Filed 6/5/19
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF
CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
ROBIN RUDISILL, B289179
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BS170185)
v.
CALIFORNIA COASTAL
COMMISSION et al.,
Defendants;
XINGYUN, LLC et al.,
Real Parties in Interest and
Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County. James C. Chalfant, Judge. Reversed.
Rosario Perry for Real Parties in Interest and Appellants.
Venskus & Associates and Sabrina Venskus for Plaintiff
and Respondent.
_________________________________
The trial court awarded sanctions in the form of attorney
fees against Real Parties in Interest Xingyun LLC (Xingyun), 422
Grand Blvd LLC (422 Grand), 424 Grand Blvd LLC (424 Grand),
and 426 Grand Blvd LLC (426 Grand) (collectively, Real Parties)
for filing a frivolous motion to strike under the anti-SLAPP
statute (Code Civ. Proc., § 425.16).1 The anti-SLAPP motion
concerned allegations in a petition for a writ of mandate
(Petition) against the California Coastal Commission
(Commission) and the City of Los Angeles (City) filed by several
pro se petitioners.2 The Petition challenged various decisions by
the Commission and the City concerning a development project
in Venice that allegedly involved or affected property that Real
Parties owned.
In denying Real Parties’ anti-SLAPP motion, the trial court
concluded that (1) Real Parties could not file such a motion
because the Petition asserted claims only against the
Commission and the City, not against Real Parties themselves;
and (2) the claims in the Petition in any event did not arise from
1Subsequent undesignated statutory references are to the
Code of Civil Procedure. “SLAPP” is an acronym for “[s]trategic
lawsuit against public participation.” (Briggs v. Eden Council for
Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.)
2 All the petitioners except Robin Rudisill were
subsequently dismissed, and Rudisill is the only respondent in
this appeal. However, because the Petition was originally filed
by a number of individuals (who also opposed Real Parties’ anti-
SLAPP motion and moved for sanctions), we use the term
“Petitioners” to refer both to the persons who filed this action and
to respondent Rudisill.
2
any petitioning conduct protected under section 425.16,
subdivision (e) because they challenged only official decisions
amounting to “acts of governance” and not any petitioning
conduct underlying those decisions. The trial court awarded
Petitioners $28,795.70 in attorney fees on the ground that no
reasonable attorney would have believed that Real Parties’ anti-
SLAPP motion had merit.
Real Parties appeal the sanctions order, arguing that it is
an issue of first impression whether a real party in interest in a
mandamus proceeding is a “person” against whom a cause of
action is asserted for purposes of an anti-SLAPP motion under
section 425.16, subdivision (b). They also argue that the Petition
challenges their petitioning activity in seeking permits from the
Commission and not just the decisions of the Commission itself.
Thus, Real Parties claim that there was a reasonable basis for
their motion. We agree and reverse.
BACKGROUND
1. The Anti-SLAPP Procedure
Real Parties have not appealed the trial court’s order
denying their anti-SLAPP motion. However, they have appealed
the order awarding attorney fees, which was based on the trial
court’s finding that Real Parties’ anti-SLAPP motion was “totally
and completely without merit.” (§ 128.5, subd. (b)(2).) Thus, the
merit of Real Parties’ anti-SLAPP motion is the critical issue in
determining whether the trial court abused its discretion in
awarding sanctions. We therefore briefly summarize the law and
procedure relevant to anti-SLAPP motions.
Section 425.16 provides for a special motion to strike when
a plaintiff asserts a claim arising from specified categories of
constitutionally protected conduct. (§ 425.16, subd. (b)(1).) Such
3
claims must be struck “unless the court determines that the
plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.” (Ibid.)
Thus, ruling on an anti-SLAPP motion involves a two-step
procedure. First, the “moving defendant bears the burden of
identifying all allegations of protected activity, and the claims for
relief supported by them.” (Baral v. Schnitt (2016) 1 Cal.5th 376,
396 (Baral).) At this stage, the defendant must make a
“threshold showing” that the challenged claims arise from
protected activity. (Rusheen v. Cohen (2006) 37 Cal.4th 1048,
1056.)
