Filed 8/14/14 Gonzales v. County of Riverside CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
JAMES GONZALES et al.,
Plaintiffs and Appellants, E056253
v. (Super.Ct.No. RIC1115253)
COUNTY OF RIVERSIDE et al., OPINION
Defendants and Respondents.
APPEAL from the Superior Court of Riverside County. Daniel A. Ottolia,
Judge. Affirmed.
Robinson Legal and Raymond G. Robinson for Plaintiffs and Appellants.
Arias & Lockwood and Christopher D. Lockwood for Defendants and
Respondents.
Plaintiffs and appellants James Gonzales, Estella Gonzales, and Gary Gonzales
(collectively, plaintiffs) appeal from an order granting the special motion to strike
brought by defendants and respondents County of Riverside and Patti Smith
1
(collectively, defendants) pursuant to Code of Civil Procedure section 425.16,1
commonly known as the “Anti-SLAPP” law. In addition, Plaintiffs seek reversal of a
consequent award of attorney’s fees. Plaintiffs’ alleged Defendants’ nuisance
abatement action against several of Plaintiffs’ properties was motivated by racial
animus. The trial court disagreed and dismissed the action. Because Plaintiffs’ suit
arose from Defendants’ protected activity and had no reasonable probability of
succeeding, we find dismissal proper and affirm the award of attorney’s fees.
FACTUAL AND PROCEDURAL HISTORY
James Gonzales (James) is married to Estella Gonzales; Gary Gonzales is
James’s brother.2 Plaintiffs own 15 properties in Riverside County and James has an
interest in one other.
A. BACKGROUND CASES
1. CASE NO. RIC518358: THE NUISANCE ABATEMENT ACTION
The County of Riverside (the County) filed a nuisance abatement action on
January 30, 2009, against Plaintiffs and several other entities holding deeds of trust on
Plaintiffs’ properties (the Nuisance Abatement Action). That action is still ongoing,
although the court has appointed a receiver over some of the properties and ordered
1All further statutory references are to the Code of Civil Procedure unless
otherwise indicated.
2 We use James’s first name for clarity and ease of reference as Plaintiffs share
the same last name; no disrespect is intended.
2
plaintiffs to terminate the occupancy of nonpermitted structures. Patti Smith (Smith)
was the County’s deputy county counsel who filed the Nuisance Abatement Action.
Plaintiffs filed a cross-complaint to the Nuisance Abatement Action on February
18, 2010; four amended cross-complaints followed due to a series of demurrers being
sustained with leave to amend.3 Defendants moved unsuccessfully to dismiss the third
amended cross-complaint under the Anti-SLAPP law. The fifth amended cross-
complaint, the only version included in full in Appellant’s Appendix, was filed on
September 29, 2011; it included a cause of action alleging Defendants’ conduct was
motivated by racial animus and asserted a violation of the equal protection clause of the
Bill of Rights. Monetary damages were sought in relief. After another demurrer, this
time without leave to amend, the causes of action remaining in the fifth amended cross-
complaint were for defamation, interference with contract, and declaratory relief.
2. CASE NO. RIC10004315: PETITION FOR WRIT OF MANDATE
On March 11, 2010, Plaintiffs filed a petition for writ of mandate seeking an
order the County “cease litigation against [Plaintiffs] and declaring [Plaintiffs’]
compliance with building and zoning laws and regulations, a declaratory judgment
ordering the same, and a [temporary restraining order] and preliminary and permanent
3 The record is notably deficient in relevant documents from the Nuisance
Abatement Action, including rulings on demurrers. In addition, the sequence of filings
is impossible to determine from the record and is not established by the parties’
briefing; consequently, we take judicial notice of the register of actions from the
Riverside County Superior Court case No. RIC518358. We also take judicial notice of
the registers of actions for cases Nos. RIC10016537 and RIC10004315, post. (Evid.
Code, § 452, subd. (d).)
3
injunction to enjoin the County from litigating against [Plaintiffs].”4 On May 6, 2010,
Plaintiffs filed an amended petition. The petition asserted Defendants’ actions in the
Nuisance Abatement Action were motivated by “racial/ethnic hatred, discrimination,
and bias.” No monetary relief, other than costs of suit, was sought. The petition was
consolidated with the Nuisance Abatement Action on March 18, 2011.
