Filed 4/30/14 City of Montebello v. Vasquez CA2/1 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION ONE

CITY OF MONTEBELLO,
Plaintiff and Respondent,

v.
ROSEMARIE VASQUEZ et al.,
Defendants and Appellants;

ARAKELIAN ENTERP RISES INC.,

Intervener. B245959
(Los Angeles County Super. Ct. No. BC488767)

APPEAL from a judgment of the Superior Court of Los Angeles County. Rolf Treu, Judge. Affirmed. Revere & Wallace, Fra nk Revere for Defendan ts and Appellants. AlvaradoSmith, Raul F. Salinas, and Mary M. Monroe; Leibold McClendon & Mann, John G. McClendon for Plaintiff and Respondent.

________________ ______________2 Respondent City of Monteb ello (the City) sued appe llants, Montebello City Council members Rosemarie Vasquez, Robert Urteaga, and Kathy Salazar, and city official Richard Torres, seeking declaratory relief for violations of Government Code section 1090, which prohibits city officers and employees from having a financial interest in any contract made by them in their official capacity. The trial court denied appellants’ special motion to strike the complaint unde r Code of Civil Procedure section 425.16, 1 the anti-SLAPP statute. On appeal, appellants c ontend the trial court erred in denying their motion because the City’s laws uit arises from protected activ ity and the City failed to demonstrate a probability of prevailing on the merits. We disagree and affirm. Background We obtain the background facts fr om “‘the pleadings, and supporting and opposing affidavits stating the facts upon wh ich the liability or defense is based.’ (§ 425.16, subd. (b).)” ( Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) The present action arises from appellants’ approval of a city contract granting Arakelian Enterprises, Inc. dba Athens Servi ces (Athens) an exclus ive right to provide commercial waste hauling services in Monteb ello. Athens is a waste collection and recycling service that has had an exclusive contract to provide residential waste hauling
services in Montebello since 1962. Sometime in 2007, while running for city council, Urteaga approached Athens and suggested it submit a proposal to the city council to become th e exclusive commercial and industrial waste hauling service in Mo ntebello, in addition to being the City’s exclusive residential waste hauling service. Athens later contributed to Urteaga’s campaign, and he was elected to the city council. In 2008, Torres, the City Administrato r, worked with Athens to negotiate the terms of an exclusive contract, under whic h Athens would provid e improved residential trash hauling services at no increased pric e and also become th e exclusive commercial

