2. Santa Monica's claims are not ripe.
A controversy "ripens" once it has reached, "but has not passed, the point that the facts have sufficiently congealed to permit an intelligent and useful decision to be made." (California Water & Telephone Co., supra, 253 Cal.App.2d at p. 22.) Ripeness is aimed at "prevent[ing] courts from issuing purely advisory opinions.... It is rooted in the fundamental concept that the proper role of the judiciary does not extend to the resolution of abstract differences of opinion. It is in part designed to regulate the workload of courts by preventing judicial consideration of lawsuits that seek only to obtain general guidance, rather than to resolve specific legal disputes. However, the ripeness doctrine is primarily bottomed on the recognition that judicial decisionmaking is best conducted in the context of an actual set of facts so that the issues will be framed with sufficient definiteness to enable the court to make a decree finally disposing of the controversy." (Pacific Legal Foundation v. California Coastal Com. (1982) 33 Cal.3d 158, 170 (Pacific Legal Foundation ).)
A two-pronged test is used to determine the ripeness of a controversy: (1) whether the dispute is sufficiently concrete so that declaratory relief is appropriate; and (2) whether the parties will suffer hardship if judicial consideration is withheld. (Farm Sanctuary, Inc. v. Department of Food & Agriculture (1998) 63 Cal.App.4th 495, 501-502 (Farm Sanctuary, Inc.).) "Under the first prong, the courts will decline to adjudicate a dispute if 'the abstract posture of [the] proceeding makes it difficult to evaluate ... the issues,' if the court is asked to speculate on the resolution of hypothetical situations, or if the case presents a 'contrived inquiry.' Under the second prong, the courts will not intervene merely to settle a difference of opinion; there must be an imminent and significant hardship inherent in further delay." (Id . at p. 502, citations omitted.)
This action fails both prongs of the ripeness test. First, the declaratory relief action, by which Santa Monica seeks "the benefit" of judicial guidance "as to the constitutionality of the Initiative," is insufficiently concrete and fails to touch the legal relations of parties with actual adverse legal interests. (Pacific Legal Foundation, supra, 33 Cal.3d at pp. 170-171.)
The Initiative's requirements and restrictions are directed only at "elected or appointed public official[s] acting in an official capacity," who are vested with the discretion to approve public benefits. (Initiative, §§ 2202, subd. (d), 2203, subd. (a).) It is only those public officials who are constrained by the Initiative's requirements and restrictions as to receipt of "personal or campaign advantages." Those city officials (1) are prohibited from receiving specified "personal or campaign advantages" from one on whom a public benefit has been conferred; (2) must engage in due diligence to determine whether a public benefit has been conferred, and to monitor personal or campaign advantages so that improper "advantages" may timely be returned; and (3) must "provide, upon inquiry ..., the names of all entities and persons known to them who respectively qualify as public benefit recipients...." (Initiative, §§ 2203, subd. (a), 2204, subds. (a), (b).) Moreover, only those enumerated public officials who receive personal or campaign advantages, and not the city or its clerk, risk enforcement of the Initiative through civil or criminal proceedings brought against them. (Initiative, § 2206.) Indeed, only one minor provision, requiring notification of the Initiative's terms and provisions to prospective contractors, is directed at the city. (Initiative, § 2205.)
The City Clerk insists the Initiative is unconstitutional and, because she is concerned about infringing upon the constitutional rights of persons or entities who would be affected by the Initiative, refuses to implement its provisions until the constitutional issues are resolved. However, as the trial court correctly concluded, no showing has been made that the Clerk "has any remaining duties or obligations under the Initiative such that her asserted 'refusal' to implement the Initiative has any legal effect sufficient to support this action." [FN 9] As Santa Monica's designated "elections officer," the Clerk receives campaign disclosure statements for review to ensure they "conform on their face with the requirements of the Political Reform Act." (Gov.Code, § 84215; Cal.Code Regs., tit.2, § 18110.) However, neither these ministerial duties nor the Initiative charge the Clerk with the responsibility to ensure the disclosure statements comply with the Initiative, much less bring an action to enforce its requirements, should she suspect a violation. Based on these limited facts, we agree with the trial court that no danger is presented that the Clerk will be forced to "violate individuals' civil rights" simply by receiving campaign disclosure statements for filing under the Political Reform Act. [FN 10] In sum, this controversy has not yet reached the point where it is " 'definite and concrete, touching the legal relations of parties having adverse interests.' " (Pacific Legal Foundation, supra, 33 Cal.3d at pp. 170-171, citation omitted.)
