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

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

PAUL CRUZ et al.,

Plaintiffs and Appellants, 

v.

CITY OF CULVER CITY et al.,

Defendants and Respondents.

 B265690

 (Los Angeles County

 Super. Ct. No. BC565079)

APPEAL from a judgment of the Superior Court of Los Angeles County. Michael 

Johnson, Judge. Affirmed.

Herbert L. Greenberg for Plaintiffs and Appellants.

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

Respondents.

__________________________
2

Plaintiffs Paula Cruz and four of her neighbors appeal from the order dismissing 

as an anti-SLAPP action their complaint against the city council (the council) of Culver 

City and five of its council members for allegedly violating the state’s open meeting 

laws. We reject plaintiffs’ contentions that the action is exempt from the anti-SLAPP 

provisions because it concerned the public interest, and affirm because there is no 

probability plaintiffs will prevail on the merits.

FACTS AND PROCEDURAL HISTORY

Culver City residents Paula Cruz, Ronald Davis, John Heyl, James Province, and 

Nadine F. Province sued the City of Culver City (the city) for violating the state’s open 

meeting law (Gov. Code, § 54950 et seq. (the Brown Act)), alleging that the council

violated the Brown Act in two ways: (1) by discussing a change to parking restrictions in 

their neighborhood even though it was not on the agenda; and (2) by taking action on that 

issue when the council implicitly decided that the new challenge to those restrictions 

could proceed as an appeal of an earlier denial by city staff members.

The parking restrictions were imposed in 1982 when residents of Farragut Drive 

complained that parishioners of nearby Grace Lutheran Church (the church) jammed their 

street with parked cars during church services.1In 2004, the council adopted an 

ordinance for the establishment of preferential parking zones throughout the city and 

included the 1982 Farragut Drive Parking restrictions as one such zone.

In 2013, the council adopted regulations governing the establishment and 

regulation of preferential parking/residential parking permit zones. These regulations 

delegated to a “Traffic Committee” comprised of city staff members in the traffic 

engineering department the ability to administer and implement those regulations.2

 

1 Among those taking part in the 1982 parking dispute were current plaintiff and 

appellant Ronald Davis, and plaintiffs’ counsel, Herbert L. Greenberg.

2

The scope of this ordinance is in dispute, an issue we discuss below.
3

In April 2014, a lawyer for the church sent a letter to city traffic analyst Gabriel 

Garcia seeking information about the application process for a change to the existing 

Farragut Drive Parking restrictions pursuant to the 2013 parking regulations. Garcia 

wrote back one month later that the city engineer was unable to act on such a request 

because the 2013 regulations did not provide a means by which non-residents could seek 

modification of the conditions imposed in a residential parking permit zone.

On August 1, 2014, the church sent a letter to council member Andrew Weissman 

complaining about Garcia’s response and asking to address the council about the 

“onerous parking restrictions” on Farragut Drive.

At the council’s August 11, 2014 meeting, Weissman mentioned the church’s 

letter during the portion of the meeting set aside for the receipt and filing of 

correspondence from the public. Following a six-minute discussion with then-Mayor 

Meghan Sahli-Wells and Public Works Director and City Engineer Charles D. 

Herbertson, the church’s request to review the Farragut Drive Parking restrictions was 

placed on the agenda for the next council meeting on September 8, 2014.3

In November 2014, plaintiffs filed a complaint seeking declaratory relief that the 

city and its five council members had violated the Brown Act by discussing the church’s 

letter and by acting upon it by placing it on the agenda for the next meeting, even though 

the 2013 parking regulations did not provide for such action.4

The city brought an anti-SLAPP motion (Code Civ. Proc., § 425.16), seeking to 

dismiss plaintiffs’ action because the city’s alleged misconduct arose from First 

Amendment activity and because plaintiffs could not show a probability of prevailing on 

the merits. The city contended that it had done nothing more than have preliminary 

 

3

It is the nature of that discussion and the decision to place the item on the next 

agenda that give rise to this action. In the discussion part of our opinion, we will set forth

a transcript of the events.

4

In addition to Weissman, the complaint named council members Meghan SahliWells (the mayor), Michael O’Leary, Jim B. Clarke, and Jeffrey Cooper. For ease of 

reference, we will refer to all the defendants collectively as the city.
4

discussions with staff members concerning the church’s letter in order to have the matter 

placed on a future agenda, as expressly permitted by the Brown Act. 

