(Santa Clara County Super. Ct. No. CV046112) Trial Judge: The Honorable William J. Elfving
The opinion of the court was delivered by: Rushing, P.J.
CERITIFIED FOR PUBLICATION
In 2004, the Morgan Hill City Council adopted a resolution that condemned Bruce Tichinin, a local attorney, for hiring a private investigator to conduct surveillance of the city manager and then denying that he had done so. Thereafter, Tichinin filed an action against the City under 42 United States Code section 1983 (hereafter "1983 action") alleging that the City unlawfully retaliated against him for exercising his constitutional rights. The City answered and then filed an anti-SLAPP motion under Code of Civil Procedure section 425.16 to strike the action.*fn1 (Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1117-1118 [§ 425.16 applies to federal claims under § 1983]; accord, Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1392, fn. 4.) After a hearing, the trial court granted the anti-SLAPP motion, struck the amended complaint, awarded the City attorney fees, and entered judgment.
On appeal, Tichinin claims the court erred in granting the motion. We agree and reverse the judgment.
In 2002, a rumor circulated in the City of Morgan Hill (City) that J. Edward Tewes (Tewes), the city manager, and Helene Leichter (Leichter), the city attorney, were having a romantic affair. Hedy Chang (Chang), a member of the city council (Council), believed they were having an inappropriate relationship and made her views known to other members of the Council. As a result, Leichter threatened to sue the City and Chang. In June 2003, Chang retained Tichinin and reiterated her belief about Tewes and Leichter.
At this time, Tichinin also represented two clients in matters before the Council. On behalf of Bob Lynch Ford and Scott Lynch, Tichinin opposed an application by Timothy Paulus to establish a new Ford dealership in the City. That opposition was rejected, and the City approved the application. Thereafter, Tichinin filed an action against Paulus and the City challenging the approval.*fn2
Tichinin also represented Howard Vierra, a residential developer, seeking approval for a proposed residential project at the base of El Toro Peak.*fn3 In November 2003, the City Planning Department (the Department) rejected Vierra‟s application. Based on Leichter‟s analysis and advice, the Department found that the project was inconsistent with the General Plan because it was located in an area designated for open space on the General Plan map. In December 2003, Tichinin appealed to the Council.
According to Tichinin, before the hearing on that appeal, he called Leichter to explain that the appeal was based on a claim that the open space areas on the General Plan map had been misdrawn; and in response, Leichter said she would advise the Council that his position was " "reasonable.‟ " At a subsequent informal meeting attended by Tichinin, Tewes, Leichter, and members of the planning staff, Tewes said he was opposed to the Vierra project. Later, at the hearing, Leichter supported the Department‟s initial determination but recommended that the Council file a declaratory relief action to have the court determine whether the project was inconsistent with the General Plan. The Council adopted that recommendation.
After the hearing, Tichinin suspected that Tewes had been able to influence Leichter to change her view that Vierra‟s appeal was reasonable because they were having an affair. When he relayed this to Vierra, Vierra authorized him to hire a private investigator to determine whether there was an inappropriate relationship. According to Tichinin, if the investigation uncovered evidence of an affair, he intended to discretely tell the Council, request that Leichter be removed from further involvement with the Vierra project due to a conflict of interest, and have the City appoint independent counsel to prosecute the action for declaratory relief. If the Council declined to disqualify Leichter, then Tichinin intended to sue the City for unlawful retaliation based on his belief that Tewes had turned Leichter against the Vierra project because Tichinin was representing Council member Chang and had previously opposed the Paulus car dealership, which Tewes had favored.
At the end of January 2004, Tichinin hired Mark Bell, a licensed private investigator, to watch Tewes at an official conference he was planning to attend in Huntington Beach on February 3, 2004.
Before leaving for the conference, Tewes had a meeting with Tichinin, Vierra, and Leichter. Tichinin and Vierra said they wanted the Council to reconsider the Vierra project, reiterating their view that the General Plan map had been misdrawn. Vierra asked what it would take to get Tewes and Leichter to see it his way or get them on his side. When Tewes and Leichter demurred, Tichinin accused them of opposing the Vierra project because of his previous opposition to the Paulus Ford Dealership. Leichter asked if he was threatening to file a 1983 action. Vierra said " "That‟s not what I want!‟ "
After the meeting, Tewes went to Huntington Beach and checked into the Hyatt Regency Hotel. Meanwhile, Bell had hired Brian Carey, who reserved a room at the hotel in order to conduct surveillance. In his declaration, Tewes said that on February 5, he returned to his room and found hot chocolate for two, which he had not ordered. He thought that someone might have entered his room and ordered it, which made him anxious. It was Carey who had ordered the hot chocolate. The next day, based on information he learned from hotel personnel, Tewes suspected that someone was stalking him and became worried and alarmed. He received an anonymous call asking for some other person, which added to his suspicion. Then, before checking out, Tewes made a lot of noise in his room as he left. He hid in the hallway and waited. Within moments, Carey came walking by with a video camera. Seeing Tewes, Carey diverted the camera and then continued walking to the lobby. Tewes followed him. Later, outside the hotel, he saw Carey watching him from a distance. In his declaration, Tewes said he was shaken and distressed by what he considered to be intrusive surveillance, and he feared for his family.
