Durkin v. City and County of San FranciscoDurkin v. City and County of San Francisco
CHRISTOPHER DURKIN et al., Plaintiffs and Appellants, v. CITY AND COUNTY OF SAN FRANCISCO et al., Defendants and Respondents; PHILIP KAUFMAN, Real Party in Interest and Respondent.
After the San Francisco Planning Commission (Planning Commission) approved a final mitigated negative declaration for the proposed renovation of a residence by Christopher Durkin and 2417 Green Street, LLC (appellants), Philip Kaufman, the owner of an adjacent property, appealed the
We conclude the trial court erred in finding the mandamus petition arose from Kaufman‘s protected conduct, as the activities that form the basis for the petition‘s causes of action are all acts or omissions of the Board. That Kaufman‘s administrative appeal preceded or even triggered the events leading to the petition‘s causes of action against the Board did not mean that the petition arose from Kaufman‘s protected conduct within the contemplation of the anti-SLAPP law. Accordingly, we reverse the anti-SLAPP order and the related fee award.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our recitation of facts to those relevant to our decision.3
A. First Categorical Exemption
In 2017, appellants filed an application with the Planning Department to remodel and expand a single-family home located on Green Street in San Francisco (the project). The Planning Department determined that the project was categorically exempt from environmental review under the California Environmental Quality Act (
Neighbors of the project requested that the Planning Commission exercise its powers of discretionary review and disapprove the project. They also appealed the categorical exemption decision to the Board, claiming the project should not be exempt from CEQA because there was contaminated
The Board conditionally reversed the categorical exemption determination, finding there was substantial evidence that the project may result in substantial adverse impacts to the historic significance of Kaufman‘s neighboring property that had not been sufficiently addressed in the categorical exemption for the project.
B. Second Categorical Exemption
Appellants submitted a revised application, and the Planning Department issued a second categorical exemption in June 2018. However, the Planning Department later reversed itself and rescinded the second categorical exemption. Appellants appealed, but the Board declined to hear the appeal.
C. Mitigated Negative Declarations
After conducting an initial study of the project and determining that the potential environmental impacts were less than significant, the Planning Department issued a preliminary mitigated negative declaration in June 2019. The preliminary mitigated negative declaration set forth mitigation measures to ensure the security and stability of the project site and adjacent historic resources.
Kaufman appealed the preliminary mitigated negative declaration to the Planning Commission. In 2020, the Planning Commission denied Kaufman‘s appeal and adopted a final mitigated negative declaration.
D. Kaufman‘s Appeal to the Board
Kaufman then appealed the final mitigated negative declaration to the Board. The Board reversed the Planning Commission‘s decision upholding the final mitigated negative declaration and directed the Planning Department to conduct further study on slope stability and potential impacts to the structural integrity of Kaufman‘s property and to analyze and apply appropriate mitigation measures.
E. Appellants’ Petition for Writ of Mandamus
Appellants filed a petition for writ of mandamus against the City and County of San Francisco, Planning Commission, Planning Department, and
In the petition, appellants alleged that the City “repeatedly and unlawfully obstructed and delayed taking action on the [p]roject for years, instead yielding to political pressure exerted by members of the Board and well-connected neighbors who oppose the [p]roject.” According to the petition, the Board denied the project “in favor of the neighbors’ unsubstantiated arguments”; “failed to make any findings in support of its denial”; and “directed its clerk ‘to prepare findings specifying the basis for its decision’ after the fact. To date, no such findings have been made.” The petition further alleged on information and belief that “the neighbors who oppose the [p]roject are politically well-connected and are supported by members of the Board in their opposition to the Project,” and that “certain neighbors who filed [discretionary review] requests made political donations to” members of the Board.
In the first cause of action for writ of mandate under
In the second cause of action for writ of mandate under
In the petition‘s prayer for relief, appellants requested “a writ of mandate or other appropriate relief, including an injunction, declaration, and/or order, reversing the Board‘s decision to grant the [mitigated negative declaration appeal] and deny the [p]roject and remanding the [p]roject to the Board for approval.” Appellants also sought costs of suit and reasonable attorney fees under “Gov. Code §§ 1021.5 and/or 800.”4
F. Kaufman‘s Anti-SLAPP Motion
Kaufman filed an anti-SLAPP motion, contending that the petition arose from his protected activity of appealing the final mitigated negative declaration to the Board, and that appellants’ claims lacked minimal merit because the Board‘s decision was based on substantial evidence that the project may have adverse environmental impacts requiring an environmental impact report; there is no cause of action for delay in the City‘s CEQA findings;
The City filed a responsive brief in which it took “no position with respect to the anti-SLAPP claims stated in [Kaufman‘s] motion” but concurred with Kaufman‘s positions on the merits of the “[CEQA] and Housing Crisis Act claims advanced in the [p]etition.”
