Filed 11/22/17
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION SEVEN
HOSSEIN SHAHBAZIAN et al., B271562
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. YC070413)
v.
CITY OF RANCHO PALOS VERDES,
Defendant and Appellant.
APPEAL from an order of the Superior Court of
Los Angeles County, Stuart M. Rice, Judge. Affirmed.
Kutak Rock, Edwin J. Richards, Antoinette P. Hewitt and
Christopher D. Glos for Defendant and Appellant.
Callanan, Rogers & Dzida and Joseph S. Dzida for
Plaintiffs and Respondents.
INTRODUCTION
Governments speak. They also petition. And they act in
ways that are neither speaking nor petitioning. It is important to
distinguish between the three, because Code of Civil Procedure
section 425.16 (section 425.16) may apply to the first two, but not
the third.
This case concerns whether the City of Rancho Palos
Verdes properly issued a permit for a fence separating two
neighbors. Hossein and Victoria Shahbazian challenged the
permit by suing the City. The Shahbazians alleged the City
violated certain ordinances and selectively applied others in
issuing the permit for the fence while denying a permit for a deck
the Shahbazians had built. The City filed a special motion to
strike under section 425.16, arguing the Shahbazians’ complaint
targeted “protected speech” because the City’s decisions followed
official government proceedings. The trial court denied the
motion, and the City appealed.
We conclude section 425.16 does not protect a
governmental entity’s decisions to issue or deny permits, and we
agree with the trial court that granting a special motion to strike
in these circumstances would chill citizens’ attempts to challenge
government action. Therefore, we affirm.
2
FACTUAL AND PROCEDURAL BACKGROUND
A. The Shahbazians Contest Their Neighbors’ New Fence
The Shahbazians live next door to Darrel and Brenda
Hesser.1 A retaining wall topped by a lattice wood fence
originally separated the two properties. In 2014 the Hessers
partially constructed a new fence and allegedly “shaved” the
retaining wall without the approval of the Shahbazians or a
permit from the City. (See Rancho Palos Verdes Mun. Code,
§ 17.76.030.) The Shahbazians alleged the alterations to the
fence and the wall created drainage problems, interfered with
their ocean view, and reduced the value of their property.
The Shahbazians complained to the City’s community
development department, whose code enforcement division
initiated an investigation. After consulting with the planning
and zoning division, the code enforcement division concluded the
portions of the fence the Hessers had already built complied with
the municipal code. The City issued what it called “an over-the-
counter after-the-fact permit” for the “already-built” portion of
the fence.2
The planning and zoning division concluded the portion of
the fence not yet built would comply with the municipal code if
modified in certain respects, and it issued a conditional permit
1 The Hessers, although defendants in this action, are not
parties to this appeal.
2 The City subsequently revoked that permit and reissued it
after rectifying what the City called an “administrative issue.”
The Shahbazians argue the scope of the mistake was far more
significant, but resolution of that factual dispute is not necessary
to this appeal.
3
for that portion of the fence. The Shahbazians appealed that
decision to the planning commission. Following a noticed public
hearing, the planning commission approved the permit. The
Shahbazians appealed that decision to the city council. Following
another noticed public hearing, the city council remanded the
matter to the planning commission with instructions to consider
whether the fence as a whole complied with the municipal code.
Meanwhile, the Shahbazians appealed the “over-the-
counter after-the-fact permit” for the portion of the fence the
Hessers had already built. Following another noticed public
hearing, the planning commission approved the permit with
modifications, effectively approving the entire fence. The
Shahbazians appealed that decision to the city council, which
affirmed the decision of the planning commission. According to
the City, the Hessers complied with the required modifications
when they completed the fence.
The Shahbazians’ complaints about the Hessers’ fence
apparently prompted the Hessers to complain to the City about a
deck the Shahbazians had built without a permit. The City
investigated the deck and concluded it did not comply with the
municipal code. The City nevertheless conditionally approved a
permit pending certain modifications to the deck. The City
contends the Shahbazians did not make those modifications, and
the City did not issue a final permit for the deck.
B. The Shahbazians Sue the City
The Shahbazians sued the City and the Hessers. The
operative first amended complaint alleged causes of action
against the City for negligence, inverse condemnation, and
selective enforcement. In connection with the cause of action for
negligence, the Shahbazians alleged, among other things, the
4
City had a “mandatory duty” to refuse to issue any permit
without first giving the Shahbazians prior notice and an
“opportunity to be heard.” The Shahbazians claimed the City
“violated its own ordinances by permitting the Hessers to alter
the [fence] without required permits and without prior notice and
hearing as required by law.” The Shahbazians alleged the City
acted unreasonably by failing to require the Hessers to repair
damage to the Shahbazians’ property before issuing the permit.
