Developer whose proposed project was denied after consultant hired by county prepared environmental impact report (EIR) brought action against county and consultant. The Superior Court, Santa Barbara County, Patrick L. McMahon, J., sustained defendants' demurrers, and developer appealed. The Court of Appeal, Stone, P.J., held that: (1) developer could not sue county for damages caused by county's alleged failure to prepare a proper EIR; (2) developer was not third-party creditor beneficiary of county's contract with consultant; (3) consultant did not owe duty to developer; (4) privilege against tort claims for communications to judicial or governmental bodies applied to consultant's preparation of EIR; (5) anti-SLAPP (Strategic Litigation Against Public Participation) statute applied to bar developer's action; and (6) county was entitled to award of attorney fees under anti-SLAPP statute.
Affirmed in part and reversed in part.
Alschuler, Grossman & Pines LLP, Marshall B. Grossman, Burt Pines, Kenneth S. Meyers, Los Angeles; Reicker, Clough, Pfau & Pyle LLP, Frederick Clough, Santa Barbara; and Law Offices of Douglas B. Schwab, Los Angeles, for Plaintiff and Appellant.
Stephen Shane Stark, County Counsel, Virginia R. Pesola, Deputy;
Hedges & Caldwell, David Pettit and Mary Newcombe, Los Angeles,
for Defendants and Respondents, County of Santa Barbara, John
Storrer and Storrer Environmental Services.
Severson & Werson, Jan T. Chilton, David A. Ericksen, San
Francisco, and Philip A. Seymour, santa Barbara, for Defendants
and Respondents Envicom Corporation, Joseph G. Johns, Andrew Mills
and John McCarthy.
STEVEN J. STONE, Presiding Justice.
A developer is disgruntled with the findings of a draft environmental
impact report (DEIR) prepared by the consultant the county hires
to evaluate the developer's project proposal. The DEIR explains
that unmitigable impacts would result if the project were developed.
The developer hires its own consultant who prepares and submits
a report to the county which states there are no such unmitigable
impacts. In the final EIR (FEIR), the county denies approval
for the project due to the unmitigable impacts. The developer
sues the county, the county's consultant and others over the denial
of project approval. The trial court sustains defendants' demurrers
and grants motions to strike the action and enters judgment in
favor of the defendants.
Mission Oaks Ranch, Ltd. (Mission Oaks) appeals from the judgment
in favor of the County of Santa Barbara (the County), Envicom
Corporation (Envicom), Storrer Environmental Services (Storrer)
and various individuals. [FN1] Because the action is untimely
and administrative mandamus would have been the proper remedy
to seek, we affirm. Furthermore, we affirm because the respondents
owe no duty to Mission Oaks, the statements at issue are privileged
under Civil Code section 47, and the complaint is subject to Code
of Civil Procedure section 425.16, the anti-SLAPP statute.
[FN2] (SLAPP is an acronym for Strategic Litigation Against
FN1. The individual respondents are John Storrer, Joseph
G. Johns, Andrew Mills and John McCarthy.
FN2. All statutory references are to the Code of Civil
Procedure unless otherwise stated.
Mission Oaks submitted an application to the County for a tentative
tract map to subdivide and develop 3,877 acres near Buellton into
32 lots. Based on the initial study, the County issued a request
for proposal to nine independent consultants to prepare the EIR.
The County informed Mission Oaks that it would select an independent
consultant who would exercise its own, independent judgment in
accord with county guidelines. Mission Oaks alleges that the
County did not consult Mission Oaks regarding the selection of
Envicom and Storrer, the consultants chosen by the County to prepare
the EIR. [FN3] But Mission Oaks also alleges that it notified
the County that it had selected Envicom as the independent consultant,
a decision the County accepted.
FN3. The County hired Storrer for the limited purpose of
jointly preparing the biological section of the EIR with Envicom.
Envicom had primary responsibility as to all other sections of
Mission Oaks had the responsibility to pay the consultants to prepare the EIR. Mission Oaks agreed with the County "that the adequacy of performance of consultant ... shall be determined at the sole discretion of County. Applicant [Mission Oaks] agrees that final authority on all decisions concerning the preparation of contractual documents lies in the sole discretion of County...."
