COUNSEL:

J. Bruce Henderson and Kent C. Wilson, on behalf of defendants and appellants.

Luce, Forward, Hamilton & Scripps, Charles A. Bird; Casey G. Gwinn, City Attorney and Leslie J. Girard, Assistant City Attorney on behalf of plaintiff and respondent City of San Diego.

Gray, Cary, Ware & Freidenrich, Mark C. Zebrowski, Kathryn E. Karcher and Mary A. Lehman on behalf of plaintiff and respondent Padres, L.P.

OPINION:

These two separate declaratory relief actions were brought by the City of San Diego (the City) and the limited partnership which owns the San Diego Padres professional baseball team, Padres, L.P. (the Padres) against two individuals, Michael Dunkl and Philip Zoebisch (collectively referred to as the proponents), who began in November 1999 to circulate a proposed initiative which would have made certain negative findings concerning an earlier city ordinance, Proposition C (Prop. C). Prop. C was adopted by City voters in November 1998 to enable funding and construction of the downtown ballpark redevelopment project pursuant to a Memorandum of Understanding (MOU) between the City, its redevelopment agency, the Padres and others.

The City and the Padres sought judicial declarations that the proposed initiative, commonly known as the Ballpark Initiative (referred to here as the proposed initiative), was invalid and should not be placed on the ballot even if adequate signatures for that purpose were obtained. These actions were coordinated in the Superior Court and resulted in summary judgments in favor of the City and the Padres, the moving parties below. The basis of the summary judgment rulings was that the proposed initiative was invalid and should not be placed on the ballot for an upcoming election, because it sought to enact measures that were beyond the power of the voters to adopt. Specifically, the findings that the proposed initiative sought to enact were not legislative in character but rather were administrative measures properly within the domain of the City administration.

The proponents of the proposed initiative appeal the summary judgments and also the related rulings of the Superior Court that found their related motions to strike the complaints under Code of Civil Procedure section 425.16, the SLAPP motions, [FN 1] must be taken off calendar as moot in view of the City's and the Padres' successful summary judgment motions. These two appeals have been consolidated in this court for oral argument and decision. The proponents argue that the trial court erred as a matter of law in characterizing the proposed initiative as failing to meet the criteria for a permissible ballot measure that was legislative in character. The proponents also argue that the rulings that the SLAPP motions were moot were erroneous and represent an impermissible chilling of their constitutional rights to petition the government for redress of grievances.

[FN 1] All statutory references are to this code unless otherwise stated. The acronym SLAPP has been widely adopted to describe lawsuits affecting speech or petition rights (Strategic Lawsuit Against Public Participation). (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal. 4th 1106, 1109, fn. 1, 969 P.2d 564.)

In November 1998, the City's voters approved Prop. C by approximately a 60-40 percentage margin, authorizing the City to enter into an MOU with, in particular, the Padres. [FN 2] Prop. C and the MOU it authorizes provide for a public-private partnership between the Padres, the City and redevelopment entities to build a new major league ballpark as part of a larger redevelopment project in Centre City East in downtown San Diego (sometimes called the project). Prop. C states that its purpose and that of the MOU it authorized are to constitute legislative acts establishing policy for the City on these matters, and further to provide the ways and means to implement such policy by any necessary and appropriate administrative and nonlegislative acts that will carry out the purpose and intent of the ordinance. Prop. C also authorizes the city council to amend or modify the MOU, in the best interests of the city entities, "only if any such amendment or modifications do not materially: 1) decrease the rights or increase the obligations of the City; 2) increase the financial commitments of the City; or 3) decrease revenue to the City." The City may carry out the MOU and associated agreements if they are in the best interests of the City, with respect to the same three criteria.

[FN 2] In full, the title of the MOU is "Memorandum Of Understanding Between The City Of San Diego, The Redevelopment Agency Of The City Of San Diego, The Centre City Development Corporation, And Padres L.P. Concerning A Ballpark District, Construction Of A Baseball Park, And A Redevelopment Project," as set forth in Prop. C.

In November 1999, the proponents published and filed with the city clerk their notice of intent to circulate the proposed initiative. After the required 20-day waiting period, the proponents began to gather voter signatures. [FN 3] The proposed initiative as circulated has the stated purpose of determining on behalf of the City, through its voters, that as of November 2, 1999, "certain contingencies and conditions subsequent affecting obligations of the City set forth in various provisions of the MOU have failed, are unsatisfied, or are defeated by nonperformance." (Proposed initiative, § 2, subd. (a); all further references to the proposed initiative are to section and subdivision in abbreviated fashion.) The proposed initiative further states that it shall have the effect of terminating as of November 2, 1999 any contingent obligations of the City, pursuant to the related determination that the conditions subsequent have failed. (Ibid., § 2, subd. (b).) The proposed initiative would further have provided "that reinstatement or creation of similar obligations of the City which are terminated by this proposition shall require a two-thirds vote of the people in an election held for that purpose." (Ibid., § 2, subd. (c).)

