The opinion
Filed 1/19/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SIX
CITY OF OXNARD, 2d Civ. No. B314601
(Super. Ct. No. 56-2020-
Plaintiff and Respondent, 00539039-CU-MC-VTA)
(Ventura County)
v.
AARON STARR,
Defendant and Appellant.
Voters pass two city initiatives. Here, we decide the city
has standing to sue the proponent of the initiatives. Whether the
city prevails is another matter.
An initiative that is administrative is invalid, but that is
not the case with an initiative that is legislative. We also decide
into what category these initiatives belong.
Here, a city sued to have two initiatives passed by the
voters declared void. Measure M established procedures for the
conduct of city council meetings. Measure N required the city to
maintain the streets to a specified level of repair. The city named
the initiatives’ proponent as defendant. The proponent brought
an anti-SLAPP motion (Code Civ. Proc., § 425.16 et seq.) seeking
dismissal of the suit and attorney fees. The trial court denied the
motion. The proponent appeals. We reverse as to Measure M
and affirm as to Measure N.
FACTS
Aaron Starr is a resident of the City of Oxnard (the City).
Starr gathered signatures for a number of initiatives, including
Measures M and N. The City’s voters passed both initiatives.
The City brought the instant action to have the measures
declared void as administrative rather than legislative in nature.
Starr responded with an anti-SLAPP motion requesting
that the trial court dismiss the City’s action. Starr claimed that
the City is not a proper party to bring the action, that he is not a
proper defendant, and that the City cannot prevail on the merits.
The court denied the motion on all three grounds.
Sunshine Ordinance
In 2018, the City enacted a “Sunshine Ordinance.” In its
preamble the ordinance states, “The Sunshine Ordinance codifies
the city’s public policy concerning participation in the
deliberations of the city’s policy bodies, and clarifies and
supplements the [Ralph M.] Brown Act1.” The Sunshine
Ordinance provides that the time and place for meetings of the
City’s legislative bodies shall be established by resolution of those
bodies; specifies the time for posting meeting agendas; provides
that policy body meetings shall adjourn by 10:00 p.m.; and
provides for a period of public comment, but does not specify how
long each member of the public can speak.
1The Ralph M. Brown Act (Gov. Code, § 54950 et seq.) is
hereafter referred to as the Brown Act.
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Measure M
Measure M modifies the Sunshine Ordinance. Measure M
specifies that regular meetings of the City council shall be on the
first and third Tuesday of every month; meetings shall not
commence earlier than 5:00 p.m. on workdays and not earlier
than 9:00 a.m. on weekends; staff presentations to the City’s
legislative bodies shall be videotaped in advance and posted on
the City’s website for viewing at the time of the posting of the
agenda for the meeting; the primary role of staff at meetings is to
answer questions posed by the legislative body, not the
reenactment of pre-recorded presentations; each member of the
public shall not have less than three minutes to comment on any
agenda item at the meeting, and may comment on any item that
has already been considered by a committee composed exclusively
of members of the legislative body; the rules contained in
“Robert’s Rules of Order Newly Revised” (Robert’s Rules) shall
govern the City’s legislative bodies and the City will use a
professional parliamentarian to train the members on Robert’s
Rules.
Measure N
Measure N amends Measure O. Measure O, adopted in
2008, increased local sales and use taxes by one-half of one
percent. Measure O provided that the tax increase would sunset
on March 31, 2029, unless extended by the voters.
Measure N amends the sunset date of Measure O to ensure
that the City spends an adequate amount to maintain the City’s
streets and alleys. Unless an outside civil engineer finds the
pavement condition index is:
“(1) at least 65 on or before September 30, 2022, this
ordinance shall expire March 31, 2023;
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“(2) at least 70 on or before September 30, 2024, this
ordinance shall expire March 31, 2025;
“(3) at least 75 on or before September 30, 2026, this
ordinance shall expire March 31, 2027; and
“(4) at least 80 on or before September 30, 2028, this
ordinance shall expire March 31, 2029.”
Measure N further states: “[C]ommencing April 1, 2028,
the City Council shall have the authority to extend the expiration
date by twenty calendar quarters provided that between 110 and
365 days before each expiration date an outside civil engineering
consultant with expertise in developing and updating pavement
management systems finds that the Pavement Condition Index of
the [C]ity-owned street and alley network is at least 80.”
DISCUSSION
ANTI-SLAPP MOTION
Code of Civil Procedure section 425.16, subdivision (b)(1),
the anti-SLAPP statute, 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.”