The County contracted with Envicom to prepare the EIR. The contract states, in pertinent part, "[T]he draft EIR ... and the final EIR must reflect the lead agency's [County's] independent judgment (CEQA [California Environmental Quality Act] Guidelines, [§] 15084, Pub. [Resources] Code, [§] 21082.1, [subd.] (c).) Accordingly, the final responsibility and final authority on all questions concerning the content and quality of the EIR lies in the sole discretion of the County.... [¶] Consultant understands and agrees that its responsibility to provide a complete and accurate EIR is owed solely to County and that its accountability under this Contract shall likewise be solely to County and not to Applicant or to any other third-person or entity.... " (Italics added.)
Pursuant to the consultant contract, Envicom prepared the DEIR which sets forth a multitude of significant, adverse and unmitigable impacts presented by the project proposal on numerous basic resources. Mission Oaks opines that the preparation of the DEIR was a sham, and that the conclusions in the DEIR are false. It hired its own consultant to submit reports concluding that there is no substantial evidence to support the findings and conclusions of the DEIR. The County's FEIR adhered to the DEIR, and the County's planning commission recommended denial of the project. After holding four hearings, the board of supervisors denied the project proposal. On May 23, 1995, the board adopted findings and conclusions in support of its decision.
In August 1995, Mission Oaks filed a petition for administrative mandate seeking to compel the board to vacate its denial of the tract map application and to obtain a revised EIR. Mission Oaks also sought damages for a taking of its property and for violation of its civil rights. That petition is not before us today.
Mission Oaks filed the instant complaint on December 21, 1995, asserting that the EIR is a sham; that the consultants collusively prepared the EIR with the County in derogation of law and without factual support as part of a conspiracy to deny Mission Oaks the right to develop its property. Mission Oaks alleged that "for no valid reasons whatsoever, but simply to prevent development and for the purpose of generating excessive fees, the County falsely encouraged Mission Oaks to proceed with the EIR while knowingly having no intention of ever approving or recommending approval of the Project."
Except for a Williamson Act claim, concerning agricultural preserves, the trial court sustained the demurrers submitted by respondents without leave to amend and granted the consultants' special motions to strike the complaint pursuant to section 425.16. Mission Oaks dismissed the Williamson Act claim, and the trial court entered judgment in favor of respondents.
The trial court issued a lengthy decision and order in support
of the judgment. Pursuant to the stipulation of the parties,
the court awarded attorney fees and costs to the individual defendants
but denied attorney's fees to the County by ruling that the County
is not a "person" for purposes of SLAPP, and because
the County did not prevail on the Williamson Act claim. This appeal,
and a cross-appeal regarding attorney's fees, ensued from the
FN4. We have consolidated the County's separate cross-appeal
from the denial of post-judgment attorney's fees (No. B111367)
with the main appeal under No. B108463.
In reviewing a judgment of dismissal after demurrers are sustained
without leave to amend, we treat the pleadings as admitting all
material facts properly pleaded, but not contentions, deductions
or conclusions of fact or law. (Aubry v. Tri-City Hospital Dist.
(1992) 2 Cal.4th 962, 967, 9 Cal.Rptr.2d 92, 831 P.2d 317.) When
documents, such as contracts, are incorporated by reference into
the complaint as here, "The recitals, if contrary to allegations
in the pleading, will be given precedence, and the pleader's inconsistent
allegations as to the meaning and effect of an unambiguous document
will be disregarded." (4 Witkin, Cal. Procedure (3d ed.
1985) Pleading, § 385, p. 433; Stoddard v. Treadwell (1864)
26 Cal. 294, 303.) We independently review the complaint to determine
whether it states a cause of action and whether defects can be
cured by amendment. The burden of proof is squarely on the plaintiff,
and if there is no liability as a matter of law, leave to amend
should not be granted. (Hendy v. Losse (1991) 54 Cal.3d 723,
742, 1 Cal.Rptr.2d 543, 819 P.2d 1; Blank v. Kirwan (1985) 39
Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58; Ramirez v. USAA
Casualty Ins. Co. (1991) 234 Cal.App.3d 391, 397, 285 Cal.Rptr.
757.) The judgment of dismissal will be affirmed if it is proper
on any of the grounds stated in the demurrers, whether or not
the trial court relied on any of those grounds. (Carman v. Alvord
(1982) 31 Cal.3d 318, 324, 182 Cal.Rptr. 506, 644 P.2d 192.)