3. CASE NO. RIC10016537: COMPLAINT FOR ABUSE OF
PROCESS
On August 18, 2010, Plaintiffs and Donald Almanzar, who rented a property
from Plaintiffs, filed a tort action against Defendants, the Riverside County Sheriff’s
Department and Tuie Morgan (a County employee) for abuse of process; improper
government purpose; failure to discharge mandatory duty under Government Code
section 815.6; negligence; assault and battery; conspiracy; intentional or reckless
infliction of mental distress; and negligent infliction of mental distress. The suit alleged
Defendants’ actions in connection with the Nuisance Abatement Action were motivated
by “racial discrimination and hatred.”5 Defendants’ filed an Anti-SLAPP motion in
response to the tort action on October 7, 2010. No copy of the motion is included in the
record. Plaintiffs filed a request for dismissal of the entire action without prejudice on
4 The record does not contain the initial petition.
5Plaintiffs assert the complaint was not served, but that a “courtesy copy” was
provided to Defendants’ counsel.
4
November 3, 2010.6 Attorneys fees were awarded to Defendants on January 18, 2011,
in the amount of $1,475. Plaintiffs filed an appeal in this court for relief from the fee
award on March 21, 2011; however, the appeal was dismissed on April 13, 2011, for
Plaintiffs’ failure to pay the filing fee and for failure to complete required forms.7
4. FEDERAL COURT CASE
An action was commenced by Plaintiffs and Donald Almanzar in federal court on
November 23, 2010, alleging civil rights violations by the County, the court-appointed
receiver, and 20 “Doe” defendants. The gravamen of the federal case was also the
improper motives of Defendants in the Nuisance Abatement Action, asserting Plaintiffs
were deprived of their rights “to travel, to associate with others, to own real property,
and to exercise general personal freedom/liberty without governmental interference or
unequal treatment” because of their Hispanic names and origin and Defendants’ racism.
Plaintiffs sought $1,000,000 in general damages for each plaintiff, special and punitive
damages, and injunctive relief against further discrimination.
The County moved to dismiss the federal action, which the federal court treated
as a motion under Federal Rules of Civil Procedure, Rule 12(b)(6). The federal court
found abstention was proper under Younger v. Harris (1971) 401 U.S. 37, because there
6 Plaintiffs assert they filed the dismissal because they chose instead to proceed
in federal court.
7 We take judicial notice of Court of Appeal case No. E053207.
5
was a pending state action involving important state issues. The federal court dismissed
all claims seeking injunctive relief and damages, without prejudice, as to Plaintiffs.8
B. CASE NO. RIC1115253: CASE UNDER APPEAL
The complaint that is the subject of this appeal, case No. RIC1115253, was filed
by Plaintiffs on September 15, 2011 (hereinafter, “the Complaint”); it was filed 14 days
prior to Plaintiffs’ filing of their fifth amended cross-complaint in the Nuisance
Abatement Action. It also springs from the Nuisance Abatement Action. The
Complaint states the Nuisance Abatement Action was filed because Smith “became
angry and upset with [Plaintiffs]” and was “motivated by anti-Hispanic racial hatred.”
There is one cause of action in the Complaint, for “VIOLATION OF FEDERAL
CIVIL RIGHTS,” and it alleges Plaintiffs have been deprived “of their right and/or
privilege to own and use property, to associate, and to be free of governmental intrusion
based on racism.”9 The Complaint sought $1,000,000 in damages for each plaintiff,
special damages, “declaratory relief against the County, costs, and attorney’s fees.
8 Defendants assert the remainder of the case, as to Almanzar, was resolved by
motion for summary judgment, which was granted in the federal court after the trial
court proceedings at issue herein. Plaintiffs do not dispute the point.
9 Other posited constitutional rights are mentioned, such as “the right not to be
discriminated against because of their Hispanic names and origin,” the “right not to be
deprived of their [p]roperties by using a receivership as a tool,” “the rights of
association and not to have their . . . tenants held against their will, subjected to slander,
and submitted for psychological evaluation and false arrest,” and the right “to travel . . .
and to exercise general personal freedom/liberty without governmental interference or
unequal treatment with respect to the provision/exercise thereof.” No violation of these
rights is alleged in the cause of action.
6
The factual support for the Complaint comes from nine declarations filed in the
Nuisance Abatement Action that plaintiffs allege the state courts have “passe[d] over”
and failed to address.10 The declarations were not attached to the Complaint in the
Plaintiffs’ Appendix and do not seem to have been filed with it, but appear to have been
included as an attachment to Plaintiffs’ opposition to the Anti-SLAPP motion. The
declarations include the following allegations material to the Complaint:
Donald Almanzar: Declared he stored items and a mobile home on Plaintiffs’
property, but did not live in the mobile home. He was handcuffed and arrested when he
would not allow inspectors into his mobile home. It was a false allegation that he was
living in the mobile home amid human excrement, as he did not live there and it was his
dogs that “had messed up” the trailer. In a second declaration Almanzar declared the
County had reneged on the offer of a free dumpster to use to remove trash from his
property. The hourly rate charged by the County for a cleaning crew sent to his
property was unreasonable. The Complaint asserts these declarations “document[] the
discriminatory treatment of [Defendants] against [Almanzar].”
