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Min v. Tanaka

Min v. Tanaka
05/10/08



Min v. Tanaka



Filed 4/30/08 Min v. Tanaka CA2/4



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS











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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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



SECOND APPELLATE DISTRICT



DIVISION FOUR



HEA SUNG MIN et al.,



Plaintiffs and Respondents,



v.



JANICE TANAKA,



Defendant and Appellant.



B202175



(Los Angeles County



Super. Ct. No. LC077492)



APPEAL from a judgment of the Superior Court of Los Angeles County, Richard B. Wolfe, Judge. Affirmed in part, reversed in part and remanded with directions.



Schreiber & Schreiber, Edwin C. Schreiber and Eric A. Schreiber, for Defendant and Appellant.



Law Offices of Jeffrey E. Lieber and Jeffrey E. Lieber, for Plaintiffs and Respondents.



In the underlying action, respondents Chris and Hea Sung Min (the Mins) and the Min Family Trust (Trust) asserted claims against appellant Janice Tanaka arising out of her construction of a driveway to her residence. The trial court granted in part and denied in part Tanakas motion under Code of Civil Procedure section 425.16 -- the law designed to curtail the filing of strategic lawsuits against public participation, often called the anti‑SLAPP law -- and denied her request for an award of attorney fees.[1] We conclude the trial court correctly ruled that three of respondents claims fall outside the scope of the anti-SLAPP law, but improperly denied the fee award.



RELEVANT FACTUAL AND PROCEDURAL BACKGROUND



On March 28, 2007, the Mins and the Trust filed the underlying action against Tanaka, F. Peter Fisher, Rod Spector, Monica and Howard Crane (the Cranes), Mary Lewis-Widman, and California Civil Design Group, Inc. (Civil Design).[2] The complaint alleges the following facts: Prior to 1988, Fisher owned three undeveloped lots identified as, respectively, parcels 1, 2, and 4 on Parcel Map 8703 filed with the Los Angeles County recorder in 1979. According to the map, parcels 1 and 2 separate parcel 4 from Sierra Creek Road, which forms the western boundary of parcels 1 and 2. The map indicates a 30 foot wide reciprocal easement across parcels 1, 2, and 4 and along Sierra Creek Road to permit ingress and egress to all three parcels.



The complaint further alleges Fisher sold parcels 1 and 2 to Spector, and in 1988, Fisher recorded a grant deed that mistakenly omitted the easement. The current owners of parcels 1, 2, and 4 are, respectively, the Trust, the Cranes and Tanaka. The Mins -- who are the trustees of the Trust -- bought parcel 1 in November 2005, and later transferred it to the Trust. After the purchase, the Mins saw Tanaka engaged in construction that blocked the Mins access to the easement. Lewis-Widman and Design Group performed civil engineering services for Tanaka in connection with this construction. When the Mins asked Tanaka to stop the construction, she refused.



The complaint contains nine causes of action. The first, second, fourth, and ninth causes of action seek, respectively, quiet title to the easement, injunctive relief regarding Tanakas activity on the easement, reformation of the 1988 grant deed to reflect the easement, and a declaration of the parties rights regarding the easement. The third cause of action for slander of title and the eighth cause of action for negligent misrepresentation allege that Tanaka, together with Lewis-Widman and Civil Design, submitted grading plans that misrepresented the scope of the easement to the Los Angeles County Department of Public Works (LACDPW), which approved the plans. The remaining claims allege, inter alia, that Tanakas acts and failures to act constituted a nuisance (fifth cause of action), that Spector, Tanaka, Lewis-Widman, and Civil Design acted negligently in connection with the easement (sixth cause of action), and that Tanaka violated Civil Code section 832, thereby causing subsidence and erosion on parcel 1 (seventh cause of action).



On May 14, 2007, Tanaka filed a motion under the anti‑SLAPP law to strike the third, fifth, sixth, seventh, and eighth causes of action. The motion argued that these claims arose from protected activity, namely, Tanakas submission of a grading plan to the LACDPW to secure authorization for her construction. Following a hearing, the trial court granted the anti-SLAPP motion with respect to the third and eighth causes of action, denied it with respect to the other claims, and declined to issue a fee award to Tanaka. This appeal followed.