In reviewing judgment of dismissal after the trial court grants a special motion to strike pursuant to section 425.16, we use our independent judgment to determine whether defendants acted in furtherance of their right of petition or free speech in connection with a public issue. (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548, 46 Cal.Rptr.2d 880; Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 819-821, 33 Cal.Rptr.2d 446.) Defendants bear the burden to make this prima facie case. If defendants bear their burden, we then consider whether plaintiffs have produced sufficient admissible evidence to establish the probability of prevailing on the merits on every cause of action asserted. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719, 34 Cal.Rptr.2d 898, 882 P.2d 894; Matson, supra, at p. 548, 46 Cal.Rptr.2d 880; Wilcox, supra, at pp. 823-824, 33 Cal.Rptr.2d 446.) The motion to strike is properly granted if, as a matter of law, the properly pleaded facts do not support a claim for relief. (Wilcox, supra, at pp. 823-824, 33 Cal.Rptr.2d 446.)
The only cause of action against the County which remains at issue is the breach of contract claim--that the EIR is not prepared pursuant to requirements of CEQA and that the fees charged Mission Oaks are unreasonable.
Mission Oaks appeals as to its claims against Envicom and its
principal, Joseph Johns, for misrepresentation of Envicom's abilities
and responsibilities, for breach of contract as a third-party
beneficiary of the County's contract with Envicom and for negligence.
Mission Oaks challenges the judgment on similar claims against
Storrer Environmental Services, its principal, John Storrer, and
against Andrew Mills and John McCarty for negligence and breach
of contract. Mission Oaks also alleges that the consultants engaged
in a conspiracy to commit fraud to prevent it from obtaining an
EIR stating that the project complies with CEQA.
Claim against County
Mission Oaks alleges that the County engaged in a conspiracy to
commit fraud by predetermining that it would reject the project
and thus obtaining an EIR supporting its viewpoint without complying
with CEQA and exorbitantly charging Mission Oaks in the process.
Mission Oaks alleges that in exchange for paying the consultant
costs, the County owed and breached its duty to Mission Oaks to
comply with CEQA in preparing the EIR. Mission Oaks opines that
it is a third- party creditor beneficiary to the contract between
the County and Envicom.
Procedural Bars Suit for Damages Improper
"Any action ... to attack, review, set aside ... a determination,
finding, or decision of a public agency, made as a result of a
proceeding in which by law a hearing is required ... to be taken
and discretion in the determination of facts is vested in a public
agency, on the grounds of noncompliance with the provisions of
this division shall be in accordance with the provisions of Section
1094.5 of the Code of Civil Procedure." (Pub. Resources
Code, § 21168.) Administrative mandamus is the exclusive
means by which to attack compliance with CEQA. (Western States
Petroleum Assn. v. Superior Court (1995) 9 Cal.4th 559, 566-568,
38 Cal.Rptr.2d 139, 888 P.2d 1268; Friends of Mammoth v. Board
of Supervisors (1972) 8 Cal.3d 247, 254- 255, 104 Cal.Rptr. 761,
502 P.2d 1049; Hecton v. People ex rel. Dept. of Transportation
(1976) 58 Cal.App.3d 653, 656, 130 Cal.Rptr. 230.) Mission Oaks
may not sue the County for damages caused by failure to prepare
a proper EIR. (Pub. Resources Code, §§ 21168, 21168.5;
Gov.Code, §§ 818.4, 821.2.)
Furthermore, the action against the County is untimely. Under Public Resources Code section 21167, subdivision (c), a proceeding challenging compliance with CEQA must be commenced within 30 days of the filing of determination in the matter. Actions involving a controversy arising out of the Subdivision Map Act must be filed within 90 days from the date of the administrative decision. (Gov.Code, §§ 66499.37; 66474, subd. (e); Pub. Resources Code, § 21080, subd. (a); Hensler v. City of Glendale (1994) 8 Cal.4th 1, 25-27, 32 Cal.Rptr.2d 244, 876 P.2d 1043.)
Here the board of supervisors voted to deny the project on May
23, 1995. Mission Oaks did not file the instant action until
December 21, 1995. One may not bypass the mandamus remedy by filing
a separate suit for damages. (Hensler v. City of Glendale, supra,
8 Cal.4th at pp. 25-26, 32 Cal.Rptr.2d 244, 876 P.2d 1043.)
County Owes No Duty to Provide EIR Acceptable to Mission Oaks
Mission Oaks alleges that the consultants spent excessive time producing an inaccurate EIR which does not comply with CEQA. It asserts that the County breached the implied term of its contract to charge reasonable fees to have a proper EIR prepared. Indeed, Mission Oaks alleges that the defendants conspired to prevent Mission Oaks from obtaining an EIR which complies with CEQA. Mission Oaks seeks refund of fees it paid to the County to obtain an EIR which it does not find suitable. The allegations state no cognizable claim.
