LA Progressive

Santa Monica Pony Protester Prevails

SLAPPED!  Santa Monica Pony Protester Wins Freedom of Speech Appeal; Court Rules in Support of Marcy Winograd (me) on “Legislative Privilege”

It’s not over until it’s over, but you can imagine how grateful I felt when I read this Monday’s California Court of Appeal ruling dismissing Santa Monica pony operators’ Tawni Angel and Jason Nestor’s lawsuit against me as a SLAPP – Strategic Lawsuit Against Public Participation – designed to chill public debate on animal cruelty.

In a victory for legislative advocates, Division 5 of the California Court of Appeal – a panel of three Justices – unanimously reversed Superior Court Judge Lisa Hart Cole’s decision that I should stand trial for accusing the pony ride and petting zoo operators of animal abuse. The Court, in an opinion written by Justice Sanjay T. Kumar, said such accusations were protected by California’s legislative privilege because I made the accusations while petitioning the City Council to close the pony ride and petting zoos.

I thank the Court of Appeal for siding with ordinary citizens exercising the right of petition to change the law and for not allowing this chilling lawsuit to go forward.

I thank the Court of Appeal for siding with ordinary citizens exercising the right of petition to change the law and for not allowing this chilling lawsuit to go forward. The appellate court decision is a significant ruling for animal lovers and for anyone petitioning their local or state government for legislative change. The Superior Court’s failure to dismiss the lawsuit against me was dangerous, chilling, and disheartening, but fortunately this appellate decision rights that wrong and properly restores a heavy burden to be borne by anyone attacking public advocates involved in legislative campaigns.

The appellate court ruled that the statements in my articles and television interview “relate to the supposed poor treatment the pony ride and petting zoo animals received, and either directly or inferentially solicited public support for (my) petition to cause the City of Santa Monica to take action to end the pony ride and petting zoo.”

The ruling stated:

Civil Code section 47 provides in part, “A privileged publication or broadcast is one made: [¶] . . . [¶] (b) In any (1) legislative proceeding, (2) judicial proceeding, [or] (3) in any other official proceeding authorized by law . . . .” “The privilege set forth in section 47(b) applies to ‘any’ legislative proceeding. The use of the term ‘any’ necessarily requires that its application be construed broadly” (Spitler v. Children’s Institute International (1992) 11 Cal.App.4th 432, 440 (Spitler)), and it applies “when it is shown that the statement … bears some connection to the work of the legislative body …”

Some background …

In March, 2014, I launched a petition to close the pony ride and petting zoo featured at the city-sponsored farmers market blocks from my home in Ocean Park.  I first learned the pony operators were suing me when a reporter contacted me to get reaction to the operators’ lawyers’ press release announcing the lawsuit.

On September 9, 2014, after hearing arguments from proponents and opponents of the pony ride and petting zoo, the Santa Monica City Council voted to seek alternatives to the pony ride and zoo when the operators’ contract expired, and in May of 2015 the City of Santa Monica closed the animal exhibit after twelve years of ponies circling round and round on hard ground – all the while tied to a metal bar.

At the time the lawsuit was filed some 1400 people had signed my petition – including Santa Monica school board members (now State Senator Ben Allen and Oscar de la Torre), former planning commissioners, two former mayors of Santa Monica, a minister at the Church of Ocean Park, and several merchants on Main Street.

While the Superior Court dismissed the entire SLAPP suit against my co-defendant Danielle Charney, Judge Cole left much of the lawsuit against me intact. On appeal, however, I prevailed on the ground of legislative privilege – in other words, the Court agreed that all of my advocacy efforts were connected to the City Council’s legislative decision and were therefore absolutely privileged from civil suit. 

During the course of the legal battle, two organizations filed amicus or friend of the Court briefs: the Reporters Committee for Freedom of the Press and The Animal Legal Defense Fund. The Court of Appeal, however, declined to read the briefs.

Nevertheless, the Court of Appeal ruled in my favor, which is a huge victory for those who value robust public debate, the First Amendment, and legislative advocacy. 

 Under the SLAPP law, the plaintiffs are required to pay attorneys’ fees.

Marcy Winograd