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CASE NO.: G058996

COURT OF APPEAL, STATE OF CALIFORNIA FOURTH APPELLATE DISTRICT,

DIVISION THREE

FRIENDS FOR FULLERTON’S FUTURE, JOSHUA

FERGUSON, and DAVID CURLEE,

Appellants,

-vs-

CITY OF FULLERTON

Respondent.

On appeal after issuance of a preliminary injunction

and denial of anti-SLAPP motion Case No. 30-2019-01107063-CU-NP-CJC

The Honorable James L. Crandall, Judge - (657) 622–5233

APPELLANTS’ OPENING BRIEF

KELLY A. AVILES (SBN 257168)

Law Offices of Kelly A. Aviles 1502 Foothill Blvd., Ste. 103-140

La Verne, CA 91750 Phone: (909) 991-7560

kaviles@opengovlaw.com Attorneys for Defendants/Appellants

Friends for Fullerton’s Future, Joshua Ferguson, and David Curlee

Court of Appeal, Fourth Appellate District, Division ThreeKevin J. Lane, Clerk/Executive Officer

Electronically RECEIVED on 8/21/2020 on 3:31:16 PM

Court of Appeal, Fourth Appellate District, Division ThreeKevin J. Lane, Clerk/Executive Officer

Electronically FILED on 8/21/2020 by M. Castaneda, Deputy Clerk

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TABLE OF CONTENTS

TABLE OF AUTHORITIES ................................................. 4

I. INTRODUCTION .......................................................... 10

II. STATEMENT OF THE CASE ....................................... 18

A. Statement of Facts ..................................................................... 18

B. Statement of Appealability ....................................................... 22

C. Standard of Review ................................................................... 23

III. ARGUMENT .............................................................. 24

A. The City Cannot Prevail On Its Complaint, Or Any Of The Causes Of Action Therein, As A Matter Of Law Because No One Needs Permission to Visit An Unprotected Website. ......................... 24

1. The CFAA and the CDAFA do not prevent

the press from accessing documents inadvertently posted by a public agency on

its website where the agency has removed

technical barriers to access. .............................................. 24

2. The City’s other causes of action suffer all the same fundamental problem: they all

contain an element of unlawful act, which

cannot be met given the “authorization”

analysis under both the CFAA and CDAFA ....................... 27

i. Conversion and Trespass to Chattels .......................... 28

ii. Government Code, section 6204, et seq.

(the “Replevin Law”) .................................................... 30

iii. Conspiracy..................................................................... 31

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3. Reading the CFAA, CDAFA, or any other

crime or tort in a broad manner that

criminalizes routine newsgathering runs afoul of the First Amendment. ......................................... 32

B. The Preliminary Injunction Is An Unconstitutional Prior Restraint. ............................................ 33

1. Prior restraints are consistently invalidated by our courts

2. Claims that Information Is Confidential

Or Obtained Illegally Is Insufficient to

Justify a Prior Restraint. ................................................... 38

C. The Trial Court Should Have Granted the Anti-SLAPP Motion. ......................................................................... 42

D. The Court Improperly Relied on Inadmissible Evidence To Support Its Ruling ............................................... 48

IV. CONCLUSION ........................................................... 50

CERTIFICATE OF WORD COUNT ..................................... 51

PROOF OF SERVICE ........................................................ 52

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TABLE OF AUTHORITIES

Cases

Ardon v. City of Los Angeles (2014) 232 Cal.App.4th 175............................................................ 44

Ashcraft v. Conoco (2000) 218 F.3d 288 ...................................................................... 42

Association for Los Angeles Deputy Sheriffs v. Los Angeles Times Communications LLC (2015) 239 Cal.App.4th 808 ............................................... 37, 41, 45

Baral v. Schnitt (2016) 1 Cal.5th 376 ................................................................. 46, 47

Barrett v. Rosenthal (2006) 40 Cal.4th 33 ...................................................................... 44

Bartnicki v. Vopper (2001) 532 U.S. 514 ........................................................................ 40

Branzburg v. Hayes (1972) 408 U.S. 665 ....................................................................... 32

Bridges v. California (1941) 314 U.S. 252 ......................................................................... 39

CBS v. Davis (1994) 510 U.S. 1315....................................................................................35

City of Costa Mesa v. D'Alessio Investments, LLC (2013) 214 Cal.App.4th 358 ........................................................... 23

Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469 ................................................................... 39, 41

Craigslist, Inc. v. 3Taps, Inc. (N.D. Cal. 2013) 964 F.Supp.2d 1178.................................. 14, 29, 31

Dailey v. Superior Court (1896) 112 Cal. 94 ........................................................................... 36

Doe v. Gangland Productions, Inc. (9th Cir. 2013) 730 F.3d 946.......................................................... 44

DVD Copy Control Ass'n Inc. v. Bunner (2004) 116 Cal.App.4th 241 ........................................................... 23

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eBay, Inc. v. Bidder's Edge, Inc. (N.D. Cal. 2000) 100 F.Supp.2d 1058 ........................................... 30

Equilon Enter. v. Consumer Cause, Inc. (2002) 29 Cal.4th 53 ............................................................... 42, 43

Facebook, Inc. v. Power Ventures (9th Cir. 2016) 844 F.3d 1058........................................................ 26

Flack v. Municipal Court (1967) 66 Cal.2d 981 ...................................................................... 36

Florida Star v. B.J.F. (1989) 491 U.S. 524 ............................................................ 35, 40, 42

Freedom Communications v. Superior Court (2008) 167 Cal.App.4th 150 ................................................ 16, 37, 38

Garamendi v. Executive Life Ins. Co. (1993) 17 Cal.App.4th 504.............................................................. 23

Gilbert v. National Enquirer, Inc. (1996) 43 Cal.App.4th 1135 .......................................................40, 41

hiQ Labs, Inc. v. LinkedIn Corporation (9th Cir. 2019) 938 F.3d 985 ........................................ 14, 24, 25, 26

Houchins v. KQED, Inc. (1978) 438 U.S. 1 ............................................................................ 32

Hunter v. CBS Broadcasting, Inc. (2013) 221 Cal.App.4th 1510 .......................................................... 45

Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228 ......................................................... 44

Hupp v. Freedom Communications, Inc. (2013) 221 Cal.App.4th 398 ........................................................... 44

Hurvitz v. Hoefflin (2000) 84 Cal.App.4th 1235 ............................................... 16, 38, 39

In re Charlotte Observer (4th Cir. 1990) 921 F.2d 47 ............................................................ 39

In re Facebook Privacy Litigation (N.D. Cal. 2011) 791 F.Supp.2d 705 ................................................ 27

Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342 .................................................................. 29

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Jamison v. Department of Transp. (2016) 4 Cal.App.5th 356 ............................................................... 23

KCST-TV Channel 39 v. Municipal Court (1988) 201 Cal.App.3d 143 .............................................................. 37

KGTV Channel 10 v. Superior Court (1994) 26 Cal.App.4th 1673 ............................................................ 37

Kronemyer v. Internet Movie Data Base, Inc. (2007) 150 Cal.App.4th 941 ........................................................... 44

Landmark Communications v. Va. (1978) 435 U.S. 829 ...................................................................40, 41

Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156 ........................................................... 44

Matson v. Dvorak (1995) 40 Cal.App.4th 539 ............................................................. 45

Miami Herald Publ’g Co. v. Tornillo (1971) 418 U.S. 241 ......................................................................... 39

Navellier v. Sletten (2002) 29 Cal.4th 82 ...................................................................... 43

Near v. Minnesota (1931) 283 U.S. 697 .........................................................................35

Nebraska Press Ass'n v. Stuart (1976) 427 U.S. 539 .................................................................. 34, 36

New York Times v. US (1973) 403 U.S. 713 ...................................................... 34, 35, 36, 39

Nicholson v. McClatchy Newspapers (1986) 177 Cal.App.3d 509 ..................................................33, 40, 41

NovelPoster v. Javitch Canfield Grp. (N.D. Cal. 2014) 140 F.Supp. 3d 938 .............................................. 27

Oklahoma Publishing Co. v. District Court (1977) 430 U.S. 308 ..................................................................40, 41

Okorie v. Los Angeles Unified Sch. Dist. (2017) 14 Cal.App.5th 574, ..............................................................47

Organization for a Better Austin v. Keefe (1971) 402 U.S. 415 .................................................................... 16, 38

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Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219 .............................................................. 23

People v. Sanchez (2016) 63 Cal.4th 665..................................................................... 49

Procter & Gamble v. Bankers Trust (1996) 78 F.3d 219 ..................................................................... 16, 35

Providence Journal Co. (1st Cir. 1986) 820 F.2d 1342 .......................................................... 37

Pulte Homes, Inc. v. Laborer’s Int’l Union of N. Am. (6th Cir. 2011) 648 F.3d 295 ........................................ 14, 24, 29, 31

Ramona Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510 ........................................................... 43

San Diegans for Open Government v. San Diego State University Research Foundation (2017) 13 Cal.App.5th 76 .......................................................... 44, 49

San Diegans for Open Governmen v. San Diego State University Research Foundation (2017) 11 Cal.App.5th 477 .............................................................. 45

San Diego Unified Port Dist. v. U.S. Citizens Patrol (1998) 63 Cal.App.4th 964 ............................................................. 36

Sanders v. ABC (1999) 20 Cal.4th 907 .................................................................... 33

Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200 .................................................................... 32

Smith v. Daily Mail Pub. Co (“Daily Mail”) (1979) 443 U.S. 97 ........................................................ 16, 32, 38, 40

Steele v. Marsicano (1894) 102 Cal. 666 ........................................................................ 28

Summit Bank v. Rogers (2012) 206 Cal.App.4th 669 .................................................... 24, 44

Sweetwater Union High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931 ....................................................................... 48

Taus v. Loftus (2007) 40 Cal.4th 683 .................................................................... 43

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Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559 ..................................................... 28, 30

U.S. v. Nosal (“Nosal I”)) (9th Cir. 2012) 676 F.3d 854 .......................................................... 24

Vogel v. Felice (2005) 127 Cal.App.4th 1006 ......................................................... 44

Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15 .............................................................. 43

Welco Electronics, Inc. v. Mora (2014) 223 Cal.App. 4th 202 .......................................................... 28

