(2005) 126 Cal. App. 4th 43
Court of Appeal, Second District,
CITY OF SANTA MONICA, Plaintiff and Appellant,
Maria STEWART, Defendant and Respondent,
Douglas Heller, et al., Intervenors and Respondents.
Rene Amy, Plaintiff,
City of Pasadena, et al., Defendants, Cross-Complainants and Respondents,
Paul Monsour, et al., Intervenors, Cross-Defendants and Appellants.
Nos. B159223, B164794, B160037, B162530.
Jan. 28, 2005.
As Modified on Denial of Rehearing Feb. 28, 2005.
Marsha Jones Moutrie, City Attorney, Jeanette Schachtner and Anthony P.
Serritella, Deputy City Attorneys, for Plaintiff and Appellant City of
Rutan & Tucker, LLP, John A. Ramirez, Joel D. Kuperberg and Michael
R.W. Houston, Costa Mesa, for Defendant and Respondent Maria Stewart.
Strumwasser & Woocher, LLP, Fredric D. Woocher, Michael J. Strumwasser,
Santa Monica, and Lea Rappaport Geller for Intervenors and Respondents
Douglas Heller and The Foundation for Taxpayer and Consumer Rights.
Strumwasser & Woocher, LLP, Fredric D. Woocher, Michael J. Strumwasser,
Santa Monica, Lea Rappaport Geller and Samuel G. Goldstein, for Intervenors
and Appellants Paul Monsour and Foundation for Taxpayer and Consumer Rights.
Michele Beal Bagneris, City Attorney, and Richards, Watson & Gershon,
T. Peter Pierce and Craig S. Steele, Los Angeles, for Defendants, Cross-Complainants
and Respondents City of Pasadena, Jane Rodriguez, City Clerk, and William
Bogaard, Mayor of the City of Pasadena.
Lawsuits were brought relating to the enforcement of initiatives approved
by voters in Santa Monica and Pasadena. The initiatives sought to prevent
city officials from receiving certain advantages from persons or entities
who derived benefit from discretionary decisions made by those officials.
This case involves consolidated appeals challenging four separate rulings
in the two actions.
In the Santa Monica suit, the trial court dismissed the action as a nonjusticiable
controversy. We agree with that ruling. Not only does Santa Monica lack
the requisite standing to challenge the constitutionality of the initiative,
the claims asserted by Santa Monica are not ripe for determination.
In the Pasadena suit, the trial court denied an anti-SLAPP motion brought
by the initiative's sponsor to strike Pasadena's cross-complaint
granted a summary judgment motion in favor of the city, and denied the
initiative sponsor's motion for attorneys' fees under the private
attorney general statute. We disagree with those rulings. The acts which
led Pasadena to file a cross-complaint against the initiative sponsor
arose out of protected First Amendment activities, and Pasadena was not
able to demonstrate the requisite probability of success on the cross-complaint.
Additionally, the perfection of the initiative sponsor's appeal from
the denial of its anti-SLAPP motion divested the trial court of jurisdiction
to consider Pasadena's summary judgment motion. Finally, the initiative
sponsor was entitled to recover attorneys' fees under the private
attorney general statute based on the necessity of its private enforcement action.
FACTUAL AND PROCEDURAL BACKGROUND
THE OAKS INITIATIVE:
The Oaks Initiative (Initiative) is sponsored by the Oaks Project of the
Foundation for Taxpayer and Consumer Rights (FTCR), a non-profit organization
"dedicated to training community leaders to make democracy serve
ordinary people." The Initiative is premised on a conviction that
public benefits frequently are awarded on the basis of personal or campaign
advantages, and not on merit or in the public good. Based on the premise
that such awards undermine public confidence in democratically elected
institutions, the Initiative declares "there is a compelling state
interest in reducing the corrupting influence of emoluments, gifts and
prospective campaign contributions on the decisions of public officials
in the management of public assets and franchises, and in the disposition
of public funds." In general terms, the Initiative prohibits city
officials from receiving campaign contributions, employment for compensation,
or gifts or honoraria of more than $50 for a specified time after the
end of their term of office from any person or entity who or which benefited
financially (by more than $25,000 over a 12- month period) from the officials'
discretionary decisions made while in office.
The Initiative contains four requirements:
(1) City officials who exercised their discretion to approve a "public
benefit" (defined at Santa Monica Initiative, § 2202, subd.
(a)(1)-(7), and Pasadena Initiative § 1703, subds. (a)(1)(-7)) cannot
receive certain specified "personal or campaign advantages"
(defined at § § 2202, subd. (c), and 1703, subd. (c)), from
the recipient of such a benefit (as defined at § § 2202, subd.
(b), and § 1705, subd. (a).) (Initiative § § 2203, subds.
(a), (b); 1704, subds. (a), (b).)
(2) City officials must "practice due diligence to ascertain whether
or not a benefit ... has been conferred, and to monitor personal or campaign
advantages ... so that any such qualifying advantage received is returned
forthwith, and no later than ten days after its receipt." (Initiative,
§ § 2204, subd. (a), 1705, subd. (a).)
(3) City officials "must provide, upon inquiry by any person, the
names of all entities and persons known to them who respectively qualify
as public benefit recipients...." (Initiative, § § 2204,
subd. (b); 1705, subd. (b).)
(4) The city must provide written notice of the provisions of the Initiative
and its limitations to any person or entity "applying or competing
for any benefit enumerated" by the Initiative. (Initiative, §
§ 2205, 1706.)
Under the provisions of the Initiative, a civil action may be brought by
any city resident "against a public official who receives a personal
or campaign advantage in violation of" the Initiative, and a "knowing
and willful violation" of the Initiative may also be prosecuted as
a misdemeanor offense. (Initiative, § § 2206, subds.(a)-(c);
1701, subds. (a)-(c).)
The Initiative has been adopted, in virtually identical form and over the
strenuous objections of numerous city officials, by voters in several
California cities, including Santa Monica and Pasadena. [FN1]
FN1. The Initiative was also enacted in Irvine, Claremont and San Francisco.
Of these cities, only San Francisco has implemented the Initiative.
THE SANTA MONICA LITIGATION:
In November 2000, almost 60% of Santa Monica voters approved the Initiative
(also known as proposition LL) identified as the Taxpayer Protection Amendment
of 2000 (sections 2200-2207) which, as enacted, amended the city's Charter.
Santa Monica officials were displeased with the Initiative's approval.
City Council members had campaigned vigorously against its passage, had
authored the official ballot argument opposing it and, after being sued
by the Initiative's proponents, ultimately were compelled by court
order to include an argument in favor of the Initiative in the ballot
pamphlet. The city officials had serious concerns about the constitutionality
and enforceability of the Initiative. At the time, an appeal by the Southern
California City of Vista from a pre-election challenge to the Initiative
was pending in the Fourth District Court of Appeal. In January 2001, Santa
Monica received permission to join Pasadena in an amicus curiae brief
filed in the Vista litigation challenging the legality of the Initiative.
The three cities, also joined by Claremont, argued the Initiative was
unconstitutional on its face and urged its invalidation. The Court of
Appeal determined the appeal was moot because a proposition contradictory
to the Initiative had passed by an even greater margin of yes votes. [FN2]
FN2. The procedural history of the Vista litigation is significant to the
arguments made here. In that case, Vista filed a pre-election challenge
to the legality of the Initiative. The trial court found the Initiative
unconstitutional and ordered the county registrar not to place it on the
November 2000 ballot. On petition by the Initiative's proponents,
the Fourth District Court of Appeal immediately issued an order staying
the trial court's judgment. The appellate court's order had the
practical effect of allowing the Initiative to remain on the November
ballot. A majority of the voters passed the Initiative. However, because
a competing proposition passed by an even greater margin, the Initiative
was not enacted into law. As a result, the appellate court found the cities'
challenge to the validity of the Initiative was mooted by the election
results, and declined the invitation of Vista and amici Santa Monica,
Pasadena and Claremont to exercise its discretionary authority and issue
an advisory opinion on the constitutionality of the Initiative. The Court
of Appeal did not merely dismiss the appeal, which would have left intact
the trial court's ruling. Instead, the appellate court granted the
writ of mandate requested by the proponents, vacated the trial court's
ruling and judgment, and ordered the trial court to dismiss as moot Vista's
challenge to the constitutionality of the Initiative.
In this case, Santa Monica and its City Clerk argue that the only court
to address the merits of the constitutional challenges to the Initiative
deemed those challenges well-founded. That assertion is incorrect. The
Vista decision has been vacated and does not legally exist even as an
unreported, non-binding trial court decision. It was effectively reversed
by the Court of Appeal days after it issued.
In May 2001, Santa Monica City Attorney, Marsha Jones Moutrie, circulated
a memorandum to the Santa Monica Mayor and City Council describing the
background and purpose of the Initiative, her concerns about its constitutional
validity, and the failed attempts to definitively adjudicate the Initiative's
constitutionality. The City Attorney reiterated her belief that the Initiative
was unconstitutional, and noted she had advised the City Clerk not to
implement the Initiative until its constitutionality was resolved. Relying
on the premise that it was "[f]aced with an initiative measure which
has passed but been declared unconstitutional elsewhere," the City
Attorney opined that Santa Monica "could: (1) refuse to implement
the measure ... based upon the fact that a court has declared it unconstitutional;
(2) implement the measure, ignoring the court decision, and thereby risk
violating civil rights; (3) take no action on the measure and wait to
be sued; or (4) initiate a lawsuit with the intention of obtaining a final
appellate decision on the issue of constitutionality which would clarify
the City's obligations." The City Attorney recommended filing
a lawsuit challenging the constitutionality of the Initiative.
In a status report prepared for a City Council meeting two weeks later,
City Clerk Maria Stewart informed members that, based primarily on the
City Attorney's advice, she was refusing to enforce the Initiative
until its constitutionality was determined.
In June 2001, Santa Monica filed an action for declaratory relief and a
petition for writ of mandate against its City Clerk. The complaint alleges
the existence of an actual controversy between Santa Monica and the Clerk,
acting in her official capacity as the official responsible for the implementation
of the Initiative's provisions, regarding their respective rights
and responsibilities. It alleges the Clerk claims the Initiative is unconstitutional
and facially invalid, and refuses to implement it. The complaint seeks
a judicial declaration as to whether the Initiative "is or is not
unconstitutional or otherwise illegal and unenforceable."
In July 2001, Santa Monica resident Douglas Heller, the official proponent
of the Initiative in that city, and the Initiative's sponsor, the
Foundation for Taxpayer and Consumer Rights (collectively FTCR), notified
the trial court and counsel of their intent to intervene in the litigation
solely for "the purpose of seeking its dismissal as a collusive,
non-justiciable action, and as a misuse of taxpayer funds for private
purposes." The court granted FTCR's request to intervene and
permitted Pasadena and Claremont to participate in the action as amici
curiae. Over FTCR's objection, the court scheduled a hearing and simultaneous
briefing on FTCR's motion to dismiss and on the merits of Santa Monica's
summary judgment motion which addressed the legality of the Initiative.
A hearing on FTCR's motion to dismiss and the parties' dispositive
motions was conducted in January 2002. In March 2002, the trial court
issued an order dismissing the entire action as a non-justiciable controversy.
Santa Monica's motion for summary judgment was dismissed as moot.
Judgment was entered in May 2002, from which Santa Monica appealed.
THE PASADENA LITIGATION:
1. FTCR's anti-SLAPP motion.
In March 2001, over 60% of Pasadena voters approved the Initiative, known
as the City of Pasadena Taxpayer Protection Amendment of 2000, making
it part of the city's Charter (Article XVII, § § 1701-1708).
City officials, including City Clerk Jane Rodriguez and Mayor William
Bogaard, who had aggressively campaigned against the Initiative, were
as displeased with the vote as their peers in Santa Monica, but chose
to take a different approach. For over a year, the City of Pasadena, Rodriguez
and Bogaard (collectively Pasadena) refused to perform the ministerial
duties required by Government Code section 34460 (section 34460) to authenticate,
certify and file copies of the Initiative with the Secretary of State,
Los Angeles County Recorder, and the city's archives. Those acts were
the necessary final steps before the charter amendment could officially
take effect. (Gov.Code, § 34459.)
On March 15, 2002, Pasadena resident René Amy filed a petition for
a writ of mandate and a complaint for declaratory and injunctive relief
against Pasadena seeking to require it to authenticate and certify the
Initiative and file it with the Secretary of State. Amy also filed a motion
for issuance of a peremptory writ of mandate, which was scheduled for
hearing. Pasadena answered the complaint, filed a cross-complaint against
Amy and an opposition to Amy's motion. While acknowledging it had
not complied with the provisions of section 34460, Pasadena insisted it
had no duty to comply, and could not be compelled to comply, with the
statute due to its belief the Initiative was unconstitutional.
Joined by Pasadena resident Paul Monsour, the official proponent of the
Initiative in Pasadena, FTCR requested leave to intervene in the action
on Amy's behalf. The unopposed request was granted and Monsour and
FTCR filed a complaint in intervention. Monsour and FTCR asserted Pasadena
had a mandatory ministerial duty to comply with the formalities of section
34460. Moreover, they asserted Pasadena's refusal to implement the
Initiative and its use of public moneys to defend the action by challenging
the validity of the Initiative was a wasteful and illegal expenditure
of taxpayer funds which was necessary to be enjoined under Code of Civil
Procedure section 526a.
Pasadena responded by filing a first amended cross-complaint for declaratory
relief solely against FTCR, eliminating Amy as a cross-defendant. The
"An actual controversy has arisen and now exists between cross-complainants
and FTCR with respect to the legal rights and duties of the Mayor and
City Clerk. FTCR contends ... that the Mayor and City Clerk must perform
the duties set forth in ... section 34460. Cross-complainants dispute
that contention and contend that neither the Mayor nor the City Clerk
has any duty to comply with the provisions of ... section 34460, and have
not yet complied with those provisions, because the Initiative to which
those provisions would otherwise apply is unconstitutional and otherwise
illegal on its face...."
