Thus, to the extent that, as the trial court impliedly found, plaintiffs failed to establish a probability of prevailing on their claim (§ 425.16, subd. (b)(1)), [FN 6] it follows that their causes of action are, in accordance with section 425.16's plain language, "subject to [ECHO's] special motion to strike" (ibid.).
Plaintiffs, however, citing Zhao v. Wong, supra, argue that section 425.16 does not apply to events that transpire between private individuals. The Court of Appeal in Zhao opined that "the Legislature contemplated that the statute would apply only to a limited sphere of activities covered by certain protections of the First Amendment, i.e., activities described by the statement of legislative purpose" (Zhao v. Wong, supra, 48 Cal.App.4th at p. 1129), which speaks of encouraging "participation in matters of public significance" (§ 425.16, subd. (a)). According to plaintiffs, section 425.16 protects only statements or writings that defend the speaker' s or writer's own free speech or petition rights or that are otherwise "vital to allow citizens to make informed decisions within a government office." Plaintiffs insist tenant counseling activities like ECHO's are not protected by section 425.16 because they neither promoted ECHO's own constitutional right of free speech nor informed the public about possible wrongdoing.
Even assuming, for purposes of argument, that plaintiffs accurately have characterized ECHO's activities as constituting neither self-interested nor general political speech, we cannot conclude such activities thereby necessarily fall outside the protection of the anti-SLAPP statute. Contrary to plaintiffs' implied suggestion, the statute does not require that a defendant moving to strike under section 425.16 demonstrate that its protected statements or writings were made on its own behalf (rather than, for example, on behalf of its clients or the general public). We agree, moreover, with the court in Braun v. Chronicle that "Zhao is incorrect in its assertion that the only activities qualifying for statutory protection are those which meet the lofty standard of pertaining to the heart of self-government." (Braun v. Chronicle, supra, 52 Cal.App.4th at pp. 1046-1047.)
As the Braun court explained: "At least as to acts covered by clauses one and two of section 425.16, subdivision (e), the statute requires simply any writing or statement made in, or in connection with an issue under consideration or review by, the specified proceeding or body. Thus these clauses safeguard free speech and petition conduct aimed at advancing self government, as well as conduct aimed at more mundane pursuits. Under the plain terms of the statute it is the context or setting itself that makes the issue a public issue: all that matters is that the First Amendment activity take place in an official proceeding or be made in connection with an issue being reviewed by an official proceeding. [¶ ] The answer to Zhao's concern over how to harmonize the language of section 425.16, subdivision (e), clause two with the statement of legislative intent contained in subdivision (a) is now apparent: The Legislature when crafting the clause two definition clearly and unambiguously resorted to an easily understandable concept of what constitutes a public issue. Specifically, it equated a public issue with the authorized official proceeding to which it connects." (Braun v. Chronicle, supra, 52 Cal.App.4th at p. 1047, italics in original.)
Thus, contrary to the Court of Appeal's construction, "the statutory language is clear. [Citation.] The statute does not limit its application to certain types of petition activity." (Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 949, italics added; see also Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 863 [anti-SLAPP law protects newspaper's statements relating to issue under consideration by county board of supervisors and federal courts]; Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 647-648 [section 425.16 applies to action to set aside prior personal injury judgment, which resulted from defendant' s exercise of his First Amendment litigation rights].)
Second, the Court of Appeal's analysis contravenes fundamental principles of statutory construction. Where different words or phrases are used in the same connection in different parts of a statute, it is presumed the Legislature intended a different meaning. (Playboy Enterprises, Inc. v. Superior Court (1984) 154 Cal.App.3d 14, 21.) Clauses (3) and (4) of section 425.16, subdivision (e), concerning statements made in public fora and "other conduct" implicating speech or petition rights, include an express "issue of public interest" limitation; clauses (1) and (2), concerning statements made before or in connection with issues under review by official proceedings, contain no such limitation. In light of this variation in phraseology, it must be presumed the Legislature intended different "issue" requirements to apply to anti-SLAPP motions brought under clauses (3) and (4) of subdivision (e) than to motions brought under clauses (1) and (2). (Playboy Enterprises, Inc., supra, at p. 21.) That the Legislature, when amending section 425.16 in 1997 to add the substance of clause (4), was at pains simultaneously to separate, by parenthetical numbering, subdivision (e)'s resulting four clauses buttresses the point by emphasizing the grammatical and analytical independence of the clauses.
