Opinion
NOT TO BE PUBLISHED
Appeal from the Superior Court of San Bernardino County VCVVS043761, Kyle S. Brodie, Judge.
Aviles & Associates and Moises A. Aviles for Plaintiff and Appellant.
Aleshire & Wynder, Eric L. Dunn and Anthony R. Taylor for Defendants and Respondents.
OPINION
RICHLI, J.
Plaintiff Karen Advincula filed this action against multiple defendants, including the City of Hesperia (the City) and five of the City’s code enforcement officers (Tony Genovesi, Paula Winter, Paul Kleinsmith, Theresa Yeates and Ernie Perea). She claimed that a neighbor, known to her only as “George,” had reported her to the City because she had refused his demand that she build a block wall and because he did not like the color of her shed. In response to George’s reports, the individual City defendants obtained inspection and abatement warrants and executed them without probable cause. She asserted federal causes of action for violation of her civil rights (42 U.S.C. §§ 1983, 1985(3)), as well as state law causes of action.
We will refer to the City and to these five code enforcement officers collectively as the City defendants. We will refer to the five code enforcement officers, without the City, as the individual City defendants.
The trial court granted the City defendants’ special motion to strike (SLAPP motion) pursuant to Code of Civil Procedure section 425.16 (SLAPP statute) and dismissed the complaint as against them.
Advincula appeals. She does not challenge the striking of her state law claims. With respect to the striking of her federal claims, however, she contends:
1. The trial court erred by ruling that Advincula had not established a probability of prevailing in the face of the City defendants’ claim of qualified immunity.
2. The application of the SLAPP statute to causes of action based on federal law violates the supremacy clause.
3. The SLAPP statute violates the right to petition because it applies to this action by Advincula against the City defendants, even though it would not apply to a code enforcement action by the City against her.
4. Even assuming the motion to strike was properly granted, Advincula should have been given leave to amend.
We will conclude that Advincula has not shown any prejudicial error. Accordingly, we will affirm.
I
FACTUAL BACKGROUND
Advincula’s operative complaint alleged the following.
Advincula’s statement of facts does not mention any additional facts or allegations. We conclude that she does not consider any of her other allegations to be relevant to this appeal. (See Cal. Rules of Court, rule 8.204(a)(2)(C) [brief must “[p]rovide a summary of the significant facts”].)
Around December 2003, Advincula’s neighbor, known to her only as “George,” demanded that she build a block wall between her property and his. After she refused, code enforcement officers “started to visit [Advincula’s] property, without probable cause, at the bequest [sic] of . . . George . . . .” They “harassed” Advincula.
The City’s building department advised Advincula that she did not need permits to build a shed. After she built one, however, George complained to code enforcement officers about the shed. Without probable cause, code enforcement officers returned to Advincula’s property, told her that she needed permits to build a shed, and made her tear down the existing shed.
On or about September 20, 2004, code enforcement officers executed an abatement warrant at Advincula’s property. The warrant had been obtained without probable cause.
On or about April 27, 2006, code enforcement officers once again executed a warrant at Advincula’s property. This warrant, too, had been obtained without probable cause.
II
PROCEDURAL BACKGROUND
Advincula’s operative complaint asserted nine causes of action:
1. Violation of civil rights. (42 U.S.C. § 1983 (section 1983).)
2. Conspiracy to violate civil rights. (42 U.S.C. § 1985(3).)
3. Declaratory relief.
4. Administrative mandate.
5. Invasion of privacy.
6. Inverse condemnation.
7. Intentional infliction of emotional distress.
8. Negligence.
Advincula argues that her causes of action for declaratory relief, administrative mandate, and inverse condemnation should be deemed to arise under federal law rather than state law. We need not decide whether she is correct; if she is, everything we say in this opinion about her federal causes of action applies equally to these causes of action.
On July 27, 2007, the City defendants filed a SLAPP motion. In it, they argued that all of Advincula’s causes of action arose out of the right of petition or free speech. They then argued that Advincula could not show a likelihood of prevailing on her federal causes of action (1) against the individual City defendants, because she could not show that they were not entitled to qualified immunity, or (2) against the City, because she could not show that the individual City defendants were acting pursuant to any unconstitutional policy or custom of the City. They also argued that, for various reasons, she could not show a likelihood of prevailing on her state law causes of action.
The City defendants also argued that most — but not all — of Advincula’s federal claims were barred by the statute of limitations; they conceded that her claims arising out of the execution of a warrant on April 26, 2006 were not barred.
In her opposition, Advincula did not dispute that her causes of action arose out of the City defendants’ exercise of the right of petition or free speech. She also did not argue that she had shown a likelihood of prevailing on her state law causes of action. She merely argued that the individual City defendants did not have qualified immunity because George’s tips did not afford probable cause for a search. She further argued that the very fact that the individual City defendants had acted without probable cause demonstrated that the City was liable for its policy or custom of failing to train them adequately. Finally, she requested leave to amend her complaint.
