Hossein Shahbazian v. City of Rancho Palos verdes

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 Code of Civil Procedure

section 425.16 (section 425.16) may apply to the first two, but not

the third.

This case concerns whether the City of Rancho Palos

Verdes properly issued a permit for a fence separating two

neighbors. Hossein and Victoria Shahbazian challenged the

permit by suing the City. The Shahbazians alleged the City

violated certain ordinances and selectively applied others in

issuing the permit for the fence while denying a permit for a deck

the Shahbazians had built. The City filed a special motion to

strike under section 425.16, arguing the Shahbazians’ complaint

targeted “protected speech” because the City’s decisions followed

official government proceedings. The trial court denied the

motion, and the City appealed.

We conclude section 425.16 does not protect a

governmental entity’s decisions to issue or deny permits, and we

agree with the trial court that granting a special motion to strike

in these circumstances would chill citizens’ attempts to challenge

government action. Therefore, we affirm.

3

FACTUAL AND PROCEDURAL BACKGROUND

A. The Shahbazians Contest Their Neighbors’ New Fence

The Shahbazians live next door to Darrel and Brenda

Hesser.1 A retaining wall topped by a lattice wood fence

originally separated the two properties. In 2014 the Hessers

partially constructed a new fence and allegedly “shaved” the

retaining wall without the approval of the Shahbazians or a

permit from the City. (See Rancho Palos Verdes Mun. Code,

§ 17.76.030.) The Shahbazians alleged the alterations to the

fence and the wall created drainage problems, interfered with

their ocean view, and reduced the value of their property.

The Shahbazians complained to the City’s community

development department, whose code enforcement division

initiated an investigation. After consulting with the planning

and zoning division, the code enforcement division concluded the

portions of the fence the Hessers had already built complied with

the municipal code. The City issued what it called “an over-thecounter

after-the-fact permit” for the “already-built” portion of

the fence.2

The planning and zoning division concluded the portion of

the fence not yet built would comply with the municipal code if

modified in certain respects, and it issued a conditional permit



1 The Hessers, although defendants in this action, are not

parties to this appeal.

2 The City subsequently revoked that permit and reissued it

after rectifying what the City called an “administrative issue.”

The Shahbazians argue the scope of the mistake was far more

significant, but resolution of that factual dispute is not necessary

to this appeal.

4

for that portion of the fence. The Shahbazians appealed that

decision to the planning commission. Following a noticed public

hearing, the planning commission approved the permit. The

Shahbazians appealed that decision to the city council. Following

another noticed public hearing, the city council remanded the

matter to the planning commission with instructions to consider

whether the fence as a whole complied with the municipal code.

Meanwhile, the Shahbazians appealed the “over-thecounter

after-the-fact permit” for the portion of the fence the

Hessers had already built. Following another noticed public

hearing, the planning commission approved the permit with

modifications, effectively approving the entire fence. The

Shahbazians appealed that decision to the city council, which

affirmed the decision of the planning commission. According to

the City, the Hessers complied with the required modifications

when they completed the fence.

The Shahbazians’ complaints about the Hessers’ fence

apparently prompted the Hessers to complain to the City about a

deck the Shahbazians had built without a permit. The City

investigated the deck and concluded it did not comply with the

municipal code. The City nevertheless conditionally approved a

permit pending certain modifications to the deck. The City

contends the Shahbazians did not make those modifications, and

the City did not issue a final permit for the deck.

B. The Shahbazians Sue the City

The Shahbazians sued the City and the Hessers. The

operative first amended complaint alleged causes of action

against the City for negligence, inverse condemnation, and

selective enforcement. In connection with the cause of action for

negligence, the Shahbazians alleged, among other things, the

5

City had a “mandatory duty” to refuse to issue any permit

without first giving the Shahbazians prior notice and an

“opportunity to be heard.” The Shahbazians claimed the City

“violated its own ordinances by permitting the Hessers to alter

the [fence] without required permits and without prior notice and

hearing as required by law.” The Shahbazians alleged the City

acted unreasonably by failing to require the Hessers to repair

damage to the Shahbazians’ property before issuing the permit.