Second, if the defendant makes such a showing, the
“burden shifts to the plaintiff to demonstrate that each
challenged claim based on protected activity is legally sufficient
and factually substantiated.” (Baral, supra, 1 Cal.5th at p. 396.)
Without resolving evidentiary conflicts, the court determines
“whether the plaintiff’s showing, if accepted by the trier of fact,
would be sufficient to sustain a favorable judgment.” (Ibid.)
Section 425.16, subdivision (e) defines the categories of
protected conduct. Those categories include “any written or oral
statement or writing before a legislative, executive, or judicial
proceeding, or any other official proceeding authorized by law,”
and “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.” (§ 425.16, subd. (e)(1)–(2).)
2. Allegations in the Petition
Petitioners filed their verified Petition on July 11, 2017.
The Petition named the Commission and the City as respondents
and identified Real Parties as the real parties in interest.
4
The Petition contains detailed allegations concerning a
series of decisions made by the City and the Commission
concerning a development in an area of Venice around 416–426
Grand Boulevard.3 While the basis for the alleged violations of
law involved in these decisions is not entirely clear, the gist of the
Petition appears to be that the City and the Commission
processed permits (and/or permit waivers) for the demolition of
existing structures and for new construction separately rather
than processing those permits “together as a single permit
application.” The Petition alleges that the Development should
have been processed as a “Unified Development” under various
applicable laws.
With respect to conduct by Real Parties, the Petition
alleges that Real Parties filed applications for coastal
development permits (CDP’s) for demolition and new
construction “during the time when the existing structures were
being demolished and before the existing structures were
completely demolished.” The Petition alleges that Real Parties’
“filing of permits for demolition and new construction in such
close time proximity constitutes a piecemealing of the demolition
and the new construction, which is not allowed for a Unified
Development” under various applicable laws.
The Commission denied permits concerning “demolition of
the existing duplexes and new construction at 416 Grand and
418–422 Grand.” According to the Petition, Real Parties filed a
3 The Petition refers to this development as the “Grand
Blvd Unified Development.” We will refer to the area of Venice
that is the subject of the Petition simply as the “Development.”
5
petition for a writ of mandate concerning the denial, and the
superior court later ordered that the matter be remanded to the
Commission so that it could “take a new action on the revised
coastal development application.” The Commission then
allegedly approved a permit for 416 Grand. However, Real
Parties withdrew their CDP applications for 426 Grand and 418–
422 Grand. Petitioners allege that Real Parties withdrew the
418–422 Grand application “to avoid claims of piecemealing by
Petitioners.”
The Petition sought a writ of mandate ordering the
Commission and/or the City to (1) set aside the decision
approving the permit for 416 Grand; (2) “remand all permits
pertaining to the Grand Blvd Unified Development to the City for
proper processing as a single Coastal Development; and
(3) “process the proposed projects for the Grand Blvd Unified
Development as a single project,” along with a vague reference to
“any proposed new construction or development processed
correctly under the Coastal Act, the Mello Act and CEQA.” The
Petition also contained a prayer for “reasonable attorneys’ fees.”
3. Proceedings in the Trial Court
Real Parties filed anti-SLAPP motions. With respect to the
first step of the anti-SLAPP procedure, Real Parties argued that
the Petition asserted claims against them arising from protected
petitioning activity. They based this argument on the allegations
in the Petition claiming that Real Parties violated the law by
separately filing permits for demolition and for new construction.
With respect to the second step of the anti-SLAPP
procedure, Real Parties argued that Petitioners could not show a
probability of success on the merits because (1) 426 Grand did not
file any permit applications, was never a party to any
6
administrative proceedings, and did not own any of the property
described in the Petition; (2) 424 Grand did not file any permit
applications and was not a party to the administrative
proceedings; (3) 422 Grand withdrew the application that it filed
for a permit, and there is no project pending; and (4) Xingyun
never filed any permit applications, was never a party to the
administrative proceedings, and had no applications pending.
