City of Los Angeles v. Animal Defense League et al.Cite as: ___ Cal.App.4th ___, __ Cal.Rptr.3d ___ |
CITY OF LOS ANGELES, Plaintiff and Respondent
v.
ANIMAL DEFENSE LEAGUE et al., Defendants and Appellants
California Court of Appeal, Second District, Div. 7
No. B177908
Jan. 9, 2006
(Appeal from Superior Court of the Los Angeles County, George H. Wu, Judge.)
COUNSEL:
Law Offices of John J. Uribe and John J. Uribe for Defendants and Appellants.
Rockard J. Delgadillo, City Attorney, Zna Houston, Managing Assistant City Attorney, and Vivienne Swanigan, Deputy City Attorney, for Plaintiff and Respondent.
PERLUSS, P.J.
The City of Los Angeles on behalf of two of its employees, Sharon Morris, then interim general manager of the City's animal services department, and David Diliberto, director of field operations for the department, filed three petitions under Code of Civil Procedure section 527.8 [FN 1] seeking workplace violence protective orders against animal rights activist Pamelyn Ferdin Vlasak (Ferdin) [FN 2] and the Animal Defense League - Los Angeles (ADL-LA) following a raucous nighttime protest at Diliberto's home. The trial court granted temporary restraining orders against Ferdin and ADL-LA in the two actions initiated on behalf of Diliberto, denied without prejudice a temporary restraining order in the action on behalf of Morris against ADL-LA and set all three matters for a hearing with respect to the City's request for permanent injunctive relief. In response Ferdin and ADL-LA filed special motions to strike the actions under section 425.16, the anti-SLAPP statute. [FN 3]
[FN 2] Ferdin states her correct name is Pamelyn Ferdin and she was erroneously sued as Pamelyn Ferdin Vlasak. We refer to her as Ferdin throughout this opinion.
[FN 3] SLAPP is an acronym for "strategic lawsuit against public participation." (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
The trial court denied the special motions to strike, holding the City's workplace violence petitions fall within section 425.16, subdivision (d)'s exception for an "enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor" and thus are exempt from scrutiny under section 425.16. Ferdin and ADL-LA appeal from the trial court's orders, contending the petitions are not enforcement actions within the meaning of section 425.16, subdivision (d), and therefore are subject to a special motion to strike; the City's petitions for injunctive relief arise from acts in furtherance of their right of petition or free speech under the United States and California Constitutions in connection with a public issue; and the City has failed to demonstrate a probability it will prevail on its claims under section 527.8. We agree with Ferdin and ADL-LA on all three points and reverse the trial court's orders.
FACTUAL AND PROCEDURAL BACKGROUND
1. The Protest at David Diliberto's Home
Shortly before 10 p.m. on June 12, 2004, approximately 10 protestors, including Ferdin and her husband Dr. Jerry Vlasak, also a member of ADL-LA, participated in a noisy demonstration at Diliberto's home protesting what they believed to be the inhumane treatment and killing of animals by the City of Los Angeles at its six animal shelters. Some of the demonstrators reportedly wore masks and others hooded sweatshirts with the hoods pulled tightly around their faces. According to Diliberto, Ferdin was yelling into a bullhorn from his front porch, knocking on the front door and banging both the door knocker and the lid on the mail slot on the front door. A flyer from ADL-LA criticizing the City's animal services department and its personnel was put through Diliberto's mail slot. When Diliberto demanded the protestors leave, the screaming and banging grew louder. The police were called, but the demonstration ended and the protestors left before the police arrived at the scene.
A news release apparently from ADL-LA and posted on its website described the protest on June 12, 2004 as the first in a series of "mobile demo's" and reported the demonstrators had gone to the homes of Morris and then-mayor James Hahn prior to their arrival at Diliberto's home.
2. The City's Workplace Violence Petitions
On June 17, 2004 the City filed three substantially identical petitions pursuant to section 527.8 seeking workplace violence protective orders on behalf of Diliberto against Ferdin and ADL-LA and on behalf of Morris only against ADL-LA. In addition to the petitions themselves, filed on the mandatory form adopted by the Judicial Council of California, [FN 4] the City filed declarations from Morris and Diliberto with attached exhibits in support of its requests for temporary restraining orders against Ferdin (in a petition filed on behalf of Diliberto) and against ADL-LA (in separate petitions filed on behalf of Diliberto and Morris).