Under the statutorily authorized fee agreement between the County
and Mission Oaks, Mission Oaks agreed that the determination of
the adequacy of the performance of the EIR consultant and the
extent of payment are within the sole discretion of the County.
Mission Oaks is bound by the contract. (Anderson v. Savin Corp.
(1988) 206 Cal.App.3d 356, 363, fn. 1, 254 Cal.Rptr. 627.) Indeed,
the County could not cede determination of adequacy of the contents
and evaluation of its merits to others. Pursuant to CEQA, the
contract between the County and Envicom properly provides that
the final responsibility and final authority as to the quality
and the content of the EIR lies in the sole discretion of the
County. (See Pub. Resources Code, §§ 21000, 21002,
21082; Sundstrom v. County of Mendocino (1988) 202 Cal.App.3d
296, 307, 248 Cal.Rptr. 352.) The fee agreement properly provides
that "Applicant agrees that the adequacy of performance of
Consultant and the extent of payment to Consultant for its work
shall be determined at the sole discretion of County."
Envicom's responsibility to provide an accurate EIR is owed solely
to the County, and not to the developer or to other third parties.
CEQA confers the duty upon the local lead agency to produce an
adequate EIR for dissemination to the public, and the discretion
to evaluate the project for the public. (Pub. Resources Code,
§§ 21061, 21100.) These statutory obligations may not
be the consideration for a contract or promise, nor may the County
bargain away its constitutional duty to regulate development.
(Civ.Code, §§ 1605, 1606; Avco Community Developers,
Inc. v. South Coast Regional Com. (1976) 17 Cal.3d 785, 800, 132
Cal.Rptr. 386, 553 P.2d 546; Delucchi v. County of Santa Cruz
(1986) 179 Cal.App.3d 814, 823, 225 Cal.Rptr. 43; Carty v. City
of Ojai (1978) 77 Cal.App.3d 329, 342, 143 Cal.Rptr. 506.) The
County, as lead agency on the project, owes its duty to the public
to release a proper EIR. (Laurel Heights Improvement Assn. v.
Regents of University of California (1988) 47 Cal.3d 376, 392,
253 Cal.Rptr. 426, 764 P.2d 278.) The County owes no duty to
assuage the desires of the potential developer. The County did
not abuse its discretion under the instant contracts or its duty
under CEQA as to any of the consultant defendants or otherwise.
Mission Oaks opines that the County owes it the duty to comply
with CEQA because it is a third-party creditor beneficiary of
the County's contract with Envicom and the Storrer defendants.
Mission Oaks argues that the County's proper performance under
the contract with the consultants would discharge the County's
legal duty owed to Mission Oaks to provide a proper EIR. (Citing
Martinez v. Socoma Companies, Inc. (1974) 11 Cal.3d 394, 113 Cal.Rptr.
585, 521 P.2d 841; Friends of Mammoth v. Board of Supervisors,
supra, 8 Cal.3d at p. 262, 104 Cal.Rptr. 761, 502 P.2d 1049;
COAC, Inc. v. Kennedy Engineers (1977) 67 Cal.App.3d 916, 136
Cal.Rptr. 890.) For the reasons discussed above, we disagree.
(See also Rest., Contracts, § 313; Guardians Assn. v. Civil
Serv. Comm'n N.Y.C. (1983) 463 U.S. 582, 603 fn. 24, 103 S.Ct.
3221 [77 L.Ed.2d 866, 882, fn. 24].)
One who is not a party to a contract has no right to enforce it unless it is an intended third-party beneficiary of the contract. (Martinez v. Socoma Companies, Inc., supra, 11 Cal.3d at p. 400, 113 Cal.Rptr. 585, 521 P.2d 841.) Whether a putative third party is an intended beneficiary of the contract depends on whether such intent appears from the written terms of the contract. (Garcia v. Truck Ins. Exchange (1984) 36 Cal.3d 426, 436, 204 Cal.Rptr. 435, 682 P.2d 1100; Shutes v. Cheney (1954) 123 Cal.App.2d 256, 262, 266 P.2d 902.)