[FN 10] Santa Monica also asserts the City Clerk has two additional duties under the Initiative. Those assertions are not supported by the record. First, Santa Monica's representation to the contrary notwithstanding, the Initiative does not require the Clerk to inform prospective bidders of the Initiative's restrictions. That duty rests with the city itself. (Initiative, § 2205.) Moreover, even if that duty is assigned to the Clerk, we are unable to see how the Clerk would "violate individuals' civil rights" merely by providing notice of the terms of the Initiative. Second, Santa Monica argues section 2204 of the Initiative effectively requires the Clerk to produce, "in writing," the names of the recipients of public benefits and public records "immediately" upon request. However, the text of the Initiative is at odds with this assertion. First, logic dictates that this section applies in the first instance not to the Clerk, but to those public officials vested with the discretion to confer public benefits, and thus subject to the stated penalties. Second, the text does not require that disclosures must be made either immediately or in writing. (Initiative, § 2204, subd. (b).)
The action also fails the second prong of the ripeness test. No showing has been made that the withholding of a judicial determination will result in an imminent, significant hardship. Santa Monica and at least two other cities have attempted to judicially resolve the issue of the Initiative's constitutionality since late 2000, when they participated as an amicus curiae in the Vista appeal. [FN 11] However, Santa Monica's dogged pursuit of litigation "to eliminate the lingering uncertainty that has existed and continues to exist concerning the constitutional validity of the Initiative," is not sufficient to give rise to an actual justiciable controversy. It is not sufficient that the issues encompassed by the Initiative involve a sizeable public interest. As the trial court concluded, "[w]ithout proper grounds for justiciability, the court would be rendering an improper advisory opinion," which that court declined to do, as do we. Even if Santa Monica and the City Clerk -- or the Clerk and FTCR -- fundamentally disagree as to the constitutionality of the Initiative, no justiciable conflict exists. "'A difference of opinion does not give rise to a justiciable case until an actual controversy arises.'" (Wilson v. Transit Authority (1962) 199 Cal.App.2d 716, 722 (Wilson ), citation omitted.)
B. This is not an appropriate "validation action."
Implicitly acknowledging this action fails to satisfy the traditional tests for ripeness and standing, Santa Monica and the City Clerk insist we should nevertheless reach the merits of their constitutional arguments as a common law "validation action," under Golden Gate, supra, 214 Cal. 308, and City and County of S.F. v. Boyd (1943) 22 Cal.2d 685 (Boyd ), and their progeny. [FN 12] Again, we disagree.
Even validation actions are not exempt from the traditional principle that a justiciable action must satisfy the requirements of both ripeness and standing. "It is, of course, the prevailing doctrine in our judicial system that an action not founded upon an actual controversy between the parties to it, and brought for the purpose of securing a determination of a point of law, is collusive and will not be entertained; and the same is true of a suit the sole object of which is to settle rights of third persons who are not parties." (Golden Gate, supra, 214 Cal. at p. 316; accord Boyd, supra, 22 Cal.2d at pp. 693-694.) As the trial court observed, the cases on which Santa Monica and the City Clerk rely involved a justiciable dispute between parties directly affected by a public entity's proposed action, or were based on an actual duty owed by a public official whose refusal to perform was legally impeding the ability of the public entity to fulfill its functions. This is not such a case.
In Golden Gate, a bridge and highway district sought to compel the secretary of the district's board of directors to execute bonds to raise funds for highway and bridge construction. The secretary's signature on the bonds was required by statute for the bonds to properly issue and become operative. (Golden Gate, supra, 214 Cal. at p. 316.) The secretary refused to sign the bonds based on his belief that the statutory grant of authority to the district to levy and collect a direct annual tax to pay off the bonds was unconstitutional. He also believed that, if he signed the bonds, "he would acting in violation of his public duty, and assisting in the deception of prospective purchasers of the bonds ... a step which might conceivably involve personal liability on his part," in the event his belief about the unconstitutionality of the act was ultimately deemed correct. (Id. at p. 317.) Under those circumstances, the Supreme Court held "[a] genuine controversy existed ... between petitioner and respondent as to matters vitally affecting the duties and perhaps the liabilities of the latter." (Ibid.)