The first amended cross-complaint prayed for a judicial declaration that
Pasadena had "no duty to take any of the actions set forth in ...
section 34460 with respect to the [Initiative]," because the Initiative
"is unconstitutional or otherwise illegal and unenforceable."
FTCR moved to strike the first amended cross-complaint as a SLAPP suit.
(Code Civ. Proc., § 425.16 [Strategic Lawsuit Against Public Participation].)
FTCR argued Pasadena's action against it was meritless, and arose
from acts taken in furtherance of its constitutionally protected rights
of petition or free speech, specifically its sponsorship of the Initiative
in Pasadena, and from FTCR's audacity in joining Amy's action
against Pasadena after city officials refused to perform the final steps
necessary to give legal effect to the voter-enacted Initiative. FTCR also
argued Pasadena's action was a non-justiciable controversy improperly
seeking an advisory opinion, and Pasadena could not establish a likelihood
of prevailing on its claim against FTCR because city officials had a mandatory
duty to perform their ministerial obligations under section 34460, irrespective
of their views as to the constitutionality of the Initiative.
In opposition to FTCR's anti-SLAPP motion, Pasadena argued its cross-action
against FTCR was not a SLAPP suit because the action was not intended
to retaliate against FTCR for exercising its constitutional rights of
free speech and petition. It asserted the cross-action was intended only
to attack the Initiative on constitutional grounds, as to which it had
shown a likelihood of prevailing. As a result, Pasadena argued FTCR could
not satisfy its burden of showing the action arose from any act taken
in furtherance of its rights of free speech or petition.
A hearing on May 31, 2002, addressed both Amy's petition for writ of
mandate and FTCR's anti-SLAPP motion. At the conclusion of the hearing,
the petition for mandate was granted on the ground Pasadena was required
to comply with the ministerial requirements of section 34460, regardless
of its position as to the constitutionality of the Initiative. The Mayor
and City Clerk were ordered to certify the Initiative, and file it with
the Secretary of State, County Recorder and city archives.
However, the trial court denied FTCR's motion to strike. It found the
first amended cross-complaint was not intended to punish FTCR and did
not arise out of any act taken by FTCR in furtherance of its state or
federal constitutional rights of free speech or petition. [FN3] Pasadena
was instructed to prepare a proposed order, to which FTCR objected. The
proposed order, in its original form, was entered by the court on June
21, 2002. Pasadena complied with the order to certify the Initiative on
June 4, 2002, and it took effect two days later. On July 2, 2002, FTCR
filed an appeal from the denial of its anti-SLAPP motion. [FN4]
FN3. At the hearing, the trial court indicated it also intended to base
its ruling denying FTCR's motion on an additional finding that Pasadena
had shown a likelihood prevailing on the merits of its cross-action. However,
after FTCR pointed out that the court could not reach that issue without
first determining whether the cross-action presented a justiciable controversy--an
issue the court specifically declined to adjudicate--the court withdrew
that ground as a basis for its ruling and found only that the cross-action
had not arisen out of FTCR's exercise of any constitutionally protected activity.
FN4. An order denying an anti-SLAPP motion is immediately appealable. (Code
Civ. Proc., § § 1025.16, subd. (j); 904.1.)
2. Pasadena's motion for summary judgment.
On June 18, 2002, Pasadena moved for summary judgment against FTCR, arguing
the Initiative was unconstitutional and preempted by state and federal law.
In its opposition to the motion, FTCR asserted the trial court lacked jurisdiction
to consider the summary judgment motion because, under Code of Civil Procedure
section 916, subdivision (a), its appeal from the order denying its special
motion to strike stayed further proceedings on the first amended cross-complaint.
FTCR requested the court to take the summary judgment motion off calendar
pending the determination of the appeal.
Pasadena's reply insisted that the trial court retained the authority
to address the merits of the summary judgment motion in that Code of Civil
Procedure section 916 specifically authorized the court to "proceed
upon any other matter embraced in the action and not affected by the judgment
or order." (Code Civ. Proc., § 916, subd. (a).) Because the
order denying the anti-SLAPP motion did not address the merits of Pasadena's
arguments regarding the validity of the Initiative, Pasadena insisted
the court was free to adjudicate the constitutionality issue.
FTCR's sur-reply reasserted that its appeal from the order denying
the special motion to strike had divested the trial court of jurisdiction
to consider Pasadena's motion. Based on its contention that the court
lacked jurisdiction to consider the matter, neither FTCR's opposition
nor its sur-reply addressed the merits of the motion for summary judgment.
FTCR's counsel appeared at the July 16, 2002 hearing on the summary
judgment motion for the sole purpose of asserting again that the court
lacked jurisdiction to consider the motion. The court indicated its likely
agreement with that position and continued the matter for two days.
At the July 18, 2002 hearing, the trial court reversed its previous indication
and ruled it was not divested of jurisdiction to proceed on the summary
judgment motion. The ruling concluded the anti-SLAPP motion was denied
solely because Pasadena's suit against FTCR was not intended to interfere
with or punish FTCR for exercising its First Amendment rights of free
speech and petition. The court found that, in denying the anti-SLAPP motion,
it never reached the merits of Pasadena's constitutional arguments.
Because those matters were not embraced within the pending appeal, the
court concluded it was able to consider the constitutionality of the Initiative.
FTCR requested a temporary stay of the proceedings to permit it to seek
an extraordinary writ on the jurisdictional issue. That request was refused.
The court then addressed the merits of the motion for summary judgment,
and declared the Initiative unconstitutional and unenforceable in its
entirety. Judgment was entered from which FTCR appealed.
3. FTCR's motion for attorneys' fees under the private attorney
In October 2002, Monsour and FTCR (collectively FTCR) moved for an award
of attorneys' fees and costs under the private attorney general statute,
Code of Civil Procedure section 1021.5 (section 1021.5). The motion was
premised on FTCR's successful prosecution of the petition for writ
of mandate, which resulted in an order requiring Pasadena to comply with
the provisions of section 33460.
In denying the motion for attorneys' fees and costs, the trial court
found FTCR had not satisfied the requirement of section 1021.5 that the
party seeking fees show "the necessity and financial burden of private
enforcement are such as to make an award appropriate." (§ 1021.5,
subd. (b).) The court determined that, as an intervenor, FTCR had not
contributed significantly to the action because (1) the court "probably
would have granted" the writ petition based on Amy's arguments
alone, and (2) FTCR had a "direct interest" in the implementation
and enforcement of the Initiative inasmuch as FTCR had been "actively
involved in the promulgation of this particular initiative ... and its
adoption by many cities...." FTCR's final appeal is from the
November 25, 2002 order denying the motion for attorneys' fees and costs.
SANTA MONICA ACTION
The threshold, but ultimately dispositive, question in Santa Monica's
action against the City Clerk is whether the action presents a justiciable
controversy, which was the basis for the trial court's dismissal.
A declaratory relief action may be brought under Code of Civil Procedure
section 1060: "Any person ... who desires a declaration of his or
her rights or duties with respect to another, ... may, in cases of actual
controversy relating to the legal rights and duties of the respective
parties, bring an original action ... in the superior court for a declaration
of his or her rights and duties ... including a determination of any question
of construction or validity arising under the instrument or contract....
The declaration may be had before there has been any breach of the obligation
in respect to which said declaration is sought." However, "[t]he
court may refuse to exercise [its] power [to] grant [declaratory relief]
in any case where its declaration or determination is not necessary or
proper at the time under all the circumstances." (Code Civ. Proc.,
Before turning to the merits, we address the disputed issue of the appropriate
standard of review. Santa Monica insists the standard of review from the
trial court's judgment dismissing this declaratory relief action is
de novo, because the appeal involves purely legal questions, including
the question of whether the action presents a justiciable controversy.
There is support for this position. (See e.g., Dolan-King v. Rancho Santa
Fe Assn. (2000) 81 Cal.App.4th 965, 974, 97 Cal.Rptr.2d 280 [if underlying
facts are undisputed, trial court's decision to grant or deny declaratory
relief presents a question of law, reviewed de novo].)
FTCR, on the other hand, relies on the long-standing rule that the decision
whether to grant or deny declaratory relief is a matter within the trial
court's discretion, and will not be disturbed on appeal absent a clear
showing the discretion was abused, particularly where the court's
ruling is based, in part, on factual determinations. (City of Burbank
v. Burbank-Glendale-Pasadena Airport Authority (2003) 113 Cal.App.4th
465, 481, 6 Cal.Rptr.3d 367 (City of Burbank ); Application Group, Inc.
v. Hunter Group, Inc. (1998) 61 Cal.App.4th 881, 893, 72 Cal.Rptr.2d 73
[A determination regarding the justiciability of an action under Code
of Civil Procedure section 1060 "is ... a matter entrusted to the
sound discretion of the trial court."]; California Water & Telephone
Co. v. County of Los Angeles (1967) 253 Cal.App.2d 16, 23, 61 Cal.Rptr.
618 (California Water & Telephone Co.); Bixby v. Bixby (1953) 120
Cal.App.2d 495, 499, 261 P.2d 286 [absent a showing of the abuse of discretion,
trial court findings which appear to be based upon a reasonable analysis
of the facts and circumstances will not be disturbed on appeal].) We need
not resolve this interesting dispute. The trial court's ruling is
correct under either standard. We turn to the dispositive question of
the justiciability of this action.
"The concept of justiciability involves the intertwined criteria of
ripeness and standing." (California Water & Telephone Co., supra,
253 Cal.App.2d at p. 22, 61 Cal.Rptr. 618.) "Standing" derives
from the principle that "[e]very action must be prosecuted in the
name of the real party in interest." (Code Civ. Proc, § 367.)
A party lacks standing if it does not have an actual and substantial interest
in, or would not be benefited or harmed by, the ultimate outcome of an
action. (California Water & Telephone Co., supra, 253 Cal.App.2d at
p. 23, 61 Cal.Rptr. 618; Sherwyn v. Department of Social Services (1985)
173 Cal.App.3d 52, 58, 218 Cal.Rptr. 778 (Sherwyn ).) Standing is a function
not just of a party's stake in a case, but the degree of vigor or
intensity with which the presents its arguments. (Harman v. City and County
of San Francisco (1972) 7 Cal.3d 150, 159, 101 Cal.Rptr. 880, 496 P.2d
1248 (Harman ); Fiske v. Gillespie (1988) 200 Cal.App.3d 1243, 1247, 246
Cal.Rptr. 552 (Fiske ).) "Ripeness" refers to the requirements
of a current controversy. According to the Supreme Court, "an action
not founded upon an actual controversy between the parties to it, and
brought for the purpose of securing a determination of a point of law
... will not be entertained." (Golden Gate Bridge Etc. Dist. v. Felt
(1931) 214 Cal. 308, 316, 5 P.2d 585 (Golden Gate ).) A controversy becomes
"ripe" once it reaches, "but has not passed, the point
that the facts have sufficiently congealed to permit an intelligent and
useful decision to be made." (California Water & Telephone Co.,
supra, 253 Cal.App.2d at p. 22, 61 Cal.Rptr. 618, fn. omitted.)
The trial court correctly concluded this action fails both the standing
and ripeness aspects of the test of justiciability.
A. The Santa Monica Action is not justiciable.
1. Santa Monica is not a proper plaintiff, and no legitimate basis justifies
a departure from the general rules governing standing.
Generally speaking, "[e]very action must be prosecuted in the name
of the real party in interest." (Code Civ. Proc., § 367.) Only
the real party in interest has "an actual and substantial interest
in the subject matter of the action," and stands to be "benefited
or injured" by a judgment in the action. (Friendly Village Community
Assn., Inc. v. Silva & Hill Co. (1973) 31 Cal.App.3d 220, 225, 107
Cal.Rptr. 123.) In other words, a person who invokes the judicial process
lacks " 'standing' if he, or those whom he properly represents,
does not have a real interest in the ultimate adjudication because the
actor has neither suffered nor is about to suffer any injury of significant
magnitude reasonably to assure that all of the relevant facts and issues
will be adequately presented." (California Water & Telephone
Co., supra, 253 Cal.App.2d at pp. 22-23, 61 Cal.Rptr. 618, fn. omitted.)
Standing is measured not just by a plaintiff's stake in the resolution
of an action, but by the force with which it presents its case. As stated
in Harman, supra, 7 Cal.3d at p. 159, 101 Cal.Rptr. 880, 496 P.2d 1248:
"A party enjoys standing to bring his complaint into court if his
stake in the resolution of that complaint assumes the proportions necessary
to ensure that he will vigorously present his case.... [W]e must determine
standing by a measure of the 'intensity of the plaintiff's claim
to justice.' [Citation.]"
Under traditional standing principles, Santa Monica, which bears minimal
responsibilities under the Initiative, [FN5] lacks direct standing to
prosecute this action. The complaint does not specify any actual or threatened
action which would injure the city or violate its rights. Rather, the
complaint alleges only that Santa Monica is concerned that implementation
of the Initiative might prospectively affect the rights of its volunteer
and paid public officials. Santa Monica also does not allege any actual
or threatened action on the part of the City Clerk--who bears no specific
duties under the Initiative--which injures or could injure the city. [FN6]
Finally, in light of Santa Monica's steadfast opposition to the enactment
and implementation of the Initiative, the tepid nature of its allegations
seeking to enforce the measure and seeking a judicial declaration as to
whether the Initiative "is or is not unconstitutional," and
its limited arguments in support of the Initiative, we have significant
doubt Santa Monica is a "party with a true incentive ... to present
arguments supporting [the Initiative's] validity." (Fiske, supra,
200 Cal.App.3d at p. 1247, 246 Cal.Rptr. 552.)
FN5. The Initiative imposes on Santa Monica only the affirmative obligation
to inform prospective contractors of the terms and limitations of the
Initiative. (Initiative § 2205.)
