Metropolitan News-Enterprise


Monday, November 21, 2011


Page 1


C.A. Upholds Award of Fees to City Defendant in SLAPP


By a MetNews Staff Writer


Individuals whose suit against the City of Salinas and its city manager for the misuse of public funds was dismissed pursuant to a special motion to strike are liable for over $220,000 in attorney fees to the defendants, the Sixth District Court of Appeal ruled on Friday.

The panel concluded that an award of fees to a government defendant under Code of Civil Procedure Sec. 425.16 does not unconstitutionally chill the right of petition, as Angelina Morfin Vargas and Mark Dierolf had contended.

Vargas and Dierolf were supporters of a ballot measure that would have repealed Salinas’ utility tax. Prior to the election, the city issued a report and published several articles describing the impact upon municipal services if the measure were enacted, and Vargas and Dierolf sued, alleging the publications were campaign materials for which the city could not lawfully expend public funds.

The defendants moved to strike the complaint as a strategic lawsuit against public participation, and Monterey Superior Court Judge Susan M. Dauphiné granted the motion, finding that the case arose from city’s exercise of protected speech in connection with a public issue and that plaintiffs had no probability of prevailing on the claim. 

Both the appellate court and California Supreme Court affirmed.

The parties each then issued a request for a post-judgment award of attorney fees.

Plaintiffs contended they were entitled to fees under Sec. 1021.5, the private attorney general statute, even though they lost on the merits, because their action was brought in the public interest and the Supreme Court had agreed with part of their legal analysis.

Defendants sought recovery under Sec. 425.16, which provides for a mandatory award of attorney fees to a defendant prevailing on an anti-SLAPP motion, but plaintiffs argued that such an award would be unconstitutional since it would discourage legitimate petitioning activity.

Dauphiné rejected the plaintiffs’ arguments and their fee motion, then awarded the city a total of $226,928 in attorney fees and $2,495.84 in costs. 

Writing for the appellate court, Justice Eugene M. Premo explained that Sec. 1021.5 is a discretionary fee-shifting provision. It allows a court to “award attorneys’ fees to a successful party…in any action which has resulted in the enforcement of an important right affecting the public interest if…a significant benefit…has been conferred on the general public or a large class of persons….”

Premo noted that in this case, “plaintiffs obtained no relief,” their lawsuit “had no merit,” the city “never changed its position,” and the “superior court, the appellate court, and the Supreme Court all agreed that publication of the challenged material was not a misuse of public funds.”

He said “[t]his is not success,” and “[t]he fact that the Supreme Court accepted part of plaintiffs’ legal analysis does not change that,” so the trial court did not abuse its discretion in rejecting plaintiffs’ request for fees.

The justice then turned to the question of the defendants’ entitlement to recovery under the anti-SLAPP law’s provisions.

He reasoned that the  Noerr-Pennington doctrine—which immunizes legitimate petitioning activity from civil liability—had no application to this case because Sec. 425.16 is a fee-shifting statute and does not impose civil liability for filing the lawsuit subjected to the special motion to strike.

Premo acknowledged that fee shifting clause “can discourage the filing of some lawsuits,” but said “that is precisely what such clauses are frequently designed to do.”

To the extent Sec. 425.16 imposes an incidental restriction upon legitimate petitioning rights, the justice said, “it is warranted by the governmental interests involved,” which include the right to be reimbursed for the cost of defending meritless suits, and “to express itself on issues important to the public.”

He suggested Sec, 425.16 advances both this interests “by providing a disincentive to filing meritless suits attacking governmental speech activities.”

By reducing the likelihood of such suits, and insuring that the government will be reimbursed for its defense of those that are filed, Premo concluded, Sec. 425.16 “protects the government’s right to speak and the interest of the general public to hear what its government has to say, thereby fostering public discourse on topics of public interest.” 

Presiding Justice Conrad L. Rushing and Justice  Franklin D. Elia joined Premo in his decision.

The case is Vargas v. City of Salinas, 11 S.O.S. 6209.


Copyright 2011, Metropolitan News Company