Opinion
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
APPEAL from the Superior Court of Riverside County. Donald R. Alvarez, Judge, Super. Ct.No. SCV 132219.
Aviles & Associates and Moises A. Aviles for Defendant and Appellant.
Ruth E. Stringer, County Counsel, and Paymon Z. Bidari, Deputy County Counsel, for Plaintiffs and Respondents.
OPINION
Gaut, J.
All statutory references are to the Code of Civil Procedure unless stated otherwise.
The County of San Bernardino sued defendant Antonia Bivings for code violations and obtained a preliminary injunction in May 2006, prohibiting her from conducting a commercial trucking business and from allowing commercial parking on her residential real property in Bloomington. We have already addressed the issues related to the preliminary injunction in a previous appeal, County of San Bernardino v. Bivings (Apr. 10, 2007, E040677) [nonpub. opn.] (Bivings I). This appeal challenges the trial court’s denial of defendant’s anti-SLAPP motion. (§ 425.16.)
2. Factual and Procedural Background
As was true of her previous appeal, appellant’s opening brief is deficient. The statement of facts is a single paragraph with one citation to some pages in the Register of Actions. It does not “[p]rovide a summary of the significant facts limited to matters in the record.” (Cal. Rules of Court, rule 8.204.) The “statement of the case” includes a procedural summary of the record with large amounts of material irrelevant to the issues on appeal. In fact, we take judicial notice that defendant’s brief copies verbatim portions of briefs filed by defendant’s counsel, Moises A. Aviles, in Bivings I and in a similar case, County of San Bernardino v. Mejia (May 14, 2007, E041240) [nonpub. opn.].
The County’s respondent’s brief is also deficient it its citations to the record for many of its factual contentions.
We have independently reviewed the relevant record to summarize it for this opinion but neither party can “be heard to complain that we have overlooked any disputed or undisputed material facts. [Citation.]” (Lopez v. C.G.M. Development, Inc. (2002) 101 Cal.App.4th 430, 435-436, fn. 2.)
The County’s complaint alleges that Bivings’s property is residential but since November 21, 2003, she has operated a commercial trucking business and commercial parking on the Larchwood property in violation of San Bernardino County Code (SBCC) sections 84.0105, 84.0325, and 87.0365. These sections govern certain prohibited land uses for which permits are required (SBCC § 84.0105) and commercial vehicle parking in a residential land use district. (SBCC §§ 84.0325 and 87.0635.)
Bivings was served by substituted service on December 22, 2005. Although she disputes the effectiveness of that service, she filed a general denial on April 28, 2006.
The court granted a preliminary injunction against defendant on May 10, 2006. The written order included a prohibition against “[c]onducting a commercial trucking business . . . . [¶] . . . [p]arking commercial vehicles . . . . [¶] . . . [and] [u]nlawfully using properties identified except in accordance with . . . Section 84.0105.” The court further ordered defendant to remove the trucks from defendant’s property.
On September 22, 2006, defendant filed a special motion to strike, (§ 425.16) asserting that she was being targeted for prosecution by the County because she had participated in an attempt to recall a county supervisor, Josie Gonzales.
The County opposed the anti-SLAPP motion, relying on exceptions stated in sections 425.16, subdivision (d), and 425.17, subdivision (b).
In her reply, defendant argued county counsel lacks standing to pursue a code enforcement action.
The court denied the anti-SLAPP motion based on the exception stated in section 425.16, subdivision (d).
Although not relevant to the resolution of this appeal, we note there have been further trial proceedings involving contempt and a receivership concerning defendant’s failure to comply with the preliminary injunction.
3. Analysis
We disregard defendant’s arguments about the preliminary injunction, contempt, the receivership, and standing, which are not cognizable issues on appeal from the denial of the anti-SLAPP motion. Furthermore, the issue of standing should be raised either by general or special demurrer (§ 430.10, subds. (b) and (e)) or in the answer as a plea in abatement (§ 430.430, subd. (b)), not in an anti-SLAPP motion and not on appeal from a denial of an anti-SLAPP motion. Defendant asserts the office of county counsel cannot prosecute code enforcement actions, which must be handled by the district attorney. Even if we were to consider this argument, we would agree county counsel has the authority and “shall discharge all the duties vested in the district attorney by Sections 26520, 26522, 26523, 26524, and 26526. The county counsel shall defend or prosecute all civil actions and proceedings in which the county or any of its officers is concerned or is a party in his or her official capacity.” (Gov. Code, § 26529, subd. (a).)