Plaintiffs contended their action was exempt from the anti-SLAPP provisions 

because it concerned a matter affecting the public interest. They also contended that the 

council’s discussions and actions were so substantive that they fell outside the statutory 

exceptions. The trial court agreed with the city, granted the anti-SLAPP motion, and 

dismissed the complaint.

DISCUSSION

1. The Law Governing Anti-SLAPP Motions

Code of Civil Procedure section 425.16 was enacted to address a sharp rise in the 

number of “[l]awsuits brought primarily to chill the valid exercise of the constitutional 

rights of freedom of speech and petition for the redress of grievances.” (§ 425.16, 

subd. (a).)5 The statute provides that a “cause of action against a person arising from any 

act of that person in furtherance of the person’s right of petition or free speech under the 

United States Constitution or the California Constitution in connection with a public issue 

shall be subject to a special motion to strike, unless the court determines that the plaintiff 

has established that there is a probability that the plaintiff will prevail on the claim.” (Id, 

subd. (b)(1).)

The trial court undertakes a two-step process when considering a defendant’s antiSLAPP motion. First, the trial court determines whether the defendant has shown the 

challenged cause of action arises from protected activity. The trial court reviews the 

pleadings, declarations, and other supporting documents to determine what conduct is 

actually being challenged, not whether that conduct is actionable. The defendant does 

not have to show the challenged conduct is protected as a matter of law; only a prima 

facie showing is required. (People ex rel. Fire Ins. Exchange v. Anapol (2012) 

 

5

Such actions are commonly referred to as Strategic Lawsuits Against Public 

Participation, or SLAPP actions. All further undesignated section references are to the 

Code of Civil Procedure, unless otherwise noted.
5

211 Cal.App.4th 809, 822.) If the defendant shows the challenged conduct was taken in 

furtherance of his First Amendment rights of free speech, petition, and to seek redress of 

grievances, the trial court must then determine whether the plaintiff has shown a 

probability of prevailing on the claim. (People ex rel. Fire Ins. Exchange,at p.822)

We review the trial court’s ruling on an anti-SLAPP motion independently, 

engaging in the same two-step process. (Cabral v. Martins (2009) 177 Cal.App.4th 471, 

478.) We do not weigh credibility or the weight of the evidence. Instead, we accept as 

true the evidence favorable to the plaintiff and evaluate the defendant’s evidence only to 

determine if it has defeated plaintiff’s evidence as a matter of law. (Soukup v. Law 

Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)

The anti-SLAPP provisions do not apply to certain public interest lawsuits. 

Section 425.17, subdivision (b) provides: “Section 425.16 does not apply to any action 

brought solely in the public interest or on behalf of the general public if all of the 

following conditions exist: [¶] (1) The plaintiff does not seek any relief greater than or 

different from the relief sought for the general public or a class of which the plaintiff is a 

member. A claim for attorney’s fees, costs, or penalties does not constitute greater relief 

for purposes of this subdivision. [¶] (2) The action, if successful, would enforce an 

important right affecting the public interest, and would confer a significant benefit, 

whether pecuniary or nonpecuniary, on the general public or a large class of persons. [¶] 

(3) Private enforcement is necessary and places a disproportionate financial burden on 

the plaintiff in relation to plaintiff’s stake in the matter.”

2. The Brown Act

The Brown Act requires that most meetings of a local agency’s legislative body be 

open to the public for attendance by all. (Gov. Code, § 54953, subd. (a).) Among its 

provisions, the Brown Act requires that an agenda be posted at least 72 hours before a 

regular meeting and forbids action on any items not on that agenda. (§ 54954.2, subd. 

(a)(1).) “The [Brown] Act thus serves to facilitate public participation in all phases of 

local government decisionmaking and to curb misuse of the democratic process by secret 

legislation of public bodies. [Citation.]” (Epstein v. Hollywood Entertainment Dist. II 
6

Bus. Improvement Dist. (2001) 87 Cal.App.4th 862, 868.) Either the district attorney or 

any interested person may bring an action for mandamus or injunctive or declaratory 

relief in order to stop or prevent violations of the Brown Act “or to determine the 

applicability of this chapter to actions or threatened future action of the legislative body 

. . . .” (Gov. Code, § 54960, subd. (a).)

There are three exceptions to the Brown Act’s agenda requirement. Even if an 

item is not on the agenda, “members of a legislative body or its staff may briefly respond 

to statements made or questions posed by persons exercising their public testimony rights 

under [Government Code] Section 54954.3. In addition, on their own initiative or in 

response to questions posed by the public, a member of a legislative body or its staff may 

ask a question for clarification, make a brief announcement, or make a brief report on his 

or her own activities. Furthermore, a member of a legislative body, or the body itself, 

subject to rules or procedures of the legislative body, may provide a reference to staff or 

other resources for factual information, request staff to report back to the body at a 

subsequent meeting concerning any matter, or take action to direct staff to place a matter 

of business on a future agenda.” (Gov. Code, § 54954.2, subd. (a)(2).)