In opposition, appellants argued that Kaufman did not meet his threshold burden to show that the petition arises from protected activity because the petition arose not from Kaufman‘s appeal to the Board, but from the Board‘s decision. Appellants further argued that their claims met the minimal merit standard, and that the anti-SLAPP motion was frivolous and justified the imposition of sanctions against Kaufman.
The trial court granted the anti-SLAPP motion, finding that the petition arose from Kaufman‘s protected act of filing the administrative appeal, and that the claims in the petition lacked minimal merit. Appellants timely appealed the anti-SLAPP order in case No. A162859.
The trial court also found Kaufman was entitled to fees as the prevailing defendant on the anti-SLAPP motion and awarded him $219,269.25 in total fees. Appellants timely appealed the fee order in case No. A163639.
DISCUSSION
A. Anti-SLAPP Motion
Resolution of an anti-SLAPP motion involves a two-prong inquiry. The first prong requires that the moving defendant make a prima facie showing that the challenged claim or claims arise from the defendant‘s constitutionally protected free speech or petition rights. (Baral v. Schnitt (2016) 1 Cal.5th 376, 381–382, 396 (Baral).) If the moving party meets its burden, then under the second prong of the inquiry, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. (Id. at p. 384.) If the moving party fails to satisfy the first prong, the motion is properly denied without proceeding to second prong. (San Ramon, supra, 125 Cal.App.4th at p. 357.) A prevailing defendant on a special motion to strike “shall be entitled to recover” attorney fees and costs, while a prevailing plaintiff may be entitled to attorney fees and costs if the court finds that the anti-SLAPP motion was “frivolous or is solely intended to cause unnecessary delay.” (
We review an order on an anti-SLAPP motion de novo. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
There is no dispute that Kaufman‘s act of appealing the Planning Commission‘s decision to the Board constituted petitioning activity that generally is
“A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.] Critically, the defendant‘s act underlying the plaintiff‘s cause of action must itself have been an act in furtherance of the right of petition or free speech.’ [Citations.] . . . ‘[T]he focus is on determining what ‘the defendant‘s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’ ” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062–1063, italics omitted (Park).) In enacting the anti-SLAPP law, the Legislature “had in mind allegations of protected activity that are asserted as grounds for relief. The targeted claim must amount to a ‘cause of action’ in the sense that it is alleged to justify a remedy.” (Baral, supra, 1 Cal.5th at p. 395.) Thus, the California Supreme Court has instructed that “in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” (Park, at p. 1063.)
Park is instructive. There, the Supreme Court held that a discrimination claim brought by a university professor who was denied tenure did not arise from the university‘s protected statements and communications during the official tenure process, but rather, from the university‘s unprotected act of denying tenure purportedly based on the plaintiff‘s national origin. (Park, supra, 2 Cal.5th at p. 1068.) Employing an elements-focused approach, Park held that the elements of the discrimination claim “depend not on the grievance proceeding, any statements, or any specific evaluations of him in the tenure process, but only on the denial of tenure itself and whether the motive for that action was impermissible.” (Id. at pp. 1063, 1068.) The university‘s protected statements “may supply evidence of animus, but that does not convert these statements themselves into the basis for liability.” (Id. at p. 1068.)
Also instructive is City of Cotati v. Cashman (2002) 29 Cal.4th 69 (City of Cotati), where the Supreme Court held that a state court declaratory relief action filed by the City of Cotati
Here, the petition asserts two causes of action for mandamus. “Generally, a writ of ordinary mandate will lie when (1) there is no plain, speedy and adequate alternative remedy, (2) the public official has a legal and usually ministerial duty to perform and (3) the petitioner has a clear and beneficial right to performance.’ ” (Cape Concord Homeowners Assn. v. City of Escondido (2017) 7 Cal.App.5th 180, 189.) The factual allegations of the petition that supply these elements are the Board‘s failure to make factual findings in support of its decision to reverse the final mitigated negative declaration; the lack of substantial evidence supporting the Board‘s decision; and the Board‘s convening of more than five hearings on the project—all acts or omissions of the Board. Although the petition names Kaufman as a real party in interest and alleges he filed the appeal that led to the Board‘s decision, the petition seeks no coercive relief against Kaufman, and the allegations of his petitioning activity do not supply any of the elements of the asserted causes of action. Accordingly, the petition does not arise from Kaufman‘s petitioning activity. (Park, supra, 2 Cal.5th at p. 1063.)
