Durkin v. City and County of San Francisco

Filed 4/14/23
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION THREE
CHRISTOPHER DURKIN et al.,
Plaintiffs and Appellants,
A162859, A163639
v.
CITY AND COUNTY OF SAN (City & County of San Francisco
FRANCISCO et al., Super. Ct. No. CPF-20-517317)
Defendants and Respondents;
PHILIP KAUFMAN,
Real Party in Interest and
Respondent.
After the San Francisco Planning Commission (Planning Commission)
approved a final mitigated negative declaration for the proposed renovation
of a residence by Christopher Durkin and 2417 Green Street, LLC
(appellants), Philip Kaufman, the owner of an adjacent property, appealed
the matter to the San Francisco Board of Supervisors (Board), which reversed
the Planning Commission’s decision. Appellants filed a petition for writ of
mandate against the City and County of San Francisco, the Board, the
Planning Commission, and the San Francisco Planning Department
(Planning Department), naming Kaufman as a real party in interest. In
1
response, Kaufman filed a special motion to strike under the anti-SLAPP1
law (Code Civ. Proc., § 425.16),2 arguing that the petition arose from his
protected petitioning activity and lacked minimal merit. The trial court
granted the anti-SLAPP motion and awarded Kaufman attorney fees as the
prevailing party on the motion.
We conclude the trial court erred in finding the mandamus petition
arose from Kaufman’s protected conduct, as the activities that form the basis
for the petition’s causes of action are all acts or omissions of the Board. That
Kaufman’s administrative appeal preceded or even triggered the events
leading to the petition’s causes of action against the Board did not mean that
the petition arose from Kaufman’s protected conduct within the
contemplation of the anti-SLAPP law. Accordingly, we reverse the anti-
SLAPP order and the related fee award.
FACTUAL AND PROCEDURAL BACKGROUND
We limit our recitation of facts to those relevant to our decision.3
A. First Categorical Exemption
In 2017, appellants filed an application with the Planning Department
to remodel and expand a single-family home located on Green Street in San
Francisco (the project). The Planning Department determined that the
1 The acronym SLAPP stands for “ ‘strategic litigation against public
participation.’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 85 & fn. 1
(Navellier).
2 Further section references are to the Code of Civil Procedure unless
specified otherwise.
3 Appellants request judicial notice of various records filed in the
proceedings below and in another action. We deferred consideration of the
request until consideration of the merits of this appeal, and we now deny it,
as the proffered material is unnecessary to our decision. (City of Emeryville
v. Cohen (2015) 233 Cal.App.4th 293, 312, fn. 13.)
2
project was categorically exempt from environmental review under the
California Environmental Quality Act (Pub. Res. Code, §§ 21000 et seq.)
(CEQA).
Neighbors of the project requested that the Planning Commission
exercise its powers of discretionary review and disapprove the project. They
also appealed the categorical exemption decision to the Board, claiming the
project should not be exempt from CEQA because there was contaminated
soil at the location and the project would block light, air, and views to and
from Kaufman’s neighboring property (the historically significant Coxhead
House) and undermine its foundation.
The Board conditionally reversed the categorical exemption
determination, finding there was substantial evidence that the project may
result in substantial adverse impacts to the historic significance of
Kaufman’s neighboring property that had not been sufficiently addressed in
the categorical exemption for the project.
B. Second Categorical Exemption
Appellants submitted a revised application, and the Planning
Department issued a second categorical exemption in June 2018. However,
the Planning Department later reversed itself and rescinded the second
categorical exemption. Appellants appealed, but the Board declined to hear
the appeal.
C. Mitigated Negative Declarations
After conducting an initial study of the project and determining that
the potential environmental impacts were less than significant, the Planning
Department issued a preliminary mitigated negative declaration in June
2019. The preliminary mitigated negative declaration set forth mitigation
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measures to ensure the security and stability of the project site and adjacent
historic resources.
Kaufman appealed the preliminary mitigated negative declaration to
the Planning Commission. In 2020, the Planning Commission denied
Kaufman’s appeal and adopted a final mitigated negative declaration.
