Sweetwater Union Sch. Dist. v. Gilbane Bldg. Co.
| Decision Date | 24 February 2016 |
| Docket Number | D067383 |
| Citation | 199 Cal.Rptr.3d 659,245 Cal.App.4th 19 |
| Parties | SWEETWATER UNION SCHOOL DISTRICT, Plaintiff and Respondent, v. GILBANE BUILDING COMPANY et al., Defendants and Appellants. |
| Court | California Court of Appeals Court of Appeals |
245 Cal.App.4th 19
199 Cal.Rptr.3d 659
SWEETWATER UNION SCHOOL DISTRICT, Plaintiff and Respondent,
v.
GILBANE BUILDING COMPANY et al., Defendants and Appellants.
D067383
Court of Appeal, Fourth District, Division 1, California.
Filed February 24, 2016
Denton US, Charles A. Bird, Christian D. Humphreys, San Diego and Gary K. Brucker, Jr.for Defendants and Appellants.
Schwartz Semerdjian Cauley & Moot, John S. Mootand Sarah B. Evans, San Diego, for Plaintiff and Respondent.
AARON, J.
I.
INTRODUCTION
Plaintiff Sweetwater Union High School District (Sweetwater) filed this action against defendants Gilbane Building Company (Gilbane), The Seville Group, Inc. (SGI), and Gilbane/SGI, a joint venture (the Joint Venture), seeking to void management contracts with all three entities, and to require that they disgorge all sums that Sweetwater paid them under the contracts, pursuant to Government Code section 1090(Section 1090).1 Sweetwater alleges that certain
representatives of the defendant entities engaged in a "pay to play" scheme with several Sweetwater officials that involved paying for expensive dinners, tickets to entertainment and sporting events, and travel expenses, and making contributions to political campaigns and charities, in an effort to influence the officials to award defendants certain construction contracts.
Gilbane and the Joint Venture (jointly, defendants) brought a special motion to strike (or "anti-SLAPP motion") under Code of Civil Procedure section 425.16(the SLAPP Act).2 The trial court denied the motion on the ground that the conduct underlying the complaint was illegal as a matter of law, and therefore, was not protected by the constitutional guarantees of free speech and petition.
Defendants contend that the trial court erred in denying their anti-SLAPP motion. Defendants assert that Sweetwater's complaint is based on actions that are protected under the First Amendment, and that Sweetwater failed to proffer admissible evidence demonstrating that the conduct at issue was illegal, as a matter of law, such that it is not protected by the First Amendment. Defendants further contend
that Sweetwater proffered no admissible evidence to demonstrate that it has a probability of prevailing on the merits of the case. Defendants maintain that this court must reverse the trial court's order and remand the case with directions that the trial court grant their anti-SLAPP motion.
We conclude that the trial court did not abuse its discretion in considering the evidence proffered by Sweetwater, including signed plea forms and transcripts from grand jury testimony in criminal cases against many of the individuals involved in the alleged "pay to play" contracting scheme. Such evidence is, in all material respects, indistinguishable from evidence presented by way of a declaration. Based on the proffered evidence, we conclude that Sweetwater has sufficiently demonstrated a probability of prevailing on the merits. We therefore affirm the trial court's denial of defendants' anti-SLAPP motion.3
II.
FACTUAL AND PROCEDURAL BACKGROUND
In November 2006, voters in the Sweetwater Union School District approved Proposition O, which authorized up to $644 million in bond sales, the proceeds of which were to be used to renovate and build schools. Sweetwater requested proposals from contractors to manage construction of the Proposition O projects. Although the request for proposal that a Sweetwater official prepared for use in soliciting vendor proposals initially included a "no contact" clause prohibiting bidders and Sweetwater officials from having any contact with each other during the bidding process, Dr. Jesus Gandara, Sweetwater's then superintendent, had the "no contact" clause removed from the request for proposal.