FN6. The City Clerk has certain record keeping requirements independent
of the Initiative, which include the receipt and review of campaign disclosure
statements. (Govt.Code, § 84215; Cal.Code Regs., tit. 2, § 18110.)
However, as the Clerk concedes, those mandated duties do not include the
duty to ensure the disclosure statements comply with the Initiative, nor
the duty to file an enforcement action against an offending public official
if they do not. We agree with the trial court's assessment that the
Clerk's role with regard to the implementation of the Initiative is
so remote she has no legitimate role to perform in this action. There
is simply no danger the Clerk's fear she will "violate individuals'
civil rights" will be realized.
The City Clerk asserts that standing requirements are not absolute. Standing
rules are sometimes relaxed in cases involving challenges to the constitutionality
of a statute brought by a party whose own rights are not impacted, but
whose challenge is raised on behalf of absent third parties. Two intertwined
factors must be examined to determine whether relaxation of the general
rules is appropriate. First, the relationship between the litigant and
the absent third party whose rights the litigant asserts must be so close
that the litigant "is fully, or very nearly, as effective a proponent
of the right as" would be the absent party. (Singleton v. Wulff (1976)
428 U.S. 106, 114-116, 96 S.Ct. 2868, 49 L.Ed.2d 826; Selinger v. City
Council (1989) 216 Cal.App.3d 259, 270-271, 264 Cal.Rptr. 499 (Selinger
).) Second, the ability of the absent party to assert his own rights must
be determined. Even where the relationship between the litigant and third
party is close, some "genuine obstacle" must prevent the absent
party from asserting his or her own interests. (Singleton v. Wulff, supra,
428 U.S. at pp. 114-116, 96 S.Ct. 2868; Selinger, supra, 216 Cal.App.3d
at pp. 270-271, 264 Cal.Rptr. 499.)
Selinger illustrates a circumstance where relaxation of traditional standing
principles is appropriate. It involved city council's challenge to
the constitutionality of a statute that provided for approval of land
use and development permits by operation of law if a public entity failed
to act within a specified period, but which did not provide for notice
to adjacent property owners whose interests were potentially affected
by the approval. The potentially affected property owners were not parties
to the suit. The court rejected the argument the city lacked standing
to challenge the statute. Because the rights of third party citizens were
"inextricably bound up" with the city's duty to review and
approve the permits, the court found the city had standing to challenge
the absence of a notice provision in the statute. (Selinger, supra, 216
Cal.App.3d at p. 271, 264 Cal.Rptr. 499.) "More important[ly],"
the court also found that "genuine obstacles" prevented the
absent property owners from asserting their own rights. Specifically,
the statute afforded affected property owners only 90 days to challenge
permit approvals. The shortened statutory time period, coupled with the
absence of any provision for notice, meant that potentially impacted homeowners
were unlikely to learn of their right to challenge the approval until
after the expiration of the period for a challenge. Thus, the court found
the city had standing to challenge the notice issue on behalf of the absent
owners. (Ibid, citation omitted.)
The circumstances of this case are dissimilar from Selinger, and the authorities
on which the City Clerk relies do not advance her argument. In the other
cases cited, absent third parties faced the risk of civil or criminal
penalties in order to mount their own First Amendment challenges to the
statute. (See People v. Fogelson (1978) 21 Cal.3d 158, 162-163, fn. 3,
164, 145 Cal.Rptr. 542, 577 P.2d 677 [party may mount facial challenge
to constitutionality of ordinance requiring permit to solicit at airport,
even though he never attempted to comply with permit requirement: "
'Standing is recognized in such a situation because of the dangers
inherent in tolerating, in the realm of the First Amendment, the existence
of a penal statute susceptible of sweeping and improper application ...'
[citation.]"]; In re Andre P. (1991) 226 Cal.App.3d 1164, 1171-1172,
277 Cal.Rptr. 363 [litigant mounting First Amendment "overbreadth"
challenge to governmental speech restrictions need not show his own conduct
could not be regulated by statute. The litigant has standing to challenge
statute not because his own rights of expression are violated, but because
of potential that the regulation's very existence may "chill"
the constitutionally protected right of speech or expression of other
parties not before the court.]; cf., Citizens for Responsible Behavior
v. Superior Court (1991) 1 Cal.App.4th 1013, 1019- 1021, 1027, 1032, 2
Cal.Rptr.2d 648 [granting city declaratory relief in facial challenge
to initiative which proposed to enact an unconstitutionally discriminatory
regulatory scheme affecting the equal protection and due process rights
of homosexuals or persons with AIDS, even though challenge was mounted
only by city council, no member of which faced criminal or civil penalty
for prohibited vote.].)
The authorities do not support the City Clerk's contention that courts
"routinely adjudicate challenges to statutes on First Amendment grounds
even where the particular constitutional deficiency of the statute may
not affect the person making the challenge." While each case cited
involved potential penalties or prosecution; this case does not. Nor does
the record indicate any city official potentially impacted by the Initiative
faces the risk of civil or criminal penalties in mounting a challenge
to the constitutionality of the enactment.
We agree with the trial court. Even if Santa Monica--which vigorously opposed
enactment of the Initiative and has challenged its constitutionality at
every opportunity--could be as effective a proponent of the First Amendment
rights as its absent public officials would be, no "genuine obstacle"
prevents an absent public official from mounting a challenge to the constitutionality
of the measure. In the absence of such an obstacle, no basis exists for
the city's assertion of absent third parties' purported interests.
Finally, Santa Monica and the City Clerk assert that FTCR's intervention
obviated concerns about the justiciability of this action. We do not agree.
First, Santa Monica and the Clerk ignore the fact that FTCR sought to
intervene solely to dismiss the action as a nonjusticiable controversy.
Although FTCR opposed Santa Monica's summary judgment motion which
defended the legality of the Initiative, its opposition was submitted
over its objection and only because the trial court ordered it to do so.
[FN7] More fundamentally, even if FTCR's participation in the action
on the merits obviates the problem of standing, Santa Monica has not overcome
the impediment to adjudication of the related, and equally important,
problem of ripeness. [FN8]
FN7. By the time FTCR learned of this proceeding and sought leave to intervene
to dismiss the action, Santa Monica and the City Clerk had already agreed
on a briefing schedule for Santa Monica's anticipated motion for summary
judgment. Santa Monica and the Clerk objected to delaying the hearing
only to give FTCR an opportunity to act as a "suicide bomber"
and "blow up the lawsuit." In response, FTCR objected to the
requirement that it brief the complex constitutional arguments before
the trial court determined whether the action could proceed. The court
delayed the hearing on the summary judgment motion and, over FTCR's
objection, ordered the parties simultaneously to brief the justiciability
of the city's action and the substantive merits of the motions, and
set the motions for a consolidated hearing. The court granted FTCR leave
to intervene and ordered it to file a complaint-in-intervention, requiring
that the complaint include allegations as to the constitutionality of
the Initiative and not just the justiciability of the action, in the event
the motion to dismiss was denied and FTCR chose to continue to participate
in the action on the merits.
FN8. Santa Monica and the City Clerk rely on Division Seven's recent
opinion in City of Burbank, supra, 113 Cal.App.4th 465, 6 Cal.Rptr.3d
367, to support the contention that FTCR's presence as an intervenor,
in and of itself, eliminates the standing issue. The circumstances in
City of Burbank differ markedly from this case. First, in City of Burbank,
the airport authority's standing was not at issue. Here, the Clerk
is a nominal defendant purportedly sued over her refusal to perform duties
she does not have, by a plaintiff with no standing of its own who seeks
only to assert the rights of absent third parties. Second, the proponent
of the ballot measure in City of Burbank agreed, at the city's invitation,
to intervene in the action on the merits to challenge the plaintiff's
claims of illegality and to seek a declaration that the ballot measure
was constitutional and enforceable. (Id. at p. 471, 6 Cal.Rptr.3d 367.)
Here, FTCR sought to intervene for the sole purpose of dismissing the
action on the ground the court lacked subject matter jurisdiction, an
intervention opposed on that basis by both Santa Monica and the Clerk.
FTCR was forced to mount a defense of the Initiative on the merits only
because the court denied its request to conduct a separate proceeding
on nonjusticiability arguments before it addressed the constitutionality
of the measure.
2. Santa Monica's claims are not ripe.
A controversy "ripens" once it has reached, "but has not
passed, the point that the facts have sufficiently congealed to permit
an intelligent and useful decision to be made." (California Water
& Telephone Co., supra, 253 Cal.App.2d at p. 22, 61 Cal.Rptr. 618.)
Ripeness is aimed at "prevent[ing] courts from issuing purely advisory
opinions.... It is rooted in the fundamental concept that the proper role
of the judiciary does not extend to the resolution of abstract differences
of opinion. It is in part designed to regulate the workload of courts
by preventing judicial consideration of lawsuits that seek only to obtain
general guidance, rather than to resolve specific legal disputes. However,
the ripeness doctrine is primarily bottomed on the recognition that judicial
decisionmaking is best conducted in the context of an actual set of facts
so that the issues will be framed with sufficient definiteness to enable
the court to make a decree finally disposing of the controversy."
(Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d
158, 170, 188 Cal.Rptr. 104, 655 P.2d 306 (Pacific Legal Foundation ).)
A two-pronged test is used to determine the ripeness of a controversy:
(1) whether the dispute is sufficiently concrete so that declaratory relief
is appropriate; and (2) whether the parties will suffer hardship if judicial
consideration is withheld. (Farm Sanctuary, Inc. v. Department of Food
& Agriculture (1998) 63 Cal.App.4th 495, 501-502, 74 Cal.Rptr.2d 75
(Farm Sanctuary, Inc.).) "Under the first prong, the courts will
decline to adjudicate a dispute if 'the abstract posture of [the]
proceeding makes it difficult to evaluate ... the issues,' if the
court is asked to speculate on the resolution of hypothetical situations,
or if the case presents a 'contrived inquiry.' Under the second
prong, the courts will not intervene merely to settle a difference of
opinion; there must be an imminent and significant hardship inherent in
further delay." (Id. at p. 502, 74 Cal.Rptr.2d 75, citations omitted.)
This action fails both prongs of the ripeness test. First, the declaratory
relief action, by which Santa Monica seeks "the benefit" of
judicial guidance "as to the constitutionality of the Initiative,"
is insufficiently concrete and fails to touch the legal relations of parties
with actual adverse legal interests. (Pacific Legal Foundation, supra,
33 Cal.3d at pp. 170-171, 188 Cal.Rptr. 104, 655 P.2d 306.)
The Initiative's requirements and restrictions are directed only at
"elected or appointed public official[s] acting in an official capacity,"
who are vested with the discretion to approve public benefits. (Initiative,
§ § 2202, subd. (d), 2203, subd. (a).) It is only those public
officials who are constrained by the Initiative's requirements and
restrictions as to receipt of "personal or campaign advantages."
Those city officials (1) are prohibited from receiving specified "personal
or campaign advantages" from one on whom a public benefit has been
conferred; (2) must engage in due diligence to determine whether a public
benefit has been conferred, and to monitor personal or campaign advantages
so that improper "advantages" may timely be returned; and (3)
must "provide, upon inquiry ..., the names of all entities and persons
known to them who respectively qualify as public benefit recipients...."
(Initiative, § § 2203, subd. (a), 2204, subds. (a), (b).) Moreover,
only those enumerated public officials who receive personal or campaign
advantages, and not the city or its clerk, risk enforcement of the Initiative
through civil or criminal proceedings brought against them. (Initiative,
§ 2206.) Indeed, only one minor provision, requiring notification
of the Initiative's terms and provisions to prospective contractors,
is directed at the city. (Initiative, § 2205.)
The City Clerk insists the Initiative is unconstitutional and, because
she is concerned about infringing upon the constitutional rights of persons
or entities who would be affected by the Initiative, refuses to implement
its provisions until the constitutional issues are resolved. However,
as the trial court correctly concluded, no showing has been made that
the Clerk "has any remaining duties or obligations under the Initiative
such that her asserted 'refusal' to implement the Initiative has
any legal effect sufficient to support this action." [FN9] As Santa
Monica's designated "elections officer," the Clerk receives
campaign disclosure statements for review to ensure they "conform
on their face with the requirements of the Political Reform Act."
(Gov.Code, § 84215; Cal.Code Regs., tit.2, § 18110.) However,
neither these ministerial duties nor the Initiative charge the Clerk with
the responsibility to ensure the disclosure statements comply with the
Initiative, much less bring an action to enforce its requirements, should
she suspect a violation. Based on these limited facts, we agree with the
trial court that no danger is presented that the Clerk will be forced
to "violate individuals' civil rights" simply by receiving
campaign disclosure statements for filing under the Political Reform Act.
[FN10] In sum, this controversy has not yet reached the point where it
is " 'definite and concrete, touching the legal relations of
parties having adverse interests.' " (Pacific Legal Foundation,
supra, 33 Cal.3d at pp. 170-171, 188 Cal.Rptr. 104, 655 P.2d 306, citation omitted.)
FN9. The City Clerk's only actual "duties" (under Government
Code sections 34459 and 34460)--to certify and send the election returns
to the Secretary of State for filing, so that the Initiative could be
adopted as an amendment to the Santa Monica Charter--were performed long ago.
FN10. Santa Monica also asserts the City Clerk has two additional duties
under the Initiative. Those assertions are not supported by the record.
First, Santa Monica's representation to the contrary notwithstanding,
the Initiative does not require the Clerk to inform prospective bidders
of the Initiative's restrictions. That duty rests with the city itself.
(Initiative, § 2205.) Moreover, even if that duty is assigned to
the Clerk, we are unable to see how the Clerk would "violate individuals'
civil rights" merely by providing notice of the terms of the Initiative.
Second, Santa Monica argues section 2204 of the Initiative effectively
requires the Clerk to produce, "in writing," the names of the
recipients of public benefits and public records "immediately"
upon request. However, the text of the Initiative is at odds with this
assertion. First, logic dictates that this section applies in the first
instance not to the Clerk, but to those public officials vested with the
discretion to confer public benefits, and thus subject to the stated penalties.
