Filed 9/30/16 Harrell v. Hanson CA3
                                           NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.




              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
                                      THIRD APPELLATE DISTRICT
                                                       (Siskiyou)
                                                            ----




PETER T. HARRELL,

                   Plaintiff and Appellant,                                       C078371, C079103

         v.                                                            (Super. Ct. No. SCSCCVPT14671)

MICHELE HANSON et al.,

                   Defendants and Respondents.


         In these consolidated appeals, Peter T. Harrell challenges an order and amended
order granting a special motion to strike under Code of Civil Procedure section 425.16
(anti-SLAPP motion) filed by defendants Michele Hanson, Patricia Brown, and Sharrel
Barnes.1 Harrell filed a petition for writ of mandate against defendants as individuals and



1     Undesignated statutory references are to the Code of Civil Procedure. Motions
brought under section 425.16 are directed against SLAPP (strategic lawsuit against public



                                                             1
as directors of the Hornbrook Community Services District (District).2 The District,
which supplies water to an unincorporated town in the County of Siskiyou, was not
named as a defendant.
       The caption of Harrell’s petition alleges violations of the Ralph M. Brown Act (the
Brown Act) (Gov. Code, § 54950 et seq.), violation of District bylaws, and breach of
fiduciary duties. Based on these allegations, the petition seeks declaratory and injunctive
relief to compel the District’s directors to comply with the Brown Act’s requirement of
noticed and open meetings; to prevent the District’s directors from usurping duties and
prerogatives assigned by the Government Code to a general manager; to compel District
directors to comply with Water Code provisions for appointment of a general manager;
and to require the directors to comply with the District’s bylaws.
       The trial court issued an order granting the defendants’ anti-SLAPP motion as
to all causes of action except the alleged violation of the Brown Act. Harrell timely
filed a notice of appeal. Thereafter, the trial court entered an amended order purporting
to clarify which portions of the petition were stricken in response to the anti-SLAPP
motion. Harrell filed a notice of appeal from the amended order. We consolidated the
appeals.



participation) cases. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53,
57, fn. 1 (Equilon).)
2      On grounds Harrell filed a “petition for writ of mandate and prohibition, also titled
a complaint,” the trial court referred to the operative pleading as a complaint. However,
we refer to the operative pleading as a petition because Harrell complied with the
Government Code requirement that the action be filed as a petition for a writ of mandate.
Subdivision (c) of Government Code section 61006 provides: “Any judicial action to
compel performance of an action by a district, its officers, or its directors shall be brought
pursuant to Section 1084 of the Code of Civil Procedure.”



                                              2
       In case No. C078371, Harrell contends (1) the trial court “failed to properly
analyze the pleadings,” (2) the anti-SLAPP motion was erroneously granted “on the basis
of discretionary immunity,” (3) his petition did not concern “acts of discretion,” (4) the
trial court erred in concluding Harrell’s petition was not brought in the public interest,
and (5) the trial court should not have awarded attorney fees to the defendants. In case
No. C079103, Harrell argues the trial court acted in excess of its jurisdiction by entering
an amended order after he filed his first notice of appeal. The defendants argue for
dismissal of case No. C078371 on grounds the notice of appeal was defective and the
case has become moot now that the defendants are no longer District directors.
       We determine Harrell’s notice of appeal in case No. C078371 is not defective and
the case is not moot. In case No. C079103, we conclude the trial court did not have
jurisdiction to amend an order from which an appeal had already been taken.
Consequently, we reverse the void amended order.
       On the merits in case No. C078371, we conclude the anti-SLAPP statute does not
apply because Harrell’s claims rely on the defendants’ communications as evidence of
their alleged violations of the Government and Water Codes and failure to follow the
District’s bylaws. Rather than chilling protected speech, the petition seeks to compel the
District directors’ compliance with applicable statutes and bylaws. Accordingly, we
reverse the trial court’s granting of the anti-SLAPP motion.
                                     BACKGROUND
                                     Case No. C078371
       In June 2014, Harrell filed a petition for writ of mandate that alleged: The District
is a governmental entity organized for the sole purpose of operating water-producing
facilities. Harrell was acting general manager of the District as well as a recipient of
water from the District. Hanson, Brown, and Barnes were members of the board of