Williams v. Facebook, Inc. (N.D. Cal. 2018) 384 F.Supp.3d 1043 ............................................ 26

Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811............................................................... 45, 48

U.S. v. Nosal (“Nosal II”) (2016) 844 F.3d 1024 ..................................................................... 26

Statutes

18 U.S.C. § 1030 ..........................................................................passim

42 U.S. Code § 2000aa ...................................................................... 50

Cal. Code Civ. Proc. § 425.16 ................................................. 22, 43, 45

Cal. Code Civ. Proc. § 901.1 ............................................................... 22

Cal. Code Civ. Proc. § 904.1(a)6 ........................................................ 22

Cal. Evid. Code § 803......................................................................... 49

Cal. Evid. Code § 1402 ....................................................................... 49

Cal. Evid. Code § 1070 ................................................................. 42, 50

Cal. Gov’t. Code § 6204 .................................................... 13, 28, 30, 31

Cal. Pen. Code § 1524 ......................................................................... 50

Cal. Pen. Code § 502 ...................................................................passim

Cal. Gov’t. Code § 6204.2 ................................................................... 31

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Constitutional Provisions

United Stated Constitution, 1st Amendment .............................passim

Cal. Const., Art. I, § 2(a) .............................................................passim

Rules

California Rule of Court 3.1322 ................................................... 45, 46

Other Authorities

Black’s Law Dictionary (10th ed. 2014) ............................................ 26

Judicial Council Of California Civil Jury Instruction 3600 .............. 30

Orin S. Kerr, Norms of Computer Trespass 116 Colum. L. Rev. 1143 ..................................................................................... 24

R. Smolla, Smolla & Nimmer on Freedom of Speech § 15:10 (2004) ............................................................................................. 33

Sen. Rules Com., Off. of Sen. Floor Analyses, 3d reading analysis of AB 1245 (2009-10 Reg. Sess.) as amended June 30, 2009 ......................................................................................... 30

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TO THE HONORABLE PRESIDING JUSTICE AND ASSOCIATE

JUSTICES OF THE COURT OF APPEAL OF THE STATE OF

CALIFORNIA, FOURTH APPELLATE DISTRICT, DIVISION

THREE:

Defendants/Appellants Friends for Fullerton’s Future, Joshua

Ferguson, and David Curlee (collectively, the “Appellants”)

respectfully submit this brief in support of their appeal from an

order by Orange County Superior Court (“Trial Court”) granting

Plaintiff/Respondent City of Fullerton’s (“City”) motion for a

preliminary injunction and denying Appellants’ anti-SLAPP motion.

The preliminary injunction violates the basic constitutional

proscription against government censorship of the press. It is well-

established that an “order enjoining publication…is a classic prior

restraint,” and is “presumptively invalid.” South Coast Newspapers

v. Superior Court (2000) 85 Cal.App.4th 866, 869-870.) The City’s

action, seeking to enjoin publication and recover documents it

inadvertently posted on a publicly accessible website, is also a

strategic lawsuit against public participation (“SLAPP”) filed in

retaliation of acts in furtherance of Appellants publication of

information unflattering to the City. Therefore, Appellants

respectfully request that this court overturn the Trial Court’s order in

its entirety by vacating the preliminary injunction and granting the

anti-SLAPP motion.

I. INTRODUCTION

Friends for Fullerton’s Future maintains a website,

https://www.fullertonsfuture.org/, (the “Blog”), dedicated to

reporting news, politics, police activity, and government affairs in

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the City of Fullerton.1 (2 AA 1128.) The Blog has many contributors,

including Joshua Ferguson and David Curlee. Over the past few

years, in the course of their reporting for the Blog, Mr. Ferguson and

Mr. Curlee have made a number of California Public Records Act

(“CPRA”) requests. (1 AA 109.) The City created a Dropbox account,

a web-based file hosting platform that allows users to store and

share files, in order to provide public records to individuals who had

submitted public records requests under the CPRA, including

1 For example, the Blog’s investigation and reporting on City Manager Joe Felz auto accident led to DUI charges and a plea for reckless driving (https://www.fullertonsfuture.org/2016/city-manager-felz-involved-in-potential-dui-accident-after-election-night-celebration/; https://ocweekly.com/fullerton-city-manager-involved-in-post-election-party-car-crash-smelled-of-alcohol-7663250-2/); https://voiceofoc.org/2017/12/former-fullerton-city-manager-pleads-guilty-to-reckless-driving-in-2016-election-night-car-crash/; https://losangeles.cbslocal.com/2017/03/03/former-fullerton-city-manager-charged-with-dui-months-after-he-was-accused-of-getting-special-treatment/) and the termination of Fullerton Sergeant Jeff Corbett for covering up the Felz incident (see https://www.fullertonsfuture.org/2018/complaint-against-officers-involved-in-felz-dui-coverup-sustained/); charges against a City Council candidate and Mayor’s wife Paulette Chaffee (https://www.fullertonsfuture.org/2018/is-doug-chaffee-under-investigation/; https://www.ocregister.com/2018/10/17/ fullerton-city-council-candidate-withdraws-after-allegations-of-sign-theft-and-carpetbagging/); the resignation of Police Chief David Hendricks and Police Captain Thomas Oliveras (https://www. fullertonsfuture.org/2018/trouble-at-the-police-department/); https://www.fullertonsfuture.org/2018/this-is-why-chief-hendricks-resigned/); criminal investigations into a political candidate for voter fraud (https://www.ocregister.com/2010/03/19/blogger-asks-da-to-investigate-sidhus-address/); exposure of an officer arrested for theft in Florida (https://www.fullertonsfuture.org/2011/fullerton-cop-arrested-for-stealing-ipad-at-tsa-checkpoint/); and conflicts at the DA’s office which led an ADA to be put on administrative leave pending investigation (https://www.fullertonsfuture.org/2019/a-different-flory-problem/).

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Appellants. (1 AA 106, 108, 109, 123; 2 AA 727, 747-748, 751-765.)

The City then created www.CityofFullerton.com/outbox, a site that

would automatically re-direct anyone who visited it to the City’s

Dropbox account. (2 AA 727-732, 879.) While Dropbox’s inherent

safeguards would require credentials (user identification and

password) to access an account, the City removed these

requirements, so that the public could freely access the files the City

had placed in the Dropbox account. (2 AA 727-732, 879.)

The City frequently provided the address of its website,

www.CityofFullerton.com/outbox, to various members of the public,

including Joshua Ferguson and David Curlee. (1 AA 106, 108, 109,

123; 2 AA 727, 747-748, 751-765.) Occasionally, the City also sent

links to specific folders that could be found on the site. (1 AA 109.)

No password was necessary to access the site or download any of the

files. (1 AA 106, 108, 109, 123; 2 AA 727, 747-748, 751-765.)

In 2019, the Blog published a number of articles highly critical

of the City. In response, it received a demand from the City,

claiming that documents posted with the articles were “confidential”

and demanding their return and removal. (1 AA 025, 047-048, 451.)

The City later alleged that the documents were improperly obtained

from the City’s website, www.CityofFullerton.com/outbox. (1 AA 93-

94.) Apparently, the City had comingled thousands of documents

that it had not intended for public view in the very Dropbox account

that it used to distribute records to the public and anyone visiting

www.CityofFullerton.com/outbox would have access to all of it.

Yet, even after the Blog refused the City’s demands, invoking

Shield Law and First Amendment protections (2 AA 96-99), the City

did nothing.

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Months later, after Appellant Joshua Ferguson filed a CPRA

lawsuit against the City claiming it was wrongfully withholding

disclosable public records, that the City retaliated. The City filed this

lawsuit, seeking to recover any document the Blog obtained from

www.CityofFullerton.com/outbox and to restrain the publication of

those records.

The City’s primary claim is that the Blog violated the Federal

Computer Fraud and Abuse Act (18 U.S.C. § 1030, et seq.) (“CFAA”)

and its California counterpart, the Comprehensive Computer Data

Access and Fraud Act (Cal. Pen. Code § 502 et seq.) (“CDAFA”).2

These laws have been the subject of much scrutiny, specifically for

the concerns that their expansive application could criminalize

routine newsgathering.3 This retaliatory action by the City is the

case in point.

The CFAA creates criminal and civil liability for intentionally

accessing a protected computer to obtain information “without

authorization” or for “exceed[ing] authorized access.” (18 U.S.C. §

1030 (a)(2)(C).) Similarly, liability exists under CDAFA for taking,

copying, or making use of data from a computer “without

2 The lawsuit also included claims of violations of Cal. Gov’t. Code § 6204, et seq., conversion, trespass to chattels, and conspiracy, all based on the underlying claim that Appellants accessed the City’s website without permission. (1 AA 023; 2 AA 1417 [Trial Court’s ruling summarizing the City’s allegations: “plaintiff alleges that the defendants accessed, reviewed, and downloaded the City’s records and published some of the documents, as well as information learned from them”].)

3 See further amicus briefs filed by both Electronic Frontier Foundation and Reporters Committee for Freedom of the Press in the related writ challenging the previously issued TRO that restrained the Blog.

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permission.” (Cal. Penal Code § 502 (c)(2).) Thus, determining

whether access was “authorized” is central to imposing liability

under both statutes.

Without some barrier to entry, everyone is “authorized” to

access data placed on the internet. (See, e.g., Pulte Homes, Inc. v.

Laborer’s Int’l Union of N. Am. (6th Cir. 2011) 648 F.3d 295, 304

[public presumptively authorized to access “unprotected website”];

Craigslist, Inc. v. 3Taps, Inc. (N.D. Cal. 2013) 964 F.Supp.2d 1178,

1182 [making information publicly available on a website gives

everyone “authorization” to view it under the CFAA].) Thus, neither

the CFAA nor the CDAFA prohibit public access to information

placed online without any typical technological barriers to access,

like passwords, firewalls, and log-in credentials.

The Ninth Circuit explained this recently in hiQ Labs, Inc. v.

LinkedIn Corporation (9th Cir. 2019) 938 F.3d 985, 1000. “[T]he

CFAA contemplates the existence of three kinds of computer

information,” one of which is “information for which access is open

to the general public and permission is not required.” (Id. at 1002.)