Tewes reported the surveillance to the Council, which appointed council members Greg Sellars and Larry Carr as a surveillance subcommittee to investigate. They, in turn, hired Kelly Jones, a private investigator, to find out who had been watching Tewes.
Between February and May 2004, Bell called Tichinin to report that the City was talking to Carey about who had hired him. In April 2004, the City prepared a complaint against Carey for stalking that sought a restraining order. At that point, Tichinin became concerned about possible action against him if the City learned that he had hired Bell. On May 8, 2004, Sellars asked Tichinin if he had been involved in the surveillance, but Tichinin said no. However, on May 14, he admitted his involvement. He explained that he was investigating the rumored relationship between Tewes and Leichter because he thought it would explain why Leichter had opposed the Vierra project and support a request to have Leicther removed from further involvement on the project. According to Sellars, Tichinin apologized and said that he had not acted for Chang but for another client.
In early July 2004, the surveillance subcommittee issued its final report, which was based on interviews and conversations with Tewes, Jones, Leichter, Chang, and Tichinin and public documents. At a Council meeting on July 7, 2004, the Council adopted the subcommittee report and scheduled a follow-up meeting for July 14 to consider taking punitive action against Tichinin.
At the meeting on July 14, Chang apologized for knowing about the surveillance, misleading the Council about it, and costing taxpayers the expense of the investigation. She also apologized for any discomfort that the surveillance had caused Tewes.
Steven Fink, Tichinin‟s attorney, argued that Tichinin was investigating a matter of public concern in that an affair between Tewes and Leichter would create a potential conflict of interest. Fink further argued that before taking any formal action on behalf of his clients based on such a conflict of interest, Tichinin had a duty to investigate whether there was, in fact, an inappropriate relationship. Accordingly, he argued that hiring an investigator was both lawful and constitutionally protected conduct, for which he could not be punished. Fink conceded that Tichinin was wrong to falsely deny involvement in the surveillance, but he argued that that was a different matter, and Tichinin was prepared to explain and apologize for having done so.
Tichinin also spoke. He apologized for lying, saying that Sellars had caught him "flatfooted," he felt "trapped," and he "feared that giving no answer would tend to compromise the confidentiality of the investigation, the confidentiality of the client that I had done it on behalf of, and so I misrepresented. I also feared that if I told the truth that the City would retaliate . . . ."
Tichinin reiterated the view that his opposition to the Paulus Ford Dealership and subsequent court challenge to its approval had angered Tewes; and that later, when he appealed the Department‟s rejection of the Vierra project, Tewes still held a grudge and retaliated against him by persuading Leichter, whom he was having an affair with, to change her views on the merits of Vierra‟s appeal and oppose it. Given his suspicions, he hired Bell to investigate whether there was an inappropriate relationship. He reasoned that if there was evidence of an affair, he could establish a conflict of interest and convince the Council to rehear the appeal based on objective and independent advice concerning whether the Vierra project was consistent with the General Plan.
At the end of the hearing, the Council adopted a resolution, which provided, in relevant part, "NOW, THEREFORE, BE IT RESOLVED the City Council condemns the surveillance activities of Mr. Bruce Tichinin and finds them unwarranted and unjustified. The City Council deplores the false statements that he made to City Council members to avoid disclosure of the surveillance. The City Council requests Mr. Tichinin‟s immediate resignation from the Morgan Hill Urban Limit Line Subcommittee."
Thereafter, the Council adopted its resolution, Tichinin filed his 1983 action, and the City parried with an anti-SLAPP motion, which the court granted.
The anti-SLAPP statute allows a defendant to gain early dismissal of a SLAPP suit. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.) The statute reflects the legislative recognition that SLAPP suit plaintiffs are not seeking to succeed on the merits but to use the legal system to chill the defendant‟s First Amendment rights.*fn4 (Integrated Healthcare Holdings, Inc. v. Fitzgibbons (2006) 140 Cal.App.4th 515, 522.)
In ruling on an anti-SLAPP motion, the trial court engages in a two-step process. "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant‟s burden is to demonstrate that the act or acts of which the plaintiff complains were taken "in furtherance of the [defendant]‟s right of petition or free speech under the United States or California Constitution in connection with a public issue,‟ as defined in the statute. [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim." (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon); accord, Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.) "Only a cause of action that satisfies both prongs of the anti-SLAPP statute . . . is a SLAPP, subject to being stricken under the statute." (Navellier v. Sletten (2002) 29 Cal.4th 82, 89, italics in Navellier.)
On appeal, we review the motion de novo and independently determine whether the parties have met their respective burdens. (Christian Research Institute v. Alnor (2007) 148 Cal.App.4th 71, 79; Mann v. Quality Old Time Service, Inc. (2004) 120 Cal.App.4th 90, 103.) In evaluating the motion, we consider "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) However, we do not weigh credibility or compare the weight of the evidence. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) Rather, we accept as true evidence favorable to the plaintiff, determine whether the plaintiff has made a prima facie showing of facts necessary to establish its claim at trial, and evaluate the defendant‟s evidence only to determine whether it defeats that submitted by the plaintiff as a matter of law. (Ibid.; Paulus, supra, 139 Cal.App.4th at p. 673.)
