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Chalk one up for US !!!!

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  • suesarkis@aol.com
    Folks, in carefully reviewing this case, I find some wonderful verbiage for our use. Of course you would want to consider consulting an attorney should a
    Message 1 of 3 , Sep 28, 2009
      Folks, in carefully reviewing this case, I find some wonderful verbiage
      for our use. Of course you would want to consider consulting an attorney
      should a fine line ever be drawn, but I do find that this might be useful in
      the future should the need ever arise. Even if you are not from CA, as the
      current leading case, it still can be quite useful. The cases relied
      upon, for the most part, are federal cites.


      _http://www.courtinfo.ca.gov/opinions/documents/H031019.PDF_
      (http://www.courtinfo.ca.gov/opinions/documents/H031019.PDF)

      Filed 9/21/09
      CERITIFIED FOR PUBLICATION
      IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
      SIXTH APPELLATE DISTRICT
      BRUCE TICHININ et al.,
      Plaintiffs and Appellants,
      v.
      CITY OF MORGAN HILL,
      Defendant and Respondent.
      H031019
      (Santa Clara County
      Super. Ct. No. CV046112)



      I. STATEMENT OF THE CASE
      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.1 (Bradbury v. Superior Court (1996)
      1 “SLAPP is an acronym for strategic lawsuit against public participation.”
      (Balzaga v. Fox News Network, LLC (2009) 173 Cal.App.4th 1325, 1329, fn.
      3.)
      Code of Civil Procedure section 425.16 is called the anti-SLAPP statute
      and allows a defendant to gain early dismissal of SLAPP actions designed
      primarily to chill the exercise of First Amendment rights. (Siam v. Kizilbash
      (2005) 130 Cal.App.4th 1563, 1568; Simmons v. Allstate Ins. Co. (2001) 92
      Cal.App.4th 1068, 1069-1070.) In pertinent part, the statute provides, “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
      2
      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.
      II. BACKGROUND
      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
      States or California Constitution in connection with a public issue shall
      be subject to a special motion to strike . . . .” (Code of Civ. Proc., §
      425.16, subd. (b)(1), italics added.)
      Acts “ „in furtherance of‟ ” these rights include “(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 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; (3) any written or oral
      statement or writing made in a place open to the public or a public forum in
      connection with an issue of public interest; (4) or any other conduct in
      furtherance of the exercise of the constitutional right of petition or the
      constitutional right of free speech in connection with a public issue or an issue
      of public interest.” (Code of Civ. Proc. §425.16, subd. (e).)
      All further unspecified statutory references are to the Code of Civil
      Procedure.
      3
      rejected, and the City approved the application. Thereafter, Tichinin
      filed an action against Paulus and the City challenging the approval.2
      Tichinin also represented Howard Vierra, a residential developer, seeking
      approval for a proposed residential project at the base of El Toro Peak.3
      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 m
      embers 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
      2 In that action, Paulus prevailed and then sued Bob Lynch Ford for
      malicious prosecution. Bob Lynch Ford filed an anti-SLAPP motion to dismiss Paulus
      ‟s action, which the trial court granted and which later became the
      subject this court‟s opinion in Paulus v. Bob Lynch Ford, Inc. (2006) 139
      Cal.App.4th 659 (Paulus).)
      3 In exchange for his services, Vierra offered,and Tichinin, accepted an
      interest in the project.
      4
      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
      5
      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.
      6
      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.
      7
      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.
      III. STANDARD OF REVIEW
      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.4 (Integrated Healthcare Holdings, Inc. v.
      Fitzgibbons (2006) 140 Cal.App.4th 515, 522.)
      4 Section 425.16 provides, in relevant part, “(b)(1) 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. [¶] (2) In making its determination, the court shall consider the
      pleadings, and supporting and opposing affidavits stating the facts upon
      which the liability or defense is based. [¶] . . . [¶] (e) 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 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; (3) any written or oral statement or writing made in a place
      open to the public or a public forum in connection with an issue of public
      interest; (4) or any other conduct in furtherance of the exercise of the
      constitutional right of petition or the constitutional right of free speech in
      connection with a public issue or an issue of public interest.”
      8
      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.)
      9
      IV. DISCUSSION
      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
      nonsuit, directed
      10
      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.”5 (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
      5 Section 1983 of 42 United States Code provides, in pertinent part: “
      Every person who, under color of any statute, ordinance, regulation, custom, or
      usage, of any State . . . subjects, or causes to be subjected, any . . .
      person . . . to the deprivation of any rights, privileges, or immunities
      secured by the Constitution and laws, shall be liable to the party injured in
      an action at law, suit in equity, or other proper proceeding for redress . .
      . .”
      11
      (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.)
      1. Color of State Law
      “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 with the authority
      of state law and exercised power that they possess by virtue of state law.
      2. Deprivation of Rights
      We focus now on whether Tichinin made a prima facie showing that (1) he
      was engaged in constitutionally protected conduct, (2) the City‟s actions
      would deter or chill a person of ordinary firmness from engaging in that
      protected conduct, and (3) the City‟s actions were motivated, at least in part,
      by Tichinin‟s protected conduct.
      12
      a. Constitutionally Protected Conduct
      In his complaint, Tichinin alleged that hiring a private investigator and
      investigating the rumored inappropriate relationship between Tewes and
      Leichter were protected under his First amendment rights of petition and free
      speech.6
      i. The Right of Petition
      In determining whether Tichinin can show that his conduct was protected
      under the right to petition, we find guidance in cases that discuss that
      right in the context of determining the applicability of the Noerr-Pennington
      doctrine.7 (See Pratt v. Union Pacific R. Co. (2008) 168 Cal.App.4th 165,
      178 [guidance from federal cases].)
