28 NOTICE OF MOTION & SPECIAL MOTION TO STRIKE; MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF GLADYS LIMON IN SUPPORT

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1 0 0 Gladys Limón (SBN ) COMMUNITIES FOR A BETTER ENVIRONMENT Pacific Blvd., Suite 00 Huntington Park, California T: () -; F: () -0 glimon@cbecal.org Attorneys for Cross-defendant Youth for Environmental Justice Adam B. Wolf (SBN ) PEIFFER ROSCA WOLF ABDULLAH CARR & KANE Culver Blvd., Suite 0 Culver City, CA 0 awolf@prwlegal.com T: () -; F: () 0-00 Attorney for Cross-defendant Youth for Environmental Justice (additional counsel listed on next page) IN THE SUPERIOR COURT OF THE STATE OF CALIFORNIA IN AND FOR THE COUNTY OF LOS ANGELES, CENTRAL DISTRICT YOUTH FOR ENVIRONMENTAL JUSTICE, SOUTH CENTRAL YOUTH LEADERSHIP COALITION, and CENTER FOR BIOLOGICAL DIVERSITY, vs. Plaintiffs/Cross-Defendants, CITY OF LOS ANGELES, CITY OF LOS ANGELES DEPARTMENT OF CITY PLANNING, MICHAEL J. LOGRANDE, in his official capacity as Director of Los Angeles Department of City Planning; and DOES through 0, inclusive, Defendants/Respondents. Case No. BC00 Assigned to Hon. Terry A. Green, Dept. NOTICE OF MOTION AND SPECIAL MOTION TO STRIKE FIRST AMENDED CROSS-COMPLAINT PURSUANT TO C.C.P.. (ANTI-SLAPP); MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT; DECLARATION OF GLADYS LIMON IN SUPPORT Date: February, 0 Time: : a.m. Dept.: Reservation ID: 0 CALIFORNIA INDEPENDENT PETROLEUM ASSOCIATION, Defendant/Respondent-in- Intervention/Cross- Complainant. AND AUTHORITIES IN SUPPORT; DECLARATION OF GLADYS LIMON IN SUPPORT

2 0 0 (Caption continued) Maya Golden-Krasner (SBN ) THE CENTER FOR BIOLOGICAL DIVERSITY P.O. Box La Canada Flintridge, CA 0 T: () -; F: (0) -0 mgoldenkrasner@biologicaldiversity.org Attorney for Cross-defendant Center for Biological Diversity Kassia R. Siegel (SBN 0) THE CENTER FOR BIOLOGICAL DIVERSITY Broadway, Suite 00 Oakland, CA T: 0--, F: (0) -0 ksiegel@biologicaldiversity.org Attorney for Cross-defendant Center for Biological Diversity Deepak Gupta (pro hac vice pending) GUPTA WESSLER PLLC 0th Street, NW Washington, DC 000 T: (0) -; F: (0) - deepak@guptawessler.com Attorneys for Cross-defendant South Central Youth Leadership Coalition (SCYLC) NOTICE OF MOTION AND SPECIAL MOTION TO STRIKE PURSUANT TO CALIFORNIA CODE OF CIVIL PROCEDURE SECTION. TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD: PLEASE TAKE NOTICE that on February, 0, at : a.m., or as soon thereafter as the motion may be heard in Department of the above-captioned Court, located at N. Hill Street, Los Angeles, California 00, Cross-Defendants Youth for Environmental Justice, South Central Youth Leadership Coalition, and the Center for Biological Diversity ( Non-Profit Defendants ) will and hereby do move to specially strike the First Amended Cross-Complaint ( Cross-Complaint ) of the California Independent Petroleum Association ( Petroleum Association ), without leave to amend, pursuant to California Code of Civil Procedure Section.. The Non-Profit Defendants further seek an award of their attorney fees and costs associated with this motion pursuant to California Code of Civil Procedure Section.(c). AND AUTHORITIES IN SUPPORT; DECLARATION OF GLADYS LIMON IN SUPPORT

3 0 The Non-Profit Defendants bring this special motion to strike on the grounds that () the Cross-Complaint, including both of the causes of action alleged against the Non-Profit Defendants, arise from acts in furtherance of the Non-Profit Defendants right of petition or free speech in connection with a public issue; and () the Petroleum Association cannot demonstrate a probability of prevailing on either of its causes of action. The movants also request that the Court award them their attorney fees and costs under Code of Civil Procedure Section.(c). If the Court grants this motion, the Non-Profit Defendants will file a noticed motion for their fees and costs. This motion is made following telephonic conferences of counsel on October, 0, and October, 0. See Declaration of Gladys Limón -. Unfortunately, those conferences, which discussed the grounds for this motion, did not result in resolution. Id. This motion is based on this notice of motion; the accompanying memorandum of points and authorities; the declaration of Gladys Limón, as well as the exhibits attached thereto; the arguments and other evidence as may be presented at or prior to the hearing on this motion; the record and files in this action; and such other facts and matters of which the Court may take notice. 0 DATED: November, 0 Respectfully submitted, Gladys Limón (SBN ) COMMUNITIES FOR A BETTER ENVIRONMENT Pacific Blvd., Suite 00 Huntington Park, California Tel: () -; Fax: () -0 glimon@cbecal.org Attorneys for Cross-defendant YOUTH FOR ENVIRONMENTAL JUSTICE Adam B. Wolf (SBN ) PEIFFER ROSCA WOLF ABDULLAH CARR & KANE Culver Blvd., Suite 0 Culver City, CA 0 awolf@prwlegal.com T: () -; F: () 0-00 Attorneys for Cross-defendant YOUTH FOR ENVIRONMENTAL JUSTICE

