Filed 9/11/18
                             CERTIFIED FOR PUBLICATION




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




 HARMUN TAKHAR,

                  Cross-complainant and
 Respondent,
                                                               C082021
          v.

 THE PEOPLE ex rel. FEATHER RIVER AIR               (Super. Ct. No. CVCV150000455)
 QUALITY MANAGEMENT DISTRICT,

                  Cross-defendant and Appellant.


       APPEAL from a judgment of the Superior Court of Yuba County, Stephen W.
Berrier, Judge. Reversed with directions.

      AQUA TERRA AERIS LAW GROUP, Matthew C. Maclear and Jason R.
Flanders for Cross-defendant and Appellant.

        MICHAEL R. BARRETTE for Cross-complainant and Respondent.




                                             1
       This appeal challenges the trial court’s denial of a special motion to strike
pursuant to Code of Civil Procedure section 425.16, the anti-SLAPP statute,1 directed at a
cross-complaint asserting causes of action arising from a civil enforcement action
brought by Feather River Air Quality Management District against Harmun Takhar for
multiple violations of state and local air pollution laws.2 We reverse. Takhar has not
demonstrated he qualifies for an exemption to the anti-SLAPP statute. The causes of
action alleged in Takhar’s cross-complaint arise from protected petitioning activity and
he has not established a probability of prevailing on the merits of these claims. We shall
therefore remand the matter to the trial court with directions to grant the anti-SLAPP
motion and dismiss the cross-complaint.
                                      BACKGROUND
                                    Regulatory Overview
       We begin with a brief overview of California’s air quality regulatory scheme in
order to place the facts of this case in their proper context.
       California has divided responsibility for control of air pollution between the
California Air Resources Board and 35 local and regional air quality management
districts. One of these districts is the plaintiff in this matter. Under this regulatory
scheme, the District is responsible for “control of air pollution from all sources other than
vehicular sources” (Health & Saf. Code, § 39002) within the Yuba and Sutter County


1      Undesignated statutory references are to the Code of Civil Procedure.

      SLAPP is an acronym for “strategic lawsuit against public participation.”
(Navellier v. Stetten (2002) 29 Cal.4th 82, 85, fn.1.)
2       Such an enforcement action is brought in the name of the People of the State of
California. (Health & Saf. Code, § 42403, subd. (a).) However, for ease of reference, we
refer to both the Feather River Air Quality Management District and the plaintiff in the
enforcement action, i.e., the People ex rel. Feather River Air Quality Management
District, as “the District” throughout this opinion.

                                               2
region, and is charged with “adopt[ing] and enforc[ing] rules and regulations to achieve
and maintain the state and federal ambient air quality standards in all areas affected by
emission sources under their jurisdiction,” as well as “enforc[ing] all applicable
provisions of state and federal law.” (Id., § 40001.)
       Subject to an exception not applicable here, Health and Safety Code section 41700
provides, “a person shall not discharge from any source whatsoever quantities of air
contaminants or other material that cause injury, detriment, nuisance, or annoyance to
any considerable number of persons or to the public, or that endanger the comfort,
repose, health, or safety of any of those persons or the public, or that cause, or have a
natural tendency to cause, injury or damage to business or property.” The statutory
terms, “ ‘[a]ir contaminant’ or ‘air pollutant’ ” are defined to mean “any discharge,
release, or other propagation into the atmosphere and includes, but is not limited to,
smoke, charred paper, dust, soot, grime, carbon, fumes, gases, odors, particulate matter,
acids, or any combination thereof.” (Health & Saf. Code, § 39013.)
       This case involves dust. Pursuant to its rulemaking authority, the
District adopted its rule 3.16 “to reasonably regulate operations which periodically
may cause fugitive dust emissions into the atmosphere.” (Feather River Air
Quality Management District Rules, rule 3.16(A.) (Rule 3.16), adopted Apr. 11,
1994 <https://www.arb.ca.gov/drdb/fr/cur.htm> [as of Sept. 7, 2018] archived at
<https://perma.cc/PM6D-7MVZ>.)3 “Fugitive Dust” is defined as: “Solid airborne
matter emitted from any non-combustion source.” (Rule 3.16(B.1).) The rule requires
all individuals within the District’s jurisdiction to “take every reasonable precaution not
to cause or allow the emissions of fugitive dust from being airborne beyond the property




3      Undesignated rule references are to Feather River Air Quality Management
District Rules.

                                              3
line from which the emission originates, from any construction, handling or storage
activity, or any wrecking, excavation, grading, clearing of land or solid waste disposal
operation.” (Rule 3.16(C.).) Rule 3.16 also has an exemption for “Agricultural
Operations,” defined as: “The growing and harvesting of crops, including timber, or the
raising of fowls, animals or bees, for the primary purpose of earning a living, or making a
profit.” (Rules 3.16(D.), 1.1(B.2).) This subject will be addressed further in the
discussion portion of the opinion.
       Various provisions of the Health and Safety Code, including sections 42402
through 42402.3, provide for civil penalties for violation of that code’s nonvehicular air
pollution control provisions, including section 41700, or any rule, regulation, permit, or
order of a local or regional district, including rule 3.16. As mentioned, such civil
penalties “shall be assessed and recovered in a civil action brought in the name of the
people of the State of California by the Attorney General, by any district attorney, or by
the attorney for any district in which the violation occurs in any court of competent
jurisdiction.” (Health & Saf. Code, § 42403, subd. (a).)
                                Takhar’s Clearing Activities
       Takhar owned a piece of property in Yuba County. In June 2014, he began the
process of converting that property from pasture land to an almond orchard. This process
required the clearing, grading, and disking of the land in order to prepare the site for
planting. The earthwork generated dust that was carried from Takhar’s property and
deposited onto neighboring properties. These neighboring property owners complained
to the District. Ten complaints were received between June 6 and August 13.
       On June 23, after three such complaints were received, District staff investigated
and observed a tractor operating in the northwest corner of Takhar’s property. A large
plume of dust emanating from the property was being carried onto neighboring properties
to the northeast. District staff contacted Takhar, informed him the dust emissions were



