Dixon v. Superior Court

• Decision Date: 30 November 1994
• Docket Number: No. G015646,G015646
• Citation: 30 Cal.App.4th 733,36 Cal.Rptr.2d 687
• Court: California Court of Appeals Court of Appeals
• Parties: , 23 Media L. Rep. 1663 Keith A. DIXON, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent; SCIENTIFIC RESOURCE SURVEYS, INC. et al., Real Parties in Interest.

Page 687

36 Cal.Rptr.2d 687

30 Cal.App.4th 733, 23 Media L. Rep. 1663

Keith A. DIXON, Petitioner, v. The SUPERIOR COURT of Orange County, Respondent SCIENTIFIC RESOURCE SURVEYS, INC. et al., Real Parties in Interest.

No. G015646.

Court of Appeal, Fourth District, Division 3, California.

Nov. 30, 1994.

Review Denied March 23, 1995.

[30 Cal.App.4th 736] Strumwasser & Woocher, Michael J. Strumwasser, Frederic D. Woocher and Susan L. Durbin, Santa Monica, for petitioner.

ACLU Foundation of Southern California, Center for Human Rights and Constitutional Law, and California Faculty Ass'n as amici curiae on behalf of petitioner.

No appearance for respondent.

Bidna & Keys, Howard M. Bidna and Harvey M. Moore, Newport Beach, for real parties in interest.

OPINION

WALLIN, Associate Justice.

In this petition for writ of mandate we are asked to interpret recently enacted legislation (Code Civ.Proc., § 425.16) designed to curtail a growing number of SLAPP (Strategic Lawsuits Against Public Participation) suits. ¹

Factual and Procedural Background

At the heart of this controversy is a 22-acre portion of the California State University at Long Beach (CSULB) campus long believed by many Native American Indians to be part of an ancient Indian village known as Puvunga. In 1974, following nomination by petitioner Keith Dixon, an archaeologist and Professor Emeritus of Anthropology at CSULB, the Puvunga site ² was accepted for inclusion on the National Register of Historic Places.

Sometime in late 1979 or early 1980, CSULB contracted with Scientific Resource Surveys, Inc. (SRS) to perform archaeological tests on a portion of the Puvunga site on which it wanted to build a Japanese garden and museum. The 1980 report prepared by SRS concluded the proposed project would cause no "adverse effects to archaeological and/or historic resources." In early 1981, the director of CSULB's Physical Planning and Development Department forwarded a copy of SRS's archaeological report to the anthropology department for review and comments. Dixon, along with another faculty member, responded with a critique of the report. Dixon's detailed letter concluded the report was "poorly done," biased and should be withdrawn and revised. Should the report not be withdrawn, Dixon requested that his critique be "forwarded under legal provisions for public review of a negative declaration." ³ Despite Dixon's objection, CSULB proceeded with its Japanese garden project and, apparently, continued to contract with SRS to perform a variety of archaeological work on campus.

In 1992, CSULB planned to construct a strip mall (apartment buildings and retail stores) and a parking lot on the Puvunga site. In compliance with the California Environmental Quality Act, Public Resources Code section 21050 et seq. (CEQA), ⁴ CSULB commissioned Envicom Corporation to conduct a study on the environmental effects of the proposed development. In December 1992, Envicom issued a report which concluded the proposed project would not significantly impact the local environment, result in alteration or destruction of an archaeological site, or affect cultural values or sacred or religious uses in that area. Based on those findings, the report recommended CSULB adopt a negative declaration.

Dixon learned of the proposed negative declaration and began a letter writing campaign challenging its findings in January 1993. He first wrote to a CSULB official, claiming the determination in the negative declaration that the environment would not be adversely impacted by development was based on the report of an unnamed archaeological firm ⁵ that was "error-filled" and did not meet professional standards. Dixon also accused the unnamed firm of unprofessional secrecy. Following the meeting, CSULB agreed that it would conduct a "cultural review" of the Puvunga site and that neither SRS nor its president, Nancy Whitney-Desautels, would be involved in any further archaeological work on campus. ⁶

In March 1993, Dixon wrote three letters to CSULB's vice president. The first letter complained of the lack of response by the administration to his commentary on the negative declaration. In discussing the possible reasons for what he deemed his "excommunication" by CSULB administrators, Dixon cited his critique of the 1980 archaeological report prepared by SRS, which he claimed angered the administration. He further stated "[SRS] never did face the professional issues we raised or correct their factual errors. The SRS recommendations were what [the administration] wanted to hear, and [it] therefore had no interest in requiring that the SRS report be corrected or amended. The SRS response was ad hominem and simple reassertion of their work." The second letter complained of an independent peer review committee Dixon heard had been established by SRS to review its work on campus.