                                              3
directors for the District. In addition, Hanson served as president and Barnes as vice
president of the District. Hanson had previously been secretary of the board, and in that
capacity she had taken “one large filing cabinet full of documents, and several crates of
additional documents to her home, where many of these documents are currently stored.”
After resigning as secretary, Hanson refused to return most of these documents to the
District or to Harrell.
       Harrell further alleged Hanson and Brown engaged in multiple meetings, from
April 1, 2014 to May 31, 2014, at Hanson’s residence where they planned how they
would vote on District business. Barnes joined these discussions during the latter part of
this period. During the period between April 18, 2014 and May 31, 2014, the defendants
made multiple statements they would refuse to appoint a general manager for the District
and themselves exercise the authority given to a general manager in violation of:
Government Code sections 61050 and 61051; Water Code section 71340 and 71362; and
the District’s bylaws. Defendants interfered with Harrell’s duties as acting general
manager by blocking his access to customer account information; preventing him from
overseeing the finances and bookkeeper for the District; preventing him from collecting
overdue fees; and from enforcing applicable statutes and bylaw provisions.
       Harrell’s petition asserted defendants ignored the applicable statutes and bylaw
provisions “in order to financially benefit their friends and acquaintances” by waiving
fees, adjusting accounts, ignoring overdue accounts, failing to impose late fees and liens,
refusing to shut off water on overdue accounts, and circumventing the District’s
procedures.
       Based on these allegations, Harrell’s petition asserted a private right of action
under the District’s bylaws. He also sought declaratory relief as to the validity of
defendants’ actions and his rights to execute his duties as the District’s acting general



                                              4
manager. Harrell asserted prompt declaratory relief would avoid the “imminent danger
of water system failure due to the nonfeasance and malfeasance of the Defendants in
actually operating the water system, and acting . . . to thwart the lawful and proper
functioning of the District’s administrative and executive officers . . . .” In the caption of
the petition, Harrell also asserts causes of action for violation of the Brown Act, breach of
fiduciary duty, and for injunctive relief.
       Defendants responded to the petition by filing an anti-SLAPP motion on grounds
the petition focused on defendants’ right to free speech in connection with a public
issue.3 Arguing plaintiff’s petition could not withstand demurrer, defendants’ anti-
SLAPP motion included assertions Harrell lacked standing, asserted the petition failed to
state a cause of action, and was vague. In support of the motion, defendants introduced a
declaration by Hanson stating Harrell had been removed from his position as volunteer
general manager for the district, he was neither a resident nor property owner within the
district, the lawsuit was an attempt by Harrell to intimidate the defendants into voting in
his favor, and his action was related to one brought by his friend, Kimberly Olson, who
had been fired for embezzling district funds. Defendants also introduced a separate
declaration by Hanson in which she stated she had never conducted or attended a meeting
in violation of the Brown Act.
       Harrell filed a reply to the opposition and a supporting declaration by Olson.
Olson’s declaration stated she had served on the board of directors and as the district’s
secretary beginning in January 14, 2014, Harrell owned property within the District, she
was at Hanson’s residence on several occasions when the defendants discussed District



3       Defendants do not argue Harrell’s petition chills their right of petition but only
their rights to speech.



                                              5
business, and “Hansen and Brown both recognized that these sorts of discussions and
meetings violated the Brown Act, but that they were going to talk about it anyway,
because they ‘didn’t care’ what the law said.” Olson further declared Hanson, Brown,
and Barnes voted to implement the plans made at the private meetings. And Olson’s
declaration stated the District was not engaging in proper bookkeeping and was not
taking in enough in fees to continue operating the water supply services.
       The trial court granted the defendants’ anti-SLAPP motion as to all causes of
action except for claimed violations of the Brown Act. The trial court reasoned the
petition arose out of protected speech because all of the allegations in Harrell’s petition
related to speech by the defendants -- except for the assertion Hanson refused to return
District documents. Concluding none of the speech was per se illegal -- such as criminal
threats or extortion -- the anti-SLAPP statute applied and required dismissal. The trial
court found Harrell failed to establish a probability of prevailing on the merits because
the bylaws referenced in the petition had been repealed, the petition failed to state a cause
of action (other than violations of the Brown Act), and defendants had legislative
immunity under Government Code section 820.2. In the same order granting defendants’
anti-SLAPP motion, the trial court determined defendants were entitled to their attorney
fees. On January 27, 2015, Harrell timely filed a notice of appeal.
                                     Case No. C079103
       After Harrell filed his notice of appeal, the defendants filed a proposed order to
clarify the trial court’s granting of the anti-SLAPP motion. On February 17, 2016,
Harrell filed an objection to the proposed order. The objection was based, in part, on
Harrell’s argument the trial court had not directed the further preparation of a final
written order, and the trial court had lost jurisdiction over the matter after he filed his
notice of appeal. In response, the defendants acknowledged the trial court’s order