In connection with the cause of action for inverse

condemnation, the Shahbazians alleged the City was jointly and

severally liable with the Hessers because the City “conducted

itself . . . to protect itself from suit and liability rather than in the

objective performance of its public duties.” In connection with

the cause of action for selective enforcement, the Shahbazians

alleged “the City acted arbitrarily and engaged in illegal selective

enforcement by refusing to strictly enforce and follow its own

ordinances with respect to the Hessers while having previously

and at the same time strictly enforced such ordinances as to the

Shahbazians.” The Shahbazians alleged that “at least one motive

for the City’s arbitrary conduct and selective enforcement was the

improper and illegal motive of discrimination against persons of

Middle Eastern ethnicity and descent.”

C. The City Files a Special Motion To Strike

The City demurred and filed a special motion to strike

under section 425.16. On the first step of the two-step analysis

under section 425.16 (see Baral v. Schnitt (2016) 1 Cal.5th 376,

384 (Baral)), the City argued the Shahbazians’ causes of action

arose from (1) speech made in connection with an issue under

consideration or review by the City; (2) speech made in a place

open to the public or a public forum in connection with an issue of

6

public interest; and (3) speech made in furtherance of the exercise

of the rights to petition and free speech in connection with a

public issue or an issue of public interest. (See § 425.16, subds.

(e)(2)-(e)(4).) The City argued “all oral or written statements

purportedly supporting [the Shahbazians’] causes of action

against the City were made in connection with the proceedings of

. . . official government bodies.” The City contended the

Shahbazians “do not attack the validity of the ordinances

themselves, but claim that the oral and written statements and

writings finding them (or their neighbor) subject to the

ordinances are improper.” On the second step of the section

425.16 analysis, the City argued the Shahbazians could not

prevail on the merits because the City could not be liable under a

common law theory of negligence, and the Shahbazians failed to

state causes of action for breach of a mandatory duty, inverse

condemnation, and selective enforcement.

In their opposition to the special motion to strike, the

Shahbazians argued their causes of action arose from violations

of City ordinances, not protected speech or petitioning activity.

The Shahbazians identified alleged violations of several

municipal code sections, as well as recorded covenants,

conditions, and restrictions governing the properties. The

Shahbazians argued that, to the extent the City engaged in

protected speech or conduct in connection with the issuance of a

permit to the Hessers, the speech or conduct was merely

“incidental to the wrongdoing underlying [their] case.” The

Shahbazians also argued they had shown their causes of action

had minimal merit, as required by the second step of the section

425.16 analysis.

The trial court denied the special motion to strike,

concluding, in connection with the first step, the City failed to

7

show the Shahbazians’ causes of action arose from protected

speech or activity. Thus, the trial court did not reach the second

step. (See City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80-81

(City of Cotati).) The trial court also sustained the City’s

demurrer with leave to amend. The City timely appealed from

the order denying its special motion to strike.3

DISCUSSION

A. Section 425.16

“A strategic lawsuit against public participation, or SLAPP

suit, is one which ‘seeks to chill or punish a party’s exercise of

constitutional rights to free speech and to petition the

government for redress of grievances.’” (Contreras v. Dowling

(2016) 5 Cal.App.5th 394, 404 (Contreras); see Rusheen v. Cohen

(2006) 37 Cal.4th 1048, 1055 (Rusheen).) “Section

425.16 . . . provides a procedural remedy to dispose of lawsuits

that are brought to chill the valid exercise of constitutional

rights.”

4 (Contreras, at p. 404; see Rusheen, at p. 1055.) “The



3 An order denying a special motion to strike under section

425.16 is appealable. (Code Civ. Proc., §§ 425.16, subd. (i), 904.1,

subd. (a)(13); Summit Bank v. Rogers (2012) 206 Cal.App.4th 669,

681, fn. 5.) An order sustaining a demurrer with leave to amend

is not. (Sabek, Inc. v. Engelhard Corp. (1998) 65 Cal.App.4th

992, 1000.)

