Opinion
NOT TO BE PUBLISHED
Appeal from an order and judgment of the Superior Court of Orange County, No. 30-2008-00116818-CU-WM-CJC, Derek W. Hunt, Judge.
Cazzell & Associates and Maryann Cazzell for Plaintiff and Appellant.
Michaelis, Montanari & Johnson and Wesley S. Wenig for Defendant and Appellant.
OPINION
IKOLA, J.
A White and Yellow Cab, Inc. (AWYC), petitioned the trial court for a writ of mandate (Code Civ. Proc., § 1084 et seq.) after the Orange County Board of Supervisors (Board) awarded the John Wayne Airport taxi concession to a competitor of AWYC. AWYC’s petition does not directly challenge the Board’s decision and seek to overturn it. Instead, AWYC’s petition attacks (and seeks correction of) certain written statements about AWYC’s financial viability made by members of a committee, which was tasked by the Board with evaluating applicants for the airport taxi concession. The court granted the Board’s special motion to strike pursuant to section 425.16 (the anti-SLAPP statute). AWYC appeals the court’s order granting the anti-SLAPP motion and the Board cross-appeals, claiming the court did not award it sufficient attorney fees and costs. We affirm in all respects.
All unspecified statutory references are to the Code of Civil Procedure.
“SLAPP” is an acronym for a strategic lawsuit against public participation. (See Equillon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57, fn. 1.)
FACTS
On January 26, 2009, AWYC filed its verified first amended petition for writs of administrative mandate or, in the alternative, issuance of alternative or peremptory writs (along with various requests for injunctive relief, declaratory relief, and damages under § 1095). We focus our recitation of the facts on allegations pertaining directly to the Board. The first portion of the petition relates solely to AWYC’s various disputes with another respondent to the petition, the Orange County Taxi Administration Program (OCTAP), and we ignore these factual allegations to the extent possible. Only the Board filed an anti-SLAPP motion and only the Board is a party to this appeal.
In short, in its “FIRST CAUSE OF ACTION, ” AWYC challenges the validity of certain regulations enacted by OCTAP and takes issue with an administrative action by OCTAP against AWYC (a written warning) with regard to AWYC’s recordkeeping and document submission procedures.
Relevant Allegations in First Amended Petition
The Board awards “taxicab operating agreements” at John Wayne Airport in Santa Ana, California. The Board limits and restricts taxicab operations at the airport “to the extent that only the holder of a current... taxicab operating permit may have its taxicabs and drivers pick up fares” at the airport. The Board utilizes a request for proposal (RFP) process to solicit written applications from cab companies. At the request of the Board, the airport commissioners prepare the RFP, accept applications, and process the applications. Ultimately, recommendations from the airport commissioners are sent to the Board.
The RFP at issue was circulated on or about May 23, 2008, with applications due on or before July 17, 2008. Seven individuals served on a committee to rate the three responsive applications from AWYC, John Wayne Airport Yellow Cab (JWA Yellow Cab), and American Ground Transportation. The identities of the committee members were “kept secret from the [applicants] and members of the public.... ” A scoring system composed of seven categories was used to evaluate the applicants: (1) experience and qualification; (2) financial viability; (3) proposed fees (revenue to airport); (4) vehicles/maintenance/ proposed improvement (kiosk); (5) customer relations; (6) plan of operation; and (7) alternative fuels.
The committee awarded a higher numerical rating to JWA Yellow Cab (423.57) than AWYC (346.42). In the committee’s analysis, it remarked that its research disclosed unpaid judgments against AWYC, which put AWYC’s business permit through OCTAP at risk.
Certain committee members were prejudiced against AWYC because of past lawsuits and disputes involving AWYC, Orange County, and OCTAP. Moreover, certain committee members were prejudiced in favor of JWA Yellow Cab. Statements in committee materials concerning unpaid judgments and AWYC’s financial viability were untrue and were provided by OCTAP representatives. JWA Yellow Cab actually had numerous unsatisfied judgments, contrary to the information used by the committee. The factual misinformation (or disinformation) utilized by the committee skewed the numerical scores received by the applicants to the disadvantage of AWYC. Despite the efforts of AWYC to correct the record, the committee recommended to the Board that it award the airport taxi concession to JWA Yellow Cab. The Board accepted this recommendation and awarded the taxicab operating agreement to JWA Yellow Cab.
