Metropolitan News-Enterprise


Thursday, April 26, 2007


Page 1


Anti-SLAPP Statute Held Not Protective of Religious Freedom


By TINA BAY, Staff Writer


A cause of action against someone arising from the person’s exercise of religious freedom is not subject to a special motion to strike under the anti-SLAPP statute, the Court of Appeal for this district ruled yesterday.

Affirming an order by Los Angeles Superior Court Judge Haley J. Fromholz, Div. Three concluded that Code of Civil Procedure Sec. 425.16 does not import First Amendment protections wholesale.

Presiding Justice Joan Dempsey Klein, writing for the panel, explained that while Sec. 425.16 creates a vehicle for protecting “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,” it does not provide for acts done in furtherance of a person’s right of free exercise of religion.

Fromholz had denied an anti-SLAPP motion brought by East Los Angeles residents Hector and Xochitl Pacheco, who sought to strike a nuisance complaint filed by their neighbors, Felix and Eva Castillo and Nick and Connie Adame.

The Castillos and Adames, who live on either side of the Pachecos on a narrow residential street in a hillside community, sued alleging the defendants were committing a nuisance by hosting “large ceremonial outdoor open fire[s]” in their backyard. The Pachecos regularly held “large ceremonial event gatherings” that involved the starting of an outdoor fire that spewed flames, hot ashes, smoke and odor into the air, the plaintiffs claimed.

The ash, smoke and smell allegedly blew over the defendants’ property line onto the plaintiffs’ land and into their residences via windows and doors.

The Pachecos brought a special motion to strike the complaint on the basis that the ceremonial fire was made in furtherance of their constitutional right to free speech of a religious nature.  The fire, they contended, was a core element of the traditional Native American sweat lodge, a sacred tribal ritual in which participants seek to cleanse their bodies, minds and spirits by sweat and prayer.

During the ritual, ceremonial fire was used to heat rocks, which were then used in an enclosed lodge to create the steam that caused the participants to sweat, the defendants explained.

They further argued that they had obtained permits from the Los Angeles Fire Department and had passed all inspections by the department.  Additionally, they claimed, the fire used in their ceremony was no different from any backyard barbeque, and the smoke released was no more than what would be emitted from a home fireplace chimney.

Fromholz rejected the defendants’ argument that the activity over which they were being sued pertained to the exercise of protected speech.

“Plaintiffs argue that the focus of their action is not to prevent Defendants from exercising their right to protected speech, but rather to stop ‘odor filled smoke and ash’ from intruding onto their property,” the judge pointed out in denying the Pachecos’ anti-SLAPP motion.

The defendants not only failed to state that the open wood fire was an essential part of the ceremony, he reasoned, but also failed to show that religious practices fall within Sec. 425.16’s definition of constitutionally protected acts of speech or petition.

Div. Three likewise declined to treat the Pachecos’ lighting of a ceremonial fire as free speech of a religious nature.

Klein explained:

“We reject the Pachecos’ attempt to conflate the right of free speech and the right of free exercise of religion for purposes of application of the anti-SLAPP statute.  The acts of which plaintiffs complain, i.e., the ceremonial fire which emits smoke, ash and fumes, do not amount to conduct in furtherance of the exercise of the constitutional right of free speech.  Rather, said activity is conduct in furtherance of the free exercise of religion. Section 425. 16 is not so broad as to apply to the instant fact situation.”

Justices H. Walter Croskey and Patti S. Kitching concurred in the opinion.

Sherman Oaks lawyer Robert Meyers, a member of the Pachecos’ appellate team, told the MetNews his clients would be advised to seek Supreme Court review of the court’s ruling.

“The United States Supreme Court has indicated that there is no difference between religious speech and political speech because it’s impossible for courts to discern the difference between worship and speech,” he said.  “Any distinction between worship and speech is irrelevant, from our perspective.”

Pasadena attorney F. Robert Nakahiro, who represented the plaintiffs on appeal, said the legislative history pertaining to the anti-SLAPP statute was clear.

“I’m glad that the Court of Appeal agreed with us and agreed with the trial court’s argument that free exercise activities were not meant to be covered under the anti-SLAPP statute,” he commented.

The Pachecos were also represented on appeal by Los Angeles lawyer Guillermo Suarez, Sherman Oaks attorney Sharon Robinson, and Carol A. Sobel in Santa Monica.

The case is Castillo v. Pacheco, 07 S.O.S. 2165.


Copyright 2007, Metropolitan News Company