It makes no difference that Kaufman‘s appeal of the final mitigated negative declaration directly preceded or even triggered the events leading to the petition‘s causes of action against the Board. “A claim may be struck under the anti-SLAPP statute ‘only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.’ ” (Wilson, supra, 7 Cal.5th at p. 890.) “That a cause of action arguably may have been triggered by protected activity does not entail that it is one arising from such.” (City of Cotati, supra, 29 Cal.4th at p. 78.) Thus, at most, the allegation of Kaufman‘s protected activity “merely provide[s] context, without supporting a claim for recovery,” but such contextual allegations are not subject to being stricken under the anti-SLAPP statute. (Baral, supra, 1 Cal.5th at p. 394; see also Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1012 [concluding it was appropriate to consider whether the plaintiff‘s “various allegations supply the elements of a retaliation claim or merely provide context”].)
Appellants and the City both cite Rudisill v. California Coastal Com. (2019) 35 Cal.App.5th 1062 (Rudisill) as supporting their respective positions. In Rudisill, the petitioners filed a mandamus petition contesting building permit decisions by the California Coastal Commission (Coastal Commission) and the City of Los Angeles, naming as real parties in interest the persons and entities who had applied for the permits. (Id. at p. 1068.) The petition alleged that the Coastal Commission violated applicable laws by processing permits for the demolition of existing structures and for new construction separately rather than as a single application, and that the real parties in interest filed permits for demolition and new construction in such close temporal proximity as to result in “ ‘a piecemealing of the demolition and the new construction.’ ” (Ibid.)5 The trial court denied the real parties in interest‘s anti-SLAPP motion and imposed attorney fees on them for filing a frivolous motion. (Id. at p. 1069.) On appeal from the fee award, the appellate court reversed, concluding the anti-SLAPP motion was not frivolous because the real parties in interest could have reasonably concluded (1) they were “ ‘person[s]’ ” against whom a cause of action was asserted within the meaning of the anti-SLAPP statute; and (2) the petition‘s “claim for attorney
fees,” which was not limited to a fee award against the government respondents, was a claim asserted against them that arose from their protected conduct of filing permits. (Rudisill, at pp. 1066, 1075.)
For its part, the City relies on portions of the Rudisill decision in which the court analyzed the statutory phrase from
In a separate part of its analysis that neither the City nor Kaufman cited in their briefs, Rudisill held that the real parties in interest reasonably viewed the petition‘s “claim for attorney fees” as a claim arising from their petitioning activity. (Rudisill, supra, 35 Cal.App.5th at p. 1072.) On this score, Rudisill reasoned as follows. A real party in interest who actively participates in litigation may be considered an “opposing part[y]” for purposes of fee shifting under
Assuming, without deciding, that Rudisill correctly concluded the anti-SLAPP law applies to a request for attorney fees contained in a prayer for relief (but see Coretronic Corp. v. Cozen O‘Connor (2011) 192 Cal.App.4th 1381, 1392 [anti-SLAPP statute does not apply to remedies sought in prayer for relief]), we conclude Rudisill‘s attorney fee rationale does little to assist our analysis. First, as mentioned, neither the City nor Kaufman relied on this portion of Rudisill in their briefs or advanced a similar argument based on the petition at issue here. Second, our review of the petition discloses no specific factual allegations that Kaufman was at least partially responsible for the challenged practices of the Board that gave rise to this litigation such that Kaufman could be liable for
Next, Kaufman and the City contend it was unnecessary for appellants to name Kaufman in the petition because he is not a necessary or indispensable
We need not wade into this thicket. Even assuming for the sake of argument that it was unnecessary for appellants to name Kaufman as a real party in interest, it does not follow that their doing so subjected their petition to application of the anti-SLAPP law. The anti-SLAPP law does not target unnecessary claims, but those that arise from protected conduct. (
In Levy v. City of Santa Monica (2004) 114 Cal.App.4th 1252 (Levy), the plaintiffs sought declaratory and injunctive relief and damages against the City of Santa Monica and a city council member (collectively the city defendants), alleging a controversy over whether a playhouse on the plaintiffs’ property complied with building regulations. (Id. at pp. 1256–1257.) In one of their causes of action, the plaintiffs sought a declaratory judgment and a permanent injunction precluding the city defendants from discussing the playhouse matter with planning department staff. (Id. at p. 1257.) The complaint named the plaintiffs’ neighbor as a real party in interest and alleged that she had complained to the city about the playhouse. (Id. at p. 1256.) Levy held that the city defendants met their initial burden under the anti-SLAPP law because the complaint arose from their constitutionally protected speech (i.e., speaking with city planning department employees on behalf of a constituent to inquire about the playhouse) and sought to enjoin such communications. (Id. at pp. 1255, 1258–1259.)