4 0 Maya Golden-Krasner (SBN ) THE CENTER FOR BIOLOGICAL DIVERSITY P.O. Box La Canada Flintridge, CA 0 T: () -; F: (0) -0 mgoldenkrasner@biologicaldiversity.org Attorney for Cross-defendant CENTER FOR BIOLOGICAL DIVERSITY Kassia Siegel (SBN 0) THE CENTER FOR BIOLOGICAL DIVERSITY Broadway, Suite 00 Oakland, CA T: 0--, F: (0) -0 ksiegel@biologicaldiversity.org Attorney for Cross-defendant CENTER FOR BIOLOGICAL DIVERSITY Deepak Gupta (pro hac vice) GUPTA WESSLER PLLC 0th Street, NW Washington, DC 000 T: (0) -; F: (0) - Attorneys for Cross-defendant SOUTH CENTRAL YOUTH LEADERSHIP COALITION 0

5 0 TABLE OF CONTENTS MEMORANDUM OF POINTS AND AUTHORITIES... I. INTRODUCTION... II. FACTUAL BACKGROUND... III. MEET-AND-CONFER DISCUSSIONS CONCERNING THE PETROLEUM ASSOCIATION S CROSS-COMPLAINT... IV. LEGAL STANDARD GOVERNING ANTI-SLAPP MOTIONS PURSUANT TO CODE OF CIVIL PROCEDURE.... V. ARGUMENT... A. The Petroleum Association s Claims Arise From The Non-Profit Defendants Acts That Were In Furtherance Of The Defendants Right Of Petition Or Free Speech.... B. The Petroleum Association Cannot Demonstrate A Probability That It Will Prevail On Its Claims Against the Non-Profit Defendants..... The Petroleum Association s Due Process Claims Lack Merit Because The Petroleum Association Has Not Been Denied Process.... The Petroleum Association s Claims Against The Non-Profit Defendants Fail Because Due Process Claims Cannot Be Asserted Against A Private Party The Petroleum Association s Due Process Claims Are Likely to Fail Because the Association Has Not Identified Any Property Interest It Has Been Denied..... The Petroleum Association Is Unlikely to Prevail For the Additional Reasons Discussed In the City s Motion To Dismiss.... C. The Non-Profit Defendants Are Entitled To Recover Their Fees and Costs.... VI. CONCLUSION... 0 i

6 TABLE OF AUTHORITIES 0 0 Cases -00 Contacts, Inc. v. Steinberg (00) 0 Cal. App. th... Briggs v. Eden Council for Hope & Opportunity () Cal. th 0... Cabral v. Martins (00) Cal. App. th... Coleman v. Dep t of Pers. Admin. () Cal. d Equilon Enter. v. Consumer Cause, Inc. (00) Cal. th... Garfinkle v. Superior Court () Cal. d... 0 Hill v. Nat l Collegiate Athletic Assn. () Cal. th... 0 Karnazes v. Ares (0) Cal. App. th... Las Lomas Land Co., LLC v. City of Los Angeles (00) Cal.App.th..., Local No., Int l Ass n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland () U.S Ludwig v. Superior Court () Cal. App. th... Navellier v. Sletten (00) Cal. th... Reed v. United Teachers Los Angeles (0) 0 Cal. App. th,... Ryan v. Cal. Interscholastic Fed n-san Diego Section (00) Cal.App.th 0... Seltzer v. Barnes (00) Cal. App. th... Southern California Edison Co. v. Lynch (th Cir. 00) 0 F.d, modified on other grounds (th Cir. 00) 0 F.d... Summit Media LLC v. City of Los Angeles (0) Cal.App.th... Today s Fresh Start, Inc. v. Los Angeles County Office of Educ. (0) Cal.th..., ii