DISCUSSION



Tanaka contends that the trial court erred (1) in denying her anti-SLAPP motion with respect to the fifth (nuisance), sixth (negligence), and seventh (Civ. Code, 832) causes of action, and (2) in denying her fee request.



A. Governing Principles



Under section 425.16, [w]hen a lawsuit arises out of the exercise of free speech or petition, a defendant may move to strike the complaint. [Citations.] The complaint is subject to dismissal unless the plaintiff establishes a probability that [he or she] will prevail on the claim. [Citations.] (Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 949, quoting 425.16, subd. (b).) The anti-SLAPP law encompasses actions arising from (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; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest. ( 425.16, subd. (e).)



Resolution of an anti-SLAPP motion requires the court to engage in a



two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. . . .  If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) When an anti-SLAPP motion attacks several claims within a complaint, this process is properly applied to individual claims. (Mann v. Quality Old Time Service, Ltd. (2004) 120 Cal.App.4th 90, 106-110; Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 929-935 (Kajima Engineering); Shekhter v. Financial Indemnity Co. (2001) 89 Cal.App.4th 141, 150.)



The defendant has the burden on the first issue, the threshold issue; the plaintiff has the burden on the second issue. [Citation.] . . . In terms of the so-called threshold issue, the moving defendants burden is to show the challenged cause of action arises from protected activity. [Citations.] Once it is demonstrated the cause of action arises from the exercise of the defendants free expression or petition rights, then the burden shifts to the plaintiff to show a probability of prevailing in the litigation. . . . [T]he trial court, in making its determination, considers the pleadings and affidavits stating the facts upon which the liability or defense is based. [Citations]. (Shekhter v. Financial Indemnity Co., supra, 89 Cal.App.4th at p. 151.)



Because neither party has challenged the order striking the third and eighth causes of action, our inquiry is limited to the ruling regarding the fifth, sixth, and seventh causes of action. Regarding these claims, the trial court concluded that Tanaka failed to carry her burden regarding the threshold issue, namely, whether they arose from protected activity. We review this determination de novo. (Shekhter v. Financial Indemnity Co., supra, 89 Cal.App.4th at p. 151.)



In assessing the determination, we examined the substance of the claims, rather than their form or label. (Navellier v. Sletten (2002) 29 Cal.4th 82, 92.) Generally, a plaintiff cannot avoid the application of the anti-SLAPP statute to a claim arising from protected activity merely by denominating it a garden variety tort claim or adding allegations regarding nonprotected activity. (Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 801-802 (Wang).) Conversely, a defendant in an ordinary private dispute cannot take advantage of the anti-SLAPP statute simply because the complaint contains some references to speech or petitioning activity by the defendant. [Citation.] (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.) Accordingly, it is the principal thrust or gravamen of the plaintiffs cause of action that determines whether the anti-SLAPP statute applies [citation], and . . . when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute. (Ibid.; accord
Thomas v. Quintero (2005) 126 Cal.App.4th 635, 653.)



B. Showings and Ruling



To establish that respondents fifth, sixth, and seventh causes of action arose from protected activity, Tanakas anti-SLAPP motion relied primarily on the allegations within the complaint. Each claim at issue incorporates by reference the prior allegations within the complaint, including those underlying the third cause of action for slander of title, and asserts additional allegations.



The fifth cause of action (nuisance) is pleaded against Tanaka, and states that her conduct, as alleged in paragraph 10 above, constitute[s] a nuisance . . . because it is injurious to [respondents] property and interferes with the comfortable enjoyment of [respondents] property. Paragraph 10, which is found within the claim for quiet title, alleges that Tanakas excavation and grading blocked access to respondents property and impaired drainage from it.[3] In addition to pointing to these allegations, the fifth cause of action asserts that Tanaka built a drainage swale that caused erosion on respondents property, and that Tanaka declined to abate the nuisance on her property despite notice from respondents.



