Schroeder v. Irvine City Council

Decision Date06 March 2002
Docket NumberNo. D038976.,D038976.
Citation97 Cal.App.4th 174,118 Cal.Rptr.2d 330
PartiesMichael J. SCHROEDER, Plaintiff and Appellant, v. IRVINE CITY COUNCIL et al. Defendants and Respondents.
CourtCalifornia Court of Appeals Court of Appeals

Reed & Davidson, Dana W. Reed, Bradley W. Hertz, Law Offices of Rick A. Cigel and Rick A. Cigel, Los Angeles, for Plaintiff and Appellant.

James S. Burling, Sacramento, and Harold E. Johnson for Pacific Legal Foundation as Amicus Curiae on behalf of Plaintiff and Appellant.

Rutan & Tucker, Joel D. Kuperberg, Costa Mesa, and John A. Ramirez, Mill Valley, for Defendants and Respondents.

McDONALD, J.

Appellant Michael J. Schroeder filed this action against the City of Irvine (City), its city council, and four city councilmembers (together respondents) seeking a declaration that respondents' Vote 2000 program was an illegal expenditure of public funds. Schroeder sought an injunction barring further expenditures on the Vote 2000 program and an order under Code of Civil Procedure section 526a1 requiring the four councilmembers to reimburse City for all City expenditures made for the Vote 2000 program. Respondents moved to dismiss the action under the so-called anti-SLAPP statute (§ 425.16). The trial court applied section 425.16 to Schroeder's lawsuit, concluded he had not shown likelihood of success on the merits, granted the motion to dismiss, and awarded attorney fees to respondents.

Schroeder argues the court erred by denying him the opportunity to conduct discovery before ruling on the motion, by concluding he had not shown a likelihood of success on the merits, and by awarding attorney fees.

I FACTUAL BACKGROUND
A. The Vote 2000 Program

In November 1999 City authorized funding for the Vote 2000 program, a multifaceted effort to increase voter registration and voter participation in the March and November 2000 elections. The articulated reasons for this program was a concern that voter registration in the City had steadily declined between 1990 and 1998, and a recent special election had attracted participation by only 27 percent of its registered voters. The City Manager's report recommending adoption of the Vote 2000 program stated the program would be conducted in a "completely non-partisan manner [and][n]o attempt will be made to influence voting decisions or advocate a vote for or against any federal, state, or local candidate or ballot issue."

B. The Anti-Airport Initiative: Measure F

City has historically opposed placing a commercial airport (the proposed airport) on land that became available for civilian use after the El Toro Marine Base closed in 1999.2 Although two prior countywide elections concerning the proposed airport resulted in a majority vote favoring its development, City's citizens overwhelmingly voted against its development in those elections.

In the fall of 1999 Measure F, a countywide initiative that would make it more difficult to develop the proposed airport, qualified for the March 2000 ballot. After Measure F qualified for the ballot, City continued contributing to ETRPA, and ETRPA continued its opposition to the proposed airport. Respondents also conducted a campaign soliciting citizen input on a proposed alternative use for the Marine base property (the Great Park plan) and suggested that using the property for the Great Park plan was superior to using the property for the proposed airport.

II PROCEDURAL BACKGROUND
A. The Proceedings Below

Schroeder's complaint argued that the purpose and effect of the Vote 2000 program was to campaign for the passage of Measure F, and that it is illegal for a municipality to spend public funds to campaign in favor of particular ballot measures. Schroeder sought (1) a declaration that City's expenditures for the Vote 2000 program were unlawful, (2) an order enjoining further use of taxpayer funds for the Vote 2000 program, and (3) a judgment that the councilmember-defendants, by voting in favor of the Vote 2000 program, did not use due care and were obligated to repay City for all of City's Vote 2000 program expenditures.

