Governor Gray Davis Com. v. Ata

• Decision Date: 25 September 2002
• Docket Number: No. A096658.,A096658.
• Citation: 125 Cal.Rptr.2d 534,102 Cal.App.4th 449
• Court: California Court of Appeals Court of Appeals
• Parties: The GOVERNOR GRAY DAVIS COMMITTEE, Plaintiff and Respondent, v. AMERICAN TAXPAYERS ALLIANCE, Defendant and Appellant.

125 Cal.Rptr.2d 534

102 Cal.App.4th 449

The GOVERNOR GRAY DAVIS COMMITTEE, Plaintiff and Respondent, v. AMERICAN TAXPAYERS ALLIANCE, Defendant and Appellant.

No. A096658.

Court of Appeal, First District, Division 1.

September 25, 2002.

Rehearing Denied October 22, 2002.

Review Denied December 11, 2002.

Remcho, Johansen & Purcell, Joseph Remcho, Esq., James C. Harrison, Esq., San Francisco, for Plaintiff and Respondent.

Crosby, Heafey, Roach & May, Kathy M. Banke, Esq, Oakland, Webster, Chamberlain & Bean, Alan P. Dye, Esq, Heidi K. Abegg, Esq., Bopp, Coleson & Bostrom, James Bopp, Jr., Esq., for Defendant and Appellant.

SWAGER, J.

The trial court denied appellant's special motion, under Code of Civil Procedure section 425.16,¹ to strike respondent's action for injunctive relief and granted respondent's request for a preliminary injunction. We conclude that the causes of action alleged against appellant arise from acts taken by appellant in furtherance of its right to free speech and that respondent failed to show a probability of success on the merits due to appellant's constitutional defense to the action; We reverse the judgment.

STATEMENT OF FACTS AND PROCEDURAL HISTORY

Appellant American Taxpayers Alliance (hereafter ATA or appellant) is a nonprofit corporation which was ostensibly organized to "engage in legislative activities" on "issues that affect the American taxpayer," primarily revision of the Social Security system. In June of 2001, the ATA financed the production and presentation of a television advertisement that was patently critical of the management of "California's energy problems" by Governor Gray Davis, who was then a candidate for reelection in 2002. The advertisement presents blurred film of Governor Davis, and other darkened, obscure visual images. The audio portion consisting of a single voice accuses Governor Davis of "pointing fingers and blaming others" to avoid responsibility for the energy crisis that "left us powerless," but points out that the Public Utilities Commission, which is controlled by "Davis appointees," "blocked long-term cost-saving contracts for electricity." After attributing to newspapers the assessment that Governor Davis "ignored all the warning signals and turned a problem into a crisis," the advertisement closes with the words, "Gray outs from Gray Davis," as a light bulb is turned off. Text at the bottom of the ad reads: "Paid for by American Taxpayers Alliance."²

On July 20, 2001, The Governor Gray Davis Committee (hereafter respondent), filed a complaint for injunctive relief against the ATA, along with a motion for a preliminary injunction. The complaint alleges the ATA violated the reporting provisions of the Political Reform Act of 1974 (Gov.Code, § 81000 et seq.). Respondent alleges in the complaint that the "campaign-style television ad" produced by the ATA "has no purpose other than to denigrate Governor Davis," and "unambiguously urges" his "defeat in 2002." The action seeks to enjoin further violations of the Political Reform Act and compel the ATA's compliance with the specific statutory obligations to file a statement of organization (Gov.Code, § 84101) and a semiannual campaign statement disclosing contributors (Gov.Code, § 84200).

Appellant subsequently filed a special motion to strike the complaint pursuant to section 425.16. The trial court denied appellant's motion to strike and granted respondent's motion for preliminary injunction. This appeal followed.

DISCUSSION

Appellant argues that the trial court erred by denying its special motion to strike, and abused its discretion in granting respondent's motion for a preliminary injunction. Appellant maintains that respondent's lawsuit is a "classic SLAPP suit," designed to restrain "constitutionally protected" speech.

