Filed 11/30/17

                 CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                 SECOND APPELLATE DISTRICT

                           DIVISION SIX
SANTA CLARA WASTE                         2d Civil No.B278967
WATER COMPANY,                          (Super. Ct. No. 56-2016-
                                        00485056-CU-WM-VTA)
     Plaintiff and Respondent,             (Ventura County)

v.

COUNTY OF VENTURA
ENVIRONMENTAL HEALTH
DIVISION,

     Defendant and Appellant.


              A division of the county declares plaintiff to be in
violation of regulations governing hazardous waste. It writes to
plaintiff that it is referring the matter to the district attorney and
it is not seeking administrative penalties. Plaintiff brings an
action asserting its right to an administrative hearing to
determine whether its chemicals constitute hazardous waste.
Plaintiff complains that the division has no right to state
plaintiff’s chemicals are hazardous prior to such a hearing. The
division responds with an anti-SLAPP motion to strike plaintiff’s
petition and complaint. (Code Civ. Proc., § 425.16.1) The trial

       All statutory references are to the Code of Civil Procedure
        1

unless otherwise stated.
court denied the motion. We reverse. Even the government has
first amendment rights.
                               FACTS
              The County of Ventura Environmental Health
Division (Division) is responsible for the Unified Hazardous
Waste and Hazardous Materials Management Regulatory
Program. (Health & Saf. Code, § 25404 et seq.) The Division has
jurisdiction over the Santa Clara Waste Water Company
(SCWW), a nonhazardous waste treatment facility. SCWW does
not have a permit to process hazardous waste.
              There are two types of enforcement actions the
Division can take. One is formal enforcement that mandates
compliance and imposes sanctions. (Cal. Code Regs., tit. 27,
§ 15110, subd. (e)(1).) The other is informal enforcement that
notifies a regulated business of noncompliance and establishes an
action and date for correction, but does not impose sanctions.
(Id., subd. (e)(2).)
              In November 2014, there was an explosion and fire at
SCWW’s treatment facility. That led to a criminal investigation
by the Ventura County District Attorney. In November 2015, the
Division assisted the district attorney in executing a search
warrant on SCWW’s Ventura County facility.
              The Division discovered nineteen 275-gallon totes
and seven 50-gallon drums of a chemical known as “Petromax” at
SCWW’s facility. The Division determined that 24 of the
Petromax totes and drums were hazardous because of their high
pH levels and that they were waste because they had been
accumulated in lieu of disposal.
              The day after the execution of the search warrant,
the Division issued SCWW an inspection report and notice to




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comply (NTC). The report and NTC cited a number of violations,
including violations premised on the Division’s determination
that at least some of the Petromax is hazardous waste.
             A letter from SCWW’s counsel disputed that any of
the Petromax was hazardous waste. A meet and confer between
the parties failed to resolve the dispute.
             In a letter to SCWW dated February 9, 2016, the
Division explained its determination that at least some of the
Petromax constituted hazardous waste. The letter stated in part:
“Typically, if violations that are listed on a NTC are not corrected
by the date specified in the NTC, the Division will issue a Notice
of Violation (NOV) and then either pursue formal administrative
enforcement or refer the matter to the Ventura County District
Attorney’s (DA) Office for criminal enforcement. However, since
the DA’s Office already has an active criminal enforcement case
against SCWW, this Division does not anticipate pursuing
separate administrative enforcement proceedings in this matter
but we intend to refer any violations that remain uncorrected to
the DA’s Office, to the extent they are not already part of the
DA’s case.”
             On March 26, 2016, a grand jury indicted SCWW on
the charge that Petromax is a hazardous waste.
             The February 9 letter stated the Division would
review any further information SCWW wishes to submit. Having
received no further information, by letter dated June 15, 2016,
the Division wrote to SCWW confirming its determination that
SCWW’s Petromax is hazardous waste. The letter was headed
“Final Determination of Hazardous Waste Violations.”
             In July 2016, the Division again inspected SCWW’s
facilities. The Division issued another NTC based on its