Petitioners opposed the anti-SLAPP motions and filed
motions for sanctions. Their sanctions motions claimed that the
anti-SLAPP motions were frivolous because (1) Petitioners did
not assert any claims against Real Parties; and (2) the claims
that the Petition did assert challenged the actions of the
Commission and the City and did not arise from Real Parties’
petitioning activity.
The trial court denied the anti-SLAPP motions and granted
Petitioners’ motions for sanctions. The court concluded that
“[a]ny reasonable attorney who reviewed pertinent case law
would agree that (a) the Petition contains no claim against Real
Parties, and (b) the Petition’s mandamus claims simply concern
public agency decisions not subject to the SLAPP statute.” After
reducing the amount of attorney fees that Petitioners requested,
the court awarded fees in the amount of $28,795.70, equally
divided between Xingyun and the other three Real Parties.
DISCUSSION
1. Standard of Review
A trial court is required to award costs and attorney fees to
a plaintiff who prevails in defending against an anti-SLAPP
motion “pursuant to section 128.5” upon a finding that the
motion was “frivolous or . . . solely intended to cause unnecessary
delay.” (§ 425.16, subd. (c)(1).) The reference to section 128.5
7
means that “ ‘a court must use the procedures and apply the
substantive standards of section 128.5 in deciding whether to
award attorney fees under the anti-SLAPP statute.’ ” (Moore v.
Shaw (2004) 116 Cal.App.4th 182, 199, quoting Decker v. U.D.
Registry, Inc. (2003) 105 Cal.App.4th 1382, 1392.)
Section 128.5 similarly provides for an award of
“reasonable expenses, including attorney’s fees, incurred by
another party as a result of actions or tactics, made in bad faith,
that are frivolous or solely intended to cause unnecessary delay.”
(§ 128.5, subd. (a).) Frivolous means “totally and completely
without merit or for the sole purpose of harassing an opposing
party.” (§ 128.5, subd. (b)(2).) To meet this standard, a party
requesting the award must show that “any reasonable attorney
would agree the motion was totally devoid of merit.” (Gerbosi v.
Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435,
450 (Gerbosi).)
A trial court’s ruling ordering attorney fees for a frivolous
anti-SLAPP motion is usually reviewed under the abuse of
discretion standard. (Gerbosi, supra, 193 Cal.App.4th at p. 450.)
However, appellate courts generally review questions of law
independently. (Ghirardo v. Antonioli (1994) 8 Cal.4th 791, 799–
801.) In the context of a discretionary award of attorney fees
after trial, our Supreme Court has explained that “ ‘ “de novo
review of such a trial court order is warranted where the
determination of whether the criteria for an award of attorney
fees and costs in this context have been satisfied amounts to
statutory construction and a question of law.” ’ ”
(Conservatorship of Whitley (2010) 50 Cal.4th 1206, 1213.) Here,
at least a portion of the trial court’s ruling involves a question of
law—i.e., whether, in light of the case law, a reasonable attorney
8
could conclude that a real party in interest in a mandamus
proceeding is a “person” against whom the petitioner asserts a
“cause of action” under section 425.16, subdivision (b)(1).
Accordingly, we review that legal issue de novo. We otherwise
review the trial court’s decision to award sanctions for abuse of
discretion.
2. Real Parties’ anti-SLAPP Motion Was Not
Devoid of Merit.
As mentioned, the trial court found that Real Parties’ anti-
SLAPP motion was frivolous in two respects. The court
concluded that (a) the Petition contains no claim against Real
Parties; and (b) the Petition challenges government decisions
rather than petitioning conduct. As discussed below, neither of
the trial court’s stated bases for its order supports the conclusion
that Real Parties’ motion was “totally and completely without
merit.” (§ 128.5, subd. (b)(2).)
