Cases...
City of Cotati v. Cashman (2002)
[ 29 Cal.4th 69 ]
Parallel Cite(s): 124 Cal.Rptr.2d 519; 52 P.3d 695
City of Cotati v. Cashman S099999
CITY OF COTATI, Plaintiff and Appellant,
v.
GENE CASHMAN et al., Defendants and Respondents.
S099999
(On appeal from 90 Cal.App.4th 796, First Dist. Court
of Appeals.)
SUPREME COURT OF CALIFORNIA
August 29, 2002
Sonoma County
Judge: Laurence K. Sawyer
Super. Ct. No. SCV222677
Ct. App. A092242, A092868
{Page 29 Cal.4th 70}
[Copyrighted Material Omitted]
{Page 29 Cal.4th 71}
Attorneys for Appellant:
Endeman, Lincoln, Turek & Heater, Donald R. Lincoln,
Henry E. Heater. Linda B. Reich; Walter & Pistole
and Jeffrey A. Walter for Plaintiff and Appellant.
Atorneys for Respondent:
Pacific Legal Foundation, R. S. Radford, Meriem L. Hubbard
and Harold E. Johnson for Defendants and Respondents.
Law Office of James J. Moneer and James J. Moneer as
Amici Curiae on behalf of Defendants and Respondents.
Levy, Ram, Olson & Rossi, Karl Olson; Karlene W.
Goller; Harold W. Fuson, Jr.; and Thomas W. Newton for
California Newspaper Publishers Association, Los Angeles
Times and Copley Press, Inc., as Amici Curiae.
WERDEGAR, J.
We must decide in this case whether a municipality's
state court action for declaratory relief respecting
the constitutionality of a mobilehome park rent stabilization
ordinance, filed in response to a federal court declaratory
relief action brought by park owners respecting the
same ordinance, constitutes a strategic lawsuit against
public participation
{Page 29 Cal.4th 72}
(SLAPP)[1] within the purview of Code of Civil Procedure
section 425.16 (section 425.16; the anti-SLAPP statute).
We conclude it does not.[2]
BACKGROUND
In 1998, the City of Cotati (City) adopted a mobilehome
park rent stabilization program. (Cotati Ord. No. 680,
adding ch. 19.14 to Cotati Mun. Code.) After City enacted
the program, Gene Cashman and others, owners of mobilehome
parks (collectively Owners), sued City in the United
States District Court for the Northern District of California.
Owners sought declaratory relief, an injunction, and
damages allegedly resulting from City's ordinance. In
requesting a declaratory judgment, Owners alleged that
"the following question [is] in actual controversy
between the parties: Whether [City] effects an uncompensated
regulatory taking by implementing and enforcing the
rent-restriction Ordinance, in violation of the Fifth
and Fourteenth Amendments to the United States Constitution."
Subsequently, City sued Owners in Sonoma County Superior
Court. City's complaint outlined a cause of action for
declaratory relief. City alleged that "An actual
controversy has arisen and now exists between [City]
and [Owners] relative to their respective rights and
duties in that [City] contends that the [mobilehome
park rent stabilization] ordinance and resolution are
valid and enforceable, both on their face and as construed
by [City]. On the other hand, [Owners] contend that
said ordinance, on its face is unenforceable, invalid,
and void as effecting an unconstitutional taking . .
. ." On information and belief, City also alleged
that Owners contended the ordinance effected a taking
in violation of the California Constitution. City sought
a judgment "declaring the respective rights and
duties of the parties under the ordinance in question
and that the ordinance is constitutional, valid, and
enforceable on its face and as applied to [Owners]."
After the state court action was filed, City filed a
motion in federal court asking that Owners' action be
dismissed on abstention grounds. (Younger v. Harris
(1971) 401 U.S. 37.)
Owners shortly thereafter moved in state court, under
the anti-SLAPP statute, to strike City's complaint.
Owners argued that City's filing of its {Page 29 Cal.4th
73} state court action arose from Owners' filing of
their earlier federal action and, therefore, fell within
the ambit of the anti-SLAPP statute. As evidence that
City's state court action was a SLAPP, Owners pointed
to references in City's complaint to Owners' contention
in the federal action that City's ordinance constituted
a taking.