                                               6
granting the anti-SLAPP motion did not direct preparation of a further order but asserted
the California Rules of Court nonetheless allowed for an amended order to be entered.
The defendants further argued Harrell’s notice of appeal had been premature.
       The trial court adopted its earlier findings and entered an “amended order granting
special motion to strike” in which it identified specific paragraphs and phrases in the
petition that were deemed stricken. The trial court’s amended order states it “revises the
one entered on February 25, 2015, and reflects the rulings, on March 19, 2015, by Judge
Dixon, on plaintiff Harrell’s [objection] as to the original order.”4 Harrell filed a notice
appeal from the amended order.
                                       DISCUSSION
                                              I
                      Sufficiency of Harrell’s First Notice of Appeal
       Defendants argue Harrell filed a defective notice of appeal in case No. C078371
because he did not identify the appellant nor did he specify the date or name of the order
being appealed. We reject the argument.
       California Rules of Court, rule 8.100(a)(2) provides in pertinent part: “The
notice of appeal must be liberally construed. The notice is sufficient if it identifies the
particular judgment or order being appealed.” The liberal construction rule reflects the
“ ‘strong public policy in favor of hearing appeals on the merits’ ” (Unilogic, Inc. v.
Burroughs Corp. (1992) 10 Cal.App.4th 612, 624.) Thus, an appeal will be allowed if
the grounds for appeal are reasonably clear and the respondent is unlikely to have been
confused or misled by the notice of appeal. (Ibid.) For example, even when a notice



4     Although the March 19, 2015 rulings are not part of the record, their omission
does not affect our analysis.



                                              7
of appeal omits the date of the order or judgment being appealed, the notice “ ‘can be
interpreted to apply to an existing appealable order or judgment, if no prejudice would
accrue to the respondent.’ ” (Walker v. Los Angeles County Metropolitan Transportation
Authority (2005) 35 Cal.4th 15, 20.) “In determining whether a respondent has been
misled by errors on the face of the notice of appeal, a reviewing court may consider the
contents of the designation of record . . . .” (D’Avola v. Anderson (1996) 47 Cal.App.4th
358, 362.)
       In case No. C078371, we conclude Harrell gave adequate notice of appeal.
Harrell’s notice of appeal identifies himself as the party filing the document. A party
who files a notice of appeal is an appellant seeking to challenge the appealable order or
judgment. Consequently, we reject defendants’ assertion Harrell failed to state the name
of the appellant. We also reject defendants’ contentions the notice of appeal failed to
adequately identify the anti-SLAPP order. Although the notice of appeal does not give
the date on which the challenged order was entered, it states it is a “SLAPP motion
appeal -- CCP 425.16(j).” And Harrell’s designation of the record includes exactly one
appealable order: the trial court’s order granting the anti-SLAPP motion.
       Defendants’ argument does not show any confusion about the nature of Harrell’s
appeal -- seeking instead to defeat the appeal based on technical shortcomings in the
notice of appeal. Under the liberal construction rule, we conclude Harrell’s notice of
appeal sufficed to make defendants aware of his appeal and the particular ruling he
sought to challenge.
                                            II
                                        Mootness
       Defendants also urge us to dismiss the case on grounds this case has become moot
because they are no longer District directors. In support of the assertion of mootness,



