Jenkins v. Brandt-Hawley ( 2022 )

Filed 12/28/22
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
CHARLES JENKINS et al.,
Plaintiffs and Respondents,
A162852
v.
SUSAN BRANDT-HAWLEY (Marin County
et al., Super. Ct. No. CIV
2002924)
Defendants and Appellants.
In 2017, plaintiffs Charles and Ellen Jenkins (the Jenkinses) bought a
residential property in the town of San Anselmo (Town). The property had a
one-bedroom home with a converted attic, built in 1909, and a small
accessory cottage. Following conversations with an architect and contractors,
and a meeting with the Town Planning Director, the Jenkinses filed an
application for permits to authorize the demolition of the existing structures
and the development of a new home with a small, detached studio. The
Planning Commission approved the project, but the Jenkinses nevertheless
worked with some neighbors to accommodate their concerns, and submitted
revised plans, which were also approved at subsequent Planning Commission
meetings.
Representing themselves, four individuals filed an appeal to the Town
Council which, following a lengthy hearing, denied the appeal.
Following denial of the appeal, a petition for writ of mandamus was
filed on behalf of two petitioners: Save Historic San Anselmo, an
1
unincorporated association, and an individual. They were represented by
Susan Brandt-Hawley (Ms. Brandt-Hawley), a prominent lawyer with an
extensive background in CEQA-related matters, and her firm. The petition
alleged two causes of action, the first for “violations of the California
Environmental Quality Act” (CEQA), this despite that the appeal did not
include any CEQA claim—not to mention that CEQA has a categorical
exemption for single-family homes. The second, styled “violation of the Town
Municipal Code,” alleged in six conclusory lines, without citation, that
approval of the project violated the Municipal Code and the Town’s General
Plan.
An attorney for the Jenkinses sent Ms. Brandt-Hawley a five-page
single-spaced letter advising that the petition was frivolous, identifying ten
reasons why, observing that “in [his] over 25 years of litigating CEQA
actions, [he could not] recall handling a CEQA challenge that appeared this
meritless.” The letter ended with the request that petitioners “reconsider
their current course of action and dismiss this lawsuit, with an agreement
that all parties will bear their own costs.”
The writ petition came on for hearing before an experienced trial judge
(the Honorable Andrew Sweet), who easily denied the petition in a thorough
order that, among other things, criticized aspects of Ms. Brandt-Hawley’s
briefing and advocacy. Petitioners appealed, and along the way sought a writ
of supersedeas (which they immediately dismissed), and then offered to
dismiss the appeal for a waiver of fees and costs, an offer the Jenkinses
rejected. Then, on the day petitioners’ opening brief was due, Ms. Brandt-
Hawley dismissed the appeal.
The Jenkinses filed a complaint against Ms. Brandt-Hawley and her
firm for malicious prosecution. They responded with a special anti-SLAPP
2
motion to strike, which came on for hearing before a different trial judge (the
Honorable James Chou), who, in an equally thorough order, denied the
motion, concluding that the Jenkinses had met their burden under step two
of the anti-SLAPP procedure demonstrating a probability of success on their
complaint.
Our de novo review leads to the same conclusion, and we affirm.
BACKGROUND
The General Setting: The Property, the Plans, and the
Approvals
In 2017, Charles and Ellen Jenkins, husband and wife, bought the
property located at 260 Crescent Road, San Anselmo, where they planned to
retire (the property). The property had two structures on it: a one-bedroom
“Craftsman” style shingled bungalow built in 1909 (the main house) and a
small cottage, partially over a garage, built sometime later. Around the time
of their purchase, the Jenkinses spoke with architect Ken Linsteadt and two
contractors regarding options for the property, all of whom advised that the
main house was not worth saving, for numerous reasons. Mr. Linsteadt also
advised that any addition at the back of the house would be undesirable, both
aesthetically and in terms of design and proportion, essentially advising that
the main house had to be torn down and rebuilt.
Mr. Linsteadt recommended that before the Jenkinses embarked on the
design for a new house, they first make sure the house had not been
designated as “historic” by the Town. The Jenkinses followed the advice and
met with the Town Planning Director Elise Simonian. Simonian then came
to the property, examined the main house, and advised that the Town did not
have a list or registry of historic houses; she also said she was authorized to
determine which houses needed an historic report in order to be rebuilt, and
that the Jenkinses’s house did not have sufficient architectural detail to
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require such a report. Finally, Ms. Simonian confirmed what Mr. Linsteadt
and the contractors had noted: the main house would have to be largely
rebuilt to conform to the relevant building code requirements.
On December 11, 2017, the Jenkinses filed an application with the
Town for permits to authorize the demolition of the existing structures and
the development of a new three-bedroom, two-and-a-half bath house with a
small, detached studio. The project would increase the total square footage
from 2,882 square feet to 3,227.5 square feet, a less than 12 percent increase
in overall square footage. The project was fully compliant with the existing
zoning and building codes, a fact the Jenkinses confirmed with staff at the
Planning Department.
In January 2018, the Jenkinses learned that the planning staff had
completed its review of the original design and were preparing a report that,
subject to a few conditions, recommended approval of the project by the
Planning Commission, which was to meet on February 12. Among other
things, the planning staff report found the project was categorically exempt
from CEQA for new construction of a single-family residence (Cal. Code
Regs., tit. 14, §§ 15303(a) and 15300.2); that there were no “historic resource”
exceptions to this exemption and the “residence is not historically
significant”; and that the design was compatible with the character of
development in the neighborhood. The staff report concluded a demolition
permit should issue because the existing residence needs to be “significantly
demolished and modified to bring it up to modern building codes”; and “[t]he
structure would not qualify for state or federal historic listing . . . and the
structure does not rise to local historic status and does not have significant
historic, cultural or aesthetic value.”
4
The Jenkinses discussed the original design with neighbors across the
street, at 275 and 271 Crescent Road, as well as another neighbor at
256 Crescent Road. They also spoke with the former owner of the property,
who had lived there for decades. All expressed their approval of, and their
support for, the original design. However, other neighbors, primarily those
living on Woodland Avenue (the “Woodland neighbors”), had objections to the
original design, claiming that the proposed new house would not fit in with
the neighborhood and would be too tall and intrude on their privacy. While
the Jenkinses believed that the objections were misplaced, in an effort to
assuage the Woodland neighbors’ concerns, they offered to plant an evergreen
hedge that would provide another measure of privacy for them.
On February 12, the Planning Commission met. A few neighbors
raised concerns regarding the height and size of the proposed house, some
privacy issues, and setback of the proposed accessory unit from the property
line. The Planning Commission liked the design but, noting the Woodland
neighbors’ objections, suggested the Jenkinses make some modifications to
the house.
Following the hearing, the Jenkinses met with some neighbors and
worked with Mr. Linsteadt to revise the plans to address as many of the
concerns as feasible. Mr. Linsteadt prepared revised plans that reduced the
overall floor area; reduced the height of the house by an additional 18 inches,
from 28 feet nine inches to 27 feet three inches; 1 reduced the accessory unit to
a single story; increased the setback of the back cottage from two feet to five
1 The Town Ordinance allows heights up to 30 feet.
5
feet from the property line; and reduced the size of the second story deck,
replacing the roof with a wood trellis. 2
The Planning Commission was scheduled to meet on March 5, prior to
which the planning staff report again recommended approval, this time of the
revised plans. The staff report described the changes, and again concluded
that the revised design complied with the General Plan and the Municipal
Code and that the project was categorically exempt under CEQA and was not
historically significant.