A. A reasonable attorney could have concluded
that the Petition asserted a claim against Real
Parties
Section 425.16, subdivision (b)(1) states that “[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
to strike.” As our Supreme Court explained in Baral, the statute
uses the term “cause of action” in a particular way to target
“claims that are based on the conduct protected by the statute.”
(Baral, supra, 1 Cal.5th at p. 382.) The term is not limited to a
specific count as pleaded in a complaint. (Ibid.) Thus, while an
anti-SLAPP motion “does not reach claims based on unprotected
9
activity,” it “may challenge any claim for relief founded on
allegations of protected activity.” (Ibid.) A claim targeted by an
anti-SLAPP motion “must amount to a ‘cause of action’ in the
sense that it is alleged to justify a remedy.” (Id. at p. 395.)
The anti-SLAPP procedure under section 425.16 is not
limited to particular kinds of claims. As our Supreme Court has
explained, “The anti-SLAPP statute’s definitional focus is not the
form of the plaintiff’s cause of action but, rather, the defendant’s
activity that gives rise to his or her asserted liability—and
whether that activity constitutes protected speech or petitioning.”
(Navellier v. Sletten (2002) 29 Cal.4th 82, 92.)
Thus, the anti-SLAPP statute applies to writ petitions
seeking a court order as well as to complaints for damages. (See
San Ramon Valley Fire Protection Dist. v. Contra Costa County
Employees’ Retirement Assn. (2004) 125 Cal.App.4th 343, 353
(San Ramon) [“in an appropriate case, a petition for mandamus
may be subject to a special motion to strike just like any other
form of action”].) The statute also applies to claims seeking
orders affecting property rights. (See, e.g., M.F. Farming Co. v.
Couch Distributing Co., Inc. (2012) 207 Cal.App.4th 180, 185
(M.F. Farming) [action for slander of title, cancelation of cloud on
title, and injunctive relief]; Colyear v. Rolling Hills Community
Assn. of Rancho Palos Verdes (2017) 9 Cal.App.5th 119, 126–127,
136 [action for quiet title and injunctive relief].)
Applying these principles, a reasonable attorney could have
concluded that the Petition asserted a claim or claims against
10
Real Parties for purposes of the anti-SLAPP statute.4 The issue
of whether a real party in interest in a mandamus proceeding is a
“person” against whom a claim is asserted for purposes of the
anti-SLAPP statute has apparently not been addressed in any
reported decision. However, as Petitioners acknowledge, by
definition a “real party in interest” in a mandamus proceeding is
a “ ‘ “person or entity whose interest will be directly affected by
the proceeding.” ’ ” (Redevelopment Agency v. Commission on
State Mandates (1996) 43 Cal.App.4th 1188, 1197, quoting
Sonoma County Nuclear Free Zone ’86 v. Superior Court (1987)
189 Cal.App.3d 167, 173.) By identifying Real Parties in their
Petition as real parties in interest, Petitioners therefore
necessarily alleged that Real Parties had a direct interest in the
proceedings. In light of that alleged direct interest, a reasonable
attorney could have concluded that, as a matter of law, Real
Parties were “persons” against whom a claim was asserted under
section 425.16, subdivision (b)(1).
Petitioners’ particular allegations also supported the
conclusion that they sought orders directly affecting Real Parties.
The Petition alleged such an interest by identifying Real Parties
as owners of property involved in the Development; by seeking an
order directed to “all permits” pertaining to the Development;
and by requesting that the orders Petitioners sought apply to
“any proposed new construction or development.”
4 The issue presented in this appeal is only whether there
was a reasonable basis for Real Parties’ motion. Thus, we need
not, and do not, decide the broader question of whether Real
Parties’ arguments were legally correct, or whether they should
have prevailed on their anti-SLAPP motion.
11
The Petition also included a claim for attorney fees.