“[W]here access is open to the general public, the CFAA ‘without

authorization’ concept is inapplicable.” (Id. at 1000.)

Despite this authority, the Trial Court apparently believed one

must have express permission to visit a website to avoid a violation

of the CDAFA.4 As the Trial Court explained, the CDADA, unlike the

4 For example, the Court found that one of the files at issue, which the City claims contained information that was ultimately published on the Blog, the “pr1919” file, was never among the folders expressly sent by the City to the Appellants, and thus “is prima facie evidence that the defendants did not have permission from the City to be in possession of the ‘pr1919’ zip file.” (2 AA 1419.) In another example, the trial court reasoned that “Ferguson also appears to have accessed the Dropbox account without permission and downloaded other

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CFAA, only requires access without permission and “this case [ ]

shows there was access without permission.” (2 AA 1416-1417; RT

79.) But no one needs permission to visit a website. Instead of

asking if Appellants had permission to access the files on the City’s

website, the Trial Court should have asked whether the City took the

necessary steps to restrict access. While the City would rather avoid

this question, the evidence demonstrates that it did not. (1 AA 106,

108, 109, 123; 2 AA 727-732, 747-748, 751-765, 879.)

Apart from this fundamental flaw, the Trial Court’s order is a

classic example of an unconstitutional prior restraint. The

preliminary injunction prevents the Blog from, amongst other

things, publishing any records the City made public on

www.CityofFullerton.com/outbox. (2 AA 1380.) The injunction

prohibits the“[s]elling, publishing, distributing, disclosing or

otherwise using any of the information or documents obtained from

the City Dropbox folders” and “[c]onspiring with third parties to sell,

publish, distribute, disclose or otherwise use any of the information

or documents obtained from the City Dropbox folders,” and creates a

mandatory preservation order of documents and data “until such

time as they may be examined as part of the litigation and the Court

determines whether they should be permanently destroyed under

Court-appointed supervision.” (2 AA 1380.)

folders besides the ‘pr1919’ file” because the assistant city clerk, Mea Klein “avers that the City only ever gave Ferguson access to two Dropbox links, the first of which was sent in December 2018,” but “the City’s Dropbox log shows that Ferguson was accessing and downloading folders from the account, without permission, as early as 12/28/17.” (2 AA 1419.)

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This prior restraint is presumptively unconstitutional.

(Organization for a Better Austin v. Keefe (1971) 402 U.S. 415, 419;

see also Freedom Communications v. Superior Court (2008) 167

Cal.App.4th 150, 154 [prior restraint is a "most extraordinary remedy

that may be used only in exceptional cases"].) It cannot be issued

unless it is necessary "to further a state interest of the highest order"

(Smith v. Daily Mail Pub. Co (“Daily Mail”) (1979) 443 U.S. 97, 102)

and the publication "threaten[s] an interest more fundamental than

the First Amendment itself." (Procter & Gamble v. Bankers Trust

(1996) 78 F.3d 219, 227; see also Hurvitz v. Hoefflin (2000) 84

Cal.App.4th 1235, 1243 [“[r]espondent can point to no case where

any court in the nation has held that a threatened violation of the

patient/physician privilege or any other privilege justifies a prior

restraint of speech”].) Clearly, such an interest is not at issue here.

Additionally, this is a SLAPP action that undermines the free

press by attempting to criminalize routine newsgathering and

prevent the publication of information of great public concern

relating to the governance of the City of Fullerton. The Trial Court

recognized this, finding that the first prong was satisfied because the

claims underlying the entire complaint arose from protected activity:

newsgathering and reporting. (RT 72; 2 AA 1416-17.) As the Court

explained in response to the City’s claims that it had no idea why

someone would download and publish the files, the Trial Court

correctly explained that “they want Fullerton to be transparent, and

they want the people in Fullerton to be able to make knowledgeable

decisions in voting. So they want to reveal to the citizens in

Fullerton what the city people are doing and how the city's

conducting business. … Whether they’re covering for police - - or city

councilmen. I think it’s just a matter of transparency.” (RT 72.)

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Unfortunately, when the Trial Court turned to the second

prong, it applied the incorrect standard. The court found that

although the anti-SLAPP motion was made to the entire complaint,

“plaintiff need only make an adequate showing as to one cause of

action in order to defeat the motion.” (2 AA 1417.)

The Trial Court’s focus on whether Appellants demonstrated

that there was express permission from the City to access the files or

visit the website also improperly shifted the burden of proof to

Appellants. But the burden to both state and support each cause of

action, including the existence of technical barriers, was the City’s.

The City’s complaint fails to even allege that the website was

protected in any way and the evidence introduced throughout the

case confirms it was not. (1 AA 106, 108, 109, 123; 2 AA 727-732,

747-748, 751-765, 879.) Therefore, the City cannot prevail as a

matter of law.

The Court also relied on a myriad of inadmissible evidence,

over the objection of Appellants. (See 2 AA 824, 913, 1234.) Most

problematic were exhibits that the City’s expert attempted to pass off

as the “Dropbox activity log showing all instances where Mr.

Ferguson accessed the City’s Dropbox account….” (See, e.g., 1 AA

144-145.) The City only admitted that the exhibits were not the

actual Dropbox logs (2 AA 879; 1229-1230) after Appellants’ expert

raised concerns about the authenticity of the exhibits. (2 AA 735.)

All these errors—using the incorrect standard for an anti-

SLAPP motion, improperly shifting the burden of proof to the

Appellants, ignoring the overwhelming case law prohibiting the

issuance of prior restraints, and incorrectly interpreting the

CDAFA—culminated into the Court’s ruling denying the anti-SLAPP

in its entirety and granting the preliminary injunction.

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Appellants now appeal the Trial Court’s ruling and

respectfully request that this Court (1) find that the City cannot

prevail as a matter of law on any cause of action in the complaint;

(2) reverse the preliminary injunction; and, (3) grant the anti-

SLAPP motion as to the entire complaint and each cause of action

therein.

II. STATEMENT OF THE CASE

A. Statement of Facts

Appellants Friends for Fullerton’s Future maintains a website,

https://www.fullertonsfuture.org/, (the “Blog”) dedicated to

reporting news, politics, police activity, and government affairs in

the City of Fullerton. (2 AA 1128.) The Blog publishes articles from

many contributors, including Appellants Joshua Ferguson and David

Curlee. (2 AA 1128.) Over the years, the Blog has uncovered and

reported on numerous instances of questionable conduct by those in

power in the City. Some of its reporting has led to investigations,

resignations, and legal charges, and many of its articles have been

picked up by other, larger media publications. (See p. 11, fn. 1.)

Over the past few years, in the course of their reporting for the

Blog, Mr. Ferguson and Mr. Curlee have made a number of

California Public Records Act (“CPRA”) requests. (1 AA 109.) The

City chose to create a Dropbox account, a web-based file hosting

platform that allows users to store and share files, which it used to

produce public records to individuals, including Appellants, who had

submitted requests under the CPRA. (1 AA 106, 108, 109, 123; 2 AA

727, 747-748, 751-765.)

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The City also created www.CityofFullerton.com/outbox,5 a

webpage which would automatically redirect anyone who visited the

page to the City’s Dropbox account that it used to distribute public

records. (2 AA 727-732, 879.) While Dropbox’s inherent safeguards

would require credentials (user identification and password) to

access an account, the City removed these requirements in order to

ensure that those visiting the site could freely access the public

records the City had placed there. (2 AA 727-732, 879.)

The City frequently provided the address of its website,

www.CityofFullerton.com/outbox, to various members of the public,

including Joshua Ferguson and David Curlee. (1 AA 106, 108, 109,

123; 2 AA 727, 747-748, 751-765.) The City also sent links to specific

folders contained on the site. (1 AA 115-121.) No password was

required to access the site or download any folders located on

www.CityofFullerton.com/outbox. (1 AA 106, 108, 109, 123; 2 AA

727, 747-748, 751-765.) Occasionally, the folders the City placed on

the site contained .zip files, which occasionally used a generic

password such as “Fullerton!” or “Full3rtOn!” to unzip. (1 AA 115,

123.)6 The City frequently distributed these generic passwords to

members of the public, including Appellants. (1 AA 115, 123.) At no

time did the City inform Appellants that they were not allowed to

5 The link to the City’s Dropbox account is no longer “live” and was presumably deactivated prior to this lawsuit. The City’s claims only relate to access of www.CityofFullerton.com/outbox, not to the City’s computer network.

6 Even in the few instances where a password was necessary to unzip a file, a user would not encounter this prompt until after they had visited the site and downloaded the file, long past the point of “access” covered by the CFAA or CDAFA.

- 20 -

access www.CityofFullerton.com/outbox or that there were any

limitations on their access to the site. (2 AA 744, 748-748.)

After years of providing the public with this unfettered access

to www.CityofFullerton.com/outbox and in response to a number of

articles that placed the City in an unfavorable light, the City

Prosecutor, Gregory Palmer of Jones & Mayer, sent a cease and

desist letter to Joshua Ferguson on behalf of the City of Fullerton

and/or its police department. (1 AA 087.) The letter complained

that the Blog had published “confidential” documents and demanded

that the Blog remove them from the website, refrain from posting

any other confidential documents “illegally” obtained by the Blog,

return all the confidential documents to the City, and delete any

electronic copies of confidential documents in the Blog’s possession.

(1 AA 87.)

On July 11, 2019, the City of Fullerton sent correspondence to

Kelly Aviles, attorney for the Blog. (1 AA 93-94.) The letter claimed

that the Blog was in unlawful possession of records obtained from

the City’s “Dropbox account (https://cityoffullerton.com/outbox)

that were not directly provided by the City to Joshua Ferguson or

any of [the Blog’s] agents or associates through an emailed link,

including but not limited to records contained in a folder named

“pr1919 – Josh Ferguson.” (1 AA 93-94.) The letter again claimed

that many confidential documents were posted on the Blog. (1 AA

93-94.)

On July 31, 2019, Ms. Aviles responded to the City, denying

the City’s allegations and advising the City of the Blog’s Shield Law

and First Amendment protections. (1 AA 96-99.) The City made no

attempt to respond or contact Appellants or Ms. Aviles after July 31,

2019.