Since its enactment, section 425.16 has spawned numerous appellate cases arising from various factual contexts that were perhaps never envisioned by George W. Pring and Penelope Canan, the two University of Denver professors who coined the expression "SLAPP suit."³ (See generally, Canan & Pring, Studying Strategic Lawsuits Against Public Participation: Mixing Quantitative and Qualitative Approaches (1988) 22 Law & Soc'y. Rev. 385.) However, the complaint before us clearly raises issues that fall within the ever widening haven of the SLAPP statute.

Under section 425.16, "[w]hen a lawsuit arises out of the exercise of free speech or petition, a defendant may move to strike the complaint." (Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 949, 52 Cal.Rptr.2d 357.) Subdivision (b)(1) of section 425.16 provides in pertinent part: "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 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 order to encourage participation in matters of public significance, section 425.16 specifies in subdivision (a) that the statute "shall be construed broadly." In Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1121-1122, 81 Cal. Rptr.2d 471, 969 P.2d 564, our high court noted "that the broad construction expressly called for in subdivision (a) of section 425.16 is desirable from the standpoint of judicial efficiency . . . ."

Section 425.16 articulates a "two-step process for determining whether an action is a SLAPP." Navellier v. Sletten (2002) 29 Cal.4th 82, 88, 124 Cal.Rptr.2d 530, 52 P.3d 703; see also Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1364, 102 Cal.Rptr.2d 864.) "`First, the court decides whether the defendant has made a threshold prima facie showing that the defendant's acts, of which the plaintiff complains, were ones taken in furtherance of the defendant's constitutional rights of petition or free speech in connection with a public issue. [Citation.] If the court finds that such a showing has been made, then the plaintiff will be required to demonstrate that "there is a probability that the plaintiff will prevail on the claim." [Citations.] The defendant has the burden on the first issue, the threshold issue; the plaintiff has the burden on the second issue. [Citation.]' [Citation.]" (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921 928, 116 Cal.Rptr.2d 187; see also Paul v. Friedman (2002) 95 Cal.App.4th 853, 862-863, 117 Cal.Rptr.2d 82.) "Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e, that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute." (Navellier v. Sletten, supra, at p. 88, 124 Cal.Rptr.2d 530, 52 P.3d 703.)

On appeal we review independently whether the complaint against the appellant arises from appellant's exercise of a valid right to free speech and petition and if so, whether the respondent established a probability of prevailing on the complaint. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999, 113 Cal.Rptr.2d 625.)

I. The Requirement of an Act in Furtherance of the Right of Free Speech.

We first determine if the defendant has met the burden of showing that the causes of action arise from protected activity. (Kajima Engineering & Construction, Inc. v. City of Los Angeles, supra, 95 Cal.App.4th 921, 928, 116 Cal.Rptr.2d 187; see also Chavez v. Mendoza (2001) 94 Cal. App.4th 1083, 1089, 114 Cal.Rptr.2d 825.) "When moving to strike a cause of action under the anti-SLAPP statute, a defendant that satisfies its initial burden of demonstrating the targeted action is one arising from protected activity faces no additional requirement of proving the plaintiffs subjective intent. [Citation.] Nor need a moving defendant demonstrate that the action actually has had a chilling effect on the exercise of such rights." (Navellier v. Sletten, supra, 29 Cal.4th 82, 88, 124 Cal. Rptr.2d 530, 52 P.3d 703 citing Equilon Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 54, 124 Cal.Rptr.2d 507, 52 P.3d 685.)

Section 425.16 applies to a cause of action arising from an act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue. (§ 425.16, subd. (b)(1).) Subsection (e) of section 425.16 defines "act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue" to include: "(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; (4) or 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."

"[T]he statutory phrase `cause of action ... arising from' [in section 425.16, subdivision (b)(1),] means simply that the defendant's act underlying the plaintiffs cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiffs cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech." (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78, 124 Cal.Rptr.2d 519, 52 P.3d 695; Kajima Engineering &...