7 Rules Cal. Civ. Proc. Code.(b)()..., Cal. Civ. Proc. Code.(b)()... Cal. Civ. Proc. Code.(c) iii

8 0 0 MEMORANDUM OF POINTS AND AUTHORITIES I. INTRODUCTION This case is a classic example of a retaliatory strategic lawsuit against public participation ( SLAPP ). In this matter, the oil industry has sued two youth groups and a non-profit environmental organization because they settled an earlier-filed lawsuit brought against the City of Los Angeles challenging long-standing municipal practices that authorized oil drilling operations to expand next to their homes and schools in disregard of public interest laws. The City amended many of the policies and practices that the organizations had challenged before the non-profit organizations settled their lawsuit. Accordingly, in order to settle the case, the City agreed to pay some amount of attorney fees to the non-profit organizations, in exchange for dismissal of their lawsuit. In other words, the settlement agreement between the non-profit organizations and the City did not mandate the creation or implementation of any new policies or practices. Upset about the City s new policies and the case settlement, the California Independent Petroleum Association ( Petroleum Association ) in response sued not only the City, but also the non-profit organizations. The Petroleum Association thus named the non-profit organizations as defendants only because they filed, negotiated for, and settled their lawsuit. Fortunately, the State s anti-slapp law protects the non-profit defendants from such actions intended to chill their exercise of constitutional rights to petition and free speech. This special motion to strike should be granted for two reasons: First, the Petroleum Association s claims against the non-profit organizations clearly arise from the organizations protected activity. Filing a lawsuit, negotiating a settlement, and dismissing a lawsuit are textbook examples of the rights to petition and free speech. Second, the Petroleum Association s claims against the non-profit organizations are baseless on numerous, independent grounds. As a threshold matter, the private non-profit organizations are not state actors and therefore cannot as a matter of law deprive the Petroleum Association of any purported right to due process. Moreover, the Petroleum Association has not alleged that the Non-Profit Defendants (or the City, for that matter) undermined any legally

9 0 0 protectable property interest that gives rise to due process protection. While the Petroleum Association is free to challenge the City s new policies if and when those policies give rise to an actionable claim, a challenge to the settlement agreement based on procedural due process grounds is a bizarre and wrong way to do that. The settlement agreement between the non-profit organizations and the City post-dated the City s new procedures and does not require the City to do anything other than pay attorney fees. The Petroleum Association need not have and should not have sued the non-profit organizations in order to challenge the City s new policies. Because the non-profit organizations were sued only on account of their exercising their right to petition and free speech, and because the Petroleum Association s claims against these organizations are meritless, the Court should grant this special motion to strike. II. FACTUAL BACKGROUND The Non-Profit Defendants are two youth groups (Youth For Environmental Justice and the South Central Youth Leadership Coalition) and an environmental organization (the Center for Biological Diversity) (collectively, Non-Profit Defendants ). The organizations are devoted to improving the quality of the environment. The youth groups focus on achieving environmental justice in communities of color. Declar. of Gladys Limón ( Limón Decl. ) Exh. A ( -). On November, 0, the Non-Profit Defendants filed a complaint in California Superior Court against the City of Los Angeles, its Planning Department, and the Director of its Planning Department (collectively, the City ). Id. The complaint alleged that the City () violated a state environmental law by its pattern and practice of approving oil drilling applications in a manner that contravened environmental review mandates, and () engaged in unlawful racial discrimination by requiring inferior protective conditions for oil operations in communities of color, as compared to largely white communities. Id. Shortly after filing that complaint, the City and the Non-Profit Defendants (plaintiffs in their underlying case) commenced settlement discussions. Limón Decl., Exh. K. Accordingly, the City and Non-Profit Defendants entered into a voluntary litigation stay in the state court, so that the parties could devote their time and resources to efforts at resolving the

10 0 0 case. Id. In the meantime, the Petroleum Association sought to intervene in the state-court case, alleging that its members economic interests could be impacted by the non-profit organizations case. The court granted permissive intervention to the Petroleum Association on July 0, 0. See id.,, Exh. J at. On September, 0, the City voluntarily amended procedures related to oil drilling applications that seek City approval for expansion of drilling operations. Id. Exh. B. Specifically, the Department of Planning issued new application forms for oil drilling projects and issued a memorandum establishing procedures and policies for the acceptance and processing of applications for [] drilling approvals pursuant to... [Los Angeles Municipal Code] Section.0-H and... City guidelines for environmental review of the proposed drilling projects as required by the California Environmental Quality Act ( CEQA ). Id. at. The memorandum provides only procedural requirements for application processing and determinations pursuant to the Planning Department s discretion under municipal code, and supersedes past memoranda that similarly outlined such procedures. Id. The memorandum specifies that its purpose includes [e]nsur[ing]... compl[iance] with all legal requirements of CEQA and provid[ing] for transparent disclosure and participation process[.] Id. at. The City s new procedures were not conditioned upon any settlement of the non-profit organizations lawsuit: the City, in fact, implemented these new procedures and posted them publicly before a settlement was reached in that case. Id. On September, 0, the Petroleum Association filed this suit alleging that the Non- Profit Defendants and the City violated its constitutional rights. Id. Exh. C. The Petroleum Association claimed that it was prejudiced by the settlement between the Non-Profit Defendants and the City, id. ( ), even though no such settlement yet existed. It further claimed that [e]xecution of the settlement agreement by [the Non-Profit Defendants] and the City and its subsequent enforcement against [the Petroleum Association s] members... would irreparably harm the due process rights of [the Petroleum Association] to have a decision on the merits rendered on the claims brought by the Non-Profit Defendants against the City. Id. ( ).