To resolve an anti-SLAPP motion, the trial court engages in
a two-step inquiry. First, the court decides whether the
defendant has made a threshold showing that the challenged
cause of action arises from a protected activity. (City of Santa
Monica v. Stewart (2005) 126 Cal.App.4th 43, 71.) The moving
party has the burden of showing that the challenged cause of
action arises from a protected activity. (Ibid.) Second, if the
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moving party has carried that burden, the court must decide
whether the opposing party has demonstrated a probability of
prevailing on the challenged cause of action. (Ibid.) “The trial
court’s rulings on both issues are reviewed de novo.” (Ibid.)
Step One- Protected Activity
The City contends that its post-election lawsuit does not
implicate protected activity for anti-SLAPP purposes.
To qualify as a protected activity under the anti-SLAPP
statute, the lawsuit against a person must arise from an act “in
furtherance of the person’s right of petition or free speech . . . .”
(Code Civ. Proc., § 425.16, subd. (b)(1).) The City’s complaint
names Starr as a defendant because “[h]e is a proponent of the
two initiatives challenged here.” There can be no doubt that
being a proponent of an initiative is an exercise of a person’s
rights of petition and free speech. (See City of Santa Monica v.
Stewart, supra, 126 Cal.App.4th at p. 73 [intervention by an
initiative’s sponsor in the city’s lawsuit to cancel initiative an
exercise of sponsor’s constitutional rights of free speech and
petition within meaning of anti-SLAPP statute].)
The City’s reliance on Park v. Board of Trustees of
California State University (2017) 2 Cal.5th 1057 is misplaced.
Park brought an action against the university alleging he was
unlawfully denied tenure because he was from Korea. The
university responded with an anti-SLAPP motion. Our Supreme
Court determined that the trial court properly denied the
anti-SLAPP motion because the lawsuit arose from a denial of
tenure, not an act of the university’s rights of petition or free
speech. Our Supreme Court stated: “Critically, ‘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.’
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[Citations.] ‘[T]he mere fact that an action was filed after
protected activity took place does not mean the action arose from
that activity for the purposes of the anti-SLAPP statute.’
[Citations.] Instead, the focus is on determining what ‘the
defendant's activity [is] that gives rise to his or her asserted
liability—and whether that activity constitutes protected speech
or petitioning.’ [Citation]” (Id. at p. 1063.)
Here, Starr was sued because he is a proponent of two
initiatives. Being a proponent of an initiative is an activity that
clearly constitutes protected speech and petitioning. Starr
satisfies the requirements of Step 1.
Step 2- Probability of Prevailing
Proper Parties
(a) Proper Plaintiff
Starr contends the City has no power to sue him to
invalidate the initiatives.
A determination that a plaintiff has no probability of
prevailing does not necessarily require a determination of the
merits of plaintiff’s claim; it may instead be based on a
determination that the court lacks the power to entertain the
claim. (Barry v. State Bar of California (2017) 2 Cal.5th 318,
326.) Starr argues that elected local representatives may not use
the people’s tax funds to enlist the judiciary in an attempt to
overturn the will of the electorate.
But the will of the electorate as expressed through the
initiative process is not plenary. There are limitations. Those
limitations include the prohibition on initiatives that concern
administration matters. (See Citizens for Jobs & the Economy
v. County of Orange (2002) 94 Cal.App.4th 1311, 1332.) The City
is not required to comply with an invalid initiative.
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Code of Civil Procedure section 1060 provides in part: “Any
person . . . who desires a declaration of his or her rights or duties
with respect to another . . . may, in cases of actual controversy
relating to the legal rights and duties of the respective parties,
bring an original action . . . in the superior court for a declaration
of his or her rights and duties . . . .” A municipality is a person
within the meaning of this section. (City of Burbank v. Burbank-
Glendale-Pasadena Airport Authority (2003) 113 Cal.App.4th
465, 480.)
Code of Civil Procedure section 1060 unequivocally gives
the City standing to challenge the validity of Measures M and N.
Local governments have successfully challenged the validity of an
initiative in a number of cases. (See, e.g., City of Burbank v.
