ANTI-SLAPP STATUTE AMENDMENT BILL DIGEST

Introduction
The proposed bill amends Section 425.16 of the Code of Civil Procedure (the
anti-SLAPP statute) by extending the attorney fee exemption provisions under
subdivision (c)(2) of the current statute. The bill is modeled after SB 786 (Yee [Stats.
2009, ch. 65, 1]) which prohibits a prevailing defendant on a special motion to strike
from recovering attorneys fees and costs in matters relating to public records requests
and open meeting laws.

The foregoing approach under SB 786 (Yee) had strong

bipartisan support in the Legislature.

The proposed bill provides extended attorney fee exemptions for legal challenges
in the following primary areas: (1) unlawful campaign communications or activities by a
public entity in connection with a ballot measure; and (2) unlawful election materials
prepared by a public entity in connection with a ballot measure. Following the approach
of SB 786 (Yee), the special motion to strike tool would still be available with respect to
the foregoing extended exemptions, but a prevailing defendant would not be entitled to
recover attorney fees and costs under Section 425.16.

Background Information
The proposed bill is primarily in response to two published appellate court
decisions in Vargas v. City of Salinas (Vargas litigation). The following background
information concerning the Vargas litigation is derived from the official published
appellate court decisions:
The controversy that gave rise to the Vargas litigation was a local initiative
measure drafted and circulated in 2001 by residents of the City of Salinas (located in
Monterey County). The initiative measure, known as Measure O, would have repealed
the utility users tax in Salinas. Prior to the election, the City of Salinas issued a report

and published several articles describing the impact upon municipal services if the
measure were enacted. On October 7, 2002, plaintiffs Angelina Morfin Vargas and Mark
Dierolf, who were supporters of the tax repeal initiative, sued the defendants City of
Salinas and city manager, David Mora, for alleged misuse of public funds. The plaintiffs
alleged that the publications were campaign materials for which the City of Salinas may
not lawfully expend public funds, and not merely informational material, which may be
produced at taxpayer expense. (See Stanson v. Mott (1976) 17 Cal.3d 206.)
The trial court granted the Citys special motion to strike under the anti-SLAPP
statute. An appeal followed and, given the importance of the legal issues involved, the
case worked its way up to the California Supreme Court which granted review on April
26, 2006. On April 20, 2009, the California Supreme Court in Vargas v. City of Salinas
(2009) 46 Cal.4th 1 (Vargas I) concluded that the disputed publications were not
unlawful campaign materials, although the reasoning by the Supreme Court was different
from that of the lower courts.
Following the decision in Vargas I, the City of Salinas filed a motion for attorney
fees under the anti-SLAPP statute.

The trial court awarded the City of Salinas a

substantial attorney fee award of $226,928 and $2,495.84 in costs for which the plaintiffs
were personally liable. The plaintiffs appealed the postjudgment attorney fees orders.
On November 18, 2011, the Court of Appeal in Vargas v. City of Salinas (2011) 200
Cal.App.4th 1331 (Vargas II) affirmed the trial courts order granting the City of
Salinas motion for attorney fees under the anti-SLAPP statute. The appellate court held
in Vargas II that the anti-SLAPP statute was not an unconstitutional infringement of the
right of petition when applied in cases against the government.

Policy Issues
While the Vargas litigation related to a local tax repeal initiative, the resulting
appellate court decisions impact ballot measures covering many other subject areas. This
was evidenced by broad amicus (friend of the court) support across the political spectrum

received by the plaintiffs in the Vargas litigation, including amicus support from the
following groups: First Amendment (First Amendment Project & First Amendment
Coalition), open government (Californians Aware), environmental (Sierra Club), and the
business community (California Chamber of Commerce & California Business
Roundtable).
As a direct result of the appellate decisions in the Vargas litigation, a significant
chilling effect exists on the willingness and capability of private citizens and
organizations, including nonprofit organizations acting in the public interest, to take legal
action against government agencies spending public funds to improperly influence the
outcome of ballot measures, including through the preparation of improper election
materials such as an impermissibly partisan ballot title and question. Empirical evidence
following the Vargas litigation suggests this is already happening.
When a government agency is believed to have engaged in unlawful activity
relating to a ballot measure, the responsibility for initiating legal action to protect the
interests of the people is almost always on the shoulders of private citizens or
organizations. This is the practical reality of the situation when it comes to the legal
enforcement of such fair election laws in California. Under these circumstances, private
party litigants who initiate nonfrivolous legal actions against government agencies
relating to unlawful campaign communications or activities by a public entity in
connection with a ballot measure (or unlawful election materials prepared by a public
entity in connection with a ballot measure) should not be unduly burdened by the
substantial risk of personal liability for crippling attorney fee awards under the antiSLAPP statute.
A private party seeking to enforce laws designed to help ensure fair and impartial
ballot measure elections should not have to face the prospect of bankruptcy or severe
financial harm, as is the case under the existing anti-SLAPP statute following the Vargas
litigation. The existing anti-SLAPP statute thwarts the effective enforcement of fair
election laws by significantly deterring private parties, the vast majority of whom do not

