Major v. Silna

• Decision Date: 20 December 2005
• Docket Number: No. B176846.,B176846.
• Citation: 36 Cal.Rptr.3d 875,134 Cal.App.4th 1485
• Court: California Court of Appeals Court of Appeals
• Parties: Wade MAJOR, Plaintiff and Respondent, v. Ozzie SILNA, Defendant and Appellant.

36 Cal.Rptr.3d 875

134 Cal.App.4th 1485

Wade MAJOR, Plaintiff and Respondent, v. Ozzie SILNA, Defendant and Appellant.

No. B176846.

Court of Appeal, Second District, Division Four.

December 20, 2005.

Weissmann, Wolff, Bergman, Coleman, Grodin & Evall, Michael Bergman, Abraham M. Rudy, and Anjani Mandavia, Beverly Hills, for Defendant and Appellant.

Richards, Watson & Gershon, Steven R. Orr, and Ginetta L. Giovinco, Los Angeles, for Plaintiff and Respondent.

CURRY, J.

After respondent Wade Major voluntarily dismissed his action for injunctive relief against appellant Ozzie Silna, the trial court denied Silna's request for attorney fees under Code of Civil Procedure section 425.16¹—the law curtailing the filing of strategic lawsuits against public participation, often called the "anti-SLAPP law." We reverse and remand for a determination of the award.

RELEVANT FACTUAL AND PROCEDURAL BACKGROUND

The parties do not dispute the following facts: The City of Malibu has enacted its own campaign finance law, codified in chapter 2.20 of the Malibu Municipal Code (MMC), that regulates campaign contributions and other campaign activities. Pertinent here is section 2.20.030(B)(1) of the MMC, which provides: "No person shall make to any candidate for city council ... a contribution or contributions that would cause the total amount contributed by such person to the candidate ... to exceed one hundred dollars ($100.00) for each single election for member to the city council."

The MMC defines "contribution" as including "[a]n expenditure made at the behest of a candidate ... unless full and adequate consideration is received for making the expenditure," but exempts "any independent expenditure as defined in the Political Reform Act of 1974" (Gov.Code, § 81000 et seq.) ("PRA"). Under the PRA, an independent expenditure is "made by any person in connection with a communication which expressly advocates the election or defeat of a clearly identified candidate ... but which is not made to or at the behest of the affected candidate...." (Gov.Code, § 82031.) The phrase "made at the behest of," as used in the PRA, is defined by regulation to mean "made under the control or at the direction of, in cooperation, consultation, coordination, or concert with, at the request or suggestion of, or with the express, prior consent of." (Cal.Code Regs., tit. 2, § 18225.7, subd. (a).)

Section 2.20.070(A) of the MMC provides that violations of Malibu's campaign finance law may be punished as misdemeanors. In addition, section 2.20.070(B) authorizes certain actions for injunctive relief.

In connection with an election on April 13, 2004, Silna mailed a letter to a number of Malibu residents supporting Jay Leibig, Walt Keller, and William Winokur, who were candidates for seats on the Malibu City Council.² On March 10, 2004, Major filed a complaint for injunctive relief, alleging that (1) Silna's mailing exceeded $100.00 in value and was made at the behest of these candidates in violation of the MMC, and (2) Silna planned to engage in further violations of the MMC, namely, pay for political advertisements in a local newspaper.

Shortly thereafter, Major applied for a temporary restraining order. In support of his application, he submitted declarations indicating that Winokur had identified Silna as a member of his campaign team, Silna had appeared at candidate information meetings on Winokur's behalf, and the cost of Silna's mailing exceeded $100.00. He also submitted evidence that Xandra Kayden, who had been retained by the City of Malibu to oversee the election, had opined in a report that Silna's expenditures were made at the behest of the candidates in question.

In opposition, Silna contended that Major lacked standing to seek injunctive relief under the MMC. In addition, he submitted declarations from Winokur, Leibig, and himself denying that he was on a campaign team and that he had acted at any candidate's request in sending out his mailing. Silna also raised evidentiary objections to Major's showing.