      6 The First Amendment to the United States Constitution provides in part: “
      Congress shall make no law . . . prohibiting the free exercise thereof; or
      abridging the freedom of speech, or of the press; or the right of the
      people . . . to petition the Government for a redress of grievances.”
      Tichinin‟s complaint asserts separate causes of action for violating the
      right to petition and the right of free speech. Although each cause of
      action alleges numerous protected acts, both include the hiring of an
      investigator and his investigation as protected conduct.
      We further note that concerning whether Tichinin engaged in protected
      conduct, the primary focus of the anti-SLAPP motion—i.e., the pleadings,
      hearing, and the court‟s ruling—was the hiring of the investigator. On appeal,
      that conduct continues to be the parties‟ primary focus. Accordingly, we too
      focus on whether Tichinin‟s investigation of Tewes‟s alleged relationship
      was protected conduct.
      7 In Eastern R. Conf. v. Noerr Motors (1961) 365 U.S. 127 (Noerr),
      trucking companies sued railroad companies claiming their efforts to influence
      legislation regulating trucking violated the Sherman Act. (Id. at p. 129.) The
      court held that the Sherman Act did not bar people from associating to
      persuade the government to take particular action. (Id. at pp. 136-137.) In
      reaching this conclusion, the Court opined that construing the Sherman Act to
      reach such conduct “would raise important constitutional questions”
      concerning the right of petition and then stated, “we cannot . . . lightly impute
      to Congress an intent to invade . . . freedoms” protected by the Bill of
      Rights. (Id. at p. 138.)
      In United Mine Mine Workers v. Pennington (1965) 381 U.S. 657
      (Pennington), the court extended this antitrust immunity to those engaging in lobbying
      activities directed toward executive branch officials, regardless of any
      anticompetitive intent or purpose.
      13
      The Noerr-Pennington doctrine is a broad rule of statutory construction,
      under which laws are construed so as to avoid burdening the constitutional
      right to petition. (Sosa v. DIRECTV, Inc. (9th Cir. 2006) 437 F.3d 923,
      929-931 (Sosa) [discussing the development and expansion of the doctrine].) In
      effect, the doctrine immunizes conduct encompassed by the Petition Clause—
      i.e., legitimate efforts to influence a branch of government—from virtually
      all forms of civil liability. (See People ex rel. Gallegos v. Pacific
      Lumber Co. (2008) 158 Cal.App.4th 950, 964-965 [discussing the doctrine and its
      expansive application].) Thus, Noerr-Pennington cases are pertinent because
      in deciding whether the doctrine applies, a court must first determine
      whether conduct falls within the right to petition. (See, e.g., Ludwig v.
      Superior Court (1995) 37 Cal.App.4th 8, 21-22 & fn. 17 [using the doctrine to
      determine whether SLAPP plaintiff established probability of success];
      Tarpley v. Keistler (7th Cir. 1999) 188 F.3d 788, 794-95 [using the doctrine to
      determine whether conduct was subject to liability under section 1983].)
      In Freeman v. Lasky, Haas & Cohler (9th Cir. 2005) 410 F.3d 1180
      (Freeman), the issue was whether discovery conduct by a party in a civil action was
      protected by the right to petition and subject to the Noerr-Pennington
      doctrine. The court explained in the context of litigation, the right tof
      petition covers pleadings in which a party requests some action by the court.
      (Id. at p. 1184.) The court opined that because discovery involved
      communications between parties, it could not fairly be called petitioning the
      government.
      Many of the Noerr-Pennington cases are decisions from lower federal
      appellate and district courts. “While we are not bound by decisions of the lower
      federal courts, even on federal questions, they are persuasive and entitled
      to great weight.” (Etcheverry v. Tri-Ag Service, Inc. (2000) 22 Cal.4th
      316, 320; accord, Barrett v. Rosenthal (2006) 40 Cal.4th 33, 58.) This can be
      especially so when they bear a marked factual similarity to the case before
      us. (Wells Fargo Bank, N.A. v. Superior Court (2008) 159 Cal.App.4th 381,
      390.)
      14
      Nevertheless, the court observed that the protection for petitions
      extended to conduct “ „incidental to‟ ” a petition, unless the petition itself
      was a sham. (Id. at p. 1184.)8
      As an example of protected incidental conduct, the court cited Columbia
      Pictures Industries, Inc. v. Professional Real Estate Investors, Inc. (9th
      Cir. 1991) 944 F.2d 1525 (Columbia Pictures I), where the court held that the
      plaintiff‟s refusal to settle the case was protected because the decision
      to accept or reject a settlement offer is “incidental” to the prosecution
      of a lawsuit “and not a separate and distinct activity which might form the
      basis for antitrust liability.” (Freeman, supra, 410 F.3d at p. 1184.) The
      Freeman court found that discovery between parties, like settlement talks,
      was incidental to litigation and not a separate and distinct activity.
      Therefore, the defendant‟s conduct during discovery, even if improper and
      sanctionable, was constitutionally protected unless the defendant‟s entire
      defense to the lawsuit was a sham. (Id. at p. 1185.)
      Here, Tichinin‟s conduct in hiring an investigator, like discovery or
      settlement talks, cannot fairly be called petitioning the government. Moreover,
      the investigation was not incidental to an actual petition or any existing
      or ongoing litigation. Rather, given the lack of evidence of an
      inappropriate relationship, Tichinin did not petition the Council for Leichter‟s
      removal or file a lawsuit against the City. These circumstances, however, do
      not preclude constitutional protection.
