Metropolitan News-Enterprise


Friday, December 1, 2017


Page 1


Governmental Entity Has Right to Express Its Views, Call for D.A. to Act—C.A.

Presiding Justice Gilbert Says Denial of Anti-SLAPP Motion Was Error


By a MetNews Staff Writer


The Court of Appeal for this district yesterday reversed the denial of an anti-SLAPP motion by a division of Ventura County which is being sued over having branded chemicals stored at a plant as “hazardous waste” and saying it would not issue a citation but would share its view with the District Attorney’s Office.

The plaintiff, Santa Clara Waste Water Company (“SCWW”)—which has a permit to treat only nonhazardous wastes—maintained in its lawsuit that the county’s Environmental Health Division had no right to proclaim drums of chemicals on its site to be hazardous without holding a hearing.

Ventura Superior Court Judge Rocky J. Baio’s denial of a special motion to strike was reversed by Div. Six of the appeals court, in an opinion by Presiding Justice Arthur Gilbert.

“Even the government has first amendment rights,” he declared.

First Prong

Code of Civil Procedure §425.16 provides that the first step in determining if a lawsuit is a SLAPP is to examine whether the defendant’s conduct arises “from any act of that person in furtherance of the person’s right of petition or free speech” in connection with a public issue.

The jurist pointed out that all the county’s division did was express an opinion.  Gilbert wrote:

“[T]he Division twice stated in writing that it intends to take no action other than to refer the matter to the district attorney. SCWW does not contend the Division has taken any other action. A police officer who witnesses a crime is not required to hold a hearing before a neutral magistrate before referring the matter to the district attorney. Neither is the Division.”

The presiding justice went on to say:

“SCWW’s petition seeks to deprive the Division of its right to free speech. The Division has satisfied the first step in the anti-SLAPP analysis. It has made a prima facie case showing that SCWW’s causes of action arise from an act in furtherance of the Division’s right and responsibility to make a statement involving a public issue.”

Second Prong

Baio, having found that the first prong of the anti-SLAPP statute was not satisfied, he did not proceed to a consideration of the second prong: whether the plaintiff has shown a probability of prevailing on the merits. Gilbert said there was no need to remand the case for Baio to do that.

Noting that Baio had sustained a demurrer to the complaint with leave to amend, Gilbert pointed out that “a plaintiff cannot avoid an anti-SLAPP motion by amending the complaint,” and said the complaint, as filed, must be examined.

He wrote:

“In sustaining the Division’s demurrer, the trial court determined that, as a matter of law, SCWW’s complaint failed to state a cause of action. In addition, our review of the trial court’s ruling on an anti-SLAPP motion, including the probability of the plaintiff’s success, is de novo….Because we can decide the question as a matter of law, it would be a waste of judicial resources to remand the matter to the trial court.”

Gilbert found two Health and Safety Code sections cited by SCWW to be inapplicable. Addressing SCWW’s contention that declaring its cite to contain hazardous waste without a hearing deprives it of due process, he said:

“SCWW cites no authority that even remotely supports its argument. SCWW will receive all the process that is due to it in the criminal prosecution.”

The case is Santa Clara Waste Water Company v. County of Ventura Environmental Health Division, 2017 S.O.S. 5884.

Attorneys on appeal were Assistant Ventura County Counsel Eric J. Walts for the county’s division and Barry C. Groveman, William W. Carter, Marc R. Greenberg, K. Ryan Hiete, Cheryl A. Orr and Andrew Gilford of Musick, Peeler & Garrett for SCWW.


Copyright 2017, Metropolitan News Company