                                             8
defendants offer no legal authority nor do they develop any analysis. We consider the
assertion nonetheless because this court may decide only cases that are justiciable.
(Wilson & Wilson v. City Council of Redwood City (2011) 191 Cal.App.4th 1559, 1573
(Wilson).)
       “The concept of justiciability is a tenet of common law jurisprudence and
embodies ‘[t]he principle that courts will not entertain an action which is not founded
on an actual controversy. . . .’ (California Water & Telephone Co. v. County of Los
Angeles (1967) 253 Cal.App.2d 16, 22 (California Water); see also Stonehouse Homes
v. City of Sierra Madre (2008) 167 Cal.App.4th 531, 540 (Stonehouse Homes).)
Justiciability thus ‘involves the intertwined criteria of ripeness and standing. A
controversy is “ripe” when it has reached, but has not passed, the point that the facts
have sufficiently congealed to permit an intelligent and useful decision to be made.’
(California Water, at p. 22, fn. omitted.) But ‘ripeness is not a static state’ (Consumer
Cause, Inc. v. Johnson & Johnson (2005) 132 Cal.App.4th 1175, 1183), and a case
that presents a true controversy at its inception becomes moot ‘ “if before decision it
has, through act of the parties or other cause, occurring after the commencement of
the action, lost that essential character.” ’ (Wilson v. L.A. County Civil Service Com.
(1952) 112 Cal.App.2d 450, 453).” (Wilson, supra, 191 Cal.App.4th at p. 1573.) An
appeal is moot when a decision of “the reviewing court ‘can have no practical impact or
provide the parties effectual relief.’ ” (MHC Operating Limited Partnership v. City of
San Jose (2003) 106 Cal.App.4th 204, 214.)
       The practical impact and public importance of issues presented in a case may
compel review on the merits even of a technically moot case. An illustrative example is
found in the California Supreme Court’s decision in Madera County v. Gendron (1963)
59 Cal.2d 798 (Madera County). Madera County involved an action for declaratory



                                             9
relief concerning the issues of whether a statute that prohibited the district attorney of
Madera County from concurrently engaging in private practice of law, and whether the
county could lawfully withhold his salary during the time he served as both district
attorney and private counsel. (Id. at p. 800.) The Supreme Court held the statute was
valid but the county could not withhold the district attorney’s salary. (Ibid.) The Madera
County court reached the merits of the case even though the defendant in the case had
been defeated for reelection and the holding had no effect on him. (Id. at pp. 803-804.)
As the Supreme Court explained, “A determination of the instant question affects the
defendant’s successors in office as well as the district attorneys of other counties who
serve under similar statutory disabilities. The certainty afforded by appellate resolution
of this question is preferable to the uncertainty we would engender in Madera and other
counties by failure to resolve the issue.” (Id. at p. 804.)
       The rationale of Madera County, supra, 59 Cal.2d 798 applies here where a
decision on Harrell’s claims of Government Code and Water Code violations in the
operation of the District would provide guidance to defendants’ successors as District
directors. Notably, there are no published decisions construing Government Code
sections 61050 or 61051 or interpreting Water Code section 71340 and 71362.5




5       Government Code section 61050, subdivision (a), requires: “The board of
directors shall appoint a general manager.” Government Code section 61051 provides
that “[t]he general manager shall be responsible for all of the following: [¶] (a) The
implementation of the policies established by the board of directors for the operation of
the district. [¶] (b) The appointment, supervision, discipline, and dismissal of the
district's employees, consistent with the employee relations system established by the
board of directors. [¶] (c) The supervision of the district's facilities and services. [¶]
(d) The supervision of the district’s finances.”



                                              10
Moreover, Harrell’s claim for damages arising out of his tort allegations is not negated by
the defendants’ leaving their offices as District directors. Consequently, the appeal is not
moot insofar as Harrell seeks damages for past tortious conduct. Moreover, the appeal
addresses issues of public importance regarding the proper operation of community
districts. For these reasons, we reject defendants’ assertion of mootness and consider the
merits in case No. C078371.
                                            III
           Jurisdiction to Amend the Previously Entered anti-SLAPP Order
       After Harrell filed his first notice of appeal from the order granting defendants’
anti-SLAPP motion, the trial court entered an “amended order granting special motion to
strike” in which it specified paragraphs and phrases in Harrell’s petition that were
deemed stricken. In this manner the trial court purported to change an order from which
an appeal had been taken. On appeal, Harrell argues the trial court lacked jurisdiction to
modify its initial order. We agree.
       The trial court’s initial order granting the defendants’ anti-SLAPP motion
concluded: “ORDER: [¶] The defendants’ motion to strike the Complaint is granted
except as to the cause of action for violation of the Brown Act. Attorney fees are
awarded to the defendants upon separate motion. The defendants are ordered to demur[]