The two fundamental issues are whether Tichinin‟s 1983 action was based on activity by the City that qualified for protection under the anti-SLAPP statute; and if so, whether Tichinin made a prima facie showing of facts that would support judgment in his favor. (Navellier v. Sletten, supra, 29 Cal.4th at p. 89.)
A. The Basis of the Action
Tichinin concedes that his action is based on acts by the City that would qualify for protection under the anti-SLAPP statute. We agree.
The anti-SLAPP statute applies to acts taken "in furtherance of the person‟s right of petition or free speech" as defined in section 426.16, subdivision (e). (§ 426.16, subd. (b)(1).) Section 425.16, subdivision (e) defines acts in furtherance of the rights of petition and free speech to include "any written or oral statement or writing" made before a legislative, executive, or judicial body, or any other official proceeding authorized by law, or in connection with an issue under consideration or review such bodies or officials. (§ 425.16, subds. (e)(1) & (2).) Tichinin‟s claims are based on the investigative reports by the Council‟s surveillance subcommittee reports, the Council‟s hearing, and subsequent resolution adopted by Council condemning him.
B. Probability of Success
"In order to establish a probability of prevailing on the claim [citation], a plaintiff responding to an anti-SLAPP motion must " "state . . . and substantiate a legally sufficient claim." ‟ [Citations.] Put another way, the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.‟ [Citations.]" (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.)
In determining whether a plaintiff has shown a probability of prevailing on the merits, we employ a standard "similar to that employed in determining non-suit, directed verdict or summary judgment motions. [Citation.]" (Paulus, supra, 139 Cal.App.4th at p. 672.) However, "[a] motion to strike under section 425.16 is not a substitute for a motion for a demurrer or summary judgment [citation]. In resisting such a motion, the plaintiff need not produce evidence that he or she can recover on every possible point urged. It is enough that the plaintiff demonstrates that the suit is viable, so that the court should deny the special motion to strike and allow the case to go forward." (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 905.)
In general, to succeed on his 1983 action, Tichinin had to prove that (1) the conduct he complained of was committed by a person "acting under the color of state law"; and (2) "this conduct deprived a person of rights, privileges or immunities secured by the Constitution or laws of the United States."*fn5 (Paraatt v. Taylor (1981) 451 U.S. 527, 535, overruled on other grounds in Daniels v. Williams (1986) 474 U.S. 327, 330-331; American Mfrs. Mut. Ins. v. Sullivan (1999) 526 U.S. 40, 49-50; Vergos v. McNeal, supra, 146 Cal.App.4th at p. 1402.)
Where, as here, the plaintiff claims retaliation for exercising a constitutional right, the majority of federal courts require the plaintiff to prove that (1) he or she was engaged in constitutionally protected activity, (2) the defendant‟s retaliatory action caused the plaintiff to suffer an injury that would likely deter a person of ordinary firmness from engaging in that protected activity, and (3) the retaliatory action was motivated, at least in party, by the plaintiff‟s protected activity. (Espinal v. Goord (2d Cir. 2009) 558 F.3d 119, 128-129; Lauren W. ex rel. Jean W. v DeFlaminis (3d Cir. 2007) 480 F.3d 259, 267; Suarez Corp. Industries v. McGraw (4th Cir. 2000) 202 F.3d 676, 686; Keenan v. Tejeda (5th Cir. 2002) 290 F.3d 252, 258; Bloch v. Ribar (6th Cir. 1998) 156 F.3d 673, 678; Bridges v. Gilbert (7th Cir. 2009) 557 F.3d 541, 546, 552; Carroll v. Pfeffer (8th Cir. 2001) 262 F.3d 847, 850; Mendocino Environmental Center v. Mendocino County (9th Cir. 1999) 192 F.3d 1283, 1300-1301; Smith v. Plati (10th Cir. 2001) 258 F.3d 1167, 1176; Bennett v. Hendrix (11th Cir. 2005) 423 F.3d 1247, 1251.)
"The traditional definition of acting under color of state law requires that the defendant in a [section] 1983 action have exercised power "possessed by virtue of state law and made possible only because the wrongdoer is clothed with the authority of state law.‟ [Citation.]" (West v. Atkins (1988) 487 U.S. 42, 49, quoting United States v. Classic (1941) 313 U.S. 299, 326; accord, Lugar v. Edmondson Oil Co. (1982) 457 U.S. 922, 928 & fn. 8, 929 & fn. 13.)
The City concedes that the acts underlying Tichinin‟s claims were performed under color of state law and, therefore, that Tichinin can establish this element of his 1983 claim. We agree. It is undisputed that in preparing and issuing the surveillance reports and adopting the resolution condemning Tichinin, the Council and its subcommittee were clothed ...