D. Kaufman’s Appeal to the Board
Kaufman then appealed the final mitigated negative declaration to the
Board. The Board reversed the Planning Commission’s decision upholding
the final mitigated negative declaration and directed the Planning
Department to conduct further study on slope stability and potential impacts
to the structural integrity of Kaufman’s property and to analyze and apply
appropriate mitigation measures.
E. Appellants’ Petition for Writ of Mandamus
Appellants filed a petition for writ of mandamus against the City and
County of San Francisco, Planning Commission, Planning Department, and
Board (collectively the City). The petition named Kaufman as a real party in
interest and identified him as “the appellant to the underlying administrative
appeal.”
In the petition, appellants alleged that the City “repeatedly and
unlawfully obstructed and delayed taking action on the [p]roject for years,
instead yielding to political pressure exerted by members of the Board and
well-connected neighbors who oppose the [p]roject.” According to the petition,
the Board denied the project “in favor of the neighbors’ unsubstantiated
arguments”; “failed to make any findings in support of its denial”; and
“directed its clerk ‘to prepare findings specifying the basis for its decision’
after the fact. To date, no such findings have been made.” The petition
further alleged on information and belief that “the neighbors who oppose the
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[p]roject are politically well-connected and are supported by members of the
Board in their opposition to the Project,” and that “certain neighbors who
filed [discretionary review] requests made political donations to” members of
the Board.
In the first cause of action for writ of mandate under section 1085
and/or 1094.5 and CEQA, the petition alleged that in reversing the Planning
Commission’s approval of the final mitigated negative declaration, “the Board
failed to make any findings supporting its reversal, and instead directed its
clerk to make findings for it after the fact. Because there are no findings in
the record supporting its reversal of the [mitigated negative declaration], the
Board failed to proceed in the manner required by law and/or there is no
substantial evidence that the conditions attached to the adoption of the
[mitigated negative declaration] are insufficient to mitigate the potential
[p]roject impacts (if any).” Appellants further alleged that any evidence that
was contrary to the Planning Department’s findings of less-than-significant
environmental impacts “was unsubstantiated, uncredible, and/or speculative
argument from opposing neighbors.” “Thus, there is no substantial evidence
supporting a fair argument that a significant environmental effect may occur
as a result of the [p]roject, and the Board’s decision on the [mitigated
negative declaration appeal] therefore must be reversed.”
In the second cause of action for writ of mandate under section 1085
and/or 1094.5 and Government Code section 65905.5, appellants alleged the
project is a proposed housing development project within the meaning of
Government Code section 65905.5, which provides that when a project
complies with all applicable, objective general plan and zoning standards in
effect at the time an application is deemed complete, agencies “ ‘shall not
conduct more than five hearings pursuant to [that section], or any other law,
5
ordinance, or regulation requiring a public hearing in connection with the
approval of that housing development project.’ ” Appellants alleged the
project was consistent with applicable, objective general plan and zoning
standards in effect when the project was deemed complete in 2017, but the
City conducted more than five hearings on the project.
In the petition’s prayer for relief, appellants requested “a writ of
mandate or other appropriate relief, including an injunction, declaration,
and/or order, reversing the Board’s decision to grant the [mitigated negative
declaration appeal] and deny the [p]roject and remanding the [p]roject to the
Board for approval.” Appellants also sought costs of suit and reasonable
attorney fees under “Gov. Code §§ 1021.5 and/or 800.”4
F. Kaufman’s Anti-SLAPP Motion
Kaufman filed an anti-SLAPP motion, contending that the petition
arose from his protected activity of appealing the final mitigated negative
declaration to the Board, and that appellants’ claims lacked minimal merit
because the Board’s decision was based on substantial evidence that the
project may have adverse environmental impacts requiring an environmental
impact report; there is no cause of action for delay in the City’s CEQA
findings; Government Code section 65905.5 exempts CEQA actions from its
five-hearing limit; and the requisite five hearings had not yet occurred.
The City filed a responsive brief in which it took “no position with
respect to the anti-SLAPP claims stated in [Kaufman’s] motion” but
4 The citation to Government Code section 1021.5 appears to be an error
and is more likely a reference to section 1021.5 of the Code of Civil Procedure,
which provides that attorney fees may be awarded to the prevailing party “in
any action which has resulted in the enforcement of an important right
affecting the public interest” under specified circumstances.
