Opinion
G038499
9-4-2008
CALIFORNIANS AWARE etc., et al., Plaintiffs and Appellants, v. ORANGE UNIFIED SCHOOL DISTRICT etc., et al., Defendants and Respondents.
Moskowitz, Brestoff, Winston & Blinderman, and Dennis A. Winston, for Plaintiffs and Appellants. Parker & Covert, Spencer E. Covert and Michael T. Travis, for Defendants and Respondents. Sheppard Mullin Richter & Hampton, Guylyn R. Cummins and James M. Chadwick; Stephen R. Barnett; Peter Scheer, as Amicus Curiae for California First Amendment Coalition. Rutan & Tucker, David C. Larsen and Lona N. Laymon, as Amicus Curiae for California School Boards Association and Educational Legal Alliance.
Not to be Published
Californians Aware and Richard P. McKee, the president of its board of directors (collectively CalAware), along with Steve Rocco, a member of the Board of Education (the Board) of the Orange Unified School District (the District), appeal from the order striking their "Verified Petition for Writ of Mandate, an Injunction, and Declaratory Relief" against the District and Thomas Godley, its superintendent. The trial court struck the petition in its entirety, following a motion brought by the District and Godley pursuant to Code of Civil Procedure section 425.16 (hereinafter section 425.16, or the anti-SLAPP law.)
We affirm. Although CalAware and Rocco purported to state four distinct causes of action in their petition, its aggressively-inclusive pleading style — in which it first alleged all the relevant facts, incorporated those facts into the first cause of action, then successively incorporated all the facts and all the paragraphs into each successive cause of action (including the relief requested), and ultimately prayed for broad relief based upon the entirety of its claims — requires that we combine the allegations accordingly for purposes of determining the applicability of the anti-SLAPP law. To the extent that each cause of action includes the others, we cannot analyze it independent of those others.
Thus, only the petitions first cause of action, which attacks the Boards resolution of censure against Rocco, as well as the Districts act of editing his comments out of the videotape it produced for cable television, can be assessed independently for purposes of determining whether the anti-SLAPP law is applicable. And it clearly is, since both the resolution and the tape are classic examples of communication in connection with a public issue. After that, the second and fourth causes of action, which state alternative theories of liability based upon those first covered acts, are likewise subject to the anti-SLAPP law. And while the censure resolution and videotape editing allegations, incorporated into the third cause of action as well, might be characterized as merely incidental to that claim, the anti-SLAPP law is nonetheless triggered by the claims allegations of improper communications by the Board in a closed session. Moreover, we reject the assertion that the petition falls within the public interest exemption to the anti-SLAPP law, as provided for in Code of Civil Procedure section 425.17. Although some aspects of the case might be characterized as promoting the public as opposed to a private, interest, that is clearly not the sole purpose of the petition. A significant, and perhaps the most significant, interest promoted in the petition is Roccos own, and that interest cannot be nullified by the mere addition of other petitioners.
We also conclude that CalAware and Rocco have failed to sustain their burden of demonstrating a probability of success on any of the claims in their petition. The first cause of action seeks a declaration that the censure resolution violated the Ralph M. Brown Act (Gov. Code, §§ 54950 et seq.) (hereafter the Brown Act), and the issuance of a writ of mandate pursuant to its provisions. However, CalAware and Rocco have failed to demonstrate the censure amounted to such a violation. The Board did nothing to prohibit Rocco from expressing the opinions which prompted the censure, and nothing in the censure resolution limits his ability to express such opinions in the future. Instead, the censure resolution was merely the Boards expression of disapproval concerning Roccos decision to speak in open session about a personnel matter, in contravention of the Boards policy that discussion of such matters must be confined to closed session.
The second cause of action, alleging that the censure resolution, along with the Districts decision to edit Roccos comments from the videotape it produced for distribution to cable television outlets, violated the civil rights of both Rocco and the public, fares no better. Again, the alleged wrongful actions did nothing to prohibit Rocco from exercising his freedom of speech, nor did they prohibit any member of the public from having access to those comments. Instead, the Board and the District were merely exercising their own free speech rights. Further, the videotape copies produced by the District and distributed to cable outlets were not a statutory public record of the meeting. The original video, which remained unaltered, was that public record. The District has the right, as an entity, to choose not to republish comments it considers to be in violation of the Boards privacy policy, or to be potentially defamatory.
The third cause of action alleges the District violated the Brown Act because the Board illegally decided, in closed session, to reassign the principal of one of the Districts high schools to another of its high schools, without including the matter on any of its agendas or otherwise publicly reporting it. However, the undisputed evidence demonstrates the decision was made and carried out by Superintendent Godley, rather than the Board, pursuant to a preexisting authority granted to him by the Board. Consequently, the matter was not required to be included on a Board agenda. And CalAwares and Roccos attempt to co-opt that evidence, as a basis for arguing that the Board would also have acted wrongfully in delegating the decision to Godley, fares no better. Whatever merit that claim might have had, its not the one alleged in the third cause of action.
CalAwares and Roccos fourth cause of action asserts that the Districts act of editing Roccos statements from the videotapes it produced for distribution to cable outlets violated Government Code section 6200 and the California Public Records Act. (Gov. Code, §§ 6451 et seq.) However, as stated above, the Districts voluntary dissemination of a videotape depicting something less than the entirety of a Board meeting, did not alter or falsify the public record of that meeting. The public record of that meeting is the original tape, which remained intact and available for inspection by the public.
Finally, amicus curiae California First Amendment Coalition, has filed a brief urging us to rule that the order must be reversed because the anti-SLAPP law is inapplicable to claims seeking relief under the Brown Act, the Public Records Act, or Federal civil rights laws. We decline to do so. None of those contentions was raised by CalAware and Rocco, either in the trial court or in their opening brief on appeal. The contentions are consequently waived. (Newton v. Clemons (2003) 110 Cal.App.4th 1, 11, ["`[I]t is fundamental that a reviewing court will ordinarily not consider claims made for the first time on appeal which could have been but were not presented to the trial court."]; Fourth La Costa Condominium Owners Assn. v. Seith (2008) 159 Cal.App.4th 563; Bettencourt v. City and County of San Francisco (2007) 146 Cal.App.4th 1090, 1101 ["Typically, constitutional issues not raised in earlier civil proceedings are waived on appeal."].) We will not permit these previously waived issues to be revived on appeal by the unilateral act of a non-party. "`"[The] rule is universally recognized that an appellate court will consider only those questions properly raised by the appealing parties. Amicus curiae must accept the issues made and propositions urged by the appealing parties, and any additional questions presented in a brief filed by an amicus curiae will not be considered [citations]."" (Younger v. State of California (1982) 137 Cal.App.3d 806, 813-814; Bruno v. Superior Court (1990) 219 Cal.App.3d 1359, 1365.)
Based upon all of the foregoing, we conclude the trial court did not err by granting the motion to strike the petition in its entirety.
FACTS
Roccos and CalAwares "Petition for Writ of Mandate, an Injunction, and Declaratory Relief . . ." alleges the following: The Board held a regular meeting on September 14, 2006. At the commencement of the meeting, the Board voted to go into closed session to discuss an agenda item identified as "Public Employee Appointment, Interim Principal High School, Government Code § 54957." Rocco did not participate in the closed session. When the Board returned from the closed session, the Districts Superintendant Godley, announced that the Board had voted in closed session to appoint Dr. David Steinle as interim principal at Villa Park High School.
It is undisputed that Rocco generally refuses to participate in the Boards closed sessions.
Thereafter, during a discussion of prior agenda items, Rocco "sought recognition" to ask the Board President "Since I dont attend closed sessions, is Mr. Steinle the person who will be taking the place of Ben Rich?" The President answered "yes." Rocco then inquired where Rich would be going, and Godley replied "[h]ell be reassigned." Rocco then stated he wished to make a comment about "the Villa Park High School situation," but was told by the president he would have to wait until the end of the meeting. Specifically, Rocco was asked whether his comment was "a positive acknowledgement" for the students, staff, or community, because the agenda item currently being discussed, entitled "Board Recognition of Students, Staff, and Community," was intended only to encompass such positive statements. If his comments were not a positive acknowledgment, they would have to wait.
