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Action Based on Content of FPPC Form Not Exempt From Striking As SLAPP—C.A.
Form 700 Is ‘Political Work,’ Justices Say
By a MetNews Staff Writer
Div. Three of the Fourth District Court of Appeal held yesterday that Code of Civil Procedure §425.17, which exempts public-interest lawsuits from the ambit of the anti-SLAPP statute, does not bar an action alleging that an office-holder failed to disclose a source of income on the Statement of Economic Interests California Form 700 filed with the state Fair Political Practices Commission.
Justice Richard D. Fybel authored the opinion which affirms an order by Santa Clara Superior Court Judge Mark H. Pierce granting a special motion to strike, pursuant to Code of Civil Procedure §425.16. The anti-SLAPP motion was filed by Santa Clara Mayor Lisa Gillmor in response to an action filed against her in 2018 by Brian Exline, then a resident of the city.
He was a student at Santa Clara University School of Law at the time and is now a Fresno County deputy district attorney.
Exline contends that Gilmore, who has been mayor since 2016 and served terms on the City Council before that, violated the Political Reform Act of 1974 by failing to disclose her interest in a real estate company, Public Property Advisors. That company, Gillmor insists, is merely a fictitious business name of Gary Gillmor & Associates, a family business, pointing out that she did report income from that entity.
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LISA GILMOR Santa Clara Mayor |
CCP §425.17
Sec. 425.17 was amended effective Jan. 1 2017 to reduce the number of anti-SLAPP motions. It recites in Subsection (a):
“The Legislature finds and declares that there has been a disturbing abuse of Section 425.16 , the California Anti-SLAPP Law, which has undermined the exercise of the constitutional rights of freedom of speech and petition for the redress of grievances, contrary to the purpose and intent of Section 425.16. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process or Section 425.16 .”
Subsection (b) declares, subject to conditions, that “Section 425.16 does not apply to any action brought solely in the public interest or on behalf of the general public.”
It is that provision upon which Exline relied.
The statute contains an exception, which Gillmor invoked. Subsection (d)(2) says the exemption from §425.16 in inapplicable in “[a]ny action against any person or entity based upon the creation, dissemination, exhibition, advertisement, or other similar promotion of any…political…work.”
Exception Found Applicable
“We hold that the exception applies to completion of the Form 700 and the complaint in this case is therefore subject to the anti-SLAPP law,” Fybel wrote.
“As pointed out by the trial court, no court has addressed whether an action premised on Form 700 filings is an action based on political work within the meaning of section 425.17,” he noted. In finding that it is, he explained:
“There is no question Form 700 is political in nature….
“Gillmor’s Form 700 filings also constitute political work within the meaning of section 425.17(d)(2) as Gillmor filled out these complex, comprehensive, and public forms through her effort as required by law….The process of completing the Form 700 requires effort; a public official must discern what the law requires the official to disclose, as it may not always be obvious.”
‘Plain Meaning’
He went on to say:
“[I]in light of the plain meaning of the statutory language coupled with the legislative intent that section 425.16 be applied broadly and exemptions to that statute be applied narrowly, we conclude Gillmor’s efforts to complete and file Form 700’s constitute political work, thereby rendering the public interest exemption to section 425.16 inapplicable.”
Fybel did not go on to analyze whether Exline’s action stems from protected speech, the first prong of the anti-SLAPP statute, nor address whether Exline had shown of probability of prevailing on the merits, if the first prong had been met. He explained that on appeal, Exline “does not argue the trial court erred by concluding this action arises out of protected activity within the meaning of section 425.16, or that Exline failed to show a probability of prevailing on the merits,” rendering further discussion unnecessary.
The case is Exline v. Gillmor, G060034.
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