In Boyd, a taxpayer sued a city controller to enjoin payment of certain wages to employees of the municipal railway, claiming their compensation exceeded the rates authorized by the city's wage laws. (Boyd, supra, 22 Cal.2d at p. 693.) Due to the pendency of that action, the controller refused to approve the railway employees' wage claims. The city and its public utilities commission sought a writ of mandate to compel the controller to make the payments. The Supreme Court found the controversy justiciable, not just a collusive suit filed to determine a point of law or to settle the rights of absent third parties. The Court held the controller "would be acting in violation of his public duty if he authorized payment of claims that involved an illegal expenditure of public funds." (Id. at p. 694.) His ability to approve the wage payment claims depended upon the validity of the ordinances authorizing the compensation, and resolution of that question required construing the city charter and applying its provisions in light of the facts of the case. Because the taxpayer's action challenged the controller's right to approve the payments, a real controversy was found to exist with regard to his duties. (Ibid.)
The other validation actions on which Santa Monica and the City Clerk rely involve factual contexts in which actions were instituted against similarly recalcitrant public officials whose actions were essential to implementing the laws or financial transactions. (See Santa Clara County Local Transportation Authority v. Guardino (1995) 11 Cal.4th 220, 228 [bonds could not issue because auditor-controller refused to sign them]; City of Long Beach v. Mansell (1970) 3 Cal.3d 462, 477 [city sued city manager and clerk to compel them to perform ministerial duties essential to the city's ability to perform contractual agreements with third parties].) Neither action was brought
solely for the abstract purpose of determining whether the bonds or contracts were valid. Rather, they were instituted to prove the bonds or agreements were valid and to obtain conclusive judicial determinations that they should issue and/or be enforced. [FN 13] By contrast, the tepid allegations of Santa Monica's complaint do not contend that the Initiative is valid; the complaint seeks only a determination regarding its validity. Moreover, unlike the cases on which Santa Monica and the Clerk rely, the Clerk's personal belief regarding the Initiative's unconstitutionality, however genuine, has no bearing on its enforcement, and she has not taken any act to prevent or obstruct the city's ability to implement the Initiative. [FN 14]
[FN 14] The City Clerk also relies heavily on Redevelopment Agency v.. City of Berkeley (1978) 80 Cal.App.3d 158, a case which is inapposite. There, Berkeley and the city's Redevelopment Agency (BRA) adopted a redevelopment plan prohibiting residential housing in an industrial zone. After lobbying unsuccessfully to save homes within the area, a residents' group sponsored an initiative toward that end, which the voters approved. (Id. at pp. 162-163.) After the election, BRA sued Berkeley for declaratory and injunctive relief. The dispute concerned whether the subject of the initiative was legislative and thus a proper use of the initiative process, or an exercise of
the BRA's administrative powers which were not subject to referendum. (Id. at pp. 167-169.) The residents intervened to defend the initiative. Shortly thereafter, the BRA ceased to exist and its powers re-vested in the City Council. (Id. at pp. 164- 166.) The residents asserted the case was not justiciable and should be dismissed because the merger of Berkeley and BRA aligned their interests and eliminated any true legal controversy between them. The court rejected that contention. An actual controversy was found to exist because the residents intervened while BRA was still "an actual and legal party to the action with interest [sic ] adverse to those of the City of Berkeley." (Id. at p. 165.) In addition, unlike this action, the initiative in Redevelopment Agency v. City of Berkeley imposed significant affirmative obligations on Berkeley to grant use permits to all non-conforming existing uses within the project area, prepare an environmental impact report, and issue specific employment opportunity notices and annual reports to voters. (Id. at p. 164.)
