Opinion
D069882
01-09-2017
LA MESA-SPRING VALLEY SCHOOL DISTRICT, Plaintiff and Respondent, v. COLLEGE PREPARATORY MIDDLE SCHOOL, Real Party in Interest and Appellant.
Procopio, Cory, Hargreaves & Savitch, Kendra J. Hall and John C. Lemmo for Defendant and Appellant. Dannis Woliver Kelley, Sue Ann Salmon Evans, Sarah L.W. Sutherland, and Keith A. Yeomans for Plaintiff and Respondent.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. 37-2015-00019227-CU-MC-CTL) APPEAL from an order of the Superior Court of San Diego County, Gregory W. Pollack, Judge. Affirmed. Procopio, Cory, Hargreaves & Savitch, Kendra J. Hall and John C. Lemmo for Defendant and Appellant. Dannis Woliver Kelley, Sue Ann Salmon Evans, Sarah L.W. Sutherland, and Keith A. Yeomans for Plaintiff and Respondent.
Young, Minney & Corr, Paul C. Minney, Kevin M. Troy; Ricardo Soto, Julie Ashby Umansky and Phillipa L. Altman for California Charter Schools Association as Amicus Curiae on behalf of Real Party in Interest and Appellant.
College Preparatory Middle School (College Preparatory), which is a charter school, appeals from an order denying its special motion to strike under the anti-SLAPP statute (Code of Civ. Proc., § 425.16). The special motion to strike was brought in a lawsuit initiated by La Mesa-Spring Valley School District (La Mesa) challenging the legality of College Preparatory's location within La Mesa and outside of the district that authorized the school, Mountain Empire Unified School District (MEUSD). La Mesa sought a writ of mandate and declaratory relief based on allegations that College Preparatory and MEUSD (together, defendants) had not complied with requirements of the Charter Schools Act of 1992 (Ed. Code, § 47600 et seq.; CSA) with respect to the charter school's location.
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure. SLAPP is an acronym for strategic lawsuit against public participation. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109 & fn. 1 (Briggs).)
As we will explain, the trial court properly denied the special motion to strike, and we accordingly affirm the court's order.
STATUTORY BACKGROUND
For context, we briefly address the statutory and regulatory scheme underlying the claims in the present controversy.
The establishment and operation of charter schools is governed by a statutory scheme—the CSA. (California School Boards Association v. State Board of Education (2010) 186 Cal.App.4th 1298, 1306 (CSBA); see Wilson v. State Bd. of Education (1999) 75 Cal.App.4th 1125, 1130 [upholding constitutionality of CSA].) In 2002, the Legislature added "stringent geographical restrictions" to the CSA, to enhance the oversight of charter schools by their chartering school districts. (CSBA, supra, at p. 1307.) Thus, the CSA now requires charter schools to be located within the boundaries of the school districts where they are chartered, with limited exceptions. (Id. at p. 1308; see Ed. Code., §§ 47605, subd. (a)(1), 47605.1.)
One exception to the within district requirement exists when a charter school "is unable to locate within the geographic boundaries of the chartering school district[.]" (Ed. Code, § 47605.1, subd. (d), italics added.) A charter school "may establish one site outside the boundaries of the school district, but within the county within which that school district is located, if the school district in which the charter school proposes to operate is notified in advance of the charter petition approval, the county superintendent of schools is notified of the location of the charter school before it commences operations, and either of the following circumstances exist: [¶] (1) The charter school has attempted to locate a single site or facility to house the entire program, but such a facility or site is unavailable in the area in which the school chooses to locate. [¶] (2) The site is needed for temporary use during a construction or expansion project." (Ibid.)
Former Education Code section 47605.1, subdivision (d), effective from January 1, 2003 to June 19, 2014, contained virtually identical language. (Stats. 2002, ch. 1058, § 7, p. 6812.) The same is true of the version in effect from June 20, 2014 to December 31, 2015. (Stats. 2014, ch. 33, § 37, p. 1330.)