1 All further statutory references are to the Code of Civil Procedure unless otherwise indicated.3 and industrial waste hauling service beginning in 2016. In exchange for this exclusivity, Athens agreed to make a one-time $5 00,000 cash payment to the City. Athens then submitted a proposal to th e city council to be come the exclusive provider of commercial waste hauling services , and requested approval of the negotiated contract. On July 9, 2008, the City held a public hearing at a city council meeting regarding the City’s waste colle ction services. At the hearing, a number of speakers opposed Athens’ proposal. Athens’ proposal was again addressed at a city council meeting on July 23, 2008. More than twenty people spoke in opposition to the exclusive contract during four hours of discussion. Vasquez and Urteaga then moved to approve the contract, and it was approved by a 3-2 vote, with Va squez, Urteaga, and Salazar in favor of the contract and the mayor and another council member against it. Once approved, the contract required the ma yor’s signature to effectuate it. The mayor, however, refused to sign the contra ct for over six weeks, stating he was attempting to verify its terms and ascertain the legal effect of a pending referendum effort by independent waste haulers in opposition to the Athens contract. On September 12, 2008, the contract was still aw aiting the mayor’s signature. Vasquez then signed the contract as Montebello’s mayor pro. tem., stat ing she was authorized to do so because the mayor’s refusal to execute the contract re ndered him “absent” for purposes of the agreement. Vasquez ran for reelection in November 2009 and Athens contributed $45,000 to her campaign. She was not reelected. Athens also contributed $37,300 to efforts to defeat the mayor’s reelection campaign, but the mayor was reelected. After the November 2009 election, City voters qualified a special election to recall Urteaga and Salazar. Athens sponsored a “Say No to Recall” campaign to which it contributed $353,912.73. The campaign was unsuccessf ul, and both Urteaga and Salazar were recalled. During the same election cycle, Athe ns contributed no more than $9,000 to any city council campaign in any other city.4 The City’s Lawsuit against Appellants On July 23, 2012, th e City sued appellants, alleging they had violated Government Code section 1090, which prohibits city office rs from being “financia lly interested in any contract made by them in thei r official capacity, or by an y body or board of which they are members.” (Gov. Code, § 1090.) The C ity alleged Vasquez vo ted to approve the Athens contract with the expectation that At hens would financially support her reelection campaign, and Urteaga and Sala zar voted to approve it with the expectation that Athens would financially support their future campai gns. The City sought a judgment declaring
the contract void because at least one offici al or employee of the City was financially interested in it. The City also sought an order requiring any appellants found to be financially interested in the Athens contract to disgorge to the City any money they
received from Athens. Athens successf ully intervened in the litigation.
The Anti-SLAPP Motion On September 28, 2012, appellants filed an anti-SLAPP motion to strike the City’s complaint on the grounds that appellants’ legi slative actions were protected activity and the City could not establish a probability of pr evailing on the merits. In support of their motion, appellants declared they had no fina ncial interest in the Athens contract. Vasquez, Urteaga, and Salazar each declared they voted for the co ntract because they thought it best for the City of Montebello, its residents, a nd its businesses, not because they anticipated Athens would financially support their future election campaigns. Athens’ executive vice president declared At hens made no promise to contribute to any city council member s in exchange for their votes. In opposition to appellants’ anti-SLAPP motion, the City argued the lawsuit was exempt from the anti-SLAPP statute pursuant to section 425.16, subdivision (d), which states the anti-SLAPP provisio ns do not apply to “any enfo rcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor.” Alternatively, the City argued appellants’ act of voting was not protected activity with in the meaning of section 425.16.5 The trial court found the public enfo rcement exemption under section 425.16, subdivision (d) did not apply. The court then determined appellants’ legislative actions and votes qualified as protec ted activity, but found the City established a probability of prevailing on the merits because the evidence that Athens had contributed to some of appellants’ campaigns substantiated the City’s claim that appellants violated Government
Code section 1090. The court denied th e anti-SLAPP motion, and appellants timely appealed.
Discussion
1. Standard of Review “Review of an order granti ng or denying a motion to stri ke under section 425.16 is de novo.” ( Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) “We consider ‘the pleadings, and supporting and opposing a ffidavits . . . upon which the liability or defense is based.’ (§ 425.16 , subd. (b)(2).) However, we neither ‘weigh credibility [nor] compare the we ight of the evidence. Rath er, [we] accept as true the evidence favorable to the plain tiff [citation] and evaluate the defendant’s evidence only to
determine if it has defeated that submitte d by the plaintiff as a matter of law.’ [Citation.]” ( Ibid. )
2. Section 425.16 Under section 425.16, a part y may move to dismiss “certain unmeritorious claims that are brought to thwart constitutiona lly protected speech or petitioning activity.” 2 ( Robinzine v. Vicory (2006) 143 Cal.App.4th 1416 , 1420-1421.) Section 425.16 provides: “A cause of action against a pe rson arising from any act of that person in furtherance of the person’s right of petiti on or free speech under the United States
Constitution or the California Constitution in connection with a publ ic 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).)

