The Initiative was also enacted in Irvine, Claremont and San Francisco. Of these cities, only San Francisco has implemented the Initiative.

The procedural history of the Vista litigation is significant to the arguments made here. In that case, Vista filed a preelection challenge to the legality of the Initiative. The trial court found the Initiative unconstitutional and ordered the county registrar not to place it on the November 2000 ballot. On petition by the Initiative’s proponents, the Fourth District Court of Appeal immediately issued an order staying the trial court’s judgment. The appellate court’s order had the practical effect of allowing the Initiative to remain on the November ballot. A majority of the voters passed the Initiative. However, because a competing proposition passed by an even greater margin, the Initiative was not enacted into law. As a result, the appellate court found the cities’ challenge to the validity of the Initiative was mooted by the election results, and declined the invitation of Vista and amici curiae Santa Monica, Pasadena and Claremont to exercise its discretionary authority and issue an advisory opinion on the constitutionality of the Initiative. The Court of Appeal did not merely dismiss the appeal, which would have left intact the trial court’s ruling. Instead, the appellate court granted the writ of mandate requested by the proponents, vacated the trial court’s ruling and judgment, and ordered the trial court to dismiss as moot Vista’s challenge to the constitutionality of the Initiative. In this case, Santa Monica and its city clerk argue that the only court to address the merits of the constitutional challenges to the Initiative deemed those challenges well founded. That assertion is incorrect. The Vista decision has been vacated and does not legally exist even as an unreported, nonbinding trial court decision. It was effectively reversed by the Court of Appeal days after it issued.

At the hearing, the trial court indicated it also intended to base its ruling denying FTCR’s motion on an additional finding that Pasadena had shown a likelihood prevailing on the merits of its cross-action. However, after FTCR pointed out that the court could not reach that issue without first determining whether the cross-action presented a justiciable controversy-—an issue the court specifically declined to adjudicate—the court withdrew that ground as a basis for its ruling and found only that the cross-action had not arisen out of FTCR’s exercise of any constitutionally protected activity.

An order denying an anti-SLAPP motion is immediately appealable. (Code Civ. Proc., §§ 425.16, subd. (j), 904.1.)

The Initiative imposes on Santa Monica only the affirmative obligation to inform prospective contractors of the terms and limitations of the Initiative. (Initiative, § 2205.)

The city clerk has certain record-keeping requirements independent of the Initiative, which include the receipt and review of campaign disclosure statements. (Gov. Code, § 84215; Cal. Code Regs., tit. 2, § 18110.) However, as the clerk concedes, those mandated duties do not include the duty to ensure the disclosure statements comply with the Initiative, nor the duty to file an enforcement action against an offending public official if they do not. We agree with the trial court’s assessment that the clerk’s role with regard to the implementation of the Initiative is so remote she has no legitimate role to perform in this action. There is simply no danger the clerk’s fear she will “violate individuals’ civil rights” will be realized.

By the time FTCR learned of this proceeding and sought leave to intervene to dismiss the action, Santa Monica and the city clerk had already agreed on a briefing schedule for Santa Monica’s anticipated motion for summary judgment. Santa Monica and the clerk objected to delaying the hearing only to give FTCR an opportunity to act as a “suicide bomber” and “blow up the lawsuit.” In response, FTCR objected to the requirement that it brief the complex constitutional arguments before the trial court determined whether the action could proceed. The court delayed the hearing on the summary judgment motion and, over FTCR’s objection, ordered the parties simultaneously to brief the justiciability of the city’s action and the substantive merits of the motions, and set the motions for a consolidated hearing. The court granted FTCR leave to intervene and ordered it to file a complaint-in-intervention, requiring that the complaint include allegations as to the constitutionality of the Initiative and not just the justiciability of the action, in the event the motion to dismiss was denied and FTCR chose to continue to participate in the action on the merits.

