Filed 7/15/16; pub. & mod. order 8/8/16 (see end of opn.)




             IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                  SECOND APPELLATE DISTRICT

                                             DIVISION EIGHT

PAUL CRUZ et al.,                                           B265690

                 Plaintiffs and Appellants,                 (Los Angeles County
                                                            Super. Ct. No. BC565079)
                 v.

CITY OF CULVER CITY et al.,

                 Defendants and Respondents.




        APPEAL from a judgment of the Superior Court of Los Angeles County. Michael
Johnson, Judge. Affirmed.



        Herbert L. Greenberg for Plaintiffs and Appellants.


        Burke, Williams & Sorenson and Thomas B. Brown for Defendants and
Respondents.


                                    __________________________
       Plaintiffs Paula Cruz and four of her neighbors appeal from the order dismissing
as an anti-SLAPP action their complaint against the city council (the council) of Culver
City and five of its council members for allegedly violating the state’s open meeting
laws. We reject plaintiffs’ contentions that the action is exempt from the anti-SLAPP
provisions because it concerned the public interest, and affirm because there is no
probability plaintiffs will prevail on the merits.

                        FACTS AND PROCEDURAL HISTORY

       Culver City residents Paula Cruz, Ronald Davis, John Heyl, James Province, and
Nadine F. Province sued the City of Culver City (the city) for violating the state’s open
meeting law (Gov. Code, § 54950 et seq. (the Brown Act)), alleging that the council
violated the Brown Act in two ways: (1) by discussing a change to parking restrictions in
their neighborhood even though it was not on the agenda; and (2) by taking action on that
issue when the council implicitly decided that the new challenge to those restrictions
could proceed as an appeal of an earlier denial by city staff members.
       The parking restrictions were imposed in 1982 when residents of Farragut Drive
complained that parishioners of nearby Grace Lutheran Church (the church) jammed their
street with parked cars during church services.1 In 2004, the council adopted an
ordinance for the establishment of preferential parking zones throughout the city and
included the 1982 Farragut Drive Parking restrictions as one such zone.
       In 2013, the council adopted regulations governing the establishment and
regulation of preferential parking/residential parking permit zones. These regulations
delegated to a “Traffic Committee” comprised of city staff members in the traffic
engineering department the ability to administer and implement those regulations.2



1
       Among those taking part in the 1982 parking dispute were current plaintiff and
appellant Ronald Davis, and plaintiffs’ counsel, Herbert L. Greenberg.
2
       The scope of this ordinance is in dispute, an issue we discuss below.

                                               2
       In April 2014, a lawyer for the church sent a letter to city traffic analyst Gabriel
Garcia seeking information about the application process for a change to the existing
Farragut Drive Parking restrictions pursuant to the 2013 parking regulations. Garcia
wrote back one month later that the city engineer was unable to act on such a request
because the 2013 regulations did not provide a means by which non-residents could seek
modification of the conditions imposed in a residential parking permit zone.
       On August 1, 2014, the church sent a letter to council member Andrew Weissman
complaining about Garcia’s response and asking to address the council about the
“onerous parking restrictions” on Farragut Drive.
       At the council’s August 11, 2014 meeting, Weissman mentioned the church’s
letter during the portion of the meeting set aside for the receipt and filing of
correspondence from the public. Following a six-minute discussion with then-Mayor
Meghan Sahli-Wells and Public Works Director and City Engineer Charles D.
Herbertson, the church’s request to review the Farragut Drive Parking restrictions was
placed on the agenda for the next council meeting on September 8, 2014.3
       In November 2014, plaintiffs filed a complaint seeking declaratory relief that the
city and its five council members had violated the Brown Act by discussing the church’s
letter and by acting upon it by placing it on the agenda for the next meeting, even though
the 2013 parking regulations did not provide for such action.4
       The city brought an anti-SLAPP motion (Code Civ. Proc., § 425.16), seeking to
dismiss plaintiffs’ action because the city’s alleged misconduct arose from First
Amendment activity and because plaintiffs could not show a probability of prevailing on
the merits. The city contended that it had done nothing more than have preliminary


3
       It is the nature of that discussion and the decision to place the item on the next
agenda that give rise to this action. In the discussion part of our opinion, we will set forth
a transcript of the events.
4
       In addition to Weissman, the complaint named council members Meghan Sahli-
Wells (the mayor), Michael O’Leary, Jim B. Clarke, and Jeffrey Cooper. For ease of
reference, we will refer to all the defendants collectively as the city.