       Water Code section 71340 provides in pertinent part that, for a water district, “the
board shall appoint, by a majority vote, a secretary, treasurer, attorney, general manager,
and auditor, and shall define their duties and fix their compensation.” Water Code
section 71362 provides: “Subject to the approval of the Board of Directors, the general
manager shall have full charge and control of the maintenance, operation, and
construction of the waterworks or waterworks system of the district, with full power and
authority to employ and discharge all employees and assistants, other than those referred
to in Section 71340, at pleasure, prescribe their duties, and fix their compensation.”



                                             11
or answer to the remaining causes of action within 15 days of mailing of this order.”
From this order, Harrell filed his first notice of appeal.
       The next day, defendants submitted a proposed amended order regarding the
same anti-SLAPP motion. Ultimately, the trial court entered an amended order granting
the anti-SLAPP motion. From the amended order, Harrell filed his second notice of
appeal.
       An order granting an anti-SLAPP motion can be appealed unless it directs that a
formal written order be prepared, signed, and filed. (Rule 8.104(c)(2); Koshak v. Malek
(2011) 200 Cal.App.4th 1540, 1545; § 904.1, subd. (a)(13).) Once an appeal has been
filed, section 916, subdivision (a), provides, in pertinent part, that “the perfecting of an
appeal stays proceedings in the trial court upon the judgment or order appealed from or
upon the matters embraced therein or affected thereby, including enforcement of the
judgment or order, but the trial court may proceed upon any other matter embraced in the
action and not affected by the judgment or order.”
       “ ‘As a general rule, a duly perfected appeal divests the trial court of further
jurisdiction in the cause except with respect to collateral matters [such as a motion for
new trial].” [Citations.] After perfection of an appeal, the trial court ‘may not vacate or
amend a judgment or order valid on its face, or do any other act which would affect the
rights of the parties or the condition of the subject matter.’ [Citation.]” (Laidlaw Waste
Systems, Inc. v. Bay Cities Services, Inc. (1996) 43 Cal.App.4th 630, 641, fn. omitted and
italics added.) “The purpose of the rule depriving the trial court of jurisdiction in a case
during a pending appeal is to protect the appellate court’s jurisdiction by preserving the
status quo until the appeal is decided. The rule prevents the trial court from rendering an
appeal futile by altering the appealed judgment or order by conducting other proceedings
that may affect it.” (Betz v. Pankow (1993) 16 Cal.App.4th 931, 938.) As a result, “[t]he



                                              12
trial court’s power to enforce, vacate or modify an appealed judgment or order is
suspended while the appeal is pending.” (Elsea v. Saberi (1992) 4 Cal.App.4th 625,
629.) “And any ‘proceedings taken after the notice of appeal was filed are a nullity.’
[Citations.] This is true even if the subsequent proceedings cure any purported defect in
the judgment or order appealed from.” (Varian Medical Systems, Inc. v. Delfino (2005)
35 Cal.4th 180, 197–198 (Varian), italics added.)
       Here, the defendants sought to amend the order granting the anti-SLAPP motion
after Harrell filed a notice of appeal from the order. The trial court’s entry of the
amended order purported to substantively affect the already-entered order by identifying
specific paragraphs and phrases in the petition to be stricken. However, the trial court
lacked jurisdiction to substantively change the order being appealed. (Elsea v. Saberi,
supra, 4 Cal.App.4th at p. 629.) As a result, the amended order is void and must be
reversed. (Varian, supra, 35 Cal.4th at p. 198; Rochin v. Pat Johnson Manufacturing Co.
(1998) 67 Cal.App.4th 1228, 1240 [reversing a void judgment entered in excess of
jurisdiction].)
                                             IV
                                        Anti-SLAPP
       Harrell contends the trial court erred in granting defendants’ anti-SLAPP motion
on grounds his petition chilled their rights of speech and he had not shown a probability
of prevailing. We conclude Harrell’s claims do not implicate defendants’ protected rights
of free speech.
                                             A.
                                           Review
       “In anti-SLAPP analysis, we accept as true [the petitioner’s] pleaded facts.”
(Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 54 (Young).) However,



