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San Francisco Superior Courts
Information Technology Group
Document Scanning Lead Sheet
Apr-18-2006 4:37 pm
Case Number: CGC-05-447978
Filing Date: Apr-18-2006 4:36
Juke Box: 001 Image: 01429557
ORDER
PAUL H. MELBOSTAD VS. DONALD G FISHER et al
001001429557
instructions:
Please place this sheet on top of the document to be scanned.Page 2 JAMES R. SUTTON, State Bar No. 135930 F vlhcadety ED,
ION B. MEYN, State Bar No. 212640
The Sutton Law Firm, PC APR 1 8 2006
150 Post Street, Suite 405 - . .
San Francisco, CA 94108 G6R ,PAF Ke Ay Bierk
Tel: (415) 732-7700; Fax: (415) 732-7701 BY: -——
Attorneys for Defendants James R. Sutton;
Kevin R. Heneghan; and Donald G. Fisher.
CALIFORNIA SUPERIOR COURT
CITY AND COUNTY OF SAN FRANCISCO
PAUL H. MELBOSTAD Case No. 05-44-7978
Plaintiff ) [P SED] ORDER GRANTING
) PECIAL MOTION TO STRIKE
Vv. ) COMPLAINT AND REQUEST FOR
) ATTORNEYS’ FEES BY
DONALD G. FISHER, ET AL., ) DEFENDANTS
)
Defendants.
TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
The court has considered the merits of the Motion for a Special Motion to Strike
the Complaint and Request for Attorneys’ Fees by Defendants Donald Fisher, James R.
Sutton, and Kevin Heneghan (“Defendants”).
The court finds the following to be true. In 2004 and 2005, Paul H. Melbostad
represented plaintiff Gerardo Sandoval, who was suing as a voter, in a lawsuit claiming
that the political committee called Yes on Citizenship, No on F (“Committee”) violated
local campaign finance rules due to the content of its political mailers, signs, and other
works. (“Complaint I.”) The Committee is a political committee “primarily formed” in
October 2004 to oppose Proposition F, a ballot measure which appeared on the November
2, 2004 San Francisco ballot. The Committee sent out mailers, posted signs, and
distributed other political works before the election in an attempt to convince voters to
vote no on the Proposition.
On October 25, 2004, Mr. Melbostad, on behalf of Mr. Sandoval, filed suit against
[PROPOSED] ORDER GRANTING DEFENDANTS’ SPECIAL MOTION TO STRIKE AND REQUEST FOR
ATTORNEYS’ FEES AND COSTS
1Page 3 eight defendants, including Mr. Sutton, Mr. Heneghan and the Committee (“Complaint
I”). The first cause of action alleged that the Committee violated San Francisco
Campaign and Governmental Conduct Code (“SFCGCC”) sections 1.114(c) and 1.162.
The Committee, Mr. Sutton and Mr. Heneghan filed an anti-SLAPP motion. The court
granted the anti-SLAPP motion in March 2005 on two independent grounds, the second
being that Mr. Sandoval “failed to submit sufficient admissible evidence to establish that
there is a probability that he will prevail on his claims.” Mr. Sandoval appealed the
ruling, but later abandoned his appeal.
Mr. Melbostad filed the immediate action as a voter on December 23, 2005,
claiming that the Committee violated SFCGCC sections 1.114(c) and 1.162. (“Complaint
I.”) Complaint II does not include any additional causes of action and does not request
additional relief which was not already pleaded in Complaint I.
Defendants satisfied their prima facie showing that the lawsuit relates to acts in
furtherance of their constitutional right of free speech. The provisions of the SFCGCC
cited by Mr. Melbostad only restrict the Committee if it uses its funds to “make
expenditures to support or oppose a candidate.” Thus, the court cannot determine the
merits of Mr. Melbostad’s claims without examining the mailers, flyers and signs
produced by the Committee. Because Mr. Melbostad’s claims therefore arise from the
Committee’s distribution of political literature, the acts underlying Mr. Melbostad’s
claims fit one of the categories spelled out in Cal. Code of Civ. Proc. (“CCP”) section
425.16(e). For the same reason, CCP section 425.17(d)(2) bars Mr. Melbostad from
claiming immunity to the anti-SLAPP statute under the “public interest” exception
otherwise provided for by CCP section 425.17(b). In this regard, the court follows the
appellate court decision in Major v. Silna (2005) 134 Cal.App.4th 1485
Thus, the burden shifts to Mr. Melbostad to show that he is likely to prevail in his
lawsuit. For multiple and independent reasons, Mr. Melbostad fails to carry his burden.
