(Alameda County Super. Ct. No. RG07361370). Trial judge: Hon. Frank Roesch.
The opinion of the court was delivered by: Needham, J.
CERTIFIED FOR PUBLICATION
Defendant the City of Pleasanton enacted an ordinance approving a proposed 51-unit residential development on land owned by plaintiffs Jennifer and Frederic Lin. Real party in interest Kay Ayala, a former city councilperson and member of an unincorporated association operating under the name "Save Pleasanton's Hills," gathered the number of voter signatures necessary to hold a referendum on the ordinance. (Elec. Code, § 9236, subd. (b).)*fn1 The superior court granted the Lins's petition for a writ of mandate directing the city clerk to refrain from certifying the referendum petition based on its failure to comply with the "text" requirement of section 9238, subdivision (b). It granted in part Ayala's motion to strike the writ petition as a "SLAPP" (strategic lawsuit against public participation; Code of Civil Procedure section 425.16), but denied her request for attorney fees on that motion.
In this appeal, Ayala contends: (1) the writ petition should have been denied in its entirety because the issues it presented were not ripe for review; (2) the court erred when it issued the writ based on the referendum petition's failure to include documents that were referred to in the challenged ordinance but were neither attached as exhibits nor incorporated by reference; (3) the court should have granted the anti-SLAPP motion as to additional causes of action; and (4) the court should have awarded her costs and attorney fees as a prevailing party on the anti-SLAPP motion. We agree that the trial court erred in its interpretation of the "text" requirement of section 9238, subdivision (b) and reverse the order granting the writ petition. We affirm the court's ruling on the anti-SLAPP motion, but remand the case for a redetermination of Ayala's entitlement to costs and attorney fees.
I. FACTUAL AND PROCEDURAL BACKGROUND
The Lins own approximately 562 acres of land in the City of Pleasanton. In 1992, the City approved a 122-unit development on the Lin property that included an 18-hole golf course. This approval was rescinded in a referendum election held November 2, 1993.
In November of 2003, approval of a planned unit development (PUD) was sought by the Lins's agents, James Tong and Charter Properties. The originally proposed plan, which was to be known as "Oak Grove" and was designated PUD-33, consisted of 98 residential units on approximately 80 acres of the Lins's 562-acre parcel, with the remaining land to be dedicated to the City for open space and recreational uses. The proposed Development Plan included a number of documents detailing the particulars of the intended project: an aerial overview, a topographic map, a grading plan, a slope map, a site development profile showing proposed elevations, a tree report, a geological and geotechnical report, landscape guidelines and residence design guidelines.
The City commissioned a draft environmental impact report (EIR) as required by the California Environmental Quality Act, California Public Resources Code section 21000 et seq. (CEQA). The report considered four alternative plans. Following the period for public comment and a public hearing that concluded in October 2007, the City adopted resolutions certifying that the EIR was adequate and complete, adopting the CEQA findings, and approving the "Mitigation Monitoring and Implementation Plan for the Oak Grove Planned Unit Development" (MMIP). The CEQA findings determined that a 51-unit alternative considered in the EIR (Alternative 4) was the preferred project.
The City adopted Ordinance No. 1961, "An Ordinance Approving the Application of James Tong, Charter Properties (Oak Grove Development), for PUD Development Plan Approval, As Filed Under Case PUD-33." It also adopted companion Ordinance No. 1962, "An Ordinance Approving a Development Agreement Between the City of Pleasanton and Jennifer Lin and Frederic Lin Regarding the Oak Grove Development." Ordinance No. 1962 provided that it would be of no force or effect if Ordinance No. 1961 were set aside by referendum.