- 21 -

On or about October 10, 2019, Appellant Ferguson filed a

lawsuit against the City for its failure to comply with the CPRA,

including improperly withholding numerous records related to

police and employee misconduct, some of which are the very same

records the City claims the Blog improperly obtained the City’s

website. (Ferguson v. City of Fullerton, Orange County Superior

Court, Case No. 30-2019-01103679-CU-WM-CJC.) The lawsuit was

served on October 17, 2019.

One week later, in an attempt to silence the Blog and in

retaliation for Mr. Ferguson’s CPRA lawsuit, the City filed this

lawsuit. The City claims Appellants “stole” City documents and

“hacked” the City’s servers, using a wildly overbroad and

impermissible interpretation of the CFAA and its California

counterpart, the CDAFA. The lawsuit also claims violations of Gov’t.

Code section 6204, et seq., conversion, trespass to chattels, and

conspiracy. (1 AA 023.) The City alleges that the Appellants should

have known the documents the City placed on the website were not

intended for public disclosure despite the fact that the folders

located on the website used Appellants’ names, initials, or email

address as part of the folder’s name. (1 AA 341.)

The next day the Trial Court issued a temporary restraining

order over Appellants’ objections prohibiting the “[s]elling,

publishing, distributing, disclosing or otherwise using any of the

information or documents obtained from the City Dropbox folders”

and “[c]onspiring with third parties to sell, publish, distribute,

disclose or otherwise use any of the information or documents

obtained from the City Dropbox folders,” as well as a mandatory

preservation order of documents and data “until such time as they

may be examined as part of the litigation and the Court determines

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whether they should be permanently destroyed under Court-

appointed supervision.” (1 AA 395.)

Appellants immediately filed a petition with this Court,

challenging the TRO and seeking a stay of the prior restraint.

(Friends for Fullerton’s Future, et al. v. Superior Court (City of

Fullerton), California Court of Appeal, Fourth District, Division 3,

Case No. G058506, filed 10/25/19.) On November 7, 2019, this

Court issued a Palma notice, staying portions of the restraining

order and on December 5, 2019, this Court deferred its “ruling on the

petition for writ of mandate until the superior court has made a

determination on the Order to Show Cause re Preliminary

Injunction.”

After a number of continuances and delays, the Trial Court

heard both Appellants’ anti-SLAPP motion and the City’s request for

a preliminary injunction on March 12, 2020. The Trial Court denied

the anti-SLAPP motion, granted the preliminary injunction, and

reinstated the prior restraint. (2 AA 1411.)

On March 13, 2020, Appellants timely filed Notice of Appeal,

challenging both the denial of their anti-SLAPP motion and the

issuance of the preliminary injunction. (2 AA 1423.)

B. Statement of Appealability

The issuance of a preliminary injunction is immediately

appealable under Code of Civil Procedure, section 904.1(a)(6). The

denial of an anti-SLAPP motion is also immediately appealable

under Code of Civil Procedure, sections 425.16(j) and/or 901.1.

The Trial Court issued its order granting the preliminary

injunction and denying the anti-SLAPP motion on March 12, 2020.

(2 AA 1423.) Appellants timely filed notice of appeal, challenging

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both the denial of their anti-SLAPP motion and the issuance of the

preliminary injunction. (2 AA 1423.)

C. Standard of Review

Where the grant or denial of a preliminary injunction is

dependent upon the interpretation and application of a statute or

constitutional law and the matter is purely a question of law, the

standard of review is de novo. (Jamison v. Department of

Transp. (2016) 4 Cal.App.5th 356, 362; Garamendi v. Executive Life

Ins. Co. (1993) 17 Cal.App.4th 504, 512.) Additionally, “where a

Federal right has been denied as the result of a factual finding … or

where a conclusion of law as to a Federal right and a finding of fact

are so intermingled as to make it necessary, in order to pass upon

the Federal question, to analyze the facts … [t]he reviewing court

must independently review the record to determine whether it

supports the requisite factual findings with convincing clarity.”

(DVD Copy Control Ass'n Inc. v. Bunner (2004) 116 Cal.App.4th

241, 250 (internal quotes, citations and brackets omitted); see also

Parisi v. Mazzaferro (2016) 5 Cal.App.5th 1219, 1226-1227 [when an

order is alleged to infringe on constitutional rights of expression, the

facts and statements germane to the First Amendment challenge are

reviewed de novo].)

Similarly, the standard of review of a trial court’s ruling on an

anti-SLAPP motion is de novo. (City of Costa Mesa v. D'Alessio

Investments, LLC (2013) 214 Cal.App.4th 358, 371 [“review of the

[trial] court's order is de novo, and entails an independent review of

the entire record”]; Summit Bank v. Rogers (2012) 206 Cal.App.4th

669, 681–682 [“review is conducted in the same manner as the Trial

Court in considering an anti-SLAPP motion”].)

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III. ARGUMENT

A. The City Cannot Prevail On Its Complaint, Or Any Of The Causes Of Action Therein, As A Matter Of Law Because No One Needs Permission to Visit A Website.

1. The CFAA and the CDAFA do not prevent the press

from accessing documents inadvertently posted by a public agency on its website where the agency has removed technical barriers to access.

The CFAA prohibits the “intentional [] accesses [of[

a computer without authorization or exceeds authorized access” to

obtain “information from any protected computer,” defined as one

“used in or affecting interstate or foreign commerce or

communication.” (18 U.S.C. § 1030(a)(2)(c).) Similarly, liability

exists under CDAFA for taking, copying, or making use of data from

a computer “without permission.” (Cal. Penal Code § 502(c)(2).) The

legislative history is clear that the CFAA was designed to criminalize

“hacking—the circumvention of technological access barriers….”

(U.S. v. Nosal (“Nosal I”).) (9th Cir. 2012) 676 F.3d 854, 863.)

The City’s entire complaint is based on the allegation that

Appellants visited www.CityofFullerton.com/outbox and

downloaded files from the site without permission. (1 AA 025,047,

064.) But making information publicly available on a website gives

everyone “authorization” to view it. (Craigslist. v. 3Taps, 964

F.Supp.2d at 1182; see also Pulte Homes, 648 F.3d at 304 [public

presumptively authorized to access “unprotected website”].)

This was confirmed in hiQ Labs, 938 F.3d at 1000, where the

Ninth Circuit held that “where access is open to the general public,

the CFAA ‘without authorization’ concept is inapplicable.” “[T]he

wording of the statute, forbidding ‘access[ ] ... without

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authorization,’….suggests a baseline in which access is not generally

available and so permission is ordinarily required.” (Id.) “‘[A]n

authentication requirement, such as a password gate, is needed to

create the necessary barrier that divides open spaces from closed

spaces on the Web.’” (Id. at 1001, quoting Orin S. Kerr, Norms of

Computer Trespass 116 Colum. L. Rev. 1143, 1161 (2016).) The court

also found that other language in the statute bolsters “the idea that

authorization is only required for password-protected sites or sites

that otherwise prevent the general public from viewing the

information.” (hiQ Labs at 1001.)

In its ruling in hiQ Labs, the Ninth Circuit also reviewed its

prior decisions interpreting the Stored Communications Act (“SCA”),

which the court found was “nearly identical to the CFAA provision at

issue.” (Id. at 1002.)

Addressing the “without authorization” provision of the SCA, we have distinguished between public websites and non-public or “restricted” websites, such as websites that “are password-protected ... or require the user to purchase access by entering a credit card number.” Konop v. Hawaiian Airlines, Inc., 302 F.3d 868, 875 (9th Cir. 2002); see also id. at 879 n.8. As we explained in Konop, in enacting the SCA, “Congress wanted to protect electronic communications that are configured to be private” and are “ ‘not intended to be available to the public.’ ” Id. at 875 (quoting S. Rep. No. 99-541, at 35–36 (1986)). The House Committee on the Judiciary stated, with respect to the section of the SCA at issue, section 2701, that “[a] person may reasonably conclude that a communication is readily accessible to the general public if the ... means of access are widely known, and if a person does not, in the course of gaining access, encounter any warnings, encryptions, password requests, or other indicia of intended privacy.” H.R. Rep. No. 99-647, at 62H.R. Rep. No. 99-647, at 62 (1986). The Committee further explained that “electronic communications which the service provider attempts to

- 26 -

keep confidential would be protected, while the statute would impose no liability for access to features configured to be readily accessible to the general public.” Id. at 63.

(hiQ Labs at 1003.)

This analysis by the Ninth Circuit informs the analysis of the

CDAFA claim, as well, because the term “without permission” used

in the California statute is analogous to the CFAA’s “without

authorization” language.

The Trial Court distinguished this analysis finding “arguments

regarding password-protection of data, or the lack of evidence of

‘hacking,’ [ ] unavailing.” (2 AA 1418) because the CDAFA “is

‘different’ than the CFAA.” (2 AA 1417.) The distinction in the Trial

Court’s analysis hung on a single line from the opinion in Facebook,

Inc. v. Power Ventures (9th Cir. 2016) 844 F.3d 1058, 1069 (“Power

Ventures”): “[T]he California statute does not require unauthorized

access. It merely requires knowing access….” (2 AA 1417-1418.)

But the Trial Court’s ruling intentionally ignored both the very

next line in the Power Ventures decision, which explicitly holds that

“despite differences in wording, the analysis under both statutes is

similar….” (Power Ventures, at 1069.) It also ignored the numerous

other decisions concurring on this very point. (See, e.g., U.S. v.

Nosal (“Nosal II”) (2016) 844 F.3d 1024, 1028 [holding “‘without

authorization’ is an unambiguous, non-technical term” that means

“without permission”]; Williams v. Facebook, Inc. (N.D. Cal. 2018)

384 F.Supp.3d 1043, 1053 [“a party acts ‘without permission’ under

the CDAFA when it ‘circumvents technical or code-based barriers in

place to restrict or bar a user's access.’”]; accord NovelPoster v.

Javitch Canfield Grp. (N.D. Cal. 2014) 140 F.Supp. 3d 938, 950; In

re Facebook Privacy Litigation (N.D. Cal. 2011) 791 F.Supp.2d 705,

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716; see also Black’s Law Dictionary (10th ed. 2014) [defining

“authorization” as “[o]fficial permission”].)