City concedes that its purpose in filing the state court
action was to gain a more favorable forum in which to
litigate the constitutionality of its mobilehome park
rent stabilization ordinance. Certain potentially applicable
state law decisions on mobilehome park rent regulation,
City notes, were favorable to its position in the underlying
dispute. (SeeMontclair Parkowners Assn. v. City of Montclair
(1999) 76 Cal.App.4th 784; Sandpiper Mobile Village
v. City of Carpinteria (1992) 10 Cal.App.4th 542.) City
also concedes that in filing the state court action
it intended subsequently to seek to persuade the federal
court to abstain from hearing Owners' suit.
The trial court ruled in favor of Owners on the anti-SLAPP
motion. Noting that City's action was filed shortly
after Owners' federal action, involved "the exact
contention" made by Owners therein, and named only
Owners as defendants, the trial court concluded Owners
had, at the outset, carried their burden to show that
the action "arose out of [Owners'] right of petition
under the U.S. Constitution as defined in [section 425.16]."
(See section 425.16, subd. (b)(1).) Having concluded
that Owners had carried their initial burden, the trial
court considered whether City had demonstrated a probability
of prevailing on its claim. Concluding City had not,
the trial court granted Owners' anti-SLAPP motion and
ordered City's action dismissed. The Court of Appeal
reversed. We granted Owners' petition for review.
DISCUSSION
Section 425.16 provides, inter alia, that "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 or 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." (Id., subd. (b)(1).) "As
used in this section, 'act in furtherance of a person's
right of petition or free speech under the United States
or California Constitution in connection with a public
issue' 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 {Page 29 Cal.4th
74}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 . . . ." (Id., subd. (e).)
Owners in their petition asked us to address two issues-whether
a defendant in order to prevail on an anti-SLAPP motion
must demonstrate that the targeted action was intended
to chill the defendant's free speech or petition rights;
and whether a moving defendant must show that the action
had the effect of chilling such rights. We conclude
that defendants moving under the anti-SLAPP statute
have neither burden. Nevertheless, because City's action
arose from the underlying controversy respecting the
validity of City's ordinance rather than from Owners'
federal lawsuit, we further conclude that City's action
was not subject to a special motion to strike under
section 425.16.
A. Intent to Chill
City states that it filed this action in an attempt
to obtain a more favorable forum than federal court
in which to litigate the constitutionality of its mobilehome
park rent stabilization ordinance. "City's initial
goal was to use the state action to persuade the federal
court to abstain in favor of the state proceeding."
City in fact filed a motion in federal district court
asking that the federal action be dismissed on a number
of grounds, including abstention in favor of the state
action. "A secondary, alternative goal," City
claims, "was to try to obtain a quick favorable
decision upholding the Ordinance which then could be
used for res judicata purposes in the federal court."
Owners argue that City's real intention in filing this
action went beyond the desire for a favorable forum.
Owners speculate City actually "hoped to discourage
[Owners] from continuing to litigate by burdening them
with defending a new, costly, and duplicative lawsuit
in a second jurisdiction."
Whether City's subjective motivations for filing this
action were, in reality, primarily as City describes
them, or primarily in accordance with Owners' speculation,
cannot be ascertained with certainty from the record.
As Owners ultimately concede, "City's subjective
intent . . . will probably never be known." Fortunately,
the question of subjective intent is not relevant. As
discussed in detail in Equilon, supra, 29 Cal.4th 53,
the anti-SLAPP statute, construed in accordance with
its plain language, incorporates no intent-to-chill
pleading or proof requirement. (Id. at pp. 58-66) Consequently,
a defendant who meets its burden under the statute of
demonstrating that a targeted cause of action is one
"arising from" protected activity ( section
425.16, subd. (b)(1)) faces no additional requirement
of proving the plaintiff's subjective intent. (Equilon,
supra, at pp. 66, 67.)
{Page 29 Cal.4th 75}
B. Chilling Effect
The same considerations of law and policy, generally,
that bar judicial imposition on the anti-SLAPP statute
of an intent-to-chill proof requirement bar judicial
imposition of a chilling-effect proof requirement. (SeeEquilon,
supra, 29 Cal.4th at pp. 58-66; see also Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal.4th
1106, 1118 (Briggs) [rejecting judicial imposition of
a "public interest" proof requirement].) Here,
as in Equilon, supra, 29 Cal.4th 53, the plain language
of the statute and indicia of legislative intent preclude
any such requirement.