                                              4
impacting neighboring properties causing a public nuisance, and requested he take
reasonable precautions to prevent the dust from reaching the affected properties, such as
waiting for the wind to change directions before engaging in earthwork.
       On July 1, three additional complaints were received. These complaints alleged
the dust created by Takhar’s clearing activities was causing breathing problems for one of
the neighboring property owners; the dust was “terrible” and “all over” their properties.
District staff again investigated and again observed dust being carried across Takhar’s
property onto the neighboring properties. Takhar was again warned of the violation and
advised to discontinue the nuisance. Two days later, a seventh complaint was received.
This complaint claimed the dust was causing health problems requiring one of the
residents of the affected property to temporarily relocate and was also negatively
impacting that property’s well and solar panels.
       The District received its eighth and ninth complaints regarding dust emanating
from Takhar’s property on July 13 and 14, respectively. One of the property owners
again complained the dust was making it difficult for her to breathe. District staff again
investigated and observed a dust cloud about 100 feet in the air migrating from Takhar’s
property to neighboring properties to the north and northeast. This time, when District
staff contacted Takhar about the continuing nuisance, he told them to contact his
attorney. The tenth complaint, received on August 13, was also investigated. District
staff confirmed the accuracy of this complaint as well.
                        Notice of Violation and Settlement Attempt
       On August 14, 2014, the District issued Takhar a notice of violation, asserting he
violated Health and Safety Code section 41700 on June 23, July 1 and 14, and August 13
by emitting fugitive dust that crossed his property line and adversely affected neighboring
property owners. The following day, the District sent Takhar a letter seeking settlement
of the notice of violation, notifying him “the maximum penalty which could be imposed



                                             5
for this violation is seventy-five thousand ($75,000) dollars,” enclosing a copy of the
civil penalty provisions noted above (i.e., Health and Safety Code sections 42402 through
42402.3), and offering to settle the violation for $2,566.
           Takhar did not take the District up on its settlement offer and instead continued
with his clearing activities. As we set forth in greater detail below, the District alleged he
repeatedly violated Health and Safety Code section 41700 for another three months.
                   Action for Recovery of Civil Penalties and Injunctive Relief
           In May 2015, the District brought a civil enforcement action against Takhar
asserting causes of action for public nuisance based on his repeated violation of Health
and Safety Code section 41700, willful and intentional emission of air contaminants (id.,
§ 42402.3, subd. (a)), knowing emission of air contaminants (id., § 42402.2, subd. (a)),
negligent emission of air contaminants (id., § 42402.1, subd. (a)), and strict liability for
violation of the Health and Safety Code’s nonvehicular air pollution control provisions or
any rule, regulation, permit, or order of a local or regional district (id., § 42402, subd.
(b)(1)). The complaint seeks injunctive relief to abate the nuisance and civil penalties for
the alleged violations of Health and Safety Code section 41700 and rule 3.16, occurring
on June 6 and 23, July 1, 3, 8, 13, 14, and 16, August 6, 7, 8, 13, 14, and 27, September
20, November 11, and “multiple days before, between, and thereafter.”
                                    Takhar’s Cross-complaint
           On October 8, 2015, after an unsuccessful demurrer, Takhar answered the
complaint and filed a cross-complaint against the District. The cross-complaint asserts a
taxpayer action for waste of public funds under section 526a and also seeks declaratory
relief.4



4       The cross-complaint asserted a third cause of action for injunctive relief, but the
trial court sustained a demurrer to this cause of action because injunctive relief is not a
cause of action, but rather a remedy.

                                                 6
       With respect to the taxpayer action, as relevant to the issues raised in this appeal,
the cross-complaint alleges: “[Takhar] brings this taxpayer action on the grounds that the
enforcement against him specifically in this case, constitutes a waste and misuse of
taxpayer funds for the prosecution of fugitive dust emissions in that Cross-Complainant is
specifically exempt pursuant to [District] Rule 3.16[(D)], of the Fugitive Dust
Regulations in that at all times during the alleged Notices of Violations, [Takhar] was
engaged in the preparation of land for the purpose of planting and growing almond trees
for the primary purpose of earning a living or making a profit.” (Italics added.) In
addition to himself, Takhar purports to bring the taxpayer action “on behalf of all other
similarly situated individuals in Yuba and Sutter [C]ounties, who have received Notices
of Violation or other enforcement action for fugitive dust while engaged in Agricultural
Operations and have paid fines[,] assessments or other monies or consideration illegally
obtained and retained by [the District], which due to the waste of taxpayer money in
enforcing fugitive dust regulations against persons engaged in Agricultural Operations,
should rightly be returned by restitution to the rightful parties, to the extent that they can
be ascertained, in that [the District] is unjustly enriched by illegally using taxpayer funds
to unlawfully enforce a regulation against parties that are by District rule, exempt from
those regulations.”
       With respect to the declaratory relief cause of action, Takhar alleges an actual
controversy exists between himself and the District concerning the interpretation of rule
3.16, specifically whether or not subdivision D. exempts him from complying with the
rule, and whether or not the District may “enforce fugitive dust violations under
princip[les] of nuisance law as contained in . . . [Health and Safety Code section] 41700
and other related sections contained under [section] 3479 of the Civil Code, thereby
bypassing the specific exemptions set forth in District [r]ule 3.16.”