At the March 5 hearing, a few neighbors raised the same objections as
at the February 12 hearing. The Planning Commissioners essentially
responded that “[t]his project has done enough to address the concerns of the
neighbors around them.” Commissioners noted among other things that the
project was “elegant,” “well-designed,” and fit in with the neighborhood, one
noting that “[t]hese are huge setbacks beyond what we require. . .”; “I believe
there is more space than what the houses along Woodland have from each
other. . . .” The commissioners discussed whether the existing home was
historically significant, concurring with the staff report conclusion that it was
not, stating among other things that the structures proposed for demolition
were “not historic,” had “no historic value,” and were “nothing special . . .
architecturally.” And at the conclusion of the meeting the Planning
Commission unanimously approved the revised design and the staff report by
a vote of six-zero.
As to what happened next, we quote four paragraphs from a later-filed
declaration of Charles Jenkins (all citations omitted):
2The only change requested by the neighbors that was not made was to
excavate further than proposed, as the Jenkinses’s engineer said the
excavation would cause drainage problems.
6
“Shortly thereafter, and notwithstanding all of our efforts to resolve
their issues, the objecting neighbors advised that they would appeal the
Planning Commission’s approval of the now revised project to the Town
Council unless we acceded to a list of five new changes. They also advised
that they would refuse to communicate with us directly unless we first agreed
to all of their demands. [Citations.] Because the revised design complied with
the relevant building codes, and because we had done everything reasonably
possible to address their previously stated privacy concerns, we declined the
objecting neighbors’ request to further revise the plans.
“About a week after the Planning Commission approved the project, the
owners of the house across the street from us sent a letter dated March 12,
2018, to the Planning Commission asserting that the Town should require an
‘Historic Resource Analysis’ for the existing Property before the Town could
approve a categorical exemption from CEQA. [Citation.] This letter was the
first time I recall any neighbor raising a concern about the Property being
potentially historic or suggesting that the Town should not approve a
categorical exemption from CEQA. [Citations.]
“Planning Director Elise Simonian stated that the Planning
Commission had considered the allegedly historic nature of the residence at
both hearings. [Citations.] She indicated that the site was not associated
with any events that have made a significant contribution to the broad
patterns of local or regional history, or with lives of persons important to
local, state, or national history. [Citation.] She also stated that the site did
not embody the characteristics of a type, period, region, or method of
construction or represent the work of a master. [Citation.] In short,
Ms. Simonian opined that the site does not meet the criteria for designating a
historic resource as it had not yielded, and does not have the potential to
7
yield, information important to the history of the local area, the state, or the
nation. [Citation.] Ms. Simonian advised the appellants that the Jenkinses
“would be happy to speak with [appellants] regarding the project.” [Citation.]
In fact, we had asked Town staff to provide our phone numbers and contact
information to the objecting neighbors, and we said that we would welcome
discussion with the neighbors. [Citations.] However, the Woodland
Neighbors stated that they would ‘not be reaching out to [us] as [staff]
suggest[s],’ indicating that they simply wanted confirmation that ‘the
changes will be made’ and would otherwise be ‘going ahead with the appeal
process.’ [Citations.]
“The objecting neighbors moved forward with their plan and appealed
the Planning Commission’s approval of the revised project to the San
Anselmo Town Council.” 3
The Appeal to the Town Council
On March 15, representing themselves, four individuals—Chris and
Kassie Livermore, Ani Wade, and Patrick Bennett—filed an administrative
appeal. The appeal requested “the Town Council reviews this project for the
following reasons,” all set forth in bold-face: (1) “the project is out of
character with the neighborhood in its scale and style”; (2) “there are privacy
issues for four adjacent neighbors which have not been addressed”; (3) “there
were procedural missteps in the process”; and (4) “the neighborhood impact
during construction was not considered.” Under the first bold-faced item, in
3A third meeting was held on April 2, where the Planning Commission
heard the Jenkinses’s application for a grading permit. Again some
neighbors expressed concern about the claimed historic nature of the house
and compliance with the Municipal Code. The Planning Commission granted
the grading permit.
8
the last of five paragraphs, was this: “[t]here is also a major concern amongst
the neighbors, regarding the historic value of the existing home. Although
planning staff performed their own ‘historic evaluation,’ there is significant
information about the home that leads the neighborhood to believe the
existing house merits an independent Historic Resource Analysis.”
The appeal was scheduled to be heard on June 26 before the Town
Council, prior to which its staff prepared a voluminous, 23-page, single-
spaced report for the Council (council staff report). The council staff report
included: (1) a detailed discussion of the history of the property; (2) an
analysis explaining that the property is not one of the “presumptive” types of
historical properties under CEQA because it was not found to be eligible for
listing in the California Register of Historical Resources and not identified as
significant in a historical resource survey; (3) an analysis explaining that
CEQA gives the Town Council discretion regarding the designation of a
property as historical; and (4) an analysis explaining that, although the Town
had in the 1980s conducted an inventory of potentially historic properties
(where the property was one of 313 properties identified), the Town Council
never ultimately adopted or approved that inventory, going on to note that
many of those 313 properties had since been demolished, redeveloped, or
otherwise altered. Despite all that, in light of the neighbors’ questions, the
council staff report recommended a historic resource evaluation (HRE).
The Jenkinses retained Page & Turnbull, an established architecture
and preservation firm, to prepare an HRE. The firm made an extensive
analysis of the history of the property and prepared an HRE that concluded
the property was not eligible for listing in the California Register and was not
an historic resource under CEQA. The HRE was submitted to the Town
Council in advance of the hearing on the appeal.
9
The appeal came on for hearing on June 26, where the Town Council
considered all material, including the council staff report and the expert
Page & Turnbull report. The Town Council voted to uphold the Planning
Commission’s approval of the project and its findings, including the finding
that the property “does not rise to local historic status and does not have
significant historic, cultural or aesthetic value.” The Town Council also
affirmed the Planning Commission’s CEQA determination that the
replacement single family home project was categorically exempt from
CRQA’s detailed and elaborate environmental analytical and processing
mandates such as an EIR. As Judge Chou would later describe it—following
six-pages of quotations from the staff council report and Planning Director’s
Simonian’s comments—“the Town Council discussed the project at length,
including the historical nature of the property, and voted 3-1 to deny the
appeal.”
Soon after Ms. Brandt-Hawley entered the picture.
The Petition for Writ of Mandamus and the Appeal
On August 10, some six weeks after the Town Council approved the
project, a verified petition for writ of mandamus was filed on behalf of two
plaintiffs: Save Historic San Anselmo, an unincorporated association, and
Laurel Mellin. The petition was filed by Ms. Brandt-Hawley and her law
firm, Brandt-Hawley Law Group. 4 The petition alleged two causes of action,
4Ms. Brandt-Hawley is a most experienced attorney, described in the
opening brief this way: “Susan Brandt-Hawley has been a California
attorney for more than 40 years. [Citation.] She is currently an elected
member of the California Academy of Appellate Lawyers [citation], and since
1999, she has served as an invited co-faculty member on CEQA for the
Center for Judicial Education and Research and the California Judicial
Studies Program. [Citation.] Brandt-Hawley has successfully represented
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styled in bold-face as follows: (1) “violations of [CEQA],” and (2) “violations of
the Town Municipal Code.” The second cause of action, though entitled
“Municipal Code,” also included a claimed violation of the “General Plan,”
both claimed violations conclusorily described in a total of six-lines, failing to
identify any provision of the Municipal Code or the General Plan. Shortly
thereafter, Ms. Brandt-Hawley filed a verified First Amended Petition that,
while adding slightly more detail to the allegations, still failed to clearly state
the claimed bases for the second cause of action.