Second, the text does not require that disclosures must be made either
immediately or in writing. (Initiative, § 2204, subd. (b).)
The action also fails the second prong of the ripeness test. No showing
has been made that the withholding of a judicial determination will result
in an imminent, significant hardship. Santa Monica and at least two other
cities have attempted to judicially resolve the issue of the Initiative's
constitutionality since late 2000, when they participated as an amicus
curiae in the Vista appeal. [FN11] However, Santa Monica's dogged
pursuit of litigation "to eliminate the lingering uncertainty that
has existed and continues to exist concerning the constitutional validity
of the Initiative," is not sufficient to give rise to an actual justiciable
controversy. It is not sufficient that the issues encompassed by the Initiative
involve a sizeable public interest. As the trial court concluded, "[w]ithout
proper grounds for justiciability, the court would be rendering an improper
advisory opinion," which that court declined to do, as do we. Even
if Santa Monica and the City Clerk--or the Clerk and FTCR--fundamentally
disagree as to the constitutionality of the Initiative, no justiciable
conflict exists. " 'A difference of opinion does not give rise
to a justiciable case until an actual controversy arises.' "
(Wilson v. Transit Authority (1962) 199 Cal.App.2d 716, 722, 19 Cal.Rptr.
59 (Wilson ), citation omitted.)
FN11. FTCR insists that Santa Monica began attempting to thwart the Initiative
at an earlier date when City Council members campaigned aggressively against
the Initiative, and authored the official ballot argument in opposition
to the measure.
B. This is not an appropriate "validation action."
Implicitly acknowledging this action fails to satisfy the traditional tests
for ripeness and standing, Santa Monica and the City Clerk insist we should
nevertheless reach the merits of their constitutional arguments as a common
law "validation action," under Golden Gate, supra, 214 Cal.
308, 5 P.2d 585, and City and County of S.F. v. Boyd (1943) 22 Cal.2d
685, 140 P.2d 666 (Boyd ), and their progeny. [FN12] Again, we disagree.
FN12. A validation action is brought on either a statutory or, historically,
on a common law basis. Generally speaking, statutory validation actions
are designed to provide expedient, uniform procedures by which public
agencies can obtain binding judgments as to the validity of public financing
commitments such as "bonds, warrants, contracts, obligations or evidence
of indebtedness pursuant to Chapter 9 (commencing with Section 860) of
Title 10 of Part 2 of the Code of Civil Procedure." (Gov.Code, §
53511; Friedland v. City of Long Beach (1998) 62 Cal.App.4th 835, 843,
73 Cal.Rptr.2d 427 [A validation action is a lawsuit filed for the purpose
of securing a judgment determining the validity of a particular public
agency's action or decision.]; City of Ontario v. Superior Court (1970)
2 Cal.3d 335, 340-341, 85 Cal.Rptr. 149, 466 P.2d 693, N.T. Hill Inc.
v. City of Fresno (1999) 72 Cal.App.4th 977, 991, 85 Cal.Rptr.2d 562.)
The instant action, which involves no financial commitment by Santa Monica,
is not of the sort contemplated by the validation statutes.
Even validation actions are not exempt from the traditional principle that
a justiciable action must satisfy the requirements of both ripeness and
standing. "It is, of course, the prevailing doctrine in our judicial
system that an action not founded upon an actual controversy between the
parties to it, and brought for the purpose of securing a determination
of a point of law, is collusive and will not be entertained; and the same
is true of a suit the sole object of which is to settle rights of third
persons who are not parties." (Golden Gate, supra, 214 Cal. at p.
316, 5 P.2d 585; accord Boyd, supra, 22 Cal.2d at pp. 693-694, 140 P.2d
666.) As the trial court observed, the cases on which Santa Monica and
the City Clerk rely involved a justiciable dispute between parties directly
affected by a public entity's proposed action, or were based on an
actual duty owed by a public official whose refusal to perform was legally
impeding the ability of the public entity to fulfill its functions. This
is not such a case.
In Golden Gate, a bridge and highway district sought to compel the secretary
of the district's board of directors to execute bonds to raise funds
for highway and bridge construction. The secretary's signature on
the bonds was required by statute for the bonds to properly issue and
become operative. (Golden Gate, supra, 214 Cal. at p. 316, 5 P.2d 585.)
The secretary refused to sign the bonds based on his belief that the statutory
grant of authority to the district to levy and collect a direct annual
tax to pay off the bonds was unconstitutional. He also believed that,
if he signed the bonds, "he would acting in violation of his public
duty, and assisting in the deception of prospective purchasers of the
bonds ... a step which might conceivably involve personal liability on
his part," in the event his belief about the unconstitutionality
of the act was ultimately deemed correct. (Id. at p. 317, 5 P.2d 585.)
Under those circumstances, the Supreme Court held "[a] genuine controversy
existed ... between petitioner and respondent as to matters vitally affecting
the duties and perhaps the liabilities of the latter." (Ibid.)
In Boyd, a taxpayer sued a city controller to enjoin payment of certain
wages to employees of the municipal railway, claiming their compensation
exceeded the rates authorized by the city's wage laws. (Boyd, supra,
22 Cal.2d at p. 693, 140 P.2d 666.) Due to the pendency of that action,
the controller refused to approve the railway employees' wage claims.
The city and its public utilities commission sought a writ of mandate
to compel the controller to make the payments. The Supreme Court found
the controversy justiciable, not just a collusive suit filed to determine
a point of law or to settle the rights of absent third parties. The Court
held the controller "would be acting in violation of his public duty
if he authorized payment of claims that involved an illegal expenditure
of public funds." (Id. at p. 694, 140 P.2d 666.) His ability to approve
the wage payment claims depended upon the validity of the ordinances authorizing
the compensation, and resolution of that question required construing
the city charter and applying its provisions in light of the facts of
the case. Because the taxpayer's action challenged the controller's
right to approve the payments, a real controversy was found to exist with
regard to his duties. (Ibid.)
The other validation actions on which Santa Monica and the City Clerk rely
involve factual contexts in which actions were instituted against similarly
recalcitrant public officials whose actions were essential to implementing
the laws or financial transactions. (See Santa Clara County Local Transportation
Authority v. Guardino (1995) 11 Cal.4th 220, 228, 45 Cal.Rptr.2d 207,
902 P.2d 225 [bonds could not issue because auditor-controller refused
to sign them]; City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 477,
91 Cal.Rptr. 23, 476 P.2d 423 [city sued city manager and clerk to compel
them to perform ministerial duties essential to the city's ability
to perform contractual agreements with third parties].) Neither action
was brought solely for the abstract purpose of determining whether the
bonds or contracts were valid. Rather, they were instituted to prove the
bonds or agreements were valid and to obtain conclusive judicial determinations
that they should issue and/or be enforced. [FN13] By contrast, the tepid
allegations of Santa Monica's complaint do not contend that the Initiative
is valid; the complaint seeks only a determination regarding its validity.
Moreover, unlike the cases on which Santa Monica and the Clerk rely, the
Clerk's personal belief regarding the Initiative's unconstitutionality,
however genuine, has no bearing on its enforcement, and she has not taken
any act to prevent or obstruct the city's ability to implement the
FN13. In the recent case of Lockyer v. City & County of San Francisco
(2004) 33 Cal.4th 1055, 17 Cal.Rptr.3d 225, 95 P.3d 459, the Supreme Court
made it quite clear that validation actions, in which courts have found
that a local executive public official may refuse to comply with a ministerial
statutory duty if he or she believes the statute imposing the duty to
be unconstitutional, are limited to truly exceptional and narrow circumstances,
not present here. Discussing a series of public finance actions, the Court
noted the public officials involved in those actions were permitted to
refuse to perform their statutory duties when they had doubts about the
validity of an underlying bond, contract or public expenditure, and thereby
institute or instigate judicial actions, only where (1) the public official's
refusal to perform his or her duty ensured that a mechanism was available
for obtaining a timely judicial determination of the validity of the bond
or contract, etc.--a determination often essential to the bond's marketability,
a contracting party's willingness to perform under its contract, or
to prevent an irreparable loss of public funds; and (2) the public official
himself or herself frequently faced personal liability. (Id. at pp. 1096-1097,
and fn. 25, 17 Cal.Rptr.3d 225, 95 P.3d 459.)
FN14. The City Clerk also relies heavily on Redevelopment Agency v. City
of Berkeley (1978) 80 Cal.App.3d 158, 143 Cal.Rptr. 633, a case which
is inapposite. There, Berkeley and the city's Redevelopment Agency
(BRA) adopted a redevelopment plan prohibiting residential housing in
an industrial zone. After lobbying unsuccessfully to save homes within
the area, a residents' group sponsored an initiative toward that end,
which the voters approved. (Id. at pp. 162-163, 143 Cal.Rptr. 633.) After
the election, BRA sued Berkeley for declaratory and injunctive relief.
The dispute concerned whether the subject of the initiative was legislative
and thus a proper use of the initiative process, or an exercise of the
BRA's administrative powers which were not subject to referendum.
(Id. at pp. 167-169, 143 Cal.Rptr. 633.) The residents intervened to defend
the initiative. Shortly thereafter, the BRA ceased to exist and its powers
re-vested in the City Council. (Id. at pp. 164-166, 143 Cal.Rptr. 633.)
The residents asserted the case was not justiciable and should be dismissed
because the merger of Berkeley and BRA aligned their interests and eliminated
any true legal controversy between them. The court rejected that contention.
An actual controversy was found to exist because the residents intervened
while BRA was still "an actual and legal party to the action with
interest [sic ] adverse to those of the City of Berkeley." (Id. at
p. 165, 143 Cal.Rptr. 633.) In addition, unlike this action, the initiative
in Redevelopment Agency v. City of Berkeley imposed significant affirmative
obligations on Berkeley to grant use permits to all non-conforming existing
uses within the project area, prepare an environmental impact report,
and issue specific employment opportunity notices and annual reports to
voters. (Id. at p. 164, 143 Cal.Rptr. 633.)
Santa Monica and the City Clerk also urge us to find the existence of a
justiciable validation action based on dicta in City of Burbank, supra,
113 Cal.App.4th 465, 6 Cal.Rptr.3d 367, in which intervention in the action
by a principal proponent of an initiative was determined to provide the
requisite degree of adversity in an otherwise "friendly suit."
(Id. at pp. 481-482, 6 Cal.Rptr.3d 367.) As discussed, the circumstances
of that case differed markedly from this case. Indeed, like the referendum
in Redevelopment Agency v. City of Berkeley, but unlike the Initiative
here, the initiative involved in City of Burbank imposed significant responsibilities
on the city itself. The court found that, if Burbank enforced the initiative
and refused to issue permits for proposed airport projects until the Airport
Authority complied with the initiative's onerous requirements, it
would certainly be sued by the Airport Authority. On the other hand, if
Burbank, consistent with its view that the initiative was constitutionally
infirm, refused to implement the initiative, it would have been sued--as
it was--by the initiative's proponents. (Id. at p. 481, 6 Cal.Rptr.3d
367.) Unlike this case in which Santa Monica has only the minimal obligation
to notify prospective contractors of the Initiative's terms, Burbank
had standing because its own numerous rights and obligations as a city
were adversely affected by implementation of the ballot measure. The cases
are also distinct from one another in that, the intervenor in City of
Burbank, willingly agreed to participate on the merits. Here, FTCR intervened
solely for the purpose of seeking dismissal of a nonjusticiable, and arguably
In sum, this action presents no actual controversy necessitating judicial
intervention. Accordingly, any decision on the merits of would leave this
court in the role of issuing an improper advisory opinion in a case involving
a contrived dispute in which "there is virtually only one party."
(People v. Pratt (1866) 30 Cal. 223, 225.) We agree with FTCR. "Permitting
the validity of a voter-enacted initiative to be determined in a lawsuit
in which both parties and their attorneys not only believe, but have affirmatively
stated in prior judicial proceedings, that the measure is unconstitutional
makes a mockery of 'one of the most precious rights of our democratic
process' (Associated Home Builders etc., Inc. v. City of Livermore
(1976) 18 Cal.3d 582, 591, 135 Cal.Rptr. 41, 557 P.2d 473) and breeds
disrespect for the integrity of the judicial process." This case,
filed by Santa Monica to secure a legal determination or to settle the
rights of absent third parties, is precisely the type of case the Supreme
Court admonished "will not be entertained." (Golden Gate, supra,
214 Cal. at p. 316, 5 P.2d 585; Boyd, supra, 22 Cal.2d at p. 694, 140
C. An otherwise nonjusticiable action may not be entertained simply because
it involves issues of public concern.
Explicitly acknowledging the long-standing principle that courts typically
will not address issues unnecessary to the disposition of an appeal, Santa
Monica and the City Clerk nevertheless urge us to resolve the issue of
the constitutionality of the Initiative because of its public import.
We decline to do so.
We may not disregard the long-standing principle that, even in circumstances
when an issue involves significant public interest, California courts
adhere to the even older, and more important, judicial policy against
issuing advisory opinions. "[N]either we nor the trial court can
give advisory opinions or resolve disputes over matters which involve
parties not before us even if the parties are united in their desire to
have the court resolve unripe issues or claims which the parties have
no standing to assert." (Korean Philadelphia Presbyterian Church
v. California Presbytery (2000) 77 Cal.App.4th 1069, 1081, 92 Cal.Rptr.2d
275.) This policy is driven largely by a recognition that courts are unable
properly to adjudicate issues when only hypothetical facts are involved.
[FN15] (See Pacific Legal Foundation, supra, 33 Cal.3d at p. 170, 188
Cal.Rptr. 104, 655 P.2d 306.) That very concern exists here. As the trial
court correctly found, "the mere fact that the subject matter of
the Initiative touches upon issue [sic ] of genuine public concern does
not obviate the need for a proper showing of both standing and ripeness."