In connection with the cause of action for inverse
condemnation, the Shahbazians alleged the City was jointly and
severally liable with the Hessers because the City “conducted
itself . . . to protect itself from suit and liability rather than in the
objective performance of its public duties.” In connection with
the cause of action for selective enforcement, the Shahbazians
alleged “the City acted arbitrarily and engaged in illegal selective
enforcement by refusing to strictly enforce and follow its own
ordinances with respect to the Hessers while having previously
and at the same time strictly enforced such ordinances as to the
Shahbazians.” The Shahbazians alleged that “at least one motive
for the City’s arbitrary conduct and selective enforcement was the
improper and illegal motive of discrimination against persons of
Middle Eastern ethnicity and descent.”
C. The City Files a Special Motion To Strike
The City demurred and filed a special motion to strike
under section 425.16. On the first step of the two-step analysis
under section 425.16 (see Baral v. Schnitt (2016) 1 Cal.5th 376,
384 (Baral)), the City argued the Shahbazians’ causes of action
arose from (1) speech made in connection with an issue under
consideration or review by the City; (2) speech made in a place
open to the public or a public forum in connection with an issue of
5
public interest; and (3) speech made in furtherance of the exercise
of the rights to petition and free speech in connection with a
public issue or an issue of public interest. (See § 425.16, subds.
(e)(2)-(e)(4).) The City argued “all oral or written statements
purportedly supporting [the Shahbazians’] causes of action
against the City were made in connection with the proceedings of
. . . official government bodies.” The City contended the
Shahbazians “do not attack the validity of the ordinances
themselves, but claim that the oral and written statements and
writings finding them (or their neighbor) subject to the
ordinances are improper.” On the second step of the section
425.16 analysis, the City argued the Shahbazians could not
prevail on the merits because the City could not be liable under a
common law theory of negligence, and the Shahbazians failed to
state causes of action for breach of a mandatory duty, inverse
condemnation, and selective enforcement.
In their opposition to the special motion to strike, the
Shahbazians argued their causes of action arose from violations
of City ordinances, not protected speech or petitioning activity.
The Shahbazians identified alleged violations of several
municipal code sections, as well as recorded covenants,
conditions, and restrictions governing the properties. The
Shahbazians argued that, to the extent the City engaged in
protected speech or conduct in connection with the issuance of a
permit to the Hessers, the speech or conduct was merely
“incidental to the wrongdoing underlying [their] case.” The
Shahbazians also argued they had shown their causes of action
had minimal merit, as required by the second step of the section
425.16 analysis.
The trial court denied the special motion to strike,
concluding, in connection with the first step, the City failed to
6
show the Shahbazians’ causes of action arose from protected
speech or activity. Thus, the trial court did not reach the second
step. (See City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80-81
(City of Cotati).) The trial court also sustained the City’s
demurrer with leave to amend. The City timely appealed from
the order denying its special motion to strike.3
DISCUSSION
A. Section 425.16
“A strategic lawsuit against public participation, or SLAPP
suit, is one which ‘seeks to chill or punish a party’s exercise of
constitutional rights to free speech and to petition the
government for redress of grievances.’” (Contreras v. Dowling
(2016) 5 Cal.App.5th 394, 404 (Contreras); see Rusheen v. Cohen
(2006) 37 Cal.4th 1048, 1055 (Rusheen).) “Section
425.16 . . . provides a procedural remedy to dispose of lawsuits
that are brought to chill the valid exercise of constitutional
rights.”4 (Contreras, at p. 404; see Rusheen, at p. 1055.) “The
3 An order denying a special motion to strike under section
425.16 is appealable. (Code Civ. Proc., §§ 425.16, subd. (i), 904.1,
subd. (a)(13); Summit Bank v. Rogers (2012) 206 Cal.App.4th 669,
681, fn. 5.) An order sustaining a demurrer with leave to amend
is not. (Sabek, Inc. v. Engelhard Corp. (1998) 65 Cal.App.4th
992, 1000.)