Dana Buckley: Declared he was tenant of Plaintiffs who performed handyman
work in exchange for rent. He did not refuse to enter into a new lease with the receiver.
Smith has disparaged James, saying James makes his money illegally. Smith told him
he could make $250 an hour if the court appointed him as a receiver over Plaintiffs’
properties. Smith is motivated by “personal animosity” against James. The Complaint
10 Plaintiffs also provided an unsworn letter from Nina Scotti, which stated she
stored items in a unit on one of Plaintiffs’ properties.
7
asserts this declaration “document[s defendants’] employee’s desires to use the
receivership to cause [Plaintiffs] to lose their properties, as well as their racial
discrimination.”
Greg Rains: Declared he was a tenant of Plaintiffs who performed work in
exchange for rent. He did not refuse to enter into a new lease with the receiver. The
sheriff searched his home without a warrant and threatened to shoot his dog. Smith
“made continuously disparaging remarks against [James],” including calling him
“‘nothing but a slumlord’” and a “dishonest” man who “made his money from illegal
activities” such as “illegal sex parties.” Smith “also made disparaging remarks about
Mexico or Mexicans, which [Rains] took as racial comments directed to [James], who is
Hispanic.” The Complaint asserts this declaration “document[s defendants’]
employees’ racial discrimination.”
Keith Ahearn: Declared he performed “odd-jobs [for James] as a grounds
keeper.” He was alarmed by a warning from two women who “introduced themselves
as a Riverside County Attorney and the local Code Enforcement officer” that the
property would be raided in three days (he did not state whether a raid took place on
that schedule). Two months later he was asked by a Riverside County Deputy Sheriff if
he was “safe.” He did not understand why he was asked the question. The Complaint
asserts this declaration “document[s defendants’] employees’ racial discrimination.”
8
Marc Wolff: Declared he was told by a building code enforcement officer that
the property he was renting lacked a final inspection and permits; it was later
condemned by the County. He complained to the officer about a competitor’s property,
which was allowed to have a display of a type that Wolff had to take down. He was told
that the competitor’s property was owned by James, who had many violations and
whose property the county “was working on filing paperwork” to take away. He
declared it was “detrimental to the interests of the citizens of the county, especially in
these difficult economic times, to be taking actions” against people for code violations.
The Complaint asserts this declaration “document[s defendants’] discriminatory
practices.”
Michael Higbee: Declared he was working on one of Plaintiffs’ properties “in or
about October 2008” when Smith and some code enforcement officers arrived. Smith
told him he might as well stop working on the property because it was going to be torn
down because “‘this TJ construction is not going to fly in this county.’” He understood
her comment to refer to Tijuana, Mexico. He “understood her comment to be
demeaning of Hispanics” and a “blatantly racist comment” which was “startlingly
offensive.” The Complaint asserts this declaration “document[s defendants’]
employee’s racial discrimination.”
David Chambers: Declared he was a licensed contractor who had worked for
James; he was working on “property 4,” owned by Plaintiffs, when it received approval
9
at a final inspection on February 9, 2005.11 The Complaint asserts this declaration
“document[s defendants’] discriminatory practices against [Plaintiffs].”
Ron Helms: Declared he was a former tenant of Plaintiffs. The receiver for
Plaintiffs’ properties asked him to pay future rent to the receivership. He was moving
out; he declared no rent was due for the month he moved out. The Complaint asserts
this declaration “document[s defendants’] rush to act against [Plaintiffs] without
reasonable cause”
The Complaint states these declarations “are all in addition to the declarations of
[Plaintiffs], which have been given on many occasions and which further evidence the
anti-Hispanic animus” of Defendants. Only one such declaration is attached to the
opposition to the Anti-SLAPP motion or the Complaint as provided in the Plaintiffs’
Appendix, and it is the only declaration cited to in the briefing before us. That
declaration was made by James in his opposition to the Anti-SLAPP motion. His
declaration stated he was “Hispanic with an obvious Spanish last name, Gonzales.”