First, the essential elements of res judicata are satisfied here: there has been a final
[PROPOSED] ORDER GRANTING DEFENDANTS’ SPECIAL MOTION TO STRIKE AND REQUEST FOR
ATTORNEYS’ FEES AND COSTS
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judgment disposing of the same claims between parties in privity. Mr. Melbostad only
contested the existence of “privity” between himself and Mr. Sandoval, contending that,
unlike him, Mr. Sandoval did not bring Complaint I as a voter. Mr. Melbostad’s
contention is contradicted by Mr. Sandoval’s prior declaration, and is contrary to the
standing requirements of SFCGCC section 1.168(b). Accordingly, Mr. Melbostad shares
the same interests represented by Sandoval in Complaint I. Moreover, because Mr.
Melbostad represented Sandoval in Complaint I, Mr. Melbostad had adequate notice of
Complaint I and his interests were adequately represented in the prior lawsuit. Mr.
Melbostad’s complaint is thus barred by res judicata.
Second, SFCGCC sections 1.114(c) and 1.162 only apply to expenditures which
expressly advocate the election or defeat of a candidate. (The Governor Gray Davis
Committee vy. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 461.) Thus, the
court must review the Committee’s mailers, flyers and signs to determine whether they
constitute express advocacy. Though Mr. Melbostad identified various Committee
materials in his pleadings, he expressly instructed the court to only review these materials
for the purpose of determining the Committee’s registration status; in addition, Mr.
Melbostad expressly instructed the court to not review these materials for the purpose of
showing that the Committee accepted contributions over the $500 limit. By his own
instructions, therefore, Mr. Melbostad has precluded the court from reviewing evidence
essential to his claims, and therefore fails to carry his evidentiary burden.
Third and finally, Mr. Melbostad is not entitled to the relief which he requests.
The SFCGCC creates an exclusive enforcement scheme for any alleged violations, and
although it allows a voter to bring a lawsuit alleging violations of the SFCGCC, it
explicitly limits the relief available to a voter to injunctive relief. (Section 1.168(b).) The
injunctive relief which Mr. Melbostad requests — enjoining Committee Defendants from
“making, soliciting, accepting, and expending contributions in excess of $500 to and/or
[PROPOSED] ORDER GRANTING DEFENDANTS’ SPECIAL MOTION TO STRIKE AND REQUEST FOR
ATTORNEYS’ FEES AND COSTS
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on behalf of the subject Committee” — is no longer relevant, because the Committee is no
longer active and has not distributed any political literature or undertaken any other
activities since the November 2004 election (other than remaining open for the sole
purpose of defending itself against Complaint I and Complaint II). Mr. Melbostad’s
request for injunctive relief is accordingly moot. As to his requests for monetary relief,
only the civil prosecutor or the Ethics Commission may seck monetary penalties, not a
voter. (Sections 1.170(b) and (c).)
FOR GOOD CAUSE APPEARING, therefore, the court GRANTS Defendants’
Special Motion to Strike Mr. Melbostad’s Complaint in its entirety. Mr. Melbostad’s
Complaint is dismissed with prejudice.
As the prevailing party, under CCP section 425.16(c), the award of fees and costs
to Defendants is mandatory. Accordingly, the Court GRANTS Defendants’ request for
attorneys’ fees and costs in defending this entire action, including but not limited to fees
and costs incurred in researching, drafting, and arguing their special motion to strike.
(CCP section 425.16(c); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) Defendants
shall notice a hearing to determine the amount of attorneys’ fees and costs to be awarded.
IT IS SO ORDERED.