4 Section 425.16, subdivision (b)(1), provides: “A cause of
action against a person arising from any act of that person in
furtherance of the person’s right of petition or free speech under
the United States Constitution or the California Constitution in
connection with a public issue shall be subject to a special motion
7
statute ‘authorizes a defendant to file a special motion to strike
any cause of action arising from an act in furtherance of the
defendant’s constitutional right of petition or free speech in
connection with a public issue.’” (Contreras, at p. 404; see Haight
Ashbury Free Clinics, Inc. v. Happening House Ventures (2010)
184 Cal.App.4th 1539, 1546-1547.)
In ruling on a motion under section 425.16, the trial court
engages in a two-step process: “First, the defendant must
establish that the challenged claim arises from activity protected
by section 425.16.” (Baral, supra, 1 Cal.5th at p. 384; see
Contreras, supra, 5 Cal.App.5th at pp. 404-405.) If the moving
party fails to demonstrate that any of the challenged causes of
action arise from protected activity, the court denies the motion.
(City of Cotati, supra, 29 Cal.4th at pp. 80-81; Trilogy at Glen Ivy
Maintenance Assn. v. Shea Homes, Inc. (2015) 235 Cal.App.4th
361, 367.) If the defendant makes the required showing at the
first step, “the burden shifts to the plaintiff to demonstrate the
merit of the claim by establishing a probability of success.”
(Baral, at p. 384.) We review de novo an order granting or
denying a special motion to strike under section 425.16. (Park v.
Board of Trustees of California State University (2017) 2 Cal.5th
1057, 1067 (Park); Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)
to strike, unless the court determines that the plaintiff has
established that there is a probability that the plaintiff will
prevail on the claim.”
8
B. The Complaint Does Not Arise from Protected Activity
1. The “Arising From” Requirement and
Government Action
“‘The only means specified in section 425.16 by which a
moving defendant can satisfy the [“arising from”] requirement is
to demonstrate that the defendant’s conduct by which plaintiff
claims to have been injured falls within one of the four categories
described in subdivision (e).’” (Park, supra, 2 Cal.5th at p. 1063;
accord, Equilon Enterprises v. Consumer Cause, Inc. (2002) 29
Cal.4th 53, 66; Contreras, supra, 5 Cal.App.5th at pp. 404-405.)
Those categories are (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; and (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. (§ 425.16, subd. (e).)
“[I]n ruling on [a special motion to strike], courts should
consider the elements of the challenged claim and what actions
by defendant supply those elements and consequently form the
basis for liability.” (Park, supra, 2 Cal.5th at p. 1063; see Baral,
supra, 1 Cal.5th at p. 396 [a defendant filing a special motion to
strike must identify all allegations of protected activity and show
the challenged cause of action arises from that protected
activity].) “Critically, ‘the defendant’s act underlying the
9
plaintiff’s cause of action must itself have been an act in
furtherance of the right of petition or free speech.’” (Park, at
p. 1063.) “‘[T]he mere fact that an action was filed after protected
activity took place does not mean the action arose from that
activity for the purposes of [section 425.16].’” (Park, at p. 1063;
see City of Cotati, supra, 29 Cal.4th at p. 78 [a lawsuit may be in
“response to or in retaliation for” protected activity without
arising from it].) “Instead, the 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, at p. 1063; accord, Navellier v. Sletten
(2002) 29 Cal.4th 82, 92.)
The Supreme Court recently considered the “arising from”
requirement in the context of government decisionmaking.5 In
Park, supra, 2 Cal.5th 1057, an assistant college professor sued a
university for employment discrimination after the university
denied him tenure. (Id. at p. 1061.) The university argued the
plaintiff’s “suit arose from its decision to deny him tenure and the
numerous communications that led up to and followed that
decision, [and] these communications were protected activities.”
(Ibid.) In rejecting that argument, the Supreme Court held: “[A]
claim is not subject to a motion to strike [under section 425.16]
5 In Vargas v. City of Salinas (2009) 46 Cal.4th 1 the
Supreme Court, without deciding whether “the California
Constitution directly protects government speech in general or
[certain] types of communications of a municipality,” stated that
“section 425.16 extends to statements and writings of
governmental entities and public officials on matters of public
interest and concern that would fall within the scope of the
statute if such statements were made by a private individual or
entity.” (Vargas, at p. 17.)
10
simply because it contests an action or decision that was arrived
at following speech or petitioning activity, or that was thereafter
communicated by means of speech or petitioning activity.
