BILL ANALYSIS
SENATE JUDICIARY COMMITTEE
Senator Ellen M. Corbett, Chair
2009-2010 Regular Session
SB 786
Senator Yee
As Amended May 6, 2009
Hearing Date: May 12, 2009
Code of Civil Procedure
KB:jd
SUBJECT
Civil Procedure: Attorney's Fees and Costs
DESCRIPTION
Existing anti-SLAPP law provides that a cause of action against
a person arising from any act of that person in furtherance of
the person's right of petition or free speech under the United
States or California Constitution in connection with a public
issue shall be subject to a special motion to strike, unless the
court determines that the plaintiff has established that there
is a probability that the plaintiff will prevail on the claim.
A prevailing defendant on that special motion to strike is
entitled to recover his or her attorney's fees and costs.
This bill would prohibit prevailing government bodies or
entities from recovering attorney's fees and costs on an
anti-SLAPP special motion to strike for specified actions
brought pursuant to the California Public Records Act,
Bagley-Keene Open Meetings Act, and Ralph M. Brown Act.
BACKGROUND
Strategic Lawsuits Against Public Participation (SLAPP suits),
were first defined by University of Denver Law School Professor
George Pring and University of Denver Sociology Professor
Penelope Canan in their seminal article, Strategic Lawsuits
Against Public Participation, (Social Problems, 35(5):506-519
(1988)), as "civil lawsuits ? that are aimed at preventing
citizens from exercising their political rights or punishing
those who have done so."
(more)
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While SLAPP suits "masquerade as ordinary lawsuits" such as
defamation and interference with prospective economic advantage,
they are generally suits without merit brought primarily to
chill the exercise of free speech or petition rights through the
threat of severe economic sanctions against the defendant, and
not to vindicate a legally cognizable right. (See Pring and
Canan, SLAPP: Getting Sued for Speaking Out, Temple University
Press, 1996.)
In 1992, the California Legislature enacted Code of Civil
Procedure Section 425.16 (SB 1264, Lockyer, Chapter 726,
Statutes of 1992) to provide a "special motion to strike" for
use by defendants in SLAPP lawsuits to obtain an early judicial
ruling and termination of a SLAPP suit arising out of the
defendant's exercise of his or her constitutional rights of
petition and free speech in connection with a public issue. The
anti-SLAPP statute also stays the discovery process until the
court has ruled on the motion. Thus, the statute is designed to
terminate SLAPP suits early on without a significant cost to the
defendant. A prevailing defendant on a special motion to strike
is also entitled to attorney's fees and costs.
In enacting the anti-SLAPP law, the Legislature expressly found
that "there has been a disturbing increase in lawsuits primarily
to chill the valid exercise of the constitutional rights of
freedom of speech and petition for the redress of grievances ?
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."
This bill, sponsored by the First Amendment Coalition, seeks to
correct a perceived abuse of the anti-SLAPP law by government
bodies or entities that use the special motion to strike to
defend against actions brought pursuant to laws intended to
promote open government. Specifically, this bill would
prohibit prevailing government bodies or entities from
recovering attorney's fees and costs on an anti-SLAPP special
motion to strike for specified actions brought pursuant to the
California Public Records Act, Bagley-Keene Open Meetings Act,
and Ralph M. Brown Act.
CHANGES TO EXISTING LAW
Existing law provides that a cause of action against a person
arising from any act of that person in furtherance of the
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person's right of petition or free speech under the United
States or California Constitution in connection with a public
issue shall be subject to a special motion to strike, unless the
court determines that the plaintiff has established that there
is a probability that the plaintiff will prevail on the claim.
(Code of Civ. Proc. Sec. 425.16.)
Existing law provides that a prevailing defendant on the special
motion to strike shall be entitled to attorney's fees and costs.
(Code of Civ. Proc. Sec. 425.16.)
Existing law , the Ralph M. Brown Act, requires that all meetings
of a legislative body of a local agency be open and public and
all persons be permitted to attend unless a closed session is
authorized. (Gov. Code Sec. 54950 et seq.)
Existing law , the California Public Records Act (CPRA) requires
all state and local
agencies to make their records available for public inspection
and copying upon request
and payment of fees, unless those records are exempt from
disclosure. (Gov. Code Sec. 6250 et seq.)
Existing law , the Bagley-Keene Open Meeting Act, covers all
state boards and commissions and generally requires these bodies
to publicly notice their meetings, prepare agendas, accept
public testimony, and conduct their meetings in public unless
specifically authorized by the Act to meet in closed session.
(Gov. Code Secs. 11120-11132.)