11 0 0 The Non-Profit Defendants later settled their case against the City. Because the City had amended its procedures in a manner that mostly satisfied the Non-Profit Defendants, there was not much to discuss in order to resolve the matter. There were only two substantive provisions of the settlement agreement ( Settlement Agreement ): () the Non-Profit Defendants would dismiss their complaint and forgo pursuing their claims, () if and when the City paid a portion of the attorney fees of the Non-Profit Defendants. Id. Exh. D (Terms of Agreement -). To be clear and as the document itself demonstrates the Settlement Agreement between the Non- Profit Defendants and the City was not conditioned on implementation of new procedures. Id. The City could not enter into the Settlement Agreement until the City Council approved the above-referenced attorney fees. On September, 0, the City Council considered (and approved) the fees. Id. Exh. E. Accordingly, the City signed the agreement on September, 0. Id. Exh. D. That same day, per the Settlement Agreement, the Non-Profit Defendants dismissed their complaint. Id. Exh. F. The Petroleum Association s operative cross-complaint lists two causes of action. Id. Exh. G ( -). While denominated as the relief the Petroleum Association seeks declaratory and injunctive relief both causes of action are grounded in alleged violations of the Due Process Clause of the California Constitution. Id. ( 0, ). The theory behind these claims is that the Settlement Agreement between the Non-Profit Defendants and the City violated the Petroleum Association s alleged due process right to litigate the claims that the Non- Profit Defendants previously asserted (and then dismissed) against the City. Id. ( ). While the Petroleum Association s cross-complaint is oddly centered on attacking the Settlement Agreement, the Association s true concern appears to be the City s new drilling application procedures. Id. (, ; Prayer for Relief b, c). However, because the Petroleum Association insisted on attacking the parties litigation conduct and settlement agreement, it named the non-profit organizations as the defendants (along with the City) in its cross-complaint. The Petroleum Association s original Cross-Complaint alleged identical causes of action for violations of the Due Process Clause of the federal constitution. Immediately after the Non- Profit Defendants and the City removed the Petroleum Association s complaint based on federalquestion jurisdiction, the Petroleum Association amended its complaint to replace its federal due process claims with identical due process claims under the California Constitution.

12 0 0 Prior to filing the operative cross-complaint, the Petroleum Association s counsel had obtained a copy of the Settlement Agreement between the Non-Profit Defendants and the City. Declaration of Jennifer Tobkin ( Tobkin Decl. ) (filed Nov., 0) 0; see also Limón Decl. & Exh. G ( ) (Petroleum Association s acknowledging that it reviewed the settlement agreement before filing the present version of the cross-complaint). Accordingly, at the time the Petroleum Association filed its complaint against the Non-Profit Defendants, it knew that the Settlement Agreement included only two substantive provisions: payment of attorney fees to the Non-Profit Defendants and the Non-Profit Defendants subsequent dismissal of their complaint. III. MEET-AND-CONFER DISCUSSIONS CONCERNING THE PETROLEUM ASSOCIATION S CROSS-COMPLAINT Prior to bringing this motion, counsel for the Non-Profit Defendants twice conferred with counsel for the Petroleum Association. Those discussions, transcribed by a court reporter, further demonstrate that the Non-Profit Defendants were not sued for any valid reason. Despite verified allegations in its Cross-Complaint that consistently challenge the Non-Profit Defendants litigation conduct and settlement agreement, the Petroleum Association changed its story once it was on notice of the Non-Profit Defendants proposed anti-slapp motion. Its counsel stated time and again during meet-and-confer calls that the Petroleum Association really wants to challenge only the City s recently adopted procedures for new oil-drilling applications, that it thus does not really care about the settlement agreement between the City and the Non-Profit Defendants, and that the Non-Profit Defendants are therefore not the true targets of the Petroleum Association s legal challenge. The Petroleum Association s counsel stated: You guys are witnesses, that it s not your regulations that we re attacking. It s the City s regulations. That s why I believe that, you know, I don t need you in the case. Limon Decl. Exh. H, at. [V]ery clear that we were interested in having the environmental groups, you know, out of here [this case]. Id. at. If you folks want to keep your settlement together, we re not interested in voiding your settlement,... it really doesn t matter what it requires of the City. There is