Santa Monica and the City Clerk also urge us to find the existence of a justiciable validation action based on dicta in City of Burbank, supra, 113 Cal.App.4th 465, in which intervention in the action by a principal proponent of an initiative was determined to provide the requisite degree of adversity in an otherwise "friendly suit." (Id. at pp. 481-482.) As discussed, the circumstances of that case differed markedly from this case. Indeed, like the referendum in Redevelopment Agency v. City of Berkeley, but unlike the Initiative here, the initiative involved in City of Burbank imposed significant responsibilities on the city itself. The court found that, if Burbank enforced the initiative and refused to issue permits for proposed airport projects until the Airport Authority complied with the initiative's onerous requirements, it would certainly be sued by the Airport Authority. On the other hand, if Burbank, consistent with its view that the initiative was constitutionally infirm, refused to implement the initiative, it would have been sued -- as it was -- by the initiative's proponents. (Id. at p. 481.) Unlike this case in which Santa Monica has only the minimal obligation to notify prospective contractors of the Initiative's terms, Burbank had standing because its own numerous rights and obligations as a city were adversely affected by implementation of the ballot measure. The cases are also distinct from one another in that, the intervenor in City of Burbank, willingly agreed to participate on the merits. Here, FTCR intervened solely for the purpose of seeking dismissal of a nonjusticiable, and arguably collusive, action.
In sum, this action presents no actual controversy necessitating judicial intervention. Accordingly, any decision on the merits of would leave this court in the role of issuing an improper advisory opinion in a case involving a contrived dispute in which "there is virtually only one party." (People v. Pratt (1866) 30 Cal. 223, 225.) We agree with FTCR. "Permitting the validity of a voter-enacted initiative to be determined in a lawsuit in which both parties and their attorneys not only believe, but have affirmatively stated in prior judicial proceedings, that the measure is unconstitutional makes a mockery of 'one of the most precious rights of our democratic process' (Associated Home Builders etc., Inc. v. City of Livermore (1976) 18 Cal.3d 582, 591) and breeds disrespect for the integrity of the judicial process." This case, filed by Santa Monica to secure a legal determination or to settle the rights of absent third parties, is precisely the type of case the Supreme Court admonished "will not be entertained." (Golden Gate, supra, 214 Cal. at p. 316; Boyd, supra, 22 Cal.2d at p. 694.)
C. An otherwise nonjusticiable action may not be entertained simply because it involves issues of public concern.
Explicitly acknowledging the long-standing principle that courts typically will not address issues unnecessary to the disposition of an appeal, Santa Monica and the City Clerk nevertheless urge us to resolve the issue of the constitutionality of the Initiative because of its public import. We decline to do so.
We may not disregard the long-standing principle that, even in circumstances when an issue involves significant public interest, California courts adhere to the even older, and more important, judicial policy against issuing advisory opinions. "[N]either we nor the trial court can give advisory opinions or resolve disputes over matters which involve parties not before us even if the parties are united in their desire to have the court resolve unripe issues or claims which the parties have no standing to assert." (Korean Philadelphia Presbyterian Church v. California Presbytery (2000) 77 Cal.App.4th 1069, 1081.) This policy is driven largely by a recognition that courts are unable properly to adjudicate issues when only hypothetical facts are involved. [FN 15] (See Pacific Legal Foundation, supra, 33 Cal.3d at p. 170.) That very concern exists here. As the trial court correctly found, "the mere fact that the subject matter of the Initiative touches upon issue [sic] of genuine public concern does not obviate the need for a proper showing of both standing and ripeness."
We recognize the constitutional questions posed by Santa Monica and the City Clerk undoubtedly are of significant interest and continuing public import. As both the City and its Clerk point out, significant substantive issues remain and must, at some point, be addressed on their merits. Those issues include such important constitutional questions as whether, as the Clerk contends, the Initiative is invalid because it discriminates in favor of those who oppose specified city projects, even if they do so for self-interested or competitive reasons, whether the Initiative is unconstitutionally underinclusive with respect to its proscriptions against those who receive certain public benefits, but impermissibly sweeping with regard to its allegedly overbroad bans on contributions and employment. Strong public policy and public interest principles are at stake, issues which are of great interest to the parties to the litigation and the public at large. That is not enough. It is wholly inappropriate to resolve those abstract issues in the absence of evidence regarding the existence of an actual controversy or the ripening seeds of one. Courts are not free to render advisory opinions regarding controversies which the parties fear will arise, but which do not presently exist.