That Smith made “degrading comments” to him “[o]n several occasions.” He
specifically declared that Smith has said to him, “‘This isn’t Tijuana,’” and “‘This isn’t
Mexico’” when touring his properties. He was stunned by the comments and he
“understood them to be very racist.” It was not alleged how often, when, where, to
whom, and who was present when the statements were made.
11 The only mention of “property 4” in the Complaint related to the allegation by
the County that James held “wild sex parties” there, although at least one version of the
cross-complaints filed in the Nuisance Abatement Action includes claims related to that
property, which may be related to the lack of a final inspection.
10
On December 1, 2011, Defendants filed a motion to dismiss the Complaint under
the Anti-SLAPP law. A declaration by Smith dated November 28, 2011, was filed in
support of the motion. Smith generally denied racial bias or animus. She admitted
telling people that Plaintiffs’ “refusal to clean up their properties would force the
County to file a nuisance abatement action and would result in significant costs to
plaintiffs.” She also admitting saying the court could order demolition of unpermitted
structures if Plaintiffs did not obtain proper permits. She admits saying “‘this is not
Tijuana,’” but asserts it was taken out of context. She declared James said he had seen
single buildings combining commercial, industrial and residential usages, and that she
responded, “the laws of the United States are different than the laws of Mexico,” and
separated residential space from industrial and commercial uses. Smith admitted calling
James the “‘most egregious slumlord in the County of Riverside’” in court and to his
face. She admitted telling James and his tenants that renting unpermitted structures was
illegal. She declared she had been told James’s son “was arrested for activities related
to illegal ‘sex parties’” held on one of the properties; James’s son told her James was
involved. Smith also declared her maiden name was Sanchez and she had Hispanic
ancestry. Plaintiffs’ opposition to the Anti-SLAPP motion did not present evidence to
contradict or address Smith’s declaration.
The motion to dismiss was granted by a summary order filed on March 13, 2012.
Although the order did not explain the ruling, the court set out its reasoning during oral
argument of the motion. The court found Defendants had established the Complaint
was filed in response to their activity in the Nuisance Abatement Action. The
11
remaining question for the court was whether Plaintiffs could meet the burden of
showing a likelihood of prevailing on the merits of the Complaint. The court found,
“the only comments that the Court can construe as being of a racial nature would be the
comments of . . . Smith. And those are the comments by . . . Smith that ‘This is not TJ’
and ‘This is not Mexico,’ those two comments in particular.” The court found that the
context of those remarks made them innocuous. Plaintiffs’ counsel argued that his
proof was more than racist comments, but could only cite to the existence of similarly
blighted property owned by “white neighbors.”
As prevailing party, Defendants sought attorney’s fees and expenses totaling
$3,797.14. On May 11, 2012, Plaintiffs appealed the March 13, 2012, trial court’s
granting of Defendants’ motion to dismiss.
DISCUSSION
A trial court’s ruling on an Anti-SLAPP motion is reviewed de novo. (Soukup v.
Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) The Anti-SLAPP
statute, section 425.16, authorizes the trial court to strike a cause of action against a
person arising from that person’s exercise of constitutional rights to free speech and
petition for redress of grievances. (§ 425.16; see Flatley v. Mauro (2006) 39 Cal.4th
299, 311-312.) The Legislature enacted the statute to provide an expeditious procedure
to screen out meritless claims and thus discourage lawsuits brought primarily to chill the
valid exercise of these constitutional rights. (Flatley, at p. 312.)
Subdivision (e) broadly defines the coverage of section 425.16: “As used in this
section, ‘act in furtherance of a person’s right of petition or free speech under the United
12
States or California Constitution in connection with a public issue’ includes: (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, or (4) 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.”
Under section 425.16, the moving party, usually the defendant, bears the initial
burden of showing that the cause of action arose from his or her acts in furtherance of
rights to petition and free speech. (§ 425.16, subd. (b)(1); Zamos v. Stroud (2004) 32
Cal.4th 958, 965.) “‘Any act’ includes communicative conduct such as the filing,
funding, and prosecution of a civil action. [Citation.]” (Rusheen v. Cohen (2006) 37
Cal.4th 1048, 1056.) If the defendant makes this showing that the challenged cause of
action arises from protected activity, the burden shifts to the plaintiff to establish that
there is a probability of prevailing on the merits of his or her claim. (§ 425.16, subd.