Here, the City expressly configured its Dropbox account to be

publicly accessible, intentionally removing any access restrictions

that would hinder the public access of the records the City disclosed

in response to CPRA requests. (1 AA 123; 2 AA 727-732, 751-765,

879.) Because those accessing www.CityofFullerton.com/outbox

would not “encounter any warnings, encryptions, password requests,

or other indicia of intended privacy,” they would “reasonably

conclude that a communication is readily accessible to the general

public.” (hiQ at 1003.) Therefore, as a matter of law, the City has no

probability of prevailing on the either the CFAA or CDAFA claims.

Because the City made the files at issue publicly available on

www.CityofFullerton.com/outbox, without any technical barrier to

access. Any finding that access to the site was “without

authorization” or “without permission” simply cannot be made.

The Trial Court’s ruling is all the more troubling because even

though a finding of express authorization is unnecessary for

Appellants to prevail, the evidence demonstrates that Appellants

were granted express access to both the website and specific files on

the website, as were a wide variety of other people. (See, e.g., 1 AA

108 [asst. city clerk admitting “[t]here were a few instances where

the City inadvertently sent PRA requesters a link to the City’s entire

Dropbox account”]; 1 AA 123 [giving Appellant Curlee access to the

City’s entire Dropbox account]; 2 751-765 [emails from the City

giving multiple members of the public access to

www.CityofFullerton.com/outbox].)

2. The City’s other causes of action suffer from the same fundamental problem: they all require

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some unauthorized taking, which cannot be met given the “authorization” analysis under both the CFAA and CDAFA7

In addition to the causes of action under the CFAA and

CDAFA, the City’s complaint also includes causes of action for

violation of Government Code, section 6204 et seq., conversion,

trespass to chattels, and conspiracy. The “authorization” analysis

that preclude the City’s claims under the CFAA and CDAFA is

equally fatal to the remaining causes of action.

i. Conversion and Trespass to Chattels8

Both conversion and trespass to chattels require a wrongful

act (Steele v. Marsicano (1894) 102 Cal. 666 [“[c]onversion is a tort,

and to establish it there must be a tortious act]) and a lack of consent

(Welco Electronics, Inc. v. Mora (2014) 223 Cal.App. 4th 202, 209;

see also 1 AA 068 [City’s Ex Parte Application, acknowledging that to

establish trespass to chattels claim, use must have been

unauthorized].) But making information publicly available on a

7 While the City’s complaint includes causes of action for conversion and conspiracy, the merits of those claims are not raised in the City’s moving papers for either the TRO (1 AA 051-072) or preliminary injunction (1 AA 412-421). This precludes the City from using the conversion or conspiracy claim to justify the preliminary injunction at this juncture. However, the claims are still relevant to the question of whether the City met its burden under the second prong of the anti-SLAPP analysis and are therefore analyzed here.

8 The City’s conversion and trespass to chattels claim are analyzed together because there is no meaningful difference between the two in this case. (See Thrifty-Tel, Inc. v. Bezenek (1996) 46 Cal.App.4th 1559, 1566–1567 [noting that trespass to chattels is the “little brother of conversion” and generally used where the interferences with possession is not sufficiently ‘important to be classed as conversion’”].)

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website, gives everyone “authorization” to view it. (Craigslist v.

3Taps, 964 F.Supp.2d at 1182; see also Pulte Homes, 648 F.3d at

304 [public presumptively authorized to access “unprotected

website”].) There can be no wrongful taking, nor is any further

consent is needed. Making a file available on an unprotected

website, with no password or access restrictions, gives everyone

consent to access it.

The City’s attempt to expand this theory to computer access

has already been rejected by the California Supreme Court, finding

that the “dispositive issue” is “whether the undisputed facts

demonstrate the use [ ] caused or threatened to cause damage to

Intel's computer system, or injury to its rights in that personal

property, such as to entitle Intel to judgment as a matter of law.”

(Intel Corp. v. Hamidi (2003) 30 Cal.4th 1342, 1352.) In the case of

the extortionary remedy of a preliminary injunction, the injury must

be irreparable and cannot be compensated in damages. (Id. at 1352.)

The Supreme Court found that the claim failed for the same reason it

would fail here: the undisputed evidence did not show any damage

to “Intel's computer hardware or software and no interference with

its ordinary and intended operation.” (Id. at 1353.)

Intel was not dispossessed of its computers, nor did Hamidi's messages prevent Intel from using its computers for any measurable length of time. Intel presented no evidence its system was slowed or otherwise impaired…..Nor was there any evidence transmission of the messages imposed any marginal cost on the operation of Intel's computers. In sum, no evidence suggested that in sending messages through Intel's Internet connections and internal computer system Hamidi used the system in any manner in which it was not intended to function or impaired the system in any way. Nor does the evidence show the

- 30 -

request of any employee to be removed from FACE–Intel's mailing list was not honored.

(Id. at 1353.) The Supreme Court then distinguished a line of federal

cases, including Thrifty–Tel Inc., 46 Cal.App.4th at 1566–1567 and

eBay, Inc. v. Bidder's Edge, Inc. (N.D. Cal. 2000) 100 F.Supp.2d

1058, 1064 (Id. at 1353-1356), the two cases on which the City relied.

(1 AA 068.)

ii. Government Code, section 6204, et seq. (the “Replevin Law”)

The City also claims that Appellants violated Government

Code, section 6204, et seq., (the “Replevin Law”), even though it is

clear that the Legislature never intended the law to be used for this

purpose. Section 6204 was intended to increase transparency in

government and preserve the public’s right of access to public

information—not to provide local public agencies with a means of

implementing liability on the press or as a basis for a prior restraint

against the publication of records an agency inadvertently makes

public.9 The measure was seen as a means to recover “historical

public records . . . being inappropriately sold or traded in the

marketplace for profit” and to address “downstream sale” of

documents taken unlawfully out of public access. (Sen. Rules Com.,

Off. of Sen. Floor Analyses, 3d reading analysis of AB 1245 (2009-10

Reg. Sess.) as amended June 30, 2009, pgs. 3-4; available at

https://leginfo.legislature.ca.gov/faces/billAnalysisClient.xhtml?bill

_id=200920100AB1245#.) Upon consideration in the State Senate,

9 Courts should look to “whether the literal meaning of a statute comports with its purpose or . . . is consistent with other provisions of the statute.” Lungren v. Deukmejian (1988) 45 Cal.3d 727, 735.

- 31 -

the California State Association of Counties expressed its support for

the statute as an important step in safeguarding “important public

records for the benefit of generations to come.” (Id.) Once a public

record is returned, the statute actually provides the person returning

the record may receive “a copy or digital image of the record, which

shall be certified as a true copy of the record that was returned”

(Gov’t. Code § 6204(e)) and that the court may order that the

records be publicly disclosed under the CPRA. (Gov’t. Code § 6204.2

(d)).

Also, the same “authorization” analysis that undermines the

other claims, also prevents a finding of wrongful possession, which is

required under this statute, as well. (Gov’t. Code § 6204.2(a)

[relating to records belonging to a local agency in the possession of a

person “not authorized by law to possess” it].) Without any access

controls, everyone was authorized by law to possess the records.

(Craigslist II, 964 F.Supp.2d at 1182; see also Pulte Homes, 648 F.3d

at 304 [public presumptively authorized to access “unprotected

website”].)

iii. Conspiracy

The City’s conspiracy claim, which requires an agreement to

commit a wrongful act, must also fail. (Judicial Council Of

California Civil Jury Instruction 3600.) As discussed above, the

conduct the City complains of is not illegal or even improper.

Moreover, the City has produced no evidence of any agreement

between the parties. In fact, the allegation of an agreement is made

on information and belief (1 AA 040) and no evidence was ever

introduced to support that allegation.

- 32 -

3. Reading the CFAA, CDAFA, or any other crime or tort in a broad manner that criminalizes routine newsgathering runs afoul of the First Amendment.

The special role of the press using modern techniques that

facilitate understanding has been recognized. In Houchins v. KQED,

Inc. (1978) 438 U.S. 1, 17, Justice Stewart’s concurrence articulated

that:

Our society depends heavily on the press for that enlightenment….¶… That the First Amendment speaks separately of freedom of speech and freedom of the press is no constitutional accident, but an acknowledgment of the critical role played by the press in American society. The Constitution requires sensitivity to that role, and to the special needs of the press in performing it effectively…. In short, terms of access that are reasonably imposed on individual members of the public may, if they impede effective reporting without sufficient justification, be unreasonable as applied to journalists…

“Freedom of the press could be eviscerated” if not for

“protection for seeking out the news.” (Branzburg v. Hayes (1972)

408 U.S. 665, 681.) Therefore, the Supreme Court has made it clear

that the government cannot criminalize “routine newspaper

reporting techniques.” (Daily Mail, 443 U.S. at 103.)

California courts have been mindful of this warning.

In Shulman v. Group W Productions, Inc. (1998) 18 Cal.4th 200,

236 (as modified on denial of reh'g (July 29, 1998)), the California

Supreme Court recognized that “the constitutional protection of the

press does reflect the strong societal interest in effective and

complete reporting of events, an interest that may- as a matter of

tort law-justify an intrusion that would otherwise be considered

- 33 -

offensive.” In Sanders v. ABC (1999) 20 Cal.4th 907, 923, the Court

noted that conduct that might otherwise be considered tortious may

enjoy First Amendment protections “justified by the legitimate

motive of gathering the news.” In Nicholson v. McClatchy

Newspapers (1986) 177 Cal.App.3d 509, 519–520, the Court of

Appeal held that the government “may not impose criminal or civil

liability upon the press for obtaining and publishing newsworthy

information through routine reporting techniques. "

Criminalizing the conduct alleged in this case would do just

that. The internet is a “vast democratic forum[]” (Reno v. ACLU

(1997) 521 U.S. 844, 868-69) – the “modern public square”

(Packingham v. North Carolina (2017) 137 S.Ct. 1730, 1737.)

“[C]yberspace” is an “essential venue” to “learn and inquire.” (Id. at

1735.) An overly broad interpretation of the CFAA, CDAFA, or any

of the other statutes invoked by the City, would leave journalists

wondering if they had “permission” to visit a website, click a link, or

save a file. Allowing the government to impose civil and criminal

liability for such conduct with a belated claim of confidentiality

would eviscerate traditional newsgathering and create a tremendous

chilling effect for anyone seeking out information online.