Paragraph 14 of the County's contract with Envicom expressly provides
that Envicom "understands and agrees that its responsibility
to provide a complete and accurate EIR is owed solely to County
and that its accountability under this Contract shall likewise
be solely to County and not to Applicant or to any other third-person
or entity." (Cf. COAC, Inc. v. Kennedy Engineers, supra,
67 Cal.App.3d 916, 136 Cal.Rptr. 890 [water district, as owner,
owed implied contractual duty to contractor building water treatment
plant project to timely secure EIR and all permits. EIR improperly
delayed to the contractor's damage. No such duty or delict here].)
And, as stated above, Mission Oaks' contract with the County
expressly provided that the adequacy of the consultants' performance
and the extent of payment to Mission Oaks are to be determined
at the sole discretion of the County.
Other claims against Consultants, the Envicom and Storrer Defendants
Negligence, Misrepresentation and Conspiracy to Commit Fraud
Whether or not there is a legal duty to a third party who is not
in privity of contract is a question of law whose determination
is a matter of policy. The determination involves balancing whether
the transaction was intended to affect the plaintiff, the foreseeability
of harm to plaintiff, the degree of certainty that plaintiff suffered
injury as a result of the defendants' conduct, the closeness of
the connection between such conduct and the injury suffered, whether
moral blame should attach to the conduct and the policy of preventing
future harm. (Bily v. Arthur Young & Co. (1992) 3 Cal.4th
370, 397, 11 Cal.Rptr.2d 51, 834 P.2d 745; Biakanja v. Irving
(1958) 49 Cal.2d 647, 650, 320 P.2d 16.) Where the injury is
intangible and economic, the potential right to recovery is much
more limited than is the case with physical harm. (Thing v. La
Chusa (1989) 48 Cal.3d 644, 663-664, 257 Cal.Rptr. 865, 771 P.2d
Here the contract with the consultants to prepare the EIR was not intended to affect Mission Oaks directly; it was intended to provide the County and the public with the information it needed to assess the proposed project pursuant to CEQA. (Laurel Heights Improvement Assn. v. Regents of University of California, supra, 47 Cal.3d at p. 392, 253 Cal.Rptr. 426, 764 P.2d 278; Pub. Resources Code, §§ 21000-21002.) The County must use its independent judgment to consider the impacts of the proposed project on the environment and on the public weal, and not as to the developer, as explicated by CEQA. Although the decision of the County affects the project proponent, the preparation of the EIR may not be prepared with that concern in mind.
There is little degree of certainty and less closeness of connection between the consultants' conduct and the "injury" suffered by Mission Oaks. By statute and contract, it is the County which must independently make the decision whether or not to proceed with the project based partly on the professional opinions garnered by the expert environmental consultants. Although it is foreseeable that the project proponent may suffer economic harm, we may not give much weight to this factor here and we do not predicate our evaluation of the claim in the instant case on foreseeability of potential economic harm to Mission Oaks. (See Bily v. Arthur Young & Co., supra, 3 Cal.4th at pp. 383- 384, 399-400, 11 Cal.Rptr.2d 51, 834 P.2d 745.) The relationship between the consultants and Mission Oaks is "less than a 'close connection,' " as it must be by law. (Id., at p. 401, 11 Cal.Rptr.2d 51, 834 P.2d 745.)
The concept of moral blame and the policy of preventing future
harm do not augur in favor of Mission Oaks here. CEQA is designed
to protect the public. If courts permitted lawsuits against environmental
consultants by project proponents regarding the findings stated
in their reports, the independence of the professional experts
and the objectivity of their specialized findings and conclusions
would be undermined and jeopardized by fear of retaliatory action.
(See generally Forrester v. White (1988) 484 U.S. 219, 226-227,
108 S.Ct. 538 [98 L.Ed.2d 555, 564-565] [regarding the independence
of the judiciary]; Lavit v. Superior Court (1992) 173 Ariz. 96,
99 [839 P.2d 1141].) The consultant defendants may not be held
liable for negligence here.