Near the end of the meeting, the Board reached its final agenda item, entitled "Board/Staff Conference and Comments," the president invited Rocco to speak: "Mr. Rocco, you had something you wanted to say?" Rocco then stated "First of all Id like to talk about the Ben Rich matter. And I would [have] preferred to have done this at the beginning of the meeting, but Ill take the end. [¶] As you know, I dont attend closed sessions and Ive never voted to fire anybody. And my reasons are stated because I dont believe in the basic fairness is given either to teachers or students. I think that administrators, its a tough sell to get rid of an administrator. And it costs a lot of money to pay their salary, they get secretaries, and once they go from this job, theyll probably get another job. And the same isnt true of teachers. [¶] So to send Ben Rich from probably one of the best performing schools in this district, to one of the least performing schools, does a disservice to the students. And it just sets up a very bad practice. And so as I said, Ive never voted to fire anyone, but I would fire Ben Rich. It would send a message and it would stop a lot of . . . a practice which has gone on for a long time. And things are good for administrators, it really is. I mean you hire and fire, and when the consequences come down that youre not doing a good job, then you just get transferred. [¶] So I would vote to fire Ben Rich, and when he shows up here Im probably going to ask him, `[w]hy arent you fired yet? But he will be here, and hell get a salary, and the people of Orange will pay his salary, and the students at Richland Continuation will be suffering with the results of what happened at Villa Park High School, which to me isnt good. [¶] So just to let the people know out there, Im willing to fire people, but I have to know the issues, and I have to know the facts, and Ill go along with it."
Rocco then expanded his comments to the topic of "nepotism and cronyism in the District," at which point another Board member objected and indicated he was leaving. A "confrontation" between that Board member and Rocco ensued, and the meeting was quickly adjourned, despite Roccos insistence that he had further comments to make.
The District later sent out videotapes of the September 14, 2006 meeting, "for cable broadcast to communities within the District" — a standard District practice. However, the videotapes distributed did not include the comments made by Rocco at the end of the meeting. Instead, the tape simply ends after the penultimate agenda item, entitled "Communications to the Board," and omits entirely the item "Board/Staff Conference and Comments." The video ends with the notice "This has been a production of the Orange Unified School District Thomas A. Godley, Ed.D. Superintendent . . . Orange Unified School District Board of Education Meeting September 14, 2006."
At the Boards meeting on September 28, 2006, Godley confirmed that Roccos comments at the end of the September 14 meeting, had been omitted from the videotapes distributed for cable broadcast. He explained this had been done because of concerns about the "defamatory nature" of Roccos comments. Godley explained "I did not want the District to republish such statements . . . ."
Also at the September 28, 2006 meeting, the Board adopted an agenda item to discuss scheduling a public hearing to consider a resolution of censure against Rocco, based upon his comments at the end of the September 14 meeting. Ultimately, the Board voted 4-3 to set the public hearing, and scheduled it for October 12, 2006.
According to the bylaws of the Board, 9005(b), "[i]t is the Policy of the Board of Education that all of its members shall abide by federal and state law that are applicable to members of the Board of Education, as well as to Board Policies or Bylaws. Violation of such laws, policies, or bylaws tends to injure the good name of the District and undermine the effectiveness of the Board of Education as a whole. Such conduct is deemed to be a dereliction of duty."
Bylaw 9005(b) goes on to explain that "[i]n order to be able to enforce conformance to its ethical policies, the Board of Education must have a procedure by which it can censure its own members for violation of its policies or bylaws of the Board of Education." Bylaw 9005(c) then describes censure as "a formal resolution of the Board of Education officially reprimanding one of its members. Censure is an appropriate punitive measure when the violation of law or policy is deemed by the Board of Education to be a serious offense."
However, bylaw 9005(c) also specifies that "[i]n order to protect the overriding principle of freedom of speech, the Board of Education shall not impose `censure on any of its members for the exercise of his or her First Amendment rights no matter how distasteful the expression was to the District and Board of Education."
On September 29, 2006, the Orange County Register published an article stating that Rich had been removed from his position as principal of Villa Park High, and named "principal on special assignment" at Richland Continuation School. However, none of the minutes of the Boards meetings for August 24 — September 28, 2006, reflect any action taken to create the position of "principal on special assignment" at Richland, or any similar position; nor do they reflect any action to appoint or reassign Rich to such a position. Moreover, none of the agendas for those meetings give notice that any such matter would be considered.
At the Boards October 12, 2006 meeting, the censure resolution was considered. The resolution included recitations of the relevant legal provisions, to wit: "WHEREAS, Article 1, section 1 of the California Constitution provides all people with inalienable rights including the right to privacy; and [¶] WHEREAS, the Ralph M. Brown Act . . . specifically providing for the personnel exemption to the open meeting requirements of the Act, was adopted by the California Legislature to protect the employee from public embarrassment and to permit free and candid discussions of personnel matters in closed session by a local government body; and [¶] WHEREAS Board Bylaw 9005(a)5 provides that each individual Board Member shall . . . . [k]eep confidential matters confidential; and . . .[¶] WHEREAS Board Bylaw 9005(b) provides that the Board of Education shall . . . [g]overn within Board-adopted policies and procedures."
Based upon those considerations, the resolution further recited that "school board members are required to discuss, deliberate and take action on matters pertaining to the discipline, dismissal, release and performance evaluation of school district employees in closed, not public session of the school board"; but that "on September 14, 2006, Board Member Steve Rocco made the following statements during the open session of the Orange Unified School District Board of Education meeting: [¶] Steve Rocco publicly stated he `would fire a certain school administrator and district employee whom Steve Rocco named by name, that he `would vote to fire this administrator, and that he would ask the administrator if he came to a school board meeting, `why arent you fired yet?"
It was then "resolved" that Roccos statements were "in violation of the provisions of the California Constitution Article 1, Section 1, the Ralph M. Brown Act at Government Code section 54957 and 54963, and Board Bylaws 9005(a)5, and 9005(b)5, which protect an individuals right of privacy" and that "[i]t is expected that Steve Rocco will, in the future, exhibit the appropriate conduct and judgment warranted in all matters relating to School District or Board of Education affairs relating to the constitutional and statutory privacy rights of public employees of the District." The censure resolution was approved by the Board.
Based upon those factual allegations, the writ petition alleges four causes of action. The first cause of action, styled "Violations of the Brown Act," argues that Roccos comments at the September 14, 2006 meeting regarding his desire to fire Rich were not in violation of the Brown Act, because (1) Government Code section 54963 merely permits, but does not "require," school board members to discuss personnel matters in closed session; and (2) those comments did not "disclose confidential information that has been acquired by being present in a closed session." (Gov. Code, § 54963.)
That first cause of action further alleges that Roccos comments were "absolutely" privileged under Civil Code section 47, and that the Brown Act (Gov. Code, § 54954.3) both requires that every Board agenda "shall provide an opportunity for members of the public to directly address the legislative body on any item of interest to the public . . ." and prevents the Board from "prohibit[ing] public criticism of the policies, procedures, programs, or services of the agency, or of the acts or omissions of the legislative body." It also asserts the Brown Act protects the right of any member of a legislative body to "make a brief announcement." (Gov. Code, § 54954.2, subd. (a)(2).)
The first cause of action also argues that both article 1 of the California Constitution, and the First Amendment of the Constitution of the United States protects Roccos freedom of speech in the context of a Board meeting, and notes that the bylaws of the Board expressly prohibit censuring a member for the exercise of rights protected by the First Amendment.
The writ petition quotes section 2(a) of article 1 of the California Constitution which states: "Every person may freely speak, write and publish his or her sentiments on all subjects, being responsible for the abuse of this right. A law may not restrain or abridge liberty of speech or press." It also cites Section 3(b)(1)-(2), which states "[t]he people have the right of access to information concerning the conduct of the peoples business, and, therefore, the meetings of public bodies and the writings of public officials and agencies shall be open to public scrutiny."