On October 25, on behalf of the Jenkinses, attorney Rick Jarvis sent
Ms. Brandt-Hawley a five-page, single-spaced letter that he called a “meet
and confer” letter under Code of Civil Procedure sections 128.5 and 128.7,
asserting that in his view the writ petition was frivolous, stating that “the
claims asserted appear to be completely without merit and presented
primarily or solely for the improper purpose of harassing [the Jenkinses]
(e.g., intending that the cost of litigation will dissuade them from
proceeding).” Mr. Jarvis’s letter specifically identified no fewer than
10 problems with the petition, including these:
• That the home of plaintiff Mellin (built in 1911) had been
substantially remodeled without any historical impact analysis,
and that a home at 132 Woodland (which also appeared on the
1980s inventory) had recently “had its entire exterior removed
and [was] in the process of being redeveloped without any historic
analysis”;
• That the Jenkinses’s new home would be consistent with other
homes in the neighborhood;
public interest groups in CEQA litigation, with a particular focus on historic
preservation issues. [Citation.]” An impressive record indeed.
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• That the neighbors’ objections to the project were ever-changing,
but, in their latest form, were impossible as a matter of
engineering;
• That the Town had wide discretion to approve the project and
had clearly done so based on substantial evidence;
• That the Town had found, based on the evidence presented, that
“the structure does not rise to local historic status and does not
have significant historic, cultural, or aesthetic value”;
• That the standard of review was “substantial evidence,” and that
the petition’s contention that a “fair argument” supported
Ms. Brandt-Hawley’s clients’ position in administrative
proceedings could not possibly support the claims in her lawsuit;
• That the Page & Turnbull study constituted “substantial
evidence” supporting the Town’s findings of insufficient “local
historical status” and “historic, cultural, or aesthetic value,” as
did the report and recommendations of the Planning Commission
staff;
• That the verified allegation that the Planning Director
“recommended” an independent study other than the
Page & Turnbull report was a misrepresentation: that the
Director had instead merely stated that the Town had the
alternative of requesting an independent study;
• That the “mitigation measures” argument for the application of
CEQA had never been raised in the underlying administrative
proceedings, which foreclosed her from presenting it in the trial
court; and
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• That even if the claim had been raised in the administrative
proceedings, “an unbroken line of CEQA caselaw establishes that
visual impacts to neighboring properties are not environmental
impacts subject to CEQA in the first place,” citing Association for
Protection of Environmental Values v. City of Ukiah (1991)
2 Cal.App.4th 720, 734; Mira Mar Mobile Community v. City of
Oceanside (2004) 119 Cal.App.4th 477, 492; and Eureka Citizens
for Responsible Growth v. City of Eureka (2007) 147 Cal.App.4th
357, 376.
Mr. Jarvis’s letter ended with this paragraph: “Thus, the allegations in
your amended petition, taken together with the surrounding circumstances of
this project, leave both me and my clients with the strong impression that the
present action is frivolous and improperly harassing. Indeed, in my over
25 years of litigating CEQA actions, I cannot recall handling a CEQA
challenge that appeared this meritless. My clients request that Petitioners
reconsider their current course of action and dismiss this lawsuit, with an
agreement that all parties will bear their own costs.”
Ms. Brandt-Hawley did not respond in writing to Mr. Jarvis’s letter. In
a later filed declaration she would say she had “telephone conversations with
[Mr. Jarvis] why [she] held a different legal opinion”—never, we might add,
saying anything about any of the facts.
On December 26, Mr. Jarvis filed an answer on behalf of the Jenkinses,
which answer also asserted that the petition was meritless as a matter of fact
and a matter of law. Among other things, the answer alleged as a sixth
affirmative defense estoppel, that Mellin, her predecessors, and other
neighbors had substantially redeveloped homes without any CEQA review or
historic analysis (despite that many, including 132 Woodland, appeared on
13
the 1980s inventory that Ms. Brandt-Hawley relied on to support much of her
case), and that Ms. Brandt-Hawley’s “historic resource concerns” had not
been raised before the Planning Commission, but had instead been raised for
the first time before the Town Council, in a last-ditch effort to stop or delay
the Jenkinses’s project. The seventh affirmative defense, styled “frivolous
action,” asserted that the lawsuit was frivolous under Code of Civil Procedure
sections 128.5 and 128.7.
Ms. Brandt-Hawley filed her brief on the petition, asserting three main
arguments in this order: (1) the approval of the project violated Town
Municipal Code section 10-3.1305(e); (2) the approval of the project violated
provisions of the Town’s General Plan stating a policy of preserving
historically and significant structures; and (3) the Town had incorrectly
approved the project based on its conclusion that the project was categorically
exempt from CEQA while adopting “mitigation measures” that foreclosed a
categorical exemption.
The petition came on for hearing before Judge Sweet, who on April 22,
filed his order, a comprehensive 33-page ruling denying the petition. The
order began with an exhaustive 15-page discussion of the background. Then,
after setting forth the standard of review, Judge Sweet began with
preliminary observations, including these: Referring to the Jenkinses’s
argument that it was Ms. Brandt-Hawley’s “burden to affirmatively show
there was no substantial evidence in the entire record to support the Town’s
findings and conclusions,” Judge Sweet noted that Ms. Brandt-Hawley was
required to “lay out the evidence favorable to the other side and show why it
is lacking,” and that “[f]ailure to do so is fatal.” And he went on to note,
“[e]xcept for brief references to expressions by councilmembers [of] differing
views on the issue of historical significance [citation], petitioners do not [lay]
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out all the evidence in the record that supports the Town’s findings; e.g., the
opening brief does not summarize the evidence in the HRE or in the Planning
Commission staff reports which found the house is not historically
significant.”
Judge Sweet then went on to deny the petition on the merits, with
these three fundamental conclusions:
(1) He rejected Ms. Brandt-Hawley’s reading of the Town Municipal
Code section 10-3.1305(e), holding that the plain language of that section
made a finding of hardship optional.
(2) He rejected Ms. Brandt-Hawley’s argument as to the General
Plan, holding that the HRE, the Planning Commission staff report, and the
finding that the old house “[did] not rise to local historic status and [did] not
have significant historic, cultural or aesthetic value” were substantial
evidence that requirements of the General Plan had been satisfied.
(3) He rejected Ms. Brandt-Hawley’s CEQA argument, holding that
it had not been raised in the administrative proceedings; that Ms. Brandt-
Hawley had repeatedly not supplied any record reference for her argument or
pointed to any discussion showing the Town was aware of the nature of her
“mitigation measures” argument; and that her proposed rule would “nullify
the exhaustion of remedies requirement.” Beyond all that, he noted that if he
“were to reach the merits of this claim, the court would find the measures at
issue are not mitigation measures required by CEQA,” but rather design
features and components of the project itself not subject to CEQA.
Judge Sweet stayed his order until April 25. But instead of appealing
or filing a motion to stay in that time, on May 29 Ms. Brandt-Hawley filed a
notice of appeal. Then, in mid-June, after hearing that the Jenkinses had
received a demolition permit, she filed a petition for writ of supersedeas
15
seeking an emergency stay, a petition that did nothing more than reargue the
arguments rejected below, giving short shrift—one sentence—to Judge
Sweet’s comprehensive order. Following correspondence from Mr. Jarvis,
Ms. Brandt-Hawley withdrew the petition that same day. On August 12, Ms.
Brandt-Hawley offered to dismiss the appeal if the Jenkinses would “waive[]
recovery of their fees and costs.” The Jenkinses declined. On September 6—
the day her opening brief was due—Ms. Brandt-Hawley voluntarily
dismissed the appeal.
The Jenkinses File Suit For Malicious Prosecution
On September 30, the Jenkinses filed a complaint naming as
defendants Ms. Brandt-Hawley and her firm, Brandt-Hawley Law Group
(when referred to collectively, Brandt-Hawley). It alleged one cause of action,
for malicious prosecution.
On February 9, 2021, Brandt-Hawley filed a special motion to strike
the complaint under Code of Civil Procedure section 425.16 (SLAPP or anti-
SLAPP motion). Brandt-Hawley also filed a request for judicial notice
seeking judicial notice of the register of actions in Save Historic San
Anselmo v. Town of San Anselmo (Super. Ct. Marin County, 2018, No. 2826),
including 986 pages from the administrative record.
