4. Ferdin and ADL-LA's Challenged Conduct Was in Furtherance of Their Right to Petition and Free Speech in Connection with a Public Issue

The threshold issue in ruling on an anti-SLAPP motion is whether "the challenged cause of action is one arising from protected activity." (Equilon Enterprises, supra, 29 Cal.4th at p. 67.) "The anti-SLAPP statute's definitional focus is not the form of the plaintiff's cause of action but, rather, the defendant's activity that gives rise to his or her asserted liability and whether that activity constitutes protected speech or petitioning." (Navellier v. Sletten (2002) 29 Cal.4th 82, 92.) Demonstrations, leafleting and publication of articles on the Internet to criticize government policy regarding the alleged mistreatment of animals at City-run animal shelters -- the activities in which Ferdin and ADL-LA engaged -- constitute a classic exercise of the constitutional rights of petition and free speech in connection with a public issue or an issue of public interest within the meaning of section 425.16, subdivision (e)(4). (Huntingdon Life, supra, 129 Cal.App.4th at pp. 1245-1246 [lawsuit arising from demonstrations and Internet postings against private laboratory's animal testing based on exercise of First Amendment rights]; Thomas v. Quintero, supra, 126 Cal.App.4th at p. 658 [tenants' picketing and leafleting at landlord's church to protest property management practices protected activities within § 425.16, subd. (e)(3) ]; see also Fashion 21 v. Coalition for Humane Immigrant Rights of Los Angeles (2004) 117 Cal.App.4th 1138, 1144 [no dispute demonstrations and picketing in front of retail stores and issuance of press releases and Internet articles describing plight of low-income immigrant workers arose from defendants' exercise of First Amendment right of free speech in connection with a public issue].)

The City argues Ferdin and ADL-LA have failed to satisfy the first prong of section 425.16 because the workplace violence petitions challenge only their threats and other illegal activities (citing once again to Penal Code section 71), not their legitimate protests, and therefore are based entirely on unprotected activity. [FN 14] As this court has previously held, however, "The Legislature did not intend that in order to invoke the special motion to strike the defendant must first establish [his or] her actions are constitutionally protected under the First Amendment as a matter of law." (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 305.) "Instead, under the statutory scheme, a court must generally presume the validity of the claimed constitutional right in the first step of the anti-SLAPP analysis, and then permit the parties to address the issue in the second step of the analysis, if necessary. [Citation.] Otherwise, the second step would become superfluous in almost every case, resulting in an improper shifting of the burdens." (Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1089-1090; see Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 458.) To be sure, if the defendant concedes the conduct complained of was illegal, the defendant will be unable to make a prima facie showing the action arises from protected activity within the meaning of section 425.16. (Paul for Council v. Hanyecz (2001) 85 Cal.App.4th 1356, 1367, disapproved on another ground in Equilon Enterprises, supra, 29 Cal.4th at p. 68, fn. 5.) [FN 15] Far from conceding they engaged in illegal activity, of course, Ferdin and ADL-LA vigorously insist their protests against the City's inhumane treatment of animals were well within the law. (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 910-911 [distinguishing Paul for Council when legality of defendant's litigation activities was "a matter of considerable dispute"]; see also 1-800 Contacts, Inc. v. Steinberg (2003) 107 Cal.App.4th 568, 584 [finding Paul for Council inapplicable when case was "distinctly not one 'in which defendants ha[d] effectively conceded the illegal nature of their ... activities....' "].)

[FN 14] "Violence and threats of violence ... fall outside the protection of the First Amendment because they coerce by unlawful conduct, rather than persuade by expression, and thus play no part in the 'marketplace of ideas.' As such, they are punishable because of the state's interest in protecting individuals from fear of violence, the disruption fear engenders and the possibility the threatened violence will occur." (In re M.S. (1995) 10 Cal.4th 698, 714.)