4 Section 425.16, subdivision (b)(1), provides: “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 shall be subject to a special motion

8

statute ‘authorizes a defendant to file a special motion to strike

any cause of action arising from an act in furtherance of the

defendant’s constitutional right of petition or free speech in

connection with a public issue.’” (Contreras, at p. 404; see Haight

Ashbury Free Clinics, Inc. v. Happening House Ventures (2010)

184 Cal.App.4th 1539, 1546-1547.)

In ruling on a motion under section 425.16, the trial court

engages in a two-step process: “First, the defendant must

establish that the challenged claim arises from activity protected

by section 425.16.” (Baral, supra, 1 Cal.5th at p. 384; see

Contreras, supra, 5 Cal.App.5th at pp. 404-405.) If the moving

party fails to demonstrate that any of the challenged causes of

action arise from protected activity, the court denies the motion.

(City of Cotati, supra, 29 Cal.4th at pp. 80-81; Trilogy at Glen Ivy

Maintenance Assn. v. Shea Homes, Inc. (2015) 235 Cal.App.4th

361, 367.) If the defendant makes the required showing at the

first step, “the burden shifts to the plaintiff to demonstrate the

merit of the claim by establishing a probability of success.”

(Baral, at p. 384.) We review de novo an order granting or

denying a special motion to strike under section 425.16. (Park v.

Board of Trustees of California State University (2017) 2 Cal.5th

1057, 1067 (Park); Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)



to strike, unless the court determines that the plaintiff has

established that there is a probability that the plaintiff will

prevail on the claim.”

9

B. The Complaint Does Not Arise from Protected Activity

1. The “Arising From” Requirement and

Government Action

“‘The only means specified in section 425.16 by which a

moving defendant can satisfy the [“arising from”] requirement is

to demonstrate that the defendant’s conduct by which plaintiff

claims to have been injured falls within one of the four categories

described in subdivision (e).’” (Park, supra, 2 Cal.5th at p. 1063;

accord, Equilon Enterprises v. Consumer Cause, Inc. (2002) 29

Cal.4th 53, 66; Contreras, supra, 5 Cal.App.5th at pp. 404-405.)

Those categories are (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; and (4) 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).)

“[I]n ruling on [a special motion to strike], courts should

consider the elements of the challenged claim and what actions

by defendant supply those elements and consequently form the

basis for liability.” (Park, supra, 2 Cal.5th at p. 1063; see Baral,

supra, 1 Cal.5th at p. 396 [a defendant filing a special motion to

strike must identify all allegations of protected activity and show

the challenged cause of action arises from that protected

activity].) “Critically, ‘the defendant’s act underlying the

10

plaintiff’s cause of action must itself have been an act in

furtherance of the right of petition or free speech.’” (Park, at

p. 1063.) “‘[T]he mere fact that an action was filed after protected

activity took place does not mean the action arose from that

activity for the purposes of [section 425.16].’” (Park, at p. 1063;

see City of Cotati, supra, 29 Cal.4th at p. 78 [a lawsuit may be in

“response to or in retaliation for” protected activity without

arising from it].) “Instead, the 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, at p. 1063; accord, Navellier v. Sletten

(2002) 29 Cal.4th 82, 92.)

The Supreme Court recently considered the “arising from”

requirement in the context of government decisionmaking.5 In

Park, supra, 2 Cal.5th 1057, an assistant college professor sued a

university for employment discrimination after the university

denied him tenure. (Id. at p. 1061.) The university argued the

plaintiff’s “suit arose from its decision to deny him tenure and the

numerous communications that led up to and followed that

decision, [and] these communications were protected activities.”

(Ibid.) In rejecting that argument, the Supreme Court held: “[A]

claim is not subject to a motion to strike [under section 425.16]



5 In Vargas v. City of Salinas (2009) 46 Cal.4th 1 the

Supreme Court, without deciding whether “the California

Constitution directly protects government speech in general or

[certain] types of communications of a municipality,” stated that

“section 425.16 extends to statements and writings of

governmental entities and public officials on matters of public

interest and concern that would fall within the scope of the

statute if such statements were made by a private individual or

entity.” (Vargas, at p. 17.)

11

simply because it contests an action or decision that was arrived

at following speech or petitioning activity, or that was thereafter

communicated by means of speech or petitioning activity.