PASADENA ACTION
A. The anti-SLAPP Motion.
At issue in this portion of the consolidated appeals is whether the trial court erred in denying FTCR's anti-SLAPP motion. [FN 16] (Code Civ. Proc., § 425.16 (hereafter section 425.16 or the "anti-SLAPP statute").) The anti-SLAPP statute reflects the Legislature's intention to curb meritless "lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (§ 425.16, subd. (a).) To address that concern, the statute provides that a "cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).) [FN 17]
[FN 17] Under section 425.16 an "act ... in furtherance" of a person's right of petition or free speech is defined as: "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the
constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.) (§ 425.16, subd .(e).)
The trial court is required to engage in a two-step process to resolve an anti-SLAPP motion. "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken 'in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. (§ 426.16, subd. (b)(1).)" (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon ).) Second, if "the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." (Ibid.) The moving party bears the burden on the first issue; the responding party on the second. (Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 151 (Shekhter ).) "Only a cause of action that satisfies both prongs of the anti-SLAPP statute -- i.e., that arises from protected speech or petitioning and lacks even minimal merit -- is a SLAPP, subject to being stricken under the statute." (Navellier, supra, 29 Cal.4th at p. 89, italics omitted.) The trial court's rulings on both issues are reviewed de novo. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928.)
1. The acts which led to filing the first amended cross-complaint against FTCR arose out of FTCR's protected First Amendment activities.
The threshold issue in ruling on an anti-SLAPP motion is whether "the challenged cause of action is one arising from protected activity." (Equilon, supra, 29 Cal.4th at p. 67.) The trial court agreed with Pasadena and ruled that FTCR's motion foundered on this first prong because Pasadena's cross-action was not motivated by a desire to punish FTCR or chill the exercise of its First Amendment rights. Rather, the goal was only to obtain a judicial determination that the city was not required to perform any of the ministerial duties necessary to certify the election results required by Government Code section 34460 because the Initiative was unconstitutional.
The trial court misconstrued the law. In Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, the Supreme Court reiterated the controlling principles: "In Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106 ... (Briggs), when first construing the 'arising from' prong of section 425.16, we held on the basis of the statute's plain language that a defendant moving specially to strike a cause of action arising from a statement or writing made in connection with an issue under consideration in a legally authorized official proceeding need not separately demonstrate that the statement or writing concerns an issue of public significance. (Briggs, supra, at p. 1109.) And in a trio of opinions issued [in 2002], we held that the plain language of the 'arising from' prong encompasses any action based on protected speech or petitioning activity as defined in the statute (Navellier, [supra,] 29 Cal.4th [at pp. 89-95] ... rejecting proposals that we judicially engraft the statute with requirements that defendants moving thereunder also prove the suit was intended to chill their speech (Equilon, supra, 29 Cal.4th at p. 58) or actually had that effect (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 75.... [Cotati ].)" (Jarrow Formulas, Inc. v. LaMarche, supra, 31 Cal.4th at pp. 733-734.) The trial court mistakenly relied on the absence of evidence that Pasadena meant to chill FTCR's exercise of its First Amendment rights as the ground for denying the anti-SLAPP motion.
Regardless of the mistaken rationale for the trial court's ruling, we must exercise our independent review to determine whether the ruling was correct. We must determine whether Pasadena's cross-action against FTCR arose out of FTCR's actions in furtherance of the right of free speech or petition. (Navellier, supra, 29 Cal.4th at pp. 89-95.) Conceding "[t]here is no easy answer to that question," Pasadena asserts that two "acts" led it to file its cross-complaint, neither of which was intended to advance any person's right of free speech or petition in connection with a public issue. Those acts were: "(1) the approval of the initiative by the voters; and (2) the initiative measure becoming law." We conclude otherwise.
Turning first to the latter point, Pasadena's cross-action against FTCR could not have arisen from the "Initiative becoming law." The Initiative did not become law until after the cross-action was filed, and only after the trial court found no merit in Pasadena's assertion it had "no duty to take any of the actions set forth in Government Code section 34460 with respect to the [Initiative]." FTCR is correct. "[T]he gravamen of [Pasadena's] Cross-Complaint was a request for a judicial declaration that [Pasadena] had no duty to perform precisely those acts that were necessary in order for the Oaks Initiative to become law. The First Amended Cross-Complaint thus tried to prevent the Oaks Initiative from becoming law; it did not 'arise from' the initiative measure becoming law."