(b)(1); Zamos, at p. 965.) To satisfy this requirement, the plaintiff must demonstrate
that the complaint is legally sufficient and the elements of each claim are supported by a
sufficient prima facie showing of facts such that, if the evidence submitted in support of
these facts is credited, the plaintiff would be entitled to a favorable judgment. (Zamos,
at p. 965.) The plaintiff may not rely on the complaint alone, but must produce
13
admissible evidence to support the elements of his claim. (Paulus v. Bob Lynch Ford,
Inc. (2006) 139 Cal.App.4th 659, 673 (Paulus).)
Plaintiffs here are defending a suit involving allegations of violations of civil
rights. Multiple cases hold that the Anti-SLAPP statute applies to causes of action
based on section 1983 of title 42 of the United States Code. (Bradbury v. Superior
Court (1996) 49 Cal.App.4th 1108, 1117-1118; Vergos v. McNeal (2007) 146
Cal.App.4th 1387, 1400.) The issues in an Anti-SLAPP motion are framed by the
pleadings. (Paulus, supra, 139 Cal.App.4th at p. 672.) We independently review the
pleadings and the affidavits submitted by the parties and determine whether the plaintiff
has made a prima facie showing of facts necessary to establish a claim at trial. (Soukup
v. Law Offices of Herbert Hafif, supra, 39 Cal.4th at p. 269, fn. 3; Paulus, at p. 672.)
The plaintiff may not rely on the complaint alone, but must produce sufficient evidence
to support the elements of his claim. (Paul for Council v. Hanyecz (2001) 85
Cal.App.4th 1356, 1364, fn. 5, disapproved on other grounds by Equilon Enterprises v.
Consumer Cause, Inc. (2002) 29 Cal.4th 53, 68; Paulus, at pp. 672-673.) “Rather than
requiring the defendant to defeat the plaintiff’s pleading by showing it is legally or
factually meritless, the motion requires the plaintiff to demonstrate that he possesses a
legally sufficient claim which is ‘substantiated,’ that is, supported by competent,
admissible evidence.” (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704,
719.) “We disregard declarations [lacking in] foundation or personal knowledge, or that
are argumentative, speculative, impermissible opinion, hearsay, or conclusory.”
(Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 26.)
14
The role of the trial court is not to weigh the credibility or comparative strength
of the parties’ evidence. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811,
821.) The court simply determines whether the defendant’s evidence defeats a
plaintiff’s prima facie showing as a matter of law. (Ibid; Colt v. Freedom
Communications, Inc. (2003) 109 Cal.App.4th 1551, 1557.) We “then independently
determine, from our review of the record as a whole, whether [the plaintiff] has
established a reasonable probability that he would prevail on his claims. [Citation.]”
(Thomas v. Quintero (2005) 126 Cal.App.4th 635, 644-645.) “[T]hough the court does
not weigh the credibility or comparative probative strength of competing evidence, it
should grant the motion if, as a matter of law, the defendant’s evidence supporting the
motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.
[Citation.]’ [Citations.]” (Taus v. Loftus (2007) 40 Cal.4th 683, 713-714.)
“[Title 42 United States Code section 1983] ‘is not itself a source of substantive
rights,’ but merely provides ‘a method for vindicating federal rights elsewhere
conferred.’” (Albright v. Oliver (1994) 510 U.S. 266, 271, quoting Baker v. McCollan
(1979) 443 U.S. 137, 144, fn. 3.) Our state and federal Constitutions prohibit the state
from denying any person equal protection of the laws. (U.S. Const., 14th Amend., § 1;
Cal. Const., art. 1, § 7, subd. (a).) The essence of equal protection is that persons who
are similarly situated with respect to the legitimate purpose of the law receive like
treatment. (City of Cleburne, Tex. v. Cleburne Living Center (1985) 473 U.S. 432, 439;
Cooley v. Superior Court (2002) 29 Cal.4th 228, 253.) A plaintiff may bring a claim
15
under title 42 United States Code section 1983 based on a violation of the right to equal
protection. (Fuller v. City of Oakland (9th Cir. 1995) 47 F.3d 1522, 1533-1534.)
To recover damages from a governmental unit for an equal protection violation
under title 42 United States Code section 1983, a plaintiff must show that the
municipality’s action was motivated by a “discriminatory intent or purpose.” (Village
of Arlington Heights v. Metropolitan Housing Development Corp. (1977) 429 U.S. 252,
265.) “[T]he invidious quality of a law claimed to be racially discriminatory must
ultimately be traced to a racially discriminatory purpose.” (Washington v. Davis (1976)
426 U.S. 229, 240.) “Unequal treatment which results simply from laxity of
enforcement or which reflects a nonarbitrary basis for selective enforcement of a statute
does not deny equal protection and is not constitutionally prohibited discriminatory
enforcement.” (Baluyut v. Superior Court (1996) 12 Cal.4th 826, 832.) Unequal
application of a statute or rule to persons entitled to be treated alike is not a denial of
equal protection, “unless there is shown to be present in it an element of intentional or
purposeful discrimination.” (Snowden v. Hughes (1944) 321 U.S. 1, 8.) What the equal
protection guarantee prohibits is state officials “purposefully and intentionally singling
out individuals for disparate treatment on an invidiously discriminatory basis.” (Murgia
v. Municipal Court (1975) 15 Cal.3d 286, 297.)