Petitioners allege they served the District with a written demand for cure or correction of the censure resolution, pursuant to Government Code section 54960.1, but the District failed to cure the violation. They are consequently entitled to pursue a writ of mandamus in accordance with that section, and obtain a declaration that the censure resolution is "null and void." They also allege entitlement to mandamus, injunctive or declaratory relief under Government Code section 54960, subdivision (a) providing for a determination of whether "any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid or invalid under the laws of this state or of the United States."
Government Code section 54960.1 provides in pertinent part: "(b) Prior to any action being commenced pursuant to subdivision (a), the district attorney or interested person shall make a demand of the legislative body to cure or correct the action alleged to have been taken in violation of Section 54953, 54954.2, 54954.5, 54954.6, 54956, or 54956.5. The demand shall be in writing and clearly describe the challenged action of the legislative body and nature of the alleged violation. [¶] (c)(1) The written demand shall be made within 90 days from the date the action was taken unless the action was taken in an open session but in violation of Section 54954.2, in which case the written demand shall be made within 30 days from the date the action was taken."
Based upon all those contentions, the first cause of action specifically requests a declaration that the "Board violated the Brown Act by taking formal action to approve [the censure resolution] to punish an individual for lawfully making critical comments about the Districts action . . . because the Brown Act forbids the Board from restricting such public criticism." It also asks for a declaration that the censure resolution is "null and void" under Government Code section 54960.1, and for issuance of a writ of mandate ordering the Board "not to interpret its policies in a manner that discourages, impedes or prohibits criticism . . . ."
The second cause of action, styled "Violation of the California Constitution; Violation of the United States Constitution (42 U.S.C. 1983)," incorporates by reference all of the prior allegations of the writ petition, including the entirety of the first cause of action and the relief requested therein. This cause of action continues with an allegation that the Boards refusal to allow Rocco to make his comments about the Villa Park High School situation when he first asked to do so, and its decision that he would be required to hold those "negative" comments until the end of the meeting, constituted a "content-based restriction" on his speech.
The cause of action also expressly asserts that the "content-based" restriction on Roccos speech was also evidenced by the removal of his comments from the videotapes distributed to local cable television outlets. In that regard, the cause of action alleges that by distributing edited copies of the videotapes, Godley, as superintendent of the District, was guilty of altering or falsifying a government record in violation of Government Code section 6200, and "falsely portraying to the public" what occurred at the meeting.
Government Code section 6200 provides "Every officer having the custody of any record, map, or book, or of any paper or proceeding of any court, filed or deposited in any public office, or placed in his or her hands for any purpose, is punishable by imprisonment in the state prison for two, three, or four years if, as to the whole or any part of the record, map, book, paper, or proceeding, the officer willfully does or permits any other person to do any of the following: [¶] (a) Steal, remove, or secrete. [¶] (b) Destroy, mutilate, or deface. [¶] (c) Alter or falsify."
That second cause of action also expressly addresses the Boards passage of the censure resolution, arguing it was also a content-based restriction on speech, and a violation of his First Amendment rights, because it "penalizes and thus inhibits negative comments." The cause of action concludes with a request that the court "hold and declare" that the "Board, by repeatedly restricting and/or inhibiting Board member Roccos comments during a Board meeting . . . violated the constitutionally protected rights of Board member Rocco and the members of the public wishing to hear his critical comments by attending the Boards meeting and/or watching the cable broadcast of the meeting." The court is also requested to issue a writ of mandate requiring the Board "not to interpret its policies so as to discriminate in its meetings against anyone, including one of its members, because of the viewpoint of their speech."
The petitions third cause of action, also styled "Violation of the Brown Act," incorporates by reference all prior allegations of the petition, including the entire first and second causes of action and the relief requested in each. It reiterates that at the September 14, 2006 Board meeting, Godley stated that principal Rich would "be reassigned," but the minutes of neither the August 24, September 14, nor September 28, 2006 meetings, report any action taken to reassign him, or to create the position to which he was ultimately reassigned.
The third cause of action then alleges that petitioner McKee made a public records request to the District, asking for "the written notice of reassignment" for Rich; the Board "agenda(s) and minutes(s) for the meeting(s) in 2006 where the Board considered and/or acted to approve the reassignment/transfer of Ben Rich"; and the Board "agenda(s) and minutes(s) for the meeting(s) where the Board considered and/or acted to approve the creation of and compensation for the position/assignment that Ben Rich presently holds with the District." In response, the District stated there were no such documents.
The third cause of action then asserts the Board "acted illegally in closed session to [] approve the reassignment" of Rich to his new position, in violation of Education Code sections 35020 and 35035, and without giving formal notice of these actions in the minutes of its meetings. In connection with this third cause of action, the court is requested to issue a writ of mandamus pursuant to Government Code section 54960. Specifically the court is requested to "hold and declare" that the Board, by approving the reassignment of Rich, without proper notice to the public and without reporting such an action taken, violated sections 54953, 54954.2, 54954.3 and 54962 of the Brown Act. It also requests that the court conduct an in camera review of the tape recordings made of the Boards closed session discussions during its meetings of August 24, September 14, September 28, and October 12, 2006, and thereafter cause a writ of mandate to issue ordering the Board "to only take discussion and action on items of business that have been properly agendized, to never create a new position and assign duties and compensation to that position in closed session, and to tape record all closed sessions for a period of three years."
Government Code section 54960 provides in pertinent part: "(a) The district attorney or any interested person may commence an action by mandamus, injunction or declaratory relief for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body of a local agency or to determine the applicability of this chapter to actions or threatened future action of the legislative body, or to determine whether any rule or action by the legislative body to penalize or otherwise discourage the expression of one or more of its members is valid or invalid under the laws of this state or of the United States, or to compel the legislative body to tape record its closed sessions as hereinafter provided. [¶] (b) The court in its discretion may, upon a judgment of a violation of Section 54956.7, 54956.8, 54956.9, 54956.95, 54957, or 54957.6, order the legislative body to tape record its closed sessions and preserve the tape recordings for the period and under the terms of security and confidentiality the court deems appropriate."
Finally, the petitions fourth cause of action, styled "Violation of Government Code Section 6200 and the California Public Records Act," also incorporates by reference all prior allegations of the petition, including all three prior causes of action and the relief requested for each. It reiterates the assertion Godleys distribution of edited video copies of the September 14, 2006 meeting, was a violation of Government Code section 6200, and adds the allegations that McKee complained to Godley about the editing, and Godley responded that his action had been proper. The petition then cites Government Code section 6253 for the proposition that public records must be made promptly available for public inspection; and Government Code section 6258 for the proposition that injunctive or declaratory relief is available to enforce a persons right to inspect or receive copies of public records. It does not, however, allege that McKee, or anyone else, requested an inspection of the unedited tape of the September 14, 2006 meeting, or that the District refused such a request.
Within the allegations of the fourth cause of action, the petition recites that petitioners only adequate remedy is "the relief provided by [Government Code] § 6258." That statute provides in pertinent part: "Any person may institute proceedings for injunctive or declarative relief or writ of mandate in any court of competent jurisdiction to enforce his or her right to inspect or to receive a copy of any public record or class of public records under this chapter." Despite the specific nature of that relief, the fourth cause of action requests a declaration that Godleys act of "altering videotape copies" of the September 14, 2006 meeting, and then distributing those altered copies without notice of the alteration, violated Government Code section 6200 and the Public Records Act.
In addition to the particular relief requested within each cause of action, the petition also included a single prayer for relief which asked for extensive relief untethered to any specific cause of action, including: a proposed peremptory writ of mandate including six distinct provisions; "declarations" regarding five distinct matters; and a general request "[t]hat this court maintain jurisdiction over the District to ensure the Boards continued adherence to [its] order and to the Brown Act."
The District and Godley responded to the petition by filing a special motion to strike pursuant to Code of Civil Procedure section 425.16 (the anti-SLAPP law.) They argued that the petition, and each cause of action alleged therein, arose from their acts in furtherance of their rights of free speech and petition, and that Rocco and CalAware could not establish a probability of prevailing on their claims.