Santa Monica and the city clerk rely on Division Seven’s recent opinion in City of Burbank, supra, 113 Cal.App.4th 465, to support the contention that FTCR’s presence as an intervener, in and of itself, eliminates the standing issue. The circumstances in City of Burbank differ markedly from this case. First, in City of Burbank, the airport authority’s standing was not at issue. Here, the clerk is a nominal defendant purportedly sued over her refusal to perform duties she does not have, by a plaintiff with no standing of its own who seeks only to assert the rights of absent third parties. Second, the proponent of the ballot measure in City of Burbank agreed, at the city’s invitation, to intervene in the action on the merits to challenge the plaintiff’s claims of illegality and to seek a declaration that the ballot measure was constitutional and enforceable. (Id. at p. 471.) Here, FTCR sought to intervene for the sole purpose of dismissing the action on the ground the court lacked subject matter jurisdiction, an intervention opposed on that basis by both Santa Monica and the clerk. FTCR was forced to mount a defense of the Initiative on the merits only because the court denied its request to conduct a separate proceeding on nonjusticiability arguments before it addressed the constitutionality of the measure.

The city clerk’s only actual “duties” (under Government Code sections 34459 and 34460)—to certify and send the election returns to the Secretary of State for filing, so that the Initiative could be adopted as an amendment to the Santa Monica Charter—were performed long ago.

Santa Monica also asserts the city clerk has two additional duties under the Initiative. Those assertions are not supported by the record. First, Santa Monica’s representation to the contrary notwithstanding, the Initiative does not require the clerk to inform prospective bidders of the Initiative’s restrictions. That duty rests with the city itself. (Initiative, § 2205.) Moreover, even if that duty is assigned to the clerk, we are unable to see how the clerk would “violate individuals’ civil rights” merely by providing notice of the terms of the Initiative. Second, Santa Monica argues section 2204 of the Initiative effectively requires the clerk to produce, “in writing,” the names of the recipients of public benefits and public records “immediately” upon request. However, the text of the Initiative is at odds with this assertion. First, logic dictates that this section applies in the first instance not to the clerk, but to those public officials vested with the discretion to confer public benefits, and thus subject to the stated penalties. Second, the text does not require that disclosures must be made either immediately or in writing. (Initiative, § 2204, subd. (b).)

FTCR insists that Santa Monica began attempting to thwart the Initiative at an earlier date when city council members campaigned aggressively against the Initiative and authored the official ballot argument in opposition to the measure.

A validation action is brought on either a statutory or, historically, on a common law basis. Generally speaking, statutory validation actions are designed to provide expedient, uniform procedures by which public agencies can obtain binding judgments as to the validity of public financing commitments such as “bonds, warrants, contracts, obligations or evidence of indebtedness pursuant to Chapter 9 (commencing with Section 860) of Title 10 of Part 2 of the Code of Civil Procedure." (Gov. Code, §53511; see Friedland v. City of Long Beach (1998) 62 Cal.App.4th 835, 843 [73 Cal.Rptr.2d 427] [a validation action is a lawsuit filed for the purpose of securing a judgment determining the validity of a particular public agency’s action or decision]; City of Ontario v. Superior Court (1970) 2 Cal.3d 335, 340-341 [85 Cal.Rptr. 149, 466 P.2d 693]; N.T. Hill Inc. v. City of Fresno (1999) 72 Cal.App.4th 977, 991 [85 Cal.Rptr.2d 562].) The instant action, which involves no financial commitment by Santa Monica, is not of the sort contemplated by the validation statutes.

In the recent case of Lockyer v. City & County of San Francisco (2004) 33 Cal.4th 1055 [17 Cal.Rptr.3d 225, 95 P.3d 459], the Supreme Court made it quite clear that validation actions, in which courts have found that a local executive public official may refuse to comply with a ministerial statutory duty if he or she believes the statute imposing the duty to be unconstitutional, are limited to truly exceptional and narrow circumstances, not present here. Discussing a series of public finance actions, the Court noted the public officials involved in those actions were permitted to refuse to perform their statutory duties when they had doubts about the validity of an underlying bond, contract or public expenditure, and thereby institute or instigate judicial actions, only where (1) the public official’s refusal to perform his or her duty ensured that a mechanism was available for obtaining a timely judicial determination of the validity of the bond or contract, etc.—a determination often essential to the bond’s marketability, a contracting party’s willingness to perform under its contract, or to prevent an irreparable loss of public funds; and (2) the public official himself or herself frequently faced personal liability. (Id. at pp. 1096-1097, and fn. 25.)