[FN 15] In Paul for Council v. Hanyecz, supra, 85 Cal.App.4th 1356, the defendants had admitted the campaign finance activities at issue were illegal. As a result, the court found the illegal activity--money laundering--was not within the scope of the anti-SLAPP statute's protections because it was not a "valid" exercise of one's constitutional rights. (Id. at pp. 1366-1367.) "This case, as we have emphasized, involves a factual context in which defendants have effectively conceded the illegal nature of their election campaign finance activities for which they claim constitutional protection. Thus, there was no dispute on the point and we have concluded, as a matter of law, that such activities are not a valid exercise of constitutional rights as contemplated by section 425.16. However, had there been a factual dispute as to the legality of defendants' actions, then we could not so easily have disposed of defendant's motion. [¶] ... If the plaintiff ... cannot demonstrate as a matter of law that the defendant's acts do not fall under section 425.16's protection, then the claimed illegitimacy of the defendant's acts is an issue which the plaintiff must raise and support in the context of the discharge of the plaintiff's burden to provide a prima facie showing of the merits of the plaintiff's case." (Paul for Council, at p. 1367; see also Navellier v. Sletten, supra, 29 Cal.4th 82, 94 [operative sections of § 425.16 contain no separate "proof-of-validity requirement"].)

5. The City Failed to Establish a Probability It Would Prevail on Its Petitions

"[I]n order to establish the requisite probability of prevailing (§ 425.16, subd. (b)(1)), the plaintiff need only have ' "stated and substantiated a legally sufficient claim." ' [Citation.]" (Navellier v. Sletten, supra, 29 Cal.4th at p. 88; Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) Although the showing required is only one of "minimal merit" (Navellier, at pp. 89, 93), the two workplace violence petitions directed to ADL-LA fail as a matter of law because section 527.8 authorizes issuance of a workplace violence restraining order only against "individuals," not against groups, associations or corporate entities. The City's petition on behalf of Diliberto against Ferdin also fails because the City presented no evidence she conveyed a credible threat of violence that can reasonably be construed to be carried out at the workplace.

a. Restraining orders under section 527.8 may be directed only to natural persons

Section 527.8, subdivision (a), is specifically directed to unlawful violence and credible threats of violence made by an "individual": "Any employer, whose employee has suffered unlawful violence or a credible threat of violence from any individual ... may seek a temporary restraining order and an injunction on behalf of the employee prohibiting further unlawful violence or threats of violence by that individual." (Italics added.) We look to the " 'usual and ordinary meaning' of the statutory language in order to discern legislative intent." (Graham v. DaimlerChrysler Corp. (2004) 34 Cal.4th 553, 571; Murillo v. Fleetwood Enterprises, Inc. (1998) 17 Cal.4th 985, 990 [in resolving questions of statutory interpretation, the court "must attempt to effectuate the probable intent of the Legislature, as expressed through the actual words of the statutes in question"; the first step " ' "is to scrutinize the actual words of the statute, giving them a plain and commonsense meaning. [Citations.]" ' "].) In ordinary usage the word "individual" denotes a natural person not a group, association or other artificial entity. (Webster's 10th New Collegiate Dict. (1995) p. 593 ["individual": "a single human being as contrasted with a social group or institution"].) This commonsense interpretation of the word "individual" in section 527.8, subdivision (a), is reinforced by section 527.8, subdivision (g), which specifies either party may be represented by counsel or may "appear[ ] on his or her own behalf," a provision that could not apply to a corporate entity such as ADL-LA. (See Gamet v. Blanchard (2001) 91 Cal.App.4th 1276, 1284, fn. 5 ["a corporation may not represent itself, except in a small claims proceeding"]; Merco Constr. Engineers, Inc. v. Municipal Court (1978) 21 Cal.3d 724, 730- 731 [same].)