AWYC suffered damages as a result of the foregoing. First, it lost the opportunity to do business at the airport. Second, the negative facts about AWYC in the public record as a result of this process will harm AWYC with other municipal licensing agencies. AWYC submitted a claim to the County of Orange pursuant to Government Code section 910 et seq. but was not compensated for its losses. AWYC “lacks a plain, adequate and speedy remedy, in the ordinary course of the law, within the meaning of... section 1086, for the wrongs occasioned it by the [Board and] OCTAP....”
Relief Sought in First Amended Petition
AWYC sought a writ of mandate (administrative or otherwise) directing the Board and OCTAP to, in relevant part: (1) disclose the identities of the committee members; (2) appoint new, unbiased committee members for a reevaluation and re-scoring of the applications “in light of the true facts, and for publication of the results”; (3) correct and republish the staff recommendation with the “true facts”; (4) release all documents reviewed by the committee during the evaluation process; and (5) stay any action against AWYC pending resolution of this matter. In its “THIRD CAUSE OF ACTION” for declaratory relief, AWYC sought the same relief.
AWYC requested damages, costs, and attorney fees in connection with its petition for writ of mandate pursuant to sections 1095, 1021.5, and Government Code section 11130.5.
Strangely, AWYC did not challenge the actual award of the contract to JWA Yellow Cab. As AWYC explains in its appellate brief, “the Petition in this action did not ‘arise from’ the [Board’s] award of the JWA taxicab franchise, but rather from the underlying evaluations of and scoring on the JWA taxicab RFP Applications.” AWYC’s appellate brief further notes: “AWYC did NOT challenge the [Board’s] right to award [an airport] taxicab franchise, nor did it challenge the taxicab franchise award that was made.”
Board’s Anti-SLAPP Motion
The Board filed a special motion to strike AWYC’s “second and third causes of action asserted against” the Board. The Board asserted these “causes of action arise solely out of the [Board’s] written or oral statements made in connection with a Request for Proposal (RFP) proceeding and therefore constitute written or oral statements or writings made before a legislative, executive, or judicial proceeding and/or involves writings made in conjunction with an issue under consideration o[r] review by a legislative, executive or judicial body.”
Barbara Swift, the asset manager at the airport, submitted a declaration in support of the Board’s motion. Swift “managed and oversaw the request for proposals process for the taxicab concession at John Wayne Airport....” Swift attached copies of the RFP and the agenda staff report, which she prepared to “accurately describe[] the evaluation by the committee and its conclusions.” Swift confirmed the truth of several allegations in the petition: there were seven committee members (one airport commissioner, an OCTAP representative, and five airport representatives from different departments); there were seven factors used in the evaluation (the categories described in the petition were accurate); and the airport taxi concession was awarded to JWA Yellow Cab. Swift also declared she complied with AWYC’s public records request for copies of the “proposal documents submitted by [JWA] Yellow Cab in response to the RFP.”
AWYC opposed the motion, arguing the Board did not satisfy either prong of the anti-SLAPP analysis. AWYC submitted several declarations in connection with its opposition, none of which bear on the issues necessary to decide this appeal.
Ruling
The court granted the Board’s special motion to strike, awarded the Board $6,729 in attorney fees at a separate hearing, and entered judgment in favor of the Board.
DISCUSSION
An order granting or denying a motion to strike under section 425.16 is appealable. (§§ 425.16, subd. (i), 904.1, subd. (a)(13).) Our review of the court’s order granting the Board’s anti-SLAPP motion is de novo, and entails an independent review of the entire record. (Ross v. Kish (2006) 145 Cal.App.4th 188, 197.) We review the court’s award of attorney fees and costs for an abuse of discretion. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1130.)
The anti-SLAPP statute “requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity.... If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th 53, 67.)
Step One of the Anti-SLAPP Analysis
“A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike....” (§ 425.16, subd. (b)(1).)
As used in the anti-SLAPP statute, “‘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....” (§ 425.16, subd. (e).)
Had AWYC challenged the result reached by the Board (i.e., the award of the taxi concession to JWA Yellow Cab), we would reverse. (See City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80 [controversy not a SLAPP because dispute concerned validity of city ordinance, not protected activity related to the city ordinance]; Graffiti Protective Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207, 1224 [claims for writ of mandate and declaratory relief based on competitive bidding laws, not communications or petitioning activity]; San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees’ Retirement Assn. (2004) 125 Cal.App.4th 343, 357 (San Ramon Valley) [petitioner challenged substantive action of board, not speech or petitioning].)