Burbank-Glendale-Pasadena Airport Authority, supra, 113
Cal.App.4th.; Citizens for Jobs & the Economy v. County of
Orange, supra, 94 Cal.App.4th; City of San Diego v. Dunkl (2001)
86 Cal.App.4th 384.) In Totten v. Board of Supervisors (2006) 139
Cal.App.4th 826, 833, footnote 5, we expressly rejected the
contention that the county lacks standing to challenge the
validity of an initiative. Starr cites no case that has held a local
government lacks standing to challenge an initiative that directly
affects it.
Starr’s reliance on Perry v. Brown (2011) 52 Cal.4th 1116
(Perry) is misplaced. Voters of the State of California passed
Proposition 8, providing that “[o]nly marriage between a man and
a woman is valid or recognized in California.” (Id. at p. 1127.)
Opponents of the proposition filed an action in federal district
court claiming that the proposition is unconstitutional. The suit
named the California Governor and other state officials as
defendants. All state officials declined to defend the suit. Official
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proponents of Proposition 8 filed a motion to intervene. The
Ninth Circuit Court of Appeals certified to the California
Supreme Court the question whether the proponents had
standing to intervene under California law. The California
Supreme Court determined that the proponents had standing.
(Id. at p. 1152.)
Starr cites Perry for his claim that once an initiative is
enacted by the voters, city officials have a duty to defend the
initiative. But that is not what Perry says. Perry says,
“[a]lthough public officials ordinarily have the responsibility of
defending a challenged law, in instances in which the challenged
law has been adopted through the initiative process there is a
realistic risk that the public officials may not defend the
approved initiative measure ‘with vigor.’” (Perry, supra, 52
Cal.4th at p. 1149, quoting Building Industry Assn. v. City of
Camarillo (1986) 41 Cal.3d 810, 822.)
Stating that public officials “ordinarily” have the
responsibility of defending a challenged law, is far from holding
that public officials have a duty to defend every initiative, even
one they consider to be invalid on its face. Perry did not hold that
the state officials had a duty to defend Proposition 8; it held only
that proponents of the proposition have standing to intervene in a
challenge to the proposition. (Perry, supra, 52 Cal.4th at p.
1152.)
(b) Proper Defendant
Starr also argues that he is not a proper defendant. He
believes the City is unfairly forcing him to bear the legal and
financial burden of defending the initiative.
The City is not forcing Starr to bear any legal or financial
burden. The City is not seeking damages against Starr; it is
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seeking only declaratory relief. Starr’s vigorous defense of the
initiatives shows that he is acting voluntarily.
Moreover, section 7 of both Measures M and N provide:
“The People of the City of Oxnard declare that the proponent(s) of
this measure has a direct and personal stake in defending this
measure and grant formal authority to the proponent to defend
this measure in any legal proceeding, either by intervening in
such legal proceeding, or by defending the measure on behalf of
the people and the City in the event that the City declines to
defend the measure or declines to appeal an adverse judgment
against the measure.”
Starr proposed both measures to the citizens of the City.
He can hardly complain that he is a party to the City’s action to
invalidate the measures when he is expressly given standing to
defend them.
Even without such an express provision, proponents of an
initiative have the right to intervene in an action challenging the
initiative. (Perry, supra, 52 Cal.4th at p. 1152.) There is no
reason why a proponent cannot be named as a defendant in such
an action, particularly where there is no other logical defendant.
Merits
(a) Exclusive Delegation
The City argues that Measure M is invalid under the
exclusive delegation rule. The City contends that the initiative
intrudes into a subject exclusively delegated by statute to the
City council.
The seminal case on exclusive delegation is Committee of
Seven Thousand v. Superior Court (1998) 45 Cal.3d 491
(Committee). In Committee, Government Code section 66484.3
gives the County of Orange and the city council of any city within
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that county the discretion to impose development fees to fund
construction of major thoroughfares. The Committee of Seven
Thousand proposed an initiative that would prohibit the city of
Irvine, a city within Orange County, from imposing such fees
without a vote of the electorate. The Court of Appeal determined
that the initiative was invalid because it conflicts with state law
on a matter of statewide concern. Our Supreme Court agreed.