The legislative history of section 527.8 also supports interpretation of an "individual" subject to a workplace violence restraining order as a natural person only. As discussed, section 527.8 was enacted in large part in reaction to the holding in Diamond View Limited v. Herz, supra, 180 Cal.App.3d 612, which restricted the availability of civil harassment injunctions to natural persons, notwithstanding the use of the broader term "person" in section 527.6. (Scripps Health, supra, 72 Cal.App .4th at pp. 333-334.) To overcome that limitation, in drafting section 527.8 the Legislature included a comprehensive definition of the term "employer" to ensure all types of private and public entities could seek workplace violence restraining orders on behalf of their employees. (§ 527.8, subd. (d).) The same provision also assigns an expansive definition to the term "employee," including for example volunteers and independent contractors who perform services for the employer at the employer's worksite. (§ 527.8, subd .(d).) As originally introduced, Assembly Bill No. 68 (1993-1994 First Ex.Sess.) also broadly authorized issuance of a workplace violence restraining order against either individuals or groups: "Any employer, whose employee suffers harassment, from an individual or from a group, in conjunction with or stemming from his or her employment, may seek a temporary restraining order and injunction prohibiting further harassment by that individual or group." (Italics added.) The references to harassment or intimidation by a "group" and to restraining orders directed to a group, however, were deleted by amendments soon after introduction of the measure. Given section 527.8's genesis as a reaction to a limited reading of the somewhat ambiguous term "person" in section 527.6, the Legislature's use of broad definitions in section 527.8 for "employer" and "employee," together with its conscious decision to authorize issuance of workplace violence restraining orders only against "individuals," not "individuals or groups," provides strong evidence a section 527.8 injunction may not be issued against a corporate entity such as ADL-LA. (See generally Dix v. Superior Court (1991) 53 Cal.3d 442, 461-462 [because Legislature is presumed aware of prior judicial constructions of a statute, alteration of statutory language significant to such a construction is compelling evidence the Legislature intended to change the meaning of a law].)

Finally, although not dispositive in interpreting the authorized scope of a workplace violence restraining order, we believe it is significant that mandatory Judicial Council Form WV-100, in both the iteration used in these actions by the City and as revised effective January 1, 2005, requires the petitioner to include a description of the defendant to be restrained, including sex, height, weight, hair color, eye color, race, age and date of birth -- descriptive features that obviously relate only to natural persons, not groups, corporations or other artificial entities. [FN 16]

[FN 16] Curiously, the City completed this portion of the mandatory form in its petitions on behalf Morris and Diliberto against ADL-LA, the corporate entity, using the same personal identifying information for the defendant to be restrained as it had included in the petition on behalf of Diliberto directed against Ferdin (female; five feet, one inch; 110 pounds; brown hair; blue eyes; Caucasian; age 46; date of birth May 10, 1958).

We recognize the court in Huntingdon Life, supra, 129 Cal.App .4th at pages 1258-1259, affirmed the trial court's denial of a special motion to strike filed by Stop Huntingdon Animal Cruelty USA, Inc., an artificial entity, finding plaintiffs Huntingdon Life Sciences, Inc. (HLS) and its employee Claire Macdonald had established a probability of prevailing in their harassment action by presenting evidence of a "credible threat of violence" within the meaning of section 527.6, subdivision (b)(2), and section 527.8, subdivision (b)(2). But the complaint in that case did not mention section 527.8 at all. (Huntingdon Life, at p. 1258.) Rather, after finding Macdonald had established a probability of prevailing in the section 527.6 civil harassment action while HLS had not because section 527.6 applies only to natural persons, the court nonetheless concluded the complaint adequately alleged facts giving rise to a cause of action by HLS under section 527.8, which it described simply as "allow[ing] an employer to seek injunctive relief on behalf of its employees under the same criteria set forth in section 527.6." (Huntingdon Life, at pp. 1258-1259.) In reaching that result, the Huntingdon Life court did not address the use of the term "individual" in section 527.8 nor expressly consider whether a restraining order under that statute was properly addressed to an entity rather than a natural person. It is axiomatic an appellate court's opinion is not authority for propositions never considered or questions not decided. (People v.. Braxton (2004) 34 Cal.4th 798, 819; People v. Sapp (2003) 31 Cal.4th 240, 262.)

Injunctive relief against ADL-LA for the type of unlawful conduct alleged by the City may well be available if sought under different provisions of the law. (See generally Slauson Partnership v. Ochoa (2003) 112 Cal.App.4th 1005 [affirming trial court's denial of special motion to strike following issuance of preliminary injunction limiting protest activities at private shopping mall].) But section 527.8, like section 527.6, is a special statute that significantly modifies the ordinary procedures and requirements in actions for injunctive relief. The City's potential entitlement to similar relief under different statutes does not establish a probability of prevailing on the workplace violence petitions actually filed. (See Diamond View Limited v. Herz, supra, 180 Cal.App.3d at p. 619, fn. 8.)

b. The City failed to present prima facie evidence of any threat of violence at Diliberto's workplace

