Anselmo v. Mull
Filed 10/24/11 Anselmo v. Mull CA3
NOT TO BE PUBLISHED
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
THIRD APPELLATE DISTRICT
REVERGE ANSELMO et al.,
Plaintiffs and Respondents,
RUSS MULL et al.,
Defendants and Appellants.
(Super. Ct. No. 164445)
Plaintiff Reverge Anselmo, owner of plaintiff Seven Hills Land and Cattle Company, LLC (sometimes collectively, Anselmo), tangled with defendants County of Shasta and its Board of Supervisors (County), the Shasta County Assessor-Recorder, two county supervisors, and a county employee over the propriety of Anselmo’s actions in clearing his land. Anselmo filed an action alleging civil rights violations against defendants. Defendants filed a motion to strike pursuant to Code of Civil Procedure section 425.16.
The trial court denied the motion, finding that although defendants sustained their burden of proving the complained-of activity was within the scope of conduct subject to a special motion to strike, Anselmo had established a prima facie case showing facts that demonstrated a probability of prevailing. Defendants appeal, contending their actions do not rise to the level of constitutional violations. We shall affirm the judgment.
FACTUAL AND PROCEDURAL BACKGROUND
The following facts are taken from Anselmo’s second amended complaint and his declaration in opposition to defendants’ motion to strike. In 2007 Anselmo purchased property in Shasta County and began preparing the land for cultivation. Anselmo filed the forms necessary to have the land restricted to agricultural use under the California Land Conservation Act of 1965, also known as the Williamson Act. (Gov. Code, § 51200 et seq.)
In October 2007 an employee of the State Regional Water Quality Control Board (Board), Andrew Jensen, visited Anselmo’s property. The south fork of Bear Creek flows through the property. Jensen directed employees who were clearing weeds to stop working or face steep fines or possible arrest.
The following day, Anselmo met with Jensen on Anselmo’s property. Anselmo told Jensen he was restoring the pasture, had filed a Williamson Act contract application to keep the land agricultural, and that the prior owner had made previous improvements with the necessary approvals.
Jensen filed a report and the Board instituted proceedings against Anselmo, issuing a cleanup and abatement order. The Board later rescinded the order without any formal proceedings having taken place. Jensen published his report to the Shasta County Department of Environmental Health, the Shasta County District Attorney, and the State Department of Fish and Game.
Jensen and Anselmo later stipulated to a dismissal with prejudice of the underlying action against Jensen. As part of the dismissal, the Board agreed to distribute an internal memorandum to its regulatory staff. The memo states, in part, that “[i]f another agency informs staff of a water quality issue or participates in an inspection(s) . . . a coordinated effort should be made to determine which agency or agencies should pursue enforcement actions. . . . If formal enforcement is proposed, staff must discuss the matter with management . . . to avoid subjecting the discharger to unwarranted multiple enforcement actions or conflicting orders from more than one regulatory agency. In cases where a discharger has violated requirements of multiple agencies, management may decide that a coordinated multi-agency approach is appropriate. However, coordinating enforcement with other regulatory agencies to simply increase the regulatory burden on a discharger without increasing the possibility or likelihood of compliance is generally not supported by Regional Water Board management.” (Italics added.)
In October 2007 the County issued a “Notice of Grading Violation” to Anselmo. The County ordinance referenced establishes minimum requirements for grading, excavating, and filling in order to control erosion and sediment and to prevent damage to aquatic habitat. (Shasta County Code, § 12.12.010.) Cultivation and production of agricultural products are exempt from permit requirements. (Id. at § 12.12.050.)
Anselmo met with defendant County Supervisor Les Baugh and asked why he was being targeted for selective enforcement of County ordinances. Baugh called Anselmo the following day and told him the forces aligned against him were “overwhelming” and that there was a desire to see Anselmo “run out of the County on a rail.” In addition, Baugh stated there was “too much pressure coming down on . . . Baugh” for him to help Anselmo. According to Baugh, this “punishment” was the result of Jensen’s report.