                                               7
                                     Anti-SLAPP Motion
       The District filed an anti-SLAPP motion arguing the causes of action asserted
in the cross-complaint arose from the District’s protected petitioning activity, i.e.,
bringing the civil enforcement action against Takhar for fugitive dust violations.
With respect to the second stage of the anti-SLAPP analysis, the District argued
Takhar could not demonstrate a probability of prevailing on the merits because: (1) a
taxpayer waste action may not be brought to challenge a “lawful exercise of prosecutorial
discretion”; (2) the District “is not among the government entities covered by the
taxpayer statute because [the District] is funded by . . . revenue sources that are not tax-
based or tax-derived”; (3) there is no “nexus between the payment of any tax and the
[District], let alone in the year prior to filing the [cross-complaint]”; and (4) far from
illegally expending or wasting public funds, the District took “reasonable, legal action”
against Takhar in accordance with “its statutory mandate [to] reduce air pollution
within its jurisdiction.” The District also disputed Takhar’s assertion that he was
bringing the taxpayer action on behalf of other similarly-situated individuals, arguing
its records revealed only Takhar was emitting fugitive dust while engaging in land
clearing preparatory to agricultural operations. Finally, the District argued Takhar
did not qualify for the public interest exception to the anti-SLAPP statute, set forth
in section 425.17.
       Takhar opposed the anti-SLAPP motion. He first argued the public interest
exception to the anti-SLAPP statute applied to his cross-complaint because: (1) in
the cross-complaint, Takhar seeks no greater or different relief for himself than he
does for all similarly-situated farmers in the District’s jurisdiction, i.e., he “seeks a
declaration on behalf of himself and all others similarly situated . . . that farmers
engaged in agricultural operations are exempt from fugitive dust regulation of their
farming activities”; (2) such a declaration would confer a significant benefit on such



                                               8
farmers, allowing them to “continue to engage in agricultural operations without fear
that [the District] will, in the future, haul them into court for kicking up fugitive dust”;
(3) the fact that no public entity has brought an action to challenge the District’s
enforcement activities demonstrates the necessity of private enforcement of the right
to emit fugitive dust in agricultural operations; and (4) such private enforcement “places
a disproportionate financial burden on [Takhar] in relation to [his] stake in the matter,”
especially since he “seeks no monetary relief for himself” and “has no one funding
this litigation other than himself.”
       Turning to the anti-SLAPP analysis, Takhar argued: (1) his cross-complaint does
not arise from petitioning activity, but “only seeks relief to prevent waste of public funds
in investigating fugitive dust claims against those engaged in agricultural operations” and
declaratory relief “to determine the scope and meaning of [District] rule [3].16 as it
applies to the Agricultural Operations exemption”; and (2) he can demonstrate a
probability of prevailing on the merits of his taxpayer waste claim because he has paid
taxes within the District’s jurisdiction within the previous year, the source of the
District’s funding is irrelevant, and any resources expended by the District “to investigate
fugitive dust violations against those claiming to be exempt [because of the] ‘Agricultural
Operations’[ exemption] are a ‘waste’ of public funds which can be enjoined pursuant to
[section] 526a.”
                                       Trial Court Ruling
       The trial court denied the anti-SLAPP motion after reaching only the first stage of
the anti-SLAPP analysis, stating: “Takhar’s cross-complaint alleges causes of action for
taxpayer waste and declaratory relief relating to the application and meaning of ‘fugitive
dust’ regulations. Neither arises out of any act in furtherance of [the District’s] petition
or free speech rights. [¶] Having failed to meet their initial burden, it is unnecessary to
consider, at this time, the probability of Takhar prevailing on the merits. It is also



                                               9
unnecessary to consider whether Takhar’s cross-complaint is exempt from a . . .
section 425.16 motion pursuant to . . . section 425.17.”
                                        DISCUSSION
                                               I
                                  The Anti-SLAPP Statute
       Section 425.16 provides in relevant part: “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.” (§ 425.16, subd. (b)(1).) “The anti-SLAPP
statute . . . treats complaints identically with cross-complaints” (City of Cotati v.
Cashman (2002) 29 Cal.4th 69, 77 (Cotati)), providing, “ ‘plaintiff’ includes ‘cross-
complainant’ and . . . ‘defendant’ includes ‘cross-defendant’ . . . .” (Id. at p. 77, quoting
§ 425.16, subd. (h).)
       “Resolution of an anti-SLAPP motion involves two steps. First, the defendant
must establish that the challenged claim arises from activity protected by section 425.16.
[Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff
to demonstrate the merit of the claim by establishing a probability of success.” (Baral v.
Schnitt (2016) 1 Cal.5th 376, 384.)
       “Before engaging in this two-step analysis, a court must consider any claims by
the plaintiff that a statutory exemption contained in section 425.17 applies. [Citations.]”
(San Diegans for Open Government v. Har Construction, Inc. (2015) 240 Cal.App.4th
611, 622.) Subdivision (b) of this section contains the public interest exemption, the
requirements of which we set forth post in the discussion portion of the opinion. “A