B. The Preliminary Injunction Is An Unconstitutional Prior Restraint.

1. Prior restraints are consistently invalidated by our courts.

The Trial Court’s ruling should also be overturned because the

preliminary injunction and the ultimate relief sought by the City

constitute a prior restraint, which the United States Supreme Court

repeatedly has recognized is "the most serious and the least tolerable

- 34 -

infringement on First Amendment rights." (Nebraska Press Ass'n v.

Stuart (1976) 427 U.S. 539, 559.)

At its core, the prior-restraint doctrine expresses a

constitutional aversion to government censorship of the press.

When the government, including the judiciary, censors the press, it

harms the “main purpose” of the First Amendment, which is “to

prevent all such previous restraints upon publications as [have] been

practiced by other governments.” (Nebraska Press, 427 U.S. at 557.)

It is widely agreed that “[t]here is, indeed, something peculiarly

totalitarian about government systems of prior restraint.” (R.

Smolla, Smolla & Nimmer on Freedom of Speech § 15:10 (2004).)

The Supreme Court has “learned…from what we view as the unhappy

experiences of other nations where government has been allowed to

meddle in the internal editorial affairs of newspapers.” (Nebraska

Press, 427 U.S. at 560.) This core principle is critical here; “the

history and language of the First Amendment support the view that

the press must be left free to publish news, whatever the source,

without censorship, injunctions, or prior restraints.” (New York

Times v. US (1973) 403 U.S. 713, 717 (Black, J., concurring).)

The Trial Court’s order here, restricting the disclosure of

information by the Blog, is exactly the type of restraint the case law

warns of. It restrains the Blog from “(j) Selling, publishing,

distributing, disclosing or otherwise using any of the information or

documents obtained from the City Dropbox folders and files listed at

Exhibit A, without the City’s permission, or a valid court order; and

(k) Conspiring with third parties to sell, publish, distribute, disclose

or otherwise use any of the information or documents obtained from

the City Dropbox folders and files listed at Exhibit A, without the

City’s permission, or a valid court order.” (1 AA 1378-1383.)

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The Supreme Court has declared that prior restraints may be

justified, if at all, only in the most exceptional circumstances, such as

to limit dissemination of information about troop movements in

wartime (Near v. Minnesota (1931) 283 U.S. 697, 716) or to

“suppress[ ] information that would set in motion a nuclear

holocaust” (New York Times, 403 U.S. at 726 (Brennan, J.,

concurring).) Similarly, in granting an emergency stay of a prior

restraint against a news organization, Justice Blackmun declared

that such orders are a “most extraordinary remedy” that may be used

“only where the evil that would result from the reportage is both

great and certain and cannot be militated by less intrusive

measures.” (CBS v. Davis (1994) 510 U.S. 1315, 1317 (1994)

(Blackmun, J., in chambers).)

To date, those circumstances have remained purely

hypothetical.10 The Supreme Court has, without exception,

invalidated prior restraints, even where substantial interests would

be impaired by the publication sought to be enjoined. (Procter &

Gamble Co., 78 F.3d at 227 [Supreme Court “has never upheld a

prior restraint, even faced with the competing interest of national

security or the Sixth Amendment right to a fair trial”]; accord South

Coast Newspapers, 85 Cal. App. 4th at, 870 [court observed that it

was “unaware of any case, in either federal or state court, that has

upheld a prior restraint under the Nebraska Press criteria”].) For

example, in Near, 283 U.S. at 716-718, the Court invalidated a prior

10 Courts have yet to identify an interest that would satisfy the “state interest of the highest order” standard. As one commentator has explained, “Florida Star itself raised the presumptive level [of this standard] beyond realistic reach.” (J. Mintz, The Remains of Privacy’s Disclosure Tort, 55 Md. L. Rev. 425, 455 (1996.)

- 36 -

restraint against defamatory and racist publication that allegedly

disturbed the “public peace.” In Nebraska Press, 427 U.S. at 556-

561, the Court invalidated a prior restraint against publication of

information about a criminal defendant's confession, despite the

alleged risk to his Sixth Amendment rights. In New York Times, 403

U.S. at 714, the Court invalidated a prior restraint against

publication of the “Pentagon Papers,” despite the government's

argument that disclosure of that information posed a “grave and

immediate danger” to national security.

California's state constitutional guarantee of free speech and

free press is “more protective, definitive and inclusive of rights to

expression of speech than their federal counterparts.” (San Diego

Unified Port Dist. v. U.S. Citizens Patrol (1998) 63 Cal.App.4th 964,

970 (internal quotes omitted).) As a consequence, the burden on a

party seeking a prior restraint in this state is even more onerous and

may be insurmountable.

More than a century ago, the California Supreme Court

explained the breadth of the state's protection of speech and press

rights:

The wording of [Cal. Const., Art. I, § 2(a)] is terse and vigorous, and its meaning so plain that construction is not needed. The right of the citizen to freely ... publish his sentiments is unlimited[.] ... He shall have no censor over him…,but he shall be held accountable to the law for…what he publishes.

(Dailey v. Superior Court (1896) 112 Cal. 94, 97.)

Not surprisingly, California courts have also uniformly struck

down prior restraints, which the California Supreme Court has

denounced as “the most severe method of intellectual suppression

known in modern times.” (Flack v. Municipal Court (1967) 66 Cal.2d

981, 988 n.5.; See also KCST-TV Channel 39 v. Municipal Court

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(1988) 201 Cal.App.3d 143, 144-145 [refusing to restrain publication

of information that was lawfully obtained, noting that “long-standing

Supreme Court precedent establishes the court's prohibitory order is

an unconstitutional prior restraint violating the First Amendment”];

KGTV Channel 10 v. Superior Court (1994) 26 Cal.App.4th 1673,

1677 [striking down order barring press from publishing

photographs of criminal defendants as an unconstitutional prior

restraint]; Freedom Communications, 167 Cal.App.4th at 151

[finding that order preventing a news organization from publishing

lawfully obtained information was “unconstitutional under both the

United States and California Constitutions,” and, consequently,

“must immediately fall”].)

Most recently, the court of appeal granted an anti-SLAPP

motion after a union tried to clawback and stop the publication of

documents about police officers, which the union claimed were

confidential and could not be released under various protective

statutes. (Association for Los Angeles Deputy Sheriffs v. Los

Angeles Times Communications LLC (2015) 239 Cal.App.4th 808,

820.) The court summed up its decision affirming the trial court’s

grating of the anti-SLAPP motion:

[The union] has cited no case permitting the kind of injunction it seeks here, to restrain a newspaper from publishing news articles on a matter of public concern….because there is no such case. For more than 100 years, federal and state courts have refused to allow the subjects of potential news reports to stop journalists from publishing reports about them. (Providence Journal, supra, 820 F.2d at pp. 1348–1349 [“In its nearly two centuries of existence, the Supreme Court has never upheld a prior restraint on pure speech”; the Supreme Court has never upheld a prior restraint on the publication of news].)

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(Id. at 824.)

A prior restraint comes “with a heavy presumption against its

constitutional validity.” (Organization for a Better Austin v. Keefe,

402 U.S. at 419; see also Freedom Communications, 167 Cal.App.4th

at 154 [holding prior restraint is a “most extraordinary remedy that

may be used only in exceptional cases”].) A court may not issue even

a temporary prior restraint unless the restriction is necessary “to

further a state interest of the highest order….” (Daily Mail, 443 U.S.

at 102.) “It is not enough for a court to decide that [some right] may

be affected by the exercise of free speech.” (Hurvitz, 84 Cal. App. 4th

at 1241.) Instead, the proponent of the restraint bears “the burden of

producing evidence to establish the prejudice.” (Ibid.)

The Trial Court ignored this exacting standard and the

confidentiality asserted by the City is certainly not the type of

interest that could meet it.11

2. Claims that Information Is Confidential Or Obtained Illegally Is Insufficient to Justify a Prior Restraint.

The City claims that the records it posted on

www.CityofFullerton.com/outbox were privileged and confidential,

but the Supreme Court has reiterated a commitment to rule against

prior restraints even if information is confidential or obtained

11 The City has argued that while the First Amendment is a high priority, “the attorney-client privilege … has even higher priority in our jurisprudence.” (RT 9.) But the California Court of Appeal has already rejected this argument. (Hurvitz, 84 Cal.App.4th at 1243 [“Respondent can point to no case where any court in the nation has held that a threatened violation of the patient/physician privilege or any other privilege justifies a prior restraint of speech”].)

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illegally.12 In the landmark New York Times case, the Supreme

Court rejected a prior restraint to prevent the newspaper's

publication of the Pentagon Papers, even though the Court

acknowledged the records were classified. (403 U.S. at 714; see also

Bridges v. California (1941) 314 U.S. 252, 265–66, 271 [reversing

contempt for publishing source’s telegrams commenting on public

court proceedings, finding that the First Amendment’s protections

for freedom of the press “were intended to give to liberty of the press,

as to the other liberties, the broadest scope that could be

countenanced in an orderly society”]; Miami Herald Publ’g Co. v.

Tornillo (1971) 418 U.S. 241, 258 [“The choice of material to go into a

newspaper...and treatment of public issues and public officials—

whether fair or unfair—constitute the exercise of editorial control

and judgment. It has yet to be demonstrated how governmental

regulation of this crucial process can be exercised consistent with

First Amendment guarantees of a free press as they have evolved to

this time”]; Cox Broadcasting Corp. v. Cohn (1975) 420 U.S. 469 [1st

12 To support its arguments, the City points to articles which it claims included “confidential” or “privileged” information. (1 AA 25.) Appellants strenuously dispute this contention. Regardless, prior restraints are also particularly inappropriate where the information sought to be suppressed has already been made available to the public. (See Hurvitz, 84 Cal.App.4th at 1245 ["neither the state nor the federal Constitution permits the court to lock the barn door after the horse is gone”]; In re Charlotte Observer (4th Cir. 1990) 921 F.2d 47 [vacating injunction as an impermissible prior restraint, noting that “[o]nce announced to the world,” “the cat [was] out of the bag” and “the information lost its secret characteristic, an aspect that could not be restored by the issuance of an injunction”]; Bank Julius Baer & Co. Ltd. v. WikiLeaks (N.D. Cal 2008) 535 F.Supp.2d 980, 985 [refusing to enjoin further publication of bank records and related documents that had been posted on defendant's website].)