The petitions alleged in identical language Ferdin and ADL-LA had made a credible threat of violence against Morris and Diliberto that can reasonably be construed to be carried out or to have been carried out at the employees' workplace at 419 South Spring Street, Los Angeles. The petitions described the protest at Diliberto's home, which it asserted violated applicable trespass laws and caused fear to Diliberto and his family. The petitions further alleged, "Defendant plans to continue to attack employee's home, leading persons wearing masks and hooded clothin[g] to employee's home on a continuous basis."
The petitions and the attached declarations and exhibits also asserted the ADL-LA, described as a "militant animal rights activist group" headed by Ferdin, has a web site on which "high powered bullets are aimed at 'Target-Administration,' which leads to employee's name and home address and a page with employee's name with bullet holes depicted." Diliberto's declaration states the website has his picture, home information and a page of allegations regarding his job performance. Print-outs purporting to be from the website are attached to the declaration. Diliberto also declared, "I am afraid for my life and safety and I am especially afraid for the lives and safety of my wife and four children, who were badly frightened by the events of June 12, 2004." Morris's declaration also describes the ADL-LA website and news-letter-flyers and concludes by stating, based on ADL-LA's activities "and the fact that they have targeted me and my home, described themselves as militant, and posted my home address and telephone numbers on their web site with violent images, I am afraid for my safety and the safety of my family."
Upon reviewing the petitions and supporting declarations and exhibits, the trial court issued orders to show cause for August 20, 2004 with respect to all three petitions and temporary restraining orders against ADL-LA and Ferdin with respect to the two petitions filed by Diliberto. [FN 5] In addition to issuing in modified form many of the standard restraining orders preprinted on Judicial Council Form WV-120, the court specifically directed ADL-LA and Ferdin to remove Diliberto's home address and telephone number from their websites and ordered them not to post his home address or telephone number on the Internet.
3. Ferdin and ADL-LA's Special Motions to Strike and the City's Opposition
In response to the City's petitions Ferdin and ADL-LA filed special motions to strike the actions under section 425.16, the anti-SLAPP statute, which they set for hearing on August 20, 2004, the same date as the hearing on the orders to show cause. (Ferdin and ADL-LA apparently also filed demurrers to the petitions.) In a supporting declaration Ferdin identified herself as an officer and co-founder of ADL-LA, which she described as "an above-ground 'grass roots' organization which, through its leadership, members, as well as the public, via the Internet, protests, picketing, speeches, interviews, leaflets, and the like, advocate for the humane treatment of animals ... which it deems is a public issue and matter of public interest."
In her declaration Ferdin asserted the June 12, 2004 protest at Diliberto's house lasted less than 10 minutes, occurred only on public property or property open to the public, was peaceful and "did not result in any violence, arrests, or otherwise require law enforcement to maintain the peace." Ferdin testified she and Vlasak were the only two ADL-LA members present during the demonstrartion. With respect to the ADL-LA website (animaldefenseleague.com), Ferdin stated ADL-LA hosted the site as a public forum and insisted it contained opinions and statements from anyone who desired to express his or her views about the humane treatment of animals.
The City filed oppositions to Ferdin and ADL-LA's special motions to strike arguing section 425.16 does not apply to section 527.8 petitions for workplace violence restraining orders on the grounds that violence or the advocacy of violence is not a protected First Amendment activity. The City also argued that, even if the petitions do arise from acts in furtherance of Ferdin and ADL-LA's right of petition or free speech in connection with a public issue, the special motions to strike were properly denied because the declarations filed in support of the City's request for temporary restraining orders demonstrated a probability it will prevail on its claims under section 527.8.
On August 19, 2004 the trial court permitted Ferdin and ADL-LA to file a supplemental brief addressing whether section 425.16, subdivision (d), excepted the City's workplace violence petitions as governmental enforcement actions under City of Long Beach v. California Citizens for Neighborhood Empowerment (2003) 111 Cal.App.4th 302 (Citizens for Neighborhood Empowerment ) and People v. Health Laboratories of North America, Inc. (2001) 87 Cal.App.4th 442 (Health Laboratories ).