      Pertinent here is Sosa, supra, 437 F.3d 923. There, the court explained
      conduct incidental to a petition or litigation included conduct normally and
      reasonably necessary
      8 A sham petition is one that is “ostensibly directed toward influencing
      governmental action” but that “is a mere sham to cover . . . an attempt to
      interfere directly with the business relationships of a competitor . . . .”
      (Noerr, supra, 365 U.S. at p. 144.)
      There are two elements to a sham petition. One element is objective: a
      petition (or litigation) must be baseless, in that no reasonable person could
      expect to succeed on the merits; the second element is subjective, in that
      the petition was subjectively motivated by a concealed wrongful purpose to
      use the judicial process itself to harm the other party. (BE & K
      Construction Co. v. National Labor Relations Board (2002) 536 U.S. 516, 526.)
      15
      to an effective exercise of the right to petition and not necessarily
      conduct incidental to actual litigation. In Sosa, DIRECTV sent thousands of
      letters to people threatening to sue them for pirating its satellite
      television signal unless they quickly settled its claims against them. Numerous
      people settled, and DIRECTV did not file actions against them. However, the
      settlers turned around and filed a class action against DIRECTV, claiming that
      the demand letters violated the anti-racketeering laws. The question
      before the court was whether DIRECTV‟s demand letters were protected conduct.
      (Id. at pp. 925-926, 933.)
      The court noted that the protection of First Amendment rights encompassed
      a “breathing space” necessary for the effective exercise of those rights.
      (Sosa, supra, 437 F.3d at pp. 932-933.) The concept of a protected “
      breathing space” had two aspects: overprotection and collateral protection. For
      example, in defamation actions against public officials, constitutional
      considerations require that a false statement be uttered with malice. Thus,
      although false statements may not seem worthy of constitutional protection, the
      malice requirement provides protection for some false statements. This
      purposefully overbroad protection “is necessary „to assure to the freedoms of
      speech and press that “breathing space” essential to their fruitful
      exercise.‟ [Citation.]” (Id. a p. 933, quoting Gertz v. Robert Welch, Inc.
      (1974) 418 U.S. 323, 342.)
      Similarly, in the right-to-petition context, the sham exception requires
      proof that a petition (or court pleading) is objectively baseless and
      motivated by an improper anticompetitive purpose. (See fn. 8, ante.) Thus, just
      as the malice requirement in certain defamation actions protects some false
      statements to ensure that the right of free speech remains robust and
      unfettered, so too the improper-motive requirement of the sham exception
      protects some baseless petitions in order to ensure that citizens may enjoy the
      right to petition the government through access to the courts without fear of
      prosecution or liability. (Sosa, supra, 437 F.3d at p. 934, citing
      Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc.
      (1993) 508 U.S. 49, 60-61.)
      16
      The second aspect of “breathing space”—collateral protection—extends
      protection beyond the conduct specified in the First Amendment itself. Thus,
      the right of free speech encompasses not only expressive speech and symbolic
      conduct but also non-expressive conduct closely related to the full
      exercise of First Amendment rights, such as contributing money to a political
      campaign. (Sosa, supra, 437 F.3d at pp. 933-934, citing Buckley v. Valeo
      (1976) 424 U.S. 1, 17 & United States v. O’Brien (1968) 391 U.S. 367, 382.) In
      the context of the right to petition, collateral protection has been
      extended to a railroad‟s public relations campaign aimed at influencing passage of
      favorable legislation (Noerr, supra, 365 U.S. at pp. 140-143); recommending
      or hiring specific lawyers to represent or advise union members (United
      Mine Workers of America v. Illinois State Bar Ass’n (1967) 389 U.S. 217,
      221-222; Bhd. of R.R. Trainmen v. Virginia ex rel. Va. State Bar (1964) 377
      U.S. 1, 8); and, as discussed above, discovery conduct, and the refusal to
      accept a settlement offer. (Sosa, supra, 437 F.3d at pp. 934-935.)
      Given this concept of a protected “breathing space,” the Sosa court
      concluded that prelitigation conduct, including communications between parties,
      that is “sufficiently related” to what would be normal and legitimate
      petitioning activity was entitled to constitutional protection. The court then
      found that DIRECTV‟s demand letters were reasonably related to potential
      litigation and thus within protected “breathing space” unless they
      constituted a sham. (Sosa, supra, 437 F.3d at p. 935.)
      The court noted that a majority of federal appellate courts had likewise
      concluded that prelitigation conduct reasonably related to potential
      litigation was entitled to protection. (Sosa, supra, 437 F.3d at p. 938; e.g.,
      Globetrotter Software, Inc. v. Elan Computer Group, Inc. (Fed.Cir. 2004) 362
      F.3d 1367, 1379 [communications alleging patent infringement]; Coastal
      States Mktg., Inc. v. Hunt (5th Cir. 1983) 694 F.2d 1358, 1367 [generalized
      threats of litigation to protect claim to oil assets]; McGuire Oil Co. v. Mapco,
      Inc. (11th Cir. 1992) 958 F.2d 1552, 1560 [concerted threats of
      litigation]; A.D. Bedell Wholesale Co. v. Philip Morris Inc. (3d Cir. 2001) 263 F.3d
      239, 252-253
      17
      [settlement agreements]; Primetime 24 Joint Venture v. Nat’l Broad. Co.
      (2d Cir. 2000) 219 F.3d 92, 100 [pre-suit challenges to signal strength
      determinations by satellite broadcasters]; Glass Equip. Dev., Inc. v. Besten,
      Inc. (Fed.Cir. 1999) 174 F.3d 1337, 1343-1344 [threat of patent enforcement
      litigation]; CVD, Inc. v. Raytheon Co. (1st Cir. 1985) 769 F.2d 842, 850-851
      [threat of trade-secret litigation]; Poole v. County of Otero (10th Cir.