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Amend. protected reporter who published rape victim's name in

violation of state criminal statute]; Oklahoma Publishing Co. v.

District Court (1977) 430 U.S. 308 [reversing injunction which

prevented the reporting of the name or likeness of a juvenile

criminal defendant, in spite of a state law that required juvenile

proceedings to be held in private]; Landmark Communications v.

Va. (1978) 435 U.S. 829, 831-32 [invalidating newspaper's

punishment for publishing information from confidential judicial

disciplinary proceedings]; Daily Mail, 443 U.S. 97 [invalidating state

law that criminalized publication of juvenile murder suspect's name

without court permission]; Florida Star v. B.J.F. (1989) 491 U.S. 524

[1st Amend. protected newspaper that published rape victim's name,

which violated state criminal statute]; Bartnicki v. Vopper (2001)

532 U.S. 514, 517, 535 [1st Amendment protected journalists who

reported contents of illegally intercepted telephone conversations

even though they knew “or at least had reason to know” the

interceptions were unlawful because bargaining negotiations

between school board and union were matters of public concern].)

Relying on this unbroken line of United States Supreme Court

authorities and the broader state constitutional guarantee of free

speech,13 California courts have also held that the constitutional

presumption against prior restraints applies regardless of whether

the information is confidential or obtained illegally. (See Nicholson

v. McClatchy Newspapers, 177 Cal.App.3d at 513 [“the First

Amendment protects the ordinary news-gathering techniques of

13 See, e.g., Gilbert v. National Enquirer, Inc. (1996) 43 Cal.App.4th 1135, 1144 [“the California Constitution provides an even broader guarantee of the right of free speech and the press than does the First Amendment.”]

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reporters and those techniques cannot be stripped of their

constitutional shield by calling them tortious”]; Gilbert v. National

Enquirer, Inc., 43 Cal.App.4th at 1148 [prior restraint was not

permitted to prevent publication of defamatory statements or

disclosure of matters protected by the right of privacy, even though

such publication and disclosure might be actionable in tort];

ALADS, 239 Cal.App.4th at 819, 826-827 [in response to union’s

claim that the Times obtained records “through criminal means,” the

court found that the union “ha[d] not distinguished, and cannot

distinguish, the ‘wealth of both State and Federal case law,

discussing the protection journalists and the press enjoy under

the First Amendment where there have been allegations that

published or disclosed content had been illegally obtained”].)

“While the government may desire to keep some proceedings

confidential and may impose the duty upon participants to maintain

confidentiality, it may not impose criminal or civil liability upon the

press for obtaining and publishing newsworthy information through

routine reporting techniques.” (Nicholson v. McClatchy

Newspapers, 177 Cal.App.3d at 519–520.)

While the City may have inadvertently made the records at

issue public, the Supreme Court has already explained that it is the

responsibility of the government to bear the fallout from its failure to

protect confidential information:

Where, as here, the government has failed to police itself in disseminating information, it is clear under Cox Broadcasting, Oklahoma Publishing, and Landmark Communications that the imposition of damages against the press for its subsequent publication can hardly be said to be a narrowly tailored means of safeguarding anonymity. Once the government has placed such information in the public

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domain, “reliance must rest upon the judgment of those who decide what to publish or broadcast.”

(Florida Star, 491 U.S. at 524, 538 (citations omitted); see also

Ashcraft v. Conoco (2000) 218 F.3d 288, 303 [“No citizen is

responsible, upon pain of criminal and civil sanction, for ensuring

that the internal procedures designed to protect the legitimate

confidences of government are respected”].)

As these cases demonstrate, whether information is released

by mistake, obtained in violation of criminal or civil statutes, or even

stolen by a third party, courts have consistently held that both pre-

publication restraints and post-publication sanctions violate the

First Amendment, absent exceptional circumstances. Here, the Blog

did nothing improper, much less illegal, to obtain the information at

issue here, and its publication of that information cannot be lawfully

restrained.14

C. The Trial Court Should Have Granted the Anti-SLAPP Motion.

In response to a rise in litigation intended to stifle First

Amendment activity, the California Legislature adopted Code of Civil

Procedure, section 425.16 (the “anti-SLAPP statute”) to permit a

party to quickly halt such actions. (Equilon Enter. v. Consumer

Cause, Inc. (2002) 29 Cal.4th 53, 59-60 [the anti-SLAPP statute is

intended to “encourage continued participation in matters of public

significance”].) The statute authorizes a “special motion to strike” a

14 Contrary to the City’s argument, the Blog has no burden to demonstrate how it obtained any of the information it published. Any information about how a news organization obtains information during its newsgathering process is protected from disclosure by the Shield Law. (Cal. Const., Art. I, § 2.; Cal. Evid. Code § 1070.)

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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.” (CCP § 425.16 (b)(1).)

In considering an anti-SLAPP motion, the court employs a

two-step process employing a broad construction “to encourage

participation in free speech and petition activities” (Wanland v.

Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141

Cal.App.4th 15, 22; see also CCP § 425.16(a) [“this section shall be

construed broadly”].)

First, the moving party must make a prima-facie showing that

the complaint arises 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., 29 Cal.4th at 67; Taus v. Loftus

(2007) 40 Cal.4th 683, 712.) A plaintiff cannot avoid operation of

the anti-SLAPP statute by artfully styling the claim when in fact the

claim is predicated on protected speech or petitioning activity.

(Navellier v. Sletten (2002) 29 Cal.4th 82, 90–92.) The analysis

must disregard the labeling of the claim and instead “examine the

principal thrust or gravamen of a plaintiff's cause of action to

determine whether the anti-SLAPP statute applies….” (Ramona

Unified School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519,

522 (emphasis in original).)

On its analysis of this prong, the Trial Court correctly found

that Appellants easily met their burden. (2 AA 1417 [“the court

agrees that the Complaint alleges conduct that is protected”]; RT 67

[“As I said initially, clearly, you satisfied prong one. There's no

dispute as to that.”].) The City’s allegations relate to CPRA requests

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to the government for information,15 newsgathering,16 accessing a

government website,17 publishing information of public concern,18

15 Submitting a CPRA request is protected activity. (Ardon v. City of Los Angeles (2014) 232 Cal.App.4th 175, 183-184 (reversed on other grounds in Ardon v. City of Los Angeles (2016) 62 Cal.4th 1176) [contacting the City to obtain public records was an “exercise of … constitutional rights to petition her government regarding a matter of public importance”].)

16 Newsgathering is protected activity. (See, e.g., Doe v. Gangland Productions, Inc. (9th Cir. 2013) 730 F.3d 946, 953 [“pre-publication or pre-production acts such as investigating, newsgathering, and conducting interviews constitute conduct that furthers the right of free speech”]; Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 166 [newsgathering is an act in furtherance of publishing which is protected by anti-SLAPP statute]; (San Diegans for Open Government v. San Diego State University Research Foundation (2017) 13 Cal.App.5th 76, 84, as modified on denial of reh'g (June 1, 2017) [“[n]ews stories addressing issues of public interest do not arise out of thin air. They often require newsgathering using offices, internet access, studios, and production services”].)

17 Accessing publicly available websites and discussing matters of public concern on a website is protected activity. (See e.g. Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4, “[w]eb sites accessible to the public ... are ‘public forums’ for purposes of the anti-SLAPP statute”]; Hupp v. Freedom Communications, Inc. (2013) 221 Cal.App.4th 398, 405 [“Maintaining a forum for discussion of issues of public interest is a quintessential way to facilitate rights, and the Register has no liability for doing so”]; Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228, 1247 [statements on animal rights organization's website “are accessible to anyone who chooses to visit the site, and thus they ‘hardly could be more public’”]; Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1014-1016 [tort action filed by candidates for public office based on anonymous statements posted on public website was protected]; Kronemyer v. Internet Movie Data Base, Inc. (2007) 150 Cal.App.4th 941, 950 [Internet website treated as “public forum” where statements are “accessible to anyone who chooses to visit the site”]; Summit Bank v. Rogers (2012) 206 Cal.App.4th 669,

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and filing a lawsuit to enforce the right to access government

records.19 All of these activities fall squarely within Code of Civil

Procedure, section 425.16(e). Because all the facts underlying the

complaint relate to protected conduct, the entire complaint and all

of the causes of action therein arise from protected activity and are

the subject of the anti-SLAPP motion.

Once this threshold demonstration is made, the second prong

requires that the plaintiff responding to an anti-SLAPP motion

“must demonstrate that the complaint is both legally sufficient

and supported by a prima facie showing of facts to sustain a

favorable judgment if the evidence submitted by the plaintiff is

credited.’” (Wilson v. Parker, Covert & Chidester (2002) 28

Cal.4th 811, 821, quoting Matson v. Dvorak (1995) 40 Cal.App.4th

539, 548 (emphasis added).)

Unfortunately, when the Trial Court moved to step two, it ruled

that because the anti-SLAPP motion targeted “the entirety of the

Complaint, rather than discrete allegations or causes of action, [the

693 [“Without doubt, Internet message boards are places ‘open to the public or a public forum’ for purposes of section 425.16”].)

18 Reporting news is protected. (San Diegans for Open Government, 11 Cal.App.5th 477, 484; Hunter v. CBS Broadcasting, Inc. (2013) 221 Cal.App.4th 1510, 1521; ALADS, 239 Cal.App.4th at 816, fn.8 [newspaper's “publishing of news reports” about confidential personnel information obtained using ordinary news-gathering techniques was within CCP § 425.16].)

19 See, e.g., 1 AA 023-043, ¶¶ 9, 12, 13, 16, 17, 21 [allegations relating to the CPRA requests] ¶¶ 10, 11, 18, 22, 41, 50-55, 57-58, 71 [relating to research and obtaining documents in the course of newsgathering]; ¶¶ 9, 10, 11, 21, 22, 27, 41, 43, 44, 58, 71 [relating to publishing news on matters of public concern]; ¶ 23 [refusing to disclose information protected by the Shield Law].