The City does not allege Ferdin (or ADL-LA, for that matter) actually engaged in any act of unlawful violence. Accordingly, to obtain a permanent injunction on behalf of Diliberto against Ferdin under section 527.8, the City must establish by clear and convincing evidence that Ferdin made a credible threat of violence against Diliberto that could reasonably be construed to occur (or to have occurred) in the workplace (§ 527.8, subds. (a), (e)) and that it is reasonably likely unlawful violence may occur in the future in the absence of the requested restraining order. (§ 527.8, subd. (f); Scripps Health, supra, 72 Cal.App.4th at p. 335 & fn. 9.) Diliberto's workplace as alleged in the petition is "419 S. Spring Street, Los Angeles, CA 90012."

The June 12, 2004 demonstration led by Ferdin that forms the centerpiece of the City's workplace violence petitions took place at Diliberto's home, not his Spring Street workplace. [FN 17] Although we accept for purposes of the City's opposition to the anti-SLAPP motion Diliberto's testimony that his four children were badly frightened by the events of June 12, 2004 and that he feared for his life and safety, as well as for the lives and safety of his family, nothing in that testimony or the exhibits submitted on his behalf in any way suggests violence will occur at Diliberto's workplace, an essential requirement for an injunction under section 527.8. (Scripps Health, supra, 72 Cal.App.4th at pp. 333-334.) [FN 18] To the contrary, the Internet postings described by the City, offensive as they may be in displaying red targets and bullet holes next to Diliberto's name, contain his home address, not his office address, and thus cannot reasonably be construed as threats to be carried out at the workplace. Similarly, Morris's declaration focuses on the militant nature of ADL-LA "and the fact that they have targeted me and my home ... and posted my home address and telephone numbers on their web site with violent images." Consistent with the perceived threats to Diliberto at home, rather than the workplace, the temporary restraining order issued against Ferdin, in addition to the standard orders preprinted on Judicial Council Form WV-120, were directed to conduct aimed at Diliberto's home: The court ordered Ferdin not to "telephone or send correspondence to employee's home address or residence by any means" and to "remove employee's home address and telephone number from the Internet."

[FN 17] At oral argument there was a suggestion that, because Diliberto sometimes worked at his residence, a credible threat of violence at his home would satisfy the statutory requirement that the threat could reasonably be construed to be carried out "at the workplace." We need not decide whether in an appropriate case section 527.8 would authorize a restraining order based on threats made at a home-office. Neither the City's petition nor Diliberto's declaration provides any evidentiary support for the assertion Diliberto worked at home; and, as indicated above, the City's petition limits the description of Diliberto's workplace to his Spring Street work address.

[FN 18] As discussed, the original version of Assembly Bill No. 68 (1993-1994 First Ex.Sess.), the legislation that added section 527.8, introduced on February 18, 1994, would have permitted an employer to obtain a restraining order if its employee suffered from harassment "in conjunction with or stemming from his or her employment." That language was deleted on March 17, 2004 and subsequently replaced with the language in the current statute requiring proof the threat could reasonably be construed as being carried out at the workplace as a result of discussions between the author of the legislation and labor groups who were concerned about the breadth of the original proposal. (See Sen. Com. on Judiciary, Analysis of Assem. Bill No. 68 (1993-1994 First Ex.Sess.) as amended June 30, 1994.)

The City does not directly address the absence of any nexus between Ferdin's alleged course of conduct constituting credible threats of violence and Diliberto's workplace, instead arguing its evidence in support of a section 527.8 restraining order is essentially the same as the evidence presented in Huntingdon Life, supra, 129 Cal.App.4th 1228, in which the Court of Appeal affirmed the trial court's order denying the defendants' special motion to strike as to HLS and Macdonald's harassment claims. Macdonald's cause of action for civil harassment in Huntingdon Life, however, was based on section 527.6, not section 527.8; and accordingly there was no requirement the evidence of credible threats of violence in any way involve the workplace. (Huntingdon Life, at p. 1242.) Had Diliberto filed his own petition under section 527.6, the evidence presented may well have justified issuance of a restraining order and been sufficient to defeat a special motion to strike; but that hypothetical petition is not before us.

