Vargas v. City of Salinas

• Decision Date: 29 December 2005
• Docket Number: No. H027693.,H027693.
• Citation: 135 Cal.App.4th 361,37 Cal.Rptr.3d 506
• Court: California Court of Appeals Court of Appeals
• Parties: Angelina Morfin VARGAS et al., Plaintiffs and Appellants, v. CITY OF SALINAS et al., Defendants and Respondents.

37 Cal.Rptr.3d 506

135 Cal.App.4th 361

Angelina Morfin VARGAS et al., Plaintiffs and Appellants, v. CITY OF SALINAS et al., Defendants and Respondents.

No. H027693.

Court of Appeal, Sixth District.

December 29, 2005.

Steven J. Andre, for Appellants.

Joseph T. Francke, General Counsel, Californias Aware, for Amicus Curiae on behalf of Appellant.

Vanessa W. Vallarta, City Attorney, M. Christine Davi, Senior Deputy City Attorney, Office of the City Attorney, Joel Franklin, Law Offices of Joel Franklin, Monterey, for Respondents.

Stephen P. Traylor, Asst. General Counsel, League of California Cities, for Amicus Curiae on behalf of Respondent.

McADAMS, J.

This appeal follows the grant of a special motion to strike the plaintiffs' complaint as a strategic lawsuit against public participation. The complaint alleged improper government expenditures for communications concerning a local initiative election. Reviewing the matter de novo, we conclude that the defense motion was properly granted. We therefore affirm.

BACKGROUND

The dispute in this case grew out of a local tax-relief initiative called Measure O, which qualified for the November 2002 ballot in the City of Salinas. On one side of the dispute are plaintiffs and appellants, Angelina Morfin Vargas and Mark Dierolf, proponents of Measure O. On the other side of the controversy are defendants and respondents, the City of Salinas and its manager Dave Mora.

Had Measure O passed, it would have repealed the city's long-standing utilities users tax (UUT). That tax provides the city with approximately $8 million in annual revenue, representing about 13 percent of the city's general fund budget.

In response to the qualification of Measure O for the November 2002 ballot, city staff prepared a series of reports analyzing the effect of the loss of utility tax revenue and recommending the reduction or elimination of services and programs. Starting in November 2001, over the course of several public hearings, the city manager and the city's department heads presented fiscal impact reports to the city council. The departments' presentations, which were made in August 2002, took the form of slide presentations. The presentations embodied staff recommendations for service cuts, some in dire terms. In July 2002, the city council adopted the departments' recommendations as presented, thereby identifying the service cuts that would be implemented in the event of Measure O's passage.

The staff's reports, analyses, and presentations concerning Measure O were placed on the city's website. As a matter of course, the website also includes minutes of city council meetings; the minutes of the meetings at which these reports were presented and discussed thus were posted on the website. The city also informed the electorate of its analysis of Measure O through articles in the Fall 2002 edition of the city's periodic newsletter to residents, and by means of a one-page summary of the anticipated service cuts, which the parties sometimes refer to as a leaflet or flyer. Like the reports and presentations, the flyer was posted on the city's website.

Plaintiffs disagreed with the city's analysis of the consequences of Measure O. In plaintiffs' view, repeal of the UUT would benefit the city's residents by reducing their taxes and by eliminating local government waste. They made written and oral presentations to the city council in August 2002. The minutes of those meetings were placed on the city's website.

The Pleadings

In October 2002, plaintiffs filed a verified complaint that accused defendants of interference with the electoral process, improper use of public monies for "campaign materials" intended to influence voters against Measure O, and violation of plaintiffs' rights to free expression under the state and federal constitutions. Plaintiffs sought the recovery of illegally expended public resources, which they believed to be in excess of $250,000; they also requested declaratory, injunctive, and equitable relief.

Concurrently with the filing of their complaint, plaintiffs made an ex parte application for a temporary restraining order. Defendants opposed the application. The court denied the application for a temporary restraining order. The court set a hearing on plaintiffs' request for a preliminary injunction for November 8, 2002, three days after the scheduled election. At the conclusion of that hearing, the court declined to issue the preliminary injunction sought by plaintiffs.