      2001) 271 F.3d 955, abrogated on other grounds in Hartman v. Moore (2006) 547
      U.S. 250, 256, 265-266 [protecting letter requesting the preservation of
      evidence in anticipation of a possible lawsuit]; see Meridian Project
      Systems, Inc. v. Hardin Constr. Co., LLC (E.D.Cal.2005) 404 F.Supp.2d 1214, 1222
      [recognizing that most courts have concluded that prelitigation
      communications among parties are incidental to the suit and thus immune under
      Noerr-Pennington].)9
      The plaintiffs in Sosa argued that DIRECTV‟s demand letters did not
      implicate the right to petition because they were not incidental to any existing
      or ongoing litigation. In rejecting this argument, the court noted, for
      example, that the Supreme Court had protected non-petitioning conduct that
      took place in the absence of some related pending litigation. (Sosa, supra,
      437 F.3d at pp. 935-936, citing United Mine Workers of America v. Illinois
      State Bar Ass’n, supra, 389 U.S. at p. 222.) Indeed, the court noted that
      protection had been extended to the funding of litigation by people who were
      not parties to any litigation and thus were not themselves petitioning the
      government for anything.
      9 The Sosa court acknowledged Cardtoons, L.C. v. Major League Baseball
      Players Ass’n (10th Cir. 2000) 208 F.3d 885, where the court held that neither
      the Noerr-Pennington doctrine nor the Petition Clause protected pre-suit
      cease-and-desist letters asserting trademark infringement. (Sosa, supra, 437
      F.3d at p. 937.) However, the Sosa court observed that Cardtoons was
      inconsistent with the weight of authority protecting legitimate pre-suit
      litigation-related conduct. Indeed, the original panel in Cardtoons had come to
      that conclusion. (Cardtoons, L.C. v. Major League Baseball Players Ass’n (10th
      Cir. 1999) 182 F.3d 1132, 1137, reversed in Cardtoons, L.C. v. Major
      League Baseball Players Ass’n, supra, 208 F.3d 885 (en banc).) The Sosa court
      also doubted that Cardtoons survived subsequent Supreme Court decisions
      extending applicability of the Noerr-Pennington doctrine. (Sosa, supra, 437 F.3d
      at p. 938.)
      18
      (Sosa, supra, 437 F.3d at p. 937; Liberty Lake Investments, Inc. v.
      Magnuson (9th Cir. 1993) 12 F.3d 155, 157-159; Balt. Scrap Corp. v. David J.
      Joseph Co. (4th Cir. 2001) 237 F.3d 394, 397-399.) The court also opined that
      the sham exception provided adequate protection against baseless and
      harassing prelitigation conduct.
      We find Sosa and the cases it cites persuasive authority for the
      proposition that non-petitioning conduct is within the protected “breathing space”
      of the right of petition if that conduct is (1) incidental or reasonably
      related to an actual petition or actual litigation or to a claim that could
      ripen into a petition or litigation and (2) the petition, litigation, or
      claim is not a sham.
      In this case, the challenged prelitigation conduct involves the
      investigation a possible conflict of interest due to an alleged inappropriate
      romantic relationship between public officials. Thus, initially we must determine
      whether the prelitigation investigation of a potential claim of conflict of
      interest between public officials can come within the protected “breathing
      space” of the right to petition. We conclude that it can.
      When one suspects that another has caused harm, a preliminary
      investigation is usually necessary in order to know whether one has a potential legal
      claim, evaluate the likelihood of success, and decide whether or not to
      assert it. Consequently, the investigation of a potential claim is normally and
      reasonably part of effective litigation, if not an essential part of it.
      Indeed, as Tichinin correctly notes, an attorney has a duty to investigate
      the facts underlying a client‟s claims and can be sanctioned for failing to
      do so. (See Code of Civ. Proc., § 128.7; Fed. Rules Civ. Proc., rule 11;
      Strickland v. Washington (1984) 466 U.S. 668, 690-691 [criminal defense
      attorneys have constitutional obligation to perform adequate investigation]; In
      re Visciotti (1996) 14 Cal.4th 325, 348 [same]; Bakker v. Grutman (4th Cir.
      1991) 942 F.2d 236, 239-242 [in civil cases, counsel has duty to
      investigate case]; Tool Research & Engineering Corp. v. Henigson (1975) 46 Cal.App.3d
      675, 683-684 [duty to investigate], disapproved on other grounds in
      Sheldon Appel Co. v. Albert & Oliker (1989) 47 Cal.3d 863, 8883, fn, 9;
      19
      Norton v. Hines (1975) 49 Cal.App.3d 917, 923 [same]; e.g., Kraemer v.
      Grant County (7th Cir. 1990) 892 F.2d 686, 689-690 [hiring private
      investigator satisfied counsel‟s duty to investigate claim before filing complaint].)
      In our view, moreover, the prelitigation investigation of a potential claim
      is no less incidental or related to possible litigation than prelitigation
      demand letters and threats to sue, which are entitled to protection. In
      fact, such letters and threats are themselves likely to be the result of a
      prelitigation investigation.
      Given the close functional relationship between the preliminary
      investigation of a potential claim and the subsequent assertion of that claim, we
      consider it obvious that restricting, enjoining, or penalizing prelitigation
      investigation could substantially interfere with and thus burden the
      effective exercise of one‟s right to petition. Indeed, we can think of few better
      ways to burden that right than to make it difficult and perhaps legally
      risky for people to investigate and find evidence to support potential claims.