The trial court granted the SLAPP motion and dismissed the complaint without leave to amend.
III
QUALIFIED IMMUNITY
Advincula contends that the trial court erred by ruling that she had not established a probability of prevailing in the face of the City defendants’ claim of qualified immunity.
“Section 1983 declares, ‘Every person who, under color of any statute, ordinance, regulation, custom, or usage, of any State or Territory or the District of Columbia, subjects, or causes to be subjected, any citizen of the United States or other person within the jurisdiction thereof to the deprivation of any rights, privileges, or immunities secured by the Constitution and laws, shall be liable to the party injured in an action at law, suit in equity, or other proper proceeding for redress . . . .’ But, ‘to permit government officials to act in areas of legal uncertainty without undue fear of subsequent liability . . . [citation]’ [citation], courts have recognized these officials are entitled to a defense of qualified immunity against civil rights actions under section 1983. ‘Qualified immunity shields an officer from suit when she makes a decision that, even if constitutionally deficient, reasonably misapprehends the law governing the circumstances she confronted. [Citation.]’ [Citation.]” (Ritschel v. City of Fountain Valley (2006) 137 Cal.App.4th 107, 115-116.)
“In a search or arrest warrant context, an officer has qualified immunity if, although the warrant he or she sought lacked probable cause, a reasonably well-trained officer would not have realized the defect and would have applied for the warrant. [Citation.] . . . ‘Only where the warrant application is so lacking in indicia of probable cause as to render official belief in its existence unreasonable [citation] will the shield of immunity be lost.’ [Citation.] ‘Thus, qualified immunity leaves “ample room for mistaken judgments,” [citation] and protects “all but the plainly incompetent or those who knowingly violate the law.” [Citation.]’ [Citation.]” (Wood v. Emmerson (2007) 155 Cal.App.4th 1506, 1515.)
Because this issue arose in the context of a SLAPP motion, Advincula had the burden of establishing a probability that she would prevail on her federal claims. (Code Civ. Proc., § 425.16, subd. (b)(1).) Hence, she had the burden of disproving the City defendants’ claim of qualified immunity.
Advincula argues that George reported her to the code enforcement authorities based on matters — the lack of a block wall and the color of the shed — that were not, in fact, code violations; she concludes that the City defendants lacked probable cause to seek warrants. The problem is that there is no evidence of this. Advincula could not testify to this herself; she had no personal knowledge of what George may have reported. Although she purported to testify, in her declaration in opposition to the SLAPP motion, that the individual City defendants came to her house “without probable cause,” there was no evidence that she had any way of knowing that this was the case. In any event, this was a legal conclusion and, as such, not substantial evidence. (WRI Opportunity Loans II, LLC v. Cooper (2007) 154 Cal.App.4th 525, 532, fn. 3.)
We emphasize that this is Advincula’s only argument as to why the individual City defendants were not entitled to qualified immunity. (See Cal. Rules of Court, rule 8.204(a)(1)(B) [brief must state each point under separate heading or subheading summarizing the point].) We deem all other conceivable arguments forfeited.
The City defendants objected to this portion of Advincula’s declaration on grounds including hearsay, speculation, and lack of foundation. The trial court overruled the objection. The City defendants argue that this was error. We agree.
The applications for at least some of the warrants are in the record. They indicate that the City had received reports of specified conditions, including trash and debris, inoperative vehicles, the outside storage of appliances, illegal outbuildings, and an unlicensed dog; they cite the provisions of the municipal code that these conditions violated. Thus, it appears that there was probable cause for the issuance of the warrants. Certainly Advincula has failed to carry her burden to prove that there was not.
“[T]he protection afforded by qualified immunity applies only to individuals, such as the officers herein, and not to municipalities. [Citations.]” (Jimenez v. County of Los Angeles (2005) 130 Cal.App.4th 133, 144.) However, “[t]o find a municipality liable under section 1983, a plaintiff must identify a municipal policy or custom that caused the constitutional injury. [Citations.]” (Harman v. City and County of San Francisco (2006) 136 Cal.App.4th 1279, 1295.)
Advincula argues that the City is liable based on its failure to train the individual City defendants adequately. (See Canton v. Harris (1989) 489 U.S. 378, 389.) Once again, however, there is no evidence of this. In the trial court, she argued that the very fact that the individual City defendants acted on unreliable tips was evidence of inadequate training. We disagree; but, in any event, as already discussed, there was no evidence that the individual City defendants were, in fact, acting on unreliable tips.
We therefore conclude that the trial court did not err by ruling that Advincula had not shown a probability of prevailing on her federal causes of action.