Rather, a claim may be struck 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.” (Park, at p. 1060.) The Supreme Court explained

that the plaintiff’s claim for employment discrimination

“depend[ed] 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. The tenure decision may have been

communicated orally or in writing, but that communication does

not convert [the plaintiff’s] suit to one arising from such speech.”

(Id. at p. 1068.)

Park cited with approval several Court of Appeal decisions,

including San Ramon Valley Fire Protection Dist. v. Contra Costa

County Employees’ Retirement Assn. (2004) 125 Cal.App.4th 343

(San Ramon). (Park, supra, 2 Cal.5th at pp. 1064-1065.) In San

Ramon, a fire protection district sued a county retirement board

over the board’s decision to impose new pension contribution

requirements. (San Ramon, at p. 348.) The board filed a special

motion to strike under section 425.16 and argued the suit arose

out of the deliberations and votes that produced the decision.

The court affirmed an order denying the motion, distinguishing

between the board’s allegedly wrongful act (the decision setting

contribution levels) and the preceding deliberations and vote:

“[T]he fact that a complaint alleges that a public entity’s action

was taken as a result of a majority vote of its constituent

members does not mean that the litigation challenging that

action arose from protected activity, where the measure itself is

12

not an exercise of free speech or petition. Acts of governance

mandated by law, without more, are not exercises of free speech

or petition.” (San Ramon, at p. 354.) The court held “the

litigation [did] not arise from the speech or votes of public

officials, but rather from an action taken by the public entity

administered by those officials.” (Id. at p. 347; see also

Schwarzburd v. Kensington Police Protection & Community

Services District Board (2014) 225 Cal.App.4th 1345, 1355

[distinguishing between actions against individuals based on

“how [those individuals] voted and expressed themselves at [an

official proceeding]” and actions against government entities

based on “‘collective action’”]; cf. City of Montebello v.

Vasquez (2016) 1 Cal.5th 409, 426 [“votes taken after a public

hearing qualify as acts in furtherance of constitutionally

protected activity,” and “elected officials may assert the

protection of section 425.16 when sued over how they voted

without chilling citizens’ exercise of their right to challenge

government action by suing the public entity itself”].)

Park also cited with approval Graffiti Protective Coatings,

Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207 (Graffiti

Protective Coatings). (Park, supra, 2 Cal.5th at p. 1065.) In

Graffiti Protective Coatings the plaintiff sued a city after the city

terminated the plaintiff’s contract to clean bus stations and

awarded a new contract to the plaintiff’s competitor without

going through the required competitive bidding process. (Graffiti

Protective Coatings, at p. 1211.) The city moved to strike the

complaint under section 425.16 and argued that the plaintiff’s

claims were based on communications with the interested parties

and that the maintenance of the city’s bus stops was an issue of

public interest. (Id. at p. 1213.) After the trial court granted the

city’s motion, the Court of Appeal reversed: “The

13

communications [among the parties] assist in telling the story.

But [the plaintiff’s] claims against [the city] are not based on

those communications. Rather, liability is premised on state and

municipal laws requiring [the city] to award certain contracts

through competitive bidding.” (Id. at p. 1215; see Park, supra,

2 Cal.5th at p. 1065 [“[w]hile communications by the city

preceding its decision might be helpful in establishing what

events led to the change in contract, the contractor’s claims were

not based on them, but on the award of a new contract in alleged

violation of laws regulating competitive bidding”].)

Finally, Park cited Nam v. Regents of University of

California (2016) 1 Cal.App.5th 1176 (Nam), in which the

plaintiff, a medical resident at a university medical center, sued

the university for sexual harassment, discrimination, and

wrongful termination. (Park, supra, 2 Cal.5th at p. 1066.) The

university argued the plaintiff’s claims arose from complaints

communicated to the university about the resident, written

warnings the university issued to her, an investigation conducted

by the university, and the written notice informing the plaintiff of

her termination. (Nam, at p. 1186.) The court in Nam held the

plaintiff’s claims did not arise from those communications, but

instead arose from the alleged retaliatory conduct of terminating

her. (Id. at p. 1192.) The Supreme Court in Park observed:

“Nam illustrates that while discrimination may be carried out by

means of speech, such as a written notice of termination, and an

illicit animus may be evidenced by speech, neither circumstance

transforms a discrimination suit to one arising from speech.

