Bynum v. Siskiyou County Board of Supervisors CA3

Filed 5/1/23 Bynum v. Siskiyou County Board of Supervisors CA3

NOT TO BE PUBLISHED

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Siskiyou)

----

LAURA BYNUM, as County Clerk and Registrar of C095590

Voters, etc.,

(Super. Ct. No. SC CV PT

Plaintiff and Respondent, 19‑1537)

v.

SISKIYOU COUNTY BOARD OF SUPERVISORS,

Defendant;

KIMBERLY OLSON,

Real Party in Interest and Appellant.

Appellant Kimberly Olson appeals the trial court’s order denying her motion to

strike respondent Laura Bynum’s petition for writ of mandamus and complaint for

declaratory relief as a strategic lawsuit against public participation (SLAPP). The trial

court concluded that the petition arose from a false statement and therefore fell outside of

anti-SLAPP protection. We agree with the trial court and affirm.

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FACTUAL AND PROCEDURAL BACKGROUND

This case stems from Olson’s attempt to run for local office. On November 14,

2019, Olson submitted a signed declaration of candidacy for the office of director of the

Hornbrook Community Services District for the March 3, 2020, election. In the

candidacy declaration, she affirmed she had not been convicted of a felony involving the

theft of public money. Bynum, the official charged with the duty of conducting elections

in Siskiyou County, accepted the candidacy declaration and placed Olson on the

candidate list. Bynum later received confirmation that Olson had been convicted of three

felonies. Bynum determined those felonies made Olson ineligible for an elected office

under Elections Code section 20, which Bynum asserted prohibits a person from being

considered a candidate for local elective office if the person has been convicted of a

felony involving certain crimes, including theft of public money. 1

On December 23, 2019, Bynum sought mandamus relief under Elections Code

section 13314,2 naming Olson as the real party in interest and seeking to prevent Olson’s

placement on the ballot. Following removal to federal court, remand back to state court,

and denial of Olson’s motion to quash summons,3 Bynum filed a first amended petition

1 We deny Bynum’s request for judicial notice of court documents concerning

Olson’s vexatious litigant status, Olson’s other local elective office candidacy paperwork,

and local elective office candidate lists from 2013 to 2017. These documents are

immaterial to our resolution of this appeal. (See Superior Court v. County of Mendocino

(1996) 13 Cal.4th 45, 59, fn. 7 (Mendocino) [denying judicial notice of irrelevant

material].)

2 We grant Olson’s request for judicial notice of Elections Code sections 13313 and

13314. (Evid. Code, § 451, subd. (a).)

3 Olson argues the remand from federal court was ineffective to return jurisdiction

to the state court because it was preceded by Bynum’s voluntary dismissal of the action.

As discussed post, in footnote 7, we need not address this argument. We therefore deny

as irrelevant Olson’s request for judicial notice of the local rules of United States District

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for mandamus relief and complaint for declaratory relief. Two months later, following

another failed motion to quash summons, Olson filed a special motion to strike the

petition as a SLAPP. The trial court denied the motion on the grounds that the protected

activity at issue constituted perjury and was illegal as a matter of law and therefore not

protected by a special motion to strike. Olson filed a timely notice of appeal.

DISCUSSION

A SLAPP is a “meritless suit filed primarily to chill the defendant’s exercise of

First Amendment rights.” (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 815,

fn. 2 (Wilcox), disapproved on other grounds in Equilon Enterprises v. Consumer Cause,

Inc. (2002) 29 Cal.4th 53, 68, fn. 5.) In response to the threat such lawsuits posed to the

important public policy of open and free participation in the democratic process, the

Legislature adopted Code of Civil Procedure section 425.16 (section 425.16). (Baharian-

Mehr v. Smith (2010) 189 Cal.App.4th 265, 271.) That section (which is generally

referred to as the “anti-SLAPP statute” and a motion thereunder as an “anti-SLAPP

motion”) sets out a procedure for striking complaints brought to challenge the exercise of

constitutionally protected free speech rights. (Muddy Waters, LLC v. Superior Court

(2021) 62 Cal.App.5th 905, 916.) “ ‘The anti-SLAPP statute does not insulate defendants

from any liability for claims arising from the protected rights of petition or speech. It

only provides a procedure for weeding out, at an early stage, meritless claims arising

from protected activity. 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.’ ” (Sweetwater Union High School Dist. v. Gilbane Building Co. (2019)

Court for the Eastern District of California and of the docket of the case from the federal

court. (See Mendocino, supra, 13 Cal.4th at p. 59, fn. 7.)

