Order Denying Attorney Fees in Election Writ Case Reversed

Thursday, May 21, 2020

Page 1

Order Denying Attorney Fees in Election Writ Case Reversed

C.A. Says Requirement of Private Attorney General Statute That ‘Significant Benefit’ Be Conferred on Public Was Met by Defeating Challenge to Candidate Statement; Anti-SLAPP Statute Held Applicable

By ROGER M. GRACE, Editor

The Court of Appeal has reversed an order denying attorney fees to three candidates for city offices who successfully beat off a writ challenge to their 2018 candidate statements, holding that the trial judge erred in finding that they failed to meet the requirement of the private attorney general statute that the outcome promoted the public’s interest.

On remand, the opinion decrees, such fees are to be awarded if the other requirements of that statute, Code of Civil Procedure §1021.5, are found to be met and, in any event, it says, fees must be granted under the anti-SLAPP statute, Code of Civil Procedure §425.16.

The opinion, filed Tuesday, was authored by Acting Presiding Justice Richard M. Aronson of the Fourth District’s Div. Three. It reverses orders by retired Los Angeles Superior Court Judge James Brandlin, sitting on assignment to the Orange Superior Court.

Will Seek Publication

Div. Three opted not to order that the opinion be published. However, Irvine attorney Kenneth D. Agran, who represented the successful appellants, said yesterday:

“We do intend to seek publication of the opinion since we believe the criteria for publication are met. Indeed, Sandlin v. McLaughlin appears to be the first case to squarely hold that the anti-SLAPP statute can be successfully used in response to a meritless challenge to a candidate statement.”

He added:

“Our clients are pleased that the Court of Appeal has recognized for the first time that candidates who are forced to defend their statements in the trial court against meritless challenges may be awarded attorney fees for enforcing important rights and conferring a significant benefit on the general public under Code of Civil Procedure §1021.5.”

Candidates in Irvine

Appealing the orders were retired high school teacher Ed Pope, who ran for mayor of Irvine, and two contenders for seats on the Irvine City Council, retired urban planner Frank McGill and real estate broker Jaci Woods. All three lost in the Nov. 7, 2018 general election.

Candidate statements for each of them referenced their support for plans to construct a veterans’ cemetery adjacent to the Orange County Great Park, located in Irvine on the former site of the El Toro Naval Base, and their leadership in opposing a referendum defeated by city voters on June 5, 2018, to change the site. Vietnam veteran Bill Sandlin, who had favored the referendum, filed the writ petition challenging the candidate statements, slated to be published in the sample ballot.

The candidates were the real parties in interest in Sandlin’s action, in which City Clerk Molly McLaughlin Perry was the respondent.

Brandlin denied Sandlin’s writ petition, holding that representations of fact contained in the statements had not been demonstrated to be false. He subsequently declared the candidates’ pending anti-SLAPP motions to be moot and denied attorney fees sought pursuant to those motions.

CCP §1021.5

He also denied fees under the private attorney general statute, saying that the candidates failed to meet the statute’s requirement of establishing that their effort “has resulted in the enforcement of an important right affecting the public interest” in the form of “a significant benefit” having been “conferred on the general public.”

Aronson disagreed, saying that Brandlin’s ruling in connection with §1021,5 “finds no support in the record and transgresses the confines of applicable legal principles.”

The jurist wrote:

“In this case, if Petitioner’s writ petition had succeeded, it would have deprived local voters of critical information about each candidate’s views—the information that is most important when casting a vote. Real Parties’ litigation efforts led to the dissemination of their uncensored candidate statements to over 100,000 Irvine voters. Their successful defense of the writ petition thus enforced not only their constitutional right to communicate vital information about their views and positions to voters, but also Irvine voters’ constitutional right to receive information essential to thoughtful decisionmaking and democratic self-government.”

He continued:

“These undoubtedly qualify as important rights affecting the public interest, and in enforcing those rights, Real Parties conferred a significant benefit on a large class of citizens who voted in the City of Irvine’s election for mayor and city council.”

Aronson added:

“Petitioner contends the fact that Real Parties ultimately lost the election reflects there was no significant public benefit or enforcement of a public right. This argument confuses the outcome of the election with the outcome of the litigation. Even though Real Parties eventually lost the election, in the weeks leading up to the election they nevertheless enforced important political speech rights, thereby benefiting the electorate.”

Anti-SLAPP Motion

Brandlin—who handled criminal matters while on the Los Angeles Superior Court until his retirement in 2018—held with respect to the anti-SLAPP motion:

“No relief other than changes in the ballot statements of real parties was sought. Since the entire action was disposed of by the Court’s ruling on the Petition, it does not have jurisdiction to hear the anti-SLAPP Motion, notwithstanding the parties’ belief to the contrary.”

Aronson said: “This was plainly erroneous.”

He pointed to the Jan. 29, 2004 decision by the First District’s Div. Three in Moraga-Orinda Fire Protection District v. Weir in which it was held that “resolution of the underlying action” for a writ of mandate “does not moot a fee request under the SLAPP statute.”