Thus, section 425.16 nowhere states that, in order to
prevail on an anti-SLAPP motion, a defendant must demonstrate
that the cause of action complained of has had, or will
have, the actual effect of chilling the defendant's
exercise of speech or petition rights. Nor is there
anything in section 425.16's operative sections implying
or even suggesting a chilling-effect proof requirement.
Since section 425.16 neither states nor implies such
a requirement, for us judicially to impose one-as City
suggests we should-would violate the foremost rule of
statutory construction. When interpreting statutes,
"we follow the Legislature's intent, as exhibited
by the plain meaning of the actual words of the law
. . . . 'This court has no power to rewrite the statute
so as to make it conform to a presumed intention which
is not expressed.' " (California Teachers Assn.
v. Governing Bd. of Rialto Unified School Dist. (1997)
14 Cal.4th 627, 632-633.)
Legislative intent as gleaned from legislative history
materials is consistent with this interpretation. "Legislative
history materials respecting the origins of section
425.16 indicate the statute was intended broadly to
protect, inter alia, direct petitioning of the government
and petition-related statements and writings-that is,
'any written or oral statement or writing made before
a legislative, executive, or judicial proceeding' (
section 425.16, subd. (e)(1)) or 'in connection with
an issue under consideration or review' (id., subd.
(e)(2)) by such." (Briggs, supra, 19 Cal.4th at
p. 1120.) "The fact the Legislature expressed a
concern in the statute's preamble with lawsuits brought
'primarily' to chill First Amendment rights does not
mean that a court may add this concept as a separate
requirement in the operative sections of the statute."
(Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th
468, 480.) Indeed, "[a]ny such requirement would
be 'too restrictive' [citation] in light of the Legislature's
unqualified desire to 'encourage continued participation
in matters of public significance' ( section 425.16,
subd. (a))." (Equilon, supra, 29 Cal.4th at p.
61.)
In short, section 425.16 expressly "defines the
types of claims that are subject to the anti-SLAPP procedures"
(Chavez v. Mendoza (2001) 94 {Page 29 Cal.4th 76}Cal.App.4th
1083, 1087), i.e., causes of action arising from any
act of protected speech or petitioning as these terms
are defined in subdivision (e)(1)-(4) of the statute.
The Legislature included no limitation relating to chilling
effect. Our imposing one, therefore, not only would
contravene the Legislature's express command that section
425.16 be "construed broadly" (id., subd.
(a)), it would compromise the Legislature's deliberately
expansive remedial design. (See Equilon, supra, 29 Cal.4th
at p. 61.)
Finally, here as in Equilon, imposing a chilling-effect
proof requirement would deprive of anti-SLAPP protection
petitioning that is absolutely privileged under the
litigation privilege (Civ. Code, section 47, subd. (b))
whenever a moving defendant could not separately prove
that the targeted cause of action actually has chilled,
or will chill, protected speech. "It is a fundamental
rule of statutory construction that statutes should
be construed to avoid anomalies." (State of South
Dakota v. Brown (1978) 20 Cal.3d 765, 775.) We previously
have adhered to that rule in construing the anti-SLAPP
statute (Briggs, supra, 19 Cal.4th at p. 1121; see alsoEquilon,
supra, 29 Cal.4th at pp. 64-65), and we do so here as
well.
In sum, judicial imposition of a chilling-effect proof
requirement would contradict the anti-SLAPP statute's
plain language, undermine the Legislature's expressed
intentions, and create anomalies. The statute contains
no such requirement.
C. "Arising From"
As explained more fully in Equilon, supra, 29 Cal.4th
53, section 425.16 requires that a court engage in a
two-step process when determining whether a defendant's
anti-SLAPP motion should be granted. First, the court
decides whether the defendant has made a threshold showing
that the challenged cause of action is one "arising
from" protected activity. ( section 425.16, subd.
(b)(1).) If the court finds such a showing has been
made, it then must consider whether the plaintiff has
demonstrated a probability of prevailing on the claim.
(See generally Equilon, supra, at pp. 66-67.) As will
appear, defendant Owners in this case failed to meet
their threshold burden of demonstrating that City's
action is one arising from Owners' protected speech
or petitioning.
It is indisputably true, as the trial court observed,
that City's action was filed shortly after Owners filed
their claim in federal court. But the mere fact an action
was filed after protected activity took place does not
mean it arose{Page 29 Cal.4th 77}from that activity.