3. The Council’s Discussion Concerning the Church’s Letter

What follows is a transcript of the portion of the August 11, 2014 council meeting 

where the church’s letter was discussed:6

“MAYOR MEGHAN SAHLI-WELLS: May I have a motion to receive and file

correspondence.

“Councilperson Mehaul O’Leary: So moved.

“Councilperson Jim Clarke: Second.

“MAYOR SAHLI-WELLS: A motion and a second.

“Martin Cole: And Madam Mayor as the City Council is voting on this motion

that includes items that were received by the City Clerk’s office up ‘til 4 o’clock this

 

6 Although the record contains a video recording of the exchange, which we have 

viewed, it did not include a transcript. We asked the parties to provide a transcript and 

have augmented the appellate record to include that transcript.
7

afternoon and they are about evenly split between items A-1 and A-2.

“Secretary: That motion passes 5 AYES.

“Councilperson Andrew Weissman: Madam Mayor may I ask a question

regarding one of the items that we just received and filed?

“MAYOR SAHLI-WELLS: Yes.

“Weissman: It’s a letter from Ilbert Philips regarding the parking district in and

around Farragut and Franklin. And it was directed to me, I think it was directed to me

because when we had the discussion a number of months ago regarding the consolidated

districts I’m the one that raised the issue of an appeal from a decision or non-decision by

the City Engineer, and I would like to ask for consensus to agendize the issue. Apparently

the staff’s position is that the avenue of appeal only applies to residents since it’s a

residential parking district. Perhaps I wasn’t sufficiently clear the night we discussed the

appeal, but I would like to, I’d like to discuss it again. And get some clarification with

regard to what the actual intent was.

“MAYOR SAHLI-WELLS: So the agenda item that you’re proposing is to

discuss the appeal process?

“Weissman: and the . . .

“MAYOR SAHLI-WELLS: Or this specific case?

“Weissman: Well we could do it I guess we could do it one of two ways and

maybe staff, Mr. Herbertson may be here, can assist me. I think we either agendize an

item for discussion of the specific parking district or we can have a discussion of what it

was that we intended to do when we provided for a right of appeal when we consolidated

the parking districts?

“O’Leary: And would you like to put on hold the appeal time? [indistinct] and

timing . . . .

“Weissman: I don’t think, based on staff’s position, there is no appeal time cuz

there’s no right to appeal.

“O’Leary: Okay.
8

“MAYOR SAHLI-WELLS: I’m comfortable discussing the issue.

“Clarke: So am I.

“MAYOR SAHLI-WELLS: Alright.

“Weissman: May I ask, just ask, Mr. Herbertson for some clarification as to what

staff’s preferred direction is on this?

“Charles Herbertson: Staff’s preference would be to just take up the issue of the

parking, specifically regarding the parking on Farragut as opposed to whether or not

business or non-resident should be able to appeal a parking district. The reason for that is

it’s a very rare circumstance -- first time I can remember that this has come up where

there’s been a desire to change the parking district once it’s been formed, by an affected

nearby business or in this [case] a church. So just I would recommend that we just

discuss this particular item as opposed to a more general the idea of an appeal, but that of

course is up to the City Council. If, if we are going to agendize that I would recommend

that we notify both the Church, and as well as everybody in the district, so they would

have the opportunity to come in and state their case.

“O’Leary: And is there a time frame by which an appeal can umm, is that going to

be an issue?

“Herbertson: No, there’s no time frame Councilman Weissman was saying the

process, least as we’ve interpreted it at the Staff level, doesn’t really allow for an appeal

per se but they can always come to directly to the City Council at any time. It’s, it’s your

policy that you’ve adopted so at any point in each time a district is formed the city council

effectively has the ability to hear any objections to that district at any time, so.

“MAYOR SAHLI-WELLS: In regards to the timing, I believe that this is one of

the oldest parking districts in Culver City if I’m not mistaken, so it’s not based on a new

decision or restriction it’s based on existing conditions, is that correct?

“Weissman: I think it’s—I don’t want to speak for the Church, but I think it’s

evolving conditions. I think the, when the parking district was first established twentyplus years ago, it was based on one set of circumstances, and I think those circumstances

have evolved. The neighborhood has changed, and I think what, what we would be doing
9

would be looking at the nature of and justification for continuing the district in its current

iteration or deciding that we want to do something different.