Next, we observe the anti-SLAPP motion was untimely because it was filed on September 22, 2006, more than 60 days after the complaint was served in December 2005 and after defendant filed her general denial on April 10, 2006. (§ 425.16, subd. (f).) There is no right to file an anti-SLAPP suit motion beyond the 60-day deadline; it can then only be filed in the court’s discretion. (Lam v. Ngo (2001) 91 Cal.App.4th 832, 840.) Assuming the trial court exercised its discretion by hearing and deciding the motion, the “denials of anti-SLAPP suit motions are reviewed de novo by appellate courts. (Paul for Council v. Hanyecz [2001] 85 Cal.App.4th 1356, 1364; Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 474; Foothills Townhome Assn. v. Christiansen [2000]65 Cal.App.4th [688,] 695.)” (Id. at p. 845.)
Defendant contends the County is prosecuting this code enforcement action against her in retaliation for the support she gave to a recall election against Gonzales. She relies upon City of Santa Monica v. Stewart (2005) 126 Cal.App.4th 43 (Stewart). Stewart was a complicated case involving two lawsuits “relating to the enforcement of initiatives approved by voters in Santa Monica and Pasadena. The initiatives sought to prevent city officials from receiving certain advantages from persons or entities who derived benefit from discretionary decisions made by those officials.” (Id. at p. 50.) Stewart outlines the basic principles of anti-SLAPP law:
“The anti-SLAPP statute reflects the Legislature’s intention to curb meritless ‘lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.’ (§ 425.16, subd. (a).) To address that concern, the statute 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.’ (§ 425.16, subd. (b)(1).) [Fn. omitted.]
“The trial court is required to engage in a two-step process to resolve an anti-SLAPP motion. ‘First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,” as defined in the statute. (§ 425.16, subd. (b)(1).)’ (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) Second, if ‘the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.’ (Ibid.) The moving party bears the burden on the first issue; the responding party on the second. (Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 151 (Shekhter).) ‘Only a cause of action that satisfies both prongs of the anti-SLAPP statute--i.e., that arises from protected speech or petitioning and lacks even minimal merit--is a SLAPP, subject to being stricken under the statute.’ (Navellier [v. Sletten (2002)] 29 Cal.4th [82] at p. 89, italics omitted.)” (Stewart, supra, 126 Cal.App.4th at p. 71.)
Defendant focuses on general language in Stewart, supra, 126 Cal.App.4th at page 74, about the right of petition or free speech: “‘In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech. [Citations.]’” In a wholly conclusionary style, without any attempt to compare Stewart to the present case, defendant argues the County’s enforcement action “is another tool of harassment and stalling tactic to frustrate Appellants’ [sic] civil rights. Given that the Complaint was filed mainly, in part, to get back at Appellant for participating in the recall, the Complaint should be stricken upon remand.” The foregoing sums up the whole of defendant’s argument.
In opposition to the anti-SLAPP motion, the County presented evidence that code enforcement activities against defendant’s property commenced in January 2003, when the County served defendant with a courtesy notice to abate. Gonzales did not assume office until November 2004 and defendant supported a recall effort against her in October 2005. The complaint, filed in November 2005, alleged violations dating back to November 2003. The County argued defendant could not rebut plaintiff’s showing of a probability of success on the merits because the recall occurred more than two years after code enforcement activities had began.
The County also relied on the prosecutorial exemption expressed in section 425.16 and the public interest exception found in section 425.17. Section 425.16, subdivision (d), makes public enforcement actions not subject to a special motion to strike. Section 425.16, subdivision (d), refers to an 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” and might seem to exclude a code enforcement action brought by county counsel. But the statute has been interpreted to mean “it is reasonable to infer that the measure was designed to address the Attorney General’s concern, which extended to all civil actions brought by state and local agencies to enforce laws aimed at consumer and/or public protection.” (City of Long Beach v. California Citizens for Neighborhood Empowerment (2003) 111 Cal.App.4th 302, 308.)
Likewise exempt from a special motion to strike are certain actions brought solely in the public interest or on behalf of the general public where plaintiff seeks no relief different from the relief sought for the general public or class of which plaintiff is a member. (§ 425.17, subd. (b); see Northern Calif. Carpenters Regional Council v. Warmington Hercules Associates (2004) 124 Cal.App.4th 296, 301-302.)
In the present case, defendant’s first obstacle is making the threshold showing that the challenged cause of action arises from protected activity and demonstrating the County’s complaint is directed at defendant’s acts taken in furtherance of her right of petition or free speech. Defendant’s acts involve the use of her property for illegal commercial parking. As the trial court noted, defendant’s acts cannot be characterized as political speech and defendant offers no authority that holds differently.