Although Anselmo informed the County that his land was being used for agricultural purposes, the grading violation was not rescinded. Anselmo retained legal counsel and documented there was no basis for the grading violation.
In January 2008 Anselmo contacted defendant County Supervisor Glen Hawes, who visited Anselmo at his property. Hawes stated that, in his opinion, this was “not the way we like to see people welcomed to Shasta County.” Hawes offered to intervene and mentioned that he had a “mitigation bank” that might be “useful to prevent enforcement by the Shasta County officials under his supervision.” Anselmo interpreted Supervisor Hawes’s comments as an offer to help if Anselmo paid a fee to Supervisor Hawes’s company. Anselmo declined the offer.
Through January 2008 the County failed to conduct any investigation of Anselmo’s claims. As a result, Anselmo could not plant pasture grass and lost one growing season.
Anselmo’s property also contained a small winery and tasting room under construction. Anselmo obtained all required permits. Inspections revealed no violation of County ordinances.
On February 1, 2008, several County officials toured the site of the alleged grading violation on Anselmo’s land. Defendant Russ Mull, the Director of the County’s Department of Resource Management, told Anselmo, “If you don’t pay me for the grading permit here, I could hold up your C.O. [certificate of occupancy] at the winery.” Supervisors Baugh and Hawes heard Mull’s comments but did not react.
After the February meeting, defendant Mull directed his department to determine whether a winery parking lot would negatively impact a threatened plant species under California regulations. However, the species in question did not exist on Anselmo’s land.
Tom Benson, a botanist and National Resources Conservation Service engineer, notified Mull’s department that the plant species did not exist on Anselmo’s property and could not exist or survive on the small, six car, proposed parking lot site, which was weedy and littered with “junk and farming debris.” Despite Benson’s letter, Mull compelled Anselmo to retain a certified plant biologist to perform a study. The study had to wait until late spring and cost about $4,000. The report ultimately concluded the plant was not present.
At a board of supervisors meeting on December 16, 2008, the board took up Anselmo’s Williamson Act contract application. Supervisor Baugh recused himself based on pending litigation. Supervisor Hawes recused himself based on selling Anselmo farm supplies in the past. Three supervisors remained: Cibula, Hartman, and Kehoe. Cibula and Hartman voted in favor of Anselmo’s application; Kehoe dissented. The County considered this a failure to approve the application since it did not receive approval by three affirmative votes, a majority of the entire board.
Anselmo filed an action asserting violation of his civil rights against defendants and Jensen in February 2009. Jensen and defendants filed separate demurrers to the complaint, arguing Anselmo failed to allege facts sufficient to state a cause of action.
The trial court sustained the demurrers with leave to amend as to the County and Board on the grounds Anselmo did not allege a custom or practice by those entities that would subject them to liability under title 42 United States Code section 1983. As to the individual defendants, the court sustained the demurrer with leave to amend on the grounds Anselmo failed to allege the specific constitutional rights violated by defendants and the manner in which defendants violated those rights.
Anselmo filed a second amended complaint. Jensen and Anselmo stipulated to a dismissal with prejudice. In his first cause of action, Anselmo alleged defendants Mull, Hawes, Baugh, and the County violated title 42 United States Code section 1983. Anselmo alleged a second cause of action for writ of mandate and an injunction to prohibit future violations of section 1983, and “to enforce other statutory requirements.”
Defendants filed a demurrer, arguing as to the first cause of action that defendant “failed to separate out the four independent claims” and failed to state facts sufficient to constitute a cause of action. As to the second cause of action, defendants demurred pursuant to section 430.10, subdivision (e) for failure to state facts sufficient to state a cause of action. Defendants also separately demurred as to plaintiff Anselmo, asserting he could not establish a constitutional deprivation because the property was owned by plaintiff Seven Hills Land and Cattle Company, LLC.