The SLAPP motion was accompanied by two declarations of: (1) Jeff
Kroot, one of the members of Save Historic San Anselmo, and (2) Ms. Brandt-
Hawley. Ms. Brandt-Hawley’s declaration began with four pages of her
“professional background,” which included testimony describing her
reputation, her awards, her teaching, and her experience; it also included a
listing of 23 reported cases she handled in the California Supreme Court and
various Appellate Courts. There followed her description of her
“Representation of Save Historic San Anselmo and Dr. Laurel Mellin.” And
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the declaration ended with five pages, containing 10 paragraphs, under the
heading “Probable Cause Supported the Litigation.”
On April 22, the Jenkinses filed their opposition, which included four
declarations of: Charles Jenkins, Ellen Jenkins, Mr. Jarvis, and Jennifer L.
Hernandez, the last person an attorney in private practice with more than
30 years of experience in the practice of land and environmental law. The
Jenkinses also filed a request for judicial notice of 10 exhibits, consisting of
over 700 pages.
Mr. Jenkins’s declaration testified he had reviewed the petition and
amended petition that “Ms. Brandt-Hawley personally verified . . . under
penalty of perjury,” which petitions “were misleading as to material facts.”
As we discuss in some detail below, Mr. Jenkins went on to list nine specific
passages that he testified were “misleading.” Mr. Jenkins also testified that
Ms. Brandt-Hawley “made material misrepresentations at the hearing on the
writ petition,” going on to identify five specific misrepresentations.
On April 28, Brandt-Hawley filed a reply memorandum and also a
declaration of Paul Clifford, an attorney representing them. There was no
supplemental declaration from Ms. Brandt-Hawley—nothing taking issue
with anything said in Mr. Jenkins’s declaration.
The anti-SLAPP motion came on for hearing on May 12, before the
Honorable James Chou, prior to which he had issued a tentative ruling
denying the motion. At the conclusion of the hearing, Judge Chou adopted
his tentative ruling and thereafter filed an order formally adopting the
tentative ruling, attached to which was a detailed, 20-page analysis
explaining his ruling, which concluded the Jenkinses had met their burden
under step two of the anti-SLAPP analysis, demonstrating a probability of
prevailing on their claim for malicious prosecution. As to the issue of
17
probable cause, Judge Chou examined each of the three claims against the
Jenkinses separately, and concluded the Jenkinses had satisfied their burden
of showing a probability of success, demonstrating that two of the claims,
those regarding the Municipal Code and CEQA, were legally untenable. He
also found that the Jenkinses had met their burden on the issue of malice. 5
On June 7, Brandt-Hawley filed a notice of appeal.
DISCUSSION
The Law of Anti-SLAPP
In Lanz v. Goldstone (2015) 243 Cal.App.4th 441 (Goldstone), we
addressed an appeal in a setting identical to that here: plaintiff filed a
complaint that alleged one count for malicious prosecution; defendant filed an
anti-SLAPP motion; the trial court denied it, concluding that plaintiff had
met his burden of probability of success; and defendant appealed. In short,
the setting in Goldstone was identical to that here, and provides a perfect
template for our analysis, and we thus begin with extensive quotation from
Goldstone, with minor edits to accommodate the setting here:
“SLAPP Law and the Standard of Review
“Subdivision (b)(1) of section 425.16 of the Code of Civil Procedure
provides 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, unless the court
determines that the plaintiff has established that there is a probability that
5Judge Chou found against the Jenkinses on the issue of probable
cause as to the claim based on the general plan; he also granted the requests
for Judicial Notice and sustained Ms. Brandt-Hawley’s objection to the
Hernandez declaration.
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the plaintiff will prevail on the claim.’ Subdivision (e) of section 425.16
elaborates the four types of acts within the ambit of a SLAPP.
“A two-step process is used for determining whether an action is a
SLAPP. First, the court decides whether the defendant has made a threshold
showing that the challenged cause of action is one arising from protected
activity, that is, by demonstrating that the acts underlying the plaintiff’s
complaint fit one of the categories spelled out in Code of Civil Procedure
section 425.16, subdivision (e). If the court finds that such a showing has
been made, it must then determine the second step, whether the plaintiff has
demonstrated a probability of prevailing on the claim. (Navellier v.
Sletten (2002) 29 Cal.4th 82, 88 (Navellier).)
“Here, the parties agreed that the [Jenkinses’s] malicious prosecution
case came within the first step of the anti-SLAPP analysis. (See Daniels v.
Robbins (2010) 182 Cal.App.4th 204, 215 [‘The plain language of the anti-
SLAPP statute dictates that every claim of malicious prosecution is a cause of
action arising from protected activity because every such claim necessarily
depends upon written and oral statements in a prior judicial proceeding’].)
“So, . . . [Judge Chou’s] analysis addressed only the second step in the
SLAPP analysis, as will we. And as to how we decide that step, we set forth
the governing law in Grewal v. Jammu (2011) 191 Cal.App.4th 977, 989–990
(Grewal):
“ ‘We decide the second step of the anti-SLAPP analysis on
consideration of “the pleadings and supporting and opposing affidavits
stating the facts upon which the liability or defense is based.” (§ 425.16,
subd. (b).) Looking at those affidavits, “[w]e do not weigh credibility, nor do
we evaluate the weight of the evidence. Instead, we accept as true all
evidence favorable to the plaintiff and assess the defendant’s evidence only to
19
determine if it defeats the plaintiff’s submission as a matter of law.”
(Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688,
699–700.)
“ ‘That is the setting in which we determine whether plaintiff has met
the required showing, a showing that is “not high.” (Overstock.com, Inc. v.
Gradient Analytics, Inc., supra, 151 Cal.App.4th at p. 699.) In the words of
the Supreme Court, plaintiff needs to show only a “minimum level of legal
sufficiency and triability.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429,
438, fn. 5.) In the words of other courts, plaintiff needs to show only a case of
“minimal merit.” (Peregrine Funding, Inc. v. Sheppard Mullin Richter &
Hampton LLP (2005) 133 Cal.App.4th 658, 675, quoting Navellier[, supra,]
29 Cal.4th 82, 95, fn. 11.)
“ ‘. . . As the Supreme Court early on noted, the anti-SLAPP statute
operates like a “motion for summary judgment in ‘reverse.’ ” (College
Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 719.) Or, as that court
would later put it, “Section 425.16 therefore establishes a procedure where
the trial court evaluates the merits of the lawsuit using a summary-
judgment-like procedure at an early stage of the litigation. [Citation.]”
(Varian Medical Systems, Inc. v. Delfino [(2005)] 35 Cal.4th [180,] 192;
accord, Taus v. Loftus (2007) 40 Cal.4th 683, 714.)
“ ‘Numerous Courts of Appeal have articulated the test in similar
language. (See Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049,
1062 [“a standard ‘similar to that employed in determining nonsuit, directed
verdict or summary judgment motions’ ”]; Yu v. Signet Bank/Virginia (2002)
103 Cal.App.4th 298, 317 [“plaintiff’s burden as to the second prong of the
anti-SLAPP test is akin to that of a party opposing a motion for summary
judgment”][, disapproved on another ground in Newport Harbor Ventures,
20
LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 646]; Kyle v.
Carmon (1999) 71 Cal.App.4th 901, 907 [“similar to the standard used in
determining motions for nonsuit, directed verdict, or summary judgment”].)’
(Grewal, supra, 191 Cal.App.4th at pp. 989–990.)
