Opinion
D073409
12-19-2018
SAN DIEGANS FOR OPEN GOVERNMENT, Plaintiff and Appellant, v. POWAY UNIFIED SCHOOL DISTRICT et al., Defendants and Respondents.
Briggs Law Corporation, Cory J. Briggs and Anthony N. Kim for Plaintiff and Appellant. Atkinson, Andelson, Loya, Ruud & Romo, Mark R. Bresee, Amy W. Estrada and Alyssa Ruiz de Esparza for Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115. (Super. Ct. No. 37-2017-00015136-CU-MC-CTL) APPEAL from an order of the Superior Court of San Diego County, Ronald L. Styn, Judge. Affirmed. Briggs Law Corporation, Cory J. Briggs and Anthony N. Kim for Plaintiff and Appellant. Atkinson, Andelson, Loya, Ruud & Romo, Mark R. Bresee, Amy W. Estrada and Alyssa Ruiz de Esparza for Defendants and Respondents.
INTRODUCTION
San Diegans for Open Government (SDOG) appeals an order pursuant to the anti-SLAPP statute (Code Civ. Proc., § 425.16) striking SDOG's complaint against three board members and the superintendent of Poway Unified School District (District) who were sued individually for violating the Ralph M. Brown Act (Gov. Code, § 54950 et seq.) (Brown Act) based on communications regarding the hiring of the superintendent. SDOG contends the court erred in determining: (1) the public interest exception of section 425.17 does not apply because SDOG did not establish private enforcement was necessary; (2) the claims arose from activity protected by section 425.16, subdivisions (e)(1) or (e)(2); and (3) SDOG could not establish a probability of prevailing on its single claim under Government Code section 54960.1 because the section allows actions against a legislative body, not against individuals. We disagree with each of SDOG's contentions and, therefore, affirm the order.
SLAPP is an acronym for " 'strategic lawsuit against public participation.' " (Baral v. Schnitt (2016) 1 Cal.5th 376, 381, fn. 1.)
Further statutory references are to the Code of Civil Procedure unless otherwise stated.
The action remains pending against the District, which did not join the individual defendants' anti-SLAPP motion.
BACKGROUND
A
SDOG sued the District along with District board members Michelle O'Connor Ratcliff, T.J. Zane, and Darshana Patel and District superintendent Marian Kim-Phelps (collectively, individual defendants) for declaratory relief, injunctive relief, and a writ of mandate based on a single cause of action alleging violations of the Brown Act in connection with the hiring of superintendent Kim-Phelps. It alleged "a majority of the members of [the District's] governing board agreed to employ [Kim-Phelps] as the superintendent during one or more non-public meetings occurring before her employment contract was approved in public, doing so by communicating with Kim-Phelps through designated board members and through one or more other intermediaries. The governing board's approval of her employment contract at the public meeting was therefore a fait accompli long before members of the public were given the opportunity to express their view on the matter." (Some capitalization and italics omitted. Bold and italics in original.)
SDOG sought a judicial determination pursuant to Government Code section 54960.1 that the District's action was null and void because the District actions violated the Brown Act. SDOG alleged a majority of the District board members took action before February 14, 2017 in "private—i.e. not during a public meeting" to select Kim-Phelps as their preferred choice for superintendent and communicated with intermediaries to negotiate the terms of employment for Kim-Phelps and agreed to issue a press release to announce the decision to hire Kim-Phelps. Kim-Phelps allegedly participated in drafting a press release regarding her selection. SDOG alleged the District thereafter made social media and newsletter announcements and individual board members made statements regarding Kim-Phelps's selection as superintendent prior to the public meeting approving the contract for Kim-Phelps. SDOG also alleged a press release regarding the approval of the contract for Kim-Phelps was prepared before the scheduled public meeting. SDOG admitted agendas were posted for each closed-session meeting of the District's governing board during 2017 regarding the appointment of a new superintendent pursuant to Government Code section 54957.