FACTUAL AND PROCEDURAL BACKGROUND
La Mesa and MEUSD are public school districts that serve students within their respective geographic boundaries. In February 2010, MEUSD approved a petition to establish College Preparatory as a new charter school for a five-year term. According to its charter petition, College Preparatory would be located within the boundaries of La Mesa to serve students from various surrounding school districts, including La Mesa. The parties dispute the efforts, if any, of MEUSD and College Preparatory to locate a school site within MEUSD's boundaries. Prior to MEUSD's approval of the charter petition, it allegedly failed to provide proper notice to La Mesa that College Preparatory would be located in La Mesa.
In the fall of 2010, College Preparatory began operating in a church basement in La Mesa. In 2010 and 2011, College Preparatory revised its charter and identified a wide geographic area as the school's physical location, e.g., "in or easily accessible to the Eastern Region of San Diego County." MEUSD approved the charter revisions, and College Preparatory continued operating in the church basement. In October 2014, College Preparatory submitted a renewal charter petition to operate "in the Eastern Region of San Diego County," which MEUSD approved for another five years. Prior to MEUSD's approval of the renewed charter petition, it again allegedly failed to provide proper notice to La Mesa that College Preparatory would be located in La Mesa.
In April 2015, La Mesa's superintendent became aware that College Preparatory was seeking to build a new two-story school facility, which would accommodate significantly more students than the church basement, across the street from one of La Mesa's elementary schools. MEUSD was unaware of the proposed development on Madrid Way (the Madrid development). La Mesa's superintendent attended a community planning group meeting on the Madrid development and voiced his objections, relating to traffic and safety issues if two schools were located in close proximity. The community planning group served as advisers to the County of San Diego, which would decide whether to approve the Madrid development. La Mesa, MEUSD, and College Preparatory were unable to resolve the issue of whether College Preparatory could lawfully operate a school outside of MEUSD's boundaries.
In June 2015, La Mesa filed a petition for writ of mandate and complaint for injunctive and declaratory relief, against MEUSD and College Preparatory (the complaint). The complaint alleged that MEUSD authorized College Preparatory to unlawfully operate outside of MEUSD's boundaries and College Preparatory was unlawfully operating outside of MEUSD's boundaries.
One cause of action sought a petition for writ of mandate based on violations of the CSA, namely, that MEUSD and College Preparatory had failed to comply with the statute's requirements for locating a charter school outside of the chartering district. La Mesa sought an order requiring (1) College Preparatory to "legally locate and operate its charter school" and (2) MEUSD to disapprove or revoke the school's charter.
A second cause of action sought a petition for writ of mandate to compel MEUSD to produce all of its responsive records. MEUSD is not a party to this appeal and College Preparatory asserts no specific arguments relating to the second cause of action.
Another cause of action sought declaratory relief against MEUSD and College Preparatory relating to the charter school's location "outside MEUSD's geographic boundaries" and MEUSD's conduct in approving the location. La Mesa sought judicial determinations regarding whether MEUSD improperly approved a charter school located outside of its district, whether College Preparatory's location outside of MEUSD's boundaries violated the CSA, and the rights and legal duties of the respective parties. Finally, in one paragraph of its prayer for relief, La Mesa prayed for injunctive relief to prevent the "development and construction" of College Preparatory's new school outside of MEUSD's boundaries.
Shortly after filing its complaint, La Mesa filed an ex parte application for an expedited motion for preliminary injunction. The court denied the ex parte application.
In August 2015, College Preparatory filed a special motion to strike under the anti-SLAPP statute. College Preparatory contended the complaint was purportedly aimed at chilling its constitutional right of petition in two respects: (1) College Preparatory's right to seek and obtain governmental permits, approvals, and entitlements to build a new school facility, and (2) its right to petition to become a charter school. In support of its special motion to strike, College Preparatory provided the declaration of MEUSD's past superintendent in which he attested to the steps he had taken in connection with MEUSD's approval of College Preparatory's charter and in calling and writing La Mesa's superintendent about College Preparatory's location within La Mesa. College Preparatory also provided the declaration of College Preparatory's co-founder, who described her efforts to comply with the CSA with respect to the school's location, agreements between La Mesa and College Preparatory showing La Mesa's provision of school lunches and transportation services to the school, and the school's desire to relocate to a new facility in La Mesa.