What gives rise to liability is not that the defendant spoke, but

that the defendant denied the plaintiff a benefit, or subjected the

plaintiff to a burden, on account of a discriminatory or retaliatory

consideration.” (Park, at p. 1066.)

14

Park and the decisions the Supreme Court discussed in

Park recognized that a contrary reading of the “arising from”

requirement would have “significant impacts the Legislature

likely never intended.” (Park, supra, 2 Cal.5th at p. 1067; see

Nam, supra, 1 Cal.App.5th at p. 1189; Graffiti Protective

Coatings, supra, 181 Cal.App.4th at pp. 1124-1125; San Ramon,

supra, 125 Cal.App.4th at p. 358.) “Government decisions are

frequently ‘arrived at after discussion and a vote at a public

meeting.’” (Park, at p. 1067; see San Ramon, at p. 358.) “Failing

to distinguish between the challenged decisions and the speech

that leads to them or thereafter expresses them ‘would chill the

resort to legitimate judicial oversight over potential abuses of

legislative and administrative power.’” (Park, at p. 1067; see

Nam, at p. 1189 [applying section 425.16 to a cause of action for

harassment, discrimination, or retaliation “is at odds with the

purpose of [the statute], which was designed to ferret out

meritless lawsuits intended to quell the free exercise of First

Amendment rights, not to burden victims of discrimination and

retaliation with an earlier and heavier burden of proof than other

civil litigants and dissuade the exercise of their right to petition

for fear of an onerous attorney fee award”]; Graffiti Protective

Coatings, at p. 1211 [applying section 425.16 to causes of action

challenging the validity or application of government action or

decisions “would discourage attempts to compel public entities to

comply with the law”]; San Ramon, supra, 125 Cal.App.4th at

p. 357 [applying section 425.16 to a mandamus action challenging

a government decision “would significantly burden the petition

rights of those seeking mandamus review for most types of

governmental action”]; see also USA Waste of California, Inc. v.

City of Irwindale (2010) 184 Cal.App.4th 53, 65 [making

“[a]ctions to enforce, interpret or invalidate governmental

15

laws . . . subject to being stricken under [section 425.16]” would

significantly burden “efforts to challenge governmental action”].)

2. The Shahbazians’ Causes of Action Arise from

the City’s Decisions To Grant and Deny

Building Permits, Not from Protected Activity

The City contends the Shahbazians’ causes of action arise

from speech or conduct protected by section 425.16, subdivisions

(e)(2), (e)(3), and (e)(4). Therefore, the City must show the

Shahbazians’ causes of action arise from a 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; from a

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; or from other conduct in furtherance of the exercise of

the rights of petition or of free speech in connection with a public

issue or an issue of public interest.

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. The City

variously describes the targets of the Shahbazians’ claims as “the

investigation and deliberation of permit issues in and related to

official proceedings,” “the City’s investigation and expressive

statements, writings and conduct in the application of

[municipal] ordinances,” “how the [City] expressed [itself] in

purportedly favoring the Hessers over [the Shahbazians],” “the

City’s expressive communicative conduct in denying [the

16

Shahbazians’] grievances while purportedly enforcing the

Hessers’ grievances against [the Shahbazians],” and the City’s

“public participation with [the Shahbazians] and the Hessers

involving disputes over ocean views and privacy rights.” 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.” (See Contreras, supra,

5 Cal.App.5th at p. 404; see Rusheen, supra, 37 Cal.4th at

p. 1055.)6

The reason the City cannot be any more specific is that the

Shahbazians’ causes of action do not arise from any statements,

writings, or conduct in furtherance of the City’s rights to petition

or speech. Instead, they arise from the City’s decisions to grant

the Hessers a permit for their wall (allegedly in violation of local

laws) and to deny the Shabazians a permit for their deck. (See

Graffiti Protective Coatings, supra, 181 Cal.App.4th at p. 1218

[plaintiff’s claims were based on violations of state and municipal

laws, not on any statement or writing or conduct in furtherance

of the defendants’ right of petition or free speech].) While the

City’s decisions followed public hearings at which members of the

city council and City employees undoubtedly exercised their free

speech rights, the Shahbazians’ causes of action do not arise from



6 In its reply brief the City cites several cases for the

proposition that a cause of action “based on the submission of site

maps and planning documentation to a city in connection with a

permitting process” satisfies the first step of the section 425.16

analysis. The City, however, has not identified any such

submissions giving rise to the Shahbazians’ causes of action.