Mission Oaks alleges that Envicom made false representations in its proposal to the County regarding its expertise; that it would comply with CEQA and that it would compare the project to model projects. Mission Oaks argues Envicom intended to defraud Mission Oaks which justifiably relied on these representations to its detriment. Mission Oaks alleges that the Storrer defendants inadequately prepared the biological portion of the EIR. The allegations as a whole, viewed in conjunction with the documents regarding the proposal incorporated into the complaint and statutory constraints, do not support any cause of action.
The decision to reject the proposal was solely the responsibility of the County which used its independent judgment. According to the allegations of Mission Oaks' complaint, Envicom's proposal did not cause disapproval of its development proposal. Mission Oaks alleged that the County had decided to deny the project proposal in advance of issuing the contracts to the consultants. Mission Oaks alleged that the situation was a predetermined charade. Neither did Mission Oaks allege that Envicom knew with substantial certainty that Mission Oaks would rely on Envicom's proposal, submitted to the County in response to the County's request for proposal. The request for proposal does not state that Mission Oaks had any role in selecting the consultants. In fact, the request states that the County alone would review the proposals and select the consultants who must be independent of the project proponent. There are no allegations that Envicom knew that Mission Oaks would have any involvement in the selection process. For these reasons, Mission Oaks may not sue the consultants for alleged statements made to the County which could not have caused the harm alleged.
Because the allegations do not provide facts showing the possibility
of a conspiracy to commit tortious conduct, the trial court properly
sustained the demurrer on that cause. Nor may Mission Oaks sue
for negligent false promises, as alleged. (Magpali v. Farmers
Group, Inc. (1996) 47 Cal.App.4th 1024, 48 Cal.App.4th 471, 481-482,
55 Cal.Rptr.2d 225.)
Civil Code Section 47
There are additional reasons why Mission Oaks' tort claims may
not be prosecuted. Civil Code section 47 provides an absolute
privilege against tort claims other than malicious prosecution
which applies "to any communication (1) made in judicial
and quasi-judicial proceedings; (2) by litigants or other participants
authorized by law; (3) to achieve the objects of the litigation;
and (4) that have some connection or logical relation to the
action." (Silberg v. Anderson (1990) 50 Cal.3d 205, 212,
266 Cal.Rptr. 638, 786 P.2d 365.) The reason for the privilege
is to ensure that judicial and government decision making bodies
may speak and act freely, without the threat of liability for
their thoughts and actions. (Id., at pp. 215-216, 266 Cal.Rptr.
638, 786 P.2d 365; Stacy & Witbeck, Inc. v. City and County
of San Francisco (1996) 47 Cal.App.4th 1, 6, 54 Cal.Rptr.2d 530.)
Civil Code section 47 applies to the allegations here to bar the
tort claims alleged. Section 47 applies to the preparation and
certification of an EIR. (Rubin v. Green (1993) 4 Cal.4th 1187,
1194, 17 Cal.Rptr.2d 828, 847 P.2d 1044; Dixon v. Superior Court
(1994) 30 Cal.App.4th 733, 743-745, 36 Cal.Rptr.2d 687; Gootee
v. Lightner (1990) 224 Cal.App.3d 587, 593-595, 274 Cal.Rptr.
697; Cayley v. Nunn (1987) 190 Cal.App.3d 300, 303, 235 Cal.Rptr.
385; Pettitt v. Levy (1972) 28 Cal.App.3d 484, 488, 104 Cal.Rptr.
650.) Public Resources Code section 21082.1, subdivision (a)
authorizes a consultant to prepare the EIR. (See also Cal.Code
Regs. tit. 14 (the CEQA guidelines), § 15084, subd. (d)(2).)
The consultants' responses to the request for proposal, the County's
contracts with them and the statements made in the EIR are communications
to achieve the objects of the instant litigation and they are
related to the action. (Silberg v. Anderson, supra, 50 Cal.3d
at pp. 219-220, 266 Cal.Rptr. 638, 786 P.2d 365.) Motives, morals,
ethics and intent are not elements of the privilege. (Id., at
p. 220, 266 Cal.Rptr. 638, 786 P.2d 365.) Section 47 applies
to preparatory documents and situations, such as those regarding
seeking employment for gain, provided the elements of the privilege
are met. (Ibid.; Gootee, supra, at pp. 593-595, 274 Cal.Rptr.