In response to the special motion to strike, La Mesa disputed (1) MEUSD gave proper notice to La Mesa of the charter school's location prior to approving and renewing the petitions and (2) College Preparatory's efforts to find a suitable location within MEUSD. La Mesa provided an attorney declaration showing that, in response to La Mesa's request for responsive documents, MEUSD had not produced any evidence of supposed preapproval written notifications or the extent of search endeavors for a within district site.
In January 2016, the trial court denied the special motion to strike, finding that La Mesa's claims did not arise from protected activity under the anti-SLAPP statute. The trial court further found it unnecessary to address La Mesa's probability of prevailing on its claims. College Preparatory timely appealed.
MOTION TO DISMISS
We first address La Mesa's motion to dismiss the appeal. La Mesa filed a motion to dismiss College Preparatory's appeal as frivolous and a related motion for an award of appellate attorney fees as sanctions. La Mesa argued that (1) the underlying anti-SLAPP motion had no legal merit and was brought in bad faith for purposes of harassment and delay, and (2) College Preparatory was also attempting to appeal the trial court's order overruling College Preparatory's demurrer, which is a nonappealable order.
In response to La Mesa's motion to dismiss, College Preparatory asserted that a motion to dismiss is ordinarily denied when a detailed review of the record is required. College Preparatory argued its anti-SLAPP motion was meritorious, there is a lack of bright line rules governing when a claim arises from protected activity, and the case required a highly fact specific inquiry. It indicated that the same trial court order denied its special motion to strike and demurrer.
We ordered the parties to limit their briefing to issues concerning the anti-SLAPP motion and that the motion to dismiss would be considered with the appeal. Subsequently, College Preparatory requested we take judicial notice of an August 2016 trial court order finding that College Preparatory's special motion to strike was neither frivolous nor solely intended to cause unnecessary delay and accordingly denying La Mesa's motion for attorney fees relating to the anti-SLAPP motion.
College Preparatory's unopposed request for judicial notice is granted (Evid. Code, § 452, subd. (d)), and La Mesa's motions to dismiss and for attorney fees are denied.
Although courts have the inherent power to dismiss frivolous appeals, the power should not be used except in the "absolutely clearest cases." (People ex rel. Lockyer v. Brar (2004) 115 Cal.App.4th 1315, 1318 (Brar).) " 'An appeal is frivolous and warrants the imposition of sanctions "when it is prosecuted for an improper motive—to harass the respondent or delay the effect of an adverse judgment—or when it indisputably has no merit—when any reasonable attorney would agree that the appeal is totally and completely without merit." ' " (San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees' Retirement Assn. (2004) 125 Cal.App.4th 343, 350.)
As we discuss, infra, College Preparatory's appeal is not meritorious, but we do not find it is frivolous. The anti-SLAPP motion was not foreclosed by a categorical exemption (e.g., Brar, supra, 115 Cal.App.4th at pp. 1317-1320), and neither party presented dispositive published case authority. Moreover, the trial court, which is familiar with the proceedings below, found that College Preparatory did not bring the special motion to strike for an improper motive. There is no evidence of harassment in the record, and the appeal did not delay the effect of an adverse judgment. We decline to dismiss the appeal or to impose sanctions.
DISCUSSION
I
OVERVIEW OF THE ANTI-SLAPP STATUTE
The anti-SLAPP statute provides: "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, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).)
"Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) "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.' " (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79 (Cotati) [citing § 425.16, subd. (b)].) " 'If the defendant does not demonstrate [the] initial prong, the court should deny the anti-SLAPP motion and need not address the second step.' " (Zucchet v. Galardi (2014) 229 Cal.App.4th 1466, 1476.)
Section 425.16, subdivision (e) specifies 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).)
When the first two subparts of section 425.16, subdivision (e) are at issue (i.e., speech or petitioning before a legislative, executive, judicial or other official proceeding; or statements made in connection with an issue under review or consideration by an official body), the moving party is not required to independently demonstrate that the matter is a " 'public issue' " within the statute's meaning. (Briggs, supra, 19 Cal.4th at p. 1113.) --------
We review the trial court's ruling on this anti-SLAPP motion independently under a de novo standard of review. (Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273, 1283.)