                                              10
plaintiff has the burden to establish the applicability of this exemption. [Citation.]” (Id.
at p. 622.)
       Our review is de novo. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055; Save
Westwood Village v. Luskin (2014) 233 Cal.App.4th 135, 143.) “ ‘We consider “the
pleadings, and supporting and opposing affidavits upon which the liability or defense is
based.” (§ 425.16, subd. (b)(2).) However, we neither “weigh credibility [nor] compare
the weight of the evidence. Rather, . . . [we] accept as true the evidence favorable to the
plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has
defeated that submitted by the plaintiff as a matter of law.” [Citation.]’ [Citation.]”
(Flatley v. Mauro (2006) 39 Cal.4th 299, 326.)
       Thus, we must first determine whether Takhar, as the cross-complainant, has
demonstrated applicability of the public interest exemption. If not, we then turn to the
two-step anti-SLAPP analysis and must determine whether the District, as the cross-
defendant, has made a threshold showing that the causes of action asserted in the cross-
complaint arise from protected activity. If so, we must then determine whether Takhar,
as the cross-complainant, has demonstrated a probability of prevailing on the merits of
these causes of action.
                                               II
                               The Public Interest Exemption
       The public interest exemption to the anti-SLAPP statute is set forth in section
425.17, subdivision (b). This subdivision provides that the anti-SLAPP statute “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 or different relief for purposes of this subdivision. [¶] (2) The action, if



                                              11
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 the plaintiff’s stake in the
matter.” (§ 425.17, subd. (b).)
       We need go no further than the first condition to determine Takhar does not
qualify for the exemption. Because applicability of the exemption “requires that an
action be brought ‘solely in the public interest,’ ” the first condition of the exemption
requires that the plaintiff―here, cross-complainant―“cannot seek ‘any’ relief greater
than or different from the relief sought for the general public.” (Club Members for an
Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 318, quoting § 425.17, subd.
(b)(1).) “If individualized relief is sought, a plaintiff [or cross-complainant] must satisfy
the requirements of the anti-SLAPP statute in order for the action to proceed.” (Club
Members at p. 320.)
       Here, Takhar’s taxpayer waste cause of action alleges: “[Takhar] brings this
taxpayer action on the grounds that the enforcement against him specifically in this
case, constitutes a waste and misuse of taxpayer funds for the prosecution of fugitive
dust regulations . . . .” (Italics added.) The prayer for relief seeks “relief pursuant to
[section] 526a that [the District] is unlawfully using and wasting taxpayer funds to
enforce fugitive dust regulations in any actions against HARMUN TAKHAR in the
enforcement actions undertaken in this case . . . .” (Italics added.) Such relief would
include injunctive relief preventing the District from maintaining the enforcement
action against Takhar personally. (See § 526a [taxpayer waste action is an “action to
obtain a judgment, restraining and preventing any illegal expenditure of, waste of, or
injury to, the estate, funds, or other property of a county, town, city or city and county
of the state,” italics added].) While Takhar purports to also bring the taxpayer action



                                              12
“on behalf of all similarly situated individuals in Yuba and Sutter [C]ounties,” he has
pointed to no such individuals. And even assuming they exist, Takhar still seeks
individualized relief, i.e., abatement of “the enforcement against him specifically in
this case,” which would mean he would not be found liable for potentially tens of
thousands of dollars in civil penalties.
       With respect to the declaratory relief cause of action, Takhar’s prayer for relief
makes clear this cause of action is inextricably tied to the individualized relief sought in
connection with the taxpayer waste cause of action. Takhar asks for “relief pursuant to
[section] 526a that [the District] is unlawfully using and wasting taxpayer funds to
enforce fugitive dust regulations in any actions against HARMUN TAKHAR in the
enforcement actions undertaken in this case, including declaratory relief of the same.”
(Italics added.) Thus, Takhar wants a judicial declaration that the District is wasting its
resources by enforcing fugitive dust regulations against him in this case. The reason,
according to Takhar, is that rule 3.16(D.) exempts his land clearing activities from the
reach of the prohibition on emitting fugitive dust. As with the taxpayer waste cause of
action, simply alleging that others are similarly situated and would benefit from such a
declaration does not change this individual action into one “brought solely in the public
interest or on behalf of the general public.” (§ 425.17, subd. (b).) While the trial court
did not issue a ruling on the public interest exemption, it expressed this very point during
the hearing on the motion by asking: “But how is it not really narrowly tailored to your
facts and not all farmers out there in the area?” The obvious answer is that it is so
tailored.5


5       In response to the trial court’s questioning, Takhar’s counsel did not answer the
court’s question directly. Instead, counsel argued no greater relief was sought on behalf
of Takhar individually than was sought on behalf of all farmers in the District’s
jurisdiction because Takhar simply asked the court to interpret rule 3.16. This answer
ignores the taxpayer waste cause of action and contradicts the actual allegations and