                                              3
discussions with staff members concerning the church’s letter in order to have the matter
placed on a future agenda, as expressly permitted by the Brown Act.
       Plaintiffs contended their action was exempt from the anti-SLAPP provisions
because it concerned a matter affecting the public interest. They also contended that the
council’s discussions and actions were so substantive that they fell outside the statutory
exceptions. The trial court agreed with the city, granted the anti-SLAPP motion, and
dismissed the complaint.

                                       DISCUSSION

1.     The Law Governing Anti-SLAPP Motions

       Code of Civil Procedure section 425.16 was enacted to address a sharp rise in the
number of “[l]awsuits 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).)5 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 Constitution or the 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.” (Id,
subd. (b)(1).)
       The trial court undertakes a two-step process when considering a defendant’s anti-
SLAPP motion. First, the trial court determines whether the defendant has shown the
challenged cause of action arises from protected activity. The trial court reviews the
pleadings, declarations, and other supporting documents to determine what conduct is
actually being challenged, not whether that conduct is actionable. The defendant does
not have to show the challenged conduct is protected as a matter of law; only a prima
facie showing is required. (People ex rel. Fire Ins. Exchange v. Anapol (2012)

5
       Such actions are commonly referred to as Strategic Lawsuits Against Public
Participation, or SLAPP actions. All further undesignated section references are to the
Code of Civil Procedure, unless otherwise noted.

                                               4
211 Cal.App.4th 809, 822.) If the defendant shows the challenged conduct was taken in
furtherance of his First Amendment rights of free speech, petition, and to seek redress of
grievances, the trial court must then determine whether the plaintiff has shown a
probability of prevailing on the claim. (People ex rel. Fire Ins. Exchange,at p.822)
       We review the trial court’s ruling on an anti-SLAPP motion independently,
engaging in the same two-step process. (Cabral v. Martins (2009) 177 Cal.App.4th 471,
478.) We do not weigh credibility or the weight of the evidence. Instead, we accept as
true the evidence favorable to the plaintiff and evaluate the defendant’s evidence only to
determine if it has defeated plaintiff’s evidence as a matter of law. (Soukup v. Law
Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
       The anti-SLAPP provisions do not apply to certain public interest lawsuits.
Section 425.17, subdivision (b) provides: “Section 425.16 does not apply to any action
brought solely in the public interest or on behalf of the general public if all of the
following conditions exist: [¶] (1) The plaintiff does not seek any relief greater than or
different from the relief sought for the general public or a class of which the plaintiff is a
member. A claim for attorney’s fees, costs, or penalties does not constitute greater relief
for purposes of this subdivision. [¶] (2) The action, if successful, would enforce an
important right affecting the public interest, and would confer a significant benefit,
whether pecuniary or nonpecuniary, on the general public or a large class of persons. [¶]
(3) Private enforcement is necessary and places a disproportionate financial burden on
the plaintiff in relation to plaintiff’s stake in the matter.”
2.     The Brown Act
       The Brown Act requires that most meetings of a local agency’s legislative body be
open to the public for attendance by all. (Gov. Code, § 54953, subd. (a).) Among its
provisions, the Brown Act requires that an agenda be posted at least 72 hours before a
regular meeting and forbids action on any items not on that agenda. (§ 54954.2, subd.
(a)(1).) “The [Brown] Act thus serves to facilitate public participation in all phases of
local government decisionmaking and to curb misuse of the democratic process by secret
legislation of public bodies. [Citation.]” (Epstein v. Hollywood Entertainment Dist. II


                                                5
Bus. Improvement Dist. (2001) 87 Cal.App.4th 862, 868.) Either the district attorney or
any interested person may bring an action for mandamus or injunctive or declaratory
relief in order to stop or prevent violations of the Brown Act “or to determine the
applicability of this chapter to actions or threatened future action of the legislative body
. . . .” (Gov. Code, § 54960, subd. (a).)
       There are three exceptions to the Brown Act’s agenda requirement. Even if an
item is not on the agenda, “members of a legislative body or its staff may briefly respond
to statements made or questions posed by persons exercising their public testimony rights
under [Government Code] Section 54954.3. In addition, on their own initiative or in
response to questions posed by the public, a member of a legislative body or its staff may
ask a question for clarification, make a brief announcement, or make a brief report on his
or her own activities. Furthermore, a member of a legislative body, or the body itself,
subject to rules or procedures of the legislative body, may provide a reference to staff or
other resources for factual information, request staff to report back to the body at a
subsequent meeting concerning any matter, or take action to direct staff to place a matter
of business on a future agenda.” (Gov. Code, § 54954.2, subd. (a)(2).)
3.     The Council’s Discussion Concerning the Church’s Letter
       What follows is a transcript of the portion of the August 11, 2014 council meeting
where the church’s letter was discussed:6
       “MAYOR MEGHAN SAHLI-WELLS: May I have a motion to receive and file
correspondence.
       “Councilperson Mehaul O’Leary: So moved.
       “Councilperson Jim Clarke: Second.
       “MAYOR SAHLI-WELLS: A motion and a second.
       “Martin Cole: And Madam Mayor as the City Council is voting on this motion
that includes items that were received by the City Clerk’s office up ‘til 4 o’clock this