IV
THE SUPREMACY CLAUSE
Advincula contends that the application of the SLAPP statute to causes of action based on federal law violates the supremacy clause.
Preliminarily, even assuming the trial court erred in this respect, Advincula’s counsel invited the error. Advincula’s written opposition to the SLAPP motion did not raise this argument at all. However, at the hearing on the motion, there was this exchange:
“[COUNSEL FOR ADVINCULA:] I don’t see how the — how is it the anti-SLAPP motion will trump an independent [section] 1983 standing on its own? If the Court does allow it, your Honor, we are asking
“THE COURT: Well, hold on. It wouldn’t in federal court, but you are in state court.
“[COUNSEL FOR ADVINCULA]: Yes.
“THE COURT: So you are arguing that the supremacy clause of the Constitution means that as a matter of law a civil rights — if I am understanding your argument correctly, a civil rights complaint cause of action alleging a violation of federal law could never be subject to an anti-SLAPP motion.
“[COUNSEL FOR ADVINCULA]: I am not saying that, your Honor. I am saying that they have not met their burden.” (Italics added.)
Later, counsel for Advincula reiterated, “I am not saying that an anti-SLAPP motion can never bar a [section] 1983 civil rights violation.”
Thus, Advincula essentially conceded that the SLAPP statute could apply to her federal causes of action. It follows that the asserted error was forfeited for purposes of appeal. (See Karlsson v. Ford Motor Co. (2006) 140 Cal.App.4th 1202, 1236 [absent exclusive federal jurisdiction, federal preemption is not jurisdictional; it can be forfeited if not raised below].)
Even if not forfeited, the claim lacks merit. “Although federal law controls the substantive aspects of plaintiff[’s] federal civil rights claim, state rules of evidence and procedure apply unless application of those rules would affect plaintiff[’s] substantive federal rights. [Citations.]” (County of Los Angeles v. Superior Court (2006) 139 Cal.App.4th 8, 17; see also cases cited therein.) The application of the SLAPP statute does not affect Advincula’s substantive federal rights because, if she could have established a probability that she would prevail on her federal claim, she would still have been free to proceed. Admittedly, a SLAPP motion does result in an automatic stay of discovery, but “[t]he court, on noticed motion and for good cause shown, may order that specified discovery be conducted . . . .” (Code Civ. Proc., § 425.16, subd. (g).) In sum, as long as a plaintiff with a federal claim actually has substantive federal rights, a SLAPP motion should not affect them. It has therefore been held that “[f]ederal civil rights claims brought in California state courts are subject to [Code of Civil Procedure] section 425.16 motions. [Citation.]” (Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1392, fn. 4; accord, Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1117-1118.)
V
THE CONSTITUTIONALITY OF THE PUBLIC PROSECUTOR EXCEPTION TO THE SLAPP STATUTE
The SLAPP statute, by its terms, does “not apply to any enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor.” (Code Civ. Proc., § 425.16, subd. (d).) Advincula contends that the SLAPP statute violates her right to petition because it applies to this action by her against the City and its code enforcement officers, even though it would not apply to a code enforcement action by the City against her.
The SLAPP statute does not affect the right to petition. “There is no fundamental First Amendment right to petition the courts by filing a SLAPP.” (Bernardo v. Planned Parenthood Federation of America (2004) 115 Cal.App.4th 322, 365.) “‘The right to petition is not absolute, providing little or no protection for baseless litigation’ [citation].” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 64.)
Admittedly, in the related context of freedom of speech, it has been held that the government cannot always discriminate based on the content of speech, even when the speech is in a category that it could wholly proscribe, such as defamation, obscenity, or fighting words. (Walker v. Kiousis (2001) 93 Cal.App.4th 1432, 1449-1450.) Thus, it could be argued that, even though the government could wholly proscribe baseless lawsuits, it cannot discriminate between baseless lawsuits brought by public prosecutors and baseless lawsuits brought by others. Advincula does cite Walker; however, she does not argue that the government is prohibited from treating some baseless lawsuits differently from others. We deem any such contention forfeited.
We also note — if only out of an excess of caution — that there are several instances in which the government can pick and choose among proscribable speech based on its content. For one thing, it can “do so ‘[w]hen the basis for the content discrimination consists entirely of the very reason the entire class of speech at issue is proscribable . . . .’ [Citation.] Thus, the government could choose to prohibit only the most obscene obscenity, i.e., that which is ‘most patently offensive . . . .’” (Walker v. Kiousis, supra, 93 Cal.App.4th at pp. 1449-1450.) Here, the government could discriminate in favor of baseless lawsuits by a public prosecutor, and against baseless lawsuits by the general public, because lawsuits by a public prosecutor are the least likely to be baseless.