- 46 -

City] need only make an adequate showing as to one cause of action

in order to defeat the motion.” (2 AA 1417.) “Because defendants’

notice of motion does not quote in full the portions sought to be

stricken in the Complaint, as instructed in California Rule of Court

3.1322, subdivision (a), the court presumes that the entirety of the

pleading is the target of the motion, and the court will not strike

discrete portions or allegations within the pleading, as is permissible

pursuant to Baral v. Schnitt, 1 Cal.5th 376, 396 (2016).” (2 AA 1416.)

The Trial Court’s rationale appears to be based on a fundamental

misunderstanding of the California Supreme Court’s ruling in Baral

v. Schnitt (2016) 1 Cal.5th 376 (“Baral”) and the erroneous belief

that the standards that govern general motions to strike also apply to

anti-SLAPP motions.

In Baral v. Schnitt, the California Supreme Court addressed

how the anti-SLAPP statute applies to “mixed causes of action” – a

cause of action that combines allegations of activity protected by the

statute with allegations of unprotected activity. (Baral at 381.) In

deciding Baral, the Court expressly rejected the “Mann rule”

announced in Mann v. Quality Old Time Service (2004) 120

Cal.App.4th 90, which held that “[w]here a cause of action refers to

both protected and unprotected activity and a plaintiff can show a

probability of prevailing on any part of its claim, the cause of action

is not meritless and will not be subject to the anti-SLAPP

procedure.” Thus, under Baral, even portions of causes of action

that target protected activity can be stricken. But Baral never said

that only portions of causes of action could be stricken.

For the “benefit of litigants and courts involved in this

sometimes difficult area of pretrial procedure,” the Court also

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summarized the process and findings required by the anti-SLAPP

statute, which confirms the Trial Court’s error in the second step:

If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated.

(Baral at 396.)

In this case, the Trial Court did not require the City to

substantiate each challenged claim. Instead, the Court

invoked California Rule of Court, Rule 3.1322, which requires

that “a notice of motion to strike a portion of a pleading must

quote in full the portions sought to be stricken except where the

motion is to strike an entire paragraph, cause of action, count,

or defense,” which only applies to general motions to strike, not

to anti-SLAPP motions.

[W]hen a conventional motion to strike is directed at something less than an entire pleading or an entire cause of action, the notice of motion must quote in full the portions to be stricken so that there is no confusion among the parties and the trial court as to what is at issue and, if the motion is successful, what exactly is to be stricken. (Cal. Rules of Court, rule 3.1322.) There is, however, no such similar rule for special motions strike either in the text of section 425.16 or the California Rules of Court.

(Okorie v. Los Angeles Unified Sch. Dist. (2017) 14 Cal.App.5th

574, 589–90.)

To prevail, the City was required to demonstrate that each

cause of action was legally sufficient and factually substantiated. It

did not, and as explained above, it could not. Therefore, this Court

should grant the anti-SLAPP motion as to the entire complaint.

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D. The Court Improperly Relied on Inadmissible Evidence To Support Its Ruling

Setting aside the threshold problem that the conduct that the

City complains of is not criminal or even wrongful, the City’s

evidentiary showing relied on inadmissible evidence, which the Trial

Court relied over the strenuous objections of Appellants.

The fundamental factual issue in this case is the City’s claim

that Appellants (and each of them) accessed the files the City placed

on www.CityofFullerton.com/outbox. In order to establish a

probability of prevailing on the claim, 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 prima facie showing of facts to sustain a favorable

judgment if the evidence submitted by the plaintiff is credited.’”

(Wilson v. Parker, Covert & Chidester, 28 Cal.4th at 821 (emphasis

added).) The showing must be made using “competent admissible

evidence.” (Sweetwater Union High School Dist. v. Gilbane

Building Co. (2019) 6 Cal.5th 931, 940.)

The “evidence” that the Trial Court relied on to support its

finding that the Blog “accessed” the files posted on City’s Dropbox

account was a declaration from the City’s expert, Matthew Strebe.

Strebe’s declaration attached exhibits that he declared under penalty

of perjury were the “Dropbox logs.” (See, e.g., 1 AA 144-145 [Strebe’s

first declaration claiming that “a true and correct copy of excerpts

from the City’s Dropbox activity log showing all instances where Mr.

Ferguson accessed the City’s Dropbox account while logged in with

one of his emails is attached hereto as Exhibit D”].)

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Appellants objected that the purported “Dropbox logs” had

been altered (Evid. Code § 1402); were not properly authenticated,

constituted inadmissible hearsay, and violated the secondary

evidence rule. (2 AA 825-826; 846 [objection no. 43].) Appellants

also argued that Strebe’s testimony about the logs was improperly

based on hearsay in violation of Evidence Code section 803 and

People v. Sanchez (2016) 63 Cal.4th 665, 674-675 [“[w]hen any

expert relates to the jury case-specific out-of-court statements, and

treats the content of those statements as true and accurate to

support the expert’s opinion, the statements are hearsay”].)

It was not until Strebe’s fourth declaration, submitted with

the City’s reply papers, and only after Appellants’ expert, John

Bambenek, raised concerns about authenticity of the purported logs

(2 AA 735), that Strebe confirmed that the logs were not the actual

Dropbox logs. (2 AA 879; see also 2 AA 1229-1230.) This admission

confirms that the “logs” are inadmissible hearsay, which cannot be

authenticated as a business record or in any other manner. Since

the “logs” and Mr. Strebe’s testimony based on those “logs”

constitute the entire basis for the City’s evidentiary showing that

Appellants accessed the City’s website, the City cannot prevail. (See

San Diegans for Open Government, 13 Cal.App.5th at 108–109

[finding declarations with similar evidentiary problems could not

satisfy plaintiff’s burden on anti-SLAPP motion].)

Further, Strebe’s testimony demonstrates that the City

cannot establish who accessed the City’s website,

www.CityofFullerton.com/outbox. The City’s expert confirms that

the website was accessed by someone using a VPN or TOR router to

conceal their identify (1 AA 141-143) and concedes that the City could

never provide “direct evidence” demonstrating that Appellants

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accessed the website without a “forensic analysis” of Appellants’

computers (2 AA 881) – a search barred by the First Amendment,

the California Shield Law (Cal. Const., Art. I, Section 2(b); Cal. Evid.

Code § 1070 [prevents the compelled disclosure of any non-

published or source information]; see also Cal. Pen. Code § 1524(g)

[forbids magistrates from issuing warrants to search “for any item or

items described in Section 1070 of the Evidence Code] and the

federal Privacy Protection Act (42 U.S. Code § 2000aa [makes it

unlawful for the government, “in connection with [an] investigation

or prosecution of a criminal offense,” to search for or seize “any work

product materials possessed by a person reasonably believed to have

a purpose to disseminate to the public a newspaper, book, broadcast,

or other similar form of public communication.”].)

IV. CONCLUSION

For all of the foregoing reasons, the Appellants now

respectfully request that this Court (1) find that the City cannot

prevail as a matter of law on any cause of action in the complaint;

(2) reverse the preliminary injunction; and, (3) grant the anti-

SLAPP motion as to the entire complaint, and each cause of action

therein.

DATED: August 21, 2020 LAW OFFICES OF KELLY A. AVILES Kelly A. Aviles

Attorney for Appellants FRIENDS FOR FULLERTON’S FUTURE, JOSHUA FERGUSON, and DAVID CURLEE

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CERTIFICATE OF WORD COUNT

I, Kelly Aviles, am appellate counsel in this matter and I

hereby certify, pursuant to Rule 8.204(c)(1), (3), and Rule 8.216(b)

of the California Rules of Court, that this brief contains 11,422 words,

including footnotes and excluding tables and the cover information,

according to the Microsoft Word, the computer program used to

produce this brief.

DATED: August 20, 2020 LAW OFFICES OF KELLY A. AVILES Kelly A. Aviles

Attorney for Appellants FRIENDS FOR FULLERTON’S FUTURE, JOSHUA FERGUSON, and DAVID CURLEE

PROOF OF SERVICE

I reside or work within in the County of Los Angeles, State of

California. I am over the age of 18 and not a party to the within action.

My business address is 1502 Foothill Blvd., Suite 103-140, La Verne,

CA 91750.

On August 21, 2020, I served the foregoing documents

described as APPELLANTS’ OPENING BRIEF on the parties in

this action as listed in the attached service list by the following

means:

Service List

Kimberley Hall Barlow Jones & Mayer

3777 North Harbor Blvd. Fullerton, CA 92835

khb@jones-mayer.com Attorneys for Plaintiff CITY OF FULLERTON

Electronic Service

In accordance with Code of Civil Procedure sections 1010.6 and

1013, California Rules of Court, Rule 2.251, an order of the court,

and/or an agreement of the parties, I caused the documents to be sent

to the person at the email address listed below via email or via an

electronic filing provider. After transmission, I did not receive, within

a reasonable period of time, any electronic message or other

indication that the transmission was unsuccessful.

I declare under penalty of perjury under the laws of the State of

California that the foregoing is true and correct.

Date: August 21, 2020 /s/ Albert D. Aviles Albert D. Aviles

PROOF OF SERVICE

I reside or work within in the County of Los Angeles, State of

California. I am over the age of 18 and not a party to the within

action. My business address is 1502 Foothill Blvd., Suite 103-140, La

Verne, CA 91750.

On August 21, 2020, I served the foregoing documents

described as APPELLANTS’ OPENING BRIEF on the parties in

this action as listed in the attached service list by the following

means:

Service List

Hon. James L. Crandall Dept. 33

Orange County Superior Court 700 Civic Center Drive West

Santa Ana, CA 92701 Phone: (657) 622–5233

By United States Mail

I enclosed the documents in a sealed envelope or package

addressed to the persons at the addresses above and deposited the

sealed envelope with the United States Postal Service, with the

postage fully prepaid.

I am a resident or employed in the county where the mailing

occurred. The envelope or package was placed in the mail at La Verne,

California.

I declare under penalty of perjury under the laws of the State

of California that the foregoing is true and correct.

Date: August 21, 2020 /s/Albert D. Aviles Albert D. Aviles