FN15. To a slightly lesser extent, the policy also recognizes that parties
seeking advisory opinions often attempt to manipulate the legal process
for their own purposes. (See Fiske, supra, 200 Cal.App.3d 1243, 246 Cal.Rptr. 552.)
We recognize the constitutional questions posed by Santa Monica and the
City Clerk undoubtedly are of significant interest and continuing public
import. As both the City and its Clerk point out, significant substantive
issues remain and must, at some point, be addressed on their merits. Those
issues include such important constitutional questions as whether, as
the Clerk contends, the Initiative is invalid because it discriminates
in favor of those who oppose specified city projects, even if they do
so for self-interested or competitive reasons, whether the Initiative
is unconstitutionally underinclusive with respect to its proscriptions
against those who receive certain public benefits, but impermissibly sweeping
with regard to its allegedly overbroad bans on contributions and employment.
Strong public policy and public interest principles are at stake, issues
which are of great interest to the parties to the litigation and the public
at large. That is not enough. It is wholly inappropriate to resolve those
abstract issues in the absence of evidence regarding the existence of
an actual controversy or the ripening seeds of one. Courts are not free
to render advisory opinions regarding controversies which the parties
fear will arise, but which do not presently exist.
A. The anti-SLAPP Motion.
At issue in this portion of the consolidated appeals is whether the trial
court erred in denying FTCR's anti-SLAPP motion. [FN16] (Code Civ.
Proc., § 425.16 (hereafter section 425.16 or the "anti-SLAPP
statute").) The anti-SLAPP statute reflects the Legislature's
intention to curb meritless "lawsuits brought primarily to chill
the valid exercise of the constitutional rights of freedom of speech and
petition for the redress of grievances." (§ 425.16, subd. (a).)
To address that concern, the statute provides that 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." (§ 425.16, subd. (b)(1).) [FN17]
FN16. "SLAPP" is the acronym for Strategic Lawsuits Against Public
Participation. (Navellier v. Sletten (2002) 29 Cal.4th 82, 85, 124 Cal.Rptr.2d
530, 52 P.3d 703 (Navellier ).)
FN17. Under section 425.16 an "act ... in furtherance" of a person's
right of petition or free speech is defined as: "(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." (§ 425.16, subd. (e).)
The trial court is required to engage in a two-step process to resolve
an anti-SLAPP motion. "First, the court decides whether the defendant
has made a threshold showing that the challenged cause of action is one
arising from protected activity. The moving defendant's burden is
to demonstrate that the act or acts of which the plaintiff complains were
taken 'in furtherance of the [defendant]'s right of petition or
free speech under the United States or California Constitution in connection
with a public issue,' as defined in the statute. (§ 426.16, subd.
(b)(1).)" (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29
Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685 (Equilon ).) Second,
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." (Ibid.) The moving party bears the burden on the first
issue; the responding party on the second. (Shekhter v. Financial Indemnity
Co. (2001) 89 Cal.App.4th 141, 151, 106 Cal.Rptr.2d 843 (Shekhter ).)
"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, supra, 29 Cal.4th at p. 89, 124 Cal.Rptr.2d 530, 52 P.3d 703,
italics omitted.) The trial court's rulings on both issues are reviewed
de novo. (Kajima Engineering & Construction, Inc. v. City of Los Angeles
(2002) 95 Cal.App.4th 921, 928, 116 Cal.Rptr.2d 187.)
1. The acts which led to filing the first amended cross-complaint against
FTCR arose out of FTCR's protected First Amendment activities.
The threshold issue in ruling on an anti-SLAPP motion is whether "the
challenged cause of action is one arising from protected activity."
(Equilon, supra, 29 Cal.4th at p. 67, 124 Cal.Rptr.2d 507, 52 P.3d 685.)
The trial court agreed with Pasadena and ruled that FTCR's motion
foundered on this first prong because Pasadena's cross-action was
not motivated by a desire to punish FTCR or chill the exercise of its
First Amendment rights. Rather, the goal was only to obtain a judicial
determination that the city was not required to perform any of the ministerial
duties necessary to certify the election results required by Government
Code section 34460 because the Initiative was unconstitutional.
The trial court misconstrued the law. In Jarrow Formulas, Inc. v. LaMarche
(2003) 31 Cal.4th 728, 3 Cal.Rptr.3d 636, 74 P.3d 737, the Supreme Court
reiterated the controlling principles: "In Briggs v. Eden Council
for Hope and Opportunity (1999) 19 Cal.4th 1106, 81 Cal.Rptr.2d 471, 969
P.2d 564 ... (Briggs), when first construing the 'arising from'
prong of section 425.16, we held on the basis of the statute's plain
language that a defendant moving specially to strike a cause of action
arising from a statement or writing made in connection with an issue under
consideration in a legally authorized official proceeding need not separately
demonstrate that the statement or writing concerns an issue of public
significance. (Briggs, supra, at p. 1109, 81 Cal.Rptr.2d 471, 969 P.2d
564.) And in a trio of opinions issued [in 2002], we held that the plain
language of the 'arising from' prong encompasses any action based
on protected speech or petitioning activity as defined in the statute
(Navellier, [supra,] 29 Cal.4th [at pp. 89-95, 124 Cal.Rptr.2d 530, 52
P.3d 703]) ... rejecting proposals that we judicially engraft the statute
with requirements that defendants moving thereunder also prove the suit
was intended to chill their speech (Equilon, supra, 29 Cal.4th at p. 58,
124 Cal.Rptr.2d 507, 52 P.3d 685) or actually had that effect (City of
Cotati v. Cashman (2002) 29 Cal.4th 69, 75, 124 Cal.Rptr.2d 519, 52 P.3d
695.... [Cotati ].)" (Jarrow Formulas, Inc. v. LaMarche, supra, 31
Cal.4th at pp. 733-734, 3 Cal.Rptr.3d 636, 74 P.3d 737.) The trial court
mistakenly relied on the absence of evidence that Pasadena meant to chill
FTCR's exercise of its First Amendment rights as the ground for denying
the anti-SLAPP motion.
Regardless of the mistaken rationale for the trial court's ruling,
we must exercise our independent review to determine whether the ruling
was correct. We must determine whether Pasadena's cross-action against
FTCR arose out of FTCR's actions in furtherance of the right of free
speech or petition. (Navellier, supra, 29 Cal.4th at pp. 89-95, 124 Cal.Rptr.2d
530, 52 P.3d 703.) Conceding "[t]here is no easy answer to that question,"
Pasadena asserts that two "acts" led it to file its cross-complaint,
neither of which was intended to advance any person's right of free
speech or petition in connection with a public issue. Those acts were:
"(1) the approval of the initiative by the voters; and (2) the initiative
measure becoming law." We conclude otherwise.
Turning first to the latter point, Pasadena's cross-action against
FTCR could not have arisen from the "Initiative becoming law."
The Initiative did not become law until after the cross-action was filed,
and only after the trial court found no merit in Pasadena's assertion
it had "no duty to take any of the actions set forth in Government
Code section 34460 with respect to the [Initiative]." FTCR is correct.
"[T]he gravamen of [Pasadena's] Cross-Complaint was a request
for a judicial declaration that [Pasadena] had no duty to perform precisely
those acts that were necessary in order for the Oaks Initiative to become
law. The First Amended Cross-Complaint thus tried to prevent the Oaks
Initiative from becoming law; it did not 'arise from' the initiative
measure becoming law."
Second, even if we agreed that the act which led to the filing of the cross-complaint
against FTCR was the voters' approval of the FTCR-sponsored Initiative,
that approval would represent, among other things, a paradigmatic exercise
of FTCR's and the voters' engagement in "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." (§ 425.16, subd. (e)(4); see also subd. (e)(2)
[covered acts include statements made in connection with an issue under
consideration by a legislative body, or other legally authorized proceeding].)
Advocacy for an Initiative and adoption of the measure are, without question,
a fundamental exercise of the First Amendment right to petition. "Courts
have long protected the right to petition as an essential attribute of
governing. The California Constitution declares that 'people have
the right to ... petition government for redress of grievances....'
That right in California is, moreover, vital to a basic process in the
state's constitutional scheme--direct initiation of change by the
citizenry through initiative, referendum, and recall." (Robins v.
Pruneyard Shopping Center (1979) 23 Cal.3d 899, 907, 153 Cal.Rptr. 854,
592 P.2d 341, citations and fn. omitted.)
The allegations of the first amended cross-complaint asserted against FTCR
reveal that Pasadena's cross-action was based on FTCR's intervention
in the pending Amy/Pasadena litigation, an act undertaken by FTCR in furtherance
of its constitutional rights of free speech and petition. After detailing
the background of FTCR's joinder of Amy's effort to compel the
city to perform its post-election duties, Pasadena's cross-complaint alleges:
"An actual controversy has arisen and now exists between cross-complainants
and FTCR with respect to the legal rights and duties of the mayor and
City Clerk. FTCR contends in its Complaint in Intervention that the Mayor
and City Clerk must perform the duties set forth in Government Code section
34460. Cross-complainants dispute that contention and contend that neither
the Mayor nor the City Clerk has any duty to comply with the provisions
of Government Code section 34460, and have not yet complied with those
provisions, because the Initiative to which those provisions would otherwise
apply is unconstitutional and otherwise illegal on its face...."
Similarly, in opposition to the anti-SLAPP motion, Pasadena insisted FTCR
had been sued and was a proper defendant in the cross-action precisely
because FTCR chose to intervene and demand that Pasadena certify the Initiative:
"FTCR is a proper party cross-defendant. Again, FTCR, as the admitted
sponsor of the initiative, voluntarily intervened in this lawsuit and
has joined petitioner's request that the Court order certain actions
which would trigger operation of the initiative. It is remarkable that
FTCR says it cannot be sued as the sponsor of the initiative after it
has filed a complaint as a plaintiff intervenor with respect to the same
These statements indicate Pasadena's cross-action against FTCR "arose
from" FTCR's constitutionally protected act "of filing litigation."
(Briggs, supra, 19 Cal.4th at p. 1115, 81 Cal.Rptr.2d 471, 969 P.2d 564.)
They also indicate the gravamen of Pasadena's cross-action against
FTCR was not the constitutionality of the Initiative, but the dispute
over Pasadena's refusal to comply with section 34460 and its "legal
rights and duties" under that statute. The principal thrust of the
action, and the only matter then "at issue" between FTCR and
Pasadena, was the dispute over Pasadena's duty to perform the ministerial
obligations imposed by section 34460. To the extent relevant, the constitutionality
of the Initiative was an issue only as support for Pasadena's contention
that the unconstitutionality of the Initiative obviated its obligations
under the Government Code. Indeed, both Amy and FTCR correctly asserted--and
the trial court correctly agreed--that the constitutionality of the Initiative
was irrelevant to the Pasadena officials' duty to perform certain
ministerial duties under section 34460. (See Kevelin v. Jordan (1964)
62 Cal.2d 82, 83, 41 Cal.Rptr. 169, 396 P.2d 585 [The state's Constitution
and statutes impose on the Secretary of State the clear ministerial duty
to certify an initiative enacted by the voters, and "[t]hey do not
empower him to refuse to do so with respect to any particular measure
on the ground that the measure is invalid."]; Martinez v. Board of
Supervisors (1972) 23 Cal.App.3d 679, 684, 100 Cal.Rptr. 334 ["It
is well settled that mandamus will not be issued to prevent the official
recordation of the vote of the people under their reserved legislative
power regardless of the apparent unconstitutionality of the measure, if
any."]; International Assn. of Fire Fighters v. City of Oakland (1985)
174 Cal.App.3d 687, 690-691, & fn. 3, 220 Cal.Rptr. 256 [concluding
trial court properly refused to enjoin city from certifying challenged
charter amendment because 'regardless' of how clearly an initiative
measure's unconstitutionality may appear, it would be an intolerable
interference with the people's reserved legislative power to prevent
the official recordation of their vote on such a proposition by the Secretary
"In the anti-SLAPP context, the critical point is whether the plaintiff's
cause of action itself was based on an act in furtherance of the defendant's
right of petition or free speech. [Citations.]" (Cotati, supra, 29
Cal.4th at p. 78, 124 Cal.Rptr.2d 519, 52 P.3d 695; see also Santa Monica
Rent Control Board v. Pearl Street, LLC (2003) 109 Cal.App.4th 1308, 1318,
135 Cal.Rptr.2d 903.) Applying the test to this case, we conclude that
FTCR's acts with which Pasadena takes issue "fall [ ] squarely
within the plain language of the anti-SLAPP statute." (Navellier,
supra, 29 Cal.4th at p. 90, 124 Cal.Rptr.2d 530, 52 P.3d 703.) Pasadena's
pleadings make it clear. FTCR was sued because it had the temerity to
file a complaint-in-intervention to force Pasadena to put the Initiative
into effect, and because it sponsored the Initiative and supported its
constitutionality, all of which are clearly protected activities. Pasadena's
first amended cross-complaint is a SLAPP and was properly subject to a
special motion to strike under section 425.16. The trial court's conclusion
to the contrary was in error.
The inquiry, however, does not end here. Once the moving party demonstrates
the challenged claim arose from protected activity, the burden shifts
to the responding party to show a probability it will prevail on the merits.
(Equilon, supra, 29 Cal.4th at p. 67, 124 Cal.Rptr.2d 507, 52 P.3d 685;
Shekhter, supra, 89 Cal.App.4th at p. 151, 106 Cal.Rptr.2d 843.) Concluding
FTCR's motion foundered on the first prong of the anti-SLAPP test,
the trial court never reached the second question. We must do so and,
for reasons discussed below, conclude Pasadena could not have made such
2. Pasadena did not and could not demonstrate a probability of success.
Notwithstanding the trial court's error with respect to the first prong
of the anti-SLAPP test, Pasadena insists the order denying FTCR's
motion to strike must be affirmed because Pasadena not only demonstrated
a probability of success on the merits of its claim, it actually prevailed.