The District and Godley noted that local public agencies have the same first amendment rights as Rocco (citing Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, 183, fn. 3), and argued that each of the claims asserted in the petition struck directly at the Districts ability to express itself concerning the matters of public interest that come before it. As they explained, "[l]ocal public agencies have the authority and discretion to organize their own agendas and to require discussion to occur in accordance with their agendas. (Coalition of Labor, Agriculture & Business v. County of Santa Barbara Bd. of Supervisors (2005) 129 Cal.App.4th 205, 208-210; Chafee v. San Francisco Library Commission (2004) 115 Cal.App.4th 461, 467, n. 5, discretion to decide the order in which the agenda items will be discussed . . . .)."
With respect to the merits of the petition, the District and Godley characterized both the first and second causes of action as merely an unwarranted attack on the Boards freedom of speech. The Board did nothing to prevent Rocco from making his comments at the September 14, 2006 meeting, and thus did not violate his statutory or First Amendment rights. However, a nullification of the Boards censure resolution would constitute an invasion of its right to express an opinion regarding Roccos conduct. Thus, those causes of action had no probability of success.
The District and Godley contended the third cause of action, relating to the "reassignment" of Rich, was likewise inherently infirm. Pursuant to Board Policy 2100, Godley was authorized to reassign administrative employees as he saw fit. He made the decision to reassign Rich, unilaterally, pursuant to that authority. The Board was not responsible for taking any action in the matter, and did not do so. Consequently, the Board had no occasion to notice or include the issue in the minutes of any meeting.
Finally, the District and Godley asserted the fourth cause of action, alleging that Godley had violated the Public Records Act by releasing edited videotapes of the Board meeting to cable television stations, had no probability of success because the statute was inapplicable to the facts alleged, and petitioners had no standing to maintain an action for violation of Government Code section 6200. They further alleged that Godley had, in fact, maintained intact the unedited videotape — i.e., the "public record" — of the September 14, 2006 Board meeting, and had provided a copy of that tape to McKee at his request.
CalAware and Rocco opposed the motion to strike. They argued that none of the claims alleged in the petition arose out of the Districts exercise of free speech, because the Districts act of censuring him was illegal as a matter of law, and thus not protected by the First Amendment. They also argued that pursuant to Code of Civil Procedure section 425.17, the anti-SLAPP motion should be denied in its entirety, because each cause of action alleged was brought "solely in the publics interest," and "seeks no more for Petitioners McKee and CalAware than is sought for the general public . . . ."
With respect to the merits of their claims, Rocco and CalAware contended their first and second causes of action had a probability of success because the Board exceeded its First Amendment rights when it punished him for merely stating his opinion — which did not constitute Board action — during the September 14, 2006 meeting; moreover, the Boards actions improperly deprived the citizenry of California of their right to hear what Rocco had to say.
Rocco and CalAwares argument regarding their third cause of action (relating to the reassignment of Rich) was somewhat confused. First, they acknowledged the Districts assertion that the reassignment had been carried out by Godley alone, with no Board involvement, and then attempted to use that "admission" as a basis for claiming that their cause of action consequently could not have involved the Districts free speech rights, and thus did not qualify for relief under the anti-SLAPP law. But of course, their cause of action must be assessed based upon what they alleged, and those allegations must govern the analysis of whether the cause of action is subject to the anti-SLAPP law. With respect to the merits of the cause of action, Rocco and CalAware again attempted to recharacterize their allegations, suggesting the Boards actions may have amounted to an "abdicat[ion]" of "its statutorily required oversight duties . . . ."
And with respect to the fourth cause of action, Rocco and CalAware argued that because they sought only "declaratory relief" to determine whether the Districts alteration of the videotape violated Government Code section 6200, and not criminal sanctions, they have standing to assert the claim. They also pointed out that this cause of action was not based entirely on Government Code section 6200, but also seeks "relief by mandamus to require [the District] to comply with its duties in the future."
After considering the arguments of the parties, the court granted the motion to strike the petition in its entirety. The District and Godley subsequently filed a motion for an award of attorney fees as a prevailing defendant under the anti-SLAPP law. CalAware and Rocco opposed the motion, but challenged only the amount of fees to be awarded, rather than the propriety of the award. The court granted the motion for fees, ordering CalAware and Rocco to pay $37,000 to the District and Godley.
Technically, the opposition did assert the award should be denied entirely, on the basis that the anti-SLAPP law did not apply to CalAwares and Roccos petition. But that argument had already, and necessarily, been rejected when the court granted the motion to strike. It consequently added nothing of substance to the opposition.
I
Our review of an order granting a motion to strike a complaint as a SLAPP suit is de novo. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999, ["Whether section 425.16 applies and whether the plaintiff has shown a probability of prevailing are both reviewed independently on appeal."]; Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 339; Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 629.)
Subdivision (b)(1) of section 425.16 requires a two-step process for determining whether a defendants motion to strike should be granted. "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendants burden is to demonstrate that the act or acts of which the plaintiff complains were taken `in furtherance of the [defendant]s right of petition or free speech under the United States or California Constitution in connection with a public issue, as defined in the statute." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.)
Then, if the court finds that such a showing has been made, the burden shifts to plaintiff to demonstrate "there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1); DuPont Merck Pharm. Co. v. Superior Court (2000) 78 Cal.App.4th 562, 567-568.)
II
We first note that, as the District and Godley successfully claimed below, a governmental entity enjoys a right to freedom of speech, which is consequently enforceable under the anti-SLAPP law. (Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1115 ["Where, as here, a governmental entity and its representatives are sued as a result of written and verbal comments, both may move to dismiss under section 425.16."]; Holbrook v. City of Santa Monica (2006) 144 Cal.App.4th 1242, 1247.)
Section 425.16, subdivision (e), specifically defines an "act in furtherance of a persons right of petition or free speech under the United States or California Constitution in connection with a public issue" to include "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).)
In this case, the District argued below that Roccos and CalAwares entire petition for writ of mandate arose out of its acts of free speech; i.e., the Boards censure of Rocco, the manner in which it chooses to discuss issues in its meetings, and the Districts decision not to republicize what it perceived to be Roccos improper remarks in the videotapes it produced for later distribution to cable television outlets. As such, the District contended the entire writ petition was subject to dismissal under the anti-SLAPP law. The trial court agreed.
"In deciding whether the `arising from requirement is met, a court considers `the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based. (§ 425.16, subd. (b).)" (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.) Moreover, we must keep in mind that "[t]he anti-SLAPP statute should be broadly construed (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 60, fn. 3)" and a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a garden variety tort claim when in fact the liability claim is predicated on protected speech or conduct. (Navellier v. Sletten (2002) 29 Cal.4th 82, 90-92.)
Thus, "a plaintiff cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one `cause of action." (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308.) And "where a cause of action alleges both protected and unprotected activity, the cause of action will be subject to section 425.16 unless the protected conduct is `merely incidental to the unprotected conduct [citations] . . . ." (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 103; see also Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1245.)
In this case, a clear analysis of the pleading is complicated by the fact that CalAware and Rocco incorporated so many allegations into each successive "cause of action." Thus, the allegations which make up the first cause of action — that the Board acted wrongfully by censuring Rocco and editing his statements out of its subsequent video production — are incorporated wholesale into the second cause of action, which claims that all of the acts alleged constitute a violation of civil rights laws; and all of those allegations are in turn incorporated into the third cause of action, which claims that all of the acts alleged (now including the Boards alleged act of taking actions in closed session without notice to the public) violate provisions of the Brown Act, and asks for (among other things) an order restricting the manner in which the Board may "take discussion and action on items of business" in the future; and then all of those allegations are incorporated into the fourth cause of action, which claims the acts alleged violate the Public Records Act. Finally, the petition includes a single prayer for relief, requesting sweeping orders and declarations regarding the propriety of the Boards and the Districts alleged prior acts, as well as restrictions on the manner in which they may conduct future business.
In light of CalAwares and Roccos decision to plead their claims in this manner, our assessment of whether each successive "cause of action" arises out activity protected by the anti-SLAPP law must necessarily include an assessment of the activity incorporated by reference from the prior causes of action. If we conclude that such incorporated activity is protected, then the later causes of action will also be covered, unless we conclude the allegations of protected conduct are "merely incidental" to those later claims.