Respondents filed a motion to strike the complaint under section 425.16, arguing that (1) the complaint sought to impose liability on respondents for conduct protected by the First Amendment rights to free speech and petition, and (2) Schroeder could not show a likelihood of prevailing on the merits because the Vote 2000 program was a permissible effort to increase voter registration rather than an unlawful political campaign. Schroeder moved, pursuant to section 425.16, subdivision (g), to continue the hearing on the motion to strike, arguing that he needed to conduct specified discovery to collect evidence demonstrating the likelihood of prevailing on the merits of his claim. The court denied the request to continue the hearing on respondents' motion to strike pending discovery.

Schroeder then filed opposition to the motion to strike, arguing that there was a probability he would succeed on the merits of demonstrating the Vote 2000 program was an unlawful expenditure of municipal funds. He asserted that although City's Vote 2000 program was nominally nonpartisan, the surrounding circumstances showed that its actual purpose and effect was to promote passage of Measure F, and it was therefore an unlawful expenditure for political purposes. Respondents' reply argued that public expenditures are for political purposes only when the expenditure is on a campaign that expressly advocates the passage or defeat of a particular measure, and because the Vote 2000 program contained no express advocacy for or against any measure there was no likelihood Schroeder would succeed on the merits. The trial court agreed with respondents and granted the motion to strike.

Respondents moved for attorney fees, arguing that section 425.16, subdivision (c) mandated an award of fees to a prevailing defendant. Schroeder opposed the motion, arguing that a mandatory award of attorney fees in the context of this case would unconstitutionally infringe on his right to petition for redress of grievances. The court awarded $45,000 in attorney fees to respondents.

B. Contentions on Appeal

Schroeder raises three principal arguments on appeal. First, he argues his showing below demonstrated a likelihood of successfully proving the expenditures on the Vote 2000 program were unlawful political expenditures. Second, he argues that, assuming his showing was deficient, we must reverse and remand because the trial court abused its discretion by denying him the opportunity to conduct discovery that would have elicited evidence demonstrating the expenditures were unlawful political expenditures. Finally, Schroeder (joined by amicus Pacific Legal Foundation) argues that section 425.16, insofar as it mandates an attorney fee award against a taxpayer who has challenged a governmental program, unconstitutionally infringes on the taxpayer's right to petition for redress of grievances, and therefore we must either construe the statute's attorney fee provision as permissive or declare it unconstitutional.

III THE GENERAL STANDARDS OF SECTION 425.16

The Legislature declared the purpose of the anti-SLAPP statute in section 425.16, subdivision (a): "The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly." In Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 33 Cal. Rptr.2d 446, the court noted at pages 815 to 816 that: "The paradigm SLAPP is a suit filed by a large land developer against environmental activists or a neighborhood association intended to chill the defendants' continued political or legal opposition to the developers' plans. [Citations.] SLAPP's, however, are by no means limited to environmental issues [citations].... [¶] ... [¶] SLAPP suits are brought to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff. [Citations.]" A SLAPP suit (strategic lawsuit against public participation) is typically filed to delay and to punish activists by imposing litigation costs on them for exercising their constitutional right to speak and petition the government for redress of grievances, rather than to prevail on the suit. (Dixon v. Superior Court (1994) 30 Cal. App.4th 733, 741, 36 Cal.Rptr.2d 687, original italics.)

The anti-SLAPP legislation in section 425.16 was crafted to provide an efficient means of dispatching a plaintiffs meritless claims at the inception of the lawsuit to promote "continued participation in matters of public significance." (§ 425.16, subd. (a).) Accordingly, the filing of a section 425.16 motion to strike stays discovery until the motion is ruled on, although the court has discretion to permit specified discovery for good cause. (Brawn v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1052, 61 Cal.Rptr.2d 58.)

Evaluation of a section 425.16 motion to strike involves a two-step process. 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 taken in furtherance of the defendant's constitutional rights of petition or free speech in connection with a public issue. (Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 820, 33 Cal.Rptr.2d 446.) In this case, Schroeder conceded below, and does not dispute on appeal, that the first inquiry— whether Schroeder's causes of action challenged acts of respondents taken in furtherance of respondents' rights of free speech or petition—was...

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