[FN 3] The period for gathering signatures would have terminated on May 22, 2000, had it not been for the events of these court cases, filed January 4, 2000.

Section 4 of the proposed initiative then sets forth a list of the specific conditions subsequent and contingencies that the initiative would have deemed unsatisfied or failed if not completed or waived by city council action on or before November 2, 1999, thus having the effect of terminating all obligations of the City under the MOU. These allegedly unsatisfied conditions include the City's ability to obtain financing on reasonably acceptable terms, the temporary extension of the Padres' use and occupancy at Qualcomm Stadium, the profitability of the project for purposes of generating taxes, and the obtaining of adequate financing and security for the investments. Section 4, subdivision (e) states that the adoption of the proposed initiative would establish, retroactive to November 2, 1999, such policy and implementation that would carry out the purposes and intent of the proposed initiative and the MOU.

The proposed initiative includes a severability clause, and also states that the proponents of the initiative (the individuals Dunkl and Zoebisch) shall be included among any defendants in any judicial challenge to any provision of the proposed initiative.

On January 4, 2000, about six weeks after the signature-gathering period commenced, the City and the Padres filed these declaratory relief actions, challenging the validity of the proposed initiative and also seeking injunctive relief against its continued circulation. The superior court coordinated the actions. The proponents immediately noticed special motions to strike the complaints as SLAPP suits under section 425.16 et seq. [FN 4] They contended that their constitutionally protected activities of petitioning the government and free speech were being jeopardized by the existence of the actions.

[FN 4] Section 425.16 provides in relevant part: "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).) "As used in this section, 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (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 . . . ." (Id., subd. (e).)

At the hearings on the motions, the proponents argued their motions to strike should be granted because of a potential chilling effect on the initiative process if individual proponents could be sued. They argued the city clerk would be a more appropriate defendant. They also argued that the City and the Padres were guilty of unreasonable delay or laches because they did not sue until after the end of the 20-day waiting period after the publication and filing of the notice of intent to circulate the petition. (San Diego Muni. Code (SDMC), § 27.1007, Time to Begin Circulating Initiative Petition.) The City and the Padres responded that they had acted promptly and the 20-day waiting period was meant only to ensure that the City could enact the same matter as in the proposed initiative if it desired, but there was no such desire here. They denied that any unconstitutional restraint of speech was going on, rather, the pursuit of the actions was justified due to the highly regulated nature of election activity. The Padres further argued that the content of the proposed initiative would amount to unconstitutional impairment of its contract rights, and also claimed voter fraud by the misleading nature of the proposed initiative.

In ruling on the motions, the Superior Court declined to address the argument that the proposed initiative was illegal due to misrepresentation of its purpose or the issue of any illegal impairment of contract. The court's ruling first stated that pre-election review of ballot measures, while rarely undertaken, is appropriate where the validity of the proposed measure is in serious controversy. The court focused its analysis upon section 2 of the proposed initiative, which stated its purpose to be a finding that certain contingencies and conditions subsequent affecting the obligations of the City as set forth in the MOU had failed, were unsatisfied, or were defeated by nonperformance. The court stated that the factual findings contained in the proposed initiative, which purported to carry out the purpose and intent of Prop. C and the MOU and to exercise the City's discretion as allowed by the MOU, would actually be findings such as those that are typically made by a governing entity in an administrative decision. The court found such fact-finding in an initiative to be impermissible, and ruled that the proposed initiative made only administrative decisions that would have undermined a measure previously adopted by the voters. The court then stated that in light of its rulings, the SLAPP motions were moot.

Summary judgments were entered in favor of the City and the Padres. These timely appeals followed and have been consolidated by stipulation for oral argument and decision in this court. (§§ 904.1, subd. (a)(1), 425.16, subd. (j).) Immediately after filing their notices of appeal, the proponents brought writ petitions in this court to challenge the denial of or refusal to rule on the SLAPP motions. The petitions were summarily denied.