                                             13
we exercise our independent judgment in assessing the trial court’s legal analysis in
granting the anti-SLAPP motion. “Appellate review of a trial court’s ruling on an anti-
SLAPP motion is de novo. (United States Fire Ins. Co. v. Sheppard, Mullin, Richter &
Hampton LLP (2009) 171 Cal.App.4th 1617, 1625.) ‘Thus, [appellate] review is
conducted in the same manner as the trial court in considering an anti-SLAPP motion.’
(Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1016.)” (Summit Bank v. Rogers (2012)
206 Cal.App.4th 669, 681.)
                                             B.
                                       Section 425.16
       Section 425.16 sets forth the requirements for striking causes of action intended to
chill the rights of speech or petition. As the California Supreme Court has explained,
“Section 425.16 posits . . . a two-step process for determining whether an action is a
SLAPP. First, the court decides whether the defendant has made a threshold showing
that the challenged cause of action is one arising from protected activity. (§ 425.16,
subd. (b)(1).) ‘A defendant meets this burden by demonstrating that the act underlying
the plaintiff’s cause fits one of the categories spelled out in section 425.16, subdivision
(e).’ (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043). If the
court finds that such a showing has been made, it must then determine whether the
plaintiff has demonstrated a probability of prevailing on the claim. (§ 425.16, subd.
(b)(1); see generally Equilon, supra, 29 Cal.4th at p. 67.)” (Navellier v. Sletten (2002) 29
Cal.4th 82, 88.) Thus, “ ‘[o]nly 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.’ [Citation.]”
(Thomas v. Quintero (2005) 126 Cal.App.4th 635, 645.)




                                             14
       In considering an anti-SLAPP motion, the trial court must determine whether “
‘the gravamen or principal thrust’ of the action” targets protected activity. (In re
Episcopal Church Cases (2009) 45 Cal.4th 467, 477.) “Where . . . a cause of action is
based on both protected activity and unprotected activity, it is subject to section 425.16 ‘
“unless the protected conduct is ‘merely incidental’ to the unprotected conduct.” ’
(Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133
Cal.App.4th 658, 672 (Peregrine Funding) [first prong of SLAPP analysis met where the
allegations of loss resulting from protected activity were not merely incidental or
collateral to unprotected activity]; see Mann v. Quality Old Time Service, Inc. (2004) 120
Cal.App.4th 90, 104 (Mann) [because the defendants’ reports to government agencies
formed a substantial part of the factual basis for defamation and trade libel claims, the
claims were subject to the SLAPP statute even though also based on nonprotected
statements].)” (Haight Ashbury Free Clinics, Inc. v. Happening House Ventures (2010)
184 Cal.App.4th 1539, 1550-1551.)
       The corollary to the gravamen of the complaint test is that “a defendant in an
ordinary private dispute cannot take advantage of the anti-SLAPP statute simply because
the complaint contains some references to speech or petitioning activity by the defendant.
(See Paul v. Friedman [(2002)] 95 Cal.App.4th [853,] 866 [‘[t]he statute does not accord
anti-SLAPP protection to suits arising from any act having any connection, however
remote, with an official proceeding’].)” (Martinez v. Metabolife Intern., Inc. (2003) 113
Cal.App.4th 181, 188.) “In deciding whether an action is a SLAPP, the trial court should
distinguish between (1) speech or petitioning activity that is mere evidence related to
liability and (2) liability that is based on speech or petitioning activity. . . . An anti-
SLAPP motion should be granted if liability is based on speech or petitioning activity