6
concurred with Kaufman’s positions on the merits of the “[CEQA] and
Housing Crisis Act claims advanced in the [p]etition.”
In opposition, appellants argued that Kaufman did not meet his
threshold burden to show that the petition arises from protected activity
because the petition arose not from Kaufman’s appeal to the Board, but from
the Board’s decision. Appellants further argued that their claims met the
minimal merit standard, and that the anti-SLAPP motion was frivolous and
justified the imposition of sanctions against Kaufman.
The trial court granted the anti-SLAPP motion, finding that the
petition arose from Kaufman’s protected act of filing the administrative
appeal, and that the claims in the petition lacked minimal merit. Appellants
timely appealed the anti-SLAPP order in case No. A162859.
The trial court also found Kaufman was entitled to fees as the
prevailing defendant on the anti-SLAPP motion and awarded him
$219,269.25 in total fees. Appellants timely appealed the fee order in case
No. A163639.
We consolidated the appeals for purposes of briefing, argument, and
decision.
DISCUSSION
A. Anti-SLAPP Motion
Section 425.16 authorizes a special motion to strike “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.” (§ 425.16,
subd. (b)(1).) The anti-SLAPP law “allows defendants to request early
judicial screening of legal claims targeting free speech or petitioning
activities” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 880–881
7
(Wilson)), and its provisions must be construed broadly (§ 425.16, subd. (a)).
The anti-SLAPP law applies to various types of claims (e.g., Navellier, supra,29 Cal.4th at pp. 89, 92–93 [breach of contract and fraud]); CKE Restaurants,
Inc. v. Moore (2008) 159 Cal.App.4th 262, 265 [declaratory relief]), including,
“in an appropriate case, a petition for mandamus” (San Ramon Valley Fire
Protection Dist. v. Contra Costa County Employees’ Retirement Assn. (2004)
125 Cal.App.4th 343, 353 (San Ramon)).
Resolution of an anti-SLAPP motion involves a two-prong inquiry. The
first prong requires that the moving defendant make a prima facie showing
that the challenged claim or claims arise from the defendant’s
constitutionally protected free speech or petition rights. (Baral v. Schnitt
(2016) 1 Cal.5th 376, 381–382, 396 (Baral).) If the moving party meets its
burden, then under the second prong of the inquiry, the burden shifts to the
plaintiff to demonstrate the merit of the claim by establishing a probability of
success. (Id. at p. 384.) If the moving party fails to satisfy the first prong,
the motion is properly denied without proceeding to second prong. (San
Ramon, supra, 125 Cal.App.4th at p. 357.) A prevailing defendant on a
special motion to strike “shall be entitled to recover” attorney fees and costs,
while a prevailing plaintiff may be entitled to attorney fees and costs if the
court finds that the anti-SLAPP motion was “frivolous or is solely intended to
cause unnecessary delay.” (§ 425.16, subd. (c)(1).)
We review an order on an anti-SLAPP motion de novo. (Soukup v. Law
Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
There is no dispute that Kaufman’s act of appealing the Planning
Commission’s decision to the Board constituted petitioning activity that
generally is protected under the anti-SLAPP law. (See § 425.16, subd. (e)(1),
(2) [any written or oral statement made before legislative, executive, or
8
judicial proceeding or in connection with issue under consideration or review
by legislative, executive, or judicial body]; Midland Pacific Building Corp. v.
King (2007) 157 Cal.App.4th 264, 272 [submissions to planning commission
and city council in course of official proceeding were protected petitioning
activities].) The dispute here concerns whether appellants’ mandamus
petition arises from Kaufman’s petitioning activity. We conclude it does not.
“A claim arises from protected activity when that activity underlies or
forms the basis for the claim. [Citations.] Critically, ‘the defendant’s act
underlying the plaintiff’s cause of action must itself have been an act in
furtherance of the right of petition or free speech.’ [Citations.] . . . . ‘[T]he
focus is on determining what ‘the defendant’s activity [is] that gives rise to
his or her asserted liability—and whether that activity constitutes protected
speech or petitioning.’ ” (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1062–1063, italics omitted (Park).) In
enacting the anti-SLAPP law, the Legislature “had in mind allegations of
protected activity that are asserted as grounds for relief. The targeted claim
must amount to a ‘cause of action’ in the sense that it is alleged to justify a
remedy.” (Baral, supra, 1 Cal.5th at p. 395.) Thus, the California Supreme
Court has instructed that “in ruling on an anti-SLAPP motion, courts should
consider the elements of the challenged claim and what actions by the
defendant supply those elements and consequently form the basis for
liability.” (Park, at p. 1063.)