The city clerk also relies heavily on Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158 [143 Cal.Rptr. 633], a case which is inapposite. There, Berkeley and the city’s Redevelopment Agency (BRA) adopted a redevelopment plan prohibiting residential housing in an industrial zone. After lobbying unsuccessfully to save homes within the area, a residents’ group sponsored an initiative toward that end, which the voters approved. (Id. at pp. 162-163.) After the election, BRA sued Berkeley for declaratory and injunctive relief. The dispute concerned whether the subject of the initiative was legislative and thus a proper use of the initiative process, or an exercise of the BRA’s administrative powers which were not subject to referendum. (Id. at pp. 167-169.) The residents intervened to defend the initiative. Shortly thereafter, the BRA ceased to exist and its powers were re-vested in the city council. (Id. at pp. 164—166.) The residents asserted the case was not justiciable and should be dismissed because the merger of Berkeley and BRA aligned their interests and eliminated any true legal controversy between them. The court rejected that contention. An actual controversy was found to exist because the residents intervened while BRA was still “an actual and legal party to the action with interest [w'c] adverse to those of the . . . City of Berkeley.” (Id. at p. 165.) In addition, unlike this action, the initiative in Redevelopment Agency v. City of Berkeley imposed significant affirmative obligations on Berkeley to grant use permits to all nonconforming existing uses within the project area, prepare an environmental impact report, and issue specific employment opportunity notices and annual reports to voters. (Id. at p. 164.) Santa Monica and the city clerk also urge us to find the existence of a justiciable validation action based on dicta in City of Burbank, supra, 113 Cal.App.4th 465, in which intervention in the action by a principal proponent of an initiative was determined to provide the requisite degree of adversity in an otherwise “friendly suit.” (Id. at pp. 481-482.) As discussed, the *69circumstances of that case differed markedly from this case. Indeed, like the referendum in Redevelopment Agency v. City of Berkeley, but unlike the Initiative here, the initiative involved in City of Burbank imposed significant responsibilities on the city itself. The court found that if Burbank enforced the initiative and refused to issue permits for proposed airport projects until the Airport Authority complied with the initiative’s onerous requirements, it would certainly be sued by the Airport Authority. On the other hand, if Burbank, consistent with its view that the initiative was constitutionally infirm, refused to implement the initiative, it would have been sued—as it was—by the initiative’s proponents. (Id. at p. 481.) Unlike this case, in which Santa Monica had only the minimal obligation to notify prospective contractors of the Initiative’s terms, Burbank had standing because its own numerous rights and obligations as a city were adversely affected by implementation of the ballot measure. The cases are also distinct from one another in that the intervenor in City of Burbank willingly agreed to participate on the merits. Here, FTCR intervened solely for the purpose of seeking dismissal of a nonjusticiable, and arguably collusive, action.

To a slightly lesser extent, the policy also recognizes that parties seeking advisory opinions often attempt to manipulate the legal process for their own purposes. (See Fiske, supra, 200 Cal.App.3d 1243.)

As noted, “SLAPP” is the acronym for strategic lawsuits against public participation. (Navellier v. Sletten (2002) 29 Cal.4th 82, 85 [124 Cal.Rptr.2d 530, 52 P.3d 703] (Navellier).)

Under section 425.16 an “act ... in furtherance” of a person’s right of petition or free speech is defined as: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. (§ 425.16, subd. (e).)

The constitutionality of the Initiative was a predicate component of the ultimate relief sought—a declaration that the city had no duty to certify the Initiative.

In support of its argument that a justiciable controversy existed, Pasadena incorrectly asserts that the Initiative had been in effect for over two weeks when the anti-SLAPP motion was denied. The motion to strike was denied at the conclusion of the hearing on May 31, 2002, although the formal order denying that motion was not signed until June 21, 2002; the Initiative took effect on June 6, 2002.