17

(or even allude to) that speech. (See Park, supra, 2 Cal.5th at

p. 1060.) Moreover, the elements of the Shahbazians’ causes of

action—negligence, inverse condemnation, and selective

enforcement—do not require the Shahbazians to prove the City

made any statement or writing or otherwise took action to

further the City’s exercise of its constitutional rights to free

speech and to petition. (See id. at p. 1063.)

The authorities cited by the City do not support a different

conclusion. The City argues the circumstances here are more like

those in City of Costa Mesa v. D’Alessio Investments, LLC (2013)

214 Cal.App.4th 358 (City of Costa Mesa) and Levy v. City of

Santa Monica (2004) 114 Cal.App.4th 1252 (Levy) than those in

San Ramon and Graffiti Protective Coatings. Neither City of

Costa Mesa nor Levy supports the City’s position.

In City of Costa Mesa, supra, 214 Cal.App.4th 358 a city

sued a commercial landlord for injunctive relief to abate a public

nuisance and refused to issue any new business licenses for the

property until the landlord complied. (Id. at pp. 365-366.) The

landlord filed a cross-complaint for slander, trade libel, and

interference with prospective economic advantage, alleging city

employees made certain statements to the landlord’s prospective

tenants and potential contractors about illegal activity at the

landlord’s property, including that the landlord “‘ha[d] been

convicted of prostitution and drug dealing that occurred at the

Property’” and that “‘the entire building’” would be “‘shut down

because of illegal activity that [was] conducted there.’” (Id. at

pp. 365-367.) On appeal from an order granting a special motion

to strike under section 425.16, the court held the landlord’s

causes of action arose from “oral statements ‘made in connection

with an issue under consideration or review by

18

a[n] . . . executive . . . body’” under section 425.16, subdivision

(e)(2). (City of Costa Mesa, at p. 372.)

The City appears to argue City of Costa Mesa is similar to

this case because both cases involved statements made by

employees of a city’s planning and code enforcement departments

related to the investigation of a property. In contrast to the

statements alleged in the landlord’s complaint in City of Costa

Mesa, however, the City has not identified any specific

statements underlying the Shahbazians’ causes of action. The

City suggests statements “must naturally have occurred” in

connection with its investigation of the permits at issue, but

those (unidentified) statements are not the “principal thrust” of

the Shahbazians’ causes of action.

7 In City of Costa Mesa the

alleged causes of action “would have no basis in the absence of”

the protected statements. (See Contreras, supra, 5 Cal.App.5th

at p. 412.) Here, the statements the City contends must have

been made were, at most, incidental to the conduct giving rise to

the complaint and are not subject to section 425.16. (See Baral,

supra, 1 Cal.5th at p. 394 [“[a]ssertions that are ‘merely

incidental’ or ‘collateral’ are not subject to section 425.16”]; Rand



7 In Park the Supreme Court acknowledged but did not apply

the “principal thrust or gravamen” test for determining whether

a cause of action arises from protected activity under section

425.16. (See Park, supra, 2 Cal.5th at pp. 1061.) Instead, in

analyzing whether “the relationship a defendant must show

between a plaintiff’s claim and the sorts of speech on public

matters the Legislature intended to protect” under section 425.16

(Park, at p. 1062), the Supreme Court considered “the elements of

the challenged claim and what actions by defendant supply those

elements and consequently form the basis for liability” (id. at

p. 1063). Under either test the City has failed to demonstrate the

Shahbazians’ causes of action arise from protected activity.

19

Resources, LLC v. City of Carson (2016) 247 Cal.App.4th 1080,

1093 [“[t]he mere fact that some speech occurred in the course of

the asserted breach [of contract] does not mean that the cause

of action arises out of protected free speech”], review granted

Sept. 21, 2016, S235735.)