Park is instructive. There, the Supreme Court held that a
discrimination claim brought by a university professor who was denied
tenure did not arise from the university’s protected statements and
communications during the official tenure process, but rather, from the
university’s unprotected act of denying tenure purportedly based on the
9
plaintiff’s national origin. (Park, supra, 2 Cal.5th at p. 1068.) Employing an
elements-focused approach, Park held that the elements of the discrimination
claim “depend not on the grievance proceeding, any statements, or any
specific evaluations of him in the tenure process, but only on the denial of
tenure itself and whether the motive for that action was impermissible.” (Id.
at pp. 1063, 1068.) The university’s protected statements “may supply
evidence of animus, but that does not convert these statements themselves
into the basis for liability.” (Id. at p. 1068.)
Also instructive is City of Cotati v. Cashman (2002) 29 Cal.4th 69 (City
of Cotati), where the Supreme Court held that a state court declaratory relief
action filed by the City of Cotati alleging a controversy with mobilehome park
owners over the constitutionality of a rent stabilization ordinance did not
arise out of protected activity even though it was filed in response to the
owners’ prior federal court declaratory relief action challenging the
constitutionality of the same ordinance. (City of Cotati, at pp. 71–72.) As the
court explained, “the mere fact an action was filed after protected activity
took place does not mean it arose from that activity. The anti-SLAPP statute
cannot be read to mean that ‘any claim asserted in an action which arguably
was filed in retaliation for the exercise of speech or petition rights falls under
section 425.16, whether or not the claim is based on conduct in exercise of
those rights.’ ” (City of Cotati, at pp. 76–77.) “[A] claim filed in response to,
or in retaliation for, threatened or actual litigation is not subject to the anti-
SLAPP statute simply because it may be viewed as an oppressive litigation
tactic. [Citation.] That a cause of action arguably may have been triggered
by protected activity does not entail that it is one arising from such.” (Id. at
p. 78.)
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Here, the petition asserts two causes of action for mandamus.
“ ‘Generally, a writ of ordinary mandate will lie when (1) there is no plain,
speedy and adequate alternative remedy, (2) the public official has a legal
and usually ministerial duty to perform and (3) the petitioner has a clear and
beneficial right to performance.’ ” (Cape Concord Homeowners Assn. v. City
of Escondido (2017) 7 Cal.App.5th 180, 189.) The factual allegations of the
petition that supply these elements are the Board’s failure to make factual
findings in support of its decision to reverse the final mitigated negative
declaration; the lack of substantial evidence supporting the Board’s decision;
and the Board’s convening of more than five hearings on the project—all acts
or omissions of the Board. Although the petition names Kaufman as a real
party in interest and alleges he filed the appeal that led to the Board’s
decision, the petition seeks no coercive relief against Kaufman, and the
allegations of his petitioning activity do not supply any of the elements of the
asserted causes of action. Accordingly, the petition does not arise from
Kaufman’s petitioning activity. (Park, supra, 2 Cal.5th at p. 1063.)
It makes no difference that Kaufman’s appeal of the final mitigated
negative declaration directly preceded or even triggered the events leading to
the petition’s causes of action against the Board. “A claim may be struck
under the anti-SLAPP statute ‘only if the speech or petitioning activity itself
is the wrong complained of, and not just evidence of liability or a step leading
to some different act for which liability is asserted.’ ” (Wilson, supra, 7
Cal.5th at p. 890.) “That a cause of action arguably may have been triggered
by protected activity does not entail that it is one arising from such.” (City of
Cotati, supra, 29 Cal.4th at p. 78.) Thus, at most, the allegation of
Kaufman’s protected activity “merely provide[s] context, without supporting a
claim for recovery,” but such contextual allegations are not subject to being
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stricken under the anti-SLAPP statute. (Baral, supra, 1 Cal.5th at p. 394;
see also Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1012
[concluding it was appropriate to consider whether the plaintiff’s “various
allegations supply the elements of a retaliation claim or merely provide
context”].)