Second, even if we agreed that the act which led to the filing of the cross-complaint against FTCR was the voters' approval of the FTCR-sponsored Initiative, that approval would represent, among other things, a paradigmatic exercise of FTCR's and the voters' engagement in "conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e)(4); see also subd. (e)(2) [covered acts include statements made in connection with an issue under consideration by a legislative body, or other legally authorized proceeding].) Advocacy for an Initiative and adoption of the measure are, without question, a fundamental exercise of the First Amendment right to petition. "Courts have long protected the right to petition as an essential attribute of governing. The California Constitution declares that 'people have the right to ... petition government for redress of grievances....' That right in California is, moreover, vital to a basic process in the state's constitutional scheme -- direct initiation of change by the citizenry through initiative, referendum, and recall." (Robins v. Pruneyard Shopping Center (1979) 23 Cal.3d 899, 907, citations and fn. omitted.)
The allegations of the first amended cross-complaint asserted against FTCR reveal that Pasadena's cross-action was based on FTCR's intervention in the pending Amy/Pasadena litigation, an act undertaken by FTCR in furtherance of its constitutional rights of free speech and petition. After detailing the background of FTCR's joinder of Amy's effort to compel the city to perform its post-election duties, Pasadena's cross-complaint alleges:
Similarly, in opposition to the anti-SLAPP motion, Pasadena insisted FTCR had been sued and was a proper defendant in the cross-action precisely because FTCR chose to intervene and demand that Pasadena certify the Initiative:
These statements indicate Pasadena's cross-action against FTCR "arose from" FTCR's constitutionally protected act "of filing litigation." (Briggs, supra, 19 Cal.4th at p. 1115.) They also indicate the gravamen of Pasadena's cross-action against FTCR was not the constitutionality of the Initiative, but the dispute over Pasadena's refusal to comply with section 34460 and its "legal rights and duties" under that statute. The principal thrust of the action, and the only matter then "at issue" between FTCR and Pasadena, was the dispute over Pasadena's duty to perform the ministerial obligations imposed by section 34460. To the extent relevant, the constitutionality of the Initiative was an issue only as support for Pasadena's contention that the unconstitutionality of the Initiative obviated its obligations under the Government Code. Indeed, both Amy and FTCR correctly asserted -- and the trial court correctly agreed -- that the constitutionality of the Initiative was irrelevant to the Pasadena officials' duty to perform certain ministerial duties under section 34460. (See Kevelin v. Jordan (1964) 62 Cal.2d 82, 83 [The state's Constitution and statutes impose on the Secretary of State the clear ministerial duty to certify an initiative enacted by the voters, and "[t]hey do not empower him to refuse to do so with respect to any particular measure on the ground that the measure is invalid."]; Martinez v. Board of Supervisors (1972) 23 Cal.App.3d 679, 684 ["It is well settled that mandamus will not be issued to prevent the official recordation of the vote of the people under their reserved legislative power regardless of the apparent unconstitutionality of the measure, if any."]; International Assn. of Fire Fighters v. City of Oakland (1985) 174 Cal.App.3d 687, 690-691, & fn. 3 [concluding trial court properly refused to enjoin city from certifying challenged charter amendment because 'regardless of how clearly an initiative measure's unconstitutionality may appear, it would be an intolerable interference with the people's reserved legislative power to prevent the official recordation of their vote on such a proposition by the Secretary of State"].)
"In the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech. [Citations.]" (Cotati, supra, 29 Cal.4th at p. 78; see also Santa Monica Rent Control Board v. Pearl Street, LLC (2003) 109 Cal.App.4th 1308, 1318.) Applying the test to this case, we conclude that FTCR's acts with which Pasadena takes issue "fall[ ] squarely within the plain language of the anti-SLAPP statute." (Navellier, supra, 29 Cal.4th at p. 90.) Pasadena's pleadings make it clear. FTCR was sued because it had the temerity to file a complaint-in-intervention to force Pasadena to put the Initiative into effect, and because it sponsored the Initiative and supported its constitutionality, all of which are clearly protected activities. Pasadena's first amended cross-complaint is a SLAPP and was properly subject to a special motion to strike under section 425.16. The trial court's conclusion to the contrary was in error.