6
      Although the record contains a video recording of the exchange, which we have
viewed, it did not include a transcript. We asked the parties to provide a transcript and
have augmented the appellate record to include that transcript.

                                              6
afternoon and they are about evenly split between items A-1 and A-2.
        “Secretary: That motion passes 5 AYES.
        “Councilperson Andrew Weissman: Madam Mayor may I ask a question
regarding one of the items that we just received and filed?
        “MAYOR SAHLI-WELLS: Yes.
        “Weissman: It’s a letter from Ilbert Philips regarding the parking district in and
around Farragut and Franklin. And it was directed to me, I think it was directed to me
because when we had the discussion a number of months ago regarding the consolidated
districts I’m the one that raised the issue of an appeal from a decision or non-decision by
the City Engineer, and I would like to ask for consensus to agendize the issue. Apparently
the staff’s position is that the avenue of appeal only applies to residents since it’s a
residential parking district. Perhaps I wasn’t sufficiently clear the night we discussed the
appeal, but I would like to, I’d like to discuss it again. And get some clarification with
regard to what the actual intent was.
        “MAYOR SAHLI-WELLS: So the agenda item that you’re proposing is to
discuss the appeal process?
        “Weissman: and the . . .
        “MAYOR SAHLI-WELLS: Or this specific case?
        “Weissman: Well we could do it I guess we could do it one of two ways and
maybe staff, Mr. Herbertson may be here, can assist me. I think we either agendize an
item for discussion of the specific parking district or we can have a discussion of what it
was that we intended to do when we provided for a right of appeal when we consolidated
the parking districts?
        “O’Leary: And would you like to put on hold the appeal time? [indistinct] and
timing . . . .
        “Weissman: I don’t think, based on staff’s position, there is no appeal time cuz
there’s no right to appeal.
        “O’Leary: Okay.



                                               7
       “MAYOR SAHLI-WELLS: I’m comfortable discussing the issue.
       “Clarke: So am I.
       “MAYOR SAHLI-WELLS: Alright.
       “Weissman: May I ask, just ask, Mr. Herbertson for some clarification as to what
staff’s preferred direction is on this?
       “Charles Herbertson: Staff’s preference would be to just take up the issue of the
parking, specifically regarding the parking on Farragut as opposed to whether or not
business or non-resident should be able to appeal a parking district. The reason for that is
it’s a very rare circumstance -- first time I can remember that this has come up where
there’s been a desire to change the parking district once it’s been formed, by an affected
nearby business or in this [case] a church. So just I would recommend that we just
discuss this particular item as opposed to a more general the idea of an appeal, but that of
course is up to the City Council. If, if we are going to agendize that I would recommend
that we notify both the Church, and as well as everybody in the district, so they would
have the opportunity to come in and state their case.
       “O’Leary: And is there a time frame by which an appeal can umm, is that going to
be an issue?
       “Herbertson: No, there’s no time frame Councilman Weissman was saying the
process, least as we’ve interpreted it at the Staff level, doesn’t really allow for an appeal
per se but they can always come to directly to the City Council at any time. It’s, it’s your
policy that you’ve adopted so at any point in each time a district is formed the city council
effectively has the ability to hear any objections to that district at any time, so.
       “MAYOR SAHLI-WELLS: In regards to the timing, I believe that this is one of
the oldest parking districts in Culver City if I’m not mistaken, so it’s not based on a new
decision or restriction it’s based on existing conditions, is that correct?
       “Weissman: I think it’s—I don’t want to speak for the Church, but I think it’s
evolving conditions. I think the, when the parking district was first established twenty-
plus years ago, it was based on one set of circumstances, and I think those circumstances
have evolved. The neighborhood has changed, and I think what, what we would be doing