Rather, a claim may be struck 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.” (Park, at p. 1060.) The Supreme Court explained
that the plaintiff’s claim for employment discrimination
“depend[ed] 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. The tenure decision may have been
communicated orally or in writing, but that communication does
not convert [the plaintiff’s] suit to one arising from such speech.”
(Id. at p. 1068.)
Park cited with approval several Court of Appeal decisions,
including San Ramon Valley Fire Protection Dist. v. Contra Costa
County Employees’ Retirement Assn. (2004) 125 Cal.App.4th 343
(San Ramon). (Park, supra, 2 Cal.5th at pp. 1064-1065.) In San
Ramon, a fire protection district sued a county retirement board
over the board’s decision to impose new pension contribution
requirements. (San Ramon, at p. 348.) The board filed a special
motion to strike under section 425.16 and argued the suit arose
out of the deliberations and votes that produced the decision.
The court affirmed an order denying the motion, distinguishing
between the board’s allegedly wrongful act (the decision setting
contribution levels) and the preceding deliberations and vote:
“[T]he fact that a complaint alleges that a public entity’s action
was taken as a result of a majority vote of its constituent
members does not mean that the litigation challenging that
action arose from protected activity, where the measure itself is
11
not an exercise of free speech or petition. Acts of governance
mandated by law, without more, are not exercises of free speech
or petition.” (San Ramon, at p. 354.) The court held “the
litigation [did] not arise from the speech or votes of public
officials, but rather from an action taken by the public entity
administered by those officials.” (Id. at p. 347; see also
Schwarzburd v. Kensington Police Protection & Community
Services District Board (2014) 225 Cal.App.4th 1345, 1355
[distinguishing between actions against individuals based on
“how [those individuals] voted and expressed themselves at [an
official proceeding]” and actions against government entities
based on “‘collective action’”]; cf. City of Montebello v.
Vasquez (2016) 1 Cal.5th 409, 426 [“votes taken after a public
hearing qualify as acts in furtherance of constitutionally
protected activity,” and “elected officials may assert the
protection of section 425.16 when sued over how they voted
without chilling citizens’ exercise of their right to challenge
government action by suing the public entity itself”].)
Park also cited with approval Graffiti Protective Coatings,
Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207 (Graffiti
Protective Coatings). (Park, supra, 2 Cal.5th at p. 1065.) In
Graffiti Protective Coatings the plaintiff sued a city after the city
terminated the plaintiff’s contract to clean bus stations and
awarded a new contract to the plaintiff’s competitor without
going through the required competitive bidding process. (Graffiti
Protective Coatings, at p. 1211.) The city moved to strike the
complaint under section 425.16 and argued that the plaintiff’s
claims were based on communications with the interested parties
and that the maintenance of the city’s bus stops was an issue of
public interest. (Id. at p. 1213.) After the trial court granted the
city’s motion, the Court of Appeal reversed: “The
12
communications [among the parties] assist in telling the story.
But [the plaintiff’s] claims against [the city] are not based on
those communications. Rather, liability is premised on state and
municipal laws requiring [the city] to award certain contracts
through competitive bidding.” (Id. at p. 1215; see Park, supra,
2 Cal.5th at p. 1065 [“[w]hile communications by the city
preceding its decision might be helpful in establishing what
events led to the change in contract, the contractor’s claims were
not based on them, but on the award of a new contract in alleged
violation of laws regulating competitive bidding”].)
Finally, Park cited Nam v. Regents of University of
California (2016) 1 Cal.App.5th 1176 (Nam), in which the
plaintiff, a medical resident at a university medical center, sued
the university for sexual harassment, discrimination, and
wrongful termination. (Park, supra, 2 Cal.5th at p. 1066.) The
university argued the plaintiff’s claims arose from complaints
communicated to the university about the resident, written
warnings the university issued to her, an investigation conducted
by the university, and the written notice informing the plaintiff of
her termination. (Nam, at p. 1186.) The court in Nam held the
plaintiff’s claims did not arise from those communications, but
instead arose from the alleged retaliatory conduct of terminating
her. (Id. at p. 1192.) The Supreme Court in Park observed:
“Nam illustrates that while discrimination may be carried out by
means of speech, such as a written notice of termination, and an
illicit animus may be evidenced by speech, neither circumstance
transforms a discrimination suit to one arising from speech.
What gives rise to liability is not that the defendant spoke, but
that the defendant denied the plaintiff a benefit, or subjected the
plaintiff to a burden, on account of a discriminatory or retaliatory
consideration.” (Park, at p. 1066.)