The inquiry, however, does not end here. Once the moving party demonstrates the challenged claim arose from protected activity, the burden shifts to the responding party to show a probability it will prevail on the merits. (Equilon, supra, 29 Cal.4th at p. 67; Shekhter, supra, 89 Cal.App.4th at p. 151.) Concluding FTCR's motion foundered on the first prong of the anti-SLAPP test, the trial court never reached the second question. We must do so and, for reasons discussed below, conclude Pasadena could not have made such a showing.
2. Pasadena did not and could not demonstrate a probability of success.
Notwithstanding the trial court's error with respect to the first prong of the anti-SLAPP test, Pasadena insists the order denying FTCR's motion to strike must be affirmed because Pasadena not only demonstrated a probability of success on the merits of its claim, it actually prevailed. This assertion, which rests on a mischaracterization of the allegations of the cross-complaint and history of the case, is incorrect.
First, Pasadena's contention that it "actually prevailed" on the substance of its cross-complaint against FTCR is incorrect. Pasadena did ultimately prevail below on the substance of its constitutional claim on summary judgment, an error we address below. However, the substance of Pasadena's constitutional claim was not before the trial court when it ruled on the anti-SLAPP motion. Rather, as Pasadena alleged, the principal controversy in the cross-action for declaratory relief involved the parties' disagreement as to whether the city was statutorily required to perform certain post-election ministerial tasks to effectuate the Initiative. Specifically, Pasadena alleged:
Pasadena sought a judicial declaration that the Initiative was "unconstitutional or otherwise illegal and unenforceable" and that it had "no duty to take any of the actions set forth in Government Code section 34460...." [FN 18] Pasadena could not prevail, and did not prevail, on the merits of the claim. As the trial court recognized, it is well-established that, irrespective of the constitutionality of an initiative, public officials must perform their ministerial statutory duties to certify the results of an initiative election. (See Kevelin v. Jordan, supra, 62 Cal.2d at p. 83 ["[T]he California Constitution and [state statutes] impose on the Secretary of State the clear ministerial duty to file a declaration or statement of the vote on measures submitted to the people. They do not empower him to refuse to do so ... on the ground the measure is invalid."]; Martinez v. Board of Supervisors, supra, 23 Cal.App.3d at p. 684; International Assn. of Fire Fighters v. City of Oakland, supra, 174 Cal.App.3d at pp. 690-691, and fn. 3.) Thus, while Pasadena certainly hoped to, and later did, obtain a declaration that the Initiative was unconstitutional, the court was not required to resolve that question in order to adjudicate the dispute over the city's duty to comply with section 34460.
As to the pivotal matter addressed by FTCR's motion to strike -- whether Pasadena was obligated to certify the Initiative -- a long and well-established line of cases, led by Kevelin, demonstrate that Pasadena could not and did not prevail. Indeed, the trial court specifically relied on these authorities in granting Amy's petition for a writ of mandate ordering Pasadena to comply with section 34460, a ruling with which Pasadena does not take issue. Pasadena did not prevail on the principal claim raised in its cross-complaint, and FTCR's anti-SLAPP motion should have been granted.
3. Pasadena could not prevail on the merits because there was no justiciable controversy at issue at the time the anti-SLAPP motion was heard and ruled upon.
Even if we indulge Pasadena's argument that its constitutional challenge to the Initiative was independent of the claim related to its duty to comply with section 34460, we would still conclude that Pasadena had not shown a probability of success on the merits because the constitutional claim was not ripe for judicial review.
First, Pasadena's constitutional challenge was premature, in that the city persisted in its refusal to certify the Initiative. That refusal prevented the Initiative from taking effect and prevented the court from addressing an actual, concrete justiciable controversy. Under the rule of Kevelin v. Jordan and its progeny, respect for the doctrine of separation of powers and concern for the electorate's constitutionally reserved initiative power does not permit courts to adjudicate the constitutionality of a ballot measure after the measure has been adopted by the voters, but before it has become effective. [FN 19] (Kevelin v. Jordan, supra, 62 Cal.2d at p. 83.)