Subject to exceptions not applicable here, “a prevailing defendant on a [SLAPP]
motion . . . shall be entitled to recover his or her attorney’s fees and costs.” (§ 425.16,
subd. (c)(1).) “[A]ny SLAPP defendant who brings a successful motion to strike is
16
entitled to mandatory attorneys fees.” (Ketchum v. Moses (2001) 24 Cal.4th 1122,
1131.)
A. THE MOTION TO STRIKE
Respondent’s filing of the Nuisance Abatement Action is the central element of
the Complaint. It is undisputed for purposes of the Anti-SLAPP motion that it underlies
Appellant’s suit. Likewise, although Plaintiffs state the Anti-SLAPP statute “does not
immunize personal vendettas, racial hatred, and the like,” they do not dispute that
Defendants were exercising the protected right to petition in connection with a public
issue when they filed the Nuisance Abatement Action. Defendants having met their
initial burden, it then shifts to Plaintiffs to show their complaint is legally sufficient and
that there is sufficient admissible evidence to support the elements of their claim.
(College Hospital Inc. v. Superior Court, supra, 8 Cal.4th at p. 719.)
The complaint frames the issues for the Anti-SLAPP motion. (Paulus, supra,
139 Cal.App.4th at p. 672.) In a single count, the Complaint asserts violation of
Plaintiffs’ civil rights through the deprivation of their rights to own property, to freely
associate, and “to be free of government intrusion based upon racism.”12 The
Complaint asserts Plaintiffs’ “status as Hispanic persons” motivated Defendants’
actions. There are statements that Plaintiffs and their friends have other asserted rights,
such as the right not to be discriminated against, the right not to be deprived of their
12
Defendants assert in briefing here and before the trial court that the Complaint
should be read as seeking relief for malicious prosecution. The trial court did not find it
necessary or proper to so recast the action, and neither do we.
17
properties by a receivership, the right not to be held against one’s will or slandered, and
the right to travel, but there is no charge in the cause of action that these rights were
violated. Our review, then, focuses upon whether Plaintiffs have presented enough
admissible evidence to show there is a probability that they will succeed in their claim.
(Zamos v. Stroud, supra, 32 Cal.4th at p. 965.)
No relief exists for an abstract violation of section 1983 of title 42 of the United
States Code; a claim may only be stated for substantive, specific federal rights conferred
in our Constitution and Bill of Rights. (Albright v. Oliver, supra, 510 U.S. at p. 271;
Chapman v. Houston Welfare Rights Organization (1979) 441 U.S. 600, 617. [“‘one
cannot go into court and claim a “violation of § 1983”—for § 1983 by itself does not
protect anyone against anything’”].) There are no facts or argument setting out a
violation of the right of association.13 Likewise, the “right to own property” and the
right to be free of government intrusion are not commonly understood on those terms as
constitutional rights. In their briefing, Plaintiffs employ the phrase “unequal protection”
as an explanation of their claim. Understanding Plaintiffs’ claim as seeking redress for
13 “‘Our decisions have referred to constitutionally protected “freedom of
association” in two distinct senses. In one line of decisions, the Court has concluded
that choices to enter into and maintain certain intimate human relationships must be
secured against undue intrusion by the State because of the role of such relationships in
safeguarding the individual freedom that is central to our constitutional scheme. In this
respect, freedom of association receives protection as a fundamental element of personal
liberty. In another set of decisions, the Court has recognized a right to associate for the
purpose of engaging in those activities protected by the First Amendment—speech,
assembly, petition for the redress of grievances, and the exercise of religion.’
[Citation.]” (City of Dallas v. Stanglin (1989) 490 U.S. 19, 24.) If Plaintiffs intend
such a claim, they have not presented it.
18
violation of their right to equal protection of the laws under the Fourteenth Amendment
because of prejudice against their Hispanic heritage, we next consider the supporting
evidence.