The anti-SLAPP statute cannot be read to mean that "any
claim asserted in an action which arguably was filed
in retaliation for the exercise of speech or petition
rights falls under section 425.16, whether or not the
claim is based on conduct in exercise of those rights."
(ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th
993, 1002; see alsoBriggs, supra, 19 Cal.4th at p. 1114
["arise from" means "based upon"].)
While City's complaint repeatedly refers to the underlying
subject matter of Owners' federal action (i.e., the
mobilehome park rent stabilization ordinance and arguments
respecting its validity), it contains no reference to
the action itself. California courts rightly have rejected
the notion "that a lawsuit is adequately shown
to be one 'arising from' an act in furtherance of the
rights of petition or free speech as long as suit was
brought after the defendant engaged in such an act,
whether or not the purported basis for the suit is that
act itself." (ComputerXpress, Inc. v. Jackson,
supra, 93 Cal.App.4th at p. 1002.)
To construe "arising from" in section 425.16,
subdivision (b)(1) as meaning "in response to,"
as Owners have urged, would in effect render all cross-actions
potential SLAPP's. We presume the Legislature did not
intend such an absurd result. (See generally People
v. Mendoza (2000) 23 Cal.4th 896, 912, fn. 7.) Absurdity
aside, to suggest that all cross-actions arise from
the causes of action in response to which they are pled
would contravene the statutory scheme governing cross-complaints.
(See Code Civ. Proc., section 426.10, subd. (c) [defining
"related cause of action"]; id., section 426.30
[compulsory cross-complaints]; id., section 428.10 [permissive
cross-complaints].) The Legislature expressly has provided
that a cross-action may "arise[] out of the same
transaction, occurrence, or series of transactions or
occurrences as the cause of action which the plaintiff
alleges" (id., section 426.10, subd. (c); see alsoid.,
section 428.10, subd. (b)(1)), rather than out of that
cause of action itself. Indeed, Owners' counsel, when
arguing before the trial court, acknowledged City's
action could not be a SLAPP if City had filed it as
a counterclaim[3] in Owners' federal action.
Nor do Owners persuasively distinguish responsive litigation,
generally. The anti-SLAPP statute, itself, treats complaints
identically with cross-complaints. ( section 425.16,
subd. (h).) Just as a cross-complaint often "arises
out Page 29 Cal.4th 78}of the same transaction, occurrence,
or series of transactions or occurrences as the cause
of action which the plaintiff alleges" (Code Civ.
Proc., section 426.10, subd. (c); see also id., section
428.10, subd. (b)(1)), so may a responsive but independent
lawsuit arise from the same transaction or occurrence
alleged in a preceding lawsuit, without necessarily
arising from that earlier lawsuit itself. (See Church
of Scientology v. Wollersheim (1996) 42 Cal.App.4th
628, 651.)
Owners also have complained that City filed its lawsuit
tactically, so that they would be "forced . . .
to bear the expense and burden of simultaneously litigating
two different legal actions in two different jurisdictions."
But City's subjective intent, as discussed, is not relevant
under the anti-SLAPP statute. As a corollary, a claim
filed in response to, or in retaliation for, threatened
or actual litigation is not subject to the anti-SLAPP
statute simply because it may be viewed as an oppressive
litigation tactic. (Kajima Engineering & Construction,
Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921,
924 (Kajima).) That a cause of action arguably may have
been triggered by protected activity does not entail
that it is one arising from such. To focus on City's
litigation tactics, rather than on the substance of
City's lawsuit, risks allowing Owners to circumvent
the showing expressly required by section 425.16, subdivision
(b)(1) that an alleged SLAPP arise from protected speech
or petitioning. (Kajima, supra, at p. 933, fn. 7.)[4]
In short, the statutory phrase "cause of action
. . . arising from" means simply that the defendant's
act underlying the plaintiff's cause of action must
itself have been an act in furtherance of the right
of petition or free speech. (See ComputerXpress, Inc.