Both the summary judgments and the underlying SLAPP rulings are on review in this matter. The City and the Padres regard the summary judgments as dispositive, while the proponents of the proposed initiative contend that the SLAPP issues are the real key to this case and should not have been ruled to be moot due to the summary judgments' issuance. All the issues are closely interrelated. Under the procedural mechanism set out by the SLAPP statute, section 425.16, subdivision (b)(1), the court may strike a cause of action against a person that fits within the SLAPP parameters (as arising from any act of that person in furtherance of the person's constitutional right of petition or free speech in connection with a public issue) "unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim."

Where, as here, the plaintiffs' declaratory relief actions present purely legal questions about the validity of the subject matter of the lawsuits, by way of a challenge to a proposed ballot measure, the SLAPP issue of whether the plaintiffs are more probably than not going to prevail in their actions may appropriately be determined by the use of related summary judgment proceedings. (§§ 425.16, subd. (b)(1), 437c.) The question here is not whether the defendant proponents are likely to prevail in their defense of the measure. Under the SLAPP statute, the question is whether the plaintiffs who are challenging the ballot measure are likely to prevail at trial or at pretrial motion proceedings.

Accordingly, within the SLAPP framework, the trial court did not err in addressing the summary judgment issues first to determine whether the plaintiffs City and the Padres were likely to prevail in their challenge. (§ 425.16, subd. (b)(1).) However, here, as in the trial court, due to the intertwined nature of the pending motions, it is necessary to consider the procedural questions raised in connection with both the SLAPP and summary judgment motions simultaneously, before drawing any final conclusions. We do so below.

First, however, we reiterate the well-established nature of the rule that it is proper to conduct pre-election review of a claim that a proposed measure may not properly be submitted to the voters because, for example, the measure is not appropriately legislative in character. (Senate of the State of Cal. v. Jones, supra, 21 Cal. 4th 1142, 1153, citing American Federation of Labor v. Eu (1984) 36 Cal. 3d 687, 695-697, 206 Cal. Rptr. 89, 686 P.2d 609, which granted pre-election relief when an initiative measure violated a federal constitutional provision and also exceeded the scope of the initiative power.)

In light of this rule, and because only legal questions are presented on an undisputed set of facts giving rise to the summary judgment motions, we may properly proceed to examine the procedural and substantive issues raised with respect to the validity of the proposed initiative. There is no threat to the proponents' constitutional rights under the First Amendment or the California Constitution in this process, because where there is a legitimate question raised about the power of the voters to adopt a proposed initiative, the Supreme Court has stated there is no value "in putting before the people a measure which they have no power to enact." (American Federation of Labor v. Eu, supra, 36 Cal. 3d at p. 697.) Rather, "the presence of an invalid measure on the ballot steals attention, time and money from the numerous valid propositions on the same ballot. It will confuse some voters and frustrate others, and an ultimate decision that the measure is invalid, coming after the voters have voted in favor of the measure, tends to denigrate the legitimate use of the initiative procedure." (Ibid.; see also Citizens for Responsible Behavior v. Superior Court (1991) 1 Cal. App. 4th 1013, 1021-1024.) Accordingly, before the SLAPP issues can be finally determined, the facial validity of the proposed initiative must be resolved.

"In evaluating the propriety of a grant of summary judgment our review is de novo, and we independently review the record before the trial court. [Citation.] In practical effect, we assume the role of a trial court and apply the same rules and standards which govern a trial court's determination of a motion for summary judgment. [Citation.]" (Lenane v. Continental Maritime of San Diego, Inc. (1998) 61 Cal. App. 4th 1073, 1079.) Section 437c, subdivision (c) provides that a motion for summary judgment shall be granted if all the papers submitted show there is no triable issue as to any material fact such that the moving party is entitled to judgment as a matter of law.

Where the trial court grants summary judgment solely upon the basis of its interpretation of statutory and case law, "it is well settled that the interpretation and application of a statutory scheme to an undisputed set of facts is a question of law [citation] which is subject to de novo review on appeal. [Citation.]" (Rudd v. California Casualty Gen. Ins. Co. (1990) 219 Cal. App. 3d 948, 951-952, 268 Cal. Rptr. 624.) In such a case, the appellate court is not bound by the trial court's interpretation. (Ibid.; California Teachers Assn. v. San Diego Community College Dist. (1981) 28 Cal. 3d 692, 699, 170 Cal. Rptr. 817, 621 P.2d 856.)

Our first task will be to focus upon the preliminary procedural issues raised by appellants in their challenges to both the summary judgments and the underlying SLAPP rulings. We shall then turn to the substantive arguments about the validity of the proposed initiative, and finally return to the SLAPP rulings.