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6 Cal.5th 931, 940.) If the defendant does not make the required showing, the

anti‑SLAPP motion must be denied, and the plaintiff is entitled to continue to litigate the

cause of action. (See Flatley v. Mauro (2006) 39 Cal.4th 299, 314 (Flatley).) “ ‘We

review de novo the grant or denial of an anti-SLAPP motion.’ ” (Sweetwater, at p. 940;

see Spencer v. Mowat (2020) 46 Cal.App.5th 1024, 1036.) “In other words, we employ

the same two-pronged procedure as the trial court in determining whether the anti-SLAPP

motion was properly granted.” (Mendoza v. ADP Screening & Selection Services,

Inc. (2010) 182 Cal.App.4th 1644, 1652.)

The first part of the two-part test in an anti-SLAPP motion requires the defendant

to show the plaintiff’s action arises from the defendant’s constitutionally protected

petitioning or free speech activities in connection with a public issue. (Wilcox, supra,

27 Cal.App.4th at p. 820.) The parties agree that the petition arises from Olson’s

submission of her candidacy declaration. They also agree that, as a general matter, such a

submission constitutes protected activity for purposes of section 425.16. However, the

parties disagree on two points: (1) whether Olson’s submission is illegal as a matter of

law and therefore falls outside section 425.16 protection and (2) whether the petition

arises from other conduct that is also protected by section 425.16.

The first point of disagreement involves a narrow but important exception to the

protections of section 425.16. The anti-SLAPP statute “cannot be invoked by a

defendant whose assertedly protected activity is illegal as a matter of law and, for that

reason, not protected by constitutional guarantees of free speech and petition.” (Flatley,

supra, 39 Cal.4th at p. 317.) In addition, the litigation privilege set forth in Civil Code

section 47 does not bring illegal conduct within the scope of section 425.16. (Flatley, at

p. 325.) To fall within this exception, (1) the illegal conduct must be criminal and

(2) either the defendant must concede the illegality, or the evidence must conclusively

demonstrate it. (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 424; Mendoza v.

ADP Screening & Selection Services, Inc., supra, 182 Cal.App.4th at p. 1654.) If the

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plaintiff claims that the defendant’s speech or petitioning activity is illegal under this

standard, the plaintiff bears the burden of conclusively proving the illegal conduct.

(Cross v. Cooper (2011) 197 Cal.App.4th 357, 385.)

The trial court concluded that Olson could not establish the petition arose from

protected activity because that activity took the form of a false statement made under

penalty of perjury. Olson claims the trial court erred on the grounds that Bynum’s

allegations regarding the criminal act were conclusory and lacking evidentiary support as

to whether Olson acted knowingly. We disagree with Olson.

Elections Code section 18203 makes it unlawful to file or submit a nomination

paper or declaration of candidacy knowing that any part of it has been made falsely and

makes a violation of its provisions a crime. Bynum offered the following evidence in

support of her opposition to the anti-SLAPP motion: (1) Olson’s declaration of

candidacy from 2019 in which Olson affirmed by signature that she had “not been

convicted of a felony involving . . . theft of public money” and (2) verdicts out of Placer

County Superior Court from January 13, 2000, finding Olson guilty of public benefits

fraud and finding true the special allegation that Olson took funds and property of a value

exceeding $50,000. More specifically, the records show that Olson was convicted of

felonies for violating Welfare and Institutions Code sections 10980, subdivision (c)(2)

(fraud to obtain aid over specified dollar amount), 14014 (false declarations as to

eligibility), and 110544 (false eligibility statement), and that she unsuccessfully attempted

to expunge and reduce those felonies to misdemeanors. This evidence is sufficient to

conclusively establish that Olson was convicted of a felony involving theft of public

4 This section was improperly cited in the record as Welfare and Institutions Code

section 11540.