The sixth cause of action (negligence), which names Tanaka, Civil Design, Lewis-Widman, and Spector as defendants, asserts that their actions, as described earlier in the complaint, were due to negligence . . . in reviewing Parcel Map 8703 and failing to understand the nature, scope and area of the easement area. In addition, it alleges that Tanaka negligently made improvements to her property that impair respondents rights to the easement and the stability of their property; and that Spector negligently built driveways to parcels 1 and 2 over land owned by Los Angeles County without appropriate permits, thereby misleading respondents and the Cranes about their rights to these driveways. The claim asserts that respondents have incurred -- or will incur -- damages to preserve the easement area, stabilize their property, and resolve the problems caused by the driveway that Spector built to their property.



The seventh cause of action, which names Tanaka as the sole defendant, asserts that she has violated Civil Code section 832, which obliges landowners who excavate their land to give appropriate notice to adjoining landowners.[4] It



alleges that as a result of Tanakas conduct, as described earlier in the complaint, respondents property has subsided and slipped and eroded.



Tanaka also submitted a declaration in support of her anti-SLAPP motion. According to Tanaka, she was unaware of any driveway easements on her property prior to purchasing it. No easement was mentioned in the chain of title, and no one had placed a driveway on her property. She hired Lewis-Widman and Civil Design to survey her property and prepare grading plans, which were filed with the LACDPW in January, 2003. After 18 months, LACDPW approved the plans (with some changes) and issued permits. Tanaka then hired contractors to engage in construction based on the permits.



Respondents opposition to the anti-SLAPP motion is supported by a declaration from Hea Sung Min. According to the declaration, Spector built narrow driveways to parcels 1 and 2 across property controlled by Los Angeles County without proper permits. Moreover, Tanaka has impeded the Mins access to the easement by constructing retaining walls, grading the easement, and erecting a locked gate across her driveway.



In denying the anti-SLAPP motion with respect to the fifth, sixth, and seventh causes of action, the trial court concluded that the claims were based on negligent construction, rather than on any communication with the County of Los Angeles.



C. Analysis



Tanaka contends that the claims in question arise from protected activity. We disagree. As explained below, the predominant thrust of these claims is independent of Tanakas filing of her grading plans, and any allegations referring to the filing are incidental to the claims.[5]



We discern dispositive guidance on the issue before us from Wang, supra, 153 Cal.App.4th 790. There, the plaintiffs owned four parcels of land within the City of San Bernardino, two of which were accessible only by a street that crossed the other two parcels. (Id. at p. 795.) The plaintiffs sold the latter parcels to the defendant, but retained the former parcels. (Ibid.) Under the sales contract, the parties agreed to cooperate in the development of all the parcels. (Ibid.) In executing the contract, the plaintiffs anticipated that the street crossing the defendants parcels would be modified in some way to permit unification of the parcels while preserving access to the plaintiffs parcels. (Ibid.) However, without the plaintiffs knowledge or consent, the defendant secured the city councils approval of a plan to unify the defendants parcels by closing the street. (Id. at pp. 796-797.)



After construction was completed in accordance with the defendants plan, the plaintiffs discovered that their properties were inaccessible, and they sued the defendant for breach of contract and fraud. (Wang, supra, 153 Cal.App.4th at pp. 797-798.) Their complaint contained allegations referring to the defendants applications for permits from city authorities, including an allegation that an application had falsely represented to the plaintiffs that the street would be realigned. (Id. at pp. 798, 809.) After the trial court granted the defendants anti-SLAPP motion, the appellate court reversed, reasoning that the claims arose from the defendants conduct in carrying out its contractual duties, rather than from its petitioning activities in pursuing the permits. (Id. at pp. 807-810.) The court stated: [A] fair reading of the allegations about the acts underlying [the] plaintiffs causes of action leads to a conclusion that plaintiffs are relying on acts that [the defendant] carried out in furtherance of its economic interests in implementing the contractual agreement . . . . The requests to governmental authorities for approval of land use planning items were made only in conjunction with the principal business transaction. The overall thrust of the complaint challenges the manner in which the parties privately dealt with one another, on both contractual and tort theories, and does not principally challenge the collateral activity of pursuing governmental approvals. [Citation.] (Id. at p. 809.)



