Opinion
NOT TO BE PUBLISHED
Marin County Super. Ct. No. CV061164
Jones, P.J.
The California Newspaper Partnership, doing business as the Marin Independent Journal, (the IJ) appeals contending (1) the trial court erred when it denied its motion to strike under the SLAPP statute (Code Civ. Proc., § 425.16), and (2) the court erred when it granted a preliminary injunction that barred the County of Marin (the County) from disclosing the salary information of County employees. We conclude the court properly denied the motion to strike, but based on recent Supreme Court authority, agree the court erred when it granted the preliminary injunction. Accordingly, we affirm in part and reverse in part.
I. FACTUAL AND PROCEDURAL BACKGROUND
For many years, the County has treated the payroll information of its employees as a matter of public record. Using information obtained from the county, the IJ has, over those years, published stories that included the salaries paid to County employees.
That policy changed in April 2005, when the County decided that salary information would only be disclosed for department heads, elected officials, and certain high ranking staff. The County apparently adopted that new policy in response to Teamsters Local 856 v. Priceless, LLC (2003) 112 Cal.App.4th 1500, a then-recent Court of Appeal decision that suggested the salary information of some public employees could be privileged.
The IJ learned of the County’s new policy in December 2005 when a reporter who was researching a story asked for and was denied access to the salary data. Counsel for the IJ sent a letter to the County demanding the disclosure. The County refused, stating the information was private, not public.
The County Board of Supervisors (Board) scheduled a vote to ratify the new disclosure policy on February 28, 2006. The IJ and several citizens appeared at the hearing to oppose it. In the face of this opposition, the County decided to delay its decision for several weeks.
Unwilling to await the County’s final decision, the IJ filed suit. Its petition for writ of mandate under the California Public Records Act (Gov. Code, § 6250 et seq.) alleged the County was obligated to release the salary information of its employees under the Public Records Act.
Faced with this complaint, the Board reversed its stance and voted to again provide salary information upon request. However, the Board stayed its decision for 60 days so that staff could be notified.
The Marin County Management Employees Association (Union), a union that represents approximately 300 County employees, opposed the County’s decision. Shortly before the end of the 60-day period, it intervened in the action the IJ had filed by filing a complaint in intervention. The Union asked the court to issue an injunction to prevent the County from disclosing its employees’ salary information. The trial court granted a temporary restraining order that barred the County from disclosing the information pending a formal hearing.
The County answered the Union’s complaint in intervention. The IJ did not file an answer, but it did file a motion to strike under the SLAPP statute. The IJ argued the Union’s complaint in intervention had to be dismissed because the Union’s complaint arose out of the IJ’s exercise of protected activity and because the Union was not likely to prevail at trial.
The trial court denied the IJ’s motion to strike ruling the IJ lacked standing because the Union had not filed a cause of action against it. The trial court also granted a preliminary injunction that barred the County from releasing its employees’ salary information pending resolution of the IJ’s complaint.
The IJ challenged both rulings by filing this appeal.
II. DISCUSSION
A. Whether the Court Properly Denied the SLAPP Motion
The IJ contends the trial court erred when it denied its motion to strike the Union’s complaint in intervention under the SLAPP statute.
As is relevant, Code of Civil Procedure section 425.16, subdivision (b)(1) states, “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 . . . 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.” (Italics added.)
Applying the plain language of this statute, we conclude the trial court ruled correctly. The Union intervened in the action the IJ had filed by filing a complaint in intervention. However, the Union did not file a “cause of action against” the IJ. The Union did not seek any penalty or damage against the IJ and it did not attempt to restrain the IJ from doing anything. Rather, it sought to enjoin the County from disclosing specific salary information. While the Union opposed the IJ’s attempt to compel the County to release the salary information of County employees and the Union took a position that was adverse to the IJ (and to the County), it did not, in any sense, file a “cause of action against” the IJ. Since an essential element of a motion to strike under the SLAPP statute was not present, the trial court properly denied the IJ’s motion.
The result we reach is fully consistent with case law. In Foundation for Taxpayer & Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1375, public interest litigants filed a complaint against the State Insurance Commissioner seeking to enjoin him from enforcing a newly enacted law. Mercury Insurance Group (Mercury), which had been involved in passing the law, intervened in the action and filed a motion to strike the complaint. The trial court denied Mercury’s motion as frivolous and the appellate court affirmed explaining its decision as follows: “Petitioners did not name Mercury as a defendant in the complaint, nor did they seek any relief against Mercury in the complaint. Therefore, Mercury did not satisfy the requirement of showing the action was brought against it. [¶] . . . Mercury did not become a person against whom a cause of action was asserted simply by filing a complaint in intervention against petitioners.” (Id. at p. 1392.)
We reach a similar conclusion here. While the Union filed a complaint in intervention, it did not assert any claim against, or seek relief from the IJ. Rather, the Union’s complaint was focused on the County. The Union opposed the IJ’s efforts to force the County to release the salary information of County employees. Since the Union did not seek any relief against the IJ, the IJ did not satisfy the requirement of showing the action was brought against it.
