Kensington, an unincorporated community north of Berkeley, maintains its own police department through the Kensington Police Protection and Community Services District, which is governed by a Board of Directors.  The Board, consisting of five members, sets the salary for the combined position of General Manager/Chief of Police, currently held by Greg Harman.  Harman's prior contract expired on June 30, 2012. 

The notice of agenda posted in advance of the July 12, 2012, Board meeting stated that Harman's salary compensation package for the July 1, 2012 – June 30, 2014 contract period would be discussed and possibly acted upon.  At the July 12 meeting, the Board began discussing Harman's salary compensation package at approximately 7:45 p.m.  According to the Board's Policy and Procedures Manual, meetings should be adjourned at 10:00 p.m. unless extended by a four-fifths vote. At approximately 9:45 p.m., the Board voted on whether to extend the meeting, resulting in a three-to-two vote in favor of extension.  The meeting continued.  At 10:00 p.m., all five Board members voted in favor of extending the meeting without a time limitation.  At the conclusion of the meeting, three of the five Board members voted in favor of offering Harman an increased base salary of $148,441 for the new contract period, as well as a $16,754 retention and merit bonus.    

Later that year, eight individuals filed a petition for writ of mandate, alleging that the Board had failed to give proper advance notice of the business items to be discussed at the July 12 meeting.  They also alleged that the Board impermissibly extended the meeting after failing to secure the four votes required to extend the meeting past 10:00 p.m.  These petitioners sought an order directing the Board to vacate its vote to increase Harman's compensation package, as well as an order to enjoin the merit bonus payment and a declaration that the vote to increase Harman's salary was unlawful.  The Board and the three Board members named in the petition filed a special motion to strike the amended petition, also called an anti-SLAPP motion.  The court denied the motion, and the Board and individual members appealed.  The Court of Appeal reversed and remanded. 

Pursuant to the anti-SLAPP statute (Code of Civil Procedure section 425.16), a claim brought against a person arising from any act of that person in furtherance of his or her right of petition or free speech in connection with a public issue is subject to a special motion to strike unless the court determines that the claimant establishes a probability he will prevail on his claim.  The goal of the anti-SLAPP statute is to eliminate meritless or retaliatory litigation at the early stage of the proceedings.  To determine whether a lawsuit is subject to the special motion to strike, the court evaluates whether the challenged claim arose from protected activity and whether the plaintiff has a reasonable probability of prevailing on the merits.         

Before the Court engaged in this analysis, it first determined whether the petitioners' lawsuit fell within Code of Civil Procedure section 425.17, the public interest exception.  If it did, the trial court could deny the anti-SLAPP motion without performing the two-step analysis described above.  Section 425.17 provides that the anti-SLAPP statute does not apply (and thus a claim is not subject to an anti-SLAPP motion), if all of the following factors are met: (1) the plaintiff does not seek any relief greater than or different from the relief sought for the general public; (2) the action, if successful, would enforce an important right affecting the public interest, and would confer a significant benefit, whether pecuniary or nonpecuniary, or the general public or a large class of persons; and (3) private enforcement is necessary and places a disproportionate financial burden of the plaintiff in relation to the plaintiff's stake in the matter. 

In this case, the Court of Appeal held that Section 425.17 did not apply because the petitioners' claims did not operate to enforce an important right affecting the public interest. While the petitioners argued that they were enforcing the open meetings act, the Brown Act, this statute had no application in this case because the Board was not required to post meeting agendas 72 hours in advance of regular meetings for the 2012-2013 budget year.  Further, the third factor was not met because private enforcement was not necessary as to the three individually named Board members.  If the petitioners sought to challenge the validity of Harman's compensation package, they could have sued the District alone.  The fact that they chose to sue individuals indicates a motive to intrude upon the First Amendment rights of the individual Board members.  Therefore, the public interest exception did not apply, and the Court was required to conduct the standard anti-SLAPP analysis. 

The Court looked to the gravamen of the petitioners' complaint to determine whether the claim was triggered by protected activity.  The petitioners essentially claimed that the three Board members had violated Board policy by voting in a manner inconsistent with Board policy to extend the July 12 meeting, and by discussing and voting on a matter (the retention bonus) that was not properly noticed.  They were not sued because they voted, but because of how they voted and expressed themselves at the Board meeting.  Therefore, they engaged in protected conduct.  However, the Court limited its holding to the individual Board members.  The Board itself, as a public agency, does not necessarily engage in protected activity by making or issuing decisions. 

The Court then held that the petitioners had not shown a probability of prevailing on their claims.  While the petition alleged that the Board violated its Manual by continuing the meeting after 10:00 p.m. on only a three-two vote in favor of doing so, the petition failed to mention that the Board unanimously voted at 10:00 p.m. to extend the meeting.  The petition also alleged that the Board failed to notice the substance of the July 12 meeting properly because the agenda did not mention that the Board would consider awarding Harman a retroactive pay increase for his prior contract.  However, this "retroactive" payment was in fact an element of his salary compensation package for his new contract, which the agenda satisfactorily identified.  Thus, the petitioners had failed to show a probability of prevailing on their claims, and the trial court should have granted the anti-SLAPP motion.  While the holding technically only applied to the individually-named Board members and not the Board itself, the Court noted that the "viability of the instant suit is questionable at best."   

Schwarzburd v. Kensington Police Protection & Community Services District Board (2014) 225 Cal.App.4th 1345.