“Herbertson: Yes, you know I don’t have the history right in front of me, but what

Councilman Weissman said is correct. My recollection is that the limits on the district

have changed at least a couple of times I think over the years so it is an old district but the

restrictions have been changed over time and certainly, it’s possible also that other things

have also changed as well as for other uses in the area, etc. So it would be appropriate to

take a fresh look at it if that’s the, the council’s desire to do so.

“MAYOR SAHLI-WELLS: Alright.

“Herbertson: Okay.

“MAYOR SAHLI-WELLS: Thank You.”

4. The Public Interest Exception Does Not Apply

Section 425.17 was enacted to curb the “ ‘disturbing abuse’ ” of the anti-SLAPP 

provisions. (Club Members For An Honest Election v. Sierra Club (2008) 45 Cal.4th

309, 315, quoting § 425.17, subd. (a).) The public interest exception applies to only 

those actions brought solely in the public interest. It does not apply to an action that 

seeks a more narrow advantage for a particular plaintiff. (Id. at pp. 316-317.) As a 

result, section 425.17, subdivision (b) does not apply to a party seeking any personal 

relief. (Club Members For An Honest Election, pp. 309, 315.)

We look to the allegations of the complaint and the scope of relief sought in order 

to determine whether the public interest exception applies. (Tourgeman v. Nelson & 

Kennard (2014) 222 Cal.App.4th 1447, 1460.)7

Plaintiffs contend they have satisfied all three requirements of the exception 

because: (1) they have asked for nothing other than a declaration that the city’s conduct 

violated the Brown Act, which would provide them no greater relief than the public at 

large would receive; (2) a judgment in their favor would provide a significant benefit to 

the public; and (3) private enforcement was necessary because no one else stepped up to 

 

7 As a result, we hereby deny plaintiffs’ request that we judicially notice the city’s 

March 2016 resolution directing a study of the Farragut Drive Parking restrictions.
10

challenge the city’s action, and plaintiffs will incur legal fees without a concomitant 

damages award should they prevail. The city contends that plaintiffs have an individual 

stake in the outcome that defeats application of the public interest exception.

Our examination of the complaint tips the balance in the city’s favor. The 

complaint alleges that the city grandfathered in the Farragut Drive Parking restrictions in 

2004, and then, pursuant to the 2013 parking regulations, delegated to the traffic engineer 

exclusive authority regarding changes to preferential parking zones. The traffic engineer 

later refused the church’s requests to modify the Farragut Drive Parking restrictions, 

prompting the church’s August 1, 2014 letter to Weisman.

Plaintiffs allege that contrary to the 2013 parking regulations, the council decided:

(1) to remove the traffic engineer’s exclusive jurisdiction over parking zone modification 

issues; (2) that it had original jurisdiction over the matter; and (3) that the Farragut Drive 

residents would have to re-petition the city to keep their restrictions in place. Plaintiffs 

also allege that the council did not inform the public “and in particular Farragut 

residents” that the city’s traffic engineer believed the church had no per se right to appeal 

to the council, and instead decided that such a right was available. As part of this, 

plaintiffs allege, the council discussed substantive issues concerning the church’s 

viewpoint on the need for changes to the parking zone.

Finally, plaintiffs alleged that they submitted a cease and desist letter to the city 

that “clearly describes the past action of the council on August 11, 2014” that the conduct 

violated the Brown Act, and that the city has not provided an unconditional commitment 

to “cease, desist from, and not repeat the past action that plaintiffs alleged in their 

aforesaid cease-and-desist letter.”8

 

8

Plaintiffs provided a copy of the cease-and-desist letter in opposition to the city’s 

anti-SLAPP motion. In it, plaintiffs complain that the council violated the 2013 parking 

regulations by providing the church with “non-existent appellate rights” and by ordering 

staff to take a fresh look at the Farragut Drive Parking restrictions. The letter asked the 

city to “cease and desist discussions and action related to its meeting on August 11, 

2014.”
11

Distilled, plaintiffs alleged that the council had no authority to hear an appeal by 

the church regarding the Farragut Drive Parking restrictions, and asked the city to stop 

taking further actions in that regard. Keeping the parking restriction at status quo would 

directly benefit plaintiff Farragut Drive homeowners. In short, plaintiffs sought personal 

relief in the form of a halt to any attempts by the church to undo the long-standing 

parking restrictions. As a result, the public interest exception to the anti-SLAPP 

provisions does not apply.