The jurist also noted the Aug 14, 2002 opinion of this district’s Div. Five in Pfeiffer Venice Properties v. Bernard where it was said—with italicizing by Aronson—that “because a defendant who has been sued in violation of his or her free speech rights is entitled to an award of attorney fees, the trial court must, upon defendant’s motion for a fee award, rule on the merits of the SLAPP motion even if the matter has been dismissed prior to the hearing on that motion.”

He commented:

“This requirement makes sense. If a writ petitioner files a meritless SLAPP petition, he should not be permitted to avoid the anti-SLAPP statute’s attorney fee provision simply because the trial court resolves the writ petition first. A contrary rule would nullify the anti-SLAPP statute’s fee provision.”

Exception to Exemption

Brandlin said that even if the motion for fees under §425.16 were not moot, he would deny fees under the public interest litigation exemption to the anti-SLAPP statute, contained in §425.17(b)—which says that “Section 425.16 does not apply to any action brought solely in the public interest or on behalf of the general public….” But, Aronson wrote, there is “an exception to the exemption from anti-SLAPP coverage.”

He drew attention to §425.17(d)(2) which says that subdivision (b) does not apply to “[a]ny action against any person...based upon the creation [or] dissemination...of any...political...work,” observing:

“Real Parties’ creation and submission of candidate statements, which are by definition political writings, plainly fall within this exception.”

Aronson said the candidate statements “squarely qualify as protected activity,” meeting the first prong of the anti-SLAPP statute, and Sandlin could not meet his burden under the second prong of showing a probability of prevailing on the merits because Brandlin had ruled that the writ challenge lacked merit.

Remand Order

The anti-SLAPP motion, Aronson noted, requires an award of attorney fees to the prevailing party and the opinion directs that the Orange Superior Court set the fees to be ordered in favor of the candidates. As to fees under the anti-SLAPP motion, the opinion directs that there be “further consideration.”

Sec. 1021.5 provides for an award to a successful plaintiff in an action that results “in the enforcement of an important right affecting the public interest,” one mark of which is that “a significant benefit, whether pecuniary or nonpecuniary, has been conferred on the general public or a large class of persons” It also requires that “the necessity and financial burden of private enforcement…are such as to make the award appropriate.”

Aronson said that on remand, the court should consider “the necessity and financial burden of private enforcement,” which was not addressed by Brandlin, as well as the reasonableness of the amount sought.

Agran’s Comments

Kenneth D. Agran—who was joined in representing the appellants by his father, Lawrence A. Agran, a former mayor and city councilman of Irvine—said yesterday:

“In the months ahead, and in the absence of a settlement, we plan to follow the court’s instruction in Sandlin v. McLaughlin [G057264] and return to the trial court to establish the fees to which we’re entitled under both the anti-SLAPP statute and the private attorney general statute.”

Santa Ana attorney Mark S. Rosen, who represented Sandlin, did not respond to a request for comment.

Past Instances

The opinion is apt to spark future bids for attorney fees in which ballot designations or candidate statements are challenged—particularly if the Court of Appeal acts to certify it for publication.

Kenneth Agran mentioned that there are “many cases” in Orange County and elsewhere in which attorney fees have been granted to those successfully challenging the content of candidate statements, but not in favor of those successfully defending the content. In Los Angeles County, however, awards of such fees to either side in contests over candidate statements or ballot designations are rare—if not unprecedented as to ballot designation disputes.

Last Dec. 17, Los Angeles Superior Court Judge James Chalfant granted a writ petition to the extent that it prevented a judicial candidate, “Judge Mike Cummins,” from using the ballot designation of “Retired,” standing alone, but the judge did not bother to address the petitioner’s request for attorney fees.

Then-Los Angeles Superior Court Judge John Zebrowski on Oct. 13, 1994, ordered then-Assemblyman Terry Friedman, a candidate for an open seat on the Los Angeles Superior Court, to pay $12,000 in attorney fees incurred by his opponent, attorney John Moriarity, based on a successful challenge to Friedman’s ballot statement. (Zebrowski went on to become a justice of this district’s Court of Appeal and is now a private judge.)

The ruling—made pursuant to §1021.5—came after Moriarity finished second to Friedman in the June 7 primary. (Friedman is now also retired as a judge and is with a mediation/arbitration firm.)

Award by Janavs

A political consultant had a recollection that André Quintero—a Los Angeles deputy city attorney who is now mayor of El Monte—contested the candidate statement of a challenger when he was on a community college board of trustees, and then-Los Angeles Superior Court Judge Dzintra Janavs (now retired) awarded attorney fees to his rival.

“She did grant my opponent attorney fees,” Quintero confirmed yesterday. “It was about $4000.”

That was in 2005 when Dave Siegrist—whom Quintero had defeated in 2001 for a seat on the Rio Hondo Community College District board—made an unsuccessful effort at a come-back.

“I didn’t agree with the decision” by Janavs, Quintero reflected, “but I accepted the result.”

In neighboring Ventura County, Oxnard Mayor Tim Flynn faced a recall election. The effort failed, but Aaron Starr, the recall organizer, won an award of $9,055 in attorney fees for his successful challenge to Flynn’s candidate statement in which the incumbent claimed: “Today, the city has the first balanced budget and clean audit in decades!”

Ventura Superior Court Judge Vincent O’Neill found the statement to be false.