                                             13
       Because Takhar has not demonstrated he qualifies for the public interest
exemption set forth in section 425.17, subdivision (b), we now turn to the two-part anti-
SLAPP analysis.
                                              III
                                    The Threshold Issue
       Only those causes of action “arising from any act . . . in furtherance of the . . .
right of petition or free speech under the United States Constitution or the California
Constitution in connection with a public issue” are “subject to a special motion to strike”
under the anti-SLAPP statute. (§ 425.16, subd. (b)(1).) “[T]he statutory phrase ‘cause of
action . . . arising from’ means simply that the defendant’s act underlying the plaintiff’s
cause of action must itself have been an act in furtherance of the right of petition or free
speech. [Citation.] 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.] ‘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) . . . .’ [Citations.]” (Cotati, supra, 29 Cal.4th at pp. 78-79, italics
omitted.)
       Section 425.16, subdivision (e), provides: “As used in this section, ‘act in
furtherance of a person’s right of petition or free speech under the United States or
California Constitution in connection with a public issue’ includes: (1) any written or oral
statement or writing made before a legislative, executive, or judicial proceeding, or any
other official proceeding authorized by law; (2) any written or oral statement or writing



prayer for relief in the cross-complaint itself. Just as a pleading “contain[ing] allegations
destructive to a cause of action . . . cannot be cured by [omitting the destructive
allegations] without explanation in a subsequent pleading” (Blain v. Doctor’s Co. (1990)
222 Cal.App.3d 1048, 1058), Takhar cannot escape the allegations of his cross-complaint
negating applicability of the public interest exemption by ignoring them.

                                              14
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; (3) any
written or oral statement or writing made in a place open to the public or a public forum
in connection with an issue of public interest; or (4) any other conduct in furtherance of
the exercise of the constitutional right of petition or the constitutional right of free speech
in connection with a public issue or an issue of public interest.”
       Takhar does not dispute that the District’s filing of the civil enforcement action
against him amounts to protected petitioning activity. Nor could he. “ ‘The filing of
lawsuits is an aspect of the First Amendment right of petition’ [citation], and thus is a
protected activity under the anti-SLAPP statute. [Citations.]” (Sheley v. Harrop (2017) 9
Cal.App.5th 1147, 1165-1166.) Moreover, as our Supreme Court has explained, because
a cause of action “arising from any act . . . in furtherance of the . . . right of petition” is
subject to the anti-SLAPP motion (§ 425.16, subd. (b)(1), italics added), “ ‘[a] cause of
action “arising from” [a] defendant’s litigation activity may appropriately be the subject
of a section 425.16 motion to strike.’ [Citation.] ‘Any act’ includes communicative
conduct such as the filing, funding, and prosecution of a civil action. [Citation.]”
(Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056; Sheley v. Harrop, supra, 9 Cal.App.5th
at p. 1166 [litigation funding decisions also constitute protected petitioning activity].)
Thus, the District’s filing of the civil enforcement action against Takhar as well as the
expenditure of funds to initiate and prosecute that action amount to protected petitioning
activity.
       So too does the District’s investigation of Takhar’s alleged violation of the
air pollution control laws, issuance of a notice of violation, and offer of settlement. In
so concluding, we consider Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th
1049 (Tichinin) to be instructive. There, the Court of Appeal was required to
determine whether or not the right of petition protected an attorney’s hiring of a



                                               15
private investigator to investigate rumors of an affair between the city manager and the
city attorney, the outcome of which would determine how that attorney proceeded in a
matter he was retained to handle. (Id. at pp. 1057, 1059, 1064.) Concluding this
investigative conduct was protected, the court found pertinent a line of federal cases
applying the Noerr-Pennington doctrine,6 which “immunizes conduct encompassed by
the Petition Clause―i.e., legitimate efforts to influence a branch of government―from
virtually all forms of civil liability,” because “in deciding whether the doctrine applies, a
court must first determine whether conduct falls within the right to petition.” (Id. at
p. 1065.)
       The Court of Appeal explained that it considered the line of federal cases
“persuasive authority for the proposition that non-petitioning conduct is within the
protected ‘breathing space’ of the right of petition if that conduct is (1) incidental or
reasonably related to an actual petition or actual litigation or to a claim that could ripen
into a petition or litigation and (2) the petition, litigation, or claim is not a sham.”
(Tichinin, supra, at p. 1068.) Applying that standard to the attorney’s hiring of a private
investigator to investigate “a possible conflict of interest due to an alleged inappropriate
romantic relationship between public officials,” the court concluded such activity fell
“within the protected ‘breathing space’ of the right to petition,” explaining: “When one
suspects that another has caused harm, a preliminary investigation is usually necessary in
order to know whether one has a potential legal claim, evaluate the likelihood of success,
and decide whether or not to assert it. Consequently, the investigation of a potential
claim is normally and reasonably part of effective litigation, if not an essential part of it.
Indeed, as [the attorney] correctly notes, an attorney has a duty to investigate the facts



6     The doctrine gets its name from Eastern R.R. Presidents Conference v. Noerr
Motor Freight, Inc. (1961) 365 U.S. 127 [5 L.Ed.2d 464] and United Mine Workers of
America v. Pennington (1965) 381 U.S. 657 [14 L.Ed.2d 626].

                                               16
underlying a client’s claims and can be sanctioned for failing to do so. [Citations.] In
our view, moreover, the prelitigation investigation of a potential claim is no less
incidental or related to possible litigation than prelitigation demand letters and threats to
sue, which are entitled to protection. In fact, such letters and threats are themselves likely
to be the result of a prelitigation investigation.” (Id. at pp. 1068-1069.)
       Finally, with respect to whether the litigation was a sham, the court explained the
analysis of this issue arose in the context of the second stage of the anti-SLAPP analysis,
i.e., whether or not the attorney had established a probability of prevailing on his claim
against the City for unlawful retaliation against him for exercising his constitutional right
of petition (brought under 42 United States Code section 1983). The court determined
the attorney established such a probability unless “evidence presented in the anti-SLAPP
motion would preclude such a finding as a matter of law”; the question was “whether the
evidence conclusively establishes that the alleged romantic relationship and claimed
conflict of interest that [he] purported to investigate were just a sham.” (Tichinin, supra,
177 Cal.App.4th at pp. 1071-1072.) The court concluded there was no evidence
conclusively establishing either that the investigation was “objectively baseless” or that it
was “pursued . . . for an improper reason unrelated to a legitimate petitioning purpose.”
(Id. at p. 1072.)
       Similarly, here, investigation into complaints about Takhar’s ground clearing
activities causing fugitive dust emissions was required in order to enable the District to
determine whether or not Takhar was violating the air pollution control laws. Once that
investigation confirmed the accuracy of the complaints, and the District determined such
a violation was occurring, the District issued a notice of violation and offered to settle the
claim. As in Tichinin, the investigation preceding that letter was sufficiently related to
petitioning activity to fall “within the protected ‘breathing space’ of the right to petition.”
(Tichinin, supra, 177 Cal.App.4th at p. 1068.) The same reasoning is equally applicable