                                               15
itself.” (Graffiti Protective Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th
1207, 1214-1415 (Graffiti Protective Coatings).)
       Graffiti Protective Coatings involved a petition for writ of mandate by a company
(GPC) that sued to invalidate a contract between the City of Pico Rivera and National
Environmental Services to clean the city’s bus stops. (181 Cal.App.4th at pp. 1211-
1212.) GPC, which had previously performed the bus stop cleanings, brought the action
after the city terminated its contract and awarded a new contract without inviting
competitive bids. (Id. at p. 1211.) In support of its writ petition, GPC introduced
evidence National Environmental Services had told a GPC employee GPC’s contract
would be terminated a month before the city notified GPC its contract would not be
renewed. (Id. at p. 1212.) GPC also introduced evidence it had called the city’s director
of public works several times to check on the status of the original contract’s extension
and had received assurances that “GPC was the best contractor for bus stop
maintenance.” (Ibid.) Nonetheless, several weeks later a new contract was given to
National Environmental Services. (Ibid.)
       GPC’s writ petition, among other things, sought declaratory relief by requesting
the new contract be declared void and to compel the city to award the contract based on
competitive bidding. (Graffiti Protective Coatings, supra, 181 Cal.App.4th at p. 1213.)
The city filed an anti-SLAPP motion on grounds the claims were based on
communications between GPC, GPC’s employee, National Environmental Services, “and
the public regarding the maintenance of the City’s bus stops.” (Ibid.) The trial court
granted the anti-SLAPP motion on grounds GPC’s claims were based on the city’s right
of speech on matters of public interest and GPC was not likely to prevail on the merits of
its claims. (Id. at p. 1214.)




                                            16
       The Graffiti Protective Coatings court reversed and explained: “Here, the
prelitigation communications between the City and others are helpful in establishing the
events leading up to the termination of GPC’s contract. The communications assist in
telling the story. But GPC’s claims against the City are not based on those
communications. Rather, liability is premised on state and municipal laws requiring the
City to award certain contracts through competitive bidding. A petition for a writ of
mandate and a request for declaratory relief, as set forth in the complaint, are appropriate
means to determine whether the City complied with those laws. To conclude that GPC’s
claims are subject to the anti-SLAPP statute would require GPC to demonstrate a
probability of prevailing on the merits at the pleading stage, a result that would
discourage attempts to compel public entities to act lawfully.” (Graffiti Protective
Coatings, supra, 181 Cal.App.4th at p. 1215.) The appellate court further explained
GPC’s claims “are not based on any statement, writing, or conduct by the City in
furtherance of its right of free speech or its right to petition the government for the
redress of grievances. Rather, plaintiff’s claims are based on state and municipal laws
requiring the City to award certain contracts through competitive bidding. Thus, the
claims are not subject to the anti-SLAPP statute.” (Id. at p. 1211.)
       A similar result was reached in Young, supra, 210 Cal.App.4th 35. Young
involved a petition for administrative mandate filed by a doctor to challenge the decision
of the board of directors of a healthcare district to terminate his medical staff privileges at
its hospital. (Id. at p. 39.) The doctor’s petition recited conflicts he had experienced with
his colleagues and the board of directors. (Id. at p. 43.) The petition sought relief for
procedural violations in the process of terminating his hospital privileges. (Id. at p. 44.)
The healthcare district filed an anti-SLAPP motion to the cause of action in which the
doctor sought a determination his suspension “was unjustified, based on improper review



                                              17
of his records, carried out by unqualified committees, and unsupported by substantial
evidence . . . .” (Ibid.) The trial court granted the anti-SLAPP motion, and the Court of
Appeal reversed. (Id. at p. 59.)
       In reversing the anti-SLAPP motion, the Young court noted that “ ‘[e]ven if the
conduct of individual public officials in discussing and voting on a public entity’s action
or decision could constitute an exercise of rights protected under the anti-SLAPP
statute[,] . . . this does not mean . . . litigation challenging a public entity’s action or
decision always arises from protected activity.’ (San Ramon [Valley Fire Protection
Dist. v. Contra Costa County Employees’ Retirement Ass’n (2004)] , 346–347 (San
Ramon).) An act of governance mandated by law, without more, is not an exercise of
free speech or petition.” (Young, supra, 210 Cal.App.4th at p. 56.)
       The Young court further reasoned it is an “important public policy concern that the
anti-SLAPP statute should not be interpreted in a manner that ‘would significantly burden
the petition rights of those seeking mandamus review for most types of governmental
action. Many of the public entity decisions reviewable by mandamus or administrative
mandamus are arrived at after discussion and a vote at a public meeting. . . . If
mandamus petitions challenging decisions reached in this manner were routinely subject
to a special motion to strike . . . it would chill the resort to legitimate judicial oversight
over potential abuses of legislative and administrative power, which is at the heart of
those remedial statutes. It would also ironically impose an undue burden upon the very
right of petition for those seeking mandamus review in a manner squarely contrary to the
underlying legislative intent behind [the anti-SLAPP statute].” (Young, supra, 210
Cal.App.4th at p. 56, quoting San Ramon Valley Fire Protection Dist. v. Contra Costa
County Employees’ Retirement Assn. (2004) 125 Cal.App.4th 343, 357–358 (San
Ramon).)