697; Block v. Sacramento Clinical Labs, Inc. (1982) 131 Cal.App.3d
386, 393, fn. 10, 182 Cal.Rptr. 438; Pettitt, supra, at pp. 490-491,
104 Cal.Rptr. 650.) We do not find persuasive the argument that
the matter at issue is merely the conduct of respondents rather
than information supplied for preparation of the EIR. It is the
information in an EIR which local agencies and the public evaluate
to arrive at informed opinions and decisions on the development
proposals, such as the one proffered by Mission Oaks. (Laurel
Heights Improvement Assn. v. Regents of University of California,
supra, 47 Cal.3d at pp. 391-392, 253 Cal.Rptr. 426, 764 P.2d 278.)
Section 425.16 also applies to respondents. Under section 425.16,
the trial court granted respondents' special motion to strike
the complaint and dismiss the action because it is a meritless
suit designed to chill free speech and conduct in connection with
a public issue. (§ 425.16, subds. (b), (e); wilcox v. superior
court, supra, 27 Cal.App.4th at pp. 816, 819-821, 33 Cal.Rptr.2d
Mission Oaks opines that because it sued Envicom for conduct as a paid environmental consultant, SLAPP does not apply. We disagree. Commercial conduct and speech made in connection with an issue of public concern under consideration by a legislative body are subject to SLAPP. (§ 425.16, subds. (b), (e); Guglielmi v. Spelling-Goldberg Productions (1979) 25 Cal.3d 860, 868, 160 Cal.Rptr. 352, 603 P.2d 454; Wilcox v. Superior Court, supra, 27 Cal.App.4th at p. 822, fn. 6, 33 Cal.Rptr.2d 446.) Section 425.16 is to be broadly construed to be applicable to any statement, writing or conduct made in connection with an issue of public concern which is under consideration or review by a legislative body or which is made in preparation for such review. (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1047-1048, 61 Cal.Rptr.2d 58; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 784, 54 Cal.Rptr.2d 830.)
Mission Oaks opines that the instant situation is akin to the one presented in Ericsson GE Mobile Communications, Inc. v. C.S.I. Telecommunications Engineers (1996) 49 Cal.App.4th 1591, 57 Cal.Rptr.2d 491. Ericsson is distinguishable. Ericsson concerned two companies competing for a contract to provide a telecommunications system to the county of Orange. Orange hired a third company, C.S.I., as a consultant to evaluate the two proposals. C.S.I. told Orange that one of the company's proposals, although less expensive, did not comport with technical design specifications. Orange was interested in the less expensive proposal, but the company providing it could not satisfy the county that it could meet the specifications. The contract was let to the other company.
The losing bidder sued C.S.I, claiming it harbored bias in favor of the company awarded the contract which had prior profitable dealings with C.S.I. C.S.I. filed a SLAPP motion but it did not prevail. Ericsson concluded that the situation did not concern a matter of public interest; it simply involved two companies competing for a contract to provide a product in the absence of public participation or concern. (Ericsson GE Mobile Communications, Inc. v. C.S.I. Telecommunications Engineers, supra, 49 Cal.App.4th at p. 1603, 57 Cal.Rptr.2d 491.)
This case differs from Ericsson in that the instant contracts directly concern the preparation of an EIR for required public hearings concerning the potential development of projects. Ericsson merely involved private concerns regarding the sale of a telecommunications system sans public hearings or interests. (See Ericsson GE Mobile Communications, Inc. v. C.S.I. Telecommunications Engineers, supra, 49 Cal.App.4th at p. 1603, 57 Cal.Rptr.2d 491 [emphasizing that it involved purely private concerns].) The instant case involves approval of a tentative map which is a matter of public interest requiring public hearings. (Gov.Code, § 66451.3.) It is immaterial that the consultants were paid to prepare the EIR. (See Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 15, 43 Cal.Rptr.2d 350 [SLAPP applies to private developer using others to oppose competing development project proposals]; Dixon v. Superior Court, supra, 30 Cal.App.4th at pp. 742-744, 36 Cal.Rptr.2d 687.)
Here Mission Oaks is simply a disgruntled developer who does not like the findings prepared by the independent environmental consultants for the County and the public. Mission Oaks seeks to stifle the EIR prepared for the County and the public. SLAPP is designed to preclude such attempts to silence those who speak out on matters of public interest before legislative bodies.