13 no reason why we have to go after your settlement. I mean, I want to be very clear about that. We do not need to void your settlement to get the relief that we re seeking. Limon Decl. Exh. I, at. We are not seeking to void the settlement. That s not what our lawsuit seeks to 0 0 do. Id. at. Non-Profit Defendants counsel: [O]ur folks really don t have much to do with what your challenging here.... I m not sure what we re really doing in this case. Petroleum Association s counsel responded: I don t disagree with you[]. I really don t. Limon Decl. Exh. H, at. Taking the Petroleum Association at its word, there was no need for the Petroleum Association to have sued the Non-Profit Defendants. Yet, as the Cross-Complaint repeats throughout, the reason that the Petroleum Association sued the Non-Profit Defendants is that these groups entered into a settlement agreement with the City which is conduct that is protected speech under the anti-slapp laws. IV. LEGAL STANDARD GOVERNING ANTI-SLAPP MOTIONS PURSUANT TO CODE OF CIVIL PROCEDURE. In, the California legislature enacted Code of Civil Procedure section. (the anti-slapp statute ) in order to encourage continued participation in matters of public significance. Equilon Enter. v. Consumer Cause, Inc. (00) Cal. th, -0. Section.(b) authorizes a special motion to strike 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. Cal. Civ. Proc. Code.(b)(). In considering an anti-slapp motion, the court employs a two-step process: First, the moving party must make a prima-facie showing that the challenged claims arise from an alleged act that was 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. Equilon Enter., Cal. th at. Second, the non-moving party must establish that there is a probability that it will

14 0 0 prevail on the challenged claims. Cal. Civ. Proc. Code.(b)(); see also -00 Contacts, Inc. v. Steinberg (00) 0 Cal. App. th, -. 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. Cal. Civ. Proc. Code.(b)(). The anti-slapp statute is intended to provide a fast and inexpensive unmasking and dismissal of SLAPPs. Ludwig v. Superior Court () Cal. App. th, (internal quotation marks omitted). V. ARGUMENT Both prongs of the anti-slapp law are easily satisfied. First, there is no question that the Non-Profit Defendants were sued due to their litigation conduct: negotiating a settlement with the City and executing the resulting settlement agreement. That is, after all, the only reason that the Petroleum Association sued the Non-Profit Defendants. Second, the Petroleum Association cannot demonstrate that it is likely to prevail on its claims. There are myriad insurmountable obstacles to those claims, including that the Petroleum Association has not been denied any process that is due, that non-governmental entities (such as the Non-Profit Defendants) cannot violate the Due Process Clause, and that the Due Process claim cannot succeed here because the Petroleum Association has not identified a legally protected interest that is at stake and cannot be deprived of without due process protections. A. The Petroleum Association s Claims Arise from the Non-Profit Defendants Acts That Were in Furtherance of The Defendants Right of Petition or Free Speech. The Petroleum Association s claims against the Non-Profit Defendants arise out of one of three acts: engaging in settlement discussions with the City, entering into a Settlement Agreement, and/or filing a dismissal of their claims in superior court. Limon Decl. Exh. G,,,,,, 0,,,,, 0. Each of these activities is clearly in furtherance of the Non- Profit Defendants right of petition or free speech. The anti-slapp statute is triggered when a cause of action asserted against a defendant aris[es] from any act of that [defendant] in furtherance of the [defendant s] right of petition or

15 0 0 free speech... in connection with a public issue. Section.(b)(). The anti-slapp statute specifies four categories of acts that are in furtherance of the right of petition or free speech in connection with a public issue. Section.(e). Those categories include: Id. () any written or oral statement or writing made before a legislative, executive or judicial proceeding..., () any written or oral statement or writing made in connection with an issue under consideration of review by a legislative, executive, or judicial body..., 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. The Non-Profit Defendants action(s) that animate the Petroleum Association s claims fall squarely within each of the three categories above. Negotiating for and signing a settlement agreement with the City and/or filing dismissal papers are most clearly statements or writings made in connection with an issue under consideration of review by a legislative, executive, or judicial body. Section.(e); see, e.g., Navellier v. Sletten (00) Cal. th, 0 (holding that the negotiation and execution of a release involved statement[s] or writing[s] made in connection with an issue under consideration or review by a... judicial body for purposes of Section.(e)()); Briggs v. Eden Council for Hope & Opportunity () Cal. th 0, (noting that the California Supreme Court has definitively held [that] statements in relation to pending or upcoming litigation (a public issue ) are covered by Section.. ); Karnazes v. Ares (0) Cal. App. th, - (noting that anticipated litigation and settlement were protected activities under the anti-slapp law); Seltzer v. Barnes (00) Cal. App. th, - (claims subject to anti-slapp law because they arose from defendant s alleged conduct regarding the negotiation of a settlement agreement); Cabral v. Defendants actions must also be connected to a public issue. Section.(b)(). It is beyond doubt that the process by which oil drilling degrades the environment and public health and a challenge to the City s permitting such a public-health crisis is a public issue.