“With those principles in mind, we turn to an analysis of whether [the
Jenkinses] established a probability that [they] will prevail on [their] claim
for malicious prosecution, an analysis we make on de novo review. (Grewal,
supra, 191 Cal.App.4th at p. 988.)” (Lanz v. Goldstone, supra,
243 Cal.App.4th at pp. 456–458.)
The Jenkinses Demonstrated a Probability of Prevailing on
Their Claim for Malicious Prosecution
The Law of Malicious Prosecution
“To establish a cause of action for the malicious prosecution of a civil
proceeding, a plaintiff must plead and prove that the prior action (1) was
commenced by or at the direction of the defendant and was pursued to a legal
termination in his, plaintiff’s, favor [citations]; (2) was brought without
probable cause [citations]; and (3) was initiated with malice [citations].”
(Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50 (Bertero); see CACI
No. 1501.)
Bertero went on to explain the two reasons why malicious prosecution
is actionable: “The malicious commencement of a civil proceeding is
actionable because it harms the individual against whom the claim is made,
and also because it threatens the efficient administration of justice. The
individual is harmed because he is compelled to defend against a fabricated
claim which not only subjects him to the panoply of psychological pressures
most civil defendants suffer, but also to the additional stress of attempting to
resist a suit commenced out of spite or ill will, often magnified by slanderous
allegations in the pleadings.” (Bertero, supra, 13 Cal.3d at pp. 50−51.) And
21
“[t]he judicial process is adversely affected by a maliciously prosecuted cause
not only by the clogging of already crowded dockets, but by the unscrupulous
use of the courts by individuals ‘. . . as instruments with which to maliciously
injure their fellow men.’ ” (Id. at p. 51.)
Bertero contains one other principle apt here, that if the underlying
action contains more than one claim, each claim must be based on probable
cause. (Bertero, supra, 13 Cal.3d at p. 57; accord, Crowley v. Katleman (1994)
8 Cal.4th 666, 695; Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th
1135, 1152−1153.) Put slightly differently, a malicious prosecution cause of
action can succeed if any of the claims was brought without probable cause.
Here, there is no issue of element one, favorable termination. The
issues are with elements two and three: “without probable cause” and
“malice.”
Without Probable Cause
“If there is ‘ “no dispute as to the facts upon which an attorney acted in
filing the prior action, the question of whether there was probable cause to
institute that action is purely legal.” [Citation.] “The resolution of that
question of law calls for the application of an objective standard to the facts
on which the defendant acted.” [Citation.]’ (Daniels v. Robbins, supra,
182 Cal.App.4th at p. 222.) So, it is often said that ‘the existence or absence
of probable cause has traditionally been viewed as a question of law to be
determined by the court, rather than a question of fact for the jury. . . .
[¶] . . . [It] requires a sensitive evaluation of legal principles and precedents,
a task generally beyond the ken of lay jurors . . . .’ (Sheldon Appel Co. v.
Albert & Oliker (1989) 47 Cal.3d 863, 875 (Sheldon Appel).)
“On the other hand, when there is a dispute as to the state of the
defendant’s knowledge and the existence of probable cause turns on
22
resolution of that dispute, there becomes a fact question that must be
resolved before the court can determine the legal question of probable cause.
(See Sheldon Appel, supra, 47 Cal.3d at p. 881 [‘[T]he jury must determine
what facts the defendant knew . . .’].)” (Lanz v. Goldstone, supra,
243 Cal.App.4th at p. 462.)
As noted, Judge Chou found that the Jenkinses demonstrated a
probability of prevailing on the issue of lack of probable cause as to two of Ms.
Brandt-Hawley’s claims, that the Municipal Code and CEQA claims were
legally untenable. Our de novo review leads to the same conclusion.
The claim in the petition was that the Town violated section 10-3.1305
of the Municipal Code, which provides that before issuing a demolition
permit, the Town “must” find that the proposed use will not have certain
specified detrimental results. In support of the petition, Ms. Brandt-Hawley
argued that the Code also required compliance with section 10-3.1305(e),
which provides in its entirety as follows: “Demolitions of Commercial,
Professional, and/or Residential Dwelling Structures: The Town will
encourage the preservation, maintenance, restoration, rehabilitation, moving
or continued use of all structures of historic, cultural, or aesthetic value. The
granting or denying of a conditional use permit for the demolition of
structures may also be subject to the following findings based on substantial
evidence as determined by the Planning Commission or Town Council.
“(1) Failure to approve a demolition permit will cause immediate and
substantial hardship because of the conditions peculiar to a particular
structure, and such hardship has not been created by an act of the owner in
anticipation of action under this chapter. Examples of hardship include
health and safety hazards that cause the building to be unsafe. Personal,
23
family, financing difficulties, loss of prospective profits and neighboring
violations are not justifiable hardships.
“(2) It is necessary to reveal previous architectural features covered up,
such feature that would be functionally and aesthetically compatible with the
existing improvements and the natural elements of the area.”
The argument is very wrong.
Municipal Code, section 10-3.1305(a) provides that before issuing a
demolition permit, the Town “must” find that the proposed use will not have
certain specified detrimental results. The Town did that here. While section
10-3.1305(e) identifies further findings that the Town “may also” make when
approving a demolition permit, a permissive phrasing that “may also” leave
the Town with discretion to identify further findings. In short, section 10-
3.1305(e) makes an “immediate and substantial hardship” finding optional.
(See Great Lakes Properties, Inc. v. El Segundo (1977) 19 Cal.3d 152, 155.)
As Judge Chou summed up: the Jenkinses argued, and Judge Sweet
agreed, that the hardship language was permissive, not mandatory, given the
use of the words “may also be subject to the following findings . . . . [¶]
Defendants contended they had probable cause to make their argument
because the quoted ‘may also’ sentence was not even part of the record and
was not included in the Town’s findings. To the contrary, Defendants argue,
Town staff stated in its report that the special finding ‘must be made’ in this
case ‘for the demolition of the existing structure.’ [¶] The court finds that
[the Jenkinses] have satisfied their burden of showing a probability of success
on their claim as it pertains to this ground asserted by defendants in the writ
petition, and which defendants continued to pursue in their writ of
supersedeas. The language of section 10-3.1305(e) is permissive, making the
hardship finding discretionary rather than mandatory.”
24
Even if section 10-3.1305(e) were ambiguous—and it is not—any
reasonable attorney would know that Brandt-Hawley’s interpretation would
be rejected. It would be unreasonable—and arbitrary—for the Town to
prevent itself from ever issuing demolition permits absent “immediate and
substantial hardship,” no matter the circumstances. (See Commission on
Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278,
297−298.) It would also be inconsistent with the rest of the statute, which
uses “must,” rather than “may,” when referring to mandatory filings. (See
City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 606−617 [courts
consider entire statute and give “significance to every word”].)
Superimposed on all the above is that the Town’s interpretation of its
own Municipal Code was “entitled to considerable deference.” (Citizens for
Responsible Equitable Environmental Development v. City of San Diego
(2010) 184 Cal.App.4th 1032, 1047.) Brandt-Hawley’s failure to demonstrate
that the Town had ever required a showing of “immediate and substantial
hardship” before approving a demolition permit also undermined her claim.
On top of all that, Ms. Brandt-Hawley’s briefing on the issue never
quoted the actual text of subdivision (e). Instead, she misleadingly referred
the trial court to AR 7 (administrative record), a summary of subdivision (e)
referenced in the Town’s findings, which summary omitted the word “may.”
Such failure to present the record fairly supports the inference that
Ms. Brandt-Hawley knew the claim was untenable.