      For this reason, we consider it as proper and appropriate to protect
      prelitigation investigation as it is to protect prelitigation letters that
      demand settlement or threaten legal action discovery, and postlitigation
      settlement talks.
      We find support for our analysis in a number of cases. In Coastal States
      Mktg., Inc. v. Hunt, supra, 694 F.2d 1358, the court generally opined that “
      it would be absurd to hold that [Noerr-Pennington] does not protect those
      acts reasonably and normally attendant upon effective litigation.” (Id. at
      p. 1367.) As noted, prelitigation investigation is a typical feature of
      effective litigation.
      In Poole v. County of Otero, supra, 271 F.3d 955 (abrogated on other
      grounds in Hartman v. Moore, supra, 547 U.S. 250,256), Poole was injured in a
      motorcycle accident that occurred while the police were chasing him. After
      investigating the scene and talking to witnesses, the police cited him for
      careless driving. Later, his attorney wrote a letter asking authorities to
      preserve evidence of the accident. At that time, Poole had not filed a claim,
      and the letter did not state that he was considering doing so. In response,
      20
      officials withdrew the citation and formally charged Poole with six counts
      of reckless driving and evading arrest. Poole filed a 1983 action,
      alleging, among other things, wrongful retaliation against him for requesting the
      preservation of evidence. (Id. at pp. 958, 960.) On these facts, the court
      concluded that counsel‟s letter was protected activity even in the absence
      of pending litigation because “[t]he right of access to courts applies to
      activities leading up to the formal filing of a complaint.” (Id. at p. 961.)
      Thus, in protecting the letter, which sought only to preserve evidence so
      that it could be analyzed and evaluated in connection with possible
      litigation, Poole strongly implies that such an analysis and related investigation
      would also enjoy such constitutional protection.
      In King v. Township of East Lampeter (E.D. Pa. 1998) 17 F.Supp.2d 394, the
      defendant took photographs of the plaintiffs‟ property which he later used
      to support his testimony against the plaintiffs about the condition of the
      property. Later, the plaintiffs sued the defendant for conspiracy, claiming
      that the defendant had taken the pictures and later testified for
      malevolent reasons. (Id. at pp. 400-402, 412.) In finding that the defendant‟s
      conduct was constitutionally protected, the court first explained that the
      defendant‟s motivation was irrelevant because his testimony related to
      litigation designed to ensure compliance with local zoning ordinances, and, there
      was no evidence that the enforcement effort was a sham intended only to
      harass the plaintiffs. The court specifically found that taking the photographs
      was also protected because it related directly to and supported the
      defendant‟s testimony, and there was no claim or evidence that taking them had
      wrongfully invaded the plaintiffs‟ privacy. (Id. at pp. 412-413.) Thus, the
      photographic investigation of the plaintiffs‟ property was within the “
      breathing space” of the right to petition because it was incidental and related
      to the defendant‟s future and non-sham litigation. (See also American
      Steel Erectors, Inc. v. Local Union No. 7, Intern. Ass’n of Bridge, Structural,
      Ornamental & Reinforcing Iron Workers (D.Mass., Feb. 6, 2006, No. Civ.A.
      04-12536RGS) [unreported] 2006 WL 300422 at *4, fn. 6 [videotaping non-union
      work sites to gather evidence for possible complaints to
      21
      state and federal authorities “would seem to be activity protected by the
      First Amendment”].)10
      In short, we have no difficulty concluding that prelitigation
      investigation to support a potential claim is sufficiently related to the right to
      petition as to fall within the protected “breathing space” of that right.
      However, whether it does in a particular case further depends on whether the
      potential claim being investigated was legitimate or a sham.11
      Turning to the facts in this case, we reiterate that on appeal, we
      independently review the anti-SLAPP motion, and in doing so, we accept as true the
      evidence favorable to Tichinin, determine only whether he has made a prima
      facie showing of facts necessary to establish his claim at trial, and
      evaluate the City‟s evidence only to determine if defeats the plaintiff‟s
      showing as a matter of law. (Soukup v. Law Offices of Herbert Hafif, supra, 39
      Cal.4th at p. 269, fn. 3; Paulus, supra, 139 Cal.App.4th at p. 673.)
      Here, Tichinin presented evidence that his client, Council member Chang,
      informed him of her belief that Tewes and Leichter were engaged in an
      inappropriate relationship. In fact, she retained Tichinin because Leichter had
      threatened to sue her and the City based, in part, on Chang‟s statements
      about the alleged relationship. Later, Tichinin suspected that the existence
      of such a relationship might explain why Leichter
      10 Although we may not rely on unpublished California cases, the
      California Rules of Court do not prohibit citation to unpublished federal cases,
      which may properly be cited as persuasive, although not binding, authority.
      (Cal. Rules of Court, rule 8.1115; Farm Raised Salmon Cases (2008) 42 Cal.4th
      1077, 1096, fn. 18; DeJung v. Superior Court (2008) 169 Cal.App.4th 533,
      548, fn. 9; e.g., Pacific Shore Funding v. Lozo (2006) 138 Cal.App.4th 1342,
      1352, fn. 6 [citing unreported federal cases as persuasive authority].)
      11 The City concedes that the Noerr-Pennington Doctrine protects “
      legitimate, non-sham, pre-filing investigation activities, which are not criminal.”
      22
      appeared to have changed her position concerning the merits of his client
      Vierra‟s appeal of the Department‟s rejection of his residential project.
