Filed 12/21/22 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA THIRD APPELLATE DISTRICT (El Dorado) ---- CITY OF ROCKLIN, C091172 Plaintiff and Respondent, (Super. Ct. No. PC20190309) v. LEGACY FAMILY ADVENTURES-ROCKLIN, LLC, et al., Defendants and Appellants. APPEAL from a judgment of the Superior Court of El Dorado County, Daniel B. Proud, Judge. (Retired judge of the El Dorado Super. Ct., assigned by the Chief Justice pursuant to art. VI, § 6 of the Cal. Const.) Affirmed. Weintraub Tobin Chediak Coleman Grodin and Brendan J. Begley for Defendants and Appellants. Downey Brand, Sean J. Filippini and Christopher M. Kolkey for Plaintiff and Respondent. 1 Plaintiff City of Rocklin (City) filed an action against defendants Legacy Family Adventures-Rocklin, LLC, (LFA) and David Busch asserting 12 causes of action related to their joint undertaking involving the construction and operation of a theme park, Quarry Park Adventures. Defendants filed an anti-SLAPP1 special motion to strike the first four causes of action pursuant to Code of Civil Procedure section 425.16.2 The parties did not actively dispute that the speech at issue in those causes of action was commercial speech, to which section 425.16 does not apply. Instead, the primary issue the parties litigated was whether the speech concerning the theme park qualified under what we will refer to as the “artistic work” exception to the commercial speech exemption.3 In opposing defendants’ special motion to strike, the City requested attorney fees, asserting the motion was frivolous. The trial court denied defendants’ special motion to strike, and, concluding the motion was indeed frivolous, granted the City’s request for attorney fees. Defendants appeal from the subsequent order in which the trial court awarded the City specified attorney fees and costs. On appeal, defendants assert (1) their special motion to strike was not frivolous because, even if we conclude a theme park is not an artistic work, reasonable attorneys could differ on the matter, (2) the trial court erred in failing to follow the mandatory procedures set forth section 128.5 in sanctioning them, and (3) certain rulings and the 1 “ ‘SLAPP’ is an acronym for ‘strategic lawsuit against public participation.’ ” (Baral v. Schnitt (2016) 1 Cal.5th 376, 381, fn. 1 (Baral).) 2 Further undesignated statutory references are to the Code of Civil Procedure. 3 Section 425.17, subdivision (d)(2) provides that the commercial speech exemption (§ 425.17, subd. (c)) does not apply to “[a]ny action against any person or entity based upon the creation, dissemination, exhibition, advertisement, or other similar promotion of any dramatic, literary, musical, political, or artistic work, including, but not limited to, a motion picture or television program, or an article published in a newspaper or magazine of general circulation.” 2 “arbitrary rotation of trial judges” deprived them of their due process rights. We affirm and remand for a determination and award of the City’s attorney fees on this appeal. FACTUAL AND PROCEDURAL BACKGROUND Background and the City’s Complaint According to the complaint, in 2016, Busch approached the City …
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