The Supreme Court in Committee stated the method of
analysis as follows: “Over the years this court has struggled with
the question whether a statutory reference to action by a local
legislative body indicates a legislative intent to preclude action
on the same subject by the electorate. A review of these decisions
supports the conclusion that while such references are generally
not conclusive as to legislative intent, they do support an
inference that the intent was to preclude action by initiative or
referendum. Review of the case law further suggests that the
strength of the inference varies according to the precise language
used in the statute, a reference using generic language such as
‘governing body’ or ‘legislative body’ supporting a weaker
inference than a specific reference to boards of supervisors and
city councils. A third conclusion to be drawn is that an intent to
exclude ballot measures is more readily inferred if the statute
addresses a matter of statewide concern rather than a purely
municipal affair.” (Committee, supra, 45 Cal.3d at p. 501)
Not only does Government Code section 66484.3 specifically
refer to city councils, but the statute addresses a matter of
statewide concern. In Committee, the Supreme Court pointed out
that Government Code section 66484.3 provides funding for
“‘major thoroughfares whose primary purpose is to carry through
traffic and provide a network connecting to or which is a part of
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the state highway system . . . .’” (Committee, supra, 45 Cal.3d
491 at p. 506, quoting Gov. Code, § 66484.3, subd. (b)(1).)
Here, the City points to Government Code section 36813,
providing in part, “The [city] council may establish rules for the
conduct of its proceedings.” But the express reference to city
council only “indicates” a legislative intent to preclude action on
the same subject by the electorate.” (Committee, supra, 45 Cal.3d
at p. 501.) It is not determinative. We must also assess whether
the statute addresses a matter of statewide concern rather than a
“purely municipal affair.” (Ibid.)
Government Code section 36813 establishes no specific
rules for the conduct of City council proceedings. Instead, it
leaves it to each municipality to establish its own rules. Thus,
the establishment of such rules is “purely a municipal affair.”
(Committee, supra, 45 Cal.3d at p. 501.)
The City also relies on the Brown Act, and points to section
54952, defining “legislative body.” The definition includes the
governing body of a local agency and a commission, committee
board, or other body of a local agency, but nowhere makes
reference to the public at large.
The City ignores that generic language such as “legislative
body” supports a weaker inference that the Legislature intended
to preclude action by the electorate. (Committee, supra, 45 Cal.3d
at p. 501.) The policy stated in the Brown Act strongly supports
the conclusion that the Legislature did not intend to preclude
action by the electorate.
The Brown Act provides:
“In enacting this chapter, the Legislature finds and
declares that the public commissions, boards and councils and
the other public agencies in this State exist to aid in the conduct
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of the people’s business. It is the intent of the law that their
actions be taken openly and that their deliberations be conducted
openly.
“The people of this State do not yield their sovereignty to
the agencies which serve them. The people, in delegating
authority, do not give their public servants the right to decide
what is good for the people to know and what is not good for them
to know. The people insist on remaining informed so that they
may retain control over the instruments they have created.”
(Gov. Code, § 54950)
It would be anomalous for us to conclude that the
Legislature intended that the people have no control over the
procedure for conducting the people’s business. Nothing in
Government Code section 36813 or the Brown Act leads to that
conclusion. In fact, they lead to the conclusion that the people
have such power. It is after all the people’s business.
It is true that the Brown Act sets a statewide minimum
standard for public access to meetings of legislative bodies or
local agencies. But the Brown Act also provides:
“Notwithstanding any other provision of law, legislative bodies of
local agencies may impose requirements upon themselves which
allow greater access to their meetings than prescribed by the
minimal standards set forth in this chapter. In addition thereto,
an elected legislative body of a local agency may impose such
requirements on those appointed legislative bodies of the local
agency of which all or a majority of the members are appointed
by or under the authority of the elected legislative body.” (Gov.
Code, § 54953.7)
Thus standards that allow greater access are purely a
municipal affair. The provisions of Measure M are intended to
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allow for greater access. Measure M is not invalid under the
exclusive delegation rule.
(b) Legislative or Administrative Act
The trial court determined that Measures M and N are
invalid because they constitute administrative rather than
legislative acts. In so finding, the court relied on a long line of
cases that hold the electorate has the power to initiate legislative
acts, but not administrative acts. (City of San Diego v. Dunkl,
supra, 86 Cal.App.4th at p. 399.) The rationale for the rule is
that to allow an initiative to annul or delay executive or
administrative conduct would destroy the efficient administration
of the business affairs of a municipality. (Ibid.)
An initiative is legislative in nature if it prescribes a new
policy or plan; it is administrative in nature if it merely pursues a
plan already adopted by a legislative body or some power
superior to it. (City of San Diego v. Dunkl, supra, 86 Cal.App.4th
at p. 399)
(b)(1) Measure M
The difference between legislative and administrative acts
is easy to say in the abstract, but it can be difficult to apply in the
concrete. In making that determination, we are guided by the
long-standing judicial policy of liberally construing the initiative
power whenever it is challenged so that the right may not be
improperly annulled. (Assisted Home Builders, etc. Inc. v. City of
Livermore (1976) 18 Cal.3d 582, 591.) If doubts can be resolved
in favor of the use of the power, courts will preserve it. (Ibid.)