II
THE CLAIMS AGAINST COLLEGE PREPARATORY ARISE FROM THE SCHOOL'S
ALLEGED FAILURE TO COMPLY WITH THE CSA'S GEOGRAPHIC LIMITATIONS,
NOT OBTAINING A CHARTER OR DEVELOPMENT PERMIT
College Preparatory first contends the complaint arises from its protected activity of seeking approval and renewal of its charter, which it argues occurred in an official proceeding authorized by law and in an open public forum concerning an issue of public interest (§ 425.16, subds. (e)(2) & (e)(3)). College Preparatory further contends the complaint arises from its efforts to obtain a development permit and approvals from the County of San Diego (§ 425.16, subd. (e)(2)).
"[T]he statutory phrase 'cause of action . . . arising from' means . . . that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech." (Cotati, supra, 29 Cal.4th at p. 78.) "[T]he mere fact an action was filed after protected activity took place does not mean it arose from that activity." (Id. at pp. 76-77, italics added.) " 'In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant's protected free speech or petitioning activity.' " (In re Episcopal Church Cases (2009) 45 Cal.4th 467, 477.) Whether a cause of action arises from protected activity depends upon its principal thrust or gravamen. (Ibid.; Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.) The anti-SLAPP statute does not apply where allegations of protected activity are only incidental to a cause of action based on unprotected activity. (Martinez, supra, at p. 188.)
We separately analyze the two areas of protected activities identified by College Preparatory and whether they gave rise to La Mesa's claims for writ of mandate and declaratory relief.
A. Charter Petitioning Activities
We assume for purposes of analysis that statements in a charter school petition and made before a school board to obtain the petition's approval further the constitutional right of petition or free speech, as protected under section 425.16. Regardless, the claims against College Preparatory were not based on such protected activities.
In deciding whether an action is a SLAPP, courts distinguish between "(1) speech or petitioning activity that is mere evidence related to liability and (2) liability that is based on speech or petitioning activity." (Graffiti Protective Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207, 1214-1215 (Graffiti Protective Coatings).) In Graffiti Protective Coatings, a maintenance contractor filed an action seeking a writ of mandate and declaratory relief against a city to compel the city to award a maintenance contract through competitive bidding and to void a contract that was awarded absent competitive bidding. (Id. at p. 1213.) The city filed an anti-SLAPP motion, arguing that the contract was awarded in connection with an official proceeding involving a public issue and the lawsuit arose from protected activities. (Id. at pp. 1213, 1218.) The court rejected these arguments, concluding that the contractor's claims were based on state and municipal laws requiring competitive bidding, not on the city's statements authorizing the contract. (Id. at p. 1218.)
Here, the gravamen of La Mesa's mandamus claim was that defendants had not complied with the CSA with respect to the charter school's location, including notifications to La Mesa and efforts to find a within district school site, and as a result, College Preparatory was unlawfully located outside of MEUSD's boundaries. Analogous to the court's reasoning in Graffiti Protective Coatings, 181 Cal.App.4th 1207, La Mesa's claims are based on state laws imposing geographic limitations on charter schools, not on charter petitioning statements or conduct. The statutory requirements to locate a charter school within its chartering district, or otherwise provide legal notice and determine that a within district school site is unavailable, do not implicate College Preparatory's rights of petition or free speech.
Likewise, La Mesa sought declaratory relief regarding whether College Preparatory had complied with the CSA's geographic limitations. La Mesa's claims did not arise from College Preparatory's statements or acts in petitioning for a charter. (See Santa Monica Rent Control Bd. v. Pearl Street, LLC (2003) 109 Cal.App.4th 1308, 1318 [suit was based on landlord's alleged act of charging unlawful rent, not on act of filing protected notices of intent to charge market prices with rent control board].) At best, College Preparatory's charter may provide evidence of any CSA violations. (See Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102 Cal.App.4th 1388, 1399 [protected communications may constitute evidence of mishandled insurance claims but lawsuit did not arise from the communications].)