B
The individual defendants filed a special motion to strike asserting SDOG's sole cause of action against the individual defendants is based upon protected activity under the anti-SLAPP statute, no exception to the anti-SLAPP statute applies in this case, and SDOG cannot establish a probability of prevailing. The individual defendants asserted the allegations related to votes taken or made by board members, communications regarding the negotiation of the superintendent's employment contract, and the preparation and making of public statements regarding the selection of the superintendent.
The individual defendants presented evidence there were eight closed sessions involving discussions about the superintendent search between early January and early March 2017. During a closed session on February 14, 2017, the District board members voted to select Kim-Phelps as their preferred choice for superintendent and during the public portion of the meeting, announced the selection of Kim-Phelps as a finalist for the position of superintendent. That evening and the following day, the District disseminated the information about the selection of Kim-Phelps as the finalist for the superintendent through various platforms, including social media.
On March 7, 2017, the District board members voted in closed session to appoint Kim-Phelps as superintendent by a vote of three to two. During the public session on the same date, the board considered and approved the employment agreement for Kim-Phelps.
C
SDOG opposed the motion to strike contending the public-interest exception of section 425.17 applies to prohibit application of the anti-SLAPP statute and, alternatively, the individual defendants could not show the claim arises from protected activity or SDOG was unlikely to prevail. SDOG contended its claims were based on actions and discussions the individual defendants took outside of a public meeting regarding the hiring and compensation of the superintendent and since such "deliberations 'in furtherance of' a secret vote" violate the Brown Act they cannot be considered protected activities.
SDOG did not challenge the validity of the closed session meetings or the actions taken therein. However, SDOG contended the "crux" of its complaint was that the District board previously "voted in secret to hire Dr. Kim-Phelps and set her compensation package, and then the board held a public meeting ... to ratify their illegal negotiations and deliberations." SDOG presented e-mails among board members discussing possible compensation and benefits as well as drafts of Kim-Phelps's contract prior to the March 7 public meeting.
Government Code section 54957, subdivision (b)(1), permits a local agency to hold "closed sessions during a regular or special meeting to consider the ... employment ... of a public employee ...." The board acted in closed session on March 7, 2017 to hire Kim-Phelps as superintendent, which was reported in open session pursuant to Government Code section 54957.1, subdivision (a).
D
The trial court granted the special motion to strike. It determined SDOG's claims against the board members arose from statements and writings made prior to or immediately after a public hearing and involved activity protected by section 425.16, subdivisions (e)(1) ("any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law") or (e)(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"). The court determined the claims against the superintendent, which involved discussions regarding the superintendent's compensation and a press release announcing the board's decision to hire her, also arose from activity protected by section 425.16, subdivision (e)(2).
The court determined the public interest exception of section 425.17, subdivision (b) did not apply to preclude application of the anti-SLAPP statute in this case because private enforcement against the individual defendants was not necessary. The court stated, "SDOG challenges the propriety of government action—the decision of the [District] to hire Kim-Phelps as superintendent. Suing individual officials (or in this case, board members and an appointed superintendent) in such a circumstance imposes a chilling effect on participation in matters of public interest—the precise result ... [section] 417.17 seeks to avoid." Finally, the court determined SDOG could not establish a probability of prevailing because Government Code section 54960.1, the statute upon which SDOG bases its claim for relief, allows actions against a legislative body, but does not provide for an action against individuals. SDOG timely appealed the order granting the special motion to strike. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).)
DISCUSSION
I
General Anti-SLAPP Principles
SLAPP lawsuits, " ' "masquerade as ordinary lawsuits ... [but] are generally meritless suits brought primarily to chill the exercise of free speech or petition rights by the threat of severe economic sanctions against the defendant, and not to vindicate a legally cognizable right." ' " (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21.) "In 1992, out of concern over 'a disturbing increase' in these types of lawsuits, the Legislature enacted section 425.16" and "authorized the filing of a special motion to strike to expedite the early dismissal of these unmeritorious claims." (Ibid.) "In 2003, concerned about the 'disturbing abuse' of the anti-SLAPP statute, the Legislature enacted section 425.17 to exempt certain actions from it." (Ibid.) One such exemption is for actions brought in the public interest or on behalf of the general public. (§ 425.17, subd. (b).)