                                              17
to the intervening issuance of the notice of violation. (See CKE Restaurants, Inc. v.
Moore (2008) 159 Cal.App.4th 262, 269 (CKE Restaurants) [issuance of a Proposition 65
notice of violation is a protected activity under the anti-SLAPP statute].) All such
conduct is protected activity unless the evidence conclusively establishes the District’s
investigation of Takhar for fugitive dust violations, the notice of violation, and the
settlement offer “were just a sham.” (Tichinin, supra, 177 Cal.App.4th at pp. 1071-
1072.) We conclude there was no evidence presented in connection with the anti-SLAPP
motion conclusively establishing either that these activities were “objectively baseless” or
that they were “pursued . . . for an improper reason unrelated to a legitimate petitioning
purpose.” (Id. at p. 1072.)
       Nevertheless, framing his cross-complaint as a simple declaratory relief action,
Takhar argues it does not arise from any of these protected activities. Instead, relying
primarily on Cotati, supra, 29 Cal.4th 69, Takhar argues that while his cross-complaint
was filed in response to the District’s civil enforcement action, it does not arise from
that protected activity or “any prelitigation procedures,” but rather from “a desire to
obtain declaratory relief as to the meaning of the fugitive dust regulations of [the District]
and whether [he] and other farmers [are] exempt from those regulations while engaged
in agricultural activities.” He is mistaken. First, ignoring the taxpayer waste cause of
action does not make that portion of the cross-complaint disappear. A cause of action
under section 526a requires an “illegal expenditure of, waste of, or injury to the
funds, or other property of” the governmental entity in question. (§ 526a.) Takhar’s
cross-complaint alleges the District is “wasting taxpayer funds to enforce fugitive
dust regulations . . . against [him] in the enforcement actions undertaken in this case.”
These enforcement actions include the protected activity described above. As the
District properly observes, its “interpretation of its own rules in a vacuum cannot
constitute waste, without some action expending resources in furtherance of that



                                             18
interpretation.” We conclude the taxpayer waste cause of action arises from protected
petitioning activity.
       With respect to the declaratory relief cause of action, we first note Takhar’s
reliance on Cotati, supra, 29 Cal.4th 69 is misplaced. There, owners of mobile home
parks brought an action in federal court challenging the constitutionality of the City of
Cotati’s rent control ordinance. In response, and in an attempt to gain a more favorable
forum, the City filed an action in state court seeking a judicial declaration as to the
constitutionality of the ordinance. The owners filed an anti-SLAPP motion in state court,
which was granted. (Id. at pp. 72–73.) Our Supreme Court reversed, concluding the
City’s declaratory relief action did not arise from protected petitioning activity. The
court explained: “It is indisputably true, as the trial court observed, that City’s action was
filed shortly after Owners filed their claim in federal court. But the mere fact an action
was filed after protected activity took place does not mean it arose from that activity.
The anti-SLAPP statute cannot be read to mean that ‘any claim asserted in an action
which arguably was filed in retaliation for the exercise of speech or petition rights falls
under section 425.16, whether or not the claim is based on conduct in exercise of those
rights.’ [Citations.] [¶] While City’s complaint repeatedly refers to the underlying
subject matter of Owners’ federal action (i.e., the mobilehome park rent stabilization
ordinance and arguments respecting its validity), it contains no reference to the action
itself. California courts rightly have rejected the notion ‘that a lawsuit is adequately
shown to be one “arising from” an act in furtherance of the rights of petition or free
speech as long as suit was brought after the defendant engaged in such an act, whether or
not the purported basis for the suit is that act itself.’ [Citation.] [¶] To construe ‘arising
from’ in section 425.16, subdivision (b)(1) as meaning ‘in response to,’ as Owners have
urged, would in effect render all cross-actions potential SLAPP’s. We presume the
Legislature did not intend such an absurd result. [Citations.] Absurdity aside, to suggest