The government can also discriminate against proscribable speech based on content “where ‘the nature of the content discrimination is such that there is no realistic possibility that official suppression of ideas is afoot.’” (Walker v. Kiousis, supra, 93 Cal.App.4th at p. 1450.) Here, by analogy, the government can discriminate in favor of baseless litigation by a public prosecutor because there is no reason to suppose that it is trying to suppress other lawsuits for any reason other than their baselessness.
Thus, although phrased in terms of the right to petition, this is essentially an equal protection argument. It has been held, however, that the public prosecutor exception to the SLAPP statute does not violate equal protection. (People v. Health Laboratories of North America, Inc. (2001) 87 Cal.App.4th 442, 447-451.) “Statutes that classify and impose differing procedural requirements on litigants are generally valid if the classification is supported by a rational basis. [Citations.]” (Id. at p. 449.) “[T]he classification . . . bears directly on furthering the state’s legitimate interest of allowing prosecutors—who did not create the SLAPP problem—to pursue actions to enforce laws, unencumbered by delay, intimidation, or distraction. It therefore does not violate the equal protection clause of either the United States or California Constitution.” (Id. at p. 451; accord, Bernardo v. Planned Parenthood Federation of America, supra, 115 Cal.App.4th at pp. 366-367.)
We therefore conclude that the public prosecutor exception does not render the SLAPP statute unconstitutional.
VI
LEAVE TO AMEND
Finally, Advincula contends that she should have been given leave to amend.
There is no right to amend a complaint after a SLAPP motion has been granted. (Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073-1074.) “Allowing a SLAPP plaintiff leave to amend the complaint once the court finds the prima facie showing has been met would completely undermine the statute by providing the pleader a ready escape from [Code of Civil Procedure] section 425.16’s quick dismissal remedy. Instead of having to show a probability of success on the merits, the SLAPP plaintiff would be able to go back to the drawing board with a second opportunity to disguise the vexatious nature of the suit through more artful pleading. This would trigger a second round of pleadings, a fresh motion to strike, and inevitably another request for leave to amend. [¶] By the time the moving party would be able to dig out of this procedural quagmire, the SLAPP plaintiff will have succeeded in his goal of delay and distraction and running up the costs of his opponent. [Citation.] . . . This would totally frustrate the Legislature’s objective of providing a quick and inexpensive method of unmasking and dismissing such suits. [Citation.]” (Ibid.)
Advincula argues that, because she is asserting a federal civil rights claim, federal principles of notice pleading should apply. However, “the general rule is that where an action founded on a federal statute is properly brought in the state courts, the law of the state, in the absence of any contrary provisions in the federal statute, controls in matters of practice and procedure. [Citation.]” (Bach v. County of Butte (1983) 147 Cal.App.3d 554, 561-562, fn. omitted.) “No statute requires the states to apply federal law to test the adequacy of complaints filed in state courts under section 1983.” (Id. at p. 561, fn. 4.) Moreover, even assuming Advincula is correct, the applicability of notice pleading principles simply has nothing to do with whether leave to amend should be granted.
Advincula relies on Verizon Delaware v. Covad Communications (9th Cir. 2004) 377 F.3d 1081 (Verizon). The procedural situation there, however, was very different. There, when the defendant brought a SLAPP motion, the trial court deferred ruling on it until the plaintiff had filed an amended complaint. (Id. at p. 1091.) The appellate court held that this was not error. (Ibid.) Verizon is not controlling, because here, the trial court had already granted the SLAPP motion. But even if Verizon had been in the same procedural posture, it still would not be controlling, because it turned on rule 15 of the Federal Rules of Civil Procedure (28 U.S.C.) and its “policy favoring liberal amendment.” (Verizon, at p. 1091.) Indeed, when the defendant argued that the court’s holding would encourage forum shopping, the court responded essentially that it had no choice, because “a direct collision with a federal procedural rule exists.” (Ibid.) Accordingly, it all but acknowledged that a different result would obtain in state court.
We therefore conclude that the trial court did not err by denying leave to amend.
VII
DISPOSITION
The order appealed from is affirmed. The City defendants are awarded costs on appeal against Advincula. The City defendants are also entitled to an award of attorney fees on appeal against Advincula (Code Civ. Proc., § 425.16, subd. (c); Maranatha Corrections, LLC v. Department of Corrections and Rehabilitation (2008) 158 Cal.App.4th 1075, 1091), in an amount to be determined by the trial court.
We concur: HOLLENHORST, Acting P.J., KING, J.
The trial court found that Advincula had not shown a probability of prevailing on her federal claims, based on qualified immunity; it did not rely on the statute of limitations. If it had, it would have erred; in light of the City defendants’ concession, it could not have stricken the federal causes of action in their entirety on this ground.
We therefore do not discuss the statute of limitations issue any further.