Sweetwater received seven timely proposals, including one from the Joint Venture. Sweetwater appointed a screening committee to review the proposals. Members of the screening committee included Ramon Leyba, chief operating officer; Katy Wright, director of planning; and Iva Butler, facilities accounting supervisor. The screening panel determined that all seven proposals met Sweetwater's requirements.
Sweetwater then appointed an interview committee, consisting of Leyba; Dianne Russo, chief financial officer; Wes Braddock, a high school principal; Aerobel Banuelos, outside counsel; and Lou Smith, an outside consultant. The interview committee interviewed teams sent by all seven bidders and rated them against a common set of requirements. The interview committee narrowed the field to three finalists, one of which was the Joint Venture.
Sweetwater appointed a final review committee, consisting of Gandara, Leyba, Banuelos, and Ralph Munoz, the "capit[a]l project manager." The committee determined that the Joint Venture was the "top applicant." On this basis, Gandara requested that the Sweetwater School Board (Board) grant him authority to negotiate a contract with the Joint Venture.
In May 2007, the Board approved an "Interim Program Management Agreement" that contained the terms pursuant to which the Joint Venture would provide management for Proposition O projects. Trustees Pearl Quinones, Arlie Ricasa, and Greg Sandoval participated in the approval of this agreement. That same month,
Sweetwater contracted for the Joint Venture to take over and complete management services on projects that had been funded through a separate initiative, Proposition BB.4 Quinones, Ricasa, and Sandoval participated in this decision.
In January 2008, the Board approved the "Program Management Agreement for Proposition 'O' Modernization Program and Other Facilities Master Plan Services," which would govern the Joint Venture's provision of services for the Proposition O work. Quinones, Ricasa, and Sandoval also participated in this decision.5
Sometime later, a criminal investigation was launched into the relationships between certain Sweetwater officials and representatives of Gilbane, SGI, and the Joint Venture. The investigation ultimately led to the filing of criminal charges against Henry Amigable, who was Gilbane's Program Director during the relevant period; Rene Flores, the Chief Executive Officer of SGI during the relevant period; and Sweetwater officials Gandara, Sandoval, Quinones, and Ricasa, among others. The charges filed against these individuals involved allegations that Amigable and Flores had bribed Sweetwater officials with gifts, such as expensive dinners, tickets to entertainment and sporting events, payment of travel expenses, and contributions to political campaigns and charities, in an attempt to win the construction management contracts at issue. The charges included allegations of violations of various provisions of the Education Code, Government Code, and Penal Code. Many of the individuals who were prosecuted in relation to the alleged bribery scheme ultimately entered pleas of guilty or no contest to at least one criminal offense.
Sweetwater filed this action, seeking to void three contracts with Gilbane, the Joint Venture, and/or SGI, pursuant to Section 1090. Sweetwater alleged that defendants' employees had provided Gandara, Quinones, Ricasa and Sandoval with lavish dinners, trips, and other gifts in order to induce those officials to vote to award the contracts to defendants. Specifically, the complaint alleged that representatives of defendants provided the following "financial inducements" to these public officials, as well as to their family and friends: (1) "Numerous dinners at expensive restaurants," (2) "Tickets to the theater and sporting events, including Charger games and to see The Jersey Boys," (3) "Hotel accommodations, food, and tickets to the Rose Bowl in Pasadena," (4) "Airfare, hotel accommodations, wine tasting, and a hot air balloon ride in Napa Valley," and (5) "Monetary contributions to beauty pageants, charities, and campaigns on behalf of District officials." The complaint further alleged that the named Sweetwater Board members and representatives of defendants had pled guilty to various felony and/or misdemeanor offenses, and set forth the factual basis for each individual's plea.
In response to Sweetwater's complaint, Gilbane filed an anti-SLAPP motion, seeking to strike the first and second causes of
action.6 The Joint Venture joined in the motion.7 Gilbane and the Joint Venture argued that Sweetwater's causes of action against them arose from defendants' rights of free expression and petition. Specifically, Gilbane and the Joint Venture maintained that the allegations rested on claims that employees of defendants had made political contributions, charitable donations, and provided gifts to political officials, and that this conduct constitutes political expression and...
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