have the deep financial resources to assume the risk of a potentially crippling attorney fee
award under the anti-SLAPP statute, from taking enforcement action to help ensure fair
and impartial ballot measure elections. The end result is that, following the Vargas
litigation, nearly all government agency violations of fair election laws do not face
appropriate enforcement action which has the added effect of encouraging additional
violations of fair election laws by government agencies in the future.
The proposed bill is intended to eliminate the chilling effect resulting from the
Vargas litigation. This will have the effect of enhancing government agency compliance
with fair election laws since government agencies will be more likely to face private
enforcement action if they violate the law. However, based on experience following the
passage of SB 786 (Yee) in 2009, providing an attorney fee exemption under the antiSLAPP statute in public interest matters has not resulted in an opening of the litigation
floodgates against government agencies.
The proposed bill also addresses an equity issue relating to personal liability for
attorney fees and costs. A plaintiff in a private enforcement action against a government
agency can be held personally liable for attorney fees and costs under the current antiSLAPP statute, as was the case in the Vargas litigation. However, even in situations
where a government agency is actually found to violate the law, an award of attorney fees
and costs to plaintiffs in a private enforcement action is generally paid by the government
agency (i.e., taxpayers) and does not become a personal liability of any public officer or
employee of the government agency.
The extended attorney fee exemptions under the proposed bill do not apply to
legal actions that are clearly frivolous and totally lacking in merit. Language to that
effect is expressly included in the bill. This is consistent with the policy enacted under
SB 786 (Yee) in 2009 in addressing concerns relating to frivolous lawsuits. It should also
be noted that at no time did the courts in the Vargas litigation find the lawsuit to be
frivolous.

Digest of Proposed Amendments

A summary of the amended language follows:
Page 2, Line 1: Reasonable term added to attorney fee language. Technical
change to provide consistency in language.
Page 2, Lines 9-15: A restatement of existing statutory language is contained in
subparagraph (A). In line 15, a technical correction is made in referencing Section
54960.5 of the Government Code (current language says 54690.5 which is an error).
Page 2, Lines 16-17. Subparagraph (B) extends the attorney fee exemption to
include claims for violations of the constitutional right of access provision, as added by
the passage of Proposition 59 during the November 2004 General Election. Such claims
are not protected under existing law which only applies to statutory right of access
provisions.
Page 2, Line 18 to Page 3, Lines 1-11: Subparagraph (C) contains the attorney
fee exemption for claims relating to unlawful campaign activities by public entities in
connection with ballot measures. Express references to claims under Section 54964 of
the Government Code and Stanson v. Mott (1976) 17 Cal.3d 206 are included in the
language. Section 59464 of the Government Code, which was added in 2000 (Stats.
2000, ch. 840, 1), contains statutory restrictions on the expenditure of public funds by
specified local agencies in connection with ballot measures. No amendments to Section
59464 are being proposed.
A broad definition of ballot measure is provided to include standard registered
voter measures, measures involving property owner elections, and assessment ballot
proceedings under Section 4 of Article XIII D of the California Constitution. The
language also clarifies that the ballot measure designation applies to certain activities
prior to a measure officially appearing on the ballot. (See, e.g., Santa Barbara County

Coalition Against Automobile Subsidies v. Santa Barbara County Assn. of Governments