Agreeing with defendants, the trial court sustained the demurrer with leave to amend as to plaintiff Anselmo. The court overruled the demurrer to the first cause of action, finding the complaint alleged deprivations of property and use without due process of law, deprivation of right to just compensation for property taken for public use, deprivation of the right to exercise free speech, and denial of equal protection. As to the second cause of action, the court sustained the demurrer with leave to amend, finding Anselmo did not allege facts giving rise to a mandatory duty on the part of the County to include Anselmo’s land in a Williamson Act contract.
Defendants filed a motion to strike under section 425.16. Anselmo filed a declaration in opposition to the motion.
In its tentative ruling, the trial court found the defendants sustained their burden of proving the complained-of activity was within the scope of conduct subject to a motion to strike. However, Anselmo established a prima facie case by showing facts demonstrating a probability of prevailing. According to the court: “To meet their burden, Plaintiffs produced evidence to show that Plaintiff Anselmo was issued a grading permit violation notice; he disputed the notice; he repeatedly asked for a hearing; his repeated requests for a hearing were denied; and he was unable to use his land as desired for an extended period of time due to the defendant’s refusal to file a claim, pursue criminal prosecution, or conduct a hearing.”
At oral argument following the issuance of the tentative ruling, defendants urged the court to consider each and every claim made by Anselmo, not just the stated causes of action. According to defendants, if Anselmo failed to support a claim, the trial court should strike it. Anselmo disagreed, arguing there was no authority for striking specific allegations, which could be challenged in a subsequent motion for summary judgment. The trial court took the matter under submission.
The trial court denied defendants’ motion. In its final ruling, the trial court adopted its tentative ruling. The court also found: “The admissible evidence set forth in the declaration of Reverge Anselmo meets the burden of demonstrating a probability of prevailing as to all parties and as to all causes of action. Even if the Court had the authority to strike only certain paragraphs of a complaint in a SLAPP [strategic lawsuit against public participation] special motion to strike, it declines to do so in this case because the specific paragraphs sought to be stricken are relevant factual background in support of the causes of action.”
Following entry of judgment, defendants filed a timely notice of appeal.
The parties agree we review de novo a trial court’s ruling on a motion to strike under section 425.16, the anti-SLAPP statute. “Whether section 425.16 applies and whether the plaintiff has shown a probability of prevailing are both reviewed independently on appeal.” (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999.)
Under the anti-SLAPP statute, the trial court makes a two-step determination. First, the court considers whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) The defendant bears the burden of showing the plaintiff’s cause of action arises from the defendant’s exercise of free speech or petition rights as defined in section 425.16, subdivision (e). If the defendant makes this threshold showing, the burden shifts to the plaintiff to make a prima facie showing of facts which, if credited by the trier of fact, would sustain a favorable judgment. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61; Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).)
The trial court found defendants made a prima facie showing that Anselmo’s suit arises from defendants’ protected activities under section 425.16. Our independent review of the evidence supports this determination.
Section 425.16, subdivision (e) provides: “As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law . . . .” We focus not on the form of a plaintiff’s cause of action, but on the activity of the defendants that gives rise to the asserted liability and whether that activity is protected speech. (Navellier, supra, 29 Cal.4th at p. 89.)
Anselmo’s complaint states that defendants, during the actions alleged, “were, at all relevant times, acting in official capacities in the performance of prescribed duties and within the scope of employment therefore [sic], and acting under color of law . . . .” Anselmo’s complaint centers on a triad of separate acts by defendants and communications regarding those acts: (1) issuance of the violation notice for not having a grading permit and refusal to investigate or rescind the notice; (2) refusal to approve Anselmo’s Williamson Act contract application; and (3) ordering the plant study at the winery site.