13
Park and the decisions the Supreme Court discussed in
Park recognized that a contrary reading of the “arising from”
requirement would have “significant impacts the Legislature
likely never intended.” (Park, supra, 2 Cal.5th at p. 1067; see
Nam, supra, 1 Cal.App.5th at p. 1189; Graffiti Protective
Coatings, supra, 181 Cal.App.4th at pp. 1124-1125; San Ramon,
supra, 125 Cal.App.4th at p. 358.) “Government decisions are
frequently ‘arrived at after discussion and a vote at a public
meeting.’” (Park, at p. 1067; see San Ramon, at p. 358.) “Failing
to distinguish between the challenged decisions and the speech
that leads to them or thereafter expresses them ‘would chill the
resort to legitimate judicial oversight over potential abuses of
legislative and administrative power.’” (Park, at p. 1067; see
Nam, at p. 1189 [applying section 425.16 to a cause of action for
harassment, discrimination, or retaliation “is at odds with the
purpose of [the statute], which was designed to ferret out
meritless lawsuits intended to quell the free exercise of First
Amendment rights, not to burden victims of discrimination and
retaliation with an earlier and heavier burden of proof than other
civil litigants and dissuade the exercise of their right to petition
for fear of an onerous attorney fee award”]; Graffiti Protective
Coatings, at p. 1211 [applying section 425.16 to causes of action
challenging the validity or application of government action or
decisions “would discourage attempts to compel public entities to
comply with the law”]; San Ramon, supra, 125 Cal.App.4th at
p. 357 [applying section 425.16 to a mandamus action challenging
a government decision “would significantly burden the petition
rights of those seeking mandamus review for most types of
governmental action”]; see also USA Waste of California, Inc. v.
City of Irwindale (2010) 184 Cal.App.4th 53, 65 [making
“[a]ctions to enforce, interpret or invalidate governmental
14
laws . . . subject to being stricken under [section 425.16]” would
significantly burden “efforts to challenge governmental action”].)
2. The Shahbazians’ Causes of Action Arise from
the City’s Decisions To Grant and Deny
Building Permits, Not from Protected Activity
The City contends the Shahbazians’ causes of action arise
from speech or conduct protected by section 425.16, subdivisions
(e)(2), (e)(3), and (e)(4). Therefore, the City must show the
Shahbazians’ causes of action arise from a 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; from a
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 from other conduct in furtherance of the exercise of
the rights of petition or of free speech in connection with a public
issue or an issue of public interest.
Even if granting or denying a building permit is an “issue
of public interest,” as the City contends and as required by
section 425.16, subdivisions (e)(3) and (e)(4), the City has not
identified any written or oral statement or writing or any conduct
in furtherance of the exercise of its rights to petition or speech
from which the Shahbazians’ causes of action arise. The City
variously describes the targets of the Shahbazians’ claims as “the
investigation and deliberation of permit issues in and related to
official proceedings,” “the City’s investigation and expressive
statements, writings and conduct in the application of
[municipal] ordinances,” “how the [City] expressed [itself] in
purportedly favoring the Hessers over [the Shahbazians],” “the
City’s expressive communicative conduct in denying [the
15
Shahbazians’] grievances while purportedly enforcing the
Hessers’ grievances against [the Shahbazians],” and the City’s
“public participation with [the Shahbazians] and the Hessers
involving disputes over ocean views and privacy rights.” For all
the City’s complaints about the Shahbazians’ “artful pleading,”
the City manages to avoid identifying any statement or writing
on which the Shahbazians’ causes of action are based, disclosing
who made or authored those statements or writings and when,
and explaining how the Shahbazians’ complaint would “chill the
valid exercise of constitutional rights.” (See Contreras, supra,
5 Cal.App.5th at p. 404; see Rusheen, supra, 37 Cal.4th at
p. 1055.)6
The reason the City cannot be any more specific is that the
Shahbazians’ causes of action do not arise from any statements,
writings, or conduct in furtherance of the City’s rights to petition
or speech. Instead, they arise from the City’s decisions to grant
the Hessers a permit for their wall (allegedly in violation of local
laws) and to deny the Shabazians a permit for their deck. (See
Graffiti Protective Coatings, supra, 181 Cal.App.4th at p. 1218
[plaintiff’s claims were based on violations of state and municipal
laws, not on any statement or writing or conduct in furtherance
of the defendants’ right of petition or free speech].) While the
City’s decisions followed public hearings at which members of the
city council and City employees undoubtedly exercised their free
speech rights, the Shahbazians’ causes of action do not arise from
6 In its reply brief the City cites several cases for the
proposition that a cause of action “based on the submission of site
maps and planning documentation to a city in connection with a
permitting process” satisfies the first step of the section 425.16
analysis. The City, however, has not identified any such
submissions giving rise to the Shahbazians’ causes of action.
