C.A. Orders Publication of Opinion on Fees for Candidates

Thursday, June 18, 2020

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C.A. Orders Publication of Opinion on Fees for Candidates

Opinion Mandates Award of Attorney Fees Under Anti-SLAPP Statute to Three 2018 City Office-Seekers Who Defeated a Writ Challenge to Their Candidate Statements; Says CCP §1021.5 Fees Are Possible

By a MetNews Staff Writer

Div. Three of the Fourth District Court of Appeal yesterday ordered publication of a decision in which it directs that attorney fees be awarded under the anti-SLAPP statute to three aspirants for offices in the City of Irvine who defeated a writ challenge to their 2018 candidate statements, and also requires further consideration of their fee request under the private attorney general law.

The opinion in the case, Sandlin v. McLaughlin, G057264, was filed, but not certified for publication, on May 19. At that time, Irvine attorney Kenneth D. Agran—who, with his father, Lawrence A. Agran, represented the three 2018 candidates—said:

“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.”

In yesterday’s order, the panel agreed that the opinion “meets the standards” for publication.

Acting Presiding Justice Richard M. Aronson is the author of the opinion. It reverses orders by retired Judge James Brandlin, who left the Los Angeles Superior Court in 2018, and was sitting on assignment to the Orange Superior Court when he rebuffed the fee requests of the candidates.

Falsity Not Shown

The writ proceeding was brought by community activist Bill Sandlin against City Clerk Molly McLaughlin to bar dissemination of the candidate statements with the sample ballot. The candidates—retired high school teacher Ed Pope, who ran for mayor, and retired urban planner Frank McGill and real estate broker Jaci Woods who sought seats on the City Council—were the real parties in interest.

Brandlin found that their statements had not been shown by Sandlin to be false.

Having denied the petition, Brandlin ruled that the anti-SLAPP motion, pursuant to Code of Civil Procedure §425.16, was moot. Explaining the reversal, Aronson said:

“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.”

Expediting Review

Sandlin argued that the anti-SLAPP statute has no place in an election dispute because its purpose is to expedite review, and that’s already provided for in the Elections Code. That that is a purpose of the statute, Aronson responded, but not its only aim.

He quoted the California Supreme Court’s 2001 decision in Ketchum v. Moses as saying that an objective of the special motion to strike is to encourage “private representation in SLAPP cases, including situations when a SLAPP defendant is unable to afford fees or the lack of potential monetary damages precludes a standard contingency fee arrangement.”

Aronson remarked:

“Depriving a defendant of the ability to recover attorney fees when facing a meritless SLAPP writ petition would run contrary to those purposes. The trial court therefore erred in denying Real Parties’ anti-SLAPP motion as moot.”

Public Interest Exception

Brandlin also erred, he said, in finding that Code of Civil Procedure §425.17 bars an award of fees. That section says that §425.16—generally mandating attorney fees in favor of a party who successfully brings an anti-SLAPP motion—“does not apply to any action brought solely in the public interest or on behalf of the general public….”

Aronson noted §425.17 also provides that the public interest exception does not pertain in “[a]ny action against any person...based upon the creation [or] dissemination...of any...political...work.”

The jurist said:

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

Veterans’ Cemetery

The statements each alluded to the candidate’s support for plans to construct a veterans’ cemetery adjacent to Irvine’s Orange County Great Park, located on the former site of the El Toro Marine Corps Air Station. The city has taken varying positions on an Amended and Restated Development Agreement (”ARDA”) under which the state would own and operate the cemetery.

Aronson said the first prong of the anti-SLAPP statute—that the action was based on protected speech—was met because the candidate statements “contributed to and furthered the ongoing public debate over the use of the ARDA site and the location of the veterans cemetery, both of which were matters of public interest.”

The second prong, a showing by the party bringing the action of a probability of prevailing on the merits, was an impossibility given that Sandlin lost on the merits, the jurist said.

Sec. 1021.5

The three candidates—each of whom lost in the November election—also sought fees under Code of Civil Procedure §1021.5, the private attorney general statute.

Aronson wrote:

“In denying Real Parties’ fee motion, the trial court ruled, without any discussion of either the facts or applicable law, that Real Parties had ‘not met their burden to establish that their successful defense against the Petition resulted in the enforcement of an important right affecting the general public’ or ‘resulted in a significant benefit to the public.’ This ruling finds no support in the record and transgresses the confines of applicable legal principles.

“The record demonstrates Real Parties’ successful defense resulted in the enforcement of an important right affecting the public interest.”

Information for Voters

He went on to say:

“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 decision-making and democratic self-government.”

The justice added:

“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.”

Remand Ordered

The matter of attorney fees under §1021.5 was remanded for further findings, including whether “the necessity and financial burden of private enforcement are such as to make the award appropriate.”

Yesterday’s order certifying the opinion for publication also contains some modifications of the May 19 opinion. Among them is the addition of a footnote following the discussion of the public benefit, which says:

“Of course, a candidate for public office who disseminates a false candidate statement in the official voter pamphlet confers no significant benefit to the public. Here, the trial court found Petitioner failed to present clear and convincing evidence that Woods or McGill offered false candidate statements, and we accept that finding since Petitioner did not appeal the court’s ruling.”

Requests for Publication

The order says that certification for publication comes in response to a request from attorney Beverly Grossman Palmer of the law firm of Strumwasser & Woocher.

Also seeking certification was Kenneth Agran. His June 2 letter to the court says, in part:

“At the outset, it’s important to note that Sandlin v. McLaughlin is the first appellate decision to squarely hold that the anti-SLAPP statute can be successfully used in response to a meritless challenge to a candidate statement. The First District’s decision in Moraga-Otinda Fire Protection Dist. v. Weir (2004)…helped pave the way for that result, but Moraga-Otinda involved a challenge to a ballot argument rather than a candidate statement, and litigants and courts alike have attempted to draw distinctions between those two contexts when applying the anti-SLAPP statute and or the private attorney general statute….Publication of this Court’s opinion in Sandlin would make it clear that the reasoning in Moraga-Orinda concerning the applicability of the anti-SLAPP statute to ill-conceived challenges to ballot arguments extends, with equal force, to meritless challenges to candidate statements….

“Sandlin v. McLaughlin is also the first appellate decision to recognize that candidates who successfully defend their statements against meritless challenges may be awarded trial court attorney fees for enforcing important rights and conferring a significant benefit on the general public under §1021.5.”

Santa Ana attorney Mark S. Rosen represented Sandlin.