“To decide otherwise would significantly burden the petition rights of those seeking mandamus review for most types of government action. Many of the public entity decisions reviewable by mandamus or administrative mandamus are arrived at after discussion and a vote at a public meeting. [Citations.] If mandamus petitions challenging decisions reached in this manner were routinely subject to a special motion to strike... the petitioners in every such case could be forced to make a prima facie showing of merit at the pleading stage. While that result might not go so far as to impliedly repeal the mandamus statutes... it would chill the resort to legitimate judicial oversight over potential abuses of legislative and administrative power, which is at the heart of those remedial statutes. It would also ironically impose an undue burden upon the very right of petition for those seeking mandamus review in a manner squarely contrary to the underlying legislative intent behind section 425.16.” (San Ramon Valley, supra, 125 Cal.App.4th at pp. 357-358, fn. omitted.)
But AWYC did not seek a writ of mandate overturning the award of the contract to JWA Yellow Cab (based on, for instance, a duty to comply with open meeting laws or public contract laws). Instead, AWYC chose to challenge the truth of written and oral statements made to the Board (and to and amongst the committee evaluating the proposals) concerning AWYC’s operations. The facts alleged in the petition seem more conducive (at least in the abstract, ignoring whether such claims would be viable against government agents evaluating competing proposals) to tort actions for libel or interference with prospective economic advantage against the committee members. AWYC even asks for economic damages it allegedly suffered as a result of the factual misstatements and resulting inaccurate score received by AWYC. In other words, the basis for the petition is squarely within the domain of the anti-SLAPP law. (See People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1317 [“archetype” SLAPP actions involve “torts of defamation or intentional interference with economic advantage”].) Of course, AWYC also asks for certain remedies that could not be obtained in a tort action, such as the appointment of new committee members for the purpose of re-scoring AWYC’s proposal. But this does not change the fact that the petition is essentially about the alleged factual inaccuracies contained in the committee’s communications concerning AWYC.
Step Two of Anti-SLAPP Analysis: Probability of Prevailing
“[A]lthough by its terms section 425.16, subdivision (b)(1) calls upon a court to determine whether ‘the plaintiff has established that there is a probability that the plaintiff will prevail on the claim’ (italics added), past cases interpreting this provision establish that the Legislature did not intend that a court, in ruling on a motion to strike under this statute, would weigh conflicting evidence to determine whether it is more probable than not that plaintiff will prevail on the claim, but rather intended to establish a summary-judgment-like procedure available at an early stage of litigation that poses a potential chilling effect on speech-related activities.” (Taus v. Loftus (2007) 40 Cal.4th 683, 714.)
This is an odd case. As previously noted, AWYC does not seek to overturn the Board’s legislative decision to award the contract to JWA Yellow Cab. “A public entity’s ‘award of a contract, and all of the acts leading up to the award, are legislative in character.’ [Citation.] ‘[T]he letting of contracts by a governmental entity necessarily requires an exercise of discretion guided by considerations of the public welfare.’ [Citation.] ‘[T]he mere fact that a proceeding before a deliberative body may possess certain characteristics of the judicial process does not convert legislative action into an adjudication of a private controversy.’” (Mike Moore’s 24-Hour Towing v. City of San Diego (1996) 45 Cal.App.4th 1294, 1303 (Mike Moore’s).)
“Review of a local entity’s legislative determination is through ordinary mandamus under section 1085. ‘Such review is limited to an inquiry into whether the action was arbitrary, capricious or entirely lacking in evidentiary support.’” (Mike Moore’s, supra, 45 Cal.App.4th at p. 1303.) “In general, the court does not weigh the evidence adduced before the agency or substitute its judgment for that of the agency.” (Id. at p. 1305.) The court in a mandamus proceeding should not concern itself with determining whether factual misrepresentations about applicants’ bids were made to the Board because to do so would be to “go beyond the face of the [contract] award... in order to examine the decisionmaking process which led up to it.” (Ibid.)
Perhaps recognizing the high bar it would face in asking a court to overturn the Board’s legislative determination, AWYC instead asked the trial court to require the Board to replace individuals on a committee created for an RFP process that was already completed and compel those individuals to re-score AWYC’s proposal for the sake of satisfying AWYC’s interest in having accurate information about it available in the public record. But by creatively trying to avoid the deference owed to the Board’s legislative judgment, AWYC pleaded itself into other difficulties.