16
(or even allude to) that speech. (See Park, supra, 2 Cal.5th at
p. 1060.) Moreover, the elements of the Shahbazians’ causes of
action—negligence, inverse condemnation, and selective
enforcement—do not require the Shahbazians to prove the City
made any statement or writing or otherwise took action to
further the City’s exercise of its constitutional rights to free
speech and to petition. (See id. at p. 1063.)
The authorities cited by the City do not support a different
conclusion. The City argues the circumstances here are more like
those in City of Costa Mesa v. D’Alessio Investments, LLC (2013)
214 Cal.App.4th 358 (City of Costa Mesa) and Levy v. City of
Santa Monica (2004) 114 Cal.App.4th 1252 (Levy) than those in
San Ramon and Graffiti Protective Coatings. Neither City of
Costa Mesa nor Levy supports the City’s position.
In City of Costa Mesa, supra, 214 Cal.App.4th 358 a city
sued a commercial landlord for injunctive relief to abate a public
nuisance and refused to issue any new business licenses for the
property until the landlord complied. (Id. at pp. 365-366.) The
landlord filed a cross-complaint for slander, trade libel, and
interference with prospective economic advantage, alleging city
employees made certain statements to the landlord’s prospective
tenants and potential contractors about illegal activity at the
landlord’s property, including that the landlord “‘ha[d] been
convicted of prostitution and drug dealing that occurred at the
Property’” and that “‘the entire building’” would be “‘shut down
because of illegal activity that [was] conducted there.’” (Id. at
pp. 365-367.) On appeal from an order granting a special motion
to strike under section 425.16, the court held the landlord’s
causes of action arose from “oral statements ‘made in connection
with an issue under consideration or review by
17
a[n] . . . executive . . . body’” under section 425.16, subdivision
(e)(2). (City of Costa Mesa, at p. 372.)
The City appears to argue City of Costa Mesa is similar to
this case because both cases involved statements made by
employees of a city’s planning and code enforcement departments
related to the investigation of a property. In contrast to the
statements alleged in the landlord’s complaint in City of Costa
Mesa, however, the City has not identified any specific
statements underlying the Shahbazians’ causes of action. The
City suggests statements “must naturally have occurred” in
connection with its investigation of the permits at issue, but
those (unidentified) statements are not the “principal thrust” of
the Shahbazians’ causes of action.7 In City of Costa Mesa the
alleged causes of action “would have no basis in the absence of”
the protected statements. (See Contreras, supra, 5 Cal.App.5th
at p. 412.) Here, the statements the City contends must have
been made were, at most, incidental to the conduct giving rise to
the complaint and are not subject to section 425.16. (See Baral,
supra, 1 Cal.5th at p. 394 [“[a]ssertions that are ‘merely
incidental’ or ‘collateral’ are not subject to section 425.16”]; Rand
7 In Park the Supreme Court acknowledged but did not apply
the “principal thrust or gravamen” test for determining whether
a cause of action arises from protected activity under section
425.16. (See Park, supra, 2 Cal.5th at pp. 1061.) Instead, in
analyzing whether “the relationship a defendant must show
between a plaintiff’s claim and the sorts of speech on public
matters the Legislature intended to protect” under section 425.16
(Park, at p. 1062), the Supreme Court considered “the elements of
the challenged claim and what actions by defendant supply those
elements and consequently form the basis for liability” (id. at
p. 1063). Under either test the City has failed to demonstrate the
Shahbazians’ causes of action arise from protected activity.
18
Resources, LLC v. City of Carson (2016) 247 Cal.App.4th 1080,
1093 [“[t]he mere fact that some speech occurred in the course of
the asserted breach [of contract] does not mean that the cause
of action arises out of protected free speech”], review granted
Sept. 21, 2016, S235735.)