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                                             C.
               Harrell’s Petition Does Not Arise Out of Protected Activity
       We conclude the anti-SLAPP statute does not apply to Harrell’s claims because
they do not seek to abridge defendants’ rights of free speech. Although Harrell’s petition
alleges numerous instances of communications by defendants, the reference to their
speech is offered as evidence of violations of the Government Code, Water Code, and the
District’s bylaws. In his petition, Harrell seeks to compel the District’s directors to
comply with the Brown Act’s requirement of noticed and open meetings; to prevent the
District’s directors from usurping duties and prerogatives assigned by the Government
Code to a general manager; to compel District directors to comply with Water Code
provisions for appointment of a general manager; and to require the directors to comply
with the District’s bylaws. Harrell’s petition also seeks tort damages for damages alleged
to derive from the District directors’ failure to comply with applicable statutes and bylaw
provisions. In short, Harrell relies on communications as evidence of his claims rather
than seeking to impose liability based on the defendants’ speech.
       The trial court erred in reasoning the anti-SLAPP statute applies because Harrell’s
petition does not concern speech that is inherently unlawful -- such as with criminal
threats or extortion. (See, e.g., Pen. Code, §§ 422 [criminal threats], 518 [extortion].)
This rationale would have the effect of preventing attempts to compel public entities to
act lawfully because evidence reliant on speech would be unavailable to prove such
claims. The anti-SLAPP statute is not meant to discourage actions to enforce statutes
and rules applicable to governmental agencies but only to prevent frivolous actions
intended to chill the rights of speech or petition. (Graffiti Protective Coatings, supra,
181 Cal.App.4th at pp. 1217-1218.) Although the defendants’ communications serve as
evidence of Harrell’s claims, his petition is premised on the defendants’ alleged



                                             19
violations of the Government and Water Codes as well as the bylaws of the District.
In Graffiti Protective Coatings, the court held that “the substance of the Board’s action
does not constitute the exercise of the Board’s right of speech or petition.” (181
Cal.App.4th at p. 1219, quoting San Ramon, supra, 125 Cal.App.4th at p. 355.)
Likewise, in this case, the substance of the defendants’ actions that allegedly violated
Government and Water Code statutes in addition to District bylaws does not implicate
the right of free speech. Consequently, the order granting the defendants’ anti-SLAPP
motion is reversed.6
                                             V
                                      Attorney Fees
       Harrell challenges the award of attorney fees to defendants in the trial court’s
order granting of the anti-SLAPP motion. The trial court’s error in granting the anti-
SLAPP motion also requires reversal of the award of fees awarded under section 425.16.
(Panakosta Partners, LP v. Hammer Lane Management, LLC (2011) 199 Cal.App.4th
612, 639.)
                                      DISPOSITION
       In case No. C078371, the order granting the anti-SLAPP motion of defendants
Michele Hanson, Patricia Brown, and Sharrel Barnes, including the award of attorney
fees, is reversed. In case No. C079103, the void amended order is reversed. Peter T.




6       Our conclusion Harrell’s petition does not implicate defendants’ rights of free
speech obviates the need to consider the second prong of the anti-SLAPP analysis,
namely whether Harrell has demonstrated a likelihood of prevailing on the merits.
(Graffiti Protective Coatings, supra, 181 Cal.App.4th at p. 1211.) For the same reason,
we also express no opinion on the merits or sufficiency of Harrell’s pleaded causes of
action.



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Harrell shall recover his costs in both appeals. (Cal. Rules of Court, rule 8.278(a)(1) &
(2).)



                                                              /s/
                                                 HOCH, J.



We concur:



          /s/
RAYE, P. J.



        /s/
MAURO, J.




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