(2008) 167 Cal.App.4th 1229.) Language is also included indicating when the ballot
measure designation terminates.
Page 3, Lines 12-20: Subparagraph (D) extends the attorney fee exemption to
include ballot measure election materials prepared by a public entity, or by an officer,
employee, consultant or agent of a public entity. The provisions of subparagraph (D)
help to ensure that governmental agencies prepare fair and impartial election materials,
which serves to maintain the integrity of the electoral process. An inclusive definition of
ballot materials is provided. Examples of election materials include the ballot title and
summary of a measure, the ballot label, and the impartial analysis of a measure. The
anti-SLAPP statute has been applied to voter pamphlet challenges. (See Moraga-Orinda
Fire Protection District v. Weir (2004) 115 Cal.App.4th 477.)
The referenced Election Code sections are as follows: 9092 (state ballot pamphlet
challenges), 9190 (county measures), 9295 (city measures), 9380 (district measures),
9509 (school district measures), 13282 (state ballot labels), and 13314 (error or omission
in the printing of election materials or neglect of duty relating to election materials).
Page 3, Lines 21-23 to Page 4, Lines 1-2: An added paragraph (3) expressly
states that the paragraph (2) attorney fee exemption provisions are to be liberally
construed notwithstanding any other provision of law. In the absence of such language, it
is likely that a court will narrowly construe the paragraph (2) exemption provisions since,
under ordinary rules of statutory interpretation, exemption provisions in general are
narrowly construed. In addition, the broad construction language in subdivision (a)
setting forth the policy provisions relating to the anti-SLAPP statute would likely result
in any applicable exemptions being narrowly construed in the specific case of the antiSLAPP statute.
Paragraph (3) also states that the extended attorney fee exemption provisions shall
not be construed to prevent a recovery of reasonable attorneys fees and costs where the

defendant has prevailed in a final determination of such action and the court finds that the
action was clearly frivolous and totally lacking in merit. This policy is consistent with
that under SB 786 (Yee) enacted in 2009. The clearly frivolous and totally lacking in
merit standard is consistent with the standard set forth in Sections 11130.5 and 54960.5
of the Government Code, as referenced in SB 786 (Yee).

An act to amend Section 425.16 of the Code of Civil Procedure, relating to civil procedure.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
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SECTION 1. Section 425.16 of the Code of Civil Procedure is amended to read:

425.16. (a) The Legislature finds and declares that there has been a disturbing increase

in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of

speech and petition for the redress of grievances. 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. To this end, this

section shall be construed broadly.

(b) (1) A cause of action against a person arising from any act of that person in

furtherance of the persons right of petition or free speech under the United States Constitution

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or the California Constitution in connection with a public issue shall be subject to a special

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motion to strike, unless the court determines that the plaintiff has established that there is a

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probability that the plaintiff will prevail on the claim.

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(2) In making its determination, the court shall consider the pleadings, and supporting
and opposing affidavits stating the facts upon which the liability or defense is based.

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(3) If the court determines that the plaintiff has established a probability that he or she

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will prevail on the claim, neither that determination nor the fact of that determination shall be

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admissible in evidence at any later stage of the case, or in any subsequent action, and no burden

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of proof or degree of proof otherwise applicable shall be affected by that determination in any

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later stage of the case or in any subsequent proceeding.

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(c) (1) Except as provided in paragraph (2), in any action subject to subdivision (b), a

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prevailing defendant on a special motion to strike shall be entitled to recover his or her
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reasonable attorneys fees and costs. If the court finds that a special motion to strike is frivolous

or is solely intended to cause unnecessary delay, the court shall award costs and reasonable

attorneys fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.

(2) A defendant who prevails on a special motion to strike in an action subject to

paragraph (1) shall not be entitled to attorneys fees and costs if that cause of action is brought

pursuant to Section 6259, 11130, 11130.3, 54960, or 54960.1 of the Government Code. Nothing

in this paragraph shall be construed to prevent a prevailing defendant from recovering attorneys

fees and costs pursuant to subdivision (d) of Section 6259, 11130.5, or 54690.5.

(2) A defendant who prevails on a special motion to strike in an action subject to

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paragraph (1) shall not be entitled to recover his or her reasonable attorneys fees and costs if

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that action is brought pursuant to:

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(A) Section 6259, 11130, 11130.3, 54960, or 54960.1 of the Government Code. Nothing

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in this subparagraph shall be construed to prevent a prevailing defendant from recovering

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reasonable attorneys fees and costs pursuant to subdivision (d) of Section 6259, 11130.5, or

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54960.5 of the Government Code.

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(B) Any claim for a violation of subdivision (b) of Section 3 of Article I of the California
Constitution.