This assertion, which rests on a mischaracterization of the allegations
of the cross-complaint and history of the case, is incorrect.
First, Pasadena's contention that it "actually prevailed"
on the substance of its cross-complaint against FTCR is incorrect. Pasadena
did ultimately prevail below on the substance of its constitutional claim
on summary judgment, an error we address below. However, the substance
of Pasadena's constitutional claim was not before the trial court
when it ruled on the anti-SLAPP motion. Rather, as Pasadena alleged, the
principal controversy in the cross-action for declaratory relief involved
the parties' disagreement as to whether the city was statutorily required
to perform certain post-election ministerial tasks to effectuate the Initiative.
Specifically, Pasadena alleged:
"An actual controversy has arisen and now exists between cross-complainants
and FTCR with respect to the legal rights and duties of the Mayor and
the City Clerk. FTCR contends in its Complaint in Intervention that the
Mayor and City Clerk must perform the duties set forth in Government Code
section 34460. Cross-complainants dispute that contention and contend
that neither the Mayor nor the City Clerk has any duty to comply with
the provisions of Government Code section 34460, and have not yet complied
with those provisions, because the Initiative to which those provisions
would otherwise apply is unconstitutional and otherwise illegal on its
Pasadena sought a judicial declaration that the Initiative was "unconstitutional
or otherwise illegal and unenforceable" and that it had "no
duty to take any of the actions set forth in Government Code section 34460...."
[FN18] Pasadena could not prevail, and did not prevail, on the merits
of the claim. As the trial court recognized, it is well-established that,
irrespective of the constitutionality of an initiative, public officials
must perform their ministerial statutory duties to certify the results
of an initiative election. (See Kevelin v. Jordan, supra, 62 Cal.2d at
p. 83, 41 Cal.Rptr. 169, 396 P.2d 585["[T]he California Constitution
and [state statutes] impose on the Secretary of State the clear ministerial
duty to file a declaration or statement of the vote on measures submitted
to the people. They do not empower him to refuse to do so ... on the ground
the measure is invalid."]; Martinez v. Board of Supervisors, supra,
23 Cal.App.3d at p. 684, 100 Cal.Rptr. 334; International Assn. of Fire
Fighters v. City of Oakland, supra, 174 Cal.App.3d at pp. 690-691, and
fn. 3, 220 Cal.Rptr. 256.) Thus, while Pasadena certainly hoped to, and
later did, obtain a declaration that the Initiative was unconstitutional,
the court was not required to resolve that question in order to adjudicate
the dispute over the city's duty to comply with section 34460.
FN18. The constitutionality of Initiative was a predicate component of
the ultimate relief sought--a declaration that city had no duty to certify
As to the pivotal matter addressed by FTCR's motion to strike--whether
Pasadena was obligated to certify the Initiative--a long and well-established
line of cases, led by Kevelin, demonstrate that Pasadena could not and
did not prevail. Indeed, the trial court specifically relied on these
authorities in granting Amy's petition for a writ of mandate ordering
Pasadena to comply with section 34460, a ruling with which Pasadena does
not take issue. Pasadena did not prevail on the principal claim raised
in its cross-complaint, and FTCR's anti-SLAPP motion should have been granted.
3. Pasadena could not prevail on the merits because there was no justiciable
controversy at issue at the time the anti-SLAPP motion was heard and ruled upon.
Even if we indulge Pasadena's argument that its constitutional challenge
to the Initiative was independent of the claim related to its duty to
comply with section 34460, we would still conclude that Pasadena had not
shown a probability of success on the merits because the constitutional
claim was not ripe for judicial review.
First, Pasadena's constitutional challenge was premature, in that the
city persisted in its refusal to certify the Initiative. That refusal
prevented the Initiative from taking effect and prevented the court from
addressing an actual, concrete justiciable controversy. Under the rule
of Kevelin v. Jordan and its progeny, respect for the doctrine of separation
of powers and concern for the electorate's constitutionally reserved
initiative power does not permit courts to adjudicate the constitutionality
of a ballot measure after the measure has been adopted by the voters,
but before it has become effective. [FN19] (Kevelin v. Jordan, supra,
62 Cal.2d at p. 83, 41 Cal.Rptr. 169, 396 P.2d 585.)
FN19. In support of its argument that a justiciable controversy existed,
Pasadena incorrectly asserts that the Initiative had been in effect for
over two weeks when anti-SLAPP motion was denied. The motion to strike
was denied at the conclusion of the hearing on May 31, 2002, although
the formal order denying that motion was not signed until June 21, 2002;
the Initiative took effect on June 6, 2002.
Second, Pasadena could not have demonstrated a probability of prevailing
on the substance of its cross-action against FTCR, because that action
was not ripe when the cross-action was filed or when the anti-SLAPP motion
was heard. At that time, Pasadena's constitutional claims involved
only hypothetical concerns because the Initiative had not been applied
to anyone. "In determining whether a controversy is ripe, we use
a two-pronged test: (1) whether the dispute is sufficiently concrete to
make declaratory relief appropriate; and (2) whether the withholding of
judicial consideration will result in a hardship to the parties."
(Farm Sanctuary, Inc., supra, 63 Cal.App.4th at p. 502, 74 Cal.Rptr.2d
75.) Pasadena's insufficiently concrete claim against FTCR foundered
on the first prong of this test. When the cross-action was filed, no one
had complained that enforcement of the Initiative would violate his or
her civil or constitutional rights in any concrete fashion. [FN20]
FN20. Pasadena's reliance on California Water & Telephone Co. and
Farm Sanctuary, Inc., to support its assertion the case was sufficiently
ripe, is misplaced. In contrast to this Initiative, the measures challenged
in those cases were already in effect, and their potential penalties enforceable,
when the litigation was filed. (California Water & Telephone Co.,
supra, 253 Cal.App.2d at pp. 22, 26, 61 Cal.Rptr. 618; Farm Sanctuary,
Inc., supra, 63 Cal.App.4th at pp. 502-504, 74 Cal.Rptr.2d 75.)
Moreover, unlike Farm Sanctuary, Inc., in which the intended beneficiaries
of the law (farm animals) would suffer needlessly without judicial action
and who were incapable of protecting their own interests, the public officials
and their potential campaign contributors who may be affected by this
Initiative, can assert their own legal challenge in court. Moreover, withholding
judicial consideration imposes no hardship on the Pasadena Mayor or City
Clerk who, at the time the cross-complaint was filed and the anti-SLAPP
motion was heard, were not embroiled "in a real controversy ... involving
justiciable questions relating to their own rights and obligations."
(See Wilson, supra, 199 Cal.App.2d at p. 722, 19 Cal.Rptr. 59, original
emphasis; see also Sherwyn, supra, 173 Cal.App.3d at p. 58, 218 Cal.Rptr.
778 ["The controversy must be 'one which admits of definitive
and conclusive relief by judgment within the field of judicial administration,
as distinguished from an advisory opinion upon a particular or hypothetical
state of facts....' "].)
Pasadena's cross-action also fails the second prong of the ripeness
test. The withholding of judicial consideration imposed no hardship on
Pasadena. Because the Initiative had not yet been implemented, no potential
campaign contributor or public official had complained or had been faced
with the dilemma of complying with the measure or risking penalties or
prosecution for failing to do so. Where a legislative measure does not
immediately and adversely impact anyone and its effects cannot be adjudicated
in any concrete factual context, a request for declaratory relief is not
yet ripe. (See Longshoremen's Union v. Boyd (1954) 347 U.S. 222, 224,
74 S.Ct. 447, 98 L.Ed. 650 ["Determination of the scope and constitutionality
of legislation in advance of its immediate adverse effect in the context
of a concrete case involves too remote and abstract an inquiry for the
proper exercise of the judicial function."]; Pacific Legal Foundation,
supra, 33 Cal.3d at pp. 172-173, 188 Cal.Rptr. 104, 655 P.2d 306 [concluding
that case is not sufficiently ripe if " '[plaintiffs] are not
immediately faced with the dilemma of either complying with the guidelines
or risking penalties for violating them' [citation.]"].) Courts
simply may not render advisory opinions on controversies which the parties
fear will arise, but which do not presently exist.
We also reject Pasadena's contention that its cross-claim, which was
nonjusticiable when the cross-action was filed and the anti-SLAPP motion
was heard, ripened after the trial court ruled against it and ordered
Pasadena to certify the Initiative. FTCR is correct. In the context of
an anti-SLAPP motion, "it is especially important to view a motion
to strike under section 425.16 in light of the facts and pleadings as
they exist at the time the motion is filed." The anti-SLAPP statute
established a mechanism which permits nonmeritorious claims arising from
the exercise of First Amendment rights be evaluated and resolved at the
earliest stages of a lawsuit, so that defendants are not forced needlessly
to participate in expensive and protracted litigation. (Lafayette Morehouse,
Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 865, 44 Cal.Rptr.2d
46.) We cannot sanction Pasadena's contention, based entirely on inapposite
and unpersuasive non-California authorities, that it cured its unripe,
nonjusticiable cross-complaint after the trial court ruled on FTCR's
meritorious anti-SLAPP motion. To do so would undermine the purpose of
section 425.16. The underlying statutory purpose is particularly apt here,
where the jurisdictional defect and principal focus of the parties'
dispute--Pasadena's duty to comply with section 34460-- existed only
because Pasadena refused to certify the Initiative. In the final analysis,
we conclude Pasadena's cross-complaint against FTCR was not based
on an actual concrete controversy, but was merely an attempt to obtain
an improper advisory opinion on the constitutionality of the Initiative,
based on a hypothetical controversy which may never arise. [FN21]
FN21. Of the five cities which enacted the Oaks Initiative, only San Francisco
chose not to challenge the measure. According to FTCR, and neither the
record nor our own research has disclosed any evidence to the contrary,
the Initiative has been implemented in San Francisco without incident
or judicial challenge since July 2001.
In the end, we conclude that, because FTCR met its burden of demonstrating
that the action filed against it arose out of its exercise of protected
First Amendment rights, and because Pasadena failed to demonstrate a probability
of success on the merits of its nonjusticiable claim, the anti-SLAPP motion
should have been granted and the motion dismissed. [FN22]
FN22. Our conclusion that the action is not ripe, and therefore not justiciable,
renders it unnecessary for us to address the parties' arguments on
the issue of standing.
B. The Summary Judgment Motion.
1. The perfection of FTCR's appeal from the denial of its anti-SLAPP
motion divested the trial court of jurisdiction to entertain the motion
for summary judgment.
Code of Civil Procedure section 916 (section 916) states: "Except
as provided in [statutes not implicated here], the perfecting of an appeal
stays proceedings in the trial court upon the judgment or order appealed
from or upon the matters embraced therein or affected thereby, including
enforcement of the judgment or order, but the trial court may proceed
upon any other matter embraced in the action and not affected by the judgment
or order." (§ 916, subd. (a).)
"The purpose of the rule depriving the trial court of jurisdiction
during the pending appeal is to protect the appellate court's jurisdiction
by preserving the status quo until the appeal is decided. The rule prevents
the trial court from rendering an appeal futile by altering the appealed
judgment or order by conducting other proceedings that may affect it.
[Citation.]" (Elsea v. Saberi (1992) 4 Cal.App.4th 625, 629, 5 Cal.Rptr.2d
742 (Elsea ); Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1428, 103
Cal.Rptr.2d 174, quoting Elsea.) "Accordingly, whether a matter is
'embraced' in or 'affected' by a judgment within the meaning
of section 916 depends upon whether postjudgment trial court proceedings
on the particular matter would have any impact on the 'effectiveness'
of the appeal. If so, the proceedings are stayed; if not, the proceedings
are permitted." (Elsea, supra, 4 Cal.App.4th at p. 629, 5 Cal.Rptr.2d 742.)
The parties dispute whether the issues raised in Pasadena's motion
for summary judgment were "embraced" or "affected"
by the order denying FTCR's anti-SLAPP motion. FTCR argues that they
were and that the trial court exceeded its jurisdiction by ruling on the
summary judgment motion while its appeal was pending. Pasadena insists
the court retained jurisdiction to entertain the motion because the underlying
merits of its declaratory relief claim were not a matter "embraced
in" or "affected by" the pending appeal. Pasadena is mistaken.
Once the appeal was perfected, further trial court proceedings were automatically stayed.
Pasadena's argument is premised on the fact that the trial court addressed
only the first prong of the anti-SLAPP test in denying FTCR's motion
to strike. That reliance is misplaced. FTCR's section 425.16 motion
sought to strike, as legally insufficient, the entirety of Pasadena's
cross-action. That whole motion was denied, and it is that ruling from
which an appeal was taken.
Pasadena's argument that resolution of the appeal from the denial of
the anti-SLAPP motion is confined to a consideration of the precise grounds
on which the trial court ruled is incorrect as a matter of law. The appeal
was taken from the ruling denying FTCR's special motion to strike.
While the rationale for a ruling may be of interest or even instructive,
it is a fundamental tenet of appellate law that, with limited exceptions
not applicable here, we review the trial court's ruling, not its rationale.
(Rappleyea v. Campbell (1994) 8 Cal.4th 975, 980-981, 35 Cal.Rptr.2d 669,
884 P.2d 126; Aheroni v. Maxwell (1988) 205 Cal.App.3d 284, 292, 252 Cal.Rptr. 369.)
The anti-SLAPP law is designed to expeditiously dispose of meritless lawsuits
based on a defendant's exercise of free speech or petition rights.