4. The Trial Court's Ruling
On August 20, 2004 the trial court denied the special motions to strike, holding that under section 425.16, subdivision (d), as interpreted by Citizens for Neighborhood Empowerment, supra, 111 Cal.App.4th 302, and Health Laboratories, supra, 87 Cal.App.4th 442, the City's workplace violence petitions were exempted from the provisions of the anti-SLAPP statute. The court also indicated that, if it had reached the issues, it would have held Ferdin and ADL-LA's activities were in furtherance of their right to petition and free speech in connection with a public issue within the meaning of section 425.16 but their motions would nonetheless have been denied because the City had demonstrated a probability of prevailing on the merits.
Ferdin and ADL-LA immediately filed notices of appeal, staying further proceedings in the trial court. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180.) [FN 6] We consolidated the three appeals on March 1, 2005.
CONTENTIONS
Ferdin and ADL-LA contend the City's workplace violence petitions are not civil enforcement actions within the meaning of section 425.16, subdivision (d), and are therefore subject to a special motion to strike; the City's petitions arise from acts by Ferdin and ADL-LA in furtherance of their right of petition or free speech under the United States and California Constitutions in connection with a public issue; and the City has failed to demonstrate a probability it will prevail on its claims under section 527.8 as to ADL-LA because injunctive relief under that section is available only against natural persons, not corporate entities, and as to both Ferdin and ADL-LA because the City failed to introduce evidence of any unlawful violence or credible threat of violence against either Diliberto or Morris that can reasonably be construed to be carried out or to have been carried out at the workplace.
DISCUSSION
1. Section 527.8 Workplace Violence Petitions
Section 527.6 authorizes a "person" who has been harassed to obtain an injunction under specified circumstances prohibiting any further harassment. [FN 7] In Diamond View Limited v. Herz (1986) 180 Cal.App.3d 612 the Court of Appeal held the term "person" as used in section 527.6 to specify who may petition for injunctive relief against civil harassment was limited to a "natural person" and did not include a business entity, even if that entity was the employer of the victim of the harassment.
In response to the ruling in Diamond View Limited v. Herz, supra, 180 Cal.App.3d 612, section 527.8, with provisions for temporary restraining orders and injunctive relief substantially similar to those in section 527.6, was enacted in 1994 authorizing an employer, specifically including a corporate or government employer, [FN 8] to seek restraining orders on behalf of its employees to prevent threats or acts of violence in the workplace by another employee or a third person. (Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 333-334 (Scripps Health ) ["Section 527.8 was thus intended to enable employers to seek the same remedy for its employees as section 527.6 provides for natural persons."]; see Sen. Com. on Judiciary, Analysis of Assem. Bill No. 68 (1993-1994 First Ex.Sess.) as amended June 30, 1994 ["This bill enacts parallel provisions to Section 527.6, to allow an employer to pursue a TRO and an injunction. The bill limits the acts that may be sought to be enjoined by an employer to unlawful violence or a credible threat of violence. (An individual could still pursue an injunction for harassment under Section 527.6)"].)
To obtain injunctive relief under section 527.8 an employer must prove its employee has suffered unlawful violence or a credible threat of violence from an individual that can reasonably be construed to have occurred in the workplace. (§ 527.8, subds.(a), (e).) In addition, the employer must demonstrate by clear and convincing evidence that it is reasonably likely such unlawful violence may occur in the future absent a restraining order. (§ 527.8, subd. (f); Scripps Health, supra, 72 Cal.App.4th at p. 335 & fn. 9 ["[T]o obtain a permanent injunction under section 527.8, subdivision (f), a plaintiff must establish by clear and convincing evidence not only that a defendant engaged in unlawful violence or made credible threats of violence, but also that great or irreparable harm would result to an employee if a prohibitory injunction were not issued due to the reasonable probability unlawful violence will occur in the future." "[T]he requirement of establishing the reasonable probability wrongful acts, or simply unlawful violence, will occur in the future guarantees that injunctive relief will be issued to prevent future harm instead of punishing past completed acts."].)