Respondents met their burden to establish a prima facie case showing
that SLAPP applies to the facts alleged, and the burden to establish
the probability of success on the merits of its allegations shifted
to Mission Oaks. (Wilcox v. Superior Court, supra, 27 Cal.App.4th
at pp. 823-825, 33 Cal.Rptr.2d 446.) Mission Oaks does not and
cannot bear its burden to show the probability of success on the
merits of the causes of action it alleged. (Id., at p. 823, 33
Cal.Rptr.2d 446; see generally Dixon v. Superior Court, supra,
30 Cal.App.4th at pp. 744-745, 36 Cal.Rptr.2d 687.) Mission Oaks
seeks to coerce the County and the consultants to change their
views on its development proposal. SLAPP is designed to quickly
put an end to suits such as the instant one. (See generally Dixon,
supra, at pp. 744-746, 36 Cal.Rptr.2d 687.)
County's Cross-Appeal regarding Attorney's Fees under SLAPP
The trial court denied attorney's fees to the County because it is not a "person" even though the County prevailed on the SLAPP motion, as did all the consultant respondents. Section 425.16, subdivision (c) states, in pertinent part, that "[i]n any action subject to subdivision (b), a prevailing defendant ... shall be entitled to recover his or her attorney's fees and costs. If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5."
Section 425.16, subdivision (b) states, in pertinent part, 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 ... in connection with a public issue shall be subject to a special motion to strike...." Section 425.16 applies to conduct as well as speech and petition. We review the construction of statutes independently. (New York Times Co. v. Superior Court (1997) 52 Cal.App.4th 97, 100, 60 Cal.Rptr.2d 410.)
The trial court in the instant case rendered its decision before we decided Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 57 Cal.Rptr.2d 207. In Bradbury, we concluded that public entities are "persons" for the purpose of the SLAPP statute. (Id., at p. 1114, 57 Cal.Rptr.2d 207.) We stated, "The anti-SLAPP suit statute is designed to protect the speech interests of private citizens, the public, and governmental speakers." (Id., at p. 1117, 57 Cal.Rptr.2d 207, italics added.) The value of the speech does not depend on its source. (Id., at p. 1119, 57 Cal.Rptr.2d 207.) Our Constitution protects everyone, even politicians. (Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 946, 52 Cal.Rptr.2d 357.) Government has a legitimate, independent, statutory role to play in the consideration of EIRs and the approval of development proposals. As such, it should be protected in performing its role on matters of public interest, including purported inadequate performance of its role under CEQA. (Bradbury, supra, at p. 1115, 57 Cal.Rptr.2d 207; see generally Dixon v. Superior Court, supra, 30 Cal.App.4th at pp. 741-746, 36 Cal.Rptr.2d 687.)
As section 425.16, subdivision (a) states, it is in the public
interest to encourage continued participation in matters of public
significance, and such participation should not be chilled by
abusing the judicial process. Disgruntled developers should not
be permitted to frivolously tie up the resources of government
agencies and the judiciary by suing for damages over the denial
of their map and permit applications. Administrative mandamus
is the proper remedy to challenge the propriety of government
actions on such matters. (See California Coastal Comm. v. Superior
Court (1989) 210 Cal.App.3d 1488, 1496, 258 Cal.Rptr. 567.) For
reasons discussed, supra, Mission Oaks cannot prevail on the merits
That the demurrers were not sustained on one of the eighth causes of action, the Williamson Act cause, should not preclude an award of attorney's fees and costs. The trial court did not believe it had merit; it simply did not have the agricultural contract before it. Mission Oaks voluntarily dismissed the remaining Williamson Act cause of action. (See generally Adler v. Vaicius (1993) 21 Cal.App.4th 1770, 1776-1777, 27 Cal.Rptr.2d 32; International Industries, Inc. v. Olen (1978) 21 Cal.3d 218, 221, 145 Cal.Rptr. 691, 577 P.2d 1031.)
The judgment is affirmed in all respects except the denial of
attorney's fees and costs to the County which we reverse. The
cause is remanded to the trial court with directions to determine
and award reasonable attorney's fees to the County at trial and
on appeal. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th
628, 659-660, 49 Cal.Rptr.2d 620; Bradbury v. Superior Court,
supra, 49 Cal.App.4th at p. 1119, 57 Cal.Rptr.2d 207; Dove Audio,
Inc. v. Rosenfeld, Meyer & Susman, supra, 47 Cal.App.4th at
p. 785, 54 Cal.Rptr.2d 830.) Costs to respondents.
GILBERT and YEGAN, JJ., concur.