None of the arguments the IJ raises convince us the trial court erred. First the IJ cites cases that hold a plaintiff cannot avoid the operation of the SLAPP statute through artful pleading. (See, e.g., Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519; Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308.) We have no quarrel with those cases; however, that principle is not applicable here. Nothing in the record indicates the Union framed its complaint in an attempt to avoid the operation of the SLAPP statute. Rather, it appears the Union filed an intervention complaint that was consistent with its goals in the litigation. It opposed the IJ’s efforts to force the County to release salary information. In doing so, the Union did not need to and did not state a cause of action against the IJ.
The IJ also relies on the wording of the intervention statute, Code of Civil Procedure section 387, subdivision (a), and cases interpreting that statute, that recognize that a person served with an intervention complaint may respond to it as though it was any other complaint. (See, e.g., Wall v. Mines (1900) 130 Cal. 27, 44.) The IJ argues that a motion under the SLAPP statute is a pleading that may be filed in response to a complaint, and therefore, the IJ could properly move to strike the Union’s complaint in intervention under the SLAPP statute. We reject this argument because it is premised on the assumption that the Union’s complaint in intervention was a true complaint. This premise is not correct.
As is relevant, Code of Civil Procedure section 387, subdivision (a) states, “A party served with a complaint in intervention may within 30 days after service move, demur, or otherwise plead to the complaint in the same manner as to an original complaint.”
Courts have recognized that the term “complaint in intervention” is misleading because such a pleading is not always a true complaint. (Timberidge Enterprises, Inc. v. City of Santa Rosa (1978) 86 Cal.App.3d 873, 879.) Rather a complaint in intervention is characterized according to its effect. (Ibid.) The intervening party “is to be regarded as a plaintiff or as a defendant in the action . . . [depending upon] the party for whose success he seeks to intervene . . . .” (Boskowitz v. Thompson (1904) 144 Cal. 724, 729.) Applying this principle, a long line of cases holds that a complaint in intervention can in effect be an answer. (Drinkhouse v. Van Ness (1927) 202 Cal. 359, 371-372; People v. Perris Irrigation District (1901) 132 Cal. 289, 291, Timberidge Enterprises, Inc. v. City of Santa Rosa, supra, 86 Cal.App.3d at p. 879; Marc Bellaire, Inc. v. Fleischman (1960) 185 Cal.App.2d 591, 597.) That is the case here.
The Union’s complaint in intervention did oppose “the broad, sweeping, . . . unlawful disclosure that Petitioner [IJ] seeks” in the complaint the IJ had filed. But the Union’s complaint did not seek any relief from or attempt to impose any restrictions on the IJ. Under these circumstances, the Union may be regarded as a defendant in the IJ’s action and the Union’s complaint is most accurately characterized as an answer to the complaint the IJ filed. While the IJ could respond as by a demurrer to the Union’s “answer” as any other party could (Timberidge Enterprises, Inc. v. City of Santa Rosa, supra, 86 Cal.App.3d at p. 879), the Union’s pleading was not a true complaint that alleged a cause of action against the IJ.
We conclude the trial court correctly denied the IJ’s motion to strike.
Having reached this conclusion, we need not determine whether the Union’s “cause of action” arose out of the IJ’s petitioning activity as that term is statutorily defined.
B. Preliminary Injunction
The trial court granted the Union’s request for a preliminary injunction that barred the County from releasing the salary information of County employees pending the resolution of the IJ’s suit. It relied on Teamsters Local 856 v. Priceless, LLC, supra, 112 Cal.App.4th 1500, a case that had interpreted the Public Records Act to mean that some public employee salary information was exempt from disclosure. The IJ has contended on appeal that the trial court erred, because the County was likely to prevail on this issue at trial.
After the Union filed its brief on appeal, the Supreme Court overruled the Teamsters decision in International Federation of Professional and Technical Engineers, Local 21, AFL-CIO v. Superior Court (2007) 42 Cal.4th 319, 335-336 (International Federation). The International Federation court explained that information is private only when that characterization is supported by “‘well-established social norms.’” (Id. at p. 330, quoting Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 35.) Noting that the vast majority of jurisdictions treat the salaries of public employees as public information (International Federation,at p. 332), the International Federation court ruled that “[t]o the extent some public employees may expect their salaries to remain a private matter, that expectation is not a reasonable one . . . .” (Id. at p. 331.) The court said its ruling was supported by “the strong public interest in knowing how the government spends its money.” (Id. at p. 333.)
In light of the court’s ruling in International Federation, the Union advised this court by a notice filed February 13, 2008, that Teamsters “has rendered moot the privacy issue on appeal.” The Union confirmed at oral argument that it conceded the issue. The order granting the preliminary injunction should be vacated.
III. DISPOSITION
The order denying the IJ’s motion under the SLAPP statute is affirmed. The order granting the preliminary injunction is reversed. The parties are to bear their own costs.
We concur: Needham, J. Stevens, J.
Retired Associate Justice of the Court of Appeal, First Appellate District, Division Five, assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.