      Under the circumstances, and with Vierra‟s authorization, Tichinin hired an
      investigator to conduct surveillance of Tewes at the conference and gather
      evidence concerning the alleged affair. According to Tichinin, he did so
      because if his investigation uncovered such a relationship, then he intended
      to present the evidence to the Council and seek Leichter‟s removal from
      further involvement in the proceedings related to the Vierra project due to
      her conflict of interest; and if the Council declined to remove her, he
      intended to sue the City for unlawful retaliation, claiming that Tewes had been
      able to influence Leichter to oppose the Vierra project as retaliation
      against Tichinin for representing Chang and opposing the Paulus car
      dealership, which Tewes had favored.
      Under the circumstances, we find that Tichinin made a prima facie showing
      that his prelitigation investigation was protected by the right to
      petition: The investigation was incidental and reasonably related to a potential
      claim that Leichter had a conflict of interest, a claim that he would have
      made to the Council or incorporated into a lawsuit against the City had that
      investigation produced evidence of an inappropriate romantic relationship
      to support it. The question, therefore, becomes whether other evidence
      presented in the anti-SLAPP motion would preclude such a finding as a matter of
      law, that is, whether the evidence conclusively establishes that the
      alleged romantic relationship and claim of conflict of interest that Tichinin
      purported to investigate were just a sham.
      The sham exception has both an objective and subjective element: a
      petition or litigation must be objectively baseless, in that one could not
      reasonably expect it to succeed; and the person making the petition or pursuing
      the litigation must be motivated by an improper purpose. (BE & K Construction
      Co. v. National Labor Relations Board, supra, 536 U.S. at p. 526; see fn.
      8, ante.)
      23
      Concerning the first element, we note that “ „[c]onflicts [of interest]
      come in all shapes and sizes[,]‟ ” and can arise from inappropriate
      romantic relationships. (Manfredi & Levine v. Superior Court (1998) 66 Cal.App.4th
      1128, 1134, quoting Aceves v. Superior Court (1996) 51 Cal.App.4th 584,
      590, and cases cited there.) Indeed, at his deposition, Dennis Kennedy, a
      Council member and Mayor of the City, testified that in his view, an affair
      between Tewes and Leichter would have raised the issue of a potential
      conflict of interest.
      The evidence presented below does not conclusively show that at the time
      Tichinin hired the private investigator, a claim of conflict of interest was
      objectively baseless, in that no reasonable person could believe that
      Tewes and Leichter were involved in an inappropriate romantic relationship. As
      noted, there had been rumors of a relationship, Chang had retained Tichinin
      to defend against a possible lawsuit based on her statements about the
      relationship, and she believed that such a relationship existed. Indeed,
      although Chang later distanced herself from the surveillance activity, it
      initially would have been reasonable for Tichinin to believe that he had a duty
      to Chang to investigate the truth of the statements she might be held liable
      for. Moreover, only by investigating whether such a relationship existed
      could Tichinin determine the potential merits of his claim that Leichter had
      a conflict of interest. That the results of the investigation undermined
      the claim does not retrospectively render it objectively baseless.
      Similarly, the evidence presented below does not establish as a matter of
      law that Tichinin pursued the investigation for an improper reason
      unrelated to a legitimate petitioning purpose. In other words, the evidence does
      not conclusively rebut Tichinin‟s explanation for hiring the investigator or
      establish that he pursued the investigation simply to harass or intimidate
      Tewes or Leichter.
      24
      Having found that Tichinin has made a prima facie showing, we now address
      the trial court‟s reasons for concluding that his conduct was not protected
      by the right of petition.
      The court found that the investigation was not relevant to any petitioning
      activity. In particular, the court found that it was mere speculation to
      think that the alleged inappropriate relationship affected the Department‟s
      initial decision to reject Vierra‟s project or the Council‟s subsequent
      decision to file a declaratory relief action. The court also found it
      speculation for Tichinin to think that Leichter‟s removal and the appointment of
      outside counsel would change those decisions. Last, the court noted that at
      the meeting on February 3, 2004, Vierra told Tichinin that he did not want
      to file a 1983 action. That the connection between the alleged relationship
      and the formal decisions by the Department and Council may, in retrospect,
      appear speculative is irrelevant in the instant context.
      To defeat the anti-SLAPP motion, Tichinin did not have to show that the
      alleged relationship and potential conflict of interest caused or affected
      the formal decisions or would or could ultimately have led to a reversal of
      those decisions without the need for a declaratory relief action. Tichinin‟s
      burden was to show that the investigation was sufficiently related to a
      potentially valid, non-sham effort to petition the government to constitute
      protected conduct. Because his investigation conceivably could have revealed
      evidence of an inappropriate relationship that would then have formed the
      factual basis for a claim to the Council, the investigation was necessarily
      incidental to petitioning conduct. This is so even though, as a result of
      the investigation, Tichinin elected not to file a formal petition. Moreover,
      that Vierra said he did not want to file a lawsuit against the City does
      not establish that either the potential claim of conflict of interest or
      subsequent lawsuit was a shams.
      Furthermore, even if, as the court‟s findings imply, the connection
      between the alleged relationship and the rejection of the Vierra project was so
      speculative as to render
      25
      Tichinin‟s claims objectively baseless, that would not exclude the
      investigation from constitutional protection because, as noted, there is no
      evidence that Tichinin pursued the investigation for an improper purpose
      unrelated to petitioning conduct.
      In support of the trial court‟s analysis, the City cites People ex rel.
      20th Century Ins. Co. v. Building Permit Consultants (2000) 86 Cal.App.4th
      280 (20th Century) for the proposition that “the anti-SLAPP statute does not
      protect claims that could „eventually‟ be made in connection with an
      official proceeding . . . .” However, the City‟s point is irrelevant, and 20th
      Century is inapposite.
