July 22, 2010, by
Last week, the Court declined to review—and so left standing as good law—an opinion by the Second District Court of Appeal setting out a narrow view of when public entities can use the anti-SLAPP statute. That statute authorizes quick dismissal of meritless suits if they are based on a defendant’s speech or petitioning. It’s the second time this year that the L.A.-based Second District has published an opinion rejecting a city’s anti-SLAPP motion, and the Supreme Court has denied review. Those denials do not mean that the Court has approved the analyses in USA Waste of Cal., Inc. v. City Of Irwindale (2010) 184 Cal. App. 4th 53, or Graffiti Protective Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207 (GPC). But they do leave the opinions on the books. That makes the opinions binding on trial courts—though not on other courts of appeal.
In USA Waste, a city adopted guidelines for back-fill projects, applied them to an ongoing project of USA Waste’s, and issued a Notice of Violation (NOV). USA Waste believed that a pre-existing Reclamation Plan and contract barred the City from applying the new guidelines to it. It asserted various claims, and the City replied with an anti-SLAPP motion. The claims, the City argued, were based on its speech—to wit, the NOV.
No, they weren't, said the court of appeal: the root of the claims was the underlying dispute over whether the guidelines apply, not the act of issuing an NOV. Suits "to enforce, interpret or invalidate ... laws," it said, are "generally not subject to being stricken under the anti-SLAPP statute." Otherwise, "efforts to challenge governmental action would be burdened."
For that idea, USA Waste cites GPC. GPC, a terminated contractor, sued to nullify its successor’s contract, claiming that the City had ignored com- petitive bidding laws. In rejecting the City's anti-SLAPP motion, the court held that the suit wasn't based on the City's speech in dealing with the rival contractors, but on its act of awarding a contract without first taking bids.
While the Supreme Court's denials of review leave USA Waste and GPC on the books, and binding on trial courts, they still leave other courts of appeal with room to disagree. The Court affirmed just last year that cities can file anti-SLAPP motions in proper cases. (Vargas v. City of Salinas (2009) 46 Cal.4th 1, 17.) Even in USA Waste, one Justice wrote separately that he found the case much closer than his colleagues. But the L.A.-based court of appeal as a whole seems to be charting a narrow course for public entities’ anti-SLAPP motions.