Even if we concede for purposes of argument that defendant’s recall activities against the county supervisor somehow bring an action prosecuting illegal commercial parking within the ambit of the anti-SLAPP statute, the second obstacle defendant cannot overcome is the County’s showing of the probability of prevailing on its claim. The County’s code enforcement activities began in January 2003, almost two years before Gonzales became a county supervisor subject to recall. The County has already made a strong showing of the merits of its claim and the likelihood of prevailing by obtaining a preliminary injunction, which has been upheld on appeal by this court in Bivings I. (California Correctional Peace Officers Assn. v. State of California (2000) 82 Cal.App.4th 294, 302.) Under these circumstances, the code enforcement action was demonstrably not initiated in retaliation against defendant for her recall efforts. Defendant’s subjective beliefs do not substitute for competent evidence contradicting the County’s strong showing of probability of prevailing. As a matter of law, defendant’s evidence does not defeat that submitted by the County. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
Notwithstanding the persuasive nature of the foregoing, we also agree with the trial court the County’s code enforcement action is exempt from section 425.16, for the reasons described in People v. Health Laboratories of North America, Inc. (2001) 87 Cal.App.4th 442, 450-451, and adopted in City of Long Beach v. California Citizens for Neighborhood Empowerment, supra, 111 Cal.App.4th at page 307: “SLAPP suits are typically characterized as suits brought not to vindicate a legal right but to interfere with the defendant’s ability to pursue his or her interest. [Citation.] SLAPP plaintiffs do not care so much about winning their lawsuits as they care about delaying and distracting the defendant from his or her objective, which is generally economically adverse to those of the SLAPP plaintiff. SLAPP plaintiffs achieve their goal if their suits deplete the defendant’s resources and energy. [Citation.] The legislative history of section 425.16 plainly implies that its purpose was to prevent the harm caused by such plaintiffs.
“By contrast, a public prosecutor’s enforcement action is not motivated by a retaliatory attempt to gain a personal advantage over a defendant who has challenged his or her economic ambition. The prosecutor’s motive derives from the constitutional mandate to assure that the laws of the state are uniformly enforced and to prosecute any violation of these laws, so that order is preserved and the public interest protected. [Citations.] Nothing in the legislative history of section 425.16 implies that the problem the Legislature sought to rectify thereby was created by prosecutors bringing meritless enforcement actions. The state may properly limit a regulation to the class of persons as to whom it thinks the need for regulation is more crucial or imperative. [Citation.]
“To enable prosecutors to perform their constitutional duties thoroughly and effectively, laws have been enacted to insulate them from actions that would hinder or deter their enforcement actions. They are not subject to defamation actions for statements made in the proper discharge of official duties or in the initiation or course of any proceeding authorized by law. (Civ. Code, § 47, subds. (a), (b)(4).) They cannot be enjoined to prevent the execution of a public statute for the public benefit. (Civ. Code, § 3423, subd. (d).) They are not liable for injuries caused from their discretionary acts or from instituting or prosecuting any judicial or administrative proceeding. (Gov. Code, §§ 820.2, 821.6.)
“The exclusion of public prosecutors from the anti-SLAPP motion procedure is consistent with the rationale of these immunity statutes. Subjecting them to such a procedure could unduly hinder and undermine their efforts to protect the health and safety of the citizenry at large by delaying an enforcement action. Not only would prosecutors have to respond to the motion at the trial level, they could become ensnared in an appeal, insofar as the grant or denial of a SLAPP motion is immediately appealable. (§ 425.16, subd. (j).) . . .
“We conclude that the classification created by [section 425.16,] subdivision (d)’s exemption of public prosecutors’ enforcement actions from anti-SLAPP motions bears directly on furthering the state’s legitimate interest of allowing prosecutors--who did not create the SLAPP problem--to pursue actions to enforce laws, unencumbered by delay, intimidation, or distraction. It therefore does not violate the equal protection clause of either the United States or California Constitution.”
All the reasons discussed in People v. Health Laboratories of North America, Inc., supra, 87 Cal.App.4th 442 apply with equal force in the present case. The County is not one of the class of objectionable SLAPP plaintiffs. The code enforcement action is not a retaliatory attempt to gain a personal advantage over defendant who has challenged the County’s economic ambition. The County is prosecuting defendant’s code violations to protect the public interest. The anti-SLAPP motion procedure should not be available to “hinder and undermine [its] efforts to protect the health and safety of the citizenry at large by delaying an enforcement action.” (Id. at pp. 450-451.) The trial court correctly based its ruling on the exemption provided in section 425.16, subdivision (d).
4. Disposition
We affirm the judgment. The County as prevailing party recovers its costs on appeal.
We concur: Hollenhorst, Acting P. J., Miller, J.