16 0 0 Martins (00) Cal. App. th, 0 ( [A]ll communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding... are per se protected as petitioning activity by the anti-slapp statute. ). Here, the Petroleum Association sued the Non-Profit Defendants only because of their negotiating for and signing a settlement agreement with the City, and then dismissing the case. Under clear case law, the Petroleum Association s claims against the Non-Profit Defendants arose out of the Non-Profit Defendants right of petition or free speech. B. The Petroleum Association Cannot Demonstrate A Probability That It Will Prevail On Its Claims Against the Non-Profit Defendants. The Petroleum Association s claims against the Non-Profit Defendants are baseless. While the burden now shifts to the Petroleum Association to demonstrate it is probable that it will prevail, here, it is very clear that the Petroleum Association cannot. Indeed, its constitutional claims against the Non-Profit Defendants are destined to fail for multiple, independent reasons.. The Petroleum Association s Due Process Claims Lack Merit Because The Petroleum Association Has Not Been Denied Process. The Petroleum Association s Due Process claims cannot succeed because, among other reasons, the Petroleum Association has not been denied any process at all. The Petroleum Association simply has not been denied an opportunity to challenge the City s new procedures. The Due Process Clause affords notice and an opportunity to be heard prior to being deprived of a protected property interest. See, e.g., Today s Fresh Start, Inc. v. Los Angeles County Office of Educ. (0) Cal.th,. One problem (among many) with the Petroleum Association s Due Process claims is that it has not been denied a hearing prior to a deprivation of a protected property interest. While the Petroleum Association s claims are premised on the Non-Profit Defendants settlement conduct and Settlement Agreement, the Petroleum Association may claim that it did not have an opportunity to contest the City s new procedures. However, even assuming arguendo that the City s new procedures could at some point deprive the Petroleum Association s members of a property interest, there is nothing stopping the Petroleum Association from challenging those procedures by filing suit. Whether that is now or in the

17 0 0 future, the Petroleum Association can litigate any alleged legal deficiencies with the new procedures in the very forum that it complains it was denied process (the superior court). Moreover, to the extent that the Petroleum Association strains to argue that the settlement agreement between the City and the Non-Profit Defendants somehow deprived the Petroleum Association of a hearing, the settlement agreement plainly demonstrates the falsity of this claim. The settlement agreement did not create new rules or require the implementation of any new rules, id. Exh. D, and therefore could not deprive the Petroleum Association of any process due. The Petroleum Association admitted as much when its counsel stated on record that [t]here is no reason why [the Petroleum Association has] to go after [the] settlement. See Limon Decl., Exh. I at. And, again, nothing deprives or prevents the Petroleum Association from filing a lawsuit that directly challenges the City s new regulations. That opportunity demonstrates that the Petroleum Association has not been denied a hearing in contravention of any due process rights.. The Petroleum Association s Claims Against The Non-Profit Defendants Fail Because Due Process Claims Cannot Be Asserted Against A Private Party. The Non-Profit Defendants cannot be sued for alleged violations of procedural due process because they are not governmental entities. On this ground, too, the Petroleum Association s due process claims against the Non-Profit Defendants must fail. A plaintiff can sue only a public entity, not a private party, for alleged violations of the Due Process Clause of the California Constitution. Garfinkle v. Superior Court () Cal. d, -. Nearly 0 years ago, the California Supreme Court held that California s due process clause... applies to state, not private action. Id. at. More recently, the state s highest court reiterated that the Due Process Clause permits causes of action against only governmental entities. Hill v. Nat l Collegiate Athletic Assn. () Cal. th, - (citing Garfinkle); see also, e.g., Coleman v. Dep t of Pers. Admin. () Cal. d 0, ( Only those actions that may... fairly be attributed to the state [] are subject to due process protections. ). This blackletter law makes sense, since private parties cannot grant or deny hearings. 0

18 0 0 The Petroleum Association has acknowledged that the Non-Profit Defendants do not have state authority. Limón Decl. Exh. H, at (Petroleum Association s Counsel: [N]o one is claiming that you have state authority here.... This is a case against the City for depriving our clients of due process[.] ). And the Petroleum Association cannot allege any facts or provide legal authority to show that the Non-Profit Defendants conduct at issue was as state actors. Accordingly, they cannot be liable for the Petroleum Association s Due Process claims.. The Petroleum Association s Due Process Claims Are Likely to Fail Because the Association Has Not Identified Any Property Interest It Has Been Denied. A basic tenet of due process challenges is that the plaintiff identify a legally cognizable interest here, a purported property interest that the plaintiff has been denied. Today s Fresh Start, Inc., Cal. th at. But the Petroleum Association fails to identify the deprivation of any such protected property interest. While the Petroleum Association s complaint focuses on attacking the settlement, the Settlement Agreement simply does not upset the Petroleum Association s property interests. And even if the Petroleum Association tried to argue that it is really the City s adoption of the new processes that denied it due process, that claim would similarly fail because the Association has no protected property interest of which it has been deprived by the new processes. a. The Settlement Agreement does not implicate the Petroleum Association s property interests. The settlement agreement was a simple exchange of attorney s fees from the City for dismissal of the Non-Profit Defendants claims. Limón Decl. Exh. D. It thus does not remotely implicate the Petroleum Association s alleged property interests. The Petroleum Association has admitted this. Id. Exh. I, at ( If you folks want to keep your settlement together, we re not interested in voiding your settlement.... There is no reason why we have to go after your settlement. ). That should be sufficient to dismiss the Non-Profit Defendants from the Petroleum Association s due process case. Nor does the Petroleum Association s status as an intervenor in the underlying, nowdismissed lawsuit confer property interests on the Petroleum Association. The general economic