2. Section 425.16: The Anti-SLAPP Statute
Section 425.16 provides, "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).) [FN 9] In ruling on a defendant's motion under section 425.16, the trial court engages in a two-step process. "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. 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. (§ 425.16, subd. (b)(1).) [ [FN10]] 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. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' " (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon Enterprises ).) [FN 11] " 'The defendant has the burden on the first issue, the threshold issue; the plaintiff has the burden on the second issue. [Citation.]' [Citation.]" (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928 (Kajima).)
[FN 10] " 'In terms of the so-called threshold issue, the moving defendant's burden is to show the challenged cause of action "arises" from protected activity. [Citations.]' " (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928.) "[T]he statutory phrase 'cause of action ... arising from' means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] 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.] 'A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause [of action] fits one of the categories spelled out in section 425.16, subdivision (e)....' [Citations.]" (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.)
[FN 11] Once the defendant establishes the anti-SLAPP statute applies, the burden shifts to the plaintiff to demonstrate a "probability" of prevailing on the claim. (Equilon Enterprises, supra, 29 Cal .4th at p. 67.)
"[T]he plaintiff 'must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.' [Citations.] In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempt to establish evidentiary support for the claim." (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)
We review de novo the trial court's rulings on an anti-SLAPP motion (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 645; Kajima, supra, 95 Cal.App.4th at p. 929), including the question whether section 425.16 applies to the challenged claim. (Thomas, at p. 645; Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907.)
3. Section 527.8 Workplace Violence Petitions Are Subject to Special Motions to Strike under Section 425.16
A petition for injunctive relief against civil harassment pursuant to section 527.6 is subject to a special motion to strike under the anti-SLAPP statute. (Thomas v. Quintero, supra, 126 Cal.App.4th at p. 652 ["petitions brought pursuant to section 527.6 are subject to attack by a special motion to strike under section 425.16"].) "[F]acially the anti-SLAPP statute applies to 'petitions' and no exception is made for one filed under the civil harassment statute...." (Id. at p. 646.) "We are fully cognizant that the civil harassment statute establishes a special procedure specifically designed to provide for expedited injunctive relief to persons who have suffered civil harassment.... [¶] Because of the significant social and community value the civil harassment statute provides, like the trial court, we are wary of the potential for conflict between the anti-SLAPP statute and the civil harassment remedy. However, we cannot ignore the relatively straightforward textual solution to the issue of section 527.6's interpretation raised on appeal. Fortunately, we also do not share the concerns expressed that allowing a petition for civil harassment to be attacked by a special motion to strike will interfere with the civil harassment statutory scheme, nor do we view it as being likely to inhibit the invocation of that procedure." (Id. at pp. 648- 649.)
Given the substantial similarity (other than the identity of the petitioning party) between petitions for civil harassment restraining orders under section 527.6 and petitions for workplace violence restraining orders under section 527.8, the reasoning of Thomas v. Quintero, supra, 126 Cal.App.4th 635 applies equally to both statutes. Thus workplace violence petitions in general, like civil harassment petitions, are subject to motions to strike under section 425.16. (Id. at p. 651.)
Without disputing the general applicability of section 425.16 to workplace violence petitions, however, and relying in particular on this court's decision in California Citizens for Neighborhood Empowerment, supra, 111 Cal.App.4th 302, the City asserts the petitions it filed on behalf of its employees fall within section 425.16, subdivision (d)'s exception for an "enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor" and thus are exempt from scrutiny under section 425.16. The City argues the petitions constitute civil enforcement actions because the conduct of Ferdin and ADL-LA it sought to enjoin violates both section 527.8 and Penal Code section 71, which makes it a crime to threaten a public officer with the intent to cause that individual to do or refrain from doing any act in the performance of his or her duties. The City's position, adopted by the trial court in its order denying the special motions to strike, directly conflicts with the express language of section 425.16, subdivision (d), and represents an unwarranted extension of the holding and rationale of our opinion in California Citizens for Neighborhood Empowerment.