" '[T]o encourage continued participation in matters of public significance,' and to ensure 'that this participation should not be chilled through abuse of the judicial process,' the Legislature has specified that the anti-SLAPP statute 'shall be construed broadly.' (§ 425.16, subd. (a).)" (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 416 (Vasquez).) Exceptions under section 425.17, however, are construed narrowly. (Vasquez, at pp. 419-420.)
"On appeal, we apply a de novo review standard to determine whether the parties satisfied their burdens under sections 425.16 and 425.17. [Citations.] We are not bound by the court's findings and conduct an independent review of the entire record. If the trial court's decision is correct on any theory, we must affirm the order." (San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th 611, 622 (Har).)
II
Public Interest Exception
SDOG contends its complaint against the individual defendants comes within the public interest exception of section 425.17, subdivision (b). We consider this issue first because "[a] claim that the public interest exemption applies is a threshold issue that must be addressed before considering an anti-SLAPP motion." (Har, supra, 240 Cal.App.4th at p. 628.)
Section 425.17, subdivision (b), exempts from the anti-SLAPP law a cause of action brought "solely in the public interest ... if all of 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 a class of which the plaintiff is a member. A claim for attorney's fees, costs, or penalties does not constitute greater or different relief for purposes of this subdivision. [¶] (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 plaintiff's stake in the matter."
We are not persuaded by SDOG's argument that the relevant question for the private enforcement necessity factor is only whether any public or agency action has taken action to enforce a public right, not whether a particular party is necessary to a lawsuit. SDOG's complaint asks the court, pursuant to Government Code section 54960.1, to determine the District's contract with Kim-Phelps is invalid based upon alleged violations of the Brown Act by the District's board as a whole. No one has challenged SDOG's ability to assert a private action against the District based upon the Brown Act.
However, SDOG's action against the individual defendants does not meet the third element of the public interest exception because SDOG cannot show private enforcement against the individual defendants is necessary. Government Code section 54960.1, subdivision (a) provides for "an action by mandamus or injunction for the purpose of obtaining a judicial determination that an action taken by a legislative body of a local agency in violation of [the Brown Act] is null and void ...." This statute addresses past actions by the legislative body and permits the legislative body to cure or correct any violation. (Gov. Code, § 54960.1, subds. (a), (e).) It does not authorize an action against individual board members.
"It is not necessary to sue government officers in their personal capacities to challenge the propriety of a government action." (Vasquez, supra, 1 Cal.5th at p. 426; see also Schwarzburd v. Kensington Police Protection & Community Services Dist. Bd. (2014) 225 Cal.App.4th 1345, 1352 (Schwarzburd) [there is no justification for suing individual board members when relief sought can be obtained by suing the agency].) SDOG did not seek relief pursuant to Government Code section 54960, subdivision (a), which separately authorizes an action "for the purpose of stopping or preventing violations or threatened violations of this chapter by members of the legislative body of a local agency ...." (Italics added.) Therefore, we conclude the public interest exception does not apply to the action against the individual defendants.
III
Anti-SLAPP Statute
"Anti-SLAPP motions are evaluated through a two-step process. Initially, the moving defendant bears the burden of establishing that the challenged allegations or claims 'aris[e] from' protected activity in which the defendant has engaged. [Citations.] If the defendant carries its burden, the plaintiff must then demonstrate its claims have at least 'minimal merit.' " (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061.)
A
Section 425.16, subdivision (e), describes the type of activity protected by the anti-SLAPP statute. An " 'act in furtherance of a person's right of petition or free speech ... in connection with a public issue' includes: (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, or (4) 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).)
"The text of section 425.16, subdivision (e)(2) contains no 'public issue' or 'issue of public interest' [citation] requirement beyond a showing the communication was made in connection with an issue under consideration by an executive body. [Citation.] To satisfy the "official proceeding" language in section 425.16, subdivision (e)(2), no additional showing need be made if any written or oral statement in connection with an issue under consideration by an executive body is involved. [Citation.] Substantive inquiry into the nature of the issue is not necessary as long as some type of official decision[]making, formal or informal, is involved. Under section 425.16, subdivision (e)(2), the pendency of an issue before a government body is a proxy for its character as public in nature." (Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 601.)