But the failure to present the record fairly extended to other items as
well. For example, the briefing also made multiple misleading statements,
including that Planning Director Simonian had been critical of the HRE, even
though the Planning Director had also said the HRE seemed “thorough and
complete.” The brief asserted that “there is no question that the Town
25
Council was fully informed not just of ‘generalized’ environmental concerns
but of residents’ specific objections both to the categorical exemption and to
the project’s environmental impacts based in part on inadequate mitigation
for visual impacts and grading.” Yet the brief cited nothing—and the record
said otherwise. 6
Turning to the cause of action in the petition for violations of CEQA,
the Jenkinses met their burden on it as well, beginning with the
demonstration that the claim would run afoul of established CEQA law
requiring exhaustion of administrative remedies. Public Resources Code
section 21177 provides that a CEQA petitioner may not challenge a project
“unless the alleged grounds for noncompliance . . . were presented to the
public agency orally or in writing by any person during the public comment
period provided by this division or before the close of the public hearing on
the project before the issuance of the notice of determination.”
(Pub. Resources Code, § 21177, subd. (a).) This principle is not only codified,
it exists through case law as well. (Tomlinson v. County of Alameda (2012)
6 Some mistreatment of the record continued on appeal, as Brandt-
Hawley’s opening brief asserts that “the Town did not file a single brief in the
underlying litigation, nor did it join in the Respondents’ briefing” and that
the Jenkinses’s opposition brief in the underlying litigation was filed “with no
joinder from the Town.”
The Jenkinses’s brief called Brandt-Hawley on that, citing to the fact
that the Town Council, respondents in the petition, did in fact join the
Jenkinses in opposition to the petition—indeed, that Ms. Brandt-Hawley
even included that “joinder” brief by the Town in the Appellant’s Appendix.
Furthermore, Town attorney Benjamin Stock attended the proceedings before
Judge Sweet, making clear that the Town supported the Jenkinses’s position
in the petition.
Brandt-Hawley’s reply brief attempts to explain how the misstatement
came about, and in any event apologizes for the error.
26
54 Cal.4th 281, 291 [section 21177, subdivision (a)’s exhaustion-of-
administrative-remedies requirement “applies to a public agency’s decision
that a proposed project is categorically exempt from CEQA compliance”];
Bridges v. Mt. San Jacinto Community College. Dist. (2017) 14 Cal.App.5th
104, 116.)
To satisfy the exhaustion doctrine, objections cannot be generalized or
unelaborated, but rather must be “specific” and involve the “exact issue.” As
our colleagues in Division One put it, “the requirement of exhaustion is a
jurisdictional prerequisite,” and “[t]he purposes of the doctrine are not
satisfied if the objections are not sufficiently specific so as to allow the Agency
the opportunity to evaluate and respond to them,” that the “exact issue must
have been presented to the administrative agency.” (Stop Syar Expansion v.
County of Napa (2021) 63 Cal.App.5th 444, 453−459, citations and internal
quotation marks omitted; North Coast Rivers Alliance v. Marin Municipal
Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 623 [“bland and
general references to environmental matters, or isolated and unelaborated
comments do not satisfy” the exhaustion requirement].) Here, Judge Sweet,
in denying the petition, and Judge Chou, in denying the SLAPP motion, both
found that the CEQA claim was clearly barred by this requirement.
As noted, the Town determined that the project fell within a categorical
CEQA exemption for single-family residences. (See Cal .Code Regs., tit. 14,
§ 15303, subd. (a); Pub. Resources Code, § 21084, subd. (a).) In the petition,
Brandt-Hawley argued that an exception to this exemption precluded that
determination, asserting that the project could not be deemed categorically
exempt because it was slightly modified to address neighbors’ aesthetic and
privacy concerns. However, as both Judge Sweet and Judge Chou found, this
argument is nowhere to be found in the administrative record. As Judge
27
Sweet put it, “[T]here is nothing in these references that indicates the
opponents specifically, or even generally, objected to the Town’s finding the
project is categorically exempt because of the imposition of any mitigation
measures.” Indeed, Judge Sweet did his own review of the administrative
record and did not find “any reference where the project opponents
specifically raised this issue when challenging the Town’s categorical
exemption finding.”
Similar to Judge Sweet’s analysis, Judge Chou also found that Ms.
Brandt-Hawley failed to demonstrate that the CEQA exemption argument
was raised before the Town and was thus waived. For this reason alone, the
CEQA claim was legally untenable.
But even if the claim had been preserved, it would still fail because any
reasonable attorney would conclude that the modifications were not
“mitigation measures” under CEQA, as they did not meet either part of the
two-part test required by our Supreme Court in a 2015 case in which
Ms. Brandt-Hawley was the attorney for plaintiffs—Berkeley Hillside
Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (Berkeley Hillside).
Berkeley Hillside, like here, involved a single-family residence, though
unlike the simple project here, one involving a 6,478 square-foot home with
an attached 3,394 square-foot 10-car garage situated on a steep slope in a
heavily wooded area. The plan was supported by neighbors, by the City of
Berkeley Planning and Development, and by the City Council. And the City
found the categorical exemption under CEQA for a single-family home
applied. (Berkeley Hillside, supra, 60 Cal.4th at pp. 1092, 1093–1096.)
Representing the petitioners, Ms. Brandt-Hawley filed a petition that
acknowledged the deferential substantial evidence standard of review
applied, but contended an exception to the categorical exemption also applied
28
because the project might result in significant environmental impacts due to
“unusual circumstances.”
The trial court denied the petition. It first concluded that the
administrative record contained substantial evidence to support the City’s
application of the small-structures categorical exemptions. It next found that
the unusual circumstances exception (Cal. Code Regs, tit. 14, § 15300.2,
subd. (c) (Guidelines)) did not preclude application of those categorical
exemptions because, notwithstanding evidence of potential significant
environmental effects, the proposed project did not present any unusual
circumstances. The Court of Appeal reversed. Citing to “substantial
evidence of a fair argument that the proposed project may have a significant
environmental impact,” the court held that the exemptions the City invoked
did not apply, that “ ‘the fact that the proposed activity may have an effect on
the environment is itself an unusual circumstance’ that triggers the
exception.” (Berkeley Hillside, supra, 60 Cal.4th at pp. 1092−1093, 1096.)
The Supreme Court reversed, concluding that neither the trial court
nor the appellate court had correctly analyzed whether unusual
circumstances precluded the application of categorical exceptions. (Berkeley
Hillside, supra, 60 Cal.4th at p. 1093.) And the Court established the two-
part test to determine whether the “unusual circumstances exception” applies
precluding a categorical exemption: under the agency-deferential substantial
evidence standard, the petitioner must establish an “unusual circumstance”
by showing that a project “has some feature that distinguishes it from others
in the exempt class, such as its size or location”; and if “unusual
circumstances” are present, the petitioner must also establish that the
unusual circumstance gives rise to a “reasonable possibility that the activity
will have a significant effect on the environment.” (Id. at p. 1105.)
29
Brandt-Hawley fails to come close to meeting Berkeley Hillside’s first
burden, showing that no substantial evidence supported the Town’s
exemption decision, let alone the second, “significant effect on the
environment.” Ms. Brandt-Hawley has never described a substantial
environmental impact that would be caused by the project, not in the
petition, not in the anti-SLAPP motion—and not here.
Construction of a “single-family residence” constitutes a categorical
exemption from CEQA, and one challenging the applicability of this
exemption must overcome the heavy burden of establishing that there is no
substantial evidence supporting it, something that Brandt-Hawley was
necessarily aware of based on her general experience with CEQA, as well as
her specific experience in Berkeley Hillside. The record here is filled with
substantial evidence in support of the Town’s determination that the
Jenkinses’s single-family residence would be categorically exempt from
CEQA, including, for example the Page & Turnbull study, the Town’s
numerous reports and recommendations, and the opinion of Planning
Director Simonian. 7
The above supports the inference that Ms. Brandt-Hawley knew the
claims in the petition were untenable, especially given her extensive CEQA
and land use law experience and the law from Berkeley Hillside. Despite
this, she filed the petition, and pushed on in the face of the detailed letter
7 The Jenkinses argue that Judge Chou erred in his holding that there
was probable cause for the claim based on the General Plan, and that this
part of his order should be reversed. We do not consider the argument as it is
misplaced, the Jenkinses having not filed a cross-appeal. (See Preserve
Poway v. City of Poway (2016) 245 Cal.App.4th 560, 585 [“To obtain relief by
way of appeal, respondents must themselves file a notice of appeal and
become cross-appellants”].)