5. Plaintiffs Are Unlikely to Prevail on the Merits

Plaintiffs do not dispute that the city has satisfied the first prong of an anti-SLAPP 

motion – that its statements concerning the parking restrictions and its direction to place 

the issue on a future agenda were forms of protected activity under the First Amendment. 

The issue we must decide is whether plaintiffs have carried their burden of showing it is 

probable they will prevail on the merits.

We begin with the three Brown Act exceptions to discussing or acting upon non 

agenda items: (1) members of a legislative body, or their staff, may briefly respond to 

statements made or questions posed by persons exercising their right to publicly testify at 

a hearing; (2) either on their own initiative or in response to a question posed by the 

public, the legislative body or its staff may ask a question for clarification, make a brief 

announcement, or make a brief report on their own activities; and (3) subject to its rules 

or procedures, a legislative body may ask staff to provide factual information, report back 

at a later time, or place an item on a future agenda. (Gov. Code, § 54954.2, subd. (a)(2).)

Although plaintiffs characterize the council’s comments and questions concerning 

the church’s ability to challenge the Farragut Drive Parking restrictions as something 

substantive and substantial, we disagree. Based on our reading of the transcript and 

viewing of the video recording, Weisman did no more than ask for clarification as to the 

appropriate avenue of response to the church’s letter. Engineer Herbertson answered 

those questions and advised the council that the matter could be placed on a future 

agenda, with all parties given notice and an opportunity to comment. Therefore, the 

discussion itself falls within all three statutory exceptions.
12

Finally, plaintiffs contend they will likely prevail on the merits because the city’s 

actions – placing the parking restriction issue on the next agenda – violated the rules and 

procedures in the 2013 parking regulations, which plaintiffs contend prohibited what was 

effectively an appeal of the traffic engineer’s statement that the regulations provided for 

no such appeal. (Gov. Code, § 54954.2, subd. (a)(2) [subject to rules of procedures of 

legislative body, staff can be directed to place a matter on the agenda].)

We see two fundamental problems with this contention. First, as we read the 

statute, it requires the legislative body to follow its rules or procedures in regard to setting 

agendas, and does not address whether a matter was wrongly placed on the agenda for 

other reasons. To hold otherwise would convert the Brown Act into a vehicle for 

challenging agendized matters because opponents believe the legislative body lacks 

authority to act for reasons unrelated to the policies behind the open meeting law. If the 

2013 parking regulations barred the city from acting, that issue was ripe for discussion by 

plaintiffs when the matter was heard at the next council meeting.

Second, as we read the record, city staffers concluded the 2013 parking regulations 

applied to parking zone issues raised by only the residents of an affected area, not by 

organizations or businesses located in or near the parking zone. It was on that basis that 

the church’s attempt to appeal was administratively rejected, and it was that concern that 

led the city, acting on advice of its traffic engineer, to conclude it still possessed the 

authority to reconsider parking restrictions in response to a challenge such as that brought 

by the church. We have read the 2013 parking regulations, and agree that they are silent 

on the type of challenge raised here. Under plaintiffs’ interpretation, however, the city 

could never reconsider long-standing parking restrictions no matter how much conditions 

had changed, so long as the challenge came from someone other than the residents of that 

zone. We reject that interpretation, and on that basis as well conclude that the plaintiffs 

are not likely to prevail on the merits.
13

DISPOSITION

The order dismissing plaintiffs’ action under the anti-SLAPP provisions is 

affirmed. Respondents shall recover their costs on appeal.

RUBIN, J.

WE CONCUR:

BIGELOW, P. J.

FLIER, J.
Filed 8/8/16 

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION EIGHT

PAUL CRUZ et al.,

Plaintiffs and Appellants, 

v.

CITY OF CULVER CITY et al.,

Defendants and Respondents.

 B265690

 (Los Angeles County

 Super. Ct. No. BC565079)

ORDER MODIFYING AND 

CERTIFYING OPINION FOR 

PUBLICATION 

[NO CHANGE IN JUDGMENT]

THE COURT:

The opinion in the above-entitled matter filed on July 15, 2016, was not certified for 

publication in the Official Reports. For good cause, it now appears that the opinion should be 

published in the Official Reports and it is so ordered.

It is further ordered, the opinion shall be modified as follows:

On page 9, subheading No. 4 “The Public Interest Exception Does Not Apply” is 

replaced with: The Public Interest Exception Does Not Defeat the anti-SLAPP Motion.

This modification does not change the judgment. 

________________________________________________________________________

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