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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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 ENTERPRISES 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, Frank Revere for Defendants and Appellants. 

 AlvaradoSmith, Raul F. Salinas, and Mary M. Monroe; Leibold McClendon & 

Mann, John G. McClendon for Plaintiff and Respondent. 

______________________________ 
2 

 Respondent City of Montebello (the City) sued appellants, 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 under Code of Civil Procedure section 425.16,1

 the 

anti-SLAPP statute. On appeal, appellants contend the trial court erred in denying their 

motion because the City’s lawsuit arises from protected activity and the City failed to 

demonstrate a probability of prevailing on the merits. We disagree and affirm. 

Background 

 We obtain the background facts from “‘the pleadings, and supporting and 

opposing affidavits stating the facts upon which 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 Services (Athens) an exclusive right to provide 

commercial waste hauling services in Montebello. 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 the exclusive commercial 

and industrial waste hauling service in Montebello, 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 Administrator, worked with Athens to negotiate the 

terms of an exclusive contract, under which Athens would provide improved residential 

trash hauling services at no increased price and also become the 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 $500,000 cash payment to the City. 

 Athens then submitted a proposal to the city council to become 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 collection 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 Vasquez, Urteaga, and Salazar in favor of the contract and 

the mayor and another council member against it. 

 Once approved, the contract required the mayor’s signature to effectuate it. The 

mayor, however, refused to sign the contract 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 awaiting the mayor’s signature. Vasquez then signed the 

contract as Montebello’s mayor pro. tem., stating she was authorized to do so because the 

mayor’s refusal to execute the contract rendered 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 unsuccessful, and both Urteaga and Salazar were 

recalled. During the same election cycle, Athens 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, the City sued appellants, alleging they had violated Government 

Code section 1090, which prohibits city officers from being “financially interested in any 

contract made by them in their official capacity, or by any body or board of which they 

are members.” (Gov. Code, § 1090.) The City alleged Vasquez voted to approve the 

Athens contract with the expectation that Athens would financially support her reelection 

campaign, and Urteaga and Salazar voted to approve it with the expectation that Athens 

would financially support their future campaigns. The City sought a judgment declaring 

the contract void because at least one official 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 successfully 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’ legislative actions were protected activity and 

the City could not establish a probability of prevailing on the merits. In support of their 

motion, appellants declared they had no financial interest in the Athens contract. 

Vasquez, Urteaga, and Salazar each declared they voted for the contract because they 

thought it best for the City of Montebello, its residents, and its businesses, not because 

they anticipated Athens would financially support their future election campaigns. 

Athens’ executive vice president declared Athens made no promise to contribute to any 

city council members 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 provisions do 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 public prosecutor.” Alternatively, the City argued appellants’ 

act of voting was not protected activity within the meaning of section 425.16. 
5 

 The trial court found the public enforcement exemption under section 425.16, 

subdivision (d) did not apply. The court then determined appellants’ legislative actions 

and votes qualified as protected 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 the anti-SLAPP motion, and appellants timely 

appealed. 

Discussion 

1. Standard of Review 

 “Review of an order granting or denying a motion to strike 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 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.]” (Ibid.) 

2. Section 425.16 

Under section 425.16, a party may move to dismiss “certain unmeritorious claims 

that are brought to thwart constitutionally 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 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).) 

 2

 An anti-SLAPP motion may be made against 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 conduct a two-step analysis. First, we 

must decide whether the defendant “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 “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 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.” (§ 425.16, subd. (e).) 

 Second, if the defendant makes this threshold showing, we decide whether the 

plaintiff “has demonstrated a probability of prevailing on the claim.” (Taheri Law Group 

v. Evans, supra, 160 Cal.App.4th at p. 488.) “Only 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 Enforcement Exemption 

The City first argues its lawsuit is exempt from the anti-SLAPP statute pursuant to 

the public enforcement exemption under section 425.16, subdivision (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 public prosecutor.” (§ 425.16, 

subd. (d).) 