The City is correct a finding HLS had a probability of prevailing on its harassment claim, which was filed under section 527.6 but which the Court of Appeal evaluated as a cause of action for a workplace violence restraining order under section 527.8 (Huntingdon Life, supra, 129 Cal.App.4th at pp. 1258-1259), should have included an examination of the workplace issue. However, as was the case with the question whether a restraining order can be directed to an artificial entity, the Huntingdon Life court did not address that issue (presumably because it was not raised by the parties) and simply concluded the criteria for an employer to obtain injunctive relief under section 527.8 were the same as for an individual to obtain relief under section 527.6. As we have discussed, however, although the two provisions parallel each other in many respects, the circumstances under which an individual may obtain a section 527.6 civil harassment restraining order are, in fact, broader than an employer's right to a workplace violence restraining order under section 527.8. (See, e.g., Scripps Health, supra, 72 Cal.App.4th at pp. 333-334 [§ 527.8 limits acts that may be enjoined on petition by employer to unlawful violence or credible threat of violence; individual can pursue injunction for harassment under § 527.6].) A required nexus between the unlawful violence or credible threat of violence and the employee's workplace is one such crucial difference between the two forms of restraining orders. (Compare § 527.8, subds. (a) & (b) with § 527.6, subds. (a) & (b).)

Having failed to present a prima facie case that Ferdin made a credible threat of violence that could reasonably be construed to occur or to have occurred in the workplace, the City similarly failed to demonstrate a probability it would prevail on its section 527.8 petition on behalf of Diliberto directed to Ferdin. Accordingly, her special motion to strike the petition should have been granted.

6. Ferdin and ADL-LA Are Entitled to an Award of Costs and Attorney Fees, Including Costs and Attorney Fees on Appeal

Section 425.16, subdivision (c), provides, "In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs...." The award of attorney fees to the party bringing a successful special motion to strike under section 425.16 is "mandatory." (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) [FN 19] Accordingly, on remand the trial court is directed to conduct appropriate proceedings to determine the costs and reasonable attorney fees, including attorney fees incurred in connection with this appeal, to be awarded Ferdin and ADL-LA. (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 286 ["The appellate courts have construed section 425.16, subdivision (c) to include an attorney fees award on appeal. [Citations.]"]; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785 ["Since section 425.16, subdivision (c) provides for an award of attorney fees and costs to a prevailing defendant on a special motion to strike, and does not preclude recovery of appellate attorney fees by a prevailing defendant-respondent, those fees are recoverable"].) [FN 20]

[FN 19] The dual purpose of this mandatory attorney fee award is to discourage meritless lawsuits and to provide financial relief to the victim of a SLAPP lawsuit "by imposing the litigation costs on the party seeking to 'chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.' [Citation.]" (Ketchum v. Moses, supra, 24 Cal.4th at p. 1131.) "The purpose of section 425.16 is clearly to give relief, including financial relief in the form of attorney's fees and costs, to persons who have been victimized by meritless, retaliatory SLAPP lawsuits because of their 'participation in matters of public significance.' [Citation.]" (Liu v. Moore (1999) 69 Cal.App.4th 745, 750.)

[FN 20] Although the City has advised us the section 527.6 petition on behalf of Morris against ADL-LA (LASC No. BS090518) was dismissed as moot during the pendency of this appeal because she is no longer interim general manager of the animal services department, ADL-LA is nonetheless entitled to recover its attorney fees and costs incurred in connection with that proceeding, as well as the subsequent appeal. (See White v. Lieberman (2002) 103 Cal.App.4th 210, 220-221 [order sustaining demurrer to complaint without leave to amend does not moot concurrently filed special motion to strike; prevailing defendant entitled to award of attorney fees]; Kyle v. Carmon, supra, 71 Cal.App.4th at pp. 917-919 [party has absolute right to voluntarily dismiss an action before a section 425.16 motion has been heard, but dismissal does not preclude the trial court from addressing whether the prevailing party should be awarded attorney fees].)

DISPOSITION

The orders denying the special motions to strike under section 425.16 are reversed. The cause is remanded to the trial court with directions to enter new orders granting the motions and to conduct further proceedings not inconsistent with this opinion. Ferdin and ADL-LA are to recover their attorney fees and costs on appeal in an amount to be determined by the trial court.

I concur: ZELON, J.

WOODS, J., Dissenting.