In view of Wang, we see no error in the trial courts determination. The overall thrust of the claims for nuisance and violation of Civil Code section 832 is that Tanakas construction on the easement and her failure to give proper notice to her neighbors of her excavation work have impeded the Mins access to the easement and caused soil erosion on their property. Similarly, the claim for negligence, fairly read, alleges that Tanaka negligently designed and constructed her driveway without regard to the Mins rights to the easement or the stability of their property. As in Wang, any reference to Tanakas filing of the plans with the LACDPW is incidental to the nonprotected negligent conduct alleged in the claim. Our conclusion finds additional support in Santa Monica Rent Control Bd. v. Pearl Street, LLC (2003) 109 Cal.App.4th 1308 (Santa Monica Rent Control). There, a landlord who had withdrawn his rental units from the market notified the local rent control board in September 2000 that he intended to re-rent his units. (Id. at pp. 1313-1314.) The board responded that he was permitted to charge no more than $467 per month for the units when they were first restored to the market. (Ibid.) In 2001, the landlord submitted notices that he had rented two units for $467 per month in November 2000, and that he intended to raise the rent. (Ibid.) The board filed an action against the landlord, alleging that contrary to the representations in the notices, one unit had been occupied by the landlords mother, who had paid no rent, and the other unit had not been rented until the landlord submitted his notice seeking a rent increase. (Id. at pp. 1314-1315.) The Board sought a declaration that the maximum allowable rent for the units was $467 per month, and injunctive relief. (Id. at p. 1315.) The appellate court reversed the trial courts grant of the landlords anti-SLAPP motion, reasoning that the boards action arose from the landlords nonprotected conduct in charging an illegal rent, which had proceeded independently of the notices. (Id. at pp. 1318, 1320.) Here, as in Santa Monica Rent Control, respondents claims arise from Tanakas nonprotected construction activities that are essentially independent of the filing of the plans.



Tanaka contends that the allegation within each claim incorporating prior allegations by reference, including the allegations under the third cause of action for slander of title, establishes that the claims arise from protected activity. She is mistaken. Because the trial court struck the third cause of action, it cannot taint other causes of action. (Kajima Engineering, supra,95 Cal.App.4th at p. 931.) Moreover, as the court explained in Kajima Engineering: Complaints generally incorporate prior allegations into subsequent causes of action. [Citation.] Because of this general practice, to strike an entire complaint based simply on the incorporation of prior allegations would unnecessarily expand the anti-SLAPP statute beyond acts taken in furtherance of the right of petition or free speech. It also would prevent trial courts from striking individual causes of action pursuant to the anti-SLAPP statute. [Citations.] (Kajima Engineering, supra, 95 Cal.App.4th at pp. 931-932.)



Tanaka also contends that respondents claims necessarily target protected activity because she built the driveway in accordance with the LACDPW-approved plans. We disagree. As the court in Wang explained, because land improvement projects are routinely subject to governmental land use controls and permitting requirements, the fact that a party sought and obtained such a permit does not invariably place claims against the party within the scope of the anti-SLAPP law. (Wang, supra, 153 Cal.App.4th at pp. 807-810.) Thus, in Wang, the court held that the plaintiffs claims against the defendant for closing the road to their property did not implicate protected activity even though the defendant had acted in accordance with a city-approved plan. (Ibid.) For the reasons explained above, we reach a similar conclusion here.



