C.A. Overturns Restraining Orders Against Animal Rights Activists

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Metropolitan News-Enterprise

January 10, 2006

C.A. Overturns Restraining Orders Against Animal Rights Activists

Petition to Enjoin Workplace Violence Is Subject to Anti-SLAPP Motion, Justices Rule

By KENNETH OFGANG, Staff Writer/Appellate Courts

A statutory petition for a restraining order to prevent workplace violence is subject to an anti-SLAPP motion, the Court of Appeal for this district ruled yesterday.

A divided panel in Div. Seven also ruled that the City of Los Angeles failed to establish that David Diliberto, director of field services for the city’s Animal Services Department, was in danger of workplace violence from animal rights activists who picketed his home to protest conditions at the city’s animal shelters.

The panel ordered that the city’s petition for an order requiring Pamelyn Ferdin and the Animal Defense League-Los Angeles to stay away from Diliberto be stricken. Ferdin and ADL-LA have been barred from coming within 100 feet of the official, from posting his home address or telephone number on the Internet, and from following him or contacting him by mail or telephone since Los Angeles Superior Court Judge George H. Wu issued a temporary restraining order in the summer of 2004.

Actress-Turned-Activist

Ferdin is one of the founders of ADL-LA and has been arrested at several protests, as has her husband and fellow activist Dr. Jerry Vlasak. A child actress in the 1960s and 1970s, Ferdin was the voice of Lucy in several Peanuts TV specials, as well as a feature film, and still does voiceovers.

She drew a 30-day jail sentence three years ago after refusing probation for violating a Los Angeles ordinance limiting the size of any wooden object used at a public demonstration. The sentence stemmed from a 1999 demonstration at a performance of Circus Vargas at Pierce College in Woodland Hills, where Ferdin used a bull hook—a metal hook, about 31 inches long and about 1.5 inches thick, attached to a long pole—to show how the hook is allegedly used to mistreat circus elephants.

Her First Amendment challenge to the ordinance was rejected by state and federal courts.

Unwanted Visitors

The case ruled on yesterday stems from a June 2004 demonstration in which Ferdin, Vlasak, and several others picketed Diliberto’s home. Diliberto claimed that Ferdin was yelling into a bullhorn from his front porch and banging on his front door, and that the noise got louder after he demanded the protesters leave; the demonstrators, he said, left after he called police.

A release posted on the group’s website said the protest was the first in a series of "mobile demo’s" and that the demonstrators had gone to the homes of Sharon Morris, the interim head of the department at the time, and then-Mayor James K. Hahn before visiting Diliberto’s home.

The city filed its court actions under Code of Civil Procedure Sec. 527.8, which allows an employer to seek injunctive relief, under expedited procedures, where an employee has suffered or been threatened with violence "that can reasonably be construed to be carried out or to have been carried out at the workplace."

The actions sought relief on behalf of Diliberto against Ferdin and ADL-LA and on behalf of Morris against ADL-LA only.

In moving to strike the petitions under the anti-SLAPP law, the defendants argued that the petitions implicated their free speech rights. Wu ruled that the anti-SLAPP law cannot be applied to a Sec. 527.8 petition, and that even if it could, the motions should be denied because the city was likely to prevail at trial.

But Presiding Justice Dennis Perluss, writing for the Court of Appeal, said that the motions should have been granted.

Ruling Explained

Perluss concluded that Sec. 527.8 petitions are subject to anti-SLAPP motions, that free speech and petition rights were implicated, that the city cannot prevail against ADL-LA because Sec. 527.8 says that an injunction can only be issued against an "individual,", and that the city did not show a likelihood of prevailing against Ferdin because it presented insufficient evidence to show that she intended to harm Diliberto at his workplace.

The presiding justice rejected the argument that an organization may be an "individual" for purposes of Sec. 527.8. The contention is contrary to the plain meaning of the word, as well as the legislative history, the presiding justice said, noting that language that would have expressly applied the law to groups was deleted from the original Assembly bill by amendment.

In concluding that the city failed to carry its burden of showing that it would likely prevail at trial against Ferdin, Perluss distinguished Huntingdon Life Sciences, Inc. v. Stop Huntingdon Animal Cruelty USA, Inc. (2005) 129 Cal.App.4th 1228.

In that case, an anti-SLAPP motion by another animal rights organization was denied in a case that also involved raucous demonstrations. But that was an anti-harassment action brought under Sec. 527.6, a procedurally similar but broader statute that does not require a nexus between the actual or threatened violence and the plaintiff’s workplace, Perluss explained.

Justice Laurie Zelon concurred, but Justice Fred Woods dissented.

Woods argued that the ruling was "founded on a misplaced premise," that the city was suing only as an employer and not as a "public prosecutor" exempt from the anti-SLAPP law. Perluss responded that there was nothing in the record to show that the city was acting in any capacity other than as the employer of persons whom it claimed to have been threatened with workplace violence.

Attorneys on appeal were John J. Uribe for the defendants and Deputy City Attorney Vivienne Swanigan for Los Angeles.

The case is City of Los Angeles v. Animal Defense League, B177908.

Copyright 2006, Metropolitan News Company