First, AWYC does not identify the authority under which a court could provide the relief it requests. A “writ of mandate may be issued by any court... to compel the performance of an act which the law specially enjoins... or to compel the admission of a party to the use and enjoyment of a right or office to which the party is entitled....” (§ 1085, subd. (a).) There is no assertion in the record that the Board is specifically enjoined by the law to fix any alleged error in a factual record developed by a committee appointed to assist the Board in exercising its legislative discretion.
AWYC’s request to compel identification of the committee members seems more plausible on its face than its other requests. If the law requires the Board to identify the committee members or provide documents identifying members of the committee to the public, it would seem a petition for writ of mandate could be utilized to compel such ministerial act. But in its opposition to the anti-SLAPP motion, AWYC did not cite any law that was broken by the Board in not publicly announcing the identity of the committee members or argue that it had a probability of prevailing on this portion of its petition for mandamus. AWYC’s appellate briefs do not address this issue either. Indeed, as noted in the Board’s anti-SLAPP motion, the petition did not allege that AWYC had even attempted to obtain this information through ordinary administrative processes or public record requests. Any claim that the law requires the identification of the committee members has been forfeited.
Second, other than its award of the airport concession, the Board has nothing to do with AWYC’s dispute with OCTAP. AWYC has essentially tried to transform a mandamus dispute with OCTAP and/or a civil action for libel/interference with prospective business advantage against certain non-Board members (who either participated on the committee or provided information to the committee) into a mandamus proceeding against the Board. We need not explore whether AWYC could actually pursue viable legal actions against the individuals responsible for the alleged inaccurate information. Nor need we discuss the merits of AWYC’s mandamus proceedings against OCTAP. So long as the Board’s decision is not called into question by the petition, the Board should not be entangled in this legal proceeding.
Attorney Fees
The Board requested attorney fees of $22,838.50 and costs of $1,654.24. But the court awarded only $6,729 in attorney fees and no costs. The Board “cross-appeals” this award. There is neither an extended written explanation nor a hearing transcript in the record explaining the court’s rationale. The minute order states: “The cause was briefed and submitted to the court which, argument having been waived by the parties, now rules as follows: Attorney fees granted in the sum of $6,729.00; none of the costs listed in the motion is recoverable.”
“[A] prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” (§ 425.16, subd. (c)(1).) “Section 425.16, subdivision (c) makes an award of attorney fees and costs to a defendant who prevails on an anti-SLAPP motion mandatory. [Citation.] We review the amount of attorney fees awarded for abuse of discretion.” (Mallard v. Progressive Choice Ins. Co. (2010) 188 Cal.App.4th 531, 544.) A court does not abuse its discretion merely because it substantially reduces the amount of attorney fees and/or costs requested by a prevailing defendant. (Maughan v. Google Technology, Inc. (2006) 143 Cal.App.4th 1242, 1249-1253 [affirming award of $23,000 as attorney fees and costs despite documented request for $112,288.63].)
As AWYC pointed out to the trial court, the Board was exempt pursuant to Government Code section 6103 from paying certain filing fees and other court costs. Thus, the court had justification for not ordering AWYC to pay the Board’s costs, as the Board did not incur any costs allowable under section 1033.5. The Board protests that the “costs” referenced in section 425.16, subdivision (c)(1), are not necessarily limited to the “costs” allowed by section 1033.5. But the Board points to no case holding a court abuses its discretion by not awarding costs under section 425.16, subdivision (c)(1), for items such as mileage and parking expenses incurred by attorneys, messenger service fees, and document copy services.
As to attorney fees, the trial court was better situated than this court to determine whether a reasonable number of hours were spent on the anti-SLAPP motion, whether all of the hours claimed by the attorneys actually pertained to the anti-SLAPP motion, and whether the hourly rate claimed was reasonable. We will not attempt to reweigh the evidence or substitute our view of an appropriate award in this case.
DISPOSITION
The court’s order and the ensuing judgment are affirmed. AWYC’s request for judicial notice is denied. In the interests of justice, the parties shall bear their own costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., O’LEARY, J.
We deny AWYC’s request for judicial notice, in which AWYC requests this court to take notice of various documents related to the resolution of its dispute with OCTAP. These documents were not part of the record before the court at the anti-SLAPP hearing and, moreover, these documents have no bearing on the current controversy between AWYC and the Board.