v. Jackson,supra, 93 Cal.App.4th at p. 1001, and cases
cited.) In the anti-SLAPP context, the critical point
is whether the plaintiff's cause of action itself was
based on an act in furtherance of the defendant's right
of petition or free speech. (Equilon, supra, 29 Cal.4th
at pp. 67-68; see also Briggs, supra, 19 Cal.4th at
p. 1114.) "A defendant meets this burden by demonstrating
that the act underlying the plaintiff's cause fits one
of the categories spelled out in section 425.16, subdivision
(e) . . . ." (Braun v. Chronicle Publishing Co.(1997)
52 Cal.App.4th 1036, 1043; see also Wilcox v. Superior
Court (1994) 27 Cal.App.4th 809, 820.) {Page 29 Cal.4th
79}
D. Application
What activity or facts underlie the City's cause of
action for declaratory relief? "The fundamental
basis of declaratory relief is the existence of an actual,
present controversy over a proper subject." (5
Witkin, Cal. Procedure(4th ed. 1997) Pleading, section
817, p. 273.) Owners inaccurately state that "City
has acknowledged that its only basis for alleging an
actual controversy . . . was the fact that the park
owners had previously sued the City in federal court"
In fact, City has argued only that Owners' federal court
action informedCity of the existence of an actual controversy
justifying declaratory relief, not that Owners' federal
action, itself, constituted that controversy. City has
consistently taken the position that the actual controversy
with respect to which it seeks declaratory relief is
the same as the controversy with respect to which Owners
earlier sought declaratory relief in federal court-i.e.,
the controversy over the constitutionality of City's
mobilehome park rent stabilization ordinance. And while
the courts below have drawn different conclusions from
the fact, both have recognized that the gravamen of
City's state court action is the same as that of Owners'
federal court action.
That the constitutionality of an ordinance can be a
proper subject for declaratory relief is without doubt.
"An action for declaratory relief lies when the
parties are in fundamental disagreement over the construction
of particular legislation, or they dispute whether a
public entity has engaged in conduct or established
policies in violation of applicable law." (Alameda
County Land Use Assn. v. City of Hayward (1995) 38 Cal.App.4th
1716, 1723.)
In deciding whether the "arising from" requirement
is met, a court considers "the pleadings, and supporting
and opposing affidavits stating the facts upon which
the liability or defense is based." ( section 425.16,
subd. (b).) Examination of the relevant papers in this
case confirms City's contention that its action alleges
the existence of a controversy-and seeks a declaration-respecting
the validity of City's mobilehome park rent stabilization
ordinance. City alleged in its complaint, as mentioned,
that "[a]n actual controversy has arisen and now
exists between plaintiff and defendants relative to
their respective rights and duties in that plaintiff
contends that the ordinance and resolution are valid
and enforceable, both on their face and as construed
by plaintiff." In moving to strike City's action
as a SLAPP, Owners pointed to this same allegation.
Three of the four supporting affidavits submitted by
Owners purport to demonstrate only that Cotati's mobilehome
parks were in compliance with City's ordinance; they
contain no reference whatsoever to Owners' federal lawsuit.
The other affidavit, by {Page 29 Cal.4th 80}Owners'
counsel in the federal action, purports to demonstrate
that City, after filing its state court action, moved
to dismiss the federal action on abstention grounds,
a point City does not dispute. The only materials City
lodged in opposition to the anti-SLAPP motion were cases
tending to support the validity of the rent stabilization
ordinance. And in its briefing, City reiterated that
it was "merely . . . seeking a resolution of the
controversy" underlying both lawsuits.
The distinction City invokes between Owners' federal
court action on the one hand and the controversy underlying
that action (as well as City's own action) on the other
is not an ephemeral or merely formalistic one. The requirement
that plaintiffs seeking declaratory relief allege "the
existence of an actual, present controversy" (5
Witkin, Cal. Procedure, supra, Pleading, section 817,
p. 273) would be illusory if a plaintiff could meet
it simply by pointing to the very lawsuit in which he
or she seeks that relief. Obviously, the requirement
cannot be met in such a bootstrapping manner; "a
request for declaratory relief will not create a cause
of action that otherwise does not exist." (Mallenbaum
v. Adelphia Communications Corp. (E.D.Pa., Dec. 29,
1994, Civ. A No. 93-7027) 1994 WL 724981, *6, fn. 9,
affd. 74 F.3d 465 (3d Cir. 1996).) Rather, "an
actual, present controversy must be pleaded specifically"
and "the facts of the respective claims concerning
the [underlying] subject must be given." (5 Witkin,
Cal. Procedure, supra, section 819, p. 275; see City
of Alturas v. Gloster (1940) 16 Cal.2d 46, 48.)