                                              19
that all cross-actions arise from the causes of action in response to which they are pled
would contravene the statutory scheme governing cross-complaints. [Citations.] The
Legislature expressly has provided that a cross-action may ‘arise[] out of the same
transaction, occurrence, or series of transactions or occurrences as the cause of action
which the plaintiff alleges’ [citations], rather than out of that cause of action itself.” (Id.
at pp. 76-77.)
          Here, unlike Cotati, supra, 29 Cal.4th 69, Takhar’s cross-complaint was not
simply filed in response to the District’s civil enforcement action. It was based on that
action and other conduct incidental to the filing of that action. With respect to the
taxpayer waste cause of action, we have already explained why this is so and need not
repeat ourselves here. With respect to the declaratory relief cause of action, as we noted
previously, the allegations in the cross-complaint make clear Takhar is seeking a judicial
declaration that the District is wasting its resources by enforcing fugitive dust regulations
against him because, he asserts, rule 3.16(D.) exempts his land clearing activities from
the reach of the prohibition on emitting fugitive dust and the District may not override
that exemption by enforcing fugitive dust violations under Health and Safety Code
section 41700 and general nuisance law. The request for such a declaration does not
simply “arise[] out of the same transaction, occurrence, or series of transactions or
occurrences” as the civil enforcement action brought against Takhar. (§ 428.10, subd.
(b)(1).) Rather, it arises “out of that [enforcement] action itself.” (Cotati, supra, at
p. 77.)
          The more analogous authority is CKE Restaurants, supra, 159 Cal.App.4th 262, in
which the Court of Appeal held a declaratory relief action, filed by an operator of fast
food restaurants in response to a 60-day notice of violation of the Safe Drinking Water
and Toxic Enforcement Act of 1986 (Proposition 65), arose from protected petitioning
activity. The action sought “a judicial declaration that ingestion of its food products does



                                               20
not pose any significant risk of causing cancer or reproductive harm in humans; that CKE
is not required to provide any Proposition 65 warnings; and that CKE is in compliance
with Proposition 65.” (Id. at p. 267.) Distinguishing Cotati, supra, 29 Cal.4th 69 and
holding this declaratory relief action arose from the filing of the notice of violation, the
court explained: “The facts before us differ markedly from those in Cotati. In its
complaint, CKE directly challenged the merits of the 60–day notice by referring to and
quoting from the 60–day notice. CKE requested a judicial determination that its food
products complied with Proposition 65. Instead of using the 60–day period to avoid
litigation, CKE used it to commence litigation. Moreover, CKE threatened to sue
respondents unless they withdrew their notice. CKE’s action arose entirely from the
filing of the Proposition 65 notice. The trial court recognized this, stating, ‘without the
Notice, there would have been no actual, present controversy, and no controversy at all.’
” (Id. at p. 271.)
       Similarly, here, the cross-complaint’s prayer for declaratory relief refers to the
District’s “enforcement actions undertaken in this case.” Such enforcement actions
include the investigation into the complaints of fugitive dust violations, issuance of the
notice of violation, offer of settlement, and commencement and prosecution of the civil
enforcement action itself, all of which are protected activity. Indeed, in attempting to
distinguish CKE Restaurants, Takhar concedes, “[h]e is attacking [the District’s] entire
scope of conduct in prosecuting farmers for fugitive dust violations when such conduct is
exempt.” While he refers to “farmers” in general, there is no evidence in the record that
anyone other than Takhar was prosecuted for such a violation under the circumstances he
claims exempt him from the prohibition on emitting fugitive dust. Thus, much like CKE
sought a judicial determination that its food products complied with Proposition 65,
thereby challenging the allegations in the 60-day notice of violation, Takhar is seeking a
judicial determination that he is exempt from rule 3.16, and thereby challenging the



                                              21
District’s protected enforcement activities, including issuance of the notice of violation
and commencement and prosecution of the civil enforcement action itself. As in CKE
Restaurants, without these protected enforcement activities, “ ‘there would have been no
actual, present controversy, and no controversy at all.’ ” (CKE Restaurants, supra, at
p. 271.)
       Because the District, as the cross-defendant, has made a threshold showing that the
causes of action asserted in the cross-complaint arise from protected activity, we now
turn to whether Takhar, as the cross-complainant, has demonstrated a probability of
prevailing on the merits of these causes of action.
                                              IV
                          Probability of Prevailing on the Merits
       As a preliminary matter, we note Takhar’s argument regarding the second stage
of the anti-SLAPP analysis, both in the trial court and in this appeal, is limited to his
taxpayer waste cause of action. We therefore consider forfeited any assertion regarding
his probability of prevailing on the declaratory relief cause of action. The burden was
his to demonstrate such a probability exists. He has not even attempted to carry that
burden.7
       With respect to the taxpayer waste cause of action, we conclude Takhar did
not carry his burden of demonstrating a probability of prevailing on the merits of this
claim. Section 526a provides in relevant part: “An action to obtain a judgment,
restraining and preventing any illegal expenditure of, waste of, or injury to, the estate,
funds, or other property of a county, town, city or city and county of the State, may


7      We further note the issue of whether or not Takhar’s activities are exempt from the
prohibition on emitting fugitive dust by virtue of rule 3.16(D.), and whether or not that
exemption also precludes the District from prosecuting Takhar for violation of Health and
Safety Code section 41700 and general nuisance law, are raised in Takhar’s defense to
the civil enforcement action itself. We express no opinion on the matter.

