In Durkin v. City and County of San Francisco (2023) 90 Cal.App.5th 643, San Francisco’s typical arduous land use approval process sets the foundation for an anti-SLAAP case with interesting ramifications for neighborly disputes. A homeowner (“Appellant”) sought to remodel and expand a single-family home. The Planning Department determined the project was categorically exempt from CEQA. Neighbors appealed Planning’s determination to the Board of Supervisors (“Board”), which conditionally reversed the exemption determination, finding there was substantial evidence that the project may result in substantial adverse impacts to the historic significance of the neighboring property, which had not been adequately addressed by Planning. Appellant submitted another application and Planning issued another categorical exemption, though Planning later revised itself and rescinded the categorical exemption. Appellant appealed to the Board, which refused to hear the appeal.
The City then prepared a preliminary mitigated negative declaration (“MND”) addressing the adjacent historic resources. The neighbor whose property had been the subject of the purported historic resource impacts (“Affected Neighbor”) appealed the preliminary MND. The Planning Commission denied the appeal and adopted a final MND. Affected Neighbor appealed to the Board, which reversed the Planning Commission’s adoption of the final MND. The Board directed Planning to conduct further study on slope stability and potential impacts to the structural integrity of Affected Neighbors property and to analyze and apply appropriate mitigation measures.
Appellant Seeks Judicial Reprieve
At that point, Appellant had enough and filed a petition for writ of mandate against San Francisco. The petition named Affected Neighbor as a real party in interest. Affected Neighbor then filed an anti-SLAPP motion, contending the petition arose from his protected activity of appealing the final MND to the Board and Appellant lacked minimal merit because the Board’s decision was supported by substantial evidence. The trial court granted the anti-SLAAP motion and awarded Affected Neighbor $219,269.25 in total fees.
The Dispute Did Not Arise from Affected Neighbor’s Protected Activity
Resolution of an anti-SLAAP motion requires two inquiries: (1) the moving defendant must make a prima facie showing that the challenged claim arises from the defendant’s constitutionally protected free speech or petition rights, and, given defendant meets its burden, (2) the burden shifts to the plaintiff to establish a probability of success on the claim. (Baral v. Schnitt (2016) 1 Cal.5th 376, 381-382, 384.) The anti-SLAAP law protects “allegations of protected activity that are asserted as grounds for relief.” (Id. at p. 395, italics omitted.) Thus, the relevant inquiry is whether the moving defendant’s conduct “forms the basis for the claim” at issue. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062.)
Here, the First Appellate District for the Court of Appeal recognized that Affected Neighbor’s relevant conduct—appealing the final MND to the Board—is petitioning activity that is generally protected under the anti-SLAAP law. But in answering whether such conduct formed the basis of, or arose from, the causes of action at issue, the court answered no. The court held it was various acts or omissions by the Board, not Affected Neighbor, that formed the basis of the dispute. There were two cases of action for mandamus in the petition, which were based on the following facts: the board failed to make factual findings in support of its decision to reverse the final mitigated negative declaration, the board’s decision was not supported by substantial evidence, and the board held more than five hearings on the project in violation of the Housing Crisis Act of 2019. These, the court reasoned, were acts or omissions of the Board, not Affected Neighbor. Affected Neighbor was not a defendant, he was a real party in interest, and the court held it was irrelevant that Affected Neighbor’s petitioning activity triggered the Board’s actions that formed the basis of the petition. Thus, the court held Affected Neighbor as the moving party failed to make a prima facie showing that the challenged claim arose from the defendant’s constitutionally protected free speech or petition rights and was entitled to relief under the anti-SLAAP law.
The Anti-SLAAP Motion Was Not Frivolous
Appellant contended the anti-SLAAP motion was frivolous and sanctionable. A frivolous anti-SLAAP motion can be aimed at causing unnecessary delay or harassing a party. Frivolous in the context of an anti-SLAAP motion “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.) The court recognized the Appellants provided no evidence that the anti-SLAAP motion was filed to harass and delay. The court held the motion was not frivolous, and thus, not sanctionable.
William Abbott is Of Counsel and Garrett Bergthold is a Law Clerk at Abbott & Kindermann, Inc. For questions relating to this article or any other California land use, real estate, environmental and/or planning issues contact Abbott & Kindermann, Inc. at (916) 456-9595.
The information presented in this article should not be construed to be formal legal advice by Abbott & Kindermann, Inc., or the formation of a lawyer/client relationship. Because of the changing nature of this area of the law and the importance of individual facts, readers are encouraged to seek independent counsel for advice regarding their individual legal issues.