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(C) Any claim for an unlawful campaign communication or activity by a public entity, or

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by an officer, employee, consultant or agent of a public entity, in connection with a ballot

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measure, including any unlawful campaign communication or activity in connection with a

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ballot measure pursuant to Section 54964 of the Government Code or pursuant to Stanson v.

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Mott (1976) 17 Cal.3d 206. As used in this subparagraph and subparagraph (D), ballot

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measure means an initiative, referendum, or recall measure certified to appear on an election

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ballot of a public entity, or any other measure submitted to the voters or property owners at an

election of a public entity, or any assessment ballot proceeding under Section 4 of Article XIII D

of the California Constitution. In addition to the foregoing, once an initiative, referendum, or

recall measure commences circulation among voters for potential qualification on the ballot, or

once a public entity commences the process of placing a measure on the ballot, or commences an

assessment ballot proceeding under Section 4 of Article XIII D of the California Constitution, the

ballot measure designation shall apply for purposes of this subparagraph.

measure designation shall continue to apply until such time that the measure has either failed

to qualify or appear on the ballot or, if the measure appears on the ballot, until the day after the

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election or the day after completion of the assessment ballot proceeding under Section 4 of

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Article XIII D of the California Constitution.

The ballot

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(D) Section 9092, 9190, 9295, 9380, 9509, 13282, or 13314 of the Elections Code. The

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provisions of this subparagraph shall be limited to ballot measure election materials prepared

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by a public entity, or by an officer, employee, consultant or agent of a public entity. For

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purposes of this subparagraph, election materials include, but are not limited to, a ballot

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measure title and summary, the ballot label for a ballot measure, an impartial analysis of a

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ballot measure appearing in the ballot pamphlet, any bond statement under Section 9401 of the

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Elections Code, any additional materials sent to property owners in connection with a property

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owner election, and any materials sent to parcel owners in connection with an assessment ballot

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proceeding under Section 4 of Article XIII D of the California Constitution.

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(3) Notwithstanding any other provision of law, the provisions of paragraph (2) shall be

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liberally construed. Nothing in subparagraphs (B), (C), and (D) of paragraph (2) shall be

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construed to prevent a recovery of reasonable attorneys fees and costs where the defendant has

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prevailed in a final determination of such action and the court finds that the action was clearly

frivolous and totally lacking in merit.

(d) This section shall not apply to any enforcement action brought in the name of the

people of the State of California by the Attorney General, district attorney, or city attorney,

acting as a public prosecutor.

(e) As used in this section, act in furtherance of a persons right of petition or free

speech under the United States or California Constitution in connection with a public issue

includes: (1) any written or oral statement or writing made before a legislative, executive, or

judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral

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statement or writing made in connection with an issue under consideration or review by a

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legislative, executive, or judicial body, or any other official proceeding authorized by law, (3)

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any written or oral statement or writing made in a place open to the public or a public forum in

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connection with an issue of public interest, or (4) any other conduct in furtherance of the

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exercise of the constitutional right of petition or the constitutional right of free speech in

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connection with a public issue or an issue of public interest.

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(f) The special motion may be filed within 60 days of the service of the complaint or, in

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the courts discretion, at any later time upon terms it deems proper. The motion shall be

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scheduled by the clerk of the court for a hearing not more than 30 days after the service of the

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motion unless the docket conditions of the court require a later hearing.

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(g) All discovery proceedings in the action shall be stayed upon the filing of a notice of

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motion made pursuant to this section. The stay of discovery shall remain in effect until notice of

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entry of the order ruling on the motion. The court, on noticed motion and for good cause shown,

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may order that specified discovery be conducted notwithstanding this subdivision.

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(h) For purposes of this section, complaint includes cross-complaint and petition,

plaintiff includes cross-complainant and petitioner, and defendant includes cross-

defendant and respondent.

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(i) An order granting or denying a special motion to strike shall be appealable under
Section 904.1.

(j) (1) Any party who files a special motion to strike pursuant to this section, and any

party who files an opposition to a special motion to strike, shall, promptly upon so filing,

transmit to the Judicial Council, by e-mail or facsimile, a copy of the endorsed, filed caption

page of the motion or opposition, a copy of any related notice of appeal or petition for a writ, and

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a conformed copy of any order issued pursuant to this section, including any order granting or

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denying a special motion to strike, discovery, or fees.

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(2)

The Judicial Council shall maintain a public record of information transmitted

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pursuant to this subdivision for at least three years, and may store the information on microfilm

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or other appropriate electronic media.

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