At the hearing of the application for a temporary restraining order on March 16, 2004, the trial court sustained many of Silna's objections, but declined to decide whether Major had standing to seek injunctive relief under the MMC. It denied the application, reasoning that Major had failed to establish a probability of prevailing on the merits, the balance of equities favored Silna, and Major's showing was insufficient to justify a prior restraint on Silna's rights of free expression.

On March 22, 2004, Silna filed a motion under the anti-SLAPP law to strike Major's complaint. Major dismissed his action against Silna on March 24, 2004.

On April 8, 2004, Silna requested an award of attorney fees under the anti-SLAPP law. Following a hearing, the trial court denied this request on June 10, 2004, reasoning that Major's action fell within an exception to anti-SLAPP law in section 425.17, subdivision (b). This appeal followed.

DISCUSSION

Silna contends that the trial court erred in denying his request for attorney fees under the anti-SLAPP law. We agree.

A. Governing Law

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. [Citations.] The complaint is subject to dismissal unless the plaintiff establishes `a probability that [he or she] will prevail on the claim.' [Citations.]" (Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 949, 52 Cal.Rptr.2d 357, quoting § 425.16, subd. (b).)

In enacting section 425.16, the Legislature declared there to be a "disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech...." (§ 425.16, subd. (a).) The anti-SLAPP law encompasses actions arising from "conduct in furtherance of the exercise of ... the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e)(4).) Because "[t]he right to speak on political matters is the quintessential subject of our constitutional protections of the right of free speech[,]" the anti-SLAPP law has been applied to actions arising from political literature discussing the qualifications of candidates during elections. (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548, 46 Cal.Rptr.2d 880 [citing cases].)

Resolution of an anti-SLAPP motion "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. (2002) 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685.) We review the trial court's determinations on these matters de novo. (Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 456, 125 Cal.Rptr.2d 534.)

Parties that prevail on their anti-SLAPP motions are entitled an award of attorney fees and costs. (§ 425.16, subd. (c).) Generally, when the plaintiff in an action dismisses the action after an anti-SLAPP motion is filed, the trial court is obliged to adjudicate the motion and make an award of fees and costs if the defendant prevails on the motion. (Liu v. Moore (1999) 69 Cal.App.4th 745, 751, 81 Cal.Rptr.2d 807.)

Here, the trial court did not address the merits of Silna's pending motion, reasoning that Major's action fell outside the anti-SLAPP law pursuant to section 425.17. "The Legislature enacted section 425.17, effective January 1, 2004, to address a `disturbing abuse' in litigants' use of the anti-SLAPP statute. (§ 425.17, subd. (a).)" (Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 112, 15 Cal.Rptr.3d 215.)

To address these abuses, section 425.17 excludes certain types of claims that would otherwise have fallen under the scope of the anti-SLAPP law. (Mann v. Quality Old Time Service, Inc., supra, 120 Cal.App.4th at p. 112, 15 Cal.Rptr.3d 215.) Subdivisions (b) and (c) of section 425.17, respectively, carve out exceptions to the anti-SLAPP law for (1) actions taken in the public interest and (2) actions against persons engaged in commercial speech. However, subdivision (d) of section 425.17 imposes limitations on the scope of these exceptions.

Pertinent here are subdivisions (b) and (d)(2) of section 426.17. Subdivision (b) provides that section 425.16 does not apply to an action "brought solely in the public interest or on behalf of the general public," provided that the following conditions are met: "(1) The plaintiff does not seek any relief greater than or different from the relief sought for the general public or a class of which the plaintiff is a member. A claim for attorney's fees, costs, or penalties does not constitute greater or different relief for purposes of this subdivision. [¶] (2) The action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, on the general public or a large class of persons. [¶] (3) Private enforcement is necessary and places a disproportionate financial burden on the plaintiff in relation to the plaintiff's stake in the matter."

However, subdivision (d)(2) of section 425.17 provides that this "public interest" exception to the anti-SLAPP law does not apply to "[a]ny action against any person or entity based upon the creation, dissemination, exhibition, advertisement, or other similar promotion of any dramatic, literary, musical, political, or artistic work, including, but not limited to, a motion picture or television program, or an article published in a newspaper or magazine of general circulation."³

Here, the trial court determined that Major's action fell within the "public interest" exception. It...