                                 3
determination that Petromax is a hazardous waste. SCWW’s
counsel wrote to the Division disputing that Petromax is a
hazardous waste and objecting that the Division’s administrative
procedures are unfair and inadequate to protect SCWW’s due
process rights.
             The Division again agreed to meet and confer with
SCWW on whether Petromax is a hazardous waste. But the
Division disputed SCWW’s characterization of its administrative
process. The Division’s letter to SCWW dated July 21, 2016,
stated in part:
             “It is also important to note that this Division has not
initiated a formal administrative enforcement action related to
the Petromax violations, which would begin with the issuance of
an administrative enforcement order (AEO), and also provides an
opportunity for an administrative appeal. Instead, as previously
explained, we intend to refer future violations as well as those
violations that remain uncorrected to the District Attorney’s
Office for prosecution, since it has an active case against SCWW
which involves violations at this facility.”
                   SCWW’s Petition and Complaint
             On August 8, 2016, SCWW filed the instant petition
for an alternate or peremptory writ of mandate and complaint for
declaratory and injunctive relief.
             In its petition, SCWW alleged that Petromax is not
hazardous waste. It further alleged that the Division’s unilateral
decision determining Petromax to be hazardous waste without a
fair and impartial administrative hearing violated the law and its
due process rights. SCWW claimed: “[T]he County’s unilateral
decision that the Petromax purchased by SCWW is a ‘waste’
rather than a beneficial product deprives SCWW of its property




                                 4
and its opportunity to conduct business, but also threatens
SCWW and its employees with possible criminal and civil
liability. Worse yet, it sets up SCWW as being in violation every
day forward with no ability to appeal or challenge the County’s
determination that the Petromax is a ‘waste’ and no longer a
‘product.’”
             SCWW requested: a stay of enforcement of the NTC
and the Division’s decision that Petromax is waste; a writ of
mandate requiring the Division to allow a fair and unbiased
administrative review of its NTC and decision; notice and a
hearing before the County may enforce its findings or refer
SCWW to criminal or civil prosecution; and restitution.
             The trial court denied SCWW’s ex parte request for a
temporary restraining order on the ground SCWW is not likely to
prevail. The court found, “[I]t appears that the [Division] has
complied within the letter of the relevant codes and regulations,
and that [the Division] has no obligation to proceed in the
manner demanded by [SCWW].”
             The trial court also sustained the Division’s demurrer
with leave to amend.
                         Anti-SLAPP Motion
             The Division made a special motion to strike the
petition as a strategic lawsuit against public participation (anti-
SLAPP motion). (§ 425.16.) The trial court agreed that the NTC
and letters are protected activities. But the court stated that
SCWW’s petition does not directly attack the NTC and letters.
Instead, SCWW objects to the Division’s refusal to provide an
administrative hearing on whether Petromax constitutes
hazardous waste. The court reasoned SCWW’s objection is to the
lack of an administrative procedure, not the determination that




                                5
Petromax constitutes hazardous waste. Thus, the court
concluded SCWW’s petition did not attack a protected activity.
The court denied the motion.
                            DISCUSSION
                                   I
             Section 425.16, subdivision (b)(1) provides: “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.”
             Section 425.16, subdivision (e) provides that such
acts include “(1) any written or oral statement or writing made
before a legislative, executive, or judicial proceeding, or any other
official proceeding authorized by law” and “(2) any written or oral
statement or writing made in connection with an issue under
consideration or review by a legislative, executive, or judicial
body, or any other official proceeding authorized by law.”
             A special motion to strike involves a two-step process.
(Olive Properties, L.P. v. Coolwaters Enterprises, Inc. (2015) 241
Cal.App.4th 1169, 1174 (Olive Properties).) First, the defendant
must make a prima facie showing that the plaintiff’s cause of
action arises from an act in furtherance of the defendant’s right
of petition or free speech in connection with a public issue. (Ibid.)
If the defendant meets this threshold showing, the cause of action
will be stricken unless plaintiff can establish a probability
plaintiff can prevail on the claim. (Ibid.)




