s pretty much all Park from here. There, the Supreme Court explained that while governments do and can speak and petition, normal official acts of government are not speech or petitioning, even though they are often arrived at by speaking beforehand and conveyed though some communicative act. Like issuing a permit. So there’s no protected activity.

Affirmed.