McKeon Corp. v. Kennedy

No. 221454 (Cal. Super. Ct. January 5, 1973)

Plaintiff's complaint, which alleges injury from defendants' malicious conspiracy to persuade government decision-makers to abandon construction of a highway, is dismissed for failure to state a cause of action upon which relief can be granted. The court follows Sierra Club v. Butz, 2 ELR 20698, which held that a person's First Amendment right to petition the government protects him from a civil action of malicious interference with advantageous relationships, unless it can be shown that he harmed plaintiff while merely acting "under the guise of attempting to persuade the government."

Counsel for Plaintiff
Karlton, Blease & Vanderlaan
1107 Ninth Street
Sacramento, California 95814

Counsel for Defendant
Dahl, Hefner, Stark, Marois & James
Forum Building
Sacramento, California 95814

[3 ELR 20211]

Perluss, J.

The Court has concluded that it should follow Judge Alfonso J. Zirpoli's opinion in Sierra Club v. Butz (U.S.D.C., N.D. Calif., October 16, 1972) No. C-72 1115 AJZ, wherein the Judge states (typewritten opinion, p. 8, 11. 6-11):

". . . this court is persuaded that all persons, regardless of motive, are guaranteed by the First Amendment the right to seek to influence the government or its officials to adopt a new policy, and they cannot be required to compensate another for loss occasioned by a change in policy should they be successful."

Moreover, Judge Zirpoli states (typewritten opinion, p. 9, 11. 3-7):

"It is a corollary of the court's conclusion that liability can never be imposed upon a party for damage caused by governmental action he induced; only if he causes other damages while acting under the guise of attempting to persuade the government will liability be imposed."

Examining the first amended complaint herein, it is clear that the gravamen of the charges that plaintiff thus far has made against defendants are that they maliciously conspired, and in the furtherance of the conspiracy, made false statements to prevent plaintiff from utilizing its property in accordance with the zoning ordinances of the County of Sacramento and the laws of the State of California, and that they conspired to prevent the erection of an interchange at the interesection of I-5 and Elk Grove Boulevard.

Clearly, these charges fall within Judge Zirpoli's rule and its corollary.

The Court does agree that plaintiff should have the opportunity to plead a cause of action if it can do so. Nevertheless, the Court is concerned with the chilling effect on free speech under the circumstances here presented by virtue of the expense and burden of unrestricted discovery on defendants who thus far are unscathed. It does not seem unreasonable, on balance, to require plaintiff to make a showing that it can state a cause of action before it proceeds further.

It is the order of the Court, accordingly, pursuant to section 2019(b)(1) of the Code of Civil Procedure, that the depositions of the defendants herein shall not be taken, unless and until there is a showing by the plaintiff to this Court that it is able to plead facts in support of its alleged cause of action of interference with prospective advantage other than those set forth in its first amended complaint, which, as above indicated, does not state a cause of action.