30
from Mr. Jarvis. Then, and despite that that petition was easily rejected by
Judge Sweet, she nevertheless appealed, then filed a supersedeas petition
(which she immediately dismissed), thereafter pressed for a waiver of fees
and costs, ultimately to dismiss the appeal.
The remaining issue is whether the Jenkinses showed a probability of
prevailing on the third element of their malicious prosecution claim—malice.
Like Judge Chou, we conclude they did.
Malice
Malice in connection with malicious prosecution “ ‘relates to
the subjective intent or purpose with which the defendant acted . . . .’ ”
(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292 (Soukup).
As an earlier Supreme Court case put it, the malice required “is not limited to
actual hostility or ill will toward plaintiff but exists when the proceedings are
instituted primarily for an improper purpose” (Albertson v. Raboff (1956)
46 Cal.2d 375, 383, superseded by statute on other grounds as stated in La
Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461, 473), adding that suits
brought with improper purposes include: “ ‘[T]hose in which (1) the person
initiating them does not believe that his claim may be held valid; (2) the
proceedings are begun primarily because of hostility or ill will; (3) the
proceedings are initiated solely for the purpose of depriving the person
against whom they are initiated of a beneficial use of his property; [or] (4) the
proceedings are initiated for the purpose of forcing a settlement which has no
relation to the merits of the claim.’ ” (Ibid.) In short, malice “ ‘may range
anywhere from open hostility to indifference’ ”; it is not limited to “ ‘ill will
toward plaintiff but exists when the proceedings are [prosecuted] primarily
for an improper purpose.’ ” (Soukup, supra, 39 Cal.4th at p. 292.)
31
Since malice concerns mental state, it necessarily presents a question
of fact. (Sheldon Appel, supra, 47 Cal.3d at p. 874.) Particularly apt here, a
SLAPP case with its reverse summary judgment analysis, is this observation
by the dissenting justice in Crowley v. Katleman, supra, 8 Cal.4th at p. 696
(dis. opn. of Arabian, J.): “malice is such a highly factual issue that it often
precludes summary disposition.”
Likewise pertinent are the cases recognizing that the evidence
supporting malice is usually circumstantial (HMS Capital, Inc. v. Lawyers
Title Co. (2004) 118 Cal.App.4th 204, 218), a recognition demonstrated by the
many cases that have denied anti-SLAPP motions in malicious prosecution
cases based on evidence that a party pursued, or continued to pursue, a case
after learning it was untenable. (See, e.g., Area 55, LLC v. Nicholas &
Tomasevic, LLP (2021) 61 Cal.App.5th 136, 169−171; Golden State Seafood,
Inc. v. Schloss (2020) 53 Cal.App.5th 21, 38−39; Cuevas-Martinez v. Sun Salt
Sand, Inc. (2019) 35 Cal.App.5th 1109, 1122; Olivares v. Pineda (2019)
40 Cal.App.5th 343, 356−357; Medley Capital Corp. v. Security National
Guaranty, Inc. (2017) 17 Cal.App.5th 33, 48−50.)
And also pertinent are the cases holding that lack of probable cause
may be relevant on the issue of malice, though it is not by itself enough.
(Dunning v. Clews (2021) 64 Cal.App.5th 156, 177 (Dunning) [“While a lack of
probable cause is relevant to the issue of malice, it is insufficient, standing
alone, to support a finding of malice”].)
Here, lack of probable cause does not stand alone. The record contains
abundant other evidence, including this:
Shortly after filing the amended writ petition, Ms. Brandt-Hawley was
confronted by the accusations in Mr. Jarvis’s lengthy letter, and responded
only orally, that at some unidentified time she “explained in telephone
32
conversations . . . why I held a different legal opinion.” Notably, nothing was
said about the facts laid out by Mr. Jarvis. This is indifference. (Soukup,
supra, 39 Cal.4th at p. 292.)
As alluded to above, in his declaration Mr. Jenkins pointed to
numerous statements by Ms. Brandt-Hawley in the writ petition that he said
were “misleading as to material facts,” going on to specify nine examples,
including the following (all citations omitted):
“At page 1, lines 13−15, she states that the existing one-story house at
260 Crescent Road was ‘one of the first houses built in San Anselmo.’
[Citation.] In fact, there are many San Anselmo houses that were built
earlier than 1908, which is the year the 260 Crescent house was built.
[Citation.]
“At page 2, lines 2−4, she states: ‘[t]o accommodate the Jenkins’[s]
proposal for a new home, the Town Council issued its first-ever approval for
demolition of an over-100-year-old structure in its historic Seminary
neighborhood. . . .’ [Citation.] This too was demonstrably false. Planning
Director Elise Simonian had identified about twelve vintage houses the Town
had previously approved to be demolished and replaced with new
construction, without first preparing an Historic Resource Evaluation,
including eight that were identified by the Inventory as eligible for listing for
local historic status. [Citation.] [¶] . . . [¶]
“At page 2, lines 13-14, she states ‘[t]he Council also recognized need
for, and imposed, mitigation measures that now defeat the exemption.’
[Citation.] Again, the trial court found the CEQA exemption was not before
the Court and the referenced mitigation measures were conditions of
approval that do not defeat the exemption. [Citation.]
33
“At page 3 at lines 8-11, she states ‘Laurel Mellin objected to the
Town’s approval of the 260 Crescent Road project and exhausted
administrative remedies and acquired standing on behalf of herself and the
later-formed group.’ [Citation.] The trial court specifically ruled, based on
the record presented, that Ms. Brandt-Hawley’s client(s) did not exhaust
administrative remedies and therefore waived their arguments resisting the
CEQA categorical exemption. [Citation.]
“At page 6, line 12 and again at page 8, line 11, Ms. Brandt-Hawley
injects as ‘fact’ a statement that finds no support in the record—that the
house at issue was a ‘historic’ house and that the house ‘qualifies as historic
under the General Plan Policy 6.1.’ [Citation.] Again, there is nothing in the
record to support this and the trial court pointed out that this was not the
case. [Citation.]
“At page 5, lines 10-12, she states ‘[a]bsent the relief prayed for, the
project will proceed with significant irreparable and irreversible
environmental impacts to the town’s environment and its residents.’
[Citation.] There were no environmental impacts associated with this
project. [Citation.]”
Mr. Jenkins also referred to the hearing on the petition, where he
claimed Ms. Brandt-Hawley misrepresented the facts in her argument before
Judge Sweet, identifying five specific misrepresentations.
As noted, Ms. Brandt-Hawley did not respond to any of Mr. Jenkins’s
charges. Again, indifference.
But it was not only Mr. Jarvis or Mr. Jenkins who said Ms. Brandt-
Hawley failed to state the record fairly or accurately. As Judge Chou
summed it up in his conclusion on the issue: “Plaintiffs contend that
Defendants knew their claims were untenable given their background and
34
expertise but continued to pursue them anyway, Plaintiffs’ counsel advised
Defendants four times that their arguments were frivolous, Defendants’
failure to present the record fairly supports a finding they knew their claims
were untenable, Defendants made misleading arguments, Defendants filed
and swiftly dismissed the Writ of Supersedeas, and Defendants maintained
their appeal for three months and offered to dismiss the appeal only if
Plaintiffs agreed to waive any claim to fees and costs.” “Failure to present
the record fairly.” Making “misleading arguments.” That is more evidence of
malice.