We acknowledge that in Kajima Engineering and Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 931-932, the court noted that incorporation by reference in a pleading is a "common practice" to "save repetition," and suggested that, as a consequence, the incorporation of a "stricken" cause of action into later ones should be ignored for purposes of assessing the application of the anti-SLAPP law to those later causes of action: "Because of this general practice, to strike an entire complaint based simply on the incorporation of prior allegations would unnecessarily expand the anti-SLAPP statute beyond acts taken in furtherance of the right of petition or free speech." Kajimas point is well taken, but not helpful to appellants.
While it is true that incorporation by reference is a common pleading technique, it is up to the pleader to decide which prior allegations should be incorporated into any successive cause of action. Incorporation by reference avoids repetition only when it is done properly — in lieu of restating the allegations which are actually material to the successive cause of action. The desire to "save repetition" does not justify, let alone require, the pleader to include irrelevant allegations into each successive claim.
Thus, a court must start with the presumption that when the allegations of one cause of action are incorporated into another, those allegations are material to the latter claim, and it must likewise include them in its assessment of whether the anti-SLAPP law should be applied to those claims. It is only if the court then concludes that the allegations of protected activity incorporated into a later claim are "merely incidental" to that claim, that it can ignore then for purposes of our anti-SLAPP analysis of the claim.
If such an analysis is undertaken, it would not require any court "to strike an entire complaint based simply on the incorporation of prior allegations." Instead, it would simply treat incorporated allegations in the same way as the allegations which are set out in full within a particular cause of action.
Additionally, if a court automatically treats a stricken cause of action as also stricken from the allegations of any successive cause of action into which it was incorporated (Kajima Engineering and Construction, Inc. v. City of Los Angeles, supra, 95 Cal.App.4th at p. 931), that might create further problems. For example, a stricken cause of action might include specific factual allegations which are necessary to the later causes of action. Treating those allegations as automatically stricken from those later claims, merely because they were originally alleged as part of a cause of action which may have been stricken for reasons unrelated to them, might render the later causes of action vulnerable to demurrer motion for judgment on the pleadings.
Starting with the first (and essentially only "stand-alone") cause of action, we conclude it clearly arises out of protected activity. This cause of action focuses primarily on the Boards resolution of censure, and the Districts decision to edit his comments from the videotape production of the September 14, 2006 meeting, both constituting, it is alleged, attempts to inhibit Roccos exercise of free speech. The court is requested to declare the censure illegal, to issue a writ of mandate requiring the Board to rescind it, and to prohibit the Board from taking future actions to impede or restrict criticism. But the challenged acts, whatever their merits, were both inherently communicative, and fall within the definition of protected acts under section 425.16, subd. (e). Indeed, each qualifies as both a "written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law;" and a "written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest."
CalAware and Rocco do not dispute that the acts alleged in the first cause of action fall within the category of acts protected under the anti-SLAPP law; instead, they argue that the anti-SLAPP law is nonetheless inapplicable because the evidence conclusively establishes that the assertedly protected speech or petition activity was illegal as a matter of law. (Flatley v. Mauro (2006) 39 Cal.4th 299, 314.) We disagree. Unlike the defendants act of extortion in Flatley, there was nothing inherently "illegal" in either the Boards exercise of its right to censure one of its members, or the Districts distribution of the videotapes.
Indeed, the Boards right to censure, which is formally included in its written bylaws, is not even challenged in CalAwares and Roccos petition. Instead, the petition merely asserts that the Boards right of censure was exercised improperly in the circumstances of this particular case. That is nothing more than an argument about the merits of this dispute, not a contention that the Boards conduct was illegal per se. And the same is true of the Districts decision to produce an edited version of its September 14, 2006 meeting, for distribution to cable television outlets. Clearly, it is not inherently illegal for the District to do so, and the issue of whether it was wrongful to do so in this case depends upon the particular circumstances alleged. We will address those circumstances, which relate only to the probable merit of CalAwares and Roccos claims, when we consider the second prong of our anti-SLAPP analysis.
Having determined that the first cause of action arises out of activity protected by the anti-SLAPP law, we next consider whether the incorporation of those allegations into each successive cause of action, means that those successive causes of action also arise out of protected activity.
Of course, the essential dispute at the core of the entire petition is the tension between (1) Roccos personal decision to boycott the Boards closed sessions, and his concomitant insistence on expressing his views on the matters addressed therein during the Boards open session; and (2) the Boards policy that discussion of closed session matters must remain in closed session, and its authority to enforce that policy. That tension permeates the entire dispute, provides the basis of both the second cause of action, which asserts that the same acts alleged in the first cause of action also qualified as civil rights violations, and the fourth cause of action, which characterizes the Districts decision to edit Roccos comments out of its videotape production as a violation of the Public Records Act.
That essential dispute also permeates the third cause of action, but in a different way. That claim, alleging the Board improperly discussed and reached decisions about Ben Richs reassignment in closed session, without providing notice of the issue in its public agenda, is based entirely on CalAwares and Roccos supposition about what might have happened in closed sessions that Rocco refused to attend. In that sense, the third cause of action is a product of the parties essential dispute. However, that cause of action also alleges wrongful conduct that is entirely independent of the issues of censure or the editing of videotapes, and thus does not arise out of those protected acts. And those acts are, as a consequence, incidental to the claim alleged.
The third cause of action arises out of the Boards alleged communications in closed sessions — communications which would, themselves qualify as "written or oral statement[s] or writing[s] made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law" and "written or oral statement[s] or writing[s] made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law." (§ 425.16, subd. (e).) And, of course, like the other acts alleged in the petition, there is nothing inherently illegal about the Board engaging in such discussions. Thus, the third cause of action also qualifies for protection under the anti-SLAPP law.
CalAware and Rocco nonetheless argue that their petition, in its entirety, is exempt from the anti-SLAPP procedure, under the "safe-harbor" provision of Code of Civil Procedure section 425.17, subdivision (b). That provision is part of a legislative response to perceived abuse of the anti-SLAPP law, and states that the law "does not apply to any action brought solely in the public interest or for the benefit of the general public, if all the following conditions exist: [¶] (1) The plaintiff does not seek any relief greater than or different from the relief sought for the general public or the class of which the plaintiff is a member. . . . [¶] (2) The action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons. [¶] (3) Private enforcement is necessary and places a disproportionate financial burden on the plaintiff in relation to the plaintiffs stake in the matter." (Code Civ. Proc., § 425.17, subd. (b), italics added.)
However, that statute is not applicable here, because the petition was not brought "solely" in the public interest, or on behalf of the general public. To the contrary, as CalAware and Rocco have otherwise argued, Roccos interest herein is inherently personal, as are the rights he is seeking to uphold. In fact, they expressly disclaim in their brief that Roccos intention is to enforce the publics interest: "Rocco. . . most certainly did have standing to enforce his rights under the Brown Act. [¶] . . . [¶] . . . Rocco did not bring claims for breach of his constitutional and Brown Act rights as a citizen/taxpayer."
Of course, CalAware argues that because neither it nor its president, McKee, has any distinct personal interest in the dispute, their share of the petition is immune from the anti-SLAPP law. We disagree. As explained in M.G. v. Time Warner, Inc. (2001) 89 Cal.App.4th 623, a cause of action cannot be analyzed separately as to each plaintiff for purposes of the anti-SLAPP law. Instead, "[t]he anti-SLAPP statute allows a motion to strike to be made against only a cause of action, not a cause of action as it applies to an individual plaintiff." (Id. at pp. 627-628.) And because the cause of action must be viewed in its entirety, CalAware cannot simply ignore Roccos participation while making its argument that the action has been brought "solely in the public interest or on behalf of the general public." Clearly, the action has not been brought solely in the public interest, and Code of Civil Procedure section 425.17, subdivision (b), is consequently inapplicable.