      In that case, the issue was whether the defendant’s conduct qualified for
      protection under the anti-SLAPP statute. (20th Century, supra, 86
      Cal.App.4th at pp. 283-285.) There, the defendant was sued for preparing false
      insurance damage estimates for victims of the Northridge earthquake, estimates
      that in some cases made their way as evidence into judicial proceedings. The
      court concluded that because the estimates were not prepared “before,” or “
      in connection with an issue under consideration or review by a
      legislative, executive, or judicial body, or any other official proceeding authorized
      by law” (§ 425.16, subds. (e)), that conduct was not “in furtherance of
      [the defendant‟s] right of petition or free speech” (§ 425.16, subd. (b)(1))
      and, therefore, did not qualify for protection under the anti-SLAPP
      statute. (20th Century, supra, 86 Cal.App.4th at p. 285.) The issue here is not
      whether Tichinin‟s conduct qualifies for protection under the anti-SLAPP
      statute but whether his conduct can be considered protected activity for
      purposes of his 1983 claim.
      ii. The Right of Free Speech
      Although the right to petition and the right of free speech are separate
      and not identical rights, they are nevertheless “inseparable.” (McDonald v.
      Smith (1985) 472 U.S. 479, 485; Thomas v. Collins (1945) 323 U.S. 516,
      530.) Indeed, they necessarily overlap: the right to petition the government
      for relief presupposes the right to freely express and communicate one‟s
      thoughts, ideas, and opinions related to that relief; and
      26
      the right of free speech necessarily includes the right to express one‟s
      grievances to the government and seek redress. Thus, where one separately
      claims that the same conduct is protected by both rights, the two claims can
      be considered “essentially the same,” and subject to similar
      constitutional analyses. (Wayte v. United States (1985) 470 U.S. 598, 610, fn. 11.)
      Such is the case here. Although Tichinin asserted separate causes of
      action based on violations of his rights to petition and right of free speech,
      those claims are identical insofar as both allege that hiring an investigator
      was protected conduct. Moreover, we conclude that hiring an investigator
      can also be considered protected under the right of free speech.
      Case law supports our view and conclusion. In Schneider v. State of New
      Jersey, Town of Irvington (1939) 308 U.S. 147, the high court indicated that
      First Amendment protection extends to conduct that intrinsically
      facilitates exercise of free speech. There, the court held that the First Amendment
      protected reasonable access to the streets, where people could speak, write,
      print or circulate information or opinion, because access intrinsically
      facilitated the exercise of First Amendment rights. (Id. at p. 160.)
      Similarly, the high court has recognized that the ability to gather
      information is entitled to constitutional protection because it too facilitates
      the exercise of free speech. For example, in Richmond Newspapers, Inc. v.
      Virginia (1980) 448 U.S. 555, the court held that “the right to attend
      criminal trials is implicit in the guarantees of the First Amendment” because “
      without the freedom to attend such trials, which people have exercised for
      centuries, important aspects of freedom of speech and „of the press could be
      eviscerated.‟ ” (Id. at p. 580, fn. omitted, quoting Branzburg v. Hayes
      (1972) 408 U.S. 665, 681.) The Court said that this right encompassed both a
      “ „right of access‟ ” and a “ „right to gather information,‟ ” and
      explained that the media‟s right is no less important
      27
      than that of the general public. (Id. at pp. 576-577 and fn. 12.)12
      Similarly, the court in In re Express-News Corp. (5th Cir. 1982) 695 F.2d 807
      stated, “The first amendment‟s broad shield for freedom of speech and of the
      press is not limited to the right to talk and to print. The value of these
      rights would be circumscribed were those who wish to disseminate
      information denied access to it, for freedom to speak is of little value if there is
      nothing to say.” (Id. at p. 808; cf. City of Lakewood v. Plain Dealer Publ’
      g Co. (1988) 486 U.S. 750, 768 [First Amendment protects use of newsracks,
      which facilitate exercise of free speech]; United Mine Workers of America
      v. Illinois State Bar Ass’n, supra, 389 U.S. at p. 223 [hiring a lawyer
      protected by right of free speech].)
      In Smith v. City of Cumming (11th Cir. 2000) 212 F.3d 1332, the court
      concluded that the right of free speech “protects the right to gather
      information about what public officials do on public property, and specifically, a
      right to record matters of public interest.” (Id. at p. 1332, citing
      Blackston v. Alabama (11th Cir. 1994) 30 F.3d 117, 120 [filming public meetings];
      Fordyce v. City of Seattle (9th Cir. 1995) 55 F.3d 436, 439 [filming “
      matters of public interest”]; Iacobucci v. Boulter (D.Mass, Mar. 26, 1997) No.
      CIV.A. 94-10531, 1997 WL 258494 [unpublished opinion] [videotaping public
      meetings]; United States v. Hastings (11th Cir. 1983) 695 F.2d 1278, 1281
      [right to public information]; Lambert v. Polk County (S.D.Iowa 1989) 723
      F.Supp. 128, 133 [right to make and display film of events]; Thompson v. City
      of Clio (M.D.Ala. 1991) 765
      12 In his concurring opinion, Justice Brennan explained that subject to
      reasonable limitations, the right of access to information may be implied by
      the First Amendment guarantees which, although customarily interposed “to
      protect communications between speaker and listener,” play “a structural
      role . . . in securing and fostering our republican system of self-government”
      and ensuring that debate on public issues should be uninhibited, robust,
      wide-open, and informed. (Richmond Newspapers, Inc. v. Virginia, supra, 448
      U.S. at pp. 586-587 (conc. opn. Brennan, J. italics in original.) “[T]he
      structural model links the First Amendment to that process of communication
      necessary for a democracy to survive, and thus entails solicitude not only
      for communication itself, but also for the indispensable conditions of
      meaningful communication.” (Id. at pp. 587-588, fn. omitted, italics added.)