Ms. Brandt-Hawley’s lengthy declaration in support of the anti-SLAPP
motion describes what she did before filing the petition, including that she
reviewed the “project related documents.” But one thing missing from the
declaration is any testimony she did any legal research. As the Supreme
Court has recognized, where a case is brought without probable cause—as
here—“the extent of [an] attorney’s investigation and research may be
relevant to the further question of whether or not the attorney acted with
malice.” (Sheldon Appel, supra, 47 Cal.3d at p. 883.)
On the issue of malice, Brandt-Hawley relies on Dunning and asserts
this: the “alleged proof [of malice] rests almost entirely on the Jenkins’[s]
assertion that their attorney informed Brandt-Hawley that he believed the
action was frivolous. They then reason that, because Brandt-Hawley ‘knew’
the action lacked merit, her decision to continue litigating and to take routine
litigation actions demonstrates malice.” As noted, there is much more
evidence here. And Dunning is easily distinguishable.
Dunning involved a malicious prosecution action brought by the
developers of a private secondary school against a neighboring ranch and its
attorneys, after the developers succeeded in having an environmental
35
challenge to the development project dismissed. The trial court granted the
defendants’ anti-SLAPP motion. Plaintiffs appealed, and the Court of Appeal
affirmed in part and reversed in part, holding that the malicious prosecution
case should have survived the anti-SLAPP motion as to the ranch. However,
as to the attorney defendants, the Court held there was no prima facie
showing of malice, on the fundamental basis that the motives of their clients
would not be imputed to their attorneys. (Dunning, supra, 64 Cal.App.5th at
p. 176.) The Court also rejected as unsupported the developers’ arguments
that malice was shown by the settlement negotiations, which, they claimed,
“ ‘may have been negotiated to wear [the developers] down,’ ” which would
avoid a “ ‘decision on the merits’ ” and thus reduce the likelihood that the
ranch would sue the attorneys for malpractice. (Id. at p. 178.) In short,
Dunning was one Court of Appeal’s de novo review that led it to conclude that
the sparse record there was “ ‘insufficient as a matter of law to establish
malice.’ ” (Ibid.) The record here for our de novo review is a far cry.
Some Observations on the Amicus Briefs
Three amicus briefs were filed in support of Brandt-Hawley, by:
(1) Remy Moore Manley, LLP, a Sacramento law firm that does CEQA work,
has litigated extensively with Ms. Brandt-Hawley, and whose partner served
as “faculty and seminars” with Ms. Brandt-Hawley (the RMM brief);
(2) Richard M. Frank and Sean B. Hecht, respectively professors at U.C.L.A.
and UC Davis Law schools (the Frank/Hecht brief); and (3) the
Environmental Law Foundation and Planning Conservation League, a clinic
at Stanford Law School (the ELF/PCL brief).
To various extents, the briefs make arguments addressing some issues
on the merits, arguing things such as the claims in the writ petition were
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“tenable,” and had “minimal merit.” These claims were addressed above, and
nothing more need be said about them here.
The RMM brief asserts that its experience litigating other cases against
Ms. Brandt-Hawley “undermines the suggestion” she acted with malice here.
Passing over what might be called admissibility or relevancy issues—what
Ms. Brandt-Hawley’s conduct in other cases has to do with her conduct
here—the RMM’s biased comments have nothing to do with the situation
here.
All three amicus briefs suggest that CEQA-related cases should be in
essence immune or insulated from malicious prosecution cases, arguing
things such as CEQA is too “uncertain” and too “complicated” for there ever
to be a malicious prosecution claim. Nothing is cited in support of any such
special carve out.
But not only that, we recently published a 107-page opinion in a CEQA
case, Tiburon Open Space Committee v. County of Marin (2022)
78 Cal.App.5th 700, that involved a 43-unit residential development in Marin
County. Our opinion ended with “closing observations” that included
citations to, and quotations from, various cases and law review articles that
described the possible misuse of CEQA actions, and the harm they could
cause. Among other things we noted that while “CEQA was meant to serve
noble purposes . . . it can be manipulated to be a formidable tool of
obstruction.” (Id. at p. 782.)
The Frank/Hetch and ELF/PCL briefs assert that allowing cases like
that brought by the Jenkinses will chill legislative advocacy and result in
reduction in court access regarding cases challenging government actions,
advancing environmental enforcement and justice, and involving novel
environmental legal claims. We see no such correlation, and those cases, like
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all others, should allow for a broad degree of freedom in legitimate CEQA
advocacy, while also protecting litigation defendants (such as the Jenkinses)
from having to fend off litigation brought without probable cause and malice.
Along those same lines, the ELF/PCL brief asserts that allowing the
Jenkinses’s case to proceed will deter private citizen enforcement actions and
create a barrier to the advancement of environmental justice. Contrary to
the sweeping alarmist predictions, the Jenkinses’s lawsuit does not preclude
or deter “public participation” or “[a]ctive citizen involvement” in important
environmental matters. The Jenkinses did not challenge the administrative
proceedings, the appeal, or the ability of citizens and individuals to voice
their concerns during the public comment periods or thereafter. The
Jenkinses did not name any individual in their lawsuit, nor even the group
that brought the petition against them. Rather, based on the evidence and
the law, they named only Brandt-Hawley due to the specific nature of her
untenable claims—and her apparently deliberate indifference in the petition.
The ELF/PCL Brief references “environmental” protection and
regulation, but the Jenkinses’s situation has nothing to do with
environmental protection and everything to do with the privacy and aesthetic
design concerns of several of the Jenkinses’s neighbors.
Finally, the Jenkinses’s lawsuit has nothing to do with “disadvantaged
communities,” “underserved communities,” “marginalized communities,”
“pollution,” “human health consequences,” or “urban decay,” to name just a
few of the topics raised in the ELF/PCL brief. To the contrary, we find that
the description in the Jenkinses’s brief is apt: the petition “here involved a
group of well-off, ‘NIMBY’ neighbors living in one of the most expensive zip
codes in the country trying to prevent their fellow neighbor from rebuilding a
decrepit and dangerous residence on their property because the neighbors
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were concerned about privacy and the design aesthetics of the new build.
[Citation.] It had nothing to do with significant or negative environmental
effects under CEQA, and the Jenkinses even fell within a clear-cut CEQA
categorical exemption for single-family residences.”
DISPOSITION
The order denying the anti-SLAPP motion is affirmed. Respondents
Charles and Ellen Jenkins shall recover their costs on appeal.
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_________________________
Richman, J.
We concur:
_________________________
Stewart, P.J.
_________________________
Mayfield, J. *
Jenkins v. Brandt-Hawley (A162852)
*Judge of the Mendocino Superior Court, Judge Cindee Mayfield,
sitting as assigned by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.
40
Trial Court: Marin County Superior Court
Trial Judge: Honorable James Chou
Attorney for Plaintiffs and Cannata, O’Toole, Fickes &
Respondents, Charles Jenkins Olson, LLP, Therese Y.
and Ellen Jenkins: Cannata, Mark P. Fickes,
Zachary Colbeth, Aaron Field
Amicus curiae Environmental Environmental Law Clinic,
Law Foundation and Planning Deborah A. Sivas, Molly
and Conservation League in Loughney Melius, Caroline
support of Appellants Zhang
Amicus curiae Sean B. Hecht UCLA School of Law, Sean B.
in support of Appellants Hecht
Amicus curiae Remy Moose Remy Moose Manley, LLP,
Manley, LLP in support of Whitman F. Manley
Appellants
Attorney for Defendants and Shute, Mihaly & Weinberger
Appellants, Susan Brandt- LLP, Ellison Folk, Lauren M.
Hawley and Brandt-Hawley Tarpey, Peter Damrosch,
Law Group Daniel P. Selmi
41