Plaintiffs disclosed their supporting evidence in response to the Anti-SLAPP
motion. Nine declarations were discussed in the Complaint, but were not attached to the
Complaint; the declarations were filed as exhibits to Plaintiffs opposition to the Anti-
SLAPP motion.14 Of these, the declarations of Almanzar, Ahern, Wolff, Chambers, and
Helms contain nothing alleging any improper motives. The Buckley declaration asserts
that Smith was motivated by “personal animosity,” but there is no racial component
alleged. As Almanzar gave two declarations, seven declarations cited as documenting
Plaintiffs’ claim fail to provide any supporting evidence.
Two third-party declarations have significance. Greg Rains stated that Smith
“made disparaging remarks about Mexico or Mexicans, which [Rains] took as racial
comments directed to [James], who is Hispanic.” As testimony, this summary
allegation is fatally unspecific: no specific terms, date, place, parties, or context are
provided. Michael Higbee’s declaration states that in October 2008, Smith visited him
with some code enforcement officers while he worked on one of Plaintiffs’ properties
and told him “‘this TJ construction is not going to fly in this county.’” He understood
that comment to be “blatantly racist,” “startlingly offensive,” and “demeaning of
14 As discussed ante, the unsworn, undated letter from Nina Scotti was also cited
by Plaintiffs, but the contents are rank hearsay and not admissible evidence. In any
event, the letter contains nothing alleging racial bias or deprivation of Plaintiffs’ rights.
19
Hispanics, such as [James].” Higbee declared he called James and told him about the
comment.
The Complaint indicates these declarations are in addition to declarations by the
Plaintiffs, but, with one exception, none are present in the record. The only declaration
by an appellant is one executed in 2012 by James. In it, he declared that Smith made
“degrading comments” to him on several occasions that were “so racist that [he] did not
believe a judge would believe [him].” James declared he “thought it best the racist
comments [came] from third parties” to be presented to the court. As discussed above,
the only relevant statements by third parties are the claim of general disparaging
remarks by Rains and a reference to “TJ construction” by Smith as reported by Higbee.
The only specific comment reported by James is that Smith said to him, “‘This isn’t
Tijuana’” and “‘This isn’t Mexico’” when touring his properties. It is possible that
these references to a Mexican city and to Mexico could be evidence of a hostile attitude
toward people with a Mexican national origin, and, by extension, to people, such as
Plaintiffs, with Hispanic surnames.15
Defendants have submitted a declaration from Smith that admits making
reference to Tijuana and to Mexican building codes. She stated she mentioned Tijuana
in response to a comment about how mixed property usage was allowed in Mexico. Her
15 James’s declaration does not disclose whether he is of Mexican heritage. He
states only that he has a Hispanic surname. We accept, for purposes of our analysis,
that a bias against people of Mexican national origin can extend to people with Hispanic
surnames. Similarly, we place no significance on the fact that Smith had a Hispanic
surname until her marriage. Sharing circumstances with an identified subgroup does
not immunize one from possessing prejudice against that group.
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declaration also does not state where or when these statements were made, but does
indicate they were made to James. In their briefing, Plaintiffs state those comments
were made “without [Plaintiffs] even present,” which appears to conflict with James’s
declaration testimony that they were made to him. In their briefing, Plaintiffs further
contradict themselves by the incomplete argument that “specifically the ‘this isn’t TJ’
statement was not made to Appellant James Gonzales as Smith claims (AA0052:20-27)
but to xxx [sic].” Plaintiffs’ uncertainty about their allegations detracts from their
credibility.
Smith’s explanation of the context of the remarks, in addition, provides a basis
on which the trial court could properly find them innocuous. If the references to
Tijuana or Mexican building codes were suggested by a comment from James, they are
not invidious. Other than the tellingly incomplete arguments in briefing, Smith’s
explanation is undisputed. James’s declaration, executed in response to Smith’s
declaration and two months afterwards, does not contravene her explanation of context
and corroborates her assertion that she was speaking to him. At most, the remaining
allegations of bias are composed only of fatally insufficient charges of general
disparagement. Further, stray remarks like these cannot be the factual basis for a
discrimination claim. (Merrick v. Farmers Ins. Group (9th Cir. 1990) 892 F.2d 1434,
1438.)
Plaintiffs attempt to demonstrate bias through citation of the allegations in the
Complaint, counsel’s advocacy at oral argument, and conclusory statements; none of
those constitute competent evidence. (Paul for Council v. Hanyecz, supra, 85
21
Cal.App.4th at p. 1364, fn. 5; Paulus, supra, 139 Cal.App.4th at p. 673.) Lacking
specific facts from which the trial court could derive an intent to purposely discriminate
against Plaintiffs, it could not find that the otherwise proper enforcement of the land-use
codes through the Nuisance Abatement Action was a denial of the right to equal
protection of the laws.