Although the complaint points out alleged deficiencies in College Preparatory's charter relating to the school's location, the principal thrust of La Mesa's claims was defendants' noncompliance with the CSA in locating the charter school outside of its chartering district, including requirements of preapproval notice and attempting to find a suitable site within the district. Defendants' alleged failure to comply with their statutory duties did not constitute a "statement" made in an official proceeding or in a public forum involving an issue of public interest. (§ 425.16, subd. (e); Graffiti Protective Coatings, supra, 181 Cal.App.4th at p. 1225 ["[S]uits brought by a governmental agency to enforce laws aimed at public protection are not subject to the anti-SLAPP statute."].) If references to the charter's language were excised from the complaint, the crux of La Mesa's claims based on MEUSD's statutory duties and College Preparatory's geographic location outside of MEUSD would remain largely unaffected. (See § 47605.1, subd. (a) ["a charter school that is granted a charter from the governing board of a school district . . . shall locate in accordance with the geographic and site limitations of this part"].) La Mesa's claims did not arise from College Preparatory's petitioning or speech activities to obtain the charter's approval.
B. Development Permit Activities
We further conclude that La Mesa's suit did not arise from College Preparatory's attempt to obtain a development permit. Considering the pleadings and relevant documents, La Mesa's claims were not based on any statements or conduct by College Preparatory during the permitting process. According to College Preparatory's co-founder, College Preparatory was not itself petitioning for a land use permit. Rather, it had a contract with a development company, Highmark School Development (Highmark), and Highmark and its agents owned the Madrid development, would obtain the permits and build the school, and then lease the building to College Preparatory. College Preparatory has not demonstrated the permitting process implicated College Preparatory's protected rights of petition or free speech. (See § 425.16, subd. (b)(1) [providing a motion to strike for "[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," italics added].)
Even if we assume for purposes of analysis that College Preparatory was seeking to obtain a development permit, La Mesa's claims were not based on the pursuit of government permits and approvals. The permit related proceedings certainly preceded and may have provided evidence of the facts underlying La Mesa's suit, but the allegedly wrongful conduct—MEUSD's lack of oversight and College Preparatory's noncompliance with the CSA regarding geographic limitations—began before and independently from the permitting process. (See Cotati, supra, 29 Cal.4th at p. 78.)
In arguing that La Mesa's suit was principally directed at preventing College Preparatory from obtaining a development permit, College Preparatory emphasizes La Mesa's litigation efforts to enjoin the new school from being built. The argument is not supported by a fair reading of the complaint. (See Wang v. Wal-Mart Real Estate Bus. Trust (2007) 153 Cal.App.4th 790, 809 (Wang) [review of complaint showed that underlying acts did not principally challenge the pursuit of governmental approvals].)
Under its mandamus claim, La Mesa principally sought to compel MEUSD's and College Preparatory's compliance with the CSA, including revocation of College Preparatory's charter if necessary. Under its declaratory relief claim, La Mesa principally sought an adjudication of the parties' rights concerning the charter school's location under the CSA. La Mesa's prayer for injunctive relief is unremarkable in light of its claim for declaratory relief, which was based on an actual, present controversy concerning whether College Preparatory was lawfully located outside of MEUSD's geographic boundaries. (See Cotati, supra, 29 Cal.4th at p. 72 [suit sought declaratory relief, an injunction, and damages allegedly resulting from City's rent stabilization ordinance challenged as unconstitutional]; Wang, supra, 153 Cal.App.4th at p. 798 [including request for injunctive relief].) As alleged, the parties' controversy existed irrespective of the County of San Diego's permitting process.
College Preparatory has not met its threshold burden of showing this suit is based on protected activity. Therefore, La Mesa was not required to demonstrate it had a reasonable probability of success on its claims, and we do not address that prong.
DISPOSITION
La Mesa's motions to dismiss the appeal and for attorney fees are denied. The order denying College Preparatory's anti-SLAPP motion is affirmed. La Mesa is entitled to costs on appeal.
/s/_________
HUFFMAN, Acting P. J. WE CONCUR: /s/_________
HALLER, J. /s/_________
AARON, J.