In 2007, while Robert Urteaga was running for city council for the City of Montebello, he approached Athens Services (Athens), a waste collection and recycling service that had an exclusive contract to provide residential waste hauling services in Montebello.  Urteaga suggested that Athens submit a proposal to the city council to become the exclusive commercial and industrial waste hauling service in Montebello.  Athens later contributed to Urteaga's campaign, and he was elected to the city council. 

In 2008, Richard Torres, the City Administrator, worked with Athens to negotiate the terms of Athens' contract to provide residential and commercial/industrial waste hauling.  In exchange for becoming the exclusive commercial and industrial waste hauling service in Montebello, Athens agreed to make a one-time $500,000 cash payment to the City. 

The City held two public hearings regarding Athens' proposal to become the exclusive provider of commercial and industrial waste hauling services.  Though numerous people spoke out against the proposal, the city council approved the contract, with Urteaga, Rosemarie Vasquez, and Kathy Salazar voting in favor of the contract, and the mayor and another city council member voting against it.  The contract required the mayor's signature to become effective.  The mayor refused to sign the contract for over six weeks.  Vasquez signed the contract as Montebello's mayor pro tem.

When Vasquez ran for reelection in 2009, Athens contributed $45,000 to her campaign.  She was not reelected.  Athens also contributed $37,000 to efforts to defeat the mayor's reelection campaign.  The mayor was reelected.  When voters qualified a special election to recall Urteaga and Salazar, Athens sponsored a "Say No to Recall" campaign and contributed nearly $354,000.  Urteaga and Salazar were ultimately recalled. 

The City filed suit against Salazar, Urteaga, Vasquez, and Torres (Defendants) alleging they had violated Government Code section 1090 which prohibits city officers from being "financially interested in any contract made by them in their official capacity, or by any body or board of which they are members."  The City alleged that Defendants voted to approve Athens' contract with the expectation that Athens would financially support their financial campaigns.

Defendants filed an anti-SLAPP motion to strike the City's complaint.  The court denied the anti-SLAPP motion, and Defendants appealed.  The Court of Appeal affirmed.

An anti-SLAPP motion seeks to dismiss unmeritorious claims that are contained in a lawsuit and which are brought to thwart constitutionally protected speech or petitioning activity.  In analyzing an anti-SLAPP motion, the court must determine (1) whether defendants have shown that the challenged cause of action arises from protected activity, and (2) whether the plaintiff has demonstrated a probability of prevailing on the claim.  Some lawsuits are exempt from the anti-SLAPP statute.  For example, a defendant may not strike an enforcement action brought in the name of the people of the State of California by the Attorney General, district attorney, or city attorney, acting as a public prosecutor. 

The City argued that its lawsuit was exempt from the anti-SLAPP statute because it was bringing a public enforcement action.  The Court of Appeal disagreed, holding that the public enforcement exemption only applies to actions brought in the name of the people of the State of California, not to all civil actions brought by state and local agencies to enforce laws aimed at public protection.  The City's lawsuit was brought to protect Montebello and its citizens, not the people of the State of California.  Thus, the public enforcement exemption did not apply and the Court had to conduct the standard anti-SLAPP analysis.

Defendants argued that their public statements and votes, and Torres' negotiations of the Athens contract, constituted protected activity.  The Court disagreed, noting that a legislator's vote and acts of governance mandated by law, without more, are not acts of free speech or petition.  The city council members' acts of voting demonstrated a commitment of their legislative power to approval of a contract; it did not convey any symbolic message or implicate any personal free speech rights.  Torres' act of negotiating a contract was part of his job as City Administrator.  It was not an exercise of free speech or the right to petition. 

Because Defendants did not engage in protected activity, the Court did not have to determine whether the City demonstrated a probability of prevailing on the merits.  The Court of Appeal thus affirmed the trial court's denial of Defendants' anti-SLAPP motion, and allowed the City's lawsuit to go forward.

Note: 

In our June 2014 Client Update, we reported on the case of Schwarzburd v. Kensington Police Protection & Community Services District Board (2014) 225 Cal.App.4th 1345, another anti-SLAPP case, in which the Court of Appeal held that Board members engaged in protected activity when they voted at a meeting.  Here, on the other hand, the Court of Appeal held that the Board members did not engage in protected activity when they voted.  These cases came out of different Court of Appeal districts and appear to conflict.  However, a closer analysis of the Board members' action may allow for a consistent view.  In this case, the Court stated that a legislator's vote, without more, is mandated by law and is not an act of free speech.   In Schwarzburd, the Court noted that the Board members were not sued because they voted, but because of how they voted and expressed themselves at the Board meeting.  Therefore, while the act of voting may not be a protected activity, making statements in conjunction with a vote and/or voting for a certain position may be protected activities. 

City of Montebello v. Vasquez (2014) 226 Cal.App.4th 1084.