Appellants and the City both cite Rudisill v. California Coastal Com.
(2019) 35 Cal.App.5th 1062 (Rudisill) as supporting their respective
positions. In Rudisill, the petitioners filed a mandamus petition contesting
building permit decisions by the California Coastal Commission (Coastal
Commission) and the City of Los Angeles, naming as real parties in interest
the persons and entities who had applied for the permits. (Id. at p. 1068.)
The petition alleged that the Coastal Commission violated applicable laws by
processing permits for the demolition of existing structures and for new
construction separately rather than as a single application, and that the real
parties in interest filed permits for demolition and new construction in such
close temporal proximity as to result in “ ‘a piecemealing of the demolition
and the new construction.’ ” (Ibid.)5 The trial court denied the real parties in
interest’s anti-SLAPP motion and imposed attorney fees on them for filing a
frivolous motion. (Id. at p. 1069.) On appeal from the fee award, the
appellate court reversed, concluding the anti-SLAPP motion was not frivolous
because the real parties in interest could have reasonably concluded (1) they
were “ ‘person[s]’ ” against whom a cause of action was asserted within the
meaning of the anti-SLAPP statute; and (2) the petition’s “claim for attorney
5 The petition also alleged that one of the real parties in interest
“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.’ ” (Rudisill, supra, 35
Cal.App.5th at p. 1073.)
12
fees,” which was not limited to a fee award against the government
respondents, was a claim asserted against them that arose from their
protected conduct of filing permits. (Rudisill, at pp. 1066, 1075.)
For its part, the City relies on portions of the Rudsill decision in which
the court analyzed the statutory phrase from section 425.16, subdivision
(b)(1) “[a] cause of action against a person” (not at issue here) and generally
held that the real parties in interest reasonably concluded the petition
asserted a claim against them arising from their protected conduct. But as
appellants point out, in navigating the latter issue, Rudisill first observed
that “[t]he 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 in Interest’s petitioning conduct”—i.e., their filing of
applications for building permits—because the petitioning conduct “was not a
necessary part of Petitioners’ claim that the governmental entities
themselves acted unlawfully.” (Rudisill, supra, 35 Cal.App.5th at p. 1075.)
This merits assessment, relevant to Rudisill’s evaluation of whether the anti-
SLAPP motion was frivolous, reinforces our conclusion that Kaufman’s
petitioning conduct was not a necessary part of appellants’ mandamus claims
against the City.
In a separate part of its analysis that neither the City nor Kaufman
cited in their briefs, Rudisill held that the real parties in interest reasonably
viewed the petition’s “claim for attorney fees” as a claim arising from their
petitioning activity. (Rudisill, supra, 35 Cal.App.5th at p. 1072.) On this
score, Rudisill reasoned as follows. A real party in interest who actively
participates in litigation may be considered an “opposing part[y]” for
purposes of fee shifting under section 1021.5. (Id. at pp. 1072–1073, citing
section 1021.5 and Mejia v. City of Los Angeles (2007) 156 Cal.App.4th 151,
13
160.) Because the petition at issue alleged that the real parties in interest
were “participants in regulatory missteps or outright wrongdoing” and were
therefore “at least partially responsible for the alleged improper
‘piecemealing’ of the challenged development because of the permits that they
filed,” it was reasonable for the real parties in interest to believe that the
petition asserted claims for relief against them that arose from their
protected conduct. (Rudisill, at pp. 1072–1073, 1075.)