(Dixon v. Superior Court (1994) 30 Cal.App.4th 733, 741, 36 Cal.Rptr.2d
687.) In an effort to further this statutory goal, the Legislature amended
section 425.16 in 1999 to make orders granting or denying anti-SLAPP motions
immediately appealable. (§ 425.16, subd. (j).) Prior to that change,
a defendant whose meritorious anti-SLAPP motion was denied had only two
options. "The first is to file a writ of appeal, which is discretionary
and rarely granted. The second is to defend the lawsuit. If the defendant
wins, the anti-SLAPP statute is useless and has failed to protect the
defendant's constitutional rights." (Cal. Sen. Com. on Judiciary,
Rep. on Assem. Bill No. 1675 (1999-2000 Reg. Sess.), p. 6.) The amendment
to section 425.16 reflects the Legislature's express intention to
automatically stay trial court proceedings. A Senate Judiciary Committee
report on A.B. 1675 creating the right of appeal from an anti-SLAPP order,
states: "This bill would provide that an order granting or denying
a special motion to strike shall be immediately appealable, and therefore,
the perfecting of the appeal would stay proceedings in the trial court."
(Sen. Com. On Judiciary, Analysis of Assem. Bill No. 1675 [1999-2000 Reg.
Sess.], as amended May 28, 1999, p. 3, emphasis added; see also Sen. Rules
Com., Off. Of Sen. Floor Analyses, 3d reading analysis of Assem. Bill
No. 1675 [1999-2000 Reg. Sess.], as amended July 12, 1999, p. 3 [relying
on Code Civil Procedure section 916, and explaining that "the perfecting
of the appeal [from an order on an anti-SLAPP motion] would stay proceedings
in the trial court."].) [FN23]
FN23. We take judicial notice of portions of the legislative history of
section 425.16. (See Evid.Code, § § 452, subd. (h), 459, subd.
(a); Schmidt v. Southern Cal. Rapid Transit Dist. (1993) 14 Cal.App.4th
23, 30, 17 Cal.Rptr.2d 340, fn. 10 ["In a search to discern legislative
intent, an appellate court is entitled to take judicial notice of the
various legislative materials, including committee reports, underlying
the enactment of a statute."].)
Our conclusion that the trial court was divested of jurisdiction to consider
the merits of Pasadena's summary judgment motion once FTCR filed its
appeal finds direct support in a recent decision by Division Four, Mattel,
Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179,
121 Cal.Rptr.2d 794 (Mattel ). After an appeal from the denial of an anti-SLAPP
motion was filed in a malicious prosecution action, the trial court set
a trial date notwithstanding the pending appeal. The appellate court held
that an appeal from the denial of a special motion to strike automatically
stays all trial court proceedings on the merits of the underlying action
pending resolution of the appeal. In words equally applicable to this
action, the court explained:
"Here, the language significant within section 916 for purposes of
our discussion is the phrase 'upon the matters embraced therein or
affected thereby.' The special motion to strike was directed to the
only cause of action asserted ... and challenged its legal viability.
That is also the focus on appeal. It follows that the appeal embraces
the entirety of the action and the automatic stay is triggered. Thus,
the trial court was divested of jurisdiction upon perfection of the appeal
and it acted in excess of jurisdiction by setting a trial date."
(Mattel, supra, 99 Cal.App.4th at p. 1190, 121 Cal.Rptr.2d 794.) [FN24]
FN24. The Supreme Court has granted review of the only published decision
to disagree with Mattel on this point. In Varian Medical Systems, Inc.
v. Delfino (2003) 113 Cal.App.4th 273 [6 Cal.Rptr.3d 325] (Varian ), review
granted March 3, 2004, S121400 [10 Cal.Rptr.3d 536, 85 P.3d 444], the
court held the filing of an appeal from the denial of an anti-SLAPP motion
does not automatically stay the entire trial court proceeding. (Id. at
p. 355 and fn. 16.) In granting review, the Supreme Court ordered the
parties in Varian to limit their argument to the issue of whether "an
appeal from the denial of a special motion to strike under the anti-SLAPP
statute (Code Civ. Proc., § 425.16) effect [s] an automatic stay
of the trial court proceedings[.]" (188 Cal.App.2d 395, 10 Cal.Rptr.
536.) Given the legislative purpose underlying a defendant's right
of immediate appeal under section 425.16, subdivision (j), we anticipate
the Supreme Court will conclude Varian was wrongly decided.
Under Mattel and the plain language of section 916, we conclude the trial
court acted in excess of its subject matter jurisdiction by entertaining
and ruling upon Pasadena's motion for summary judgment while FTCR's
appeal from the denial of its anti-SLAPP motion was pending before this
court. "[T]he perfecting of an appeal stays proceedings in the trial
court upon the judgment or order appealed from or upon the matters embraced
therein or affected thereby." (Code Civ. Proc., § 916, subd.
(a).) The issue of the validity of Pasadena's cross-action for declaratory
relief was embraced within the trial court's order denying FTCR's
special motion to strike. That very issue was adjudicated by the trial
court's extrajurisdictional ruling on the summary judgment motion,
which must be reversed. [FN25]
FN25. We find no merit in Pasadena's argument that FTCR should not
be permitted to invoke section 425.16's purpose of quickly eliminating
meritless lawsuits because, at the hearing on its motion, FTCR "urged"
the trial court not to address the second prong of the anti-SLAPP test.
The record reflects otherwise. At the hearing on the anti-SLAPP motion,
the court indicated its intention to rule not just on the first prong,
but to find Pasadena had shown a probability of prevailing on the merits.
The court later "backed off" that portion of its proposed ruling
after FTCR pointed out the court logically could not determine Pasadena
was likely to prevail without first deciding the foundational question
as to whether the case presented a live controversy, an issue on which
the trial court expressly declined to rule.
C. The Motion for "private attorney general" fees.
The final portion of the consolidated appeals involves FTCR's motion
to recover attorneys' fees under the "private attorney general"
statute, Code of Civil Procedure section 1021.5, based on obtaining a
preemptory writ ordering Pasadena to fulfill its ministerial obligations
under Government Code section 34460. The trial court denied the attorneys'
fee motion on the grounds that FTCR's participation in the writ proceeding
had not been "necessary" to its successful outcome, and that
FTCR, as sponsor of the Oaks Initiative, had a "direct interest"
in the enforcement of the measure, which precluded it from obtaining a
fee award. FTCR insists the trial court misconstrued section 1021.5 and
applied an incorrect legal standard. We agree.
1. The Standard of review.
Decisions awarding or denying attorneys' fees are reviewed under an
abuse of discretion standard. The trial court's discretion "
' "is not a whimsical, uncontrolled power, but a legal discretion,
which is subject to the limitations of legal principles governing the
subject of its action, and to reversal on appeal where no reasonable basis
for the action is shown. [Citations.]" ' " (City of Sacramento
v. Drew (1989) 207 Cal.App.3d 1287, 1297, 255 Cal.Rptr. 704 (City of Sacramento
).) The discretion is subject to the limitations of the legal principles
governing the subject of the action. The question is whether the trial
court's grounds for denying a fee award are consistent with substantive
law of section 1021.5 and, if so, whether their application to the facts
falls within the range of discretion conferred under 1021.5, read in light
of the purposes and policy of that statute. To decide this question, we
first determine whether the court understood the appropriate legal standard.
If it did, we then determine whether the application of that standard
to the facts was within the scope of its discretion under the statute.
(Punsly v. Ho (2003) 105 Cal.App.4th 102, 113, 129 Cal.Rptr.2d 89 (Punsly
); see also Crawford v. Board of Education (1988) 200 Cal.App.3d 1397,
1404-1406, 246 Cal.Rptr. 806 (Crawford ) [To determine if discretion is
abused, the appellate court reviews "the entire record, paying particular
attention to the trial court's stated reasons in denying or awarding
fees and whether it applied the proper standards of law in reaching its
decision."] (Citation omitted); Hewlett v. Squaw Valley Ski Corp.
(1997) 54 Cal.App.4th 499, 544, 63 Cal.Rptr.2d 118 (Hewlett ) [same].)
With these principles in mind, we turn to the grounds advanced by the
trial court for its ruling.
2. The Purpose of Code of Civil Procedure section 1021.5
Section 1021.5 codified the judicially developed "private attorney
general" fee doctrine. (Woodland Hills Residents Assn., Inc. v. City
Council (1979) 23 Cal.3d 917, 933, 154 Cal.Rptr. 503, 593 P.2d 200 (Woodland
Hills ).) The primary purpose of the statute is " 'to encourage
suits effectuating a strong [public] policy by awarding substantial attorney's
fees ... to those who successfully bring such suits and thereby bring
about benefits to a broad class of citizens.' [ (D'Amico v. Board
of Medical Examiners (1974) ] (11 Cal.3d 1, 27, 112 Cal.Rptr. 786, 520
P.2d 10.)" (Serrano v. Priest (1977) 20 Cal.3d 25, 43, 141 Cal.Rptr.
315, 569 P.2d 1303.)) The doctrine is premised "upon the recognition
that privately initiated lawsuits are often essential to the effectuation
of the fundamental public policies embodied in constitutional or statutory
provisions, and that, without some mechanism authorizing the award of
attorney fees, private actions to enforce such important public policies
will as a practical matter frequently be infeasible." (Woodland Hills,
supra, 23 Cal.3d at p. 933, 154 Cal.Rptr. 503, 593 P.2d 200.)
Section 1021.5, in relevant part, authorizes the trial court to "award
attorneys' fees to a successful party ... in any action which has
resulted in the enforcement of an important right affecting the public
interest if: (a) a significant benefit, whether pecuniary or nonpecuniary,
has been conferred on the general public or a large class of persons,
[and] (b) the necessity and financial burden of private enforcement, ...
are such as to make the award appropriate." [FN26] Pasadena concedes
FTCR is a "successful party" whose intervention "has 'resulted
in the enforcement of an important right affecting public interest,'
thereby conferring a 'significant benefit' on 'the general
public or a large class of persons.' "
FN26. A third statutory factor, whether "such fees should ... in the
interest of justice be paid out of the recovery, if any," is not
implicated in this declaratory relief action. (§ 1021.5, subd. (c);
Press v. Lucky Stores (1983) 34 Cal.3d 311, 318, fn. 5, 193 Cal.Rptr.
900, 667 P.2d 704.)
The issue is whether the trial court erred as a matter of law by misconstruing
and misapplying the "necessity and financial burden of private enforcement"
prong of section 1021.5, subdivision (b). We conclude it did.
3. The "necessity ... of private enforcement" criterion is met here.
The initial writ of mandate petition seeking to force Pasadena to fulfill
its ministerial obligations under section 34460 and certify the Initiative
was filed by Amy. In both the answer to the petition and the cross-complaint
for declaratory relief filed against Amy, Pasadena admitted it had not
complied, and did not intend to comply, with section 34460 because it
believed "the initiative is unconstitutional." Amy responded
that he was not a proper party to Pasadena's cross-complaint. No actual
controversy existed with respect to the constitutionality of the Initiative,
because Amy had "no legal interest in that issue," and "neither
'agree[d] nor disagree[d]' with [Pasadena's] position on the
legality of the [Initiative]." On the same date Amy filed his reply,
FTCR sought and obtained leave to intervene on the ground that Pasadena's
arguments in opposition to Amy's writ petition "raise[d] issues
of fundamental importance to the integrity of democratic process,"
and posed a grave threat to the initiative process as a whole. FTCR filed
its complaint-in-intervention and joined Amy's writ petition.
FTCR's arguments in support of the writ petition went further than
Amy's. Amy, who freely admitted "no legal interest in determining
the constitutionality of the [Initiative]," argued essentially that
Pasadena was not free to effectively "veto" the Initiative by
refusing to perform its admitted ministerial duties under section 34460,
simply because it was "disappointed with the results of an election."
FTCR went much further. In addition to supporting Amy's contentions,
FTCR presented arguments and authorities which directly refuted Pasadena's
purported "defense," on which the trial court expressly relied
in granting the writ of mandate. Nevertheless, when ruling on FTCR's
motion for private attorney general fees, the court denied the motion
on the ground that it "probably would have granted" the writ
petition anyway. In making its finding, the court essentially adopted
Pasadena's assertion that FTCR was not entitled to fees because it
had not made a "unique contribution" to Amy's pending litigation.
The essence of the trial court's ruling was that FTCR's intervention
was "not of a significant level," because Amy had already raised
the issue of Pasadena's duty to certify the Initiative irrespective
of its views as to its validity, a contention with which the court "probably"
would have agreed in granting the writ. The practical effect of the ruling
required FTCR to show that the court would have denied the requested relief
"but for" its intervention in order to recover attorneys'
fees. We cannot sanction such a rule.
The trial court misinterpreted and misapplied the portion of section 1021.5
which requires a finding that the "necessity of private enforcement
... are such as to make the award appropriate." (§ 1021.5, subd.
(b).) In the first place, the "necessity of private enforcement"
prong of the section 1021.5 test " 'looks to the adequacy of
public enforcement and seeks economic equalization of representation in
cases where private enforcement is necessary.' " (City of Sacramento,
supra, 207 Cal.App.3d at p. 1299, 255 Cal.Rptr. 704, original emphasis;
accord Harbor v. Deukmejian (1987) 43 Cal.3d 1078, 1103, 240 Cal.Rptr.
569, 742 P.2d 1290 ["It is obvious that private enforcement to give
effect to [a Bill amending the Welfare and Institutions Code] was necessary
since the director of the department refused to promulgate regulations
to implement the section."]; Hewlett, supra, 54 Cal.App.4th at pp.
544-545, 63 Cal.Rptr.2d 118; Committee to Defend Reproductive Rights v.
A Free Pregnancy Center (1991) 229 Cal.App.3d 633, 639, 280 Cal.Rptr.
329 (Committee to Defend ).) Where, as here, a lawsuit is brought against
the very governmental entity and officials who refuse to comply with their
admitted statutory responsibilities, the "necessity of private enforcement"
portion of the test is readily met. (Woodland Hills, supra, 23 Cal.3d
at p. 941, 154 Cal.Rptr. 503, 593 P.2d 200; see also Committee to Defend,
supra, 229 Cal.App.3d at p. 639, 280 Cal.Rptr. 329 ["Where a private
suit is brought against a governmental agency or official, the necessity
of private enforcement is often obvious. A governmental agency cannot
be expected to bring suit against itself. In such situations, private
citizens must ' "guard the guardians." ' "].) Thus,
under the "necessity" prong of section 1021.5, the court looks
only to the whether there is a need for a private attorney general for
enforcement purposes, because no public attorney general is available.