In this case, as the Court of Appeal stated, a dispute
exists between the parties over the constitutionality
of Cotati Ordinance No. 680. And just as Owners' lawsuit
itself was not the actual controversy underlying Owners'
request for declaratory relief in federal court, neither
was that lawsuit the actual controversy underlying City's
state court request for declaratory relief. Rather,
the actual controversy giving rise to both actions-the
fundamental basis of each request for declaratory relief-was
the same underlying controversy respecting City's ordinance.[5]
City's cause of action therefore was not one arising
from Owners' federal suit. Accordingly, City's action
was not subject to a special motion to strike.
In view of our conclusion that City's cause of action
did not arise from Owners' federal suit, we do not reach
the anti-SLAPP statute's secondary {Page 29 Cal.4th
81}question whether City "established that there
is a probability that [City] will prevail on the claim"
( section 425.16, subd. (b)(1)). In any event, while
the parties in their briefs on the merits argued the
point, neither the petition for review nor the answer
to the petition for review requested that we address
that issue.
DISPOSITION
The judgment of the Court of Appeal is affirmed.
WE CONCUR:
GEORGE, C. J.
KENNARD, J.
MORENO, J.
CONCURRING OPINION BY BROWN, J.
I concur in the judgment. For the reasons offered in
part C, the City of Cotati's suit did not arise from
the owners' suit. (See also Navellier v. Sletten (Aug.
29, 2002, S095000) 29 Cal.4th 82, 98-100 (dis. opn.
of Brown, J.) Accordingly, the majority's other grounds
are dicta, which we need not address. BROWN, J.
WE CONCUR:
BAXTER, J.
CHIN, J.
---------------
Notes:
[1] The acronym was coined by Penelope Canan and George
W. Pring, professors at the University of Denver. (See
generally Canan & Pring, Strategic Lawsuits Against
Public Participation (1988) 35 Soc. Probs. 506.)
[2] This case has two companions. (SeeNavellier v. Sletten
(2002) 29 Cal.4th 82; Equilon Enterprises, LLC v. Consumer
Cause, Inc. (2002) 29 Cal.4th 53 (Equilon).) We granted
review in this trio of cases in order to maximize the
clarity and guidance respecting application of the anti-SLAPP
statute the full group of decisions may provide to bench
and bar.
[3] Terminology respecting cross-actions differs in
California and federal courts. "In 1971 the Legislature
rewrote the provisions relating to cross-actions (Stats.
1971, ch. 244), dictating that a complaint meant a complaint
or cross-complaint (Code Civ. Proc., section 426.10),
thus [technically] eliminating the counterclaim by transforming
those cross-actions which were formerly counterclaims
into cross-complaints. (Code Civ. Proc., section 428.80.)"
(Bertero v. National General Corp. (1974) 13 Cal.3d
43, 52, fn. 2.) The Federal Rules of Civil Procedure
continue to refer to "counterclaims." (See
generally Fed. Rules Civ. Proc., rule 13, 28 U.S.C.)
[4] Contrary to Owners' implication, thus to emphasize
the anti-SLAPP statute's express requirements does not
leave litigants confronting meritless, retaliatory countersuits
without a remedy. "If a [defendant or] cross-defendant
believes that a [responsive complaint or] cross-complaint
has been filed 'for an improper purpose, such as to
harass or to cause unnecessary delay or needless increase
in the cost of litigation,' or that the claims against
it are frivolous or lacking in evidentiary support,
then it may move for sanctions, including attorney fees
and other expenses, to be awarded in the trial court's
discretion." (Kajima, supra, 95 Cal.App.4th at
p. 934, quoting Code Civ. Proc., section 128.7.)
[5] Thus, as the trial court correctly noted, City's
"action references the history of the enactment
of Ordinance No. 680 . . . and then states that an actual
controversy exists between plaintiff and defendants
in that plaintiff contends that the ordinance is valid
whereas defendants contend that the ordinance is void
. . . . This described contention of the plaintiff is
the exact contention made by the defendants in their
first cause of action of the federal lawsuit . . . ."
Unfortunately, the trial court went on to reason, fallaciously,
that, since the two lawsuits reference the same underlying
controversy, the second arose out of the first.
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