Assuming, without deciding, that Rudisill correctly concluded the anti-
SLAPP law applies to a request for attorney fees contained in a prayer for
relief (but see Coretronic Corp. v. Cozen O’Connor (2011) 192 Cal.App.4th
1381, 1392 [anti-SLAPP statute does not apply to remedies sought in prayer
for relief]), we conclude Rudisill’s attorney fee rationale does little to assist
our analysis. First, as mentioned, neither the City nor Kaufman relied on
this portion of Rudisill in their briefs or advanced a similar argument based
on the petition at issue here. Second, our review of the petition discloses no
specific factual allegations that Kaufman was at least partially responsible
for the challenged practices of the Board that gave rise to this litigation such
that Kaufman could be liable for section 1021.5 attorney fees under Rudisill’s
rationale. Instead, the petition’s sole allegation regarding Kaufman is that
he filed the underlying administrative appeal.6
6 The petition alleges that anonymous “neighbors” engaged in “political
pressure” on the Board, made political donations to Board members, engaged
in a “campaign of opposition to the [p]roject,” and made “unsubstantiated
arguments” before the Planning Commission. But the petition does not
allege that Kaufman was one of those neighbors, and Kaufman did not argue
or submit evidence below that he understood these references to apply to him.
Kaufman cited only his administrative appeal as the protected activity
allegedly targeted by the petition. That said, we express no opinion on the
ultimate question of whether Kaufman could be liable to appellants for
section 1021.5 attorney fees at the conclusion of this litigation.
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Next, Kaufman and the City contend it was unnecessary for appellants
to name Kaufman in the petition because he is not a necessary or
indispensable party within the meaning of section 389,7 nor is he among the
persons deemed real parties in interest under certain provisions of CEQA
(see Pub. Res. Code, § 21065, subds. (b) [person receiving contracts, grants,
subsidies, loans, or other assistance from public agency], (c) [person receiving
lease, permit, license, certificate or other entitlement by public agency];
§ 21167.6.5, subd. (a) [petitioner shall name as real party in interest persons
identified by public agency in notice under § 21108 or § 21152 or, if no notice
filed, persons in § 21065, subds. (b) or (c)]). From this, Kaufman and the City
conclude that the only reason Kaufman was named a real party in interest
was because he appealed the Planning Commission’s approval of the final
mitigated negative declaration to the Board. In response, appellants argue
that (1) the City and Kaufman have already taken a contrary position that
Kaufman is an interested and/or necessary party to this case, and they are
judicially estopped from claiming otherwise; (2) Kaufman has already
demonstrated his interest in the subject matter of this case by filing a
separate court action challenging an administrative decision on the same
project; and (3) appellants offered to dismiss Kaufman as a real party in
interest if he disclaimed any interest in the proceeding and the City agreed to
adequately represent his interests, but neither Kaufman nor the City agreed
to the proposal.
7 Under section 389, a person “shall” be joined as a party in an action if
(1) complete relief cannot be accorded among those already parties in his or
her absence or (2) he or she claims an interest in the subject of the action and
is so situated that disposition in his or her absence may, as a practical
matter, impair or impede his or her ability to protect that interest, or leave
any of the parties subject to a substantial risk of multiple or inconsistent
obligations. (§ 389, subd. (a).)
15
We need not wade into this thicket. Even assuming for the sake of
argument that it was unnecessary for appellants to name Kaufman as a real
party in interest, it does not follow that their doing so subjected their petition
to application of the anti-SLAPP law. The anti-SLAPP law does not target
unnecessary claims, but those that arise from protected conduct. (§ 425.16,
subd. (b)(1); Park, supra, 2 Cal.5th at p. 1063.) Consequently, the pertinent
inquiry is whether Kaufman’s petitioning activity is itself the wrong
complained of in the petition or the basis for any relief claimed therein. (See
Wilson, supra, 7 Cal.5th at p. 884; Park, at p. 1063; Baral, supra, 1 Cal.5th at
p. 395.) As we have explained, it is not.8
8 If Kaufman is not a necessary party as he contends, then it stands to
reason there is no need for him to actively participate in the proceedings,
thereby undercutting another premise of Rudisill’s attorney fee rationale.
Although Kaufman and the City suggest that Kaufman is being forced to
defend the Board’s decision, they are incorrect. Merely naming a person as
the real party in interest in a mandamus petition does not compel that person
to defend the litigation. It simply confers certain rights, i.e., to be served
with the petition, to file an answer or other pleadings, and to be heard before
the court issues a peremptory writ. (Inland Counties Regional Center, Inc. v.