III
Having concluded that each cause of action in the petition is subject to the anti-SLAPP law, we next consider whether CalAware and Rocco demonstrated that any of their claims have a probability of success on the merits. To sustain their burden of demonstrating such a probability, "the plaintiff must show both that the claim is legally sufficient and there is admissible evidence that, if credited, would be sufficient to sustain a favorable judgment." (Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519.)
In determining whether that burden has been met, we "must consider both the legal sufficiency of and evidentiary support for the pleaded claims, and must also examine whether there are any constitutional or nonconstitutional defenses to the pleaded claims and, if so, whether there is evidence to negate those defenses. (Traditional Cat Assn., Inc. v. Gilbreath (2004) 118 Cal.App.4th 392, 398-399.)" (Ramona Unified School Dist. v. Tsiknas, supra, 135 Cal.App.4th at p 519.)
(a) The First Cause of Action
CalAwares and Roccos first cause of action asserts the Board violated the Brown Act by censuring him as a consequence of his comments at the September 14, 2006 board meeting, and the District compounded the violation by editing his comments out of the videotape produced for distribution to cable television after the meeting had taken place. They argue this cause of action is meritorious because (1) Roccos comments did not themselves violate the Brown Act; (2) the Boards censure of him was a violation of the Brown Act because it represented an effort to "prohibit public criticism of its policies or of its acts or omissions" (Gov. Code, § 54954.3), and interfered with his right as a board member to "make brief announcements or reports on his . . . activities." (Gov. Code, § 54954.2, subd. (a)(2).)
"`The Brown Act was adopted to ensure the publics right to attend the meetings of public agencies. [Citation.] [Citation.] Accordingly, the Brown Act requires that the legislative bodies of local agencies . . . hold their meetings open to the public except as expressly authorized by the [Brown] Act." (Kleitman v. Superior Court (1999) 74 Cal.App.4th 324, 331, fn. omitted.) But the Brown Act does expressly authorize a public agency to meet in closed session to consider "the appointment, employment, evaluation of performance, discipline, or dismissal of a public employee. . . ." (Gov. Code, § 54957, subd. (b)(1).)
The "underlying purposes of the `personnel exception are to protect the employee from public embarrassment and to permit free and candid discussions of personnel matters by a local governmental body." (San Diego Union v. City Council (1983) 146 Cal.App.3d 947, 955.) In this respect, the "Legislature has drawn a reasonable compromise, leaving the majority of personnel matters to be discussed freely and candidly in closed session, but permitting an employee to request an open session to defend against specific complaints or charges brought against him or her by another individual and thus to clear his or her name." (Bell v. Vista Unified School Dist. (2000) 82 Cal.App.4th 672, 682.)
Since 2002, the Brown Act has expressly prohibited the disclosure of information acquired by being present in a public agencys closed session, unless the legislative body authorizes disclosure of the information. (Gov. Code, § 54963, subd. (a).)
Here, the allegations of the first cause of action do not suggest any violation of the Brown Act, by either side. Rocco is correct that the Brown Act itself does not require that discussions of personnel matters be limited to closed sessions of a legislative body. However, the Brown Act clearly permits the body to do so (absent a request for open session by the employee in question), and thus to also institute a policy that such discussions will be confined to closed sessions. That is what happened in this case. It is the Boards policy, based upon its interpretation of the privacy clause of the California Constitution, and the confidentiality provision of its own bylaws, to confine the discussion of personnel matters to closed session.
Hence, the resolution of censure against Rocco was not based merely on the provisions of the Brown Act, but also on the California Constitution and the Boards own bylaws, and included a specific recitation of its policy that "school board members are required to discuss, deliberate and take action on matters pertaining to the discipline, dismissal, release and performance evaluation of school district employees in closed, not public session of the school board." It is Roccos refusal to do that, rather than any violation of the Brown Act itself, which subjected him to censure.
And that censure was likewise not in violation of the Brown Act. As the District points out, the censure did not prohibit Rocco from making his comments, nor did it include any provision which prevented him from doing so in the future. It thus did not run afoul of either Government Code sections 54954.2 or 54954.3.
Nor was the Districts production and distribution of its videotape, which intentionally excluded Roccos remarks, a violation of the Brown Act. The videotape, which was produced in the wake of the meeting, for later broadcast on cable television, was not itself a meeting of the Board. (Gov. Code, § 54952.2, subd. (a).) Consequently, the Brown Act had no application to it.
Because neither the Boards censure of Rocco, nor the Districts decision to edit his comments out of the videotape, violated any provision of the Brown Act, the trial court properly concluded the petitions first cause of action, seeking writ relief in accordance with that act, had no probability of success. The cause of action was thus properly stricken under the anti-SLAPP law.
The first cause of action does not seek any determination that the resolution of censure violates the Boards own censure policy, which states that the Board shall not impose censure on any member "for the exercise of his or her First Amendment rights . . . ." But while that contention might have presented a closer question than the issue of whether it violated the Brown Act, we believe it would have proved unsuccessful as well. As we have already noted, the censure resolution was intended to reprimand Rocco for his violation of the Boards confidentiality policy, rather than for the content of his remarks. Had Rocco made those same remarks during a closed session, there would have been no occasion for the censure.
(b) The Second Cause of Action
The petitions second cause of action alleges that the same two acts alleged in the first also amounted to a violation of both Roccos and the publics civil rights because they impermissibly infringed upon Roccos right to freedom of speech, and the publics right to have access to his opinions. It alleges that "the Boards passage of the censure Resolution No. 10-16-07 impairs the First Amendment rights of Rocco and of members of the public who wish to attend the Boards meetings and wish to be informed by negative comments or opinions about the conduct or performance of the Board and/or District administrators."
The cause of action also asserts, albeit in conclusory fashion, that the exclusion of Roccos remarks from the videotape later produced for cable television "perpetrated a fraud upon members of the public, who had relied on being informed by viewing the entire 9/14 Meeting when broadcast on their cable channel."
We will first address, and reject, the latter three assertions about the public as support for the contention this cause of action has probable merit. First, nothing in either the censure resolution or the edited videotape affects the publics right to attend a board meeting. Those "meetings" take place at a specified time, and in a designated place. (Gov. Code, §§ 54952.2, subd. (a), 54954 & 54954.2.) Anyone who chooses to attend, at that time and in that place, may do so. Indeed, any person who had chosen to attend the meeting on September 14, 2006, would have had the opportunity to hear Roccos controversial remarks. A board meeting does not occur whenever some portion of the public is given the opportunity to watch a videotape — edited or not — depicting the events of a meeting that actually took place at some point in the past.
Second, because the Brown Act allows the Board to confine its discussions of personnel matters to closed session, and no board member has any obligation to openly express their negative comments or opinions, the public has no enforceable right to be informed by such comments. The whole point is that the Brown Act allows such comments to be kept confidential.
And third, CalAware and Rocco offered no evidence to substantiate their claim that any member of the public actually believed that the subsequently broadcast videotape of the September 14, 2006 meeting, depicted the entire meeting; that such a belief would have been reasonable; or that anyone was actually misled by the edited broadcast. Consequently, none of these assertions, relating to alleged violations of the publics rights, assists CalAware and Rocco in demonstrating a probability of success on this cause of action.
Instead, it is clear that the true crux of this cause of action is the claim that the challenged acts violated Roccos own right of free speech. CalAware and Rocco repeatedly emphasize that the censure resolution was wrongful because it was intended to punish him for his speech, and note that the Boards own censure policy acknowledges that censure is a "punitive measure." The trial court correctly recognized the argument to be a red herring, and we agree. As the court noted, "punishment" is just a "label," which is not particularly helpful in assessing the substance of the censure resolution.
In substance, the censure resolution bears little relationship to common forms of punishment; e.g., fines, incarceration or other restrictions on personal liberty. Instead, the censure resolution was itself merely speech — the Boards effort to express its collective opinion about the manner in which Rocco had decided to express his. As the District points out, the censure resolution did not preclude Rocco from speaking in the first instance, and placed no restrictions whatsoever on Roccos future conduct.
Further, we conclude the censure resolution was not based upon the content of Roccos speech, but its location. We cannot even discern from the record before us whether any of the other board members agreed or disagreed with the substance of Roccos comments. Instead, the problem was that he insisted upon making those comments — which concerned a sensitive personnel matter — during the open session of the Board meeting.