                                               8
would be looking at the nature of and justification for continuing the district in its current
iteration or deciding that we want to do something different.
       “Herbertson: Yes, you know I don’t have the history right in front of me, but what
Councilman Weissman said is correct. My recollection is that the limits on the district
have changed at least a couple of times I think over the years so it is an old district but the
restrictions have been changed over time and certainly, it’s possible also that other things
have also changed as well as for other uses in the area, etc. So it would be appropriate to
take a fresh look at it if that’s the, the council’s desire to do so.
       “MAYOR SAHLI-WELLS: Alright.
       “Herbertson: Okay.
       “MAYOR SAHLI-WELLS: Thank You.”
4.     The Public Interest Exception Does Not Apply
       Section 425.17 was enacted to curb the “ ‘disturbing abuse’ ” of the anti-SLAPP
provisions. (Club Members For An Honest Election v. Sierra Club (2008) 45 Cal.4th
309, 315, quoting § 425.17, subd. (a).) The public interest exception applies to only
those actions brought solely in the public interest. It does not apply to an action that
seeks a more narrow advantage for a particular plaintiff. (Id. at pp. 316-317.) As a
result, section 425.17, subdivision (b) does not apply to a party seeking any personal
relief. (Club Members For An Honest Election, pp. 309, 315.)
       We look to the allegations of the complaint and the scope of relief sought in order
to determine whether the public interest exception applies. (Tourgeman v. Nelson &
Kennard (2014) 222 Cal.App.4th 1447, 1460.)7
       Plaintiffs contend they have satisfied all three requirements of the exception
because: (1) they have asked for nothing other than a declaration that the city’s conduct
violated the Brown Act, which would provide them no greater relief than the public at
large would receive; (2) a judgment in their favor would provide a significant benefit to
the public; and (3) private enforcement was necessary because no one else stepped up to

7
      As a result, we hereby deny plaintiffs’ request that we judicially notice the city’s
March 2016 resolution directing a study of the Farragut Drive Parking restrictions.

                                                 9
challenge the city’s action, and plaintiffs will incur legal fees without a concomitant
damages award should they prevail. The city contends that plaintiffs have an individual
stake in the outcome that defeats application of the public interest exception.
       Our examination of the complaint tips the balance in the city’s favor. The
complaint alleges that the city grandfathered in the Farragut Drive Parking restrictions in
2004, and then, pursuant to the 2013 parking regulations, delegated to the traffic engineer
exclusive authority regarding changes to preferential parking zones. The traffic engineer
later refused the church’s requests to modify the Farragut Drive Parking restrictions,
prompting the church’s August 1, 2014 letter to Weisman.
       Plaintiffs allege that contrary to the 2013 parking regulations, the council decided:
(1) to remove the traffic engineer’s exclusive jurisdiction over parking zone modification
issues; (2) that it had original jurisdiction over the matter; and (3) that the Farragut Drive
residents would have to re-petition the city to keep their restrictions in place. Plaintiffs
also allege that the council did not inform the public “and in particular Farragut
residents” that the city’s traffic engineer believed the church had no per se right to appeal
to the council, and instead decided that such a right was available. As part of this,
plaintiffs allege, the council discussed substantive issues concerning the church’s
viewpoint on the need for changes to the parking zone.
       Finally, plaintiffs alleged that they submitted a cease and desist letter to the city
that “clearly describes the past action of the council on August 11, 2014” that the conduct
violated the Brown Act, and that the city has not provided an unconditional commitment
to “cease, desist from, and not repeat the past action that plaintiffs alleged in their
aforesaid cease-and-desist letter.”8



8
        Plaintiffs provided a copy of the cease-and-desist letter in opposition to the city’s
anti-SLAPP motion. In it, plaintiffs complain that the council violated the 2013 parking
regulations by providing the church with “non-existent appellate rights” and by ordering
staff to take a fresh look at the Farragut Drive Parking restrictions. The letter asked the
city to “cease and desist discussions and action related to its meeting on August 11,
2014.”