Office of Administrative Hearings (1987) 193 Cal.App.3d 700, 704; Sonoma
County Nuclear Free Zone ’86 v. Superior Court (1987) 189 Cal.App.3d 167,
173.) A real party in interest may simply decline to participate. (See, e.g.,
Bolsa Chica Land Trust v. Superior Court (1999) 71 Cal.App.4th 493, 500–
501, 517 [attorney fees awarded only against two real parties in interest who
actively participated in litigation], overruled on other grounds in Dhillon v.
John Muir Health (2017) 2 Cal.5th 1109, 1116, fn. 2; and Washburn v. City of
Berkeley (1987) 195 Cal.App.3d 578, 582, 591, 593 [awarding proportioned
attorney fees against one of nine named real parties in interest who opposed
mandamus petition against city]; see also Harris v. Alcoholic Beverage
Control Appeals Board (1966) 245 Cal.App.2d 919, 923 [real party in interest
who did not participate in trial court still had right to appeal judgment].)
16
The remaining case authorities cited by the City and Kaufman in
support of the trial court’s decision are distinguishable and do not compel a
different conclusion.
In Levy v. City of Santa Monica (2004) 114 Cal.App.4th 1252 (Levy), the
plaintiffs sought declaratory and injunctive relief and damages against the
City of Santa Monica and a city council member (collectively the city
defendants), alleging a controversy over whether a playhouse on the
plaintiffs’ property complied with building regulations. (Id. at pp. 1256–
1257.) In one of their causes of action, the plaintiffs sought a declaratory
judgment and a permanent injunction precluding the city defendants from
discussing the playhouse matter with planning department staff. (Id. at
p. 1257.) The complaint named the plaintiffs’ neighbor as a real party in
interest and alleged that she had complained to the city about the playhouse.
(Id. at p. 1256.) Levy held that the city defendants met their initial burden
under the anti-SLAPP law because the complaint arose from their
constitutionally protected speech (i.e., speaking with city planning
department employees on behalf of a constituent to inquire about the
playhouse) and sought to enjoin such communications. (Id. at pp. 1255,
1258–1259.)
Unlike the instant matter, the anti-SLAPP movant in Levy was the
government, not the real party in interest. Thus, Levy did not actually hold
that naming the neighbor as a real party in interest triggered the protections
of the anti-SLAPP law as to her. True, Levy remarked that the neighbor’s
complaint to the city was “constitutionally protected speech” (Levy, supra,
114 Cal.App.4th at pp. 1258–1259), but this statement was unnecessary to
the court’s decision that the complaint arose from the city defendants’
protected conduct. As to those parties, Levy soundly concluded the first prong
17
was met, as the plaintiffs sought a declaratory judgment and a permanent
injunction precluding city council members from their protected acts of
discussing the playhouse matter with planning department staff. (Id. at
p. 1257.) Although Levy predated Baral, these allegations met both Park’s
elements-based approach and Baral’s formulation that the allegations of
protected activity must be asserted as grounds for relief. Here, in contrast,
the petition does not meet the Park elements test or any other formulation
articulated by the California Supreme Court in recent years for determining
whether a claim arises from protected activity.
After the conclusion of briefing, Kaufman filed a notice of new
authority citing City of Oxnard v. Starr (2023) 88 Cal.App.5th 313 (Oxnard).
There, the City of Oxnard brought a declaratory relief action challenging two
initiative measures passed by the electorate. (Id. at p. 318.) The complaint
named as the sole defendant an Oxnard resident (Aaron Starr) who was a
proponent of the measures and had gathered signatures for them. (Ibid.)
Distinguishing Park, the appellate court held that the complaint arose from
Starr’s protected activity, as “Starr was sued because he is a proponent of two
initiatives. Being a proponent of an initiative is an activity that clearly
constitutes protected speech and petitioning.” (Id. at p. 321.)
Notably, Oxnard contains no discussion as to whether Starr’s advocacy
or signature gathering were, themselves, the wrongs complained of in the
complaint (Wilson, supra, 7 Cal.5th at p. 884), or whether such protected acts
supplied the elements of the declaratory relief cause of action (Park, supra, 2
Cal.5th at p. 1063). From the Oxnard opinion, it appears the government
sought to void the initiatives not because of anything Starr said or did, but on
the ground that the measures were administrative rather than legislative in
nature, and the electorate only had the power to initiate legislative acts.