Tanakas reliance on the case authority she cites in support of her contentions is misplaced. In Midland Pacific Building Corp. v. King (2007) 157 Cal.App.4th 264, 267-269, the plaintiff and the defendants entered into a contract to develop some real property. Under the contract, the defendants were obliged to secure a citys approval of a specific development plan. (Ibid.) Later, the defendants told the plaintiff that the city would accept only a second plan, and the plaintiff consented to a change in the plans. (Ibid.) When the defendants secured the citys approval to a third plan, the plaintiff sued the defendants for breach of contract and fraud, alleging that the defendants had failed to secure approval of the second plan and misrepresented the citys rejection of the first plan. (Ibid.) The appellate court held that the claims were subject to the anti-SLAPP law because obtaining governmental approval of a plan was the essence of the contract between the parties. (Id. at p. 273.) In contrast with Midland Pacific Building Corp., the submission of Tanakas plans to LACDPW is inessential to the misconduct alleged against Tanaka in the fifth, sixth, and seventh causes of action.



In Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1227, plaintiff entered into a contract with a city to pursue negotiations regarding a real estate development in the citys harbor. Subsequently, the commissioner of the harbor authority communicated with the city about a third party interested in participating in the development. (Id. at pp. 1227-1228.) When the plaintiff sued the commissioner and port authority for interference with contract and prospective economic advantage, the appellate court held that the claims were subject to the anti-SLAPP law because they arose from the commissioners communications with the city. Similarly, in Levy v. City of Santa Monica (2004) 114 Cal.App.4th 1252, 1255-1256, the plaintiffs built a large playhouse in the backyard, and their neighbor complained to a city building inspector that the playhouse violated the building code. When the city notified the plaintiffs that they must remove or modify the playhouse, the plaintiffs sought injunctive and declaratory relief against the city and the neighbor. (Ibid.) The court in Levy concluded that the claims against the city were subject to the anti-SLAPP law because they arose directly out of the neighbors and the building inspectors communications with city employees. (Ibid.) Here, unlike Tuchscher Development and Levy, respondents claims are materially independent of Tanakas communications with Los Angeles County.[6] In sum, the trial court properly denied Tanakas anti-SLAPP motion with respect to the fifth, sixth, and seventh causes of action.[7]



D. Fee Award



Tanaka contends that the trial court improperly denied her request for a fee award. Subdivision (c) of section 425.16 provides that in any action subject to the anti-SLAPP law, a prevailing defendant . . . shall be entitled to recover his or her attorneys fees and costs. In view of this provision a fee award is mandatory for any SLAPP defendant who brings a successful motion to strike. (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.) Whether a defendant has prevailed is consigned to the trial courts discretion. (Mann v. Quality Old Time Service, Inc. (2006) 139 Cal.App.4th 328, 340 (Mann).) Here, the trial court denied Tanakas fee request in its entirety because Tanakas anti-SLAPP was only partially successful.[8] In our view, this was error.



As the court explained in Mann: Given the express legislative preference for awarding fees to successful anti-SLAPP defendants, a party need not succeed in striking every challenged claim to be considered a prevailing party within the meaning of section 425.16. A contrary conclusion would require a partially prevailing defendant to bear the entire cost of the anti-SLAPP litigation at the outset of the case. This would create a strong disincentive for a defendant to bring the motion, undermining the legislative intent to encourage defendants to utilize the anti-SLAPP procedure to eliminate SLAPP claims and to discourage plaintiffs from bringing meritless SLAPP claims. [Citation.] On the other hand, there is no reason to encourage a defendant to bring an anti-SLAPP motion where the factual and legal grounds for the claims against the defendant remain the same after the resolution of the anti-SLAPP motion. [Citation.] Where the results of the motion are minimal or insignificant a court does not abuse its discretion in finding the defendant was not a prevailing party. [Citations.] (Mann, supra, 139 Cal.App.4th at pp. 339-340.) The court thus concluded that a party who partially prevails on an anti-SLAPP motion must generally be considered a prevailing party unless the results of the motion were so insignificant that the party did not achieve any practical benefit from bringing the motion. (Id. at p. 340.)