It might be appropriate to infer that Godley, who apparently made the decision to reassign Rich, disagreed with Roccos assertion he should be "fired." But there is no indication that any of the other board members expressed any opinions on the matter.
In our view, Roccos unwillingness to participate in closed session, and to instead air his views regarding personnel matters during the Boards open session, is a matter about which both Rocco and the Board have a right to express an opinion. Because Rocco is only one member of a deliberative body, which acts collectively and in accordance with the will of the majority, he does not have an unfettered right to ignore the policies and procedures of the body merely because he disagrees with them. And if he nonetheless does so, the Board has the right to express its collective disapproval of the conduct. (Phelan v. Laramie County Community College Board of Trustees (10th Cir. 2000) 235 F.3d 1243, 1248 ["In censuring Ms. Phelan, Board members sought only to voice their opinion that she violated the ethics policy and to ask that she not engage in similar conduct in the future. Their statement contained no penalties; it did not prevent her from performing her official duties or restrict her opportunities to speak . . . ."]; Zilich v.Longo (6th Cir. 1994) 34 F.3d 359, 363-364 [A resolution merely "expressing outrage and disapproval" of a former member is "simply the expression of political opinion"].)
Moreover, the censure resolution does not become improper simply because it might have a chilling effect on Roccos future exercise of his constitutionally protected freedom of expression, as he claims it would. If that were the test, a new lawsuit would be born every time someone shouted "shut up;" or retorted "thats the stupidest thing Ive ever heard;" or inquired "what is that youre wearing?" There are few of us who are immune to the effects of negative feedback and the Constitution does not protect us from it.
We note that as a self-described "iconoclastic legislator," Rocco seems to be remarkably easily dissuaded from expressing his views. An "iconoclast" is defined as "one who attacks established beliefs, ideals, customs, or institutions . . . ." (Websters 3d New Internat. Dict. (1981) p. 1121.) It must be nearly impossible to be that guy if you are unwilling to endure a little blow-back.
And finally, in Whitener v. McWatters (4th Cir. 1997) 112 F.3d 740, a case challenging the right of a county board to actually punish one of its members, the court explained that not only does the United States Constitution not prohibit a board from disciplining a member based on speech, it specifically protects the boards right to do so. Indeed, the court characterized such disciplinary decisions as "legislative in nature." (Id. at p. 744.)
The court based is analysis primarily on the provisions of the speech and debate clause (U.S. Const., art. I § 6, cl. 1.) "[W]ith the ratification of the Constitution, it was again confirmed that `for any Speech or Debate in either House, [the representatives and senators] shall not be questioned in any other Place. U.S. Const., art. I, § 6, cl. 1 (emphasis added). The Constitution also enumerates for Congress the power, long asserted by Parliament, to `punish its Members for disorderly Behaviour, and, with the Concurrence of two thirds, expel a Member. U.S. Const., art. I, § 5, cl. 2." (Whitener v. McWatters, supra, 112 F.3d at p. 744.) Thus, the court explained that "Americans at the founding and after understood the power to punish members as a legislative power inherent even in `the humblest assembly of men. [Joseph Story, Commentaries on the Constitution of the United States, § 419.] This power, rather than the power to exclude those elected, is the primary power by which legislative bodies preserve their `institutional integrity without compromising the principle that citizens may choose their representatives." (Ibid.) The opinion goes on to note that "as the well-documented history of the speech and debate privilege reveals, the privilege was an assertion of the [L]egislatures exclusive jurisdiction to punish speeches made in the course of legislative business. Indeed, that power, which exists to protect the public reputation of legislative bodies and to make orderly operation possible, has been exercised on at least two occasions to censure United States Senators for speech that the Senate deemed inappropriate." (Id. at p. 745, italics added.) We find ourselves in complete agreement with the Whitener court.
As the Whitener court also explains, the protections of the speech and debate clause were expressly extended to state and local legislators. (Citing Tenney v. Brandlove (951) 341 U.S. 367; Lake Country Estates, Inc. v. Tahoe Regional Planning Agency (1979) 440 U.S. 391, 405; and Bruce v. Riddle (4th Cir. 1980) 631 F.2d 272, 279.)
The cases cited by CalAware and Rocco in support of their contention that the censure impermissibly infringed on Roccos free speech rights are all distinguishable from the circumstances before us. In Bond v. Floyd (1966) 385 U.S. 116, the Georgia Legistlature had refused to seat an elected representative — and thus prevented him entirely from carrying out his duties — because it had determined, based upon his prior statements, that he would be unable to swear sincerely to uphold the state and federal constitutions. The Supreme Court concluded that the majority of state legislators simply had no authority to "test the sincerity with which another duly elected legislator can swear to uphold the Constitution. (Id. at p. 132.) In this case, the authority of the Board to impose censure on one of its members cannot be questioned.
In Peel v. Atty. Registration & Disciplinary Commn. (1990) 496 U.S. 91, an attorney had been censured for violating state bar rules against regulating advertising. The case did not involve a legislative body, and thus did not implicate the rights of such a body to impose discipline on one of its members. In any event, like Bond, the case turned on the Supreme Courts conclusion that the state bar simply had no authority to prevent an attorney from engaging in truthful, non-misleading advertising.
Scott v. Flowers (5th Cir. 1990) 910 F.2d 201, involved a judge who had been reprimanded by the Texas Commission on Judicial Conduct, "for making truthful public statements critical of the administration of the county judicial system of which he is a part." (Id. at p. 203.) The court ruled that censure was inappropriate because the Commission had failed to "explain precisely how [the] public criticisms would impede the goals of promoting an efficient and impartial judiciary," and the court was "unpersuaded that they would have [that] effect." (Id. at p. 213.) In this case, by contrast, it is clear that the refusal of a board member to comply with its policies impedes a Boards ability to conduct orderly business. Moreover, like Peel, the Scott case does not involve the right of a legislative body to discipline one of its members.
And Little v. North Miami (11th Cir. 1986) 805 F.2d 962, is just a bizarre case. There, a city council passed a resolution of censure against an attorney and law professor who had represented an environmental group in litigation involving the states planned purchase of land belonging to the city. Without prior notice, the council passed and read aloud a resolution of censure against the professor, accusing him of "improper use of public funds to represent private parties in litigation against the State and against the interests of the City of North Miami." (Id. at p. 964.) The case was before the appellate court after having been dismissed for failure to state a claim upon which relief could be granted. The court concluded the complaint did state a cognizable claim for damages, based upon the assertion that the censure resolution amounted to improper "retaliation for appellants representation of an adverse party in state litigation, thereby. . . intentionally placing appellant in potential criminal, professional, social, political and economic jeopardy without any justification." (Id. at p. 968.) That is hardly comparable to what occurred in this case, and sheds no light on the propriety of a legislative bodys determination to impose censure on one of its own members.
Finally, neither McIntyre v. Ohio Elections Commn. (1995) 514 U.S. 334, nor Smith v. Novato Unified School Dist. (2007) 150 Cal.App.4th 1439, involve an act of censure at all, let alone such an act by a legislative body against one of its own members.
Based on all of the foregoing, we conclude CalAware and Rocco have failed to demonstrate a probability of success on their claim that the Boards censure resolution improperly infringed on Roccos constitutionally protected freedom of speech. The Boards act was merely an expression of its own opinion regarding Roccos refusal to comply with its policies and procedures — and not the content of his speech. The Board had a right to express that opinion, and did not impose any restrictions on Roccos ability to exercise his constitutional rights in the future. And to the extent that the Boards negative feedback might, as a practical matter, discourage Rocco from engaging in such conduct in the future, that effect is too slight to outweigh the Boards right to express its views.