Pasadena’s reliance on California Water & Telephone Co. and Farm Sanctuary, Inc., to support its assertion the case was sufficiently ripe, is misplaced. In contrast to this Initiative, the measures challenged in those cases were already in effect, and their potential penalties enforceable, when the litigation was filed. (California Water & Telephone Co., supra, 253 Cal.App.2d at pp. 22, 26; Farm Sanctuary, Inc., supra, 63 Cal.App.4th at pp. 502-504.) Moreover, unlike Farm Sanctuary, Inc., in which the intended beneficiaries of the law (farm animals) would suffer needlessly without judicial action and who were incapable of protecting their own interests, the public officials and their potential campaign contributors who may be affected by this Initiative, can assert their own legal challenge in court. Moreover, withholding judicial consideration imposes no hardship on the Pasadena Mayor or City Clerk who, at the time the cross-complaint was filed and the anti-SLAPP motion was heard, were not embroiled “in a real controversy . . . involving justiciable questions relating to their own rights and obligations.” (See Wilson, supra, 199 Cal.App.2d at p. 722; see also Sherwyn, supra, 173 Cal.App.3d at p. 58 [“The controversy must be ‘one which admits of definitive and conclusive relief by judgment within the field of judicial administration, as distinguished from an advisory opinion upon a particular or hypothetical state of facts. . . .’ ”].)

Of the five cities which enacted the Oaks Initiative, only San Francisco chose not to challenge the measure. According to FTCR, and neither the record nor our own research has disclosed any evidence to the contrary, the Initiative has been implemented in San Francisco without incident or judicial challenge since July 2001.

Our conclusion that the action is not ripe, and therefore not justiciable, renders it unnecessary for us to address the parties’ arguments on the issue of standing.

We take judicial notice of portions of the legislative history of section 425.16. (See Evid. Code, §§ 452, subd. (h), 459, subd. (a); Schmidt v. Southern Cal. Rapid Transit Dist. (1993) 14 Cal.App.4th 23, 30, fn. 10 [17 Cal.Rptr.2d 340] [“In a search to discern legislative intent, an appellate court is entitled to take judicial notice of the various legislative materials, including committee reports, underlying the enactment of a statute”].)

The Supreme Court has granted review of the only published decision to disagree with Mattel on this point. In Varian Medical Systems, Inc. v. Delfino (2003) 113 Cal.App.4th 273 [6 Cal.Rptr. 3d 325], review granted March 3, 2004, S121400 [10 Cal.Rptr. 3d 536 [85 P.3d 444]], the court held the filing of an appeal from the denial of an anti-SLAPP motion does not automatically stay the entire trial court proceeding. (Id. at p. 355, fn. 16.) In granting review, the Supreme Court ordered the parties in Varían to limit their argument to the issue of whether “an appeal from the denial of a special motion to strike under the anti-SLAPP statute (Code Civ. Proc., § 425.16) effect[s] an automatic stay of the trial court proceedings[J” (People v. Reed (1961) 188 Cal.App.2d 395 [10 Cal.Rptr. 536].) Given the legislative purpose underlying a defendant’s right of immediate appeal under section 425.16, subdivision (j), we anticipate the Supreme Court will conclude Varían was wrongly decided.

We find no merit in Pasadena’s argument that FTCR should not be permitted to invoke section 425.16’s purpose of quickly eliminating meritless lawsuits because, at the hearing on its motion, FTCR “urged” the trial court not to address the second prong of the anti-SLAPP test. The record reflects otherwise. At the hearing on the anti-SLAPP motion, the court indicated its intention to rule not just on the first prong, but to find Pasadena had shown a probability of prevailing on the merits. The court later “backed off’ that portion of its proposed ruling after FTCR pointed out the court logically could not determine Pasadena was likely to prevail without first deciding the foundational question as to whether the case presented a live controversy, an issue on which the trial court expressly declined to rule.

A third statutory factor, whether “such fees should ... in the interest of justice be paid out of the recovery, if any,” is not implicated in this declaratory relief action. (§ 1021.5, subd. (c); see Press v. Lucky Stores (1983) 34 Cal.3d 311, 318, fn. 5 [193 Cal.Rptr. 900, 667 P.2d 704].)

We will not address Pasadena’s contention that the trial court’s order denying fees to FTCR may be upheld because FTCR’s “reputational interest” in ensuring the implementation of the Initiative in Pasadena, which would assist its future ability to promote and obtain passage of the Initiative in other cities, outweighed the financial burdens involved in joining this action. This argument was not raised or ruled on below, and the record contains no evidence that would support the city’s factual contention. (See, e.g., Families Unafraid to Uphold Rural El Dorado County v. Board of Supervisors (2000) 79 Cal.App.4th 505, 516 [94 Cal.Rptr.2d 205] [a party’s nonpecuniary interest is insufficient to block an attorney’s fees award under the financial burden criterion unless it is “specific, concrete and significant, and these attributes must be based on objective evidence”].)