After learning that CSULB had contracted with SRS to perform continued consulting work related to the Puvunga site despite its agreement not to, Dixon wrote to the administration and complained: "In previous memos I recommended that another archaeological consultant be contracted for any future work on campus in order to avoid the biases that had been created due to SRS' previous work and the reactions of the Physical Planning Office. I recommended that the consultant be from off-campus and have no previous connection with SRS, as a means of avoiding controversy and getting the most objective results.... [p] SRS is fully qualified to compete with other consultants in submitting proposals, and they should be expected to do so. What is in question is their performance on specific matters, for reasons explained in previous documents. (It appears that the administration does not care and evidently has no wish to comprehend professional standards when it already has the results that seem satisfactory; nevertheless, I think the record shows that this has compounded the problem.) [p] Therefore, I recommend that SRS be asked to correct the factual errors in their previous reports and amend them appropriately before further proposals can be accepted; also, that their responses must be to professional issues and not arbitrary ad hominem defense."

In May 1993, Dixon wrote to CSULB requesting to review progress billing submitted by SRS. In that letter, he stated, "I should mention as a reminder that many of the campus' present problems with SRS stem from their earlier work, which was found by me ... to be highly flawed and biased. [p] SRS refused to correct their errors, and I believe there were two main reasons. First, because the reports presented a good appearance to a non-professional, SRS was paid before the administration asked us to review their report. Second, the SRS conclusions and recommendations were what the administration wanted or expected to hear in order to appear to satisfy CEQA requirements; therefore, even though our findings were documented, SRS was not asked to revise their report." At the time bids for the cultural review of the Puvunga site were solicited, CSULB asked SRS not to bid the contract because of Dixon's outspoken opposition.

SRS responded by filing the underlying lawsuit against Dixon. The complaint sought $570,000 in damages for intentional and negligent interference with contractual relations and prospective economic advantage, libel, slander and trade libel. SRS alleged its contractual relationship with CSULB had been destroyed by Dixon's oral and written statements to CSULB officials concerning the accuracy of previous SRS reports, the quality of services rendered by them, and accusations that SRS aligned itself with developers and tailored its reports to that end. Attached to the complaint were the five letters written by Dixon to CSULB officials between January and May 1993.

After filing his answer, Dixon moved to strike the complaint, which he characterized as a SLAPP suit, under Code of Civil Procedure section 425.16, subdivision (b). That section provides that any "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 or 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." In support of the motion, Dixon attached his declaration in which he averred that the statements he made to CSULB officials were for the sole purpose of participating in the CEQA public comment and review process by informing them about the cultural, historical and archaeological significance of the Puvunga site and the potential environmental effects that further excavation and commercial development would cause. His statements regarding the quality of SRS's work and their competence as an archeological firm were not based on personal animosity; rather, they were based on a professional review of the documents SRS generated. He denied any participation in the NAHC proceedings regarding CSULB's proposed development or discussing his opinion of SRS's work with any member of the Native American community.

Dixon argued his statements were also entitled to absolute immunity under the First Amendment to the United States Constitution, article I, section 3, of the California Constitution and Civil Code section 47, subdivision (b).

SRS opposed the motion on the grounds the statements made by Dixon were not part of the CEQA review process and were not made to an official body in connection with an issue under consideration, nor in a place open to the public in connection with an issue of public interest. Since the negative declaration prepared by Envicom (but not yet adopted by CSULB) contained no mention of SRS's 1980 archaeological report, SRS contended Dixon's attack on that report, and its author, were outside the scope of...