BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 786|
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THIRD READING
Bill No: SB 786
Author: Yee (D)
Amended: 5/20/09
Vote: 21
SENATE JUDICIARY COMMITTEE : 5-0, 5/12/09
AYES: Corbett, Harman, Florez, Leno, Walters
SUBJECT : Civil procedure: attorneys fees and costs
SOURCE : California First Amendment Coalition
DIGEST : This bill prohibits prevailing government bodies
or entities from recovering attorneys fees and costs on an
anti-SLAPP (Strategic Lawsuit Against Public Participation)
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.
ANALYSIS : Existing 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. [Section
425.16 of the Code of Civil Procedure (CCP)]
Existing law provides that a prevailing defendant on the
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special motion to strike shall be entitled to attorney's
fees and costs. [CCP Section 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. [Section 54950 et seq. of
the Government Code (GOV)]
Existing law, the California Public Records Act 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 Section 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 Sections 11120-11132]
This bill prohibits 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.
This bill specifies that nothing in this bill shall be
construed to prevent a prevailing defendant from recovering
attorney's fees and costs pursuant to subdivision (d) of
Section 6259, 54690.5, or 11130.5.
FISCAL EFFECT : Appropriation: No Fiscal Com.: No
Local: No
SUPPORT : (Verified 5/20/09)
California First Amendment Coalition (source)
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American Civil Liberties Union
Californians Aware
California Newspaper Publishers Association
ARGUMENTS IN SUPPORT : The author states:
"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.
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"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))."
RJG:mw 5/20/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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