Dated: , 2006
Le
fe
Superior Court Judge
b 4aprrt
[PROPOSED] ORDER GRANTING DEFENDANTS’ SPECIAL MOTION TO STRIKE AND REQUEST FOR
ATTORNEYS’ FEES AND COSTS
4
PDF Page 1
PlainSite Cover Page
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NOU
San Francisco Superior Courts
Information Technology Group
Document Scanning Lead Sheet
Apr-18-2006 4:37 pm
Case Number: CGC-05-447978
Filing Date: Apr-18-2006 4:36
Juke Box: 001 Image: 01429557
ORDER
PAUL H. MELBOSTAD VS. DONALD G FISHER et al
001001429557
instructions:
Please place this sheet on top of the document to be scanned.
PDF Page 3
JAMES R. SUTTON, State Bar No. 135930 F vlhcadety ED,
ION B. MEYN, State Bar No. 212640
The Sutton Law Firm, PC APR 1 8 2006
150 Post Street, Suite 405 - . .
San Francisco, CA 94108 G6R ,PAF Ke Ay Bierk
Tel: (415) 732-7700; Fax: (415) 732-7701 BY: -——
Attorneys for Defendants James R. Sutton;
Kevin R. Heneghan; and Donald G. Fisher.
CALIFORNIA SUPERIOR COURT
CITY AND COUNTY OF SAN FRANCISCO
PAUL H. MELBOSTAD Case No. 05-44-7978
Plaintiff ) [P SED] ORDER GRANTING
) PECIAL MOTION TO STRIKE
Vv. ) COMPLAINT AND REQUEST FOR
) ATTORNEYS’ FEES BY
DONALD G. FISHER, ET AL., ) DEFENDANTS
)
Defendants.
TO ALL PARTIES AND THEIR COUNSEL OF RECORD:
The court has considered the merits of the Motion for a Special Motion to Strike
the Complaint and Request for Attorneys’ Fees by Defendants Donald Fisher, James R.
Sutton, and Kevin Heneghan (“Defendants”).
The court finds the following to be true. In 2004 and 2005, Paul H. Melbostad
represented plaintiff Gerardo Sandoval, who was suing as a voter, in a lawsuit claiming
that the political committee called Yes on Citizenship, No on F (“Committee”) violated
local campaign finance rules due to the content of its political mailers, signs, and other
works. (“Complaint I.”) The Committee is a political committee “primarily formed” in
October 2004 to oppose Proposition F, a ballot measure which appeared on the November
2, 2004 San Francisco ballot. The Committee sent out mailers, posted signs, and
distributed other political works before the election in an attempt to convince voters to
vote no on the Proposition.
On October 25, 2004, Mr. Melbostad, on behalf of Mr. Sandoval, filed suit against
[PROPOSED] ORDER GRANTING DEFENDANTS’ SPECIAL MOTION TO STRIKE AND REQUEST FOR
ATTORNEYS’ FEES AND COSTS
1
PDF Page 4
eight defendants, including Mr. Sutton, Mr. Heneghan and the Committee (“Complaint
I”). The first cause of action alleged that the Committee violated San Francisco
Campaign and Governmental Conduct Code (“SFCGCC”) sections 1.114(c) and 1.162.
The Committee, Mr. Sutton and Mr. Heneghan filed an anti-SLAPP motion. The court
granted the anti-SLAPP motion in March 2005 on two independent grounds, the second
being that Mr. Sandoval “failed to submit sufficient admissible evidence to establish that
there is a probability that he will prevail on his claims.” Mr. Sandoval appealed the
ruling, but later abandoned his appeal.
Mr. Melbostad filed the immediate action as a voter on December 23, 2005,
claiming that the Committee violated SFCGCC sections 1.114(c) and 1.162. (“Complaint
I.”) Complaint II does not include any additional causes of action and does not request
additional relief which was not already pleaded in Complaint I.
Defendants satisfied their prima facie showing that the lawsuit relates to acts in
furtherance of their constitutional right of free speech. The provisions of the SFCGCC
cited by Mr. Melbostad only restrict the Committee if it uses its funds to “make
expenditures to support or oppose a candidate.” Thus, the court cannot determine the
merits of Mr. Melbostad’s claims without examining the mailers, flyers and signs
produced by the Committee. Because Mr. Melbostad’s claims therefore arise from the
Committee’s distribution of political literature, the acts underlying Mr. Melbostad’s
claims fit one of the categories spelled out in Cal. Code of Civ. Proc. (“CCP”) section
425.16(e). For the same reason, CCP section 425.17(d)(2) bars Mr. Melbostad from
claiming immunity to the anti-SLAPP statute under the “public interest” exception
otherwise provided for by CCP section 425.17(b). In this regard, the court follows the
appellate court decision in Major v. Silna (2005) 134 Cal.App.4th 1485
Thus, the burden shifts to Mr. Melbostad to show that he is likely to prevail in his
lawsuit. For multiple and independent reasons, Mr. Melbostad fails to carry his burden.