Second, Pasadena could not have demonstrated a probability of prevailing on the substance of its cross-action against FTCR, because that action was not ripe when the cross-action was filed or when the anti-SLAPP motion was heard. At that time, Pasadena's constitutional claims involved only hypothetical concerns because the Initiative had not been applied to anyone. "In determining whether a controversy is ripe, we use a two-pronged test: (1) whether the dispute is sufficiently concrete to make declaratory relief appropriate; and (2) whether the withholding of judicial consideration will result in a hardship to the parties." (Farm Sanctuary, Inc., supra, 63 Cal.App.4th at p. 502.) Pasadena's insufficiently concrete claim against FTCR foundered on the first prong of this test. When the cross-action was filed, no one had complained that enforcement of the Initiative would violate his or her civil or constitutional rights in any concrete fashion. [FN 20]
Moreover, unlike Farm Sanctuary, Inc., in which the intended beneficiaries of the law (farm animals) would suffer needlessly without judicial action and who were incapable of protecting their own interests, the public officials and their potential campaign contributors who may be affected by this Initiative, can assert their own legal challenge in court. Moreover, withholding judicial consideration imposes no hardship on the Pasadena Mayor or City Clerk who, at the time the cross-complaint was filed and the anti-SLAPP motion was heard, were not embroiled "in a real controversy ... involving justiciable questions relating to their own rights and obligations. (See Wilson, supra, 199 Cal.App.2d at p. 722, original emphasis; see also Sherwyn, supra, 173 Cal.App.3d at p. 58 ["The controversy must be 'one which admits of definitive and conclusive relief by judgment within the field of judicial administration, as distinguished from an advisory opinion upon a particular or hypothetical state of facts....' "].)
Pasadena's cross-action also fails the second prong of the ripeness test. The withholding of judicial consideration imposed no hardship on Pasadena. Because the Initiative had not yet been implemented, no potential campaign contributor or public official had complained or had been faced with the dilemma of complying with the measure or risking penalties or prosecution for failing to do so. Where a legislative measure does not immediately and adversely impact anyone and its effects cannot be adjudicated in any concrete factual context, a request for declaratory relief is not yet ripe. (See Longshoremen's Union v. Boyd (1954) 347 U.S. 222, 224 ["Determination of the scope and constitutionality of legislation in advance of its immediate adverse effect in the context of a concrete case involves too remote and abstract an inquiry for the proper exercise of the judicial function."]; Pacific Legal Foundation, supra, 33 Cal.3d at pp. 172-173 [concluding that case is not sufficiently ripe if " '[plaintiffs] are not immediately faced with the dilemma of either complying with the guidelines or risking penalties for violating them' [citation.]"].) Courts simply may not render advisory opinions on controversies which the parties fear will arise, but which do not presently exist.
We also reject Pasadena's contention that its cross-claim, which was nonjusticiable when the cross-action was filed and the anti-SLAPP motion was heard, ripened after the trial court ruled against it and ordered Pasadena to certify the Initiative. FTCR is correct. In the context of an anti-SLAPP motion, "it is especially important to view a motion to strike under section 425.16 in light of the facts and pleadings as they exist at the time the motion is filed." The anti-SLAPP statute established a mechanism which permits nonmeritorious claims arising from the exercise of First Amendment rights be evaluated and resolved at the earliest stages of a lawsuit, so that defendants are not forced needlessly to participate in expensive and protracted litigation. (Lafayette Morehouse, Inc. v.
Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 865.) We cannot sanction Pasadena's contention, based entirely on inapposite and unpersuasive non-California authorities, that it cured its unripe, nonjusticiable cross-complaint after the trial court ruled on FTCR's meritorious anti-SLAPP motion. To do so would undermine the purpose of section 425.16. The underlying statutory purpose is particularly apt here, where the jurisdictional defect and principal focus of the parties' dispute -- Pasadena's duty to comply with section 34460 -- existed only because Pasadena refused to certify the Initiative. In the final analysis, we conclude Pasadena's cross-complaint against FTCR was not based on an actual concrete controversy, but was merely an attempt to obtain an improper advisory opinion on the constitutionality of the Initiative, based on a hypothetical controversy which may never arise. [FN 21]
In the end, we conclude that, because FTCR met its burden of demonstrating that the action filed against it arose out of its exercise of protected First Amendment rights, and because Pasadena failed to demonstrate a probability of success on the merits of its nonjusticiable claim, the anti-SLAPP motion should have been granted and the motion dismissed. [FN 22]
[FN 22] Our conclusion that the action is not ripe, and therefore not justiciable, renders it unnecessary for us to address the parties' arguments on the issue of standing.