If, as plaintiffs contend, the operative language in section 425.16, subdivision (b), referring to a person's exercise of First Amendment rights "in connection with a public issue," were meant to function as a separate proof requirement applicable to motions brought under all four clauses of subdivision (e), no purpose would be served by the Legislature's specification in clauses (3) and (4) that covered issues must be "of public interest." "'Courts should give meaning to every word of a statute if possible, and should avoid a construction making any word surplusage.'" (Reno v. Baird (1998) 18 Cal.4th 640, 658, quoting Arnett v. Dal Cielo (1996) 14 Cal.4th 4, 22.) Accordingly, we reject plaintiffs' contention and adopt, instead, a construction that gives meaning and assigns import to the phrase "of public interest" in subdivision (e)(3) and (4) of section 425.16.
Contrary to plaintiffs' suggestion, that the Legislature, when enacting section 425.16, expressed in the statute's preamble a desire "to encourage continued participation in matters of public significance" (§ 425.16, subd. (a)) does not imply the Legislature intended to impose, in the statute's operative sections, an across-the-board "issue of public interest" pleading requirement. Construing clauses (1) and (2) of section 425.16, subdivision (e) as lacking such a requirement does not diminish their effectiveness in encouraging participation in public affairs. Any matter pending before an official proceeding possesses some measure of "public significance" owing solely to the public nature of the proceeding, and free discussion of such matters furthers effective exercise of the petition rights section 425.16 was intended to protect. The Legislature' s stated intent is best served, therefore, by a construction of section 425.16 that broadly encompasses participation in official proceedings, generally, whether or not such participation remains strictly focused on "public" issues.
As the Court of Appeal in Braun v. Chronicle explained: "The term 'significance' supports multiple meanings. It can mean '[t]he meaning or import of something'" and "[i]t can also mean '[i]mportance, consequence.'" (Braun v. Chronicle, supra, 52 Cal.App.4th at p. 1048, quoting 15 Oxford English Dict. (2d ed. 1989) p. 458.) Thus, a matter may have "public meaning or significance within the language of section 425.16, subdivision (a) because and solely because . . . it occurs within the context of the proceedings delineated in clause one . . . or . . . in connection with an issue under consideration or review by one of the bodies or proceedings delineated in clause two." (Braun v. Chronicle, supra, at p. 1048.)
Of course, "legislative intent is not gleaned solely from the preamble of a statute; it is gleaned from the statute as a whole, which includes the particular directives." (Braun v. Chronicle, supra, 52 Cal.App.4th at p. 1048.) And "every statute should be construed with reference to the whole system of law of which it is a part so that all may be harmonized and have effect." (Stafford v. Realty Bond Service Corp. (1952) 39 Cal.2d 797, 805.) In light of these fundamental principles, "the meaning ascribed to the concept of ' public significance' in the preamble must accommodate the singular, clearly defined protected activities set forth in each clause of section 425.16, subdivision (e)." (Braun v. Chronicle, supra, at p. 1048.) Construing the term "significance" in the preamble to denote simply "importance" (15 Oxford English Dict., supra, at p. 458) harmonizes the term with a plain reading of subdivision (e)(1) and (2) that imports no additional "public issue" requirement, because such a construction accounts for the measure of public significance possessed by "any written or oral statement or writing" (§ 425.16, subd. (e)(1) and (2), italics added) that is made before, or in connection with, an official proceeding.
Third, the Court of Appeal's analysis contravenes the specific legislative intent expressly stated in section 425.16, as well as that implied by the statute's legislative history as revealed by legislative history materials in the record.