      28
      F.Supp. 1066, 1070-1071 [record public meetings].) Accordingly, the Smith
      court held that the plaintiffs had stated a First Amendment claim based on
      allegations that public officials had wrongfully prevented them from
      videotaping police activity. (Smith v. City of Cumming, supra, 212 F.3d at p.
      1332.)
      In Robinson v. Fetterman (E.D.Pa. 2005) 427 F.Supp.2d 534, the plaintiff
      suspected that the state troopers were inspecting trucks in an unsafe
      manner. After expressing this view to the state legislature, he started
      videotaping the inspections from a distance. He was arrested and convicted of
      harassment, but his conviction was later reversed and the charges dismissed.
      Thereafter, he filed a 1983 action alleging, among other things, a violation of
      his right to free speech. (Id. at pp. 538-539.)
      In concluding that the plaintiff had stated a claim, the court explained, “
      The activities of the police, like those of other public officials, are
      subject to public scrutiny. Indeed, „the First Amendment protects a
      significant amount of verbal criticism and challenge directed at police officers.‟
      [Citation.]” (Robinson v. Fetterman, supra, 427 F.Supp.2d at pp. 540-541.)
      Moreover, “[the plaintiff‟s] right to free speech encompasses the right to
      receive information and ideas. [Citation] He also has a First Amendment
      right to express his concern about the safety of the truck inspections to the
      appropriate government agency or officials, whether his expression takes
      the form of speech or conduct. [Citations.] Videotaping is a legitimate means
      of gathering information for public dissemination and can often provide
      cogent evidence, as it did in this case. In sum, there can be no doubt that
      the free speech clause of the Constitution protected [the plaintiff] as he
      videotaped the defendants . . . . [Citations.] Moreover, to the extent that
      the troopers were restraining [the plaintiff] from making any future
      videotapes and from publicizing or publishing what he had filmed, the defendants‟
      conduct clearly amounted to an unlawful prior restraint upon his protected
      speech. [Citations.]” (Id. at p. 541.)
      Pomykacz v. Borough of West Wildwood (D.N.J. 2006) 438 F.Supp.2d 504 is
      particularly pertinent to our discussion. There, the plaintiff, a
      self-described citizen
      29
      activist, had closely followed the activities of the police force and
      mayor of her town for years. In 2002, she and others in town suspected that the
      mayor and a police officer were having a romantic relationship. The
      possible relationship raised the plaintiff‟s concerns about nepotism, conflict of
      interest, and preferential treatment for the officer. The plaintiff and
      others were also concerned that the officer, among others, was being paid
      overtime for volunteer work renovating the police station that was performed
      during patrol shifts. Given her suspicions and concerns, the plaintiff
      started watching the officer‟s and the mayor‟s activities and gathering
      photographic evidence. One night, the plaintiff saw the officer working on
      renovations while on duty. Later that night, the plaintiff saw the officer and
      mayor inside police headquarters and took photographs of them. Upon seeing her,
      the mayor came out and yelled at her. After the incident, the officer and
      mayor consulted with the district attorney, who issued a complaint charging
      the plaintiff with stalking. A judge signed a warrant for her arrest and
      issued a restraining order. She was later arrested. The charges were lowered
      to harassment, and after a court trial she was convicted of harassing the
      officer but not the mayor and fined. However, the conviction was reversed
      on appeal. Thereafter, the plaintiff filed a 1983 action against the City,
      the officer, and the mayor, alleging that her arrest for stalking was an
      attempt to silence her in retaliation for her monitoring activities and
      concern<br/><br/>(Message over 64 KB, truncated)
    • Lists
      No wonder the general public has a less than stellar opinion of PIs. I understand the point you wanted to make Sue but the facts as outlined in your post seem
      Message 2 of 3 , Sep 28, 2009
        No wonder the general public has a less than stellar opinion of PIs.
        I understand the point you wanted to make Sue but the facts as outlined in
        your post seem to indicate a plethora of stupidity for all concerned.
        "Hot Chocolate for 2" are you kidding me?
        Brian


        [Non-text portions of this message have been removed]
      • suesarkis@aol.com
        Brian - I m not saying that I or anyone else might consider doing same but the actual overall case itself is beneficial to us. I agree that the hot chocolate
        Message 3 of 3 , Sep 28, 2009
          Brian -

          I'm not saying that I or anyone else might consider doing same but the
          actual overall case itself is beneficial to us. I agree that the hot
          chocolate thing was quite silly. Just because the used tray might be placed outside
          in the hallway with 2 empty cups does NOT reflect that there are TWO
          people in the room.


          But even the court said, "...the evidence does not establish as a matter of
          law that the investigator's conduct was criminal or even tortious." The
          court did not address the STUPIDITY involved.


          Sue


          In a message dated 9/28/2009 11:17:00 A.M. Pacific Daylight Time,
          list@... writes:




          No wonder the general public has a less than stellar opinion of PIs.
          I understand the point you wanted to make Sue but the facts as outlined in
          your post seem to indicate a plethora of stupidity for all concerned.
          "Hot Chocolate for 2" are you kidding me?
          Brian

          [Non-text portions of this message have been removed]







          [Non-text portions of this message have been removed]
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