19 0 0 interest upon which it was allowed permissive intervention does not suffice under the different standard in determining whether a protected property interest exists for due process purposes. The Petroleum Association s cross-complaint suggests the extraordinary proposition that original parties to an action are barred from having settlement discussions or settling unless an intervenor also engages, but clear case law refutes that contention: It has never been supposed that one party whether an original party... or an intervenor could preclude other parties from settling their own disputes and thereby withdrawing from litigation. Local No., Int l Ass n of Firefighters, AFL-CIO C.L.C. v. City of Cleveland () U.S. 0, - ( Local No. ). While the Petroleum Association had a general right to embark on settlement communications of its own, it declined to so engage with the Non-Profit Organizations. Further, the Petroleum Association need not have been heard on the Settlement Agreement because such rights exist only where a settlement is presented for court approval as an enforceable consent decree or as required in a class action. Id. In such circumstances, clearly absent in this case, intervenors may present objections but may not have power to block the decree. Id. at. Even then, courts may disapprove of a consent decree only if it imposes [] legal duties or obligations on the [intervenor] or purport[s] to resolve substantive claims under the Constitution, statute, or as a matter of contract[.] Id. at -0. Nothing in the Settlement Agreement here binds the Petroleum Association to do (or not See Pls Opp. to Intervenor s Ex Parte App. Seeking Order to Shorten Time, at - (filed Sept., 0) ( [S]ince becoming a party to this action, [the Petroleum Association] has shown no interest in and made no effort toward settlement communications with Plaintiffs[.] ). The same is true in two other cases upon which the Petroleum Association relies: In Reed v. United Teachers Los Angeles, 0 Cal. App. th, (0), plaintiff students and defendant school district settled the students claims through a consent decree that potentially abrogated seniority rights granted by the union s collective bargaining agreement. Likewise, in Summit Media LLC v. City of Los Angeles (0) Cal.App.th,, the plaintiff challenged terms of a settlement agreement that exempted certain billboard companies from municipal code ordinances that remained applicable to all other members of the public. Id. at. (Moreover, Summit Media was not a due process case. Rather, Plaintiffs in that case claimed that the offending exemption was an ultra vires act. Id. at -. The Petroleum Association can file such an action against the City, but it has elected not to do so.) Here, the Settlement Agreement, unlike in Reed and Summit Media, does not confer any rights or obligations. The Settlement Agreement neither creates nor implements any new processes or regulations.

20 0 0 do) anything. The Settlement Agreement requires only that the Non-profit organizations give up their rights to pursue litigation of their claims and requires dismissal of their case in exchange for payment of attorney fees from the City. The Agreement, therefore, cannot infringe on any conceivable legally protectable interest held by the Petroleum Association s members. b. The City s new processes do not implicate the Petroleum Association s property interests. While the Petroleum Association s Cross-Complaint is premised on the Non-Profit Defendants settlement conduct and Settlement Agreement, see, e.g., Limón Decl., Exh. G,,,,, 0,,,,, 0, the Petroleum Association has indicated, post-filing, that it would prefer to challenge the City s procedures and policies for the acceptance and processing of applications for oil-drilling approvals. Again, nothing prevents the Petroleum Association from properly filing a separate action challenging the procedures as invalid and/or unenforceable as a matter of California law, if and when it is able to identify an actionable claim. But to maintain its due process claims based on adoption of the procedures, it must nevertheless first identify a protected property right of which it was deprived by the adoption of the procedures. It cannot do so for the following simple reason: the Petroleum Association cannot point to a statute or contract that entitles its members to a relevant protected property interest, such as guaranteed approvals or a lower amount of costs, upon submitting future drilling applications. The Petroleum Association asserts broad and vague interests in its members not facing uncertainty, delays, and compliance costs in future drilling applications that may affect their financial interests. Limón Decl., Exh. G. But an abstract need or desire or a unilateral expectation in receiving a benefit is not a property interest subject to due process protections. Ryan v. Cal. Interscholastic Fed n-san Diego Section (00) Cal.App.th 0, 0. Th[e] California due process clause does not protect all conceivable property interests, but only those property interests or benefits that are conferred by statute or contract. Las Lomas Land Co., LLC v. City of Los Angeles (00) Cal.App.th, ( Las Lomas ). The Petroleum Association s alleged property interest based increased compliance costs and uncertainty in environmental review was rejected by the Second District Court of Appeal in