Contrary to Petitioners’ argument, the request for fees on its face
was not limited to a fee award against the Commission and the
City. Numerous courts have awarded attorney fees under section
1021.5 against real parties in interest who actively participate in
mandamus proceedings and “had a direct interest in the
litigation, the furtherance of which was generally at least partly
responsible for the policy or practice that gave rise to the
litigation.” (Connerly v. State Personnel Bd. (2006) 37 Cal.4th
1169, 1179–1181 (Connerly).)
Importantly, section 1021.5 authorizes an award of
attorney fees “to a successful party against one or more opposing
parties in any action which has resulted in the enforcement of an
important right affecting the public interest.” (§ 1021.5, italics
added.) In affirming the award of attorney fees against a real
party in interest in Mejia v. City of Los Angeles (2007) 156
Cal.App.4th 151, the court concluded that a real party in interest
who had actively participated in the litigation was a “party” for
purposes of section 1021.5. The court explained that “[t]he usual
meaning of the term ‘party’ in the context of a judicial
proceeding, and as used in . . . section 1021.5, is a person ‘ “ ‘by or
against whom a suit is brought.’ ” ’ [Citation.] Although a ‘party’
in an action ordinarily is a plaintiff or defendant [citation], a real
party in interest in a mandamus proceeding also is regarded as a
party to the litigation.” (Mejia, at p. 160, quoting Connerly,
supra, 37 Cal.4th at p. 1176.)
The Petition alleges that Real Parties were at least
partially responsible for the alleged improper “piecemealing” of
the challenged development because of the permits that they
filed. The Petition also alleges that real party Xingyun
12
participated in a below market sale involving related parties that
“may have been done in order to evade the requirements to treat
the permits for the Grand Blvd Unified Development as one
project.”
Thus, at the beginning of the litigation, Real Parties were
both identified as entities with a direct interest in the property
that was the subject of the mandamus proceeding and as
participants in regulatory missteps or outright wrongdoing that,
if they chose to participate in the litigation, might ultimately
subject them to attorney fees as “parties.” From this, it was
reasonable for Real Parties to conclude that the Petition asserted
claims against them.
B. A reasonable attorney could have concluded
that the Petition asserted claims against Real
Parties arising from protected conduct
As mentioned, the Petition alleges that Real Parties filed
permits in a manner that contributed to improper “piecemealing”
of development. Based upon these allegations, Real Parties
argue that they reasonably concluded the Petition’s claims arose
from their petitioning activity. Real Parties cite cases holding
that the submission of information to government entities in
connection with a permitting process is protected petitioning
activity under section 425.16, subdivision (e). (See M.F.
Farming, supra, 207 Cal.App.4th at pp. 194–195; Midland
Pacific Building Corp. v. King (2007) 157 Cal.App.4th 264, 272.)
In its order, the trial court acknowledged that “[i]t is true
that Real Parties made multiple CDP applications,” but
nevertheless concluded that “it is the agencies’ approvals that are
the subject of the Petition’s mandamus claims.” Citing San
Ramon, supra, 125 Cal.App.4th at page 354, the trial court noted
13
that “[m]ere acts of governance are not protected activity under
the anti-SLAPP statute.” The court reasoned that “the
Commission’s and City’s decisions to issue CDPs are nothing
more than acts of governance made after public hearings
required by law.”
In San Ramon, the court held that a suit challenging
pension contribution levels set by a county retirement board did
not arise from protected conduct. The court rejected the board’s
argument that its decision arose from the deliberations and vote
that led to its decision. The challenged act was the decision, not
the deliberations and vote. “Acts of governance mandated by
law, without more, are not exercises of free speech or petition.”
(San Ramon, supra, 125 Cal.App.4th at p. 354.)
Our Supreme Court discussed the decision in San Ramon
with approval in Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1064 (Park). In Park, the court
explained that “a claim is not subject to a motion to strike 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.” (Id. at p. 1060.) The court instructed that, to show
that a claim arises from protected activity under section 425.16,
subdivision (b)(1), the protected activity must “supply elements of
the challenged claim.” (Park, supra, 2 Cal.5th at p. 1064; see
Santa Monica Rent Control Bd. v. Pearl Street, LLC (2003) 109
Cal.App.4th 1308, 1318 [rent control board’s lawsuit was based
on the defendant’s alleged illegal rental practices, not on
14
documents that the defendants filed with the board that simply
triggered the lawsuit].)