In this case, the allegations against the individual defendants center around written and oral statements made in connection with the individual board members' support for the District's selection of Kim-Phelps as superintendent and statements made related to negotiations for her contract. Additionally, SDOG challenges statements made by the individual defendants in press releases and on social media posts regarding the selection of Kim-Phelps as superintendent. The only allegations as to Kim-Phelps relate to her contract negotiations with board representatives and her participation in preparing a press release. Each of these allegations involved protected activity "in connection with an issue under consideration or review by a legislative ... body." (§ 425.16, subd. (e)(2).) "Council members' votes, as well as statements made in the course of their deliberations at the city council meeting where the votes were taken, qualify as 'any written or oral statement or writing made before a legislative ... proceeding.' (§ 425.16, subd. (e)(1).) Anything they or [the city administrator] said or wrote in negotiating the contract qualifies as 'any written or oral statement or writing made in connection with an issue under consideration or review by a legislative ... body ... .' (§ 425.16, subd. (e)(2).)" (Vasquez, supra, 1 Cal.5th at pp. 422-423.)
The Supreme Court noted the Legislature was "specifically concerned with action against public officials as individuals when it reconsidered the scope of section 425.16 in 1997." (Vasquez, supra, 1 Cal.5th at p. 426.) " ' "Just as SLAPPs filed against individuals have a 'chilling' effect on their participation in government decision making, SLAPPs filed against public officials, who often serve for little or no compensation, may likely have a similarly 'chilling' effect on their willingness to participate in governmental processes." ' " (Ibid.) "[E]lected officials may assert the protection of section 425.16 when sued over how they voted without chilling citizens' exercise of their right to challenge government action by suing the public entity itself." (Id. at p. 427.)
The fact SDOG individually sued the superintendent and only the three board members who supported the superintendent, rather than all board members, suggests the "motivation in filing this lawsuit was, at least in part, to intrude upon the First Amendment rights of the individual[s]." (Schwarzburd, supra, 225 Cal.App.4th at p. 1352.) Therefore, the individual defendants met their burden of establishing SDOG's claims against them arise from protected activity.
B
SDOG has not and cannot meet its burden of establishing a probability of prevailing on the merits of its claim against the individual defendants. As we discussed in Section II, infra, Government Code section 54960.1 authorizes an action against a public agency for violation of the Brown Act, not against individual members of the agency.
SDOG has not presented authority or reasoned argument for relief against the individuals under any other statute. " ' "When an appellant ... asserts [a point] but fails to support it with reasoned argument and citations to authority, we treat the point as waived [or forfeited]." ' [Citation.] 'We are not bound to develop appellants' arguments for them.' " (Cahill v. San Diego Gas & Electric Co. (2011) 194 Cal.App.4th 939, 956.) This is not an action by a public agency to recover restitution from a public official based upon a wholly unauthorized expenditure of public funds outside the scope of employment. (People ex rel. Harris v. Rizzo (2013) 214 Cal.App.4th 921, 942-943.) SDOG's citation to Page v. MiraCosta Community College Dist. (2009) 180 Cal.App.4th 471 is not helpful because the Brown Act violation in that case was alleged only against the District, not the former superintendent. In that case, the lawsuit included a separate cause of action against the former superintendent for unjust enrichment. (Id. at p. 482.) The Page court was concerned with whether summary judgment was proper on the causes of action, as pled. It was not required to consider whether an individual board member or District employee could be sued under Government Code section 54960.1, which is the only cause of action pled against the individuals here. Therefore, SDOG has not met its burden to establish a probability of prevailing on its claims.
We deny the individual defendants' request for judicial notice of the petition for writ of mandate filed in Page v. MiraCosta Community College District, San Diego Superior Court Case No. 37-2007-0055219-CU-WU-NC.
DISPOSITION
The order striking the complaint as to the individual defendants, Michelle O'Connor Ratcliff, T.J. Zane, Darshana Patel, and Marian Kim-Phelps is affirmed. Respondents shall recover their costs.
McCONNELL, P. J. WE CONCUR: BENKE, J. AARON, J.