21 0 0 Las Lomas. See, generally, id. In Las Lomas, the court explained that [a]n ownership interest alone does not cloak the prospect of developing [a] property with procedural due process protections. Id. at. Rather, a land use application invokes procedural due process only if the owner has a legitimate claim of entitlement to the approval[.] Id. And, [a] benefit is not a protected property interest under the due process clause if the decision maker has the discretion to grant or deny the benefit. Id. The court then held that the Los Angeles Planning Department s denial of a land development application did not violate constitutional due process rights, further rejecting alleged general economic interests, despite the developer s expenditure of millions of dollars on the application process, because the City s decision was discretionary. Id. at -. The same result would be required here. It is uncontested that approval or denial of drilling applications is within the Planning Department s discretion. As in Las Lomas, the Petroleum Association cannot show that its members are entitled to drilling application approvals, certain environmental review, or compliance costs limitations of which they have been deprived by the City s new processes. The Ninth Circuit s decision in Southern California Edison is also instructive and shows that the Petroleum Association s general economic interests are not protected property interests giving rise to due process protections. Southern California Edison Co. v. Lynch (th Cir. 00) 0 F.d, 00, modified on other grounds (th Cir. 00) 0 F.d. Similar to the proceedings in this matter, in Southern California Edison the trial court proceedings were stayed pursuant to the plaintiff s and defendant s stipulation, during which they negotiated a settlement agreement. Id. at 0. The permissive intervenor consumer interest group objected on due process grounds on account of its financial interests in the utility rates at issue. Id. at 0-0. The Ninth Circuit held that no process was due because the consumer group had no legally cognizable interest in protecting the refund rights, securing [] lower rates, or preventing [] rate increases that the intevenor claimed would inevitably result from the settlement. Id. at 0. As in Southern California Edison, the Petroleum Association s interests in preventing increased costs in submission of drilling applications, securing low environmental compliance

22 0 0 costs, or meeting the oil industry s economic expectations are not legally cognizable interests upon which it may seek due process protections. Accordingly, even if the Petroleum Association were to challenge the new processes on due process grounds, the claim would not succeed because the Association s members have no legally established property interest at stake.. The Petroleum Association Is Unlikely to Prevail For the Additional Reasons Discussed In the City s Motion To Dismiss. The City has filed its own special motion to strike, motion to strike, and demurrer. The Non-Profit Defendants formally join in the City s motions and incorporate herein the City s arguments in those motions. Those additional grounds demonstrate further that the Petroleum Association is unlikely to prevail on its claims. C. The Non-Profit Defendants Are Entitled To Recover Their Fees and Costs. The anti-slapp statute provides that a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney s fees and costs. Cal. Civ. Proc. Code.(c) (emphasis added). Accordingly, the Non-Profit Defendants respectfully request that the Court s order granting this motion include the Petroleum Association s paying the Non-Profit Defendants attorney fees and costs the amount of which the Court can determine upon a noticed motion if the parties unable to resolve that matter without this Court s intervention. VI. CONCLUSION For the foregoing reasons, the Non-Profit Defendants respectfully request that the Court grant their special motion to strike the Petroleum Association s claims in their entirety and order the Petroleum Association to pay their attorney fees and costs. DATED: November, 0 Respectfully submitted, Gladys Limón (SBN ) COMMUNITIES FOR A BETTER ENVIRONMENT Pacific Blvd., Suite 00 Huntington Park, California Tel: () -; Fax: () -0

23 0 0 glimon@cbecal.org Attorneys for Cross-defendant YOUTH FOR ENVIRONMENTAL JUSTICE Adam B. Wolf (SBN ) PEIFFER ROSCA WOLF ABDULLAH CARR & KANE Culver Blvd., Suite 0 Culver City, CA 0 awolf@prwlegal.com T: () -; F: () 0-00 Attorneys for Cross-defendant YOUTH FOR ENVIRONMENTAL JUSTICE Maya Golden-Krasner (SBN ) THE CENTER FOR BIOLOGICAL DIVERSITY P.O. Box La Canada Flintridge, CA 0 T: () -; F: (0) -0 mgoldenkrasner@biologicaldiversity.org Attorney for Cross-defendant CENTER FOR BIOLOGICAL DIVERSITY Kassia Siegel (SBN 0) THE CENTER FOR BIOLOGICAL DIVERSITY Broadway, Suite 00 Oakland, CA T: 0--, F: (0) -0 ksiegel@biologicaldiversity.org Attorney for Cross-defendant CENTER FOR BIOLOGICAL DIVERSITY Deepak Gupta (pro hac vice) GUPTA WESSLER PLLC 0th Street, NW Washington, DC 000 T: (0) -; F: (0) - Attorneys for Cross-defendant SOUTH CENTRAL YOUTH LEADERSHIP COALITION