First, the essential elements of res judicata are satisfied here: there has been a final
[PROPOSED] ORDER GRANTING DEFENDANTS’ SPECIAL MOTION TO STRIKE AND REQUEST FOR
ATTORNEYS’ FEES AND COSTS
2
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judgment disposing of the same claims between parties in privity. Mr. Melbostad only
contested the existence of “privity” between himself and Mr. Sandoval, contending that,
unlike him, Mr. Sandoval did not bring Complaint I as a voter. Mr. Melbostad’s
contention is contradicted by Mr. Sandoval’s prior declaration, and is contrary to the
standing requirements of SFCGCC section 1.168(b). Accordingly, Mr. Melbostad shares
the same interests represented by Sandoval in Complaint I. Moreover, because Mr.
Melbostad represented Sandoval in Complaint I, Mr. Melbostad had adequate notice of
Complaint I and his interests were adequately represented in the prior lawsuit. Mr.
Melbostad’s complaint is thus barred by res judicata.
Second, SFCGCC sections 1.114(c) and 1.162 only apply to expenditures which
expressly advocate the election or defeat of a candidate. (The Governor Gray Davis
Committee vy. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 461.) Thus, the
court must review the Committee’s mailers, flyers and signs to determine whether they
constitute express advocacy. Though Mr. Melbostad identified various Committee
materials in his pleadings, he expressly instructed the court to only review these materials
for the purpose of determining the Committee’s registration status; in addition, Mr.
Melbostad expressly instructed the court to not review these materials for the purpose of
showing that the Committee accepted contributions over the $500 limit. By his own
instructions, therefore, Mr. Melbostad has precluded the court from reviewing evidence
essential to his claims, and therefore fails to carry his evidentiary burden.
Third and finally, Mr. Melbostad is not entitled to the relief which he requests.
The SFCGCC creates an exclusive enforcement scheme for any alleged violations, and
although it allows a voter to bring a lawsuit alleging violations of the SFCGCC, it
explicitly limits the relief available to a voter to injunctive relief. (Section 1.168(b).) The
injunctive relief which Mr. Melbostad requests — enjoining Committee Defendants from
“making, soliciting, accepting, and expending contributions in excess of $500 to and/or
[PROPOSED] ORDER GRANTING DEFENDANTS’ SPECIAL MOTION TO STRIKE AND REQUEST FOR
ATTORNEYS’ FEES AND COSTS
3
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on behalf of the subject Committee” — is no longer relevant, because the Committee is no
longer active and has not distributed any political literature or undertaken any other
activities since the November 2004 election (other than remaining open for the sole
purpose of defending itself against Complaint I and Complaint II). Mr. Melbostad’s
request for injunctive relief is accordingly moot. As to his requests for monetary relief,
only the civil prosecutor or the Ethics Commission may seck monetary penalties, not a
voter. (Sections 1.170(b) and (c).)
FOR GOOD CAUSE APPEARING, therefore, the court GRANTS Defendants’
Special Motion to Strike Mr. Melbostad’s Complaint in its entirety. Mr. Melbostad’s
Complaint is dismissed with prejudice.
As the prevailing party, under CCP section 425.16(c), the award of fees and costs
to Defendants is mandatory. Accordingly, the Court GRANTS Defendants’ request for
attorneys’ fees and costs in defending this entire action, including but not limited to fees
and costs incurred in researching, drafting, and arguing their special motion to strike.
(CCP section 425.16(c); Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) Defendants
shall notice a hearing to determine the amount of attorneys’ fees and costs to be awarded.
IT IS SO ORDERED.
Dated: , 2006
Le
7 fe
Superior Court Judge
b 4aprrt
[PROPOSED] ORDER GRANTING DEFENDANTS’ SPECIAL MOTION TO STRIKE AND REQUEST FOR
ATTORNEYS’ FEES AND COSTS
4
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