Here, Measure M may reasonably be interpreted as
legislative in nature. It does not simply carry out a plan already
adopted. It creates new rules for the conduct of City council
meetings that are reasonable.
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The policies embodied in Measure M are endorsed by the
Brown Act. In conducting the people’s business, the actions of
public agencies must “be taken openly and their deliberations be
conducted openly” so that “the people of this State do not yield
their sovereignty to the agencies which serve them.” (Gov.
Code, § 54950) A similar policy is enshrined in the California
Constitution. (Cal. Const., art. I, § 3, subd. (b)(1), (2).) The rules
stated in Measure M are intended to increase the public’s ability
to have information about and to participate in the decisions
made by its public agencies.
(b)(2) Measure N
Measure N amends Measure O. Measure O increased sales
taxes. Measure O is a general tax; that is, its revenues are
placed into the City’s general fund and are available for
expenditure for any and all governmental purposes. (Howard
Jarvis Taxpayers Assn. v. City of Roseville (2003) 106 Cal.App.4th
1178, 1185.)
Measure N requires the City to expand general fund
monies on road maintenance, setting specific dates and criteria
for compliance. The failure of the City to comply will result in
the loss of Measure O taxes.
The manifest purpose of Measure N is to ensure that
Measure O revenue is expended for road repair. Measure N tells
the City how it must administer general tax revenue, even
setting precise dates for completion of the work. Measure N is
clearly administrative in nature.
Starr argues that Measure N says nothing about how the
City must spend Measure O tax receipts. But Starr admits that
“Measure N . . . was born out of the voters’ frustration that City
officials had not kept their promises and had not been wisely
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spending the funds the City was receiving from Measure O . . . .”
The preamble to Measure N itself says as much, and specifies
lack of performance in maintenance of the City’s streets.
Although Measure N says nothing about how the City must
spend Measure O tax receipts, its purpose and effect is to do just
that.
Starr also argues that Measure N says nothing about how
the City may achieve the specified pavement condition levels.
Starr posits the City may do such things as spend non-Measure O
funds, seek grants, or borrow money.
But Measure N is tied to Measure O funds. The preamble
to Measure N mentions only Measure O funds as being
improperly spent and holds only Measure O funds hostage to
what Starr considers the proper administration of street
maintenance. The purpose and intent of Measure N is to
determine how Measure O funds should be spent. Determining
how Measure O funds should be spent is administrative in
nature. It is beside the point that other methods of funding may
be available.
Starr argues the City may choose to not maintain the
streets to the level required by Measure N and allow Measure O
taxes to sunset. But an administrative initiative does not become
any less administrative because its provisions are attached to an
ultimatum.
Finally, Starr points out that a properly constructed
initiative could cancel Measure O entirely before its sunset date.
(Citing Rossi v. Brown (1995) 9 Cal.4th 688, 693 [“[T]he initiative
power may be used to prospectively repeal a tax ordinance”].)
But that is not what Measure N does. It attempts to control
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Measure O funds, not terminate the tax. We do not consider
what the measure might have done, but did not do.
DISPOSITION
The judgment is reversed as to Measure M and affirmed as
to Measure N. Both parties are to bear their own costs on appeal.
CERTIFIED FOR PUBLICATION.
GILBERT, P. J.
We concur:
YEGAN, J.
BALTODANO, J.
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Henry J. Walsh, Judge
Superior Court County of Ventura
______________________________
Strumwasser & Woocher, Fredric D. Woocher, Beverly
Grossman Palmer; California Anti-SLAPP Project and Mark
Goldowitz for Defendant and Appellant.
Jonathan M. Coupal, Timothy A. Bittle and Laura E.
Dougherty for Howard Jarvis Taxpayers Foundation as Amicus
Curiae on behalf of Defendant and Appellant.
Colantuono, Highsmith & Whatley, Holly O. Whatley,
Jon R. di Cristina, for Plaintiff and Respondent.
Best Best & Krieger, Gregg W. Kettles, Avi W. Rutschman
for League of California Cities as Amicus Curiae on behalf of
Plaintiff and Respondent.
17