Such actions by county employees fall within the purview of section 425.16, since each of these acts is connected either to an issue under review by one of three branches of the government or to an official proceeding authorized by law. In Hansen v. Department of Corrections & Rehabilitation (2008) 171 Cal.App.4th 1537, the appellate court found statements made by personnel during an internal investigation of an employee were made in connection with an issue under consideration by an authorized official proceeding, falling within section 425.16, subdivision (e). Similarly, in Mission Oaks Ranch v. County of Santa Barbara (1998) 65 Cal.App.4th 713, the court upheld an anti-SLAPP motion against a developer who sued a county over an environmental impact report prepared by a hired consultant.
Here, the actions that form the basis for Anselmo’s complaint are actions connected to either an issue under review or to an official proceeding authorized by law. The grading permit, the Williamson Act contract, and the ordering of a plant study were all done within the scope of defendants’ duties as county employees.
The burden shifts to Anselmo to establish a prima facie showing of a probability of prevailing on the merits. We may only consider admissible evidence. Anselmo cannot rely on declarations that are not based on personal knowledge or are inadmissible as hearsay, speculation, conclusory, or otherwise based on impermissible opinion. (Taus v. Loftus (2007) 40 Cal.4th 683, 713-714.) We have reviewed Anselmo’s declaration in opposition to defendants’ motion and the trial court’s rulings on defendants’ objections to the declaration.
To establish a prima facie case under title 42 United States Code section 1983, Anselmo must establish that defendants acted under color of state law and that this conduct deprived him of rights, privileges, or immunities secured by the Constitution or laws of the United States without due process of law. When a state-ordered deprivation occurs, the deprived party must be given notice and an opportunity to be heard, either prior to or following the deprivation. (Pyne v. Meese (1985) 172 Cal.App.3d 392, 404.)
In considering Anselmo’s proffered evidence, his declaration, we do not weigh the credibility of the evidence but accept as true all evidence favorable to the plaintiff. Because a motion to strike under section 425.16 permits early intervention in suits alleging unmeritorious causes of action implicating free speech and limits the opportunity to conduct discovery, a plaintiff’s burden of establishing the probability of prevailing is not high. (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699-700.)
The admissible portions of Anselmo’s declaration establish that defendants issued a grading permit violation notice against Anselmo. Anselmo disputed the notice and repeatedly requested a hearing. These requests were denied, and defendants failed to file a claim, pursue criminal prosecution, or conduct a hearing on the matter. Anselmo approached defendants Mull, Hawes, and Baugh, to no avail. As a result, Anselmo was unable to use the land for a lengthy period of time.
Anselmo has established that defendants, acting under color of law, limited his use of his land for an extended period of time. Defendants refused his requests for notice and hearing on the matter. Thus, Anselmo has established a prima facie case under title 42 United States Code section 1983.
Defendants dispute Anselmo’s ability to establish a prima facie case of a violation of title 42 United States Code section 1983. Defendants also renew several arguments regarding the form of Anselmo’s complaint made before the trial court.
According to defendants, Anselmo’s declaration and complaint state that after the notice of violation was issued, none of the defendants took any further action to investigate, rescind, or modify the notice. Nor did defendants bring civil or criminal charges resulting from the notice. Under defendants’ analysis, “[w]ithout a formal civil or criminal proceeding, no process was owed, and further no penalty was imposed. Therefore, no procedural due process claim is stated. Mr. Anselmo’s declaration that simply states a notice of violation was issued and that he lost a growing season for hay or pasturage does not close the causational gap between the prosecutorial immune act and the alleged result.”
However, defendants’ lack of action following the issuance of the notice of violation was not exculpatory, but is the essence of Anselmo’s claim under title 42 United States Code section 1983. Defendants issued the notice and then proceeded to leave Anselmo in limbo, refusing to investigate or hold a hearing on the matter. What is the point of issuing a notice of grading violation if there is no procedural follow-through to coerce compliance or any opportunity for the recipient to be heard
Defendants also contend Anselmo was heard “at least informally” by defendants during meetings on Anselmo’s property and that “Mr. Mull simply rejected” Anselmo’s position, “a rejection that does not amount to a constitutional violation.”