Plaintiffs argue that the Nuisance Abatement Action was a racially based
selective prosecution, by which similarly situated “Caucasian neighbors” had properties
in “far worse conditions” and were operating storage businesses in identical buildings.
This charge, too, is deficient in proof. There is no competent, admissible evidence that
there are such littered lots or impermissible usages operated by Caucasians. Plaintiffs’
briefing appears to cite a letter written by Plaintiffs’ counsel to Smith as supporting
evidence. Referencing two properties, counsel states, “the owner of this property is
believed to be Caucasian,” and “[a]gain, the owner is Caucasian,” before concluding
that Plaintiffs “are treated more harshly than Caucasian neighbors.” No basis is given
for those statements. That letter is not competent, admissible, or sufficient proof for
Plaintiffs’ allegations.
Further, the declarations supplied by Appellant contradict his own argument.
Marc Wolff’s declaration alleged that he had been harassed by Defendants, having to
take down a commercial display, and he and his competitors suffered from “selective
enforcement of supposed building and zoning violations.” Wolff does not appear to
have a Hispanic surname, and he does not state that any national origin or racial bias
underlies the code enforcement actions. It is unsurprising that people subject to these
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rules chafe under them and resent their application. No showing has been made,
however, that Defendants have been enforcing the law in a biased manner.
Any civil rights claim sounding under section 1983 of title 42 of the United
States Code, which relies upon the record before us, must fail. Plaintiffs did not submit
sufficient admissible evidence for the court to find a probability they will prevail.
(ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1010; Simmons v. Allstate
Ins. Co. (2001) 92 Cal.App.4th 1068, 1073-1074.) The motion to strike under Code of
Civil Procedure section 425.16, the Anti-SLAPP Law, was properly granted.
B. ATTORNEY’S FEES DURING THE PENDENCY OF THE APPEAL
Plaintiffs’ opening brief contests both the grant of attorney’s fees to Defendants
and the trial court’s refusal to stay the award during the pendency of the appeal.
Defendants are entitled to attorney’s fees as the prevailing party in an Anti-SLAPP
motion. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1131.) The award of attorney’s fees
was a proper exercise of the court’s power.
Plaintiffs intend to appeal the fee award, but have not filed a notice of appeal of
the order awarding attorney’s fees. The notice of appeal in this case was filed on May
11, 2012, before the ruling on the motion for attorney’s fees. As a general matter, “a
[party] who has not appealed from the judgment may not urge error on appeal.”
(California State Employees’ Assn. v. State Personnel Bd. (1986) 178 Cal.App.3d 372,
382, fn. 7.) We are therefore without jurisdiction to consider the question. (Colony Hill
v. Ghamaty (2006) 143 Cal.App.4th 1156, 1172; Calhoun v. Vallejo City Unified School
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Dist. (1993) 20 Cal.App.4th 39, 41–42 [the notice of appeal must include the order
appealed from].)16
On the record before us, the award of fees must be affirmed.
Defendants may seek attorney’s fees incurred in this appeal from the trial court.
(Lucky United Properties Inv., Inc, v. Lee (2010) 185 Cal.App.4th 125, 139.)
DISPOSITION
The judgment is affirmed. Defendants are awarded costs on appeal.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER
J.
We concur:
RAMIREZ
P. J.
KING
J.
16 As an independent ground, this failure also requires denial of plaintiffs’
appeal of the attorney fee award. The order awarding attorney’s fees is not included in
Appellant’s appendix; after this fact was pointed out by Defendants, that failure was not
addressed in Plaintiffs’ reply brief. An appellant’s appendix is required to contain “[a]ll
items required by rule 8.122(b)(1), showing the dates required by rule 8.122(b)(2).”
(Cal. Rules of Court, rule 8.124(b)(1)(A).) This includes any judgment and/or order
appealed from and any notice of its entry, the register of actions, and documents
“necessary for proper consideration of the issues, including, for an appellant’s appendix,
any item that the appellant should reasonably assume the respondent will rely on.” (Cal.
Rules of Court, rules 8.122(b)(1)(B, C), 8.124(a)(2) & (b)(1)(B).) Failure to provide an
adequate record on an issue requires that the issue be resolved against Plaintiffs. (Maria
P. v. Riles (1987) 43 Cal.3d 1281, 1295 [“It is the burden of the party challenging the
fee award on appeal to provide an adequate record to assess error”].)
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