Pointing to Moran v. Endres (2006) 135 Cal.App.4th 952, respondents contend that Tanakas anti-SLAPP motion achieved insignificant results. There, the defendants filed an anti-SLAPP motion attacking a complaint containing numerous claims, but prevailed only with respect to a conspiracy claim. (Id. at pp. 953-955.) The court in Moran concluded that the defendants were not entitled to a fee award because they obtained only the most illusory victory: the conspiracy claim included no factual allegations and did not assert an independent tort. (Id. at p. 954.) The court stated: To be blunt, defendants motion accomplished nothing, except that plaintiffs were put to the cost of defending the motion. The possible recovery against defendants did not change. The factual allegations which defendants had to defend did not change. The work involved in trying the case did not change. Defendants burden concerning their jurisdictional defense did not change. The case was essentially the same after the ruling on the special motion to strike as it was before. The results of the motion were minimal and insignificant, fully justifying the courts finding that defendants should not recover fees. (Id. at p. 955.)



In contrast with the defendants in Moran, Tanaka prevailed with respect to the third and eighth causes of action, which were the sole claims seeking an award of punitive damages. By eliminating these claims, Tanaka limited respondents potential recovery, and thereby reduced the scope of discovery and the trial. Because the results of her motion cannot reasonably be viewed as insignificant or devoid of practical benefit to her, she is entitled to a fee award. The matter must therefore be remanded to the trial court for a determination of the fee award. In determining the amount of the award, the trial court may properly reduce the amount awarded to reflect Tanakas partial success on the motion. (Mann, supra, 139 Cal.App.4th at pp. 334, 342-347.)



Tanaka also requests an award of attorney fees incurred on appeal. An award under the anti-SLAPP law encompasses expenses incurred in litigating an award after the trial court has granted an anti-SLAPP motion (Ketchum v. Moses, supra, 24 Cal.4th at p. 1141), including fees incurred on appeal (see Wanland v. Law Offices of Mastagni, Holstedt & Chiurazzi (2006) 141 Cal.App.4th 15, 21). Upon remand, the trial court is directed to determine the amount of fees to be awarded to Tanaka due to her appeal, with appropriate adjustments for her partial success on appeal.




DISPOSITION



The order denying Tanakas request for a fee award is reversed, and the matter is remanded to the trial court to determine the amount of fees to be awarded in accordance with this opinion. The order denying Tanakas anti-SLAPP motion with respect to the fifth, sixth, and seventh causes of action in respondents complaint is otherwise affirmed in all respects. Tanaka shall receive an award of costs on appeal. Upon remand, the trial court is directed to adjust the amount of costs to be awarded to reflect her partial success on appeal.



NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS











MANELLA, J.



We concur:



WILLHITE, Acting P. J.



SUZUKAWA, J.



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[1] All further statutory citations are to the Code of Civil Procedure, unless otherwise indicated.



[2] The complaint also identifies the County of Los Angeles as a defendant, but does not assert any claims against it.



[3] Paragraph 10 states: After taking title to parcel 1, [respondents] began observing Tanaka excavating the easement area and constructing retaining walls



in such a manner as to completely block access to the easement area by [respondents]. In particular, the level of the easement area was excavated and lowered within approximately the first 70 feet (westerly) of the easement area bringing it substantially below the level of parcel 1. On the remaining portion of the easement area, the level of the land was raised substantially by Tanaka. Consequently, [respondents] are now physically unable to access the easement area and [respondents] property has been undermined, causing erosion of soil. In addition, the grading performed by Tanaka on the easement area has altered the natural flow of water from [respondents] property causing potential flooding and erosion of [respondents] property. (Capitalization deleted.)