In light of this case law, it is a close question whether Real
Parties could reasonably believe that the Petition asserted a
claim against them arising from their petitioning activity. Real
Parties allegedly had an interest in the Development and
engaged in petitioning activity concerning its approval. Thus, as
discussed above, Real Parties could reasonably believe that the
mandamus relief the Petition sought asserted a claim against
them. But whether such a claim arose from protected conduct is
another question.5
Real Parties’ petitioning conduct was not an element of
Petitioner’s mandamus claim. A court issues a writ of mandate
to compel compliance with the law by “any inferior tribunal,
corporation, board, or person.” (§ 1085, subd. (a).) While Real
Parties’ petitioning conduct allegedly contributed to the
government decisions that Petitioners allege were unlawful, that
5 Petitioners argue that no claim could have arisen from
Real Parties’ protected petitioning conduct because Real Parties
admitted in their anti-SLAPP motion that they “have no
operative permits on the property and they did not participate in
the administrative hearings with respect to the challenged CDP.”
Petitioners are wrong. Real Parties were not disqualified from
bringing an anti-SLAPP motion simply because allegations in the
Petition concerning their petitioning conduct were untrue. If the
Petition alleged a claim arising from protected conduct, Real
Parties could rely on those allegations in bringing an anti-SLAPP
motion, even if they also claimed that the claim was factually
baseless. (Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th
924.)
15
conduct was not a necessary part of Petitioners’ claim that the
governmental entities themselves acted unlawfully. Nor did
Petitioners seek an order directly affecting Real Party’s
participation in the governmental process underlying the
government entities’ decisions (such as, for example, an order
precluding Real Parties from submitting any further permits).6
Thus, the trial court was on solid ground in concluding that the
mandamus relief Petitioners sought against the Commission and
the City did not arise from Real Parties’ petitioning conduct.
Petitioners’ request for attorney fees presents a different
issue. As discussed above, the Petition sought attorney fees that
could be directly assessed against Real Parties. And, unlike the
orders that Petitioners sought against the Commission and the
City, a claim for attorney fees against Real Parties would
necessarily involve a direct challenge to Real Parties’ petitioning
conduct. As mentioned, attorney fee awards against real parties
in interest are generally based on the real parties’ participation
in the litigation and on their furtherance of an interest that was
“at least partly responsible for the policy or practice that gave
rise to the litigation.” (Connerly, supra, 37 Cal.4th at p. 1181.)
Petitioners allege that Real Parties furthered such an interest
through their petitioning activity, i.e., the “separate filing of
permits for demolition and new construction.”
6As our Supreme Court has noted, the decision in San
Ramon correctly drew a “distinction, for anti-SLAPP purposes,
between government decisions and the deliberations that lead to
them.” (Park, supra, 2 Cal.5th at p. 1064, citing City of
Montebello v. Vasquez (2016) 1 Cal.5th 409, 425–426.)
16
Thus, Real Parties could have reasonably concluded that
the Petition asserted a claim against them arising from conduct
protected under section 425.16, subdivision (e). The trial court’s
decision to the contrary was an abuse of discretion.7
7 Petitioners filed a request for judicial notice of various
records that they argue provide context for why they named Real
Parties in the Petition and show Real Parties’ lack of
participation in the permitting proceedings relating to the
Development. These factual materials were not before the trial
court, and in any event are not relevant to the issues on appeal.
We therefore deny the request.
17
DISPOSITION
The trial court’s order awarding attorney fees to Petitioners
under Code of Civil Procedure section 425.16, subdivision (c) is
reversed. Real Parties in Interest are entitled to their costs on
appeal.
CERTIFIED FOR PUBLICATION.
LUI, P. J.
We concur:
ASHMANN-GERST, J.
CHAVEZ, J.
18