In 1997, after the Court of Appeal's decision in this case, the Legislature amended section 425.16, effecting no substantive changes to the anti-SLAPP scheme, but providing that the statute "shall be construed broadly." (§ 425.16, subd. (a), as amended by Stats. 1997, ch. 271, § 1; cf. Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1114, fn. 3 [an appellate court, whenever possible, should interpret the First Amendment and section 425.16 in a manner "favorable to the exercise of freedom of speech, not its curtailment."].) [FN 7] The proviso is not surprising, since the "stated purpose of the [anti-SLAPP] statute . . . includes protection of not only the constitutional right to 'petition for the redress of grievances,' but the broader constitutional right of freedom of speech." (Averill v. Superior Court (1996) 42 Cal.App.4th 1170, 1176.) Our construction of section 425.16 to protect not just statements or writings on public issues, but all statements or writings made before, or in connection with issues under consideration by, official bodies and proceedings, is consistent with that purpose, as well as with the statute's plain language.
Where, as here, legislative intent is expressed in unambiguous terms, we must treat the statutory language as conclusive; "no resort to extrinsic aids is necessary or proper." (People v. Otto (1992) 2 Cal.4th 1088, 1108, citing Griffin v. Oceanic Contractors, Inc. (1982) 458 U.S. 564, 570; see also Delayney v. Superior Court (1990) 50 Cal.3d 785, 804; Board of Supervisors of San Diego County v. Lonergan (1980) 27 Cal.3d 855, 866.) Accordingly, we need not refer to extrinsic indicators of legislative intent in concluding that section 425.16 applies to plaintiffs' causes of action based on ECHO's statements in connection with actual and potential civil litigation and a HUD investigation. Nevertheless, we observe that available legislative history buttresses the conclusion.
Legislative history materials respecting the origins of section 425.16 indicate the statute was intended broadly to protect, inter alia, direct petitioning of the government and petition-related statements and writings, that is, "any written or oral statement or writing made before a legislative, executive, or judicial proceeding" (§ 425.16, subd. (e)(1)) or "in connection with an issue under consideration or review" (id., subd. (e)(2)) by such. The seminal academic research on which the original version of the statute was based used "an operational definition of SLAPP suits as implicating 'behavior protected by the Petition Clause.'" (Zhao v. Wong, supra, 48 Cal.App.4th at p. 1124, quoting Canan & Pring, Studying Strategic Lawsuits Against Public Participation: Mixing Quantitative and Qualitative Approaches (1988) 22 Law & Socy. Rev. 385, 387.)
The Legislature's 1997 amendment of the statute to mandate that it be broadly construed apparently was prompted by judicial decisions, including that of the Court of Appeal in this case, that had narrowly construed it to include an overall "public issue" limitation. (See Stats. 1997, ch. 271 § 1; Zhao v. Wong, supra, 48 Cal.App.4th at p. 1128 [disagreeing "that the statute was meant to have broad application"]; Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc., supra, 50 Cal.App.4th at p. 1638 [opining that "the statute must be given a narrow interpretation"].) The timing of the amendment alone supports the inference: That the Legislature added its broad construction proviso within a year following issuance of Zhao, Linsco/Private Ledger, Inc., and the decision below plainly indicates these decisions were mistaken in their narrow view of the relevant legislative intent.
The Assembly Judiciary Committee's analysis of the amendatory legislation confirms the amendment was intended specifically to overrule Zhao v. Wong and the Court of Appeal' s decision in this case. (See Assem. Com. on Judiciary, analysis of Sen. Bill No. 1296 (1997-1998 Reg. Sess.) for July 2, 1997, hg., pp. 3-4 [stating "proponents have provided ample evidence that the state's courts of appeal are issuing conflicting opinions about the breadth of Section 425.16," noting that Averill v. Superior Court, supra, 42 Cal.App.4th 1170; Church of Scientology v. Wollersheim, supra, 42 Cal.App.4th 628; and Braun v. Chronicle, supra, 52 Cal.App.4th 1036 "have construed the statute broadly," while Zhao v. Wong, supra, 48 Cal.App.4th 1114 and the Court of Appeal in this case "have construed it very narrowly," and stating Sen. Bill No. 1296 "would clarify the Legislature's intent that the provisions of Section 425.16 be construed broadly."].)