                                              22
be maintained against any officer thereof, or any agent, or other person, acting in its
behalf, either by a citizen resident therein, or by a corporation, who is assessed for and
is liable to pay, or, within one year before the commencement of the action, has paid, a
tax therein.”
       In Chiatello v. City and County of San Francisco (2010) 189 Cal.App.4th
472 (Chiatello), our colleagues at the First Appellate District provided the following
cogent description of the scope of this provision: “Just what amounts to ‘waste’ is
more readily intuited than enunciated. It has been described as ‘a useless expenditure . . .
of public funds’ that is incapable of achieving the ostensible goal. [Citation.] Certainly
it reaches outright fraud, corruption, or collusion. [Citations.] Even when ‘ “done in
the exercise of a lawful power,” ’ public spending may qualify as waste if it is ‘
“completely unnecessary,” ’ or ‘ “useless,” ’ or ‘provides no public benefit.’ [Citations.]
Waste is money that is squandered, or money that is left uncollected, and thus is a
constitutionally prohibited gift of public resources. [Citations.]” (Id. at p. 482.)
However, the court continued: “Waste does not encompass the great majority of
governmental outlays of money or the time of salaried governmental employees, nor
does it apply to the vast majority of discretionary decisions made by state and local
units of government: ‘ “[T]he term ‘waste’ as used in section 526a means something
more than an alleged mistake by public officials in matters involving the exercise of
judgment or wide discretion. To hold otherwise would invite constant harassment of city
and county officers by disgruntled citizens and could seriously hamper our representative
government at the local level. Thus, the courts should not take judicial cognizance of
disputes which are primarily political in nature, nor should they attempt to enjoin every
expenditure that does not meet with a taxpayer’s approval.” ’ [Citation.]” (Id. at pp. 482-
483, italics added.)




                                             23
       There, a taxpayer brought suit under section 526a seeking to enjoin San Francisco
from expending taxpayer funds to implement, administer, or enforce a municipal
ordinance amending the payroll tax, asserting the ordinance was illegal in a number of
ways. (Chiatello, supra, 189 Cal.App.4th at p. 475.) After providing the foregoing
explanation of “waste,” the court stated, “whatever else it may or may not be, it is
unquestionably waste for government to budget or spend money administering an illegal
ordinance.” (Id. at p. 483.)8
       Takhar does not argue the District is expending funds enforcing an illegal statute
or rule. Thus, his reliance on the foregoing line from Chiatello, supra, 189 Cal.App.4th
472 is misplaced. So too is his reliance on Ebel v. City of Garden Grove (1981) 120
Cal.App.3d 399, where the plaintiffs challenged enforcement of a facially
unconstitutional ordinance. (Id. at p. 403-404.) Instead, Takhar argues the District
“refuses to follow the law,” specifically rule 3.16(D.), which he asserts allows him to
emit fugitive dust while converting pasture land to orchard land. His reliance on
Thompson v. City of Petaluma (2014) 231 Cal.App.4th 101 is closer to the mark. There,
after the trial court granted the City’s demurrer without leave to amend because the
complaint “fail[ed] to allege waste, illegal expenditures, or the use of taxpayer funds to
implement an unconstitutional statute,” the Court of Appeal held the plaintiff should have
been allowed to amend the complaint to allege facts demonstrating the City’s actions
were in violation of that statute. (Id. at pp. 109-111.)
       Here, however, in the second stage of the anti-SLAPP analysis, the burden is
on Takhar to demonstrate a probability of prevailing on the merits. He has failed to
do so. The asserted violation of law is that the District enforced the prohibition on



8      Other considerations, which we need not set forth here, persuaded the court this
particular taxpayer lacked standing to seek injunctive relief to prevent the collection of
the tax. (Chiatello, supra, at pp. 476, 492-499.)

                                              24
emitting fugitive dust against Takhar despite his claim that his activities are purportedly
exempt from that prohibition by virtue of rule 3.16(D.), which he asserts also precludes
the District from prosecuting him under Health and Safety Code section 41700 and
general nuisance law. But, as already mentioned, he includes no argument on this vital
issue in his briefing on appeal. Nor did he do so below. Indeed, at the hearing on the
anti-SLAPP motion, Takhar’s attorney simply argued that if the trial court were to find
the District’s conduct unlawful in ruling on Takhar’s defense to the civil enforcement
action, then the court would turn to the cross-complaint and conclude the money was
unlawfully expended. This is a far cry from demonstrating a probability of success on
the merits.
       As we have already set forth in detail, the District is charged with “adopt[ing]
and enforc[ing] rules and regulations to achieve and maintain the state and federal
ambient air quality standards in all areas affected by emission sources under their
jurisdiction,” as well as “enforc[ing] all applicable provisions of state and federal law.”
(Health & Saf. Code, § 40001.) The District investigated complaints that Takhar was
emitting fugitive dust in his ground clearing activities, determined he was in violation
of Health and Safety Code section 41700 and rule 3.16, issued a notice of violation,
and offered to settle the claim. After Takhar refused to settle, the District exercised its
discretion in initiating and prosecuting a civil enforcement action against him. Whether
or not Takhar qualifies for the exemption he asserts under rule 3.16(D.), and if so, what
effect, if any, that would have on the alleged violation of Health and Safety Code
section 41700, will be determined in that enforcement action. We express no opinion
on these matters. We simply hold Takhar has not demonstrated a probability either
that he is entitled to that exemption on the facts of this case, or that such an entitlement
renders the District’s discretionary enforcement decision a “waste” of public funds
under section 526a.



                                              25
                                       DISPOSITION
       The trial court’s order denying the anti-SLAPP motion is reversed and vacated.
The trial court is directed to enter a new order granting the motion and dismissing the
cross-complaint. Because the People ex rel. Feather River Air Quality Management
District should have prevailed on the anti-SLAPP motion, they are entitled to fees and
costs incurred both in the trial court and on appeal, to be determined by the trial court.
(Code Civ. Proc., § 425.16, subd. (c); Anschultz Entertainment Group, Inc. v. Snepp
(2009) 171 Cal.App.4th 598, 643.)



                                                               /s/
                                                  HOCH, J.



We concur:



      /s/
MURRAY, Acting P. J.



       /s/
DUARTE, J.




                                             26