To the contrary, Anselmo’s declaration states: “We asked in the letters to Mr. Mull and his Department to schedule a hearing upon the purported violation. His office refused to hold a hearing . . . . To this date, no such hearing has been held and the Notice of Violation has not been rescinded.” Refusing to hold a hearing as requested by the recipient of a notice of violation does not magically transform the refusal into a hearing or opportunity to be heard.
Defendants also challenge whether Anselmo has established any deprivation resulting from their alleged action/inaction over the notice of grading violation. According to defendants, they “have not prevented Plaintiff from doing anything with the farming property as a matter of fact.” Defendants fail to provide a citation to the record for this assertion.
In fact, Anselmo’s declaration states: “As a result of the claimed grading permit violation and the failure to convene or hold any sort of criminal, civil or administrative hearing . . . the lands of Seven Hills Land and Cattle Company could not be replanted to pasture grass and one growing season of nutritious grass and its use was lost because the property could not be replanted prior to the commencement of the 2007-8 winter. The loss of the ability to utilize this property for pasture purposes continued for six (6) months.” A landowner’s right to devote land to any legitimate use is a constitutionally protected property interest. (Harris v. County of Riverside (9th Cir. 1990) 904 F.2d 497, 503.)
In disputing whether Anselmo can establish a deprivation of an interest in property, defendants cite Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166 (Breneric) as “particularly apt” to the present case. In Breneric, the court held that a homeowner whose application to build an addition to an existing residence was denied did not state a cause of action under title 42 United States Code section 1983. The court concluded that when a government agency is vested with the discretion to grant or deny an application or permit, rejection, even if alleged to be arbitrary and capricious, cannot form the basis of a section 1983 claim because the plaintiff does not have a constitutionally protected property right to the permit. (Breneric, at p. 181, citing RRI Realty Corp. v. Inc. Village of Southampton (2d Cir. 1989) 870 F.2d 911, 915-920.)
We find Breneric inapposite. Here we consider the lack of action on an alleged violation of a County ordinance, not a request for a discretionary permit. This is not, as defendants argue, “the loss of a mere expectation of a benefit,” but a deprivation of a property interest.
Defendants on appeal, as before the trial court, argue that the very purpose of the anti-SLAPP statute mandates we “carve out and dismiss individual claims within a cause of action for which a prima facie case cannot be established.” Defendants request that we reverse as to those individual claims that are not supported by law or fact. In essence, defendants request we strike all but the claim surrounding the notice of grading violation.
In support, defendants rely on Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton (2005) 133 Cal.App.4th 658 and Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294. In Peregrine, the court considered causes of action that were based on both protected and unprotected activity. After reviewing relevant appellate authority, the court determined that where the cause of action alleges both types of activity, the cause of action will be subject to section 425.16 unless the protected conduct is “‘merely incidental’” to the unprotected conduct. Conversely, if the allegations of protected activity are more than “‘merely incidental’” or “‘collateral,’” the cause of action is subject to a motion to strike. (Peregrine, supra, 133 Cal.App.4th at p. 672.) In Fox, the court reiterated that a party cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and nonprotected activity under the label of one cause of action. (Fox, supra, 89 Cal.App.4th at p. 308.)
Here, as the trial court pointed out, the language defendants seek to strike is relevant factual background in support of the causes of action. Anselmo’s complaint is not a pleading tactic designed to subvert the purposes of SLAPP, and the court was well within its discretion to decline defendants’ request to strike.
Finally, Anselmo requests attorney fees pursuant to section 425.16, subdivision (c)(1), contending the motion filed was “solely intended to cause unnecessary delay.” We cannot characterize defendants’ actions as Anselmo suggests and find no basis on which to award attorney fees.
The judgment is affirmed. Anselmo shall recover costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
RAYE , P. J.
HULL , J.
BUTZ , J.
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