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              The “‘principal threat or gravamen’” of the plaintiff’s
claim determines whether the first prong of section 425.16
applies. (Olive Properties, supra, 241 Cal.App.4th at p. 1175.)
The focus is on the allegedly wrongful conduct that provides the
foundation for the plaintiff’s claims. (Ibid.) Our review of the
trial court’s denial of the motion to strike is de novo. (Ibid.)
              The California Constitution protects the free speech
of government entities and public officials and such activities are
within the scope of section 425.16. (Vargas v. City of Salinas
(2009) 46 Cal.4th 1, 17.)
              Here the gravamen of SCWW’s petition is that the
Division has no right to declare Petromax to be hazardous waste.
SCWW claims that right rests exclusively with a neutral
magistrate after notice and a hearing.
              But the Division twice stated in writing that it
intends to take no action other than to refer the matter to the
district attorney. SCWW does not contend the Division has taken
any other action. A police officer who witnesses a crime is not
required to hold a hearing before a neutral magistrate before
referring the matter to the district attorney. Neither is the
Division.
              In its petition, SCWW makes it clear that the focus of
its attack is on the Division’s statements. It requests a stay of
enforcement of the “[Division’s] decision that SCWW’s inventory
of Petromax is a ‘waste’ rather than a ‘product’” and a stay of
enforcement of the “[Division’s] decision that SCWW’s inventory
of Petromax is a ‘hazardous waste.’” Given that the only
“enforcement” the Division has undertaken or plans to undertake
is referral of the matter to the district attorney, the manifest
purpose for the petition is to silence the Division.




                                 7
             In addition, SCWW’s application for preliminary
relief admits that the Division’s decision and NTC are at the
heart of SCWW’s lawsuit. SCWW states in its application: “In
this case the County made a decision and then issued a ‘Notice to
Comply’ based on its decision that the Petromax is ‘hazardous
waste.’ The County’s Petromax decision and the Notice to
Comply deprive SCWW of its property (the Petromax), the ability
to use its property (the Petromax) and the ability to operate its
business, with or without an enforcement action.”
             In other words, SCWW claims that the Division’s
decision and notice that Petromax is hazardous waste, by
themselves, are causing SCWW harm even without an
enforcement action. SCWW’s lawsuit is simply attacking the
Division’s right of free speech.
             Finally, SCWW admits in its respondent’s brief on
appeal that it seeks to gain advantage in the criminal prosecution
against it by silencing the Division. SCWW states: “The felony
criminal charges against [SCWW] in Case No. 2016009142
depend on the [Division’s] administrative determination that
Petromax is hazardous waste. If that hazardous waste
determination is set aside, the [Ventura County District
Attorney] will have no basis to continue to prosecute felony and
misdemeanor counts relating to the storage and management of
hazardous materials at [SCWW’s] facility.”
             SCWW may wish to have what it posits is an
administrative hearing. But its primary grievance is that the
Division has declared Petromax to be hazardous waste and is
assisting the district attorney in prosecuting SCWW. But that is
what many enforcement agencies are mandated to do.




                                8
             SCWW’s petition seeks to deprive the Division of its
right to free speech. The Division has satisfied the first step in
the anti-SLAPP analysis. It has made a prima facie case showing
that SCWW’s causes of action arise from an act in furtherance of
the Division’s right and responsibility to make a statement
involving a public issue.
             SCWW’s reliance on City of Cotati v. Cashman (2002)
29 Cal.4th 69 is misplaced. There, mobilehome park owners filed
an action in federal court challenging the constitutionality of a
city’s rent control ordinance. The city filed an action in state
court seeking a declaration that the ordinance is valid. The trial
court granted the owners’ motion to strike the city’s suit on the
ground it was a SLAPP suit. Our Supreme Court upheld the
Court of Appeal’s reversal and concluded the city’s lawsuit did
not arise from the owners’ exercise of their right of free speech or
petition. Instead, the city’s lawsuit arose from the underlying
controversy over the validity of the ordinance. (Id. at p. 80.)
             Similarly, courts have determined anti-SLAPP
motions to be inappropriate where, for example, the gravamen of
a lawsuit is a challenge to a city’s land use regulations (USA
Waste of California, Inc. v. City of Irwindale (2010) 184
Cal.App.4th 53, 63); or the enforcement of statutory and
regulatory rules for claims handling by an insurance carrier
(Gallimore v. State Farm Fire & Casualty Ins. Co. (2002) 102
Cal.App.4th 1388, 1399).
             But here the gravamen of SCWW’s action does not
involve a challenge to or enforcement of an ordinance, regulation
or statute. Instead, the gravamen of SCWW’s action is the right
of the Division to declare SCWW’s Petromax to be hazardous
waste and to cooperate with the district attorney. SCWW’s