18
(Oxnard, supra, 88 Cal.App.5th at pp. 320–321.) In any event, as the Oxnard
court acknowledged in its second prong analysis, the case involved unique
circumstances in which, apart from Starr, there was “no other logical
defendant” to sue for declaratory relief. (Id. at p. 323 [observing that Starr
had been conferred legal standing to defend the measures by both the
language of the measures themselves and Perry v. Brown (2011) 52 Cal.4th
1116, 1152].) Here in contrast, appellants brought a mandamus proceeding
challenging particular acts and omissions of the City, making the City the
“logical” respondent in this case. As such, all of the petition’s claims for relief
were asserted against the City. On this record, Oxnard is not controlling.
In sum, appellants’ mandamus petition does not arise from Kaufman’s
protected petitioning activity because that conduct is not the wrong
complained of; the allegations of such conduct do not supply any of the
elements of appellants’ causes of action; and the petitioning activity is not
asserted as grounds for relief. (Wilson, supra, 7 Cal.5th at p. 884; Park,
supra, 2 Cal.5th at p. 1063; Baral, supra, 1 Cal.5th at p. 395.) Thus,
Kaufman failed to carry his initial burden on the anti-SLAPP motion, and the
motion should have been denied. (San Ramon, supra, 125 Cal.App.4th at
p. 357.) Furthermore, because it was error to find that Kaufman prevailed on
his anti-SLAPP motion, the order granting Kaufman’s motion for attorney
fees must also be reversed and vacated.
B. Frivolous Anti-SLAPP Motion
Appellants contend the anti-SLAPP motion was frivolous and
sanctionable under section 425.16, subdivision (c). Because the parties
appear to agree that we may decide this issue in the first instance, we will
reach the merits. For the reasons below, we conclude the motion was not
19
frivolous or solely intended to cause unnecessary delay, and accordingly, we
deny the request for sanctions.
Section 425.16, subdivision (c)(1), provides in pertinent part that “[i]f
the court finds that a special motion to strike is frivolous or is solely intended
to cause unnecessary delay, the court shall award costs and reasonable
attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section
128.5.” “ ‘Frivolous in this context means that any reasonable attorney would
agree the motion was totally devoid of merit.’ ” (L.A. Taxi Cooperative, Inc. v.
The Independent Taxi Owners Assn. of Los Angeles (2015) 239 Cal.App.4th
918, 932; see § 128.5, subd. (b)(2) [“ ‘Frivolous’ means totally and completely
without merit or for the sole purpose of harassing an opposing party”].)
As discussed, Rudisill held on facts procedurally similar to those here
that an anti-SLAPP motion was not frivolous. Thus, a reasonable attorney
could have relied on Rudisill to conclude that Kaufman’s anti-SLAPP motion
was not totally devoid of merit. Appellants provide no evidentiary basis for
concluding the anti-SLAPP motion was brought solely for the purpose of
harassment or delay. Accordingly, we conclude the anti-SLAPP motion was
not frivolous, and we deny appellants’ request for attorney fees and costs
under section 425.16, subdivision (c).
DISPOSITION
The orders granting Kaufman’s anti-SLAPP motion and motion for
attorney fees are reversed and vacated. On remand, the trial court is
directed to enter a new order denying both motions. Appellants’ request for
attorney fees and costs under section 425.16, subdivision (c), is denied.
Appellants shall recover their costs on appeal.
20
FUJISAKI, J.
WE CONCUR:
TUCHER, P.J.
PETROU, J.
21
Trial Court: City & County of San Francisco Superior Court
Trial Judge: Hon. Rochelle C. East
Counsel: Zacks & Freedman, Ryan J. Patterson, and Emily Lowther
Brough for Plaintiff and Appellant
David Chiu, City Attorney, Kristen Ann Jensen, Audrey
Williams Pearson, and Lauren Skellen, Deputy City
Attorneys for Defendants and Respondents
Lozeau Druty, Richard Toshiyuki Drury; and Law Office of
Jonathan Weissglass, Jonathan David Weissglass for
Real Party in Interest
Durkin v. City and County of San Francisco (A162859 & A163639)
22