Moreover, City of Costa Mesa actually supports
distinguishing between the kinds of governmental decisions the
Shahbazians challenge and statements that may have led to
those decisions, which the Shahbazians do not challenge. (See
Park, supra, 2 Cal.5th at p. 1060; Bonni v. St. Joseph Health
System (2017) 13 Cal.App.5th 851, 862-863 [“merely because a
process is communicative does not mean that plaintiff’s claim
necessarily arises from those communications”].) The court in
City of Costa Mesa noted the landlord sued the city “for relief
based on the oral statements [and did] not challeng[e] the
underlying acts (the refusal of the [c]ity and its employees to
issue licenses).” (City of Costa Mesa, supra, 214 Cal.App.4th
at p. 375, italics added.) This case is the exact opposite of City of
Costa Mesa: The Shahbazians sued the City based on the City’s
underlying acts and not its oral statements or other expressive
conduct.
In Levy, supra, 114 Cal.App.4th 1252 the plaintiffs’
neighbor complained to a city council member about a playhouse
the plaintiffs built in their backyard. (Id. at p. 1255.) The
councilmember sent an inquiry to the director of planning and
community development and the city manager suggesting the
playhouse did not comply with certain code requirements. (Id. at
p. 1256.) Several months later the city’s building inspector sent
the plaintiffs a notice of violation directing them to remove or
make certain modifications to the playhouse. (Ibid.) The
plaintiffs sued and sought a declaration that the city charter
19
precluded city council members “from engaging in acts designed
to influence [c]ity administrative staff . . . with respect to zoning
enforcement matters such as the [plaintiffs’] playhouse.” (Id. at
p. 1257, italics omitted.) In other words, the plaintiffs challenged
the legality of the councilmember’s communications with city
employees. Reversing an order denying the city’s special motion
to strike under section 425.16, the court in Levy held that the
neighbor’s “act of contacting her representative and [the
councilmember’s] act of contacting planning staff [were] petitions
for grievances against the government protected by the First
Amendment.” (Levy, at p. 1258.)
The City argues Levy is analogous to this case because “the
Hessers’ and [Shahbazians’] cross petitioning rights inseparably
involve the City.” That may be, but the Shahbazians do not
allege any cause of action implicating any party’s right to petition
for grievances. Indeed, the Shahbazians allege they were denied
the opportunity to petition the City when the City issued the
Hessers the initial “after-the-fact” permit without giving the
Shahbazians an “opportunity to be heard.” Unlike Levy, the
causes of action alleged here do not attempt to chill speech or
petition rights of the City or any of its representatives.
Finally, the City cites Kibler v. Northern Inyo County Local
Hospital Dist. (2006) 39 Cal.4th 192 (Kibler) and Vergos v.
McNeal (2007) 146 Cal.App.4th 1387 (Vergos) for the proposition
that, because a governmental entity’s decision “is an integral part
of the official proceedings,” the act of issuing a decision is
protected activity under section 425.16, subdivision (e)(2). (See
§ 425.16, subd. (e)(2) [protected activity includes statements
made in connection with an issue under consideration or review
by an “official proceeding authorized by law”].) The Supreme
Court, however, rejected this argument in Park, noting that
20
courts had “overread” Kibler. (Park, supra, 2 Cal.5th at p. 1070.)
The Supreme Court stated, “Kibler does not stand for the
proposition that . . . decisions reached in a[n] [official proceeding],
as opposed to statements in connection with that [proceeding],
are protected.” (Park, at p. 1070.) Similarly, with regard to
Vergos, the Supreme Court in Park stated, “Vergos does not stand
for the proposition that a suit alleging an entity has made a
discriminatory decision necessarily also arises from any
statements by individuals that may precede that decision, or from
the subsequent communication of the decision that may follow.”
(Park, at p. 1070.) The Supreme Court explained that “none of
the core purposes the Legislature sought to promote when
enacting [section 425.16] are furthered by ignoring the distinction
between a government entity’s decisions and the individual
speech or petitioning that may contribute to them.” (Park, at
p. 1071.)8
The City’s attempts to distinguish Graffiti Protective
Coatings and San Ramon also fail. The City argues those cases
challenged the validity of laws “on which governmental activity
occurred,” whereas “this tort lawsuit is not about determining the
legality of the ordinances, but rather about obtainable damages.”
The City misreads Graffiti Protective Coatings and San Ramon.