                                              10
       Distilled, plaintiffs alleged that the council had no authority to hear an appeal by
the church regarding the Farragut Drive Parking restrictions, and asked the city to stop
taking further actions in that regard. Keeping the parking restriction at status quo would
directly benefit plaintiff Farragut Drive homeowners. In short, plaintiffs sought personal
relief in the form of a halt to any attempts by the church to undo the long-standing
parking restrictions. As a result, the public interest exception to the anti-SLAPP
provisions does not apply.
5.     Plaintiffs Are Unlikely to Prevail on the Merits
       Plaintiffs do not dispute that the city has satisfied the first prong of an anti-SLAPP
motion – that its statements concerning the parking restrictions and its direction to place
the issue on a future agenda were forms of protected activity under the First Amendment.
The issue we must decide is whether plaintiffs have carried their burden of showing it is
probable they will prevail on the merits.
       We begin with the three Brown Act exceptions to discussing or acting upon non
agenda items: (1) members of a legislative body, or their staff, may briefly respond to
statements made or questions posed by persons exercising their right to publicly testify at
a hearing; (2) either on their own initiative or in response to a question posed by the
public, the legislative body or its staff may ask a question for clarification, make a brief
announcement, or make a brief report on their own activities; and (3) subject to its rules
or procedures, a legislative body may ask staff to provide factual information, report back
at a later time, or place an item on a future agenda. (Gov. Code, § 54954.2, subd. (a)(2).)
       Although plaintiffs characterize the council’s comments and questions concerning
the church’s ability to challenge the Farragut Drive Parking restrictions as something
substantive and substantial, we disagree. Based on our reading of the transcript and
viewing of the video recording, Weisman did no more than ask for clarification as to the
appropriate avenue of response to the church’s letter. Engineer Herbertson answered
those questions and advised the council that the matter could be placed on a future
agenda, with all parties given notice and an opportunity to comment. Therefore, the
discussion itself falls within all three statutory exceptions.


                                              11
       Finally, plaintiffs contend they will likely prevail on the merits because the city’s
actions – placing the parking restriction issue on the next agenda – violated the rules and
procedures in the 2013 parking regulations, which plaintiffs contend prohibited what was
effectively an appeal of the traffic engineer’s statement that the regulations provided for
no such appeal. (Gov. Code, § 54954.2, subd. (a)(2) [subject to rules of procedures of
legislative body, staff can be directed to place a matter on the agenda].)
       We see two fundamental problems with this contention. First, as we read the
statute, it requires the legislative body to follow its rules or procedures in regard to setting
agendas, and does not address whether a matter was wrongly placed on the agenda for
other reasons. To hold otherwise would convert the Brown Act into a vehicle for
challenging agendized matters because opponents believe the legislative body lacks
authority to act for reasons unrelated to the policies behind the open meeting law. If the
2013 parking regulations barred the city from acting, that issue was ripe for discussion by
plaintiffs when the matter was heard at the next council meeting.
       Second, as we read the record, city staffers concluded the 2013 parking regulations
applied to parking zone issues raised by only the residents of an affected area, not by
organizations or businesses located in or near the parking zone. It was on that basis that
the church’s attempt to appeal was administratively rejected, and it was that concern that
led the city, acting on advice of its traffic engineer, to conclude it still possessed the
authority to reconsider parking restrictions in response to a challenge such as that brought
by the church. We have read the 2013 parking regulations, and agree that they are silent
on the type of challenge raised here. Under plaintiffs’ interpretation, however, the city
could never reconsider long-standing parking restrictions no matter how much conditions
had changed, so long as the challenge came from someone other than the residents of that
zone. We reject that interpretation, and on that basis as well conclude that the plaintiffs
are not likely to prevail on the merits.




                                               12
                                    DISPOSITION

      The order dismissing plaintiffs’ action under the anti-SLAPP provisions is
affirmed. Respondents shall recover their costs on appeal.




                                                RUBIN, J.
WE CONCUR:



             BIGELOW, P. J.



             FLIER, J.




                                           13
Filed 8/8/16
                               CERTIFIED FOR PUBLICATION

               IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                               SECOND APPELLATE DISTRICT

                                        DIVISION EIGHT

PAUL CRUZ et al.,                                         B265690

               Plaintiffs and Appellants,                 (Los Angeles County
                                                          Super. Ct. No. BC565079)
               v.

CITY OF CULVER CITY et al.,                                  ORDER MODIFYING AND
                                                            CERTIFYING OPINION FOR
               Defendants and Respondents.                       PUBLICATION

                                                            [NO CHANGE IN JUDGMENT]



THE COURT:
        The opinion in the above-entitled matter filed on July 15, 2016, was not certified for
publication in the Official Reports. For good cause, it now appears that the opinion should be
published in the Official Reports and it is so ordered.
        It is further ordered, the opinion shall be modified as follows:
        On page 9, subheading No. 4 “The Public Interest Exception Does Not Apply” is
replaced with: The Public Interest Exception Does Not Defeat the anti-SLAPP Motion.
        This modification does not change the judgment.



________________________________________________________________________
BIGELOW, P. J.                      RUBIN, J.                     FLIER, J.