In May 2003, the court granted defendants' motion for judgment on the pleadings as to the second, third, and fourth causes of action of plaintiffs' complaint, thereby eliminating their claims for declaratory, injunctive, and equitable relief. In August 2003, this court denied plaintiffs' petition for a writ of mandate to overturn that decision.

In December 2003, plaintiffs moved for permission to amend their complaint. In support of their motion, plaintiffs declared that the city had proposed a special tax initiative, Measure P, which would be before the electorate in March 2004. They urged the court to presume that the city would continue to improperly campaign concerning Measure P as it had with Measure O. Defendants opposed the motion, arguing that it was an attempt to reinstate the three causes of action that had already been adjudicated adversely to plaintiffs.

Following a hearing in January 2004, the court took the plaintiffs' motion under submission. In an order signed in February 2004, the court granted plaintiffs permission to "supplement" their complaint.

In March 2004, plaintiffs filed a supplemental complaint, which included allegations concerning Measure P as well as Measure O. As with the original complaint, plaintiffs' supplemental pleading sought the recovery of public resources, as well as declaratory, injunctive, and equitable relief.

The Defense Motion to Strike

In April 2004, defendants filed a special motion to strike plaintiffs' complaint as a strategic lawsuit against public participation, pursuant to Code of Civil Procedure section 425.16.¹ In support of their motion, defendants submitted declarations from the city clerk, city manager, city attorney, and city finance director, and from its computer system manager, whose duties included maintaining the city's website. Defendants also submitted declarations from other city officials who had made presentations to the city council on the fiscal impact of Measure O. In addition, defendants supported their motion with voluminous materials, including copies of the communications challenged by plaintiffs as improper.

Plaintiffs opposed the motion. Their opposition included a "statement of undisputed facts" and three supporting declarations. Among other things, plaintiffs asserted that the city had ignored offers by Measure O proponents to provide material supporting their viewpoint, and that the proponents would have utilized access to the city's website and other media had it been offered.

In May 2004, the court heard and granted the motion to strike. Plaintiffs promptly moved for reconsideration. Defendants opposed the motion.

In June 2004, the court conducted a hearing on the motion for reconsideration and took the matter under submission. The court subsequently denied the request for reconsideration on the merits.

The Appeal

This appeal by plaintiffs ensued.

Both parties filed appellate briefs. In addition, we granted two applications to file amicus briefs. In August 2005, the League of California Cities filed a brief as amicus curiae in support of the City of Salinas. The following month, Californians Aware filed a brief in support of plaintiffs, to which the city responded.

In August 2005, we granted defendants' request for judicial notice as to the November 6, 2001 agendas of the Salinas City Council and Redevelopment Agency. Those agendas thus are part of the record on appeal.

CONTENTIONS

In their opening brief, plaintiffs identify the following issues on appeal: (1) whether defendants' use of public funds on its website, newsletter, and leaflet is unlawful; (2) whether the illegality of the defendants' conduct prohibits them from claiming statutory free speech protections; (3) whether defendants' communications are exempt from the statutory protections; (4) whether defendants made the necessary initial showing in support of their motion; and (5) whether plaintiffs made the necessary showing to defeat the motion. Notwithstanding that list of issues, the thrust of plaintiffs' appellate arguments is that defendants improperly engaged in partisan campaigning intended to influence city voters in favor of Measure O. Plaintiffs argue that the style, tenor, and timing of defendants' communications make it impermissible advocacy under standard set forth in Stanson v. Mott (1976) 17 Cal.3d 206, 217, 130 Cal.Rptr. 697, 551 P.2d 1 (Stanson). Amicus Californians Aware agrees, arguing against a bright-line standard for judging whether political speech constitutes advocacy and urging that government speech is not desired or protected in the election process.

For their part, defendants assert that the trial court properly granted their special motion to strike since plaintiffs failed to carry their burden of showing that the city engaged in impermissible express advocacy. In support of defendants' position, amicus League of California Cities argues for a bright-line rule to determine what constitutes advocacy, asserting that such a rule is workable and that it furthers the goal of open government.

DISCUSSION

In light of the procedural context in which this appeal arises, we begin our analysis by setting forth the general principles that govern special motions to strike. We then apply those principles to the case at hand, which brings into play substantive constitutional issues.

I. General Principles

Strategic lawsuits against public participation are commonly referred to by the acronym "SLAPP." (Equilon...