2 An anti-SLAPP motion may be made ag ainst a claim for declaratory relief. ( Mission Springs Water District v. Verjil (2013) 218 Cal.App.4th 892, 909.)6 In evaluating an anti-SLAPP motion, we co nduct a two-step analysis. First, we
must decide whether the defe ndant “has made a threshold showing that the challenged cause of action arises from protected activity.” ( Taheri Law Group v. Evans (2008) 160 Cal.App.4th 482, 488.) For this purpose, protected activity “i ncludes: (1) any written or oral statement or writing made before a legisla tive, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue unde r consideration or review by a legislative, executive, or judicial body, or any other official proceedin g 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 i ssue of public interest, or (4) a ny other conduct in furtherance of the exercise of the constitutional right of pe tition or the constitutional right of free speech in connection with a public issu e or an issue of public intere st.” (§ 425.16, subd. (e).) Second, if the defendant makes this th reshold showing, we decide whether the plaintiff “has demonstrated a probab ility of prevailing on the claim.” ( Taheri Law Group
v. Evans , supra , 160 Cal.App.4th at p. 488.) “Onl y a cause of action that satisfies both prongs of the anti-SLAPP statute–i.e., that arises from protected speech or petitioning
and lacks even minimal merit–is a SLAPP, subject to being stricken under the statute.” ( Navellier v. Sletten
, supra , 29 Cal.4th at p. 89.)
3. The Public Enfo rcement Exemption The City first argues its lawsuit is exem pt from the anti-SLAPP statute pursuant to the public enforcement exemp tion under section 425.16, subd ivision (d). Section 425.16, subdivision (d), provides that the anti-SLAPP statute “shall not apply to any enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a pub lic prosecutor.” (§ 425.16, subd. (d).) Relying on City of Long Beach v. Califo rnia Citizens for Neighborhood Empowerment (2003) 111 Cal.App.4th 302, the City argues the public enforcement exemption applies here because its lawsuit was brought in the name of the City of
Montebello to enforce a law aime d at public protection. In City of Long Beach , the court7 determined that despite the statute’s plain language exempting only actions “brought in the name of the people of the State of Ca lifornia by the Attorney General, district attorney, or city attorney, acting as a public prosecutor,” it could reasonably infer the exemption “extended to all civil actions brou ght by state and local agencies to enforce
laws aimed at consumer and/ or public protection.” ( Id. at pp. 306, 308.) The court therefore concluded the exemption applied to an action brought by the City of Long Beach. ( Id. at pp. 307-308.)
In City of Colton v. Singletary (2012) 206 Cal.App.4th 7 51, the court disagreed. There, the court found the language of sec tion 425.16, subdivisio n (d) to clearly and unambiguously apply only to an action “brought in the name of the people of the State of California.” ( Id. at pp. 775-776.) We agree with City of Colton that the plain language of section 426.15, subdivision (d) limits th e public enforcement ex emption to actions brought in the name of the people of the State of California, not to all civil actions brought by state and local agencies to enforce laws aimed at public protection. (See Jarrow Formulas, Inc. v.
LaMarche (2003) 31 Cal.4th 728, 735 [“The Legi slature clearly knows how to create an exemption from the anti-SLAPP st atute when it wishes to do so”].) This limitation is designed to exempt enforcement actions on issu es of state-wide concern. Actions solely based on parochial issues are not aimed at pr otecting the citizenry at large and are thus undeserving of the exemption. Here, the City’s lawsuit against appellant s was not brought in the name of the People of the State of California, nor is the C ity suing on an issue of state-wide concern. The waste hauling contract concerns only Mo ntebello and its citizens. We therefore conclude the public enforcement exemption does not apply. 4. Arising from Protected Activity Appellants argue the council members’ public statements and votes and Torres’s actions relating to the Athens contract cons tituted protected activity within the meaning of section 425.16. We disagree. A legisl ator’s vote and “acts of governance mandated by law, without more, are not exerci ses of free speech or petition.” ( Nev. Commission on8 Ethics v. Carrigan (2010) 131 S.Ct. 2343, 2350; San Ramon Valley Fire Protection District v. Contra Costa County Employees’ Retirement Association (2004) 125 Cal.App.4th 343, 354.)
In Carrigan , a city council member challenged a Nevada law prohibiting a legislator who had a conflict of interest both from voting on a pro posal and advocating for or against it, arguing the law violated the First Amendment. ( Nev. Commission on Ethics v. Carrigan
, supra , 131 S.Ct. at p. 2345.) The United States Supreme Court held the restriction did not violate the legislator’s right to free speech because a legislator’s voting power does not constitute speech. 3 The Supreme Court reasoned that because a legislator casts his vote as a political repres entative executing the legislative process on behalf of his constituents, he has no personal right in his vote. ( Id. at p. 2350.) A legislator’s act of voting is therefore “conduct engaged in for an independent governmental purpose,” not an act of comm unication conveying the legislator’s personal message. ( Id. at pp. 2350-2351.)
In San Ramon Valley Fire Protection District , the board of a county retirement system voted to require a fire protection distri ct to increase its pension contributions to the retirement system. ( San Ramon Valley Fire Protecti on District v. Contra Costa County Employees’ Re tirement Association , supra , 125 Cal.App.4th at pp. 347-348.) Seeking to contribute a lesse r amount, the district sued the board for mandamus and declaratory relief. The board brought a sp ecial motion to strike under the anti-SLAPP statute, arguing its decision to require a dditional pension contributions after a public hearing and a majority vote of the board’s members cons tituted protected activity. ( Id. at pp. 348-349, 353.) The trial court denied the motion, and the appellate court affirmed, holding the board’s adoption of a pension contribution require ment was not an exercise of free speech or the right to petition. ( Id. at pp. 346, 357.)