In this case, in which Amy and FTCR joined forces to "guard the guardians,"
Pasadena insists that, in determining whether an attorneys' fees award
is warranted or by whom, the "necessity" portion of the test
not only looks to the availability of public enforcement, but weighs the
relative contributions of each private guardian. This assertion, for which
independent research yields no support, is also unsupported by the authorities
on which Pasadena relies.
In Hewlett, the court upheld an award of fees under section 1021.5 to two
private plaintiffs, Hewlett and the Sierra Club, who were joined by a
district attorney in an action against Squaw Valley Ski Corporation for
unlawfully cutting down trees to develop a new ski run. Plaintiffs prevailed
and the trial court awarded $480,000 in attorneys' fees to Hewlett,
and $192,000 to the Sierra Club. (Hewlett, supra, 54 Cal.App.4th at pp.
516-518, 63 Cal.Rptr.2d 118.) The dispute on appeal centered "on
the question of whether private enforcement was necessary." (Id.
at p. 544, 63 Cal.Rptr.2d 118.) The court found private enforcement was
necessary and affirmed the award, based on its agreement with the trial
court that the scope and prosecution of the action was beyond the capabilities
of the district attorney's office. Hewlett's attorney undertook
primary responsibility for the prosecution, and the Sierra Club's
counsel provided expertise on the historical and factual background of
the action as well as land use and forestry issues. (Id. at pp. 545-546,
63 Cal.Rptr.2d 118.) The court found the action was not " 'opportunistic
or collusive' " or " 'undertaken simply to generate
such attorney fees[,]' " and agreed with the trial court that
"the involvement of [both private plaintiffs] was necessary to the
successful prosecution of th[e] case." (Id. at pp. 545-546, fn. 31,
63 Cal.Rptr.2d 118, citation omitted.)
Contrary to Pasadena's supposition that Hewlett "suggest[s] that
it is appropriate to analyze the relative contributions made by private
parties, even in cases where public enforcement is insufficient,"
there is no indication the court in Hewlett did or considered doing so
in determining fee entitlements. On the contrary, consistent with the
test articulated above, the court noted that the "necessity of private
enforcement" factor looks only to the adequacy of public enforcement
in light of public enforcement efforts, and it did not weigh the relative
contributions of the private parties in affirming their fee awards. In
addition, Hewlett did not employ the "but for" test to which
the trial court in this case subscribed. Rather, it relied on the proper
standard, outlined in Committee to Defend Reproductive Rights, which holds
that an attorneys' fee award is appropriate unless the private party
litigating with a public agency performs only "duplicative, unnecessary,
and valueless services," or unless the private action was "
'opportunistic or collusive and undertaken simply to generate such
attorney fees.' [citation.]" (Hewlett, supra, 54 Cal.App.4th
at p. 545, and fn. 31, 63 Cal.Rptr.2d 118.)
The second case on which Pasadena relies, Crawford, supra, 200 Cal.App.3d
1397, 246 Cal.Rptr. 806, provides even less support for its assertion
that the trial court is free to weigh the relative contributions of private
parties in determining whether to award private attorney general fees
at all. Crawford involved the remedial phase of almost 20 years of school
desegregation litigation against the Los Angeles Unified School District.
Five private intervenors sought attorneys' fees under section 1021.5.
Their requests were denied, and the court of appeal affirmed that ruling.
(Id. at pp. 1404, 1410, 246 Cal.Rptr. 806.)
Using a selective quote from Crawford, Pasadena suggests the court's
decision was based on its conclusion that the intervenors failed to satisfy
the "necessity of private enforcement" criterion in light of
the contributions made by other private parties. That is incorrect. The
court in Crawford affirmed the denial of the intervenors' attorneys'
fee motions because no causal connection was shown between their efforts
and the outcome of the litigation. Although the intervenors made significant
contributions at the trial level, they failed to satisfy a threshold criterion
for a fee award under section 1021.5, and "were not prevailing parties
within the meaning of section 1021.5" with respect to the remedial
phase of the litigation. (Crawford, supra, 200 Cal.App.3d at pp. 1406,
1410, 246 Cal.Rptr. 806.) Rather, the practical result of the litigation--the
desegregation plan ultimately adopted by the school district--was achieved
as a result of the passage of a ballot proposition, not through the intervenors'
efforts. (Id. at p. 1408, 246 Cal.Rptr. 806.)
Moreover, we disagree with Pasadena's assertion that the policies underlying
section 1021.5 support a trial court's ability to weigh the contributions
of multiple private attorneys general in determining whether each is entitled
to attorneys' fees. On the contrary, the policies underlying the intervention
and private attorney general statutes support the opposite conclusion.
A party who satisfies the criteria for intervention and who contributes
to the success of public interest litigation should be entitled to an
award of attorneys' fees on the same terms as any other party.
Two basic principles drive this rule. First, when a party qualifies and
enters an action as an intervenor, it is vested "with all of the
same procedural rights and remedies of the original parties" (Catello
v. I.T.T. General Controls (1984) 152 Cal.App.3d 1009, 1013-14, 200 Cal.Rptr.
4), including the right to seek attorneys' fees under section 1021.5
in a public interest lawsuit on equal terms with the original parties.
(Crawford, supra, 200 Cal.App.3d at p. 1405, 246 Cal.Rptr. 806.) Second,
the policy underlying section 1021.5 encourages a party without substantial
resources to prosecute actions to vindicate important public constitutional
and statutory rights, knowing that if it prevails it will receive financial
compensation for its substantial efforts in that endeavor.
By denying attorneys' fees to FTCR because it "probably"
would have granted Amy's writ petition anyway, the trial court's
ruling undermines both of these policies. The rationale articulated for
the ruling would effectively require prospective public interest intervenors
to refrain from intervening and to speculate whether the plaintiff and/or
the trial court will succeed in protecting their interests and vindicating
important public policies implicated in a case, based solely on the pleadings
filed by the original plaintiff in his nascent action. Based on those
pleadings, if it believes the plaintiff will prevail without its assistance,
the prospective intervenor dare not intervene. That conclusion is so because,
if it does intervene, and the court agrees with its assessment, the intervenor
will incur substantial litigation expenses and fees without any chance
of reimbursement under section 1021.5. On the other hand, if the prospective
intervenor guesses incorrectly, and the plaintiff loses the action without
the intervenor's participation, neither the intervenor's nor the
public's interests will have been protected.
Taken together, the policies underlying both the intervention and private
attorney general statutes are designed to encourage interested parties
who might otherwise lack the resources to aggressively pursue meritorious
public interest litigation. The policies are inconsistent with the ruling
made by the trial court, which conditions an intervenor's entitlement
to private attorney general fees on an after-the-fact assessment of whether
the intervenor's participation was "necessary" to the successful
result achieved. (Cf., Seattle School Dist. No. 1 v. State of Wash. (9th
Cir.1980) 633 F.2d 1338, 1349-1350 ["It is usually impossible to
determine in advance of trial which issues will be reached or which parties
will play pivotal roles in the course of the litigation. To retrospectively
deny attorney's fees because an issue is not considered or because
a party's participation proves unnecessary would have the effect of
discouraging the intervention of what in future cases may be essential
parties ... Because an award of attorney's fees in this case is essential
to effectuate the congressional purpose of encouraging future constitutional
litigation in similar circumstances, we conclude that the District Court
abused its discretion in denying intervenors' attorney's fees."].)
We do not hold that a trial court may not consider the relative contributions
of multiple private attorneys general when it exercises its discretion
to determine the proper amount of an attorneys' fee award. On the
contrary, to the extent both the original plaintiff and the intervenor
seek to recover fees for time spent that was superfluous to the results
achieved by the litigation, or duplicative of one another's efforts,
those factors may properly be used to reduce, or perhaps deny altogether,
a particular fee request. (See e.g., Crawford, supra, 200 Cal.App.3d at
p. 1407, 246 Cal.Rptr. 806 [intervenors who "contribute[ ] little
or nothing of substance in producing the outcome" may be denied fees];
Committee to Defend, supra, 229 Cal.App.3d at p. 643, 280 Cal.Rptr. 329
[no fees should be awarded to private party that performed "duplicative,
unnecessary, and valueless services."].)
In this case, the trial court committed legal error and misinterpreted
section 1021.5 by requiring FTCR to show the requested writ relief would
not have issued "but for" its participation in the litigation.
To be entitled to an attorneys' fees award under section 1021. 5,
FTCR needed only to show it was a "successful party" in an action
that " resulted in the enforcement of an important right affecting
the public interest." Because Pasadena concedes FTCR has satisfied
both points, the trial court on remand will be required to exercise its
discretion to determine the amount of fees to which FTCR is entitled.
4. FTCR also satisfied the "financial burden" prong of Code of
Civil Procedure section 1021.5, subdivision (b).
The final basis for the trial court's denial of FTCR's attorneys'
fee request was its conclusion that FTCR also failed to satisfy the "necessity"
prong of section 1021.5, because its substantial personal interest in
the outcome outweighed the burdens suffered in litigating the matter.
This rationale also was erroneous.
A litigant is entitled to an attorneys' fee award under the "necessity"
prong when " 'the cost of the claimant's legal victory transcends
[the litigant's] personal interest, that is, when the necessity for
pursuing the lawsuit placed a burden in the [claimant] "out of proportion
to his individual stake in the matter." [Citation.]' " (Woodland
Hills, supra, 23 Cal.3d at p. 941, 154 Cal.Rptr. 503, 593 P.2d 200.)
Pasadena readily acknowledges that FTCR would have been eligible for attorney's
fees under section 1021.5 had it initiated litigation to compel the city
to comply with Government Code section 34460, rather than intervene in
Amy's lawsuit. In its own words, "[Pasadena] admit[ted] at the
outset that if intervenors had themselves filed the writ action to compel
compliance with Government Code section 34460, there would [have been]
little dispute that Intervenors' objective went beyond their own interests
to serve the broader public good."
We discern no principled reason for concluding, as did the trial court,
that FTCR's stake in a public interest action directed at vindicating
the interests of Pasadena voters in implementing the Initiative they approved
became purely personal, and therefore sufficient to disqualify it from
obtaining attorney's fees, simply because it joined Amy's action
rather than filing its own. As the sponsor and proponent of the embattled
Initiative, the intervenors--FTCR and Monsour--had a " 'personal
interest' in the litigation in the broad sense that they were emotionally
and intellectually connected to the litigation in ways that the general
public was not. But it [was] ridiculous to disqualify them from a fee
award because of their 'interest.' If anyone should have gotten
fees under section 1021.5, they should have...." (Hammond v. Agran
(2002) 99 Cal.App.4th 115, 125-126, 120 Cal.Rptr.2d 646.) For purposes
of determining a public interest litigant's entitlement to private
attorney general fees, the question is whether "the cost of litigation
[was] out of proportion to the individual litigant's stake in the
litigation?" (Punsly, supra, 105 Cal.App.4th at p. 117, 129 Cal.Rptr.2d
89; Woodland Hills, supra, 23 Cal.3d at p. 941, 154 Cal.Rptr. 503, 593
P.2d 200.) The financial burdens on FTCR of litigating this matter unquestionably
outweighed the organization's ideological interest in implementing
the voters' will. Numerous cases have concluded that ballot measure
proponents, with no financial or personal interests at stake, qualified
for section 1021.5 fee awards in actions brought to enforce those measures
or qualify them for the ballot. (See Press, supra, 34 Cal.3d at p. 321,
193 Cal.Rptr. 900, 667 P.2d 704; Citizens Against Rent Control v. City
of Berkeley (1986) 181 Cal.App.3d 213, 228-232, 226 Cal.Rptr. 265; Washburn
v. City of Berkeley (1987) 195 Cal.App.3d 578, 584-586, 240 Cal.Rptr.
784.) For purposes of determining FTCR's entitlement to private attorney
general fees, no principled reason exists to treat this case any differently,
simply due to the timing of FTCR's intervention. To the extent the
trial court finds, as a factual matter, that FTCR's efforts in obtaining
the writ of mandate duplicated those of Amy, that factor is properly considered
in determining the amount of attorneys' fees, rather than the entitlement
to fees. [FN27]
FN27. We will not address Pasadena's contention that the trial court's
order denying fees to FTCR may be upheld because FTCR's "reputational
interest" in ensuring the implementation of the Initiative in Pasadena,
which would assist its future ability to promote and obtain passage of
the Initiative in other cities, outweighed the financial burdens involved
in joining this action. This argument was not raised or ruled on below,
and the record contains no evidence that would support the city's
factual contention. (See e.g., Families Unafraid to Uphold Rural El Dorado
County v. Board of Supervisors (2000) 79 Cal.App.4th 505, 516, 94 Cal.Rptr.2d
205, original emphasis [a party's non-pecuniary interest is insufficient
to block an attorney's fees award under the financial burden criterion
unless it is "specific, concrete and significant, and these attributes
must be based on objective evidence."].)
The matter must be remanded to the trial court to review FTCR's motion
for attorneys' fees under section 1021.5 using the appropriate legal
principles, and to properly exercise its discretion with respect to the
application of the principles to the facts.
The order dismissing the Santa Monica action is affirmed. In the Pasadena
action, the orders denying the anti-SLAPP motion, and granting the motion
for summary judgment are reversed. The order denying Monsour and FTCR's
motion for attorneys' fees under Code of Civil Procedure section 1021.5
is also reversed, and matter remanded for reconsideration under the principles
outlined above. In the Pasadena action, FTCR is to recover its attorneys'
fees and costs on appeal. FTCR is to recover its costs on appeal in the
Santa Monica Action.
We concur: COOPER, P.J., and FLIER, J.