90 Cal.App.5th 643
Cal. Ct. App.2023Background
- Durkin and 2417 Green Street, LLC sought permits to remodel a San Francisco residence; Planning Department issued (and rescinded) categorical exemptions and later a mitigated negative declaration after mitigation measures were proposed.
- Philip Kaufman, owner of an adjacent historically significant property, appealed the Planning Commission’s adoption of the final mitigated negative declaration to the Board of Supervisors; the Board reversed and directed further study of slope/structural impacts.
- Appellants filed a writ of mandamus against the City (Planning Commission, Planning Department, Board) naming Kaufman as a real party in interest, alleging the Board reversed without findings, lacked substantial evidence, and exceeded hearing limits under Gov. Code § 65905.5.
- Kaufman moved to strike under the anti‑SLAPP statute (§ 425.16), arguing the petition arose from his protected appeal and lacked minimal merit; the trial court granted the motion and awarded Kaufman attorney fees.
- The Court of Appeal held the petition did not arise from Kaufman’s petitioning activity (it challenged the Board’s acts/omissions), reversed the anti‑SLAPP ruling and fee award, and denied plaintiffs’ request for sanctions under § 425.16(c).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Does the mandamus petition "arise from" Kaufman’s protected petitioning activity (anti‑SLAPP first prong)? | Petition challenges Board’s unprotected acts (failure to make findings, lack of substantial evidence, extra hearings); Kaufman’s appeal only provided context. | Petition directly stems from Kaufman’s appeal to the Board, a protected petitioning act, so anti‑SLAPP applies. | Petition does not arise from Kaufman’s protected activity; anti‑SLAPP threshold not met. |
| If anti‑SLAPP applies, do appellants show minimal merit/probability of success (anti‑SLAPP second prong)? | The Board lacked findings and substantial evidence; hearing limit was exceeded. | Board’s decision was supported by substantial evidence; procedural and statutory defenses defeat the petition. | Court did not reach merits because first prong failed; anti‑SLAPP motion properly denied on threshold grounds and fee award reversed. |
| Was Kaufman’s anti‑SLAPP motion frivolous under § 425.16(c)? | Motion was baseless and intended to delay; sanctions are warranted. | Motion had a reasonable legal basis (e.g., Rudisill) and was not totally devoid of merit. | Motion was not frivolous; sanctions denied. |
| Was the trial court’s attorney‑fee award to Kaufman proper? | Fee award improper because anti‑SLAPP relief was erroneous. | Fee award proper because Kaufman prevailed on anti‑SLAPP below. | Fee award reversed and vacated; trial court instructed to enter order denying both the anti‑SLAPP and fee motions. |
Key Cases Cited
- Baral v. Schnitt, 1 Cal.5th 376 (2016) (anti‑SLAPP two‑prong framework; claim must "arise from" protected activity; consider claim elements and defendant acts)
- Park v. Board of Trustees of California State University, 2 Cal.5th 1057 (2017) (protected statements may be evidence but not the basis of liability; focus on the act that supplies claim elements)
- Wilson v. Cable News Network, Inc., 7 Cal.5th 871 (2019) (speech/petitioning protected only when it is the wrong complained of; protected activity that merely leads to other actionable conduct is not sufficient)
- City of Cotati v. Cashman, 29 Cal.4th 69 (2002) (an action filed after protected activity is not automatically an anti‑SLAPP target; mere triggering does not make it arise from protected activity)
- Rudisill v. California Coastal Com., 35 Cal.App.5th 1062 (2019) (real‑party anti‑SLAPP context; reasonableness of bringing anti‑SLAPP motion and fee‑claim analysis)
- San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees’ Retirement Assn., 125 Cal.App.4th 343 (2004) (anti‑SLAPP may apply in appropriate cases to mandamus petitions)