Ordinance No. 1961, which approved the Development Plan, contained two exhibits, each of which was specifically incorporated by reference into the ordinance itself: a 45-page document entitled "Environmental Findings and Statement of Overriding Considerations" attached as Exhibit A, and a 39-page document entitled "Final Conditions of Approval PUD-33, Oak Grove Development/Lin Property," attached as Exhibit B. The Development Agreement that was the subject of Ordinance No. 1962, was attached to the Final Conditions of Approval as Exhibit D to that document. The Development Plan that was approved by Ordinance No. 1961 was referred to in that ordinance and in its exhibits, but it was not attached or incorporated by reference.*fn2
Following the adoption of Ordinances Nos. 1961 and 1962, Ayala circulated a referendum petition entitled "Referendum Against An Ordinance Passed by The City Council: Ordinance No. 1961 Approving the Application of James Tong, Charter Properties (Oak Grove Development), for PUD Plan Approval, as Filed Under Case PUD-33." The petition was comprised of a copy of Ordinance No. 1961, the CEQA findings attached to and incorporated into that ordinance as Exhibit A, the Conditions of Approval attached to and incorporated into that ordinance as Exhibit B, and the Development Agreement attached to the Conditions of Approval as Exhibit D. The referendum petition did not contain a copy of the Development Plan. Appellant obtained more than the requisite amount of voter signatures and submitted the petition to the city clerk, who certified it for filing.
The Lins filed a petition for writ of mandate directing the city clerk to declare the referendum petition invalid. Ayala was named as the real party in interest. (Code Civ. Proc., § 1085.) The first cause of action alleged that the referendum petition violated section 9238 because it did not contain the full text of Ordinance No. 1961. The second cause of action alleged that the petition violated section 9238 because it did not advise voters that the repeal of Ordinance No. 1962 would be of no force and effect if Ordinance No. 1961 were invalidated. The third cause of action alleged that information distributed to voters and available on the website for Save Pleasanton's Hills was false and misleading under section 18600. The fourth cause of action sought declaratory relief based on the theories alleged in the first three causes of action.
Ayala filed a demurrer to the petition arguing that it failed to state a cause of action, along with an anti-SLAPP motion under Code of Civil Procedure section 425.16. After holding a combined hearing on the petition for writ of mandate, the demurrer and the anti-SLAPP motion, the trial court issued a written order granting the Lins's petition for writ of mandate based on the first cause of action:
"The Petition is GRANTED as to the First Cause of Action, which alleges noncompliance with the requirement found in California Elections Code section 9238(b) that the "full text' of any ordinance sought to be repealed by referendum petition be attached to the referendum petition itself. The requirements of section 9238(b) are construed strictly, and when in doubt, ambiguities should be resolved with an eye to protecting the electorate from confusing or misleading information and to guarantee the integrity of the electoral process. [Citations.] [¶] While the referendum petition of Defendant Ayala did not have to attach the entire Development Plan to achieve technical compliance with section 9238 (as the Development Plan was not expressly incorporated by reference), the failure to include at least some portion of the Development Plan and/or exhibits thereto frustrates the purpose of section 9238, which is to ensure that members of the electorate are adequately informed so that they can intelligently exercise their rights. [Citation.] The Final Conditions of Approval, which were attached to the Petition as Exhibit B and which modify the Development Plan, are meaningless and potentially misleading without including at least some portions of the Development Plan. [Citations.] [¶] The Final Conditions of Approval modify the terms of the Development Plan, including, for example, construction of mitigation measures[,] specific design guidelines such as maximum house heights, building floor measures, maximum grading slopes, placement of side drives in setback areas[,] and design review procedures. (See Referendum Petition, Ex, B at p. 7-16.) In addition, the Final Conditions of Approval impose numerous conditions on specific lots. These modifications and conditions are rendered meaningless, and/or are potentially misleading, without the relevant portions of the referendum petition and a map indicating the location of each lot. [¶] The information in the referendum petition thus does not accurately inform voters of the contents of the Ordinance sought to be invalidated. [Citation.] Referencing outside sources that are available for review elsewhere does not cure the potentially misleading nature of the referendum as presented. [Citation]."
The court sustained Ayala's demurrer as to the second and third causes of action. It granted her anti-SLAPP motion as to the third cause of action based on misrepresentation, denied that motion as to the other causes of action, and declined to award Ayala attorney fees. Ayala appeals, challenging the granting of the writ petition on the first cause of action, the court's denial of her anti-SLAPP motion as to ...