Unlike the instant matter, the anti-SLAPP movant in Levy was the government, not the real party in interest. Thus, Levy did not actually hold that naming the neighbor as a real party in interest triggered the protections of the anti-SLAPP law as to her. True, Levy remarked that the neighbor‘s complaint to the city was “constitutionally protected speech” (Levy, supra, 114 Cal.App.4th at pp. 1258–1259), but this statement was unnecessary to the court‘s decision that the complaint arose from the city defendants’ protected conduct. As to those parties, Levy soundly concluded the first prong was met, as the plaintiffs sought a declaratory judgment and a permanent injunction precluding city council members from their protected acts of discussing the playhouse matter with planning department staff. (Id. at p. 1257.) Although Levy predated Baral, these allegations met both Park‘s elements-based approach and Baral‘s formulation that the allegations of protected activity must be asserted as grounds for relief. Here, in contrast, the petition does not meet the Park elements test or any other formulation articulated by the
After the conclusion of briefing, Kaufman filed a notice of new authority citing City of Oxnard v. Starr (2023) 88 Cal.App.5th 313 (Oxnard). There, the City of Oxnard brought a declaratory relief action challenging two initiative measures passed by the electorate. (Id. at p. 318.) The complaint named as the sole defendant an Oxnard resident (Aaron Starr) who was a proponent of the measures and had gathered signatures for them. (Ibid.) Distinguishing Park, the appellate court held that the complaint arose from Starr‘s protected activity, as “Starr was sued because he is a proponent of two initiatives. Being a proponent of an initiative is an activity that clearly constitutes protected speech and petitioning.” (Id. at p. 321.)
Notably, Oxnard contains no discussion as to whether Starr‘s advocacy or signature gathering were, themselves, the wrongs complained of in the complaint (Wilson, supra, 7 Cal.5th at p. 884), or whether such protected acts supplied the elements of the declaratory relief cause of action (Park, supra, 2 Cal.5th at p. 1063). From the Oxnard opinion, it appears the government sought to void the initiatives not because of anything Starr said or did, but on the ground that the measures were administrative rather than legislative in nature, and the electorate only had the power to initiate legislative acts. (Oxnard, supra, 88 Cal.App.5th at pp. 320–321.) In any event, as the Oxnard court acknowledged in its second prong analysis, the case involved unique circumstances in which, apart from Starr, there was “no other logical defendant” to sue for declaratory relief. (Id. at p. 323 [observing that Starr had been conferred legal standing to defend the measures by both the language of the measures themselves and Perry v. Brown (2011) 52 Cal.4th 1116, 1152].) Here in contrast, appellants brought a mandamus proceeding challenging particular acts and omissions of the City, making the City the “logical” respondent in this case. As such, all of the petition‘s claims for relief were asserted against the City. On this record, Oxnard is not controlling.
In sum, appellants’ mandamus petition does not arise from Kaufman‘s protected petitioning activity because that conduct is not the wrong complained of; the allegations of such conduct do not supply any of the elements of appellants’ causes of action; and the petitioning activity is not asserted as grounds for relief. (Wilson, supra, 7 Cal.5th at p. 884; Park, supra, 2 Cal.5th at p. 1063; Baral, supra, 1 Cal.5th at p. 395.) Thus, Kaufman failed to carry his initial burden on the anti-SLAPP motion, and the motion should have been denied. (San Ramon, supra, 125 Cal.App.4th at p. 357.) Furthermore, because it was error to find that Kaufman prevailed on his anti-SLAPP motion, the order granting Kaufman‘s motion for attorney fees must also be reversed and vacated.
Appellants contend the anti-SLAPP motion was frivolous and sanctionable under
As discussed, Rudisill held on facts procedurally similar to those here that an anti-SLAPP motion was not frivolous. Thus, a reasonable attorney could have relied on Rudisill to conclude that Kaufman‘s anti-SLAPP motion was not totally devoid of merit. Appellants provide no evidentiary basis for concluding the anti-SLAPP motion was brought solely for the purpose of harassment or delay. Accordingly, we conclude the anti-SLAPP motion was not frivolous, and we deny appellants’ request for attorney fees and costs under
DISPOSITION
The orders granting Kaufman‘s anti-SLAPP motion and motion for attorney fees are reversed and vacated. On remand, the trial court is directed to enter a new order denying both motions. Appellants’ request for attorney fees and costs under
FUJISAKI, J.
WE CONCUR:
TUCHER, P.J.
PETROU, J.
Trial Court: City & County of San Francisco Superior Court
Trial Judge: Hon. Rochelle C. East
Counsel: Zacks & Freedman, Ryan J. Patterson, and Emily Lowther Brough for Plaintiff and Appellant
David Chiu, City Attorney, Kristen Ann Jensen, Audrey Williams Pearson, and Lauren Skellen, Deputy City Attorneys for Defendants and Respondents
Lozeau Druty, Richard Toshiyuki Drury; and Law Office of Jonathan Weissglass, Jonathan David Weissglass for Real Party in Interest
Durkin v. City and County of San Francisco (A162859 & A163639)