Relying on City of Long Beach v. California 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 aimed at public protection. In City of Long Beach, the court 
7 

determined that despite the statute’s plain language exempting only actions “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,” it could reasonably infer the 

exemption “extended to all civil actions brought 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 751, the court disagreed. 

There, the court found the language of section 425.16, subdivision (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 the public enforcement exemption 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 Legislature clearly knows how to create an 

exemption from the anti-SLAPP statute when it wishes to do so”].) This limitation is 

designed to exempt enforcement actions on issues of state-wide concern. Actions solely 

based on parochial issues are not aimed at protecting the citizenry at large and are thus 

undeserving of the exemption. 

Here, the City’s lawsuit against appellants was not brought in the name of the 

People of the State of California, nor is the City suing on an issue of state-wide concern. 

The waste hauling contract concerns only Montebello 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 constituted protected activity within the meaning 

of section 425.16. We disagree. A legislator’s vote and “acts of governance mandated 

by law, without more, are not exercises of free speech or petition.” (Nev. Commission on 
8 

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 proposal 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 representative 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 communication 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 district to increase its pension contributions to 

the retirement system. (San Ramon Valley Fire Protection District v. Contra Costa 

County Employees’ Retirement Association, supra, 125 Cal.App.4th at pp. 347-348.) 

Seeking to contribute a lesser amount, the district sued the board for mandamus and 

declaratory relief. The board brought a special motion to strike under the anti-SLAPP 

statute, arguing its decision to require additional pension contributions after a public 

hearing and a majority vote of the board’s members constituted 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 requirement 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 court opined that “voting is conduct qualifying 

for the protections afforded by the First Amendment” and would therefore constitute 

protected activity under section 425.16. (Id. at p. 183, fn. 3.) 
9 

The court observed that a contrary decision would significantly burden the petition 

rights of those seeking review of government actions. (San Ramon Valley Fire 

Protection District v. Contra Costa County Employees’ 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 meeting, petitioners challenging those decisions 

would be forced to make a prima facie showing of merit at the pleading stage, which 

would “chill the resort to legitimate 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 commitment of their legislative power to the 

approval of a city contract, which did not implicate their own right to free speech nor 

convey any symbolic 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 District 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, Urteaga, 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 city council members, alleging that by running 

city council meetings late into the night and allowing public comment only at the end of 

the meeting, the defendants deprived the public of the fundamental right to address their 

local representatives. The complaint sought an injunction compelling 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 to 
10 

strike, and the appellate court affirmed, holding the lawsuit arose from protected activity 

because it “[arose] from– and [was] designed to restrict the city council’s ability to hold–

public meetings during which council members exercise[d] their own freedoms of speech 

and petition in their interactions with other council members and with the public.” (Id. at 

pp. 1246, 1248-1249.) In the instant case, the lawsuit 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 based 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 implicated his exercise of 

free speech or the right to petition. 

Torres relies on Santa Barbara County Coalition Against Automobile Subsidies v. 

Santa Barbara County Association of Governments (2008) 167 Cal.App.4th 1229 to 

argue his actions in negotiating the Athens contract 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 favor of a ballot measure, and sought to 

enjoin it from advocating passage of the measure or expending funds for such advocacy. 

(Id. at pp. 1234-1235.) The trial court granted 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 reports and take positions on 

issues of public interest relating to their official duties,” and held the lawsuit challenged 

conduct expressly defined by the anti-SLAPP statute as acts in furtherance 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 public concern (§ 425.16, subd. (e)). (Id. at pp. 1237-

1238.) 
11 

Here, the City’s complaint alleged Torres 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 behalf of the City. Unlike 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 positions on issues of public interest. 

We note that we do not hold a governmental act may never constitute protected 

speech within the meaning of section 425.16. 

Appellants have failed to make a threshold showing that their challenged actions 

arose from protected activity within 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.