This bill would prohibit a prevailing defendant from recovering
attorney's fees and costs in the following actions: (1) whenever
it is made to appear by verified petition that certain public
records are improperly being withheld from a member of the
public; (2) specified actions involving meeting provisions of
the legislative body of a local agency or a state body, or (3)
an action to obtain a judicial determination that an action
taken by a legislative body of a local agency or a state body is
null and void, as specified.
COMMENT
1. Stated need for the bill
The author states:
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Litigation to enforce the open government laws that is
dismissed on the motion to strike creates a palpable chilling
impact on a citizen's willingness to attempt to enforce the
basic civil rights the laws are intended to protect. Open
government laws like the Brown Act and the California Public
Records Act provide that a plaintiff suing to enforce them can
be required to pay a prevailing (government agency)
defendant's attorney's fees only upon a court finding that the
plaintiff's case was irresponsible: "clearly frivolous and
totally lacking in merit (Brown Act - Government Code Section
54960.5 or 6259(d)). These good faith plaintiff protections
allow citizens to go to court if necessary with what they
believe to be meritorious litigation to correct unlawful
government secrecy without the chill of being saddled with
crippling fee exposure as the cost of losing.
This is not a speculative risk. In Californians Aware et al.
v. Orange Unified School District, No. G038499 (Cal.App. Dist.
4 09/04/2008,) the plaintiff nonprofit organization and its
then president, a community college professor, brought an
action under the Brown Act, the California Public Records Act
and the First Amendment seeking a declaration that the rights
of a school trustee under these laws were violated when the
board majority sanctioned him for critical comments made
during a public meeting and when those comments were edited
out of the district's publicly distributed and cablecast video
recording of the meeting. The case was dismissed and an
anti-SLAPP motion by the defendant school district, and the
dismissal was upheld by the California Court of Appeal. The
plaintiffs were ordered to pay the district's attorney fees
totaling more than $80,000. Since the nonprofit
organization's resources were minimal, its co-plaintiff
president was required to pay almost this entire amount, which
meant a substantial depletion of his retirement funds.
If this experience continues as even a remote risk, no prudent
person will use the courts to enforce open government rights
that recently were given fundamental constitutional status,
along with speech, press and privacy by the voters in the
passage of Proposition 59 of 2004 (Article 1, Section 3(b)).
2.Limitations on the award of attorney's fees and costs for
specified actions brought to enforce the California Public
Records Act, Bagley-Keene Act, or the Brown Act
California currently has a number of statutes that are intended
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to increase transparency and promote greater public
participation in government. This bill seeks to prohibit the
award of attorney's fees and costs to a prevailing defendant on
an anti-SLAPP special motion to strike if the cause of action
was brought to enforce specified provisions of these open
government laws.
a) Actions pursuant to the California Public Records Act
The California Public Records (CPRA) Act was enacted in 1968
with the primary purpose of providing the public with an
opportunity to monitor the functioning of their government.
In enacting the CPRA, the Legislature declared that "access to
information concerning the conduct of the people's business is
a fundamental and necessary right of every person in this
state." (Gov. Code Sec. 6250.) Pursuant to the CPRA, all
governmental records must be disclosed to the public, upon
request, unless there is a specific reason not to do so, such
as preserving an individual's right to privacy. If an agency
improperly withholds records, a member of the public may
enforce his or her right to do so through a civil action, and
is entitled to recover attorney's fees and costs. (Id.)
This bill would provide that attorney's fees and costs would
not be available to a prevailing defendant under the
anti-SLAPP law in actions brought to compel disclosure of
public records that are improperly being withheld from a
member of the public.
b) Actions brought pursuant to the Bagley-Keene Open Meeting
Act
The Bagley-Keene Open Meeting Act (Bagley-Keene), set forth in
Government Code Sections 11120-11132, covers all state boards
and commissions. Generally, it requires these bodies to
publicly notice their meetings, prepare agendas, accept public
testimony and conduct their meetings in public unless
specifically authorized by the Act to meet in closed session.
Essentially, Bagley-Keene, in recognition of the fact that
"[t]he people of this state do not yield their sovereignty to
the agencies which serve them," (Gov. Code Sec. 11120)
provides the public with the ability to monitor and
participate in decision-making processes. Bagley-Keene
provides for remedies and penalties in situations where
violations have allegedly occurred. Depending on the
particular circumstances, the decision of the body may be
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overturned (Gov. Code Sec. 11130.3), violations may be stopped
or prevented (Gov. Code Sec. 11130), and costs and fees may be
awarded (Gov. Code Sec. 11130.5).