[4] Civil Code section 832 provides: Each coterminous owner is entitled to the lateral and subjacent support which his land receives from the adjoining land, subject to the right of the owner of the adjoining land to make proper and usual excavations on the same for purposes of construction or improvement, under the following conditions: [] 1. Any owner of land or his lessee intending to make or to permit an excavation shall give reasonable notice to the owner or owners of adjoining lands and of buildings or other structures, stating the depth to which such excavation is intended to be made, and when the excavating will begin. [] 2. In making any excavation, ordinary care and skill shall be used, and reasonable precautions taken to sustain the adjoining land as such, without regard to any building or other structure which may be thereon, and there shall be no liability for damage done to any such building or other structure by reason of the excavation, except as otherwise provided or allowed by law. [] 3. If at any time it appears that the excavation is to be of a greater depth than are the walls or foundations of any adjoining building or other structure, and is to be so close as to endanger the building or other structure in any way, then the owner of the building or other structure must be allowed at least 30 days, if he so desires, in which to take measures to protect the same from any damage, or in which to extend the foundations thereof, and he must be given for the same purposes reasonable license to enter on the land on which the excavation is to be or is being made. [] 4. If the excavation is intended to be or is deeper than the standard depth of foundations, which depth is defined to be a depth of nine feet below the adjacent curb level, at the point where the joint property line intersects the curb and if on the land of the coterminous owner there is any building or other structure the wall or foundation of which goes to standard depth or deeper then the owner of the land on which the excavation is being made shall, if given the necessary license to enter on the adjoining land, protect the said adjoining land and any such building or other structure thereon without cost to the owner thereof, from any damage by reason of the excavation, and shall be liable to the owner of such property for any such damage, excepting only for minor settlement cracks in buildings or other structures.



[5] At respondents request, we take judicial notice of a copy of Parcel Map 8703 that is more legible than that included in Tanakas appendix on appeal. We decline to take judicial notice of a record of survey and other documents because they were not before the trial court and are irrelevant to our resolution of the issues on appeal. (Cal. Law Revision Com. com., 29B Wests Ann. Evid. Code (1995 ed.) foll. 459, p. 540 [appellate court has same discretionary powers concerning judicial notice as trial court].)



[6] Tanaka also cites Dickens v. Provident Life and Accident Ins. Co. (2004) 117 Cal.App.4th 705, and Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108. As in Tuchscher Development and Levy -- and unlike the claims before us -- the claims at issue in those cases directly targeted communications and other protected activity involving governmental entities, and thus were subject to the anti-SLAPP law. (Dickens v. Provident Life and Accident Ins. Co., supra, 117 Cal.App.4th at pp. 708-709 [malicious prosecution claim predicated on allegations that defendants supplied federal authorities with information to prompt a criminal investigation into plaintiffs conduct]; Bradbury v. Superior Court, supra, 49 Cal.App.4th at pp. 1111-1113 [defamation claim by deputy sheriff against government employees and agencies who had investigated the deputy sheriffs alleged misconduct].)



[7] Because Tanaka did not carry her initial burden to show that the claims fall within the scope of the anti-SLAPP law, we do not address her challenges to respondents claims and evidentiary showing, with the exception of her contention that the Mins lack standing to assert claims regarding the Trusts property. The adequacy of standing is a jurisdictional issue that can be raised at any time in the proceedings (Common Cause v. Board of Supervisors (1989) 49 Cal.3d 432, 438), and is ordinarily resolved on the basis of the allegations in the complaint (People v. Superior Court (Plascencia) (2002) 103 Cal.App.4th 409, 420). Here, the complaint alleges that the Mins are the trustees of the Trust, and thus pleads an adequate basis for the Mins to assert claims on the Trusts behalf. (4 Witkin, Cal. Procedure (4th ed. 1997) Pleading, 118, pp. 177-178.)



[8] The trial courts order states: There is no prevailing party because [Tanakas] anti-SLAPP motion was partly successful and partly unsuccessful.





Description In the underlying action, respondents Chris and Hea Sung Min (the Mins) and the Min Family Trust (Trust) asserted claims against appellant Janice Tanaka arising out of her construction of a driveway to her residence. The trial court granted in part and denied in part Tanakas motion under Code of Civil Procedure section 425.16 -- the law designed to curtail the filing of strategic lawsuits against public participation, often called the anti SLAPP law -- and denied her request for an award of attorney fees. Court conclude the trial court correctly ruled that three of respondents claims fall outside the scope of the anti-SLAPP law, but improperly denied the fee award.

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