Court Challenge to Issuance of Permits Is Not a SLAPP

Tuesday, November 28, 2017

Page 3

Court of Appeal:

Court Challenge to Issuance of Permits Is Not a SLAPP

Justice Segal Says the Fact That Discussions Have Preceded Administrative Action Does Not Mean That the Suit Stems From Protected Activity

By a MetNews Staff Writer

Next door neighbors in the City of Rancho Palos Verdes are locked in battle over the construction of a fence between their properties. The Shahbazians reside in the home to the left; the Hessers live in the house to the right. The Court of Appeal has held that the Shahbazians’ lawsuit over the city’s issuance of permits is not subject to the anti-SLAPP statute.

A city’s administrative decisions are not subject to an anti-SLAPP motion merely because they followed official proceedings, the Court of Appeal for this district has held.

Div. Seven, in an opinion by Justice John Segal, on Wednesday affirmed Los Angeles Superior Court Judge Stuart M. Rice’s denial of the City of Rancho Palos Verdes’s special motion to strike the complaint of a husband and wife who challenged the issuance of permits to their next-door neighbors for construction of a “fence/wall.”

Opposition to the permits by Hossein and Victoria Shahbazian led to administrative appeals, including a public hearing. This entailed “protected speech,” the city argued, proclaiming that this means it has satisfied its burden under the first prong of the anti-SLAPP statute, Code of Civil Procedure §425.16, shifting the burden to the Shahbazians to show a probability that they will prevail.

Distinguishing Government’s Acts

Disagreeing, Segal wrote:

“Governments speak. They also petition. And they act in ways that are neither speaking nor petitioning. It is important to distinguish between the three, because…section 425.16…may apply to the first two, but not the third.”

He quoted the California Supreme Court as saying, earlier this year in Park v. Board of Trustees of California State University, that “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.”

The jurist went on to say:

“Even if granting or denying a building permit is an ‘issue of public interest,’ as the City contends and as required by section 425.16, subdivisions (e)(3) and (e)(4), the City has not identified any written or oral statement or writing or any conduct in furtherance of the exercise of its rights to petition or speech from which the Shahbazians’ causes of action arise….For all the City’s complaints about the Shahbazians’ ‘artful pleading,’ the City manages to avoid identifying any statement or writing on which the Shahbazians’ causes of action are based, disclosing who made or authored those statements or writings and when, and explaining how the Shahbazians’ complaint would ‘chill the valid exercise of constitutional rights.’ ”

Statute’s Second Prong

Rice, having found that the city did not meet its burden under the first prong of the statute, did not address the second prong. Segal said the city “ignores the serious implications of granting its motion,” explaining:

“If section 425.16 applied to claims based on decisions like those the Shahbazians challenge, plaintiffs bringing tort actions challenging decisions government entities make every day would have to satisfy the second step of the section 425.16 analysis before proceeding with their cases. For example, a plaintiff injured by dangerous conditions on public property after a city debated its budget and decided to reduce expenditures to maintain the property would have to demonstrate a probability of success before taking discovery….Such a burden would discourage lawsuits contesting government decisions like those in this case, a consequence the Legislature did not intend in enacting section 425.16.”

Segal said in a footnote that inasmuch as the city failed to meet its burden, there was no need to determine if the Shahbazians met theirs.

Trial Setting Scheduled

A May 5, 2014 photo shows the white lattice fence the Shahbazians had constructed shortly after moving into their Rancho Palos Verdes home. It was included in a city report.

The case continues in Los Angeles Superior Court, with a trial setting conference slated for Jan. 26. The Shahbazians are suing the city for negligence, inverse condemnation, and selective enforcement;

The defendants, Darrel and Brenda Hesser—who were not parties to the appeal—in 2014 began constructing a new fence between their property and the Shahbazians’ without a permit. The Shahbazians complained to the city, which issued an “an over-the-counter after-the-fact permit” to the Hessers with respect to the portion of the fence already constructed and a conditional permit as to the uncompleted portion, mandating certain changes to the plans.

The Hessers complained about the Shahbazians having constructed a deck without a permit; the city investigated and found it to be in code violation; and issued a permit conditioned on modifications being made; the Shahbazians are contesting the need for the changes.

Staff Report

A Community Development Department staff report to the Planning Commission in preparation for its Dec. 9, 2014 meeting contended that an right-foot height was reasonable for the portion of the fence closer to the street because it could only be viewed by the Shahbazians through their kitchen window. The report says:

“When standing at the left edge of the window looking to the right, the street of access…and the rear slope of developed residential properties across the street are visible. These are not considered protected views.”

It recommended a four-foot maximum height for the wall in the area in the back area, saying it would not significantly impair the ocean view” from the Shahbazians’ property. That was the height of a fence they had built, with consent of the then-owners of the property next door, when they moved in.

Attorney/Son Comments

A July 7, 2014 photo shows that the white fence has been removed and a new fence is being constructed.

In a Jan. 21,2015 letter to the city council, attorney Cyrus Shahbazian, then representing his parents, said:

“Initially, the dispute called for the city’s determination of an appropriate height of a fence that [spans] the entirety of the property line. Seeming relatively simple and straightforward for an experienced Planning Department in one of the most affluent, desirable cities, has turned out to be anything but.”

He complained that his parents’ “white lattice fence, which they had constructed over 20 years ago when they purchased their property, was removed after staff issued a permit to the Hessers,” that if the Planning Department had followed the municipal code, “this dispute would have long been resolved,” and his parents have been on an “emotional roller-coaster.”

The city insists that at the time the permits were issued, the Hessers had already taken down the white lattice fence, which the Shahbazians dispute.

The case is Shahbazian v. City of Rancho Palos Verdes, 2017 S.O.S. 5793.

Counsel on appeal were Edwin J. Richards, Antoinette P. Hewitt and Christopher D. Glos of Kutak Rock for the city and Joseph S. Dzida of Callanan, Rogers & Dzida for the Shahbazians.