This bill would provide that attorney's fees and costs would
not be available to a prevailing defendant under the
anti-SLAPP law in actions brought to stop or prevent
violations of the Bagley-Keene Act or to void actions taken by
a state body in violation of Bagley-Keene's open meeting
requirements.
c) Actions brought pursuant to the Ralph M. Brown Act
The Ralph M. Brown Act (Gov. Code Sec. 54950 et seq.) also
requires all meetings of a local agency's legislative body to
be open and public, all persons to be permitted to attend, and
any closed session to be held only if the subject matter to be
discussed is authorized, previously announced, and the results
of any action taken during the closed session announced to the
public. The Brown Act, like Bagley-Keene, is based on the
underlying public policy that "public agencies in this State
exist to aid in the conduct of the people's business" and
their actions and deliberations should be taken and conducted
openly." (Gov. Code Sec. 54950.) Individuals may file civil
lawsuits for injunctive, mandatory, or declaratory relief, or
to void action taken in violation of the Brown Act. (Gov.
Code Secs. 54960-54960.1.) A court may award attorney's fees
and costs to a prevailing plaintiff if it finds that the
legislative body of a local agency violated provisions of the
Brown Act. (Gov. Code Sec. 54960.5.)
This bill would provide that that attorney's fees and costs
would not be available to a prevailing defendant under the
anti-SLAPP law in actions to stop or prevent violations of the
Brown Act by a legislative body of a local agency, and in
actions to obtain a judicial determination that an action
taken in violation of the Brown Act is null and void.
1.Bill appears to be consistent with original purpose of the
anti-SLAPP law
Although the anti-SLAPP law was designed to protect a citizen's
rights of petition and free speech from the chilling effect of
retaliatory litigation, there have been instances where the law
has been abused and also used as a litigation weapon. For
example, after the statute was enacted, corporations began to
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use the special motion to strike to challenge actions brought
against them pursuant to California's unfair competition laws
(Bus. & Prof. Code Secs. 17200-17210.) In order to correct
this abuse, the Legislature enacted Code of Civil Procedure
Section 425.17 (SB 515, Kuehl, Chapter 338, Statutes of 2003)
which prohibits anti-SLAPP motions in response to (1) public
interest and class actions when certain conditions are met, and
(2) actions against a business that arise from commercial
statements or conduct of the business.
This bill seeks to remedy a different perceived abuse of the
anti-SLAPP law, this time by government bodies and entities that
use the special motion to strike to challenge actions brought
against them pursuant to laws intended to promote governmental
transparency and public participation. Notably, this bill would
not prevent government entities or bodies from using the
anti-SLAPP law to challenge these cases with a special motion to
strike; rather they would not be entitled to an automatic award
of attorney's fees and costs.
As evident in the Legislature's findings and declarations for
the Public Records Act, Bagley-Keene Open Meetings Act, and the
Brown Act, the public has an interest in maintaining access to
information regarding the public's business and the opportunity
to participate in matters regarding the public's business. The
overarching question for this committee is whether it is
consistent with the purpose of the anti-SLAPP law for government
entities and bodies to collect attorney's fees upon prevailing
on a special motion to strike against members of the public
seeking to enforce laws promoting transparency and integrity in
the democratic process. In light of the fact that government
entities often have more resources at their disposal than the
average citizen or non-profit organization, allowing them to
recover attorney's fees and costs on an anti-SLAPP special
motion to strike could arguably serve to subvert the original
intent of the anti-SLAPP law; to avoid chilling participation on
matters of important public interest.
2.Attorney's fees and costs would still be available where suits
are frivolous or lacking in merit
The California Public Records Act, the Bagley-Keene Open
Meetings Act, and the Brown Act each contain provisions allowing
the court to award a prevailing public agency reasonable
attorney's fees and costs if the court finds the plaintiff's
action is clearly frivolous or lacking in merit. (Gov. Code
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Secs. 6259, 11130.5, 54960.5.) Thus, although this bill would
prohibit an award of attorney's fees and costs to a prevailing
public entity on a special motion to strike for specified causes
of actions brought pursuant to these Acts, a public agency would
still be able to recover attorney's fees and costs when it
prevails in a final determination of the action, and the court
finds the action was frivolous or lacking in merit. This
higher standard for the recovery of attorney's fees and costs is
arguably more appropriate for open government laws in order to
protect the public's ability to enforce these laws through civil
actions.
Support : Californians Aware; California Newspaper Publishers
Association; American Civil Liberties Union
Opposition :None Received
HISTORY
Source : California First Amendment Coalition
Related Pending Legislation : None Known
Prior Legislation :
AB 229 of the 2008 Legislative Session would have provided that
a special motion to strike, pursuant to California's anti-SLAPP
law, shall not apply to a cause of action brought to enjoin
violations of, or to compel compliance with specified provisions
of the Political Reform Act of 1974. This bill was passed by
this committee, but was subsequently placed on the inactive file
on the Senate Floor.
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