In both cases the plaintiffs (like the Shahbazians) challenged the
legality of the defendants’ actions without challenging the
validity of applicable laws. (See Graffiti Protective Coatings,
8 Park also disapproved Tuszynska v. Cunningham (2011)
199 Cal.App.4th 257 to the extent that decision “presupposes
courts deciding anti-SLAPP motions cannot separate an entity’s
decisions from the communications that give rise to them, or that
they give rise to.” (Park, supra, 2 Cal.5th at p. 1071.)
21
supra, 181 Cal.App.4th at pp. 1212-1213 [the plaintiff’s cause of
action “sought to compel the City to award the bus stop
maintenance contract through competitive bidding” as required
by the Public Contract Code and the city’s municipal code]; San
Ramon, supra, 125 Cal.App.4th at p. 348 [the plaintiff alleged the
defendants “‘fail[ed] to comply with the mandatory duties set
forth in provisions of [the applicable Government Code
sections]’”].) Moreover, the propriety of a special motion to strike
under section 425.16 does not depend on whether the plaintiff
challenges the validity of, or compliance with, an applicable law;
it depends on whether the plaintiff challenges speech or
petitioning activity.
The City also argues Graffiti Protective Coatings and San
Ramon are distinguishable because they involved mandamus
petitions and not tort actions. Thus, the City argues, granting its
special motion to strike would not chill public interest litigation
like the lawsuits brought in Graffiti Protective Coatings and San
Ramon. Courts have repeatedly held, however, that the scope of
protected activity under section 425.16 does not depend on the
form of a plaintiff’s cause of action. (See, e.g., Navellier v. Sletten,
supra, 29 Cal.4th at p. 92; Nam, supra, 1 Cal.App.5th at p. 1186;
Trilogy at Glen Ivy Maintenance Assn. v. Shea Homes, Inc.,
supra, 235 Cal.App.4th at p. 368; Feldman v. 1100 Park Lane
Associates (2008) 160 Cal.App.4th 1467, 1478; Midland Pacific
Bldg. Corp. v. King (2007) 157 Cal.App.4th 264, 272; Birkner v.
Lam (2007) 156 Cal.App.4th 275, 281.)
Moreover, the City’s argument ignores the serious
implications of granting its motion. If section 425.16 applied to
claims based on decisions like those the Shahbazians challenge,
plaintiffs bringing tort actions challenging decisions government
entities make every day would have to satisfy the second step of
22
the section 425.16 analysis before proceeding with their cases.
For example, a plaintiff injured by dangerous conditions on public
property after a city debated its budget and decided to reduce
expenditures to maintain the property would have to
demonstrate a probability of success before taking discovery.
(See Bonni v. St. Joseph’s Health Systems, supra, 13 Cal.App.5th
at p. 864 [defendants who can satisfy the first step of the section
425.16 analysis “shift the burden of proof to [plaintiffs], who,
without the benefit of discovery and with the threat of attorney
fees looming, [are] obligated to demonstrate the likelihood of
prevailing on the merits”]; San Ramon, supra, 125 Cal.App.4th at
p. 358 [if mandamus petitioners “were routinely subject to a
special motion to strike . . . [they] could be forced to make a prima
facie showing of merit at the pleading stage”].) Such a burden
would discourage lawsuits contesting government decisions like
those in this case, a consequence the Legislature did not intend in
enacting section 425.16. (See San Ramon, at p. 358, fn. 9 [section
425.16 is not intended to discourage “petitions seeking to
overturn the denial of a planning or zoning permit applied for by
an individual property owner”]; see generally Park, supra, 2
Cal.5th at p. 1071, fn. 4 [the Legislature’s concern for citizens’
rights to petition the government “are promoted, not impaired, by
differentiating between individual speech that contributes to a
public entity’s decision and the public entity decision itself”].)9
9 Because the City did not satisfy its burden with respect to
the first step of the section 425.16 analysis, we do not consider
whether the Shahbazians showed they were likely to prevail on
the merits of their causes of action. (See City of Cotati, supra, 29
Cal.4th at pp. 80-81; Graffiti Protective Coatings, supra, 181
Cal.App.4th at p. 1225; San Ramon, supra, 125 Cal.App.4th at
p. 357.)
23
DISPOSITION
The order is affirmed. The Shahbazians are to recover
their costs on appeal.
SEGAL, J.
We concur:
ZELON, Acting P. J.
BENSINGER, J.*
*Judge of the Los Angeles Superior Court, assigned by the Chief
Justice pursuant to article VI, section 6 of the California
Constitution.
24