                                 9
petition is directly aimed at the Division’s right, if not obligation,
to inform parties of its actions.
                                  II
             The remaining question is whether SCWW can carry
its burden of establishing a probability of prevailing on its claim.
             The trial court, having wrongly found that the
Division failed to make a prima facie case for relief, did not
decide SCWW’s probability of prevailing. The court, however, did
sustain the Division’s demurrer. SCWW points out that the court
sustained the Division’s demurrer with leave to amend. But a
plaintiff cannot avoid an anti-SLAPP motion by amending the
complaint. (Hansen v. Department of Corrections &
Rehabilitation (2008) 171 Cal.App.4th 1537, 1547.) Thus, we
must view the complaint as it existed at the time of the motion.
             SCWW urges that we remand the matter for factual
findings. But no factual findings are necessary. In sustaining
the Division’s demurrer, the trial court determined that, as a
matter of law, SCWW’s complaint failed to state a cause of action.
In addition, our review of the trial court’s ruling on an anti-
SLAPP motion, including the probability of the plaintiff’s success,
is de novo. (Schwarzburd v. Kensington Police Protection &
Community Services Dist. Bd. (2014) 225 Cal.App.4th 1345,
1355.) We have the authority to decide the issue ourselves.
(Ibid.) Because we can decide the question as a matter of law, it
would be a waste of judicial resources to remand the matter to
the trial court.
             SCWW relies on Health and Safety Code section
25180, subdivision (d). But that subdivision requires only that
the Division treat all entities that deal with hazardous waste
“equally and consistently with regard to the same types of




                                 10
violations.” (Ibid.) SCWW does not specify how the Division has
treated it unequally or inconsistently with regard to the same
type of violation. The subdivision cannot reasonably be construed
as requiring an administrative hearing before the Division can
declare a substance to be hazardous waste and cooperate with the
district attorney.
              SCWW’s reliance on Health and Safety Code section
25187, subdivision (e) is also misplaced. That subdivision
provides: “Any hearing requested on an order issued by the
department shall be conducted within 90 days after receipt of the
notice of defense by an administrative law judge of the Office of
Administrative Hearings of the Department of General Services
in accordance with Chapter 4.5 (commencing with Section 11400)
of Part 1 of Division 3 of Title 2 of the Government Code, and the
department shall have all the authority granted to an agency by
those provisions.” (Ibid.) But the order referred to in subdivision
(e) is defined in subdivision (a)(1) of section 25187 as “an order
requiring that the violation be corrected and imposing an
administrative penalty . . . .” Here the Division expressly
declined to impose an administrative penalty. Section 25187,
subdivision (e) does not apply.
              Similarly Health and Safety Code section 25404.1.1,
subdivision (a) applies to “an administrative enforcement order
requiring that the violation be corrected and imposing an
administrative penalty . . . .” Because no administrative penalty
was imposed, the section does not apply here.
              Finally, SCWW argues the Division has denied it due
process of law. SCWW cites no authority that even remotely
supports its argument. SCWW will receive all the process that is
due to it in the criminal prosecution. There it will have an ample




                                11
opportunity to contest whether its Petromax constitutes
hazardous waste.
            The judgment (order) is reversed. Costs are awarded
to appellant.
            CERTIFIED FOR PUBLICATION.




                                   GILBERT, P. J.

We concur:



             PERREN, J.



             TANGEMAN, J.




                              12
                     Rocky J. Baio, Judge

               Superior Court County of Ventura
                ______________________________

           Leroy Smith, County Counsel and Eric J. Walts,
Assistant County Counsel, for Defendant and Appellant.
           Musick, Peeler & Garrett, Barry C. Groveman,
William W. Carter, Marc R. Greenberg, K. Ryan Hiete, Cheryl A.
Orr and Andrew Gilford, for Plaintiff and Respondent.




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