3 This ruling is directly contrary to dictum in Schroeder v. Irvine City Council (2002) 97 Cal.App.4th 174, in which the cour t opined that “voting is conduct qualifying for the protections afforded by the First Amendment” an d would therefore constitute protected activity under section 425.16. ( Id. at p. 183, fn. 3.)9 The court observed that a contrary deci sion would significantly burden the petition rights of those seeking review of government actions. ( San Ramon Valley Fire
Protection District v. Cont ra Costa County Employee s’ Retirement Association , supra , 125 Cal.App.4th at pp. 357-358 .) Because many public entity decisions are arrived at after discussion and a vote at a public mee ting, petitioners challe nging those decisions would be forced to make a prima facie show ing of merit at the pleading stage, which would “chill the resort to leg itimate judicial oversight over potential abuses of legislative and administrative power.” ( Id. at p. 358.) Here, the City’s claim against Vasquez, Urteaga, and Salazar is based on the council members’ votes to approve a contract in which they had a financial interest. Their acts of voting represented the commitm ent of their legislative power to the approval of a city contract, which did not implicate their own right to free speech nor convey any symbo lic message (see Nev. Commission on Ethics v. Carrigan
, supra , 131 S.Ct. at pp. 2350-2351), and therefore those acts fail to qualify as protected activity within the meaning of section 425.16. To hold otherwise would cause the anti-SLAPP statute to swallow all city council actions and require anyone seeking to challenge a legislative decision on any issue to first make a prima facie showing of the merits of their claim. (See San Ramon Valley Fire Protection Di strict v. Contra Costa County Employees’ Retirement Association
, supra , 125 Cal.App.4th at pp. 357-358.) We decline to extend the purview of the anti- SLAPP statute in such a manner. Council members Vasquez, Urte aga, and Salazar rely on Holbrook v. City of Santa
Monica (2006) 144 Cal.App.4th 1242 to argue their actions in approving the Athens contract constitute protected legislative activity. Holbrook is distinguishable. There, an individual sued a city, its city council, and c ity council members, alle ging that by running city council meetings late into the night an d allowing public comme nt only at the end of the meeting, the defendants deprived the public of the fundamental ri ght to address their local representatives. The comp laint sought an injunction co mpelling the city council to end its meetings by 11:00 p.m. ( Holbrook v. City of Santa Monica
, supra , 144 Cal.App.4th at pp. 1245-1246.) The trial court granted defendants’ special motion to10 strike, and the appellate court affirmed, hol ding the lawsuit arose from protected activity because it “[arose] from– and [was] designed to restrict the city coun cil’s ability to hold– public meetings during which council members exercise[d] th eir own freedoms of speech and petition in their interacti ons with other council member s and with the public.” ( Id. at pp. 1246, 1248-1249 .) In the instant case, the lawsu it arose from, and was designed to restrict, the council members’ acts of voting to approve a contract in which they had a financial interest, which does not implicate the exercise of the council members’ own freedom of speech or petition. The City’s claim against Torres is base d on his involvement in negotiating a
contract in which he had a financial interest . Nothing about Torres’ s acts to negotiate a routine city contract as part of his job as City Administrator implic ated his exercise of free speech or the right to petition.
Torres relies on Santa Barbara County Coalition Ag ainst Automobile Subsidies v. Santa Barbara County Asso ciation of Governments (2008) 167 Cal.App.4th 1229 to argue his actions in negotiating the Athens co ntract constituted protected activity. This case is distinguishable. In Santa Barbara County , a non-profit political organization sued a local transportation authority, alleging the transportation authority engaged in a government-sponsored political campaign in fa vor of a ballot measure, and sought to enjoin it from advocating passage of the meas ure or expending funds for such advocacy. ( Id . at pp. 1234-1235.) The trial court gran ted the transportation authority’s special motion to strike, and the appellate court affirmed. The court noted section 425.16 “extends to government entities and employees that issue repor ts and take positions on issues of public interest relating to their o fficial duties,” and held the lawsuit challenged conduct expressly defined by the anti-SLAPP stat ute as acts in furthe rance of free speech rights, as the transportation authority made oral and written statements concerning the county’s transportation issues in official proceedings and public forums, and those statements concerned issues of pub lic concern (§ 425.16, subd. (e)). ( Id. at pp. 1237- 1238.)11 Here, the City’s complaint alleged Torre s asked Athens to submit a proposal to become the exclusive wasting hauling franchise in Montebello, and thereafter negotiated
the terms of an exclusive contract on beha lf of the City. Un like the lawsuit in Santa Barbara County , which was based on a government entity’s political campaign in favor of a ballot measure, the City’s claim against Torres is predicated on his negotiation of the Athens contract, not on any actions publicly advocating for its passage. Nothing about Torres’s duties as City Administrator to negotiate contracts on the City’s behalf implicated Torres’s right to take positi ons on issues of public interest. We note that we do not hold a governme ntal act may never constitute protected speech within the meanin g of secti on 425.16. Appellants have failed to make a threshol d showing that their challenged actions arose from protected activity w ithin the meaning of section 425.16. We therefore need not reach the second prong of the anti-SLAPP analysis. Disposition The judgment is affirmed. The City is entitled to recover costs on appeal.
NOT TO BE PUBLISHED.

CHANEY, J.

We concur:

ROTHSCHILD, Acting P. J.

JOHNSON, J.