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money, that Olson’s statement to the contrary on her candidacy declaration was false, and

that Olson thereby violated Elections Code section 18203.5

Olson’s assertion that Bynum’s evidence fails to show that Olson acted knowingly

for purposes of Election Code section 18203 lacks merit. The word “knowingly” in

section 18203 “imports only a knowledge that the facts exist which bring the act or

omission within the provisions of [the] code. It does not require any knowledge of the

unlawfulness of such act or omission.” (Pen. Code, § 7, subd. (5); see People v.

Wetherell (2014) 223 Cal.App.4th Supp. 12, 18 [Elec. Code, § 18203 involves only

general criminal intent].) Such general criminal intent requires no further mental state

beyond a willing commission of the proscribed act. (People v. Sargent (1999) 19 Cal.4th

1206, 1215.) The evidence showed Olson knew she had been convicted of a felony

involving theft of money from a government entity and then falsely affirmed the contrary.

This shows knowledge.

Olson also asserts that the trial court erroneously ignored her objections to

Bynum’s evidence. But Olson’s failure to request a ruling from the trial court on written

evidentiary objections forfeits the issue for appeal. (See Flatley, supra, 39 Cal.4th at

pp. 306-307, fn. 4.)

The second point of disagreement between the parties is whether the petition stems

from other activity that triggers the protections of the anti-SLAPP statute. On this point,

Olson argues the petition also arises from the following acts: (1) a written

communication she sent to Bynum regarding Olson’s removal from the ballot; (2) the tort

claim notice she filed with the Siskiyou County Board of Supervisors concerning that

removal; and (3) the lawsuit Olson filed in federal court against Bynum and others

5 We do not address whether the general crime of perjury falls outside the

protections of the anti-SLAPP statute. Our conclusion is limited to the narrow facts

presented here involving a declaration of candidacy for public office in which the

declarant falsely affirmed a lack of disqualifying criminal convictions.

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vis‑à‑vis the same. Olson’s argument falters. The acts she cites all arise from the same

activity—Olson’s false candidacy declaration. We reject Olson’s attempt to find harbor

under section 425.16 through activities that stem from her criminal act.

Because we conclude that the petition arises from activity unprotected by section

425.16, we need not proceed to the second step of the anti-SLAPP analysis, which

involves determining whether Bynum demonstrated a probability of prevailing on the

petition. As a result, there is no need to address Olson’s argument that Bynum will be

unable to prevail on the merits,6 including on the grounds that the trial court lacks subject

matter jurisdiction7 (see Barry v. State Bar of California (2017) 2 Cal.5th 318, 326 [court

may determine plaintiff has no probability of prevailing under § 425.16 where the court

lacks subject matter jurisdiction to rule on plaintiff’s claims]) or because the litigation

privilege poses a barrier to Bynum’s claims (Weeden v. Hoffman (2021) 70 Cal.App.5th

269, 288 [litigation privilege is a defense that may be considered with respect to the

second prong of anti-SLAPP analysis]).

6 As a result, we deny Olson’s request for judicial notice of the legislative history of

Elections Code section 20. (See Mendocino, supra, 13 Cal.4th at p. 59, fn. 7.)

7 While subject matter jurisdiction is appealable at any time (Alliance for California

Business v. State Air Resources Bd. (2018) 23 Cal.App.5th 1050, 1060), the appeal must

be from an appealable order (Griset v. Fair Political Practices Com. (2001) 25 Cal.4th

688, 696; Code Civ. Proc., § 904.1). This appeal is not a timely petition for writ review

of the trial court’s denial of Olson’s motions to quash service of summons (see Code Civ.

Proc., § 418.10, subd. (c)), Olson does not present any other appealable order that would

allow us to reach the issue of subject matter jurisdiction, and we decline to treat Olson’s

argument on subject matter jurisdiction as a petition for extraordinary writ of mandate

(H. D. Arnaiz, Ltd. v. County of San Joaquin (2002) 96 Cal.App.4th 1357, 1366-1367

[treating appeal of nonappealable order as petition for writ of mandate should be

exercised only in unusual circumstances]).

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DISPOSITION

The trial court’s order is affirmed. The parties shall bear their own costs on

appeal. (Cal. Rules of Court, rule 8.278(a)(5).)

/s/

MESIWALA, J.

We concur:

/s/

DUARTE, Acting P. J.

/s/

BOULWARE EURIE, J.

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