Rocco and CalAware also contend, of course, that Roccos freedom of expression was also impermissibly impaired by the Districts decision to omit his controversial comments at the September 14, 2006 meeting, from the videotapes it subsequently produced and distributed for broadcast on cable television. According to their argument, the Boards act of producing the edited version of the meeting video, excluding only Roccos comments, is an act of censorship which is tantamount to the Board destroying all copies of a newspaper with objectionable content before members of the public have a chance to buy them. (Citing Rossignol v. Voorhaar (4th Cir. 2003) 316 F.3d 516, and Smith v. Novato Unified School Dist., supra, 150 Cal.App.4th at pp. 1462-1463.) We wholly disagree.
First, we must emphasize the undisputed fact that the District was under no legal duty to produce or distribute any video depicting the events of the meeting to the media. Absent a request under the Public Records Act in the wake of the meeting, it would have been entitled to file away the original video in a dark place, and never think about it again.
Moreover, the petition includes no allegations that the media, including local cable television outlets, were in any way prohibited from sending representatives to the Boards meetings if they chose; from reporting freely on what transpired during those meetings; or from obtaining copies of any public records associated with the meetings pursuant to the Public Records Act. Nor does the petition allege any facts suggesting the District did anything to interfere with the right of any media outlet to report its own version of what occurred at the public portion of the meeting; or comment on any of those occurrences.
Instead, the petition alleges only that the District produced its own videotape, apparently as a means of disseminating information about the events of the meeting to persons other than those who chose to attend in person. Consequently, the edited videotape in this case is more closely analogous to a press release, by which an entity such as the District voluntarily seeks to publicize certain events or information to the newspapers or other media, than it is to a newspaper, which is a communication produced by a third party. Like a press release, and unlike a newspaper, the edited video in this case constitutes the Districts own communication, and it is thus the District which is responsible for, and has the concomitant right to determine, its content.
Editing Roccos comments out of the videotape it voluntarily produced for republication on cable television was a proper exercise of the Districts discretion, because it had a legitimate concern that the statements were potentially defamatory (see Gallant v. City of Carson (2005) 128 Cal.App.4th 705, 714 [former employee sued city based on comments of councilmember that she was incompetent].) Although CalAware and Rocco dismiss any such concern, arguing that comments made in the course of the Board meeting were absolutely privileged under Civil Code section 47, subdivision (b), we are not persuaded by the point.
By voluntarily producing a videotape of one of its meetings, and distributing it to cable television, the District is voluntarily republishing the contents of that meeting. Such a republication subjects the District to potential liability for defamation which is entirely separate from whatever liability may have attached to Roccos original comments. "[W]hen a person repeats a slanderous charge, even though identifying the source or indicating it is merely a rumor, this constitutes republication and has the same effect as the original publication of the slander." (Ringler Assocs. v. Md. Casualty Co. (2000) 80 Cal.App.4th 1165, 1180.) Moreover, that voluntary republication does not enjoy the same privilege as the original statement. (Copp v. Paxton (1996) 45 Cal.App.4th 829, 844 [county officials voluntary republication of memo to third-parties did not qualify for absolute privilege].)
Because the Districts voluntary distribution of videotapes which included potentially defamatory content could subject it to liability — or at a minimum to a lawsuit asserting such liability — the District had the right to edit such content out of the tapes; indeed, it would have been exceedingly reckless for it to do otherwise. Under these circumstances, we conclude CalAwares and Roccos claim that the District had a legal duty to distribute the tapes in unedited form has no probability of success on the merits.
(c) The Third Cause of Action
CalAwares and Roccos third cause of action alleges the Board "acted illegally in closed session . . . to approve the reassignment of Ben Rich" and did so "without proper notice to the public and without reporting such an action taken." However, it is undisputed that Rocco does not attend the Boards closed sessions, and thus that none of the petitioners have personal knowledge of what the Board actually discussed, or voted on in those sessions. Consequently, the verified petition merely alleges "on information and belief" that the Board "acted illegally in closed session . . . to approve the reassignment of Ben Rich. . . ."
Such an allegation is insufficient to sustain petitioners burden of demonstrating a probability of prevailing on this claim. "`[T]the plaintiffs burden of establishing "facts to sustain a favorable decision if the evidence submitted . . . is credited" [citation] implies a requirement of admissibility, because "otherwise there would be nothing for the trier of fact to credit." [Citation.] At trial, "the testimony of a witness concerning a particular matter is inadmissible unless he has personal knowledge of the matter." [Citation.] An averment on information and belief is inadmissible at trial, and thus cannot show a probability of prevailing on the claim." (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236, quoting Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497-1498.) And because CalAware and Rocco offered no additional evidence, in connection with their opposition to the motion to strike, which was sufficient to demonstrate the Board had actually engaged in the alleged illegal activity, they failed to sustain their burden of demonstrating a probability of success on this cause of action.
Further, in support of their motion to strike, the District and Godley provided evidence the Board had not engaged in any improper discussion regarding Richs reassignment in any closed session. Instead, the decision regarding Rich had been made by Godley himself, acting pursuant to a pre-existing authority granted to him by the Board. Consequently, the undisputed evidence before us affirmatively belies the allegations of the third cause of action.
Moreover, we reject petitioners creative attempt to co-opt that evidence as a means of arguing that the cause of action does not actually arise out of the Boards protected communications, and thus should not have been subjected to the anti-SLAPP law in the first place. As they see it, if the Board did not actually "take any action on Ben Richs reassignment, [then its] free speech rights were not involved and no relief under section 425.16 was available." Nice try, but that ship has sailed. The cause of action alleges that such communications did take place, and seeks relief based upon that allegation; thus the cause of action clearly does arise out of those alleged communications. The fact that no evidence supports the claim simply demonstrates why it is appropriately stricken.
(d) The Fourth Cause of Action
And finally, we conclude the court acted properly in striking the petitions fourth cause of action, which alleges that the Districts creation of an edited videotape of the September 14, 2006 meeting, for distribution to cable television, amounted to both an "alteration" of the public record of that meeting and a "false portrayal" of what occurred there, and thus violated the Public Records Act.
The claim relies heavily on Government Code section 6200, which subjects a government officer to criminal liability for the theft, destruction, alteration or falsification of a public record in his or her custody. Even assuming CalAware and Rocco have standing to enforce the statue (and we express no opinion on the matter), it does not apply to the facts alleged here. The creation of an edited copy of a video does not imply that the original record (i.e., the videotape created during the meeting itself) was altered in any way.
Moreover, according to the undisputed evidence submitted in connection with the motion to strike, the original videotape created during the September 14, 2006 meeting, actually was not altered by the creation of the edited version. Indeed, that original record continues to exist, and was made available to McKee when requested. That is all that the Public Records Act requires with respect to that original record. (Gov. Code, § 6253.)
As for the assertion that the edited videotape "falsely portray[ed]" the events of the meeting to the public, that is simply not an allegation within the purview of the Public Records Act. The Act requires that the public have access to certain public records (Gov. Code, § 6253), but it does not require the government to publish those records, nor does it regulate the manner in which the information contained in public records can be voluntarily published.
At most (and we express no opinion on the issue), the edited videotape might qualify as an additional public record made in connection with the meeting (see Gov. Code, § 54953.5, subd. (b)), which might be required to be separately maintained in accordance with the Act. But because its production in no way altered or falsified the original recording which was created during the meeting, and that original was at all relevant times made available for inspection, we conclude the petitions fourth cause of action enjoys no probability of success on the merits.
Government Code section 54953.5, subd. (b) provides: "Any tape or film record of an open and public meeting made for whatever purpose by or at the direction of the local agency shall be subject to inspection pursuant to the California Public Records Act (Chapter 3.5 (commencing with Section 6250) of Division 7 of Title 1), but, notwithstanding [Gov. Code] Section 34090, may be erased or destroyed 30 days after the taping or recording. Any inspection of a video or tape recording shall be provided without charge on a video or tape player made available by the local agency."
The order striking the petition, in its entirety, pursuant to the anti-SLAPP law, is affirmed. The District and Godley are entitled to recover their costs on appeal. The District and Godley are also entitled to an additional award of attorney fees incurred on appeal (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 287), and the case is remanded to the trial court for a determination of the appropriate amount of such fees.
Respondent`s request for an award of additional attorney fees on appeal, which is unsupported by any evidence, is denied.
WE CONCUR:
OLEARY, J.
MOORE, J.