The City is correct section 425.16, subdivision (d), applies not only to criminal prosecutions but also broadly to civil enforcement actions filed by one of the designated "public prosecutors" seeking injunctions, restitution or civil penalties (but not damages). (Health Laboratories, supra, 87 Cal.App.4th at p. 450; California Citizens for Neighborhood Empowerment, supra, 111 Cal.App.4th at p. 307.) In addition, although the express language of the statute limits the exemption to enforcement actions "brought in the name of the People of the State of California," an otherwise exempted enforcement action brought in the name of a city or county itself, rather than "the People" is not necessarily outside the ambit of the section 425.16, subdivision (d), exception to scrutiny under the anti-SLAPP law. (California Citizens for Neighborhood Empowerment, at pp. 307-308.) "[A]n examination of the legislative history of section 425.16 shows there was concern on the part of the state Attorney General that the statute as initially introduced (without the exemption) might impair the ability of state and local agencies to enforce certain consumer protection laws.... [I]t is reasonable to infer that the measure was designed to address the Attorney General's concern, which extended to all civil actions brought by state and local agencies to enforce laws aimed at consumer and/or public protection." (Ibid.) Accordingly, notwithstanding the literal language of section 425.16, subdivision (d), that provision applies "to any civil enforcement action initiated by a city attorney, county counsel, district attorney or attorney general to enforce laws intended to protect the public." (Id. at p. 307.)
Although section 425.16, subdivision (d), thus applies somewhat more broadly than the literal language of the provision may suggest, only actions brought by a governmental agency to enforce laws aimed generally at public protection qualify for this exemption to anti-SLAPP scrutiny. (Health Laboratories, supra, 87 Cal.App.4th at p. 450 [rejecting equal protection challenge to exemption in § 425.16, subd. (d), on ground subjecting public prosecutors' enforcement actions to anti-SLAPP statute "could unduly hinder and undermine their efforts to protect the health and safety of the citizenry at large"]; see California Citizens for Neighborhood Empowerment, supra, 111 Cal.App.4th at pp. 307-308.) The City's workplace violence petitions simply do not satisfy this definition of civil enforcement actions. [FN 12]
First, unlike the City of Long Beach's campaign financing laws at issue in California Citizens for Neighborhood Empowerment, supra, 111 Cal.App.4th at pages 304-305, and the statutes prohibiting false or misleading advertising and unfair competition involved in Health Laboratories, supra, 87 Cal.App.4th at pages 445, 450, section 527.8 authorizing workplace violence petitions, important as it is, plainly is not a law intended "to protect the health and safety of the citizenry at large." (Health Laboratories, at p. 451.) It is a tool for permitting employers -- private or public -- to ensure a safe workplace and to protect their individual employees (Scripps Health, supra, 72 Cal.App.4th at pp. 333-334 [§ 527.8 enables employer to seek same remedy for its employees as § 527.6 provides for natural persons: "injunctive relief so as to prevent such acts of workplace violence"]; see Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1258 (Huntingdon Life ) [§ 527.8 allows employer to seek anti-harassment injunctive relief on behalf of its employees].) Thus, whether or not the City actually believed it was acting in some sort of a "hybrid" capacity as both employer and public prosecutor when it filed the workplace violence petitions, as it now insists, the nature of the actions initiated does not fall within the narrow ambit of the section 425.16, subdivision (d), exemption.
Second, the City's and our dissenting colleague's characterization of the City's motive for filing the petitions notwithstanding, the record does not support the assertion these three workplace violence petitions were filed by the City, wholly or in part, in its capacity as "public prosecutor." Rather, the petitions were filed, as they must be under section 527.8, by the City as Morris's and Diliberto's "employer," a term expressly defined by section 527.8, subdivision (d), to include cities, counties and other governmental entities as well as private enterprises that have one or more individuals in their service. Indeed, although the City now claims its workplace violence petitions were intended to enforce Penal Code section 71's prohibition against threats to public officers, the petitions themselves contain no allegation of a violation of that statute, alleging only that Ferdin's protest at Diliberto's home on the night of June 12, 2004 was "in violation of trespass laws." [FN 13]
Finally, although this court departed from the express language of section 425.16, subdivision (d), in California Citizens for Neighborhood Empowerment, supra, 111 Cal.App.4th at pages 307-308, when we applied the exemption to a civil enforcement action that had not been brought literally "in the name of the people of the State of California," any further erosion of the specific requirements of that provision is unwarranted in light of the Supreme Court's subsequent admonition in Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735, that the plain language of section 425.16 is to be respected and that exceptions to the statute's broad reach must not be lightly implied: "The Legislature clearly knows how to create an exemption from the anti-SLAPP statute when it wishes to do so." (Ibid.)