As defendant points out, inferring a separate "public issue" requirement in subdivision (e)(1) and (2) of section 425.16 would result in the anomalous result that much direct petition activity, viz., petition activity connected to litigation that trial courts determine is not focused on an inherently "public" issue, while absolutely privileged under the
litigation privilege codified by Civil Code section 47(b) and under the federal and state Constitutions, would not be entitled to the procedural protections of the anti-SLAPP law, even though section 425.16 expressly states the Legislature' s intent thereby "broadly" to protect the right of petition (§ 425.16, subd. (a)). [FN 8]
Thus, the timing of the Legislature's amendment, considered together with relevant legislative history and materials related to both the original statute and the amendment, amply demonstrates the Legislature's intent consistently has been to protect all direct petitioning of governmental bodies (including, as relevant here, courts and administrative agencies) and petition-related statements and writings.
We also believe that the broad construction expressly called for in subdivision (a) of section 425.16 is desirable from the standpoint of judicial efficiency and that our straining to construe the statute as the Court of Appeal did would serve Californians poorly. In effectively deeming statements and writings made before or connected with issues being considered by any official proceeding to have public significance per se, the Legislature afforded trial courts a reasonable, bright line test applicable to a large class of potential section 425.16 motions. As discussed, the "Legislature when crafting the clause two definition clearly and unambiguously resorted to an easily understandable concept of what constitutes a public issue." (Braun v. Chronicle, supra, 52 Cal.App.4th at p. 1047.) For the sake of clarity, as well as under the compulsion of the legal principles earlier discussed, we shall not disturb the bright line "official proceeding" test the Legislature has embedded in subdivision (e), clauses (1) and (2).
That the Court of Appeal in this case divided on the question whether defendant ECHO's statements about plaintiffs were in fact connected to a "public issue" illustrates that, where a bright line "official proceeding" test is not available, confusion and disagreement about what issues truly possess "public" significance inevitably will arise, thus delaying resolution of section 425.16 motions and wasting precious judicial resources. [FN 9] The plain language construction we adopt, on the other hand, retains for California courts, advocates and disputants a relatively clear standard for resolving a large class of section 425.16 disputes quickly, at minimal expense to taxpayers and themselves.
Contrary to the suggestion of the concurring and dissenting opinion, we do not believe our construction will unduly jeopardize meritorious lawsuits. The Legislature already has weighed an appropriate concern for the viability of meritorious claims against the concern "to encourage participation in matters of public significance," as is evident in its having declared that the statute is directed against "lawsuits brought primarily to chill the valid exercise of constitutional rights" and "abuse of the judicial process" (§ 425.16, subd. (a)), and in its having provided that lawsuits based on protected statements are nevertheless not subject to being stricken when "the court determines that the plaintiff has established a probability that he or she will prevail on the claim" (id., subd. (b)(1)).
The Legislature, moreover, has provided, and California courts have recognized, substantive and procedural limitations that protect plaintiffs against overbroad application of the anti-SLAPP mechanism. As we recognized in Rosenthal v. Great Western Fin. Securities Corp., supra, 14 Cal.4th 394, 412, "This court and the Courts of Appeal, noting the potential deprivation of jury trial that might result were [section 425.16 and similar] statutes construed to require the plaintiff first to prove the specified claim to the trial court, have instead read the statutes as requiring the court to determine only if the plaintiff has stated and substantiated a legally sufficient claim. [Citations.]" (Italics in original; see also College Hospital, Inc. v. Superior Court, supra, 8 Cal.4th at pp. 718-719 [section 425.16 and similar motions operate "like a demurrer or motion for summary judgment in 'reverse'"].)
We have no reason to suppose the Legislature failed to consider the need for reasonable limitations on the use of special motions to strike. As discussed, the Legislature apparently judged the bright line "official proceeding" test set out in clauses (1) and (2) of section 425.16, subdivision (e) to be adequate, and thought it unnecessary to add an "issue of public interest" limitation for those two classes of potential cases. For potential cases where an analog to the "official proceeding" bright line test does not readily appear, viz., "public forum" (§ 425.16, subd. (e)(3)) and "other conduct" (§ 425.16, subd. (e)(4)) cases, the Legislature did include an "issue of public interest" limitation. We find no grounds for reweighing these concerns in an effort to second guess the Legislature's considered policy judgment. If we today mistake the Legislature' s intention, the Legislature may easily amend the statute.