I respectfully dissent. It appears to this dissenting justice that the majority opinion is founded on a misplaced premise. The analysis and conclusion set forth in the majority opinion is that the City of Los Angeles was in actuality entitled to proceed only under the workplace violence statute found in section 527.8 of the Code of Civil Procedure in filing its three petitions in the Los Angeles County Superior Court. The City of Los Angeles on the other hand has strenuously argued throughout that it was also proceeding on behalf of the people of Los Angeles County as a public prosecutor and was thereby entitled to the exemption contained in section Code of Civil Procedure section 425.16 thus undercutting the probability that the Animal Defense League would prevail on its SLAPP motion. I interpret the record as presenting a hybrid situation in which the City of Los Angeles was acting in a dual capacity, i.e. employer and prosecutor on behalf of the people. The majority, on the other hand, rather than recognize the hybrid nature of this case, proceeds to employ an analysis which leads to the conclusion that the City's two roles in this instance are mutually exclusive and in finality the majority eliminates the role of the City as prosecutor. I find this conclusion not well taken in light of the record in this case.

A fair summary of the positions espoused by the League and the City is as follows: Preliminarily, Code of Civil Procedure section 425.16, subdivision (d) provides "This section shall not apply to any 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." (Emphasis added.) Without citation to any persuasive authority, the League maintains that the workplace violence petitions of the City are mere efforts by an employer to protect its employees and have no relevance to that portion of Code of Civil Procedure section 425.16, subdivision (d) wherein a city attorney is acting as a public prosecutor. The City maintains on the other hand that it is acting not only for employees, Morris and Diliberto, but in the process is acting on behalf of persons who may become similarly situated through the threats of the League "to continue to attack employee's home, leading persons wearing masks and hooded clothin[g] to employee's home on a continuous basis," as alleged by the City in all three of its workplace violence petitions. It seems to this dissenting justice that the City in essence is saying that the natural fallout from its activities on behalf of its employees is to protect the general citizenry of the City of Los Angeles as a prosecutor. The City cites Penal Code section 71 as an example of prosecutorial efforts being expended on behalf of the general public in this instance. Penal Code section 71 states in relevant part: "Every person who, with intent to cause, attempts to cause, or causes, any officer or employee of any public or private education institution or any public officer or employee to do, or refrain from doing, any act in the performance of his duties, by means of a threat, directly communicated to such person, to inflict an unlawful injury upon any person or property, and it reasonably appears to the recipient of the threat that such threat could be carried out, is guilty of a public offense...."

I have not located any California decision which addresses a hybrid situation as presented in this instance. The legislative history copiously provided in the majority opinion does not contain any indication that the legislature anticipated that the exemption contained in Code of Civil Procedure section 425.16, subdivision (d) would not apply in a situation where a public prosecutorial agency is acting on behalf of its employees and at the same time on behalf of persons who may become similarly situated. [FN 21]

[FN 21] I wish to extend my appreciation to the majority for its assistance in attempting to reach a proper disposition of this troubling appeal by citing the admonition of our Supreme Court in Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 735 that "the Legislature clearly knows how to create an exemption from the anti-SLAPP statute when it wishes to do so." I also appreciate the conclusion drawn by the majority from the language in Jarrow Formulas, Inc. that courts are to respect the language of section 425.16 and that exceptions to the statute's broad reach must not be lightly implied. In response, this dissenting justice has not intended to take the admonition of our high court lightly, but the facts of Jarrow Formulas, Inc. are so far removed from the case at hand as to constitute dictum in its application in this instance, albeit dictum from our high court is entitled to great weight and I certainly treat it in such a manner. I'm still left with the opinion that neither the legislature nor any case law has addressed the hybrid situation in this instance. Accordingly, I again express my appreciation to the majority, but reiterate my dissent.

I find the majority opinion to be miscast for what this dissenting justice discerns is an attempt to force a square peg into a round hole. If the majority were to find that this is indeed a hybrid situation in which the City is acting in a dual capacity, as heretofore maintained in this dissent, I opine that logically the majority should conclude that treating the case exclusively as one of an employer trying to protect its employees against workplace violence only is on infirm ground.

If I were in the majority, I would affirm the judgment of the trial court in its entirety and award attorneys' fees and costs on appeal to respondent City of Los Angeles.