Moreover, City of Costa Mesa actually supports

distinguishing between the kinds of governmental decisions the

Shahbazians challenge and statements that may have led to

those decisions, which the Shahbazians do not challenge. (See

Park, supra, 2 Cal.5th at p. 1060; Bonni v. St. Joseph Health

System (2017) 13 Cal.App.5th 851, 862-863 [“merely because a

process is communicative does not mean that plaintiff’s claim

necessarily arises from those communications”].) The court in

City of Costa Mesa noted the landlord sued the city “for relief

based on the oral statements [and did] not challeng[e] the

underlying acts (the refusal of the [c]ity and its employees to

issue licenses).” (City of Costa Mesa, supra, 214 Cal.App.4th

at p. 375, italics added.) This case is the exact opposite of City of

Costa Mesa: The Shahbazians sued the City based on the City’s

underlying acts and not its oral statements or other expressive

conduct.

In Levy, supra, 114 Cal.App.4th 1252 the plaintiffs’

neighbor complained to a city council member about a playhouse

the plaintiffs built in their backyard. (Id. at p. 1255.) The

councilmember sent an inquiry to the director of planning and

community development and the city manager suggesting the

playhouse did not comply with certain code requirements. (Id. at

p. 1256.) Several months later the city’s building inspector sent

the plaintiffs a notice of violation directing them to remove or

make certain modifications to the playhouse. (Ibid.) The

plaintiffs sued and sought a declaration that the city charter

20

precluded city council members “from engaging in acts designed

to influence [c]ity administrative staff . . . with respect to zoning

enforcement matters such as the [plaintiffs’] playhouse.” (Id. at

p. 1257, italics omitted.) In other words, the plaintiffs challenged

the legality of the councilmember’s communications with city

employees. Reversing an order denying the city’s special motion

to strike under section 425.16, the court in Levy held that the

neighbor’s “act of contacting her representative and [the

councilmember’s] act of contacting planning staff [were] petitions

for grievances against the government protected by the First

Amendment.” (Levy, at p. 1258.)

The City argues Levy is analogous to this case because “the

Hessers’ and [Shahbazians’] cross petitioning rights inseparably

involve the City.” That may be, but the Shahbazians do not

allege any cause of action implicating any party’s right to petition

for grievances. Indeed, the Shahbazians allege they were denied

the opportunity to petition the City when the City issued the

Hessers the initial “after-the-fact” permit without giving the

Shahbazians an “opportunity to be heard.” Unlike Levy, the

causes of action alleged here do not attempt to chill speech or

petition rights of the City or any of its representatives.

Finally, the City cites Kibler v. Northern Inyo County Local

Hospital Dist. (2006) 39 Cal.4th 192 (Kibler) and Vergos v.

McNeal (2007) 146 Cal.App.4th 1387 (Vergos) for the proposition

that, because a governmental entity’s decision “is an integral part

of the official proceedings,” the act of issuing a decision is

protected activity under section 425.16, subdivision (e)(2). (See

§ 425.16, subd. (e)(2) [protected activity includes statements

made in connection with an issue under consideration or review

by an “official proceeding authorized by law”].) The Supreme

Court, however, rejected this argument in Park, noting that

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courts had “overread” Kibler. (Park, supra, 2 Cal.5th at p. 1070.)

The Supreme Court stated, “Kibler does not stand for the

proposition that . . . decisions reached in a[n] [official proceeding],

as opposed to statements in connection with that [proceeding],

are protected.” (Park, at p. 1070.) Similarly, with regard to

Vergos, the Supreme Court in Park stated, “Vergos does not stand

for the proposition that a suit alleging an entity has made a

discriminatory decision necessarily also arises from any

statements by individuals that may precede that decision, or from

the subsequent communication of the decision that may follow.”

(Park, at p. 1070.) The Supreme Court explained that “none of

the core purposes the Legislature sought to promote when

enacting [section 425.16] are furthered by ignoring the distinction

between a government entity’s decisions and the individual

speech or petitioning that may contribute to them.” (Park, at

p. 1071.)8

The City’s attempts to distinguish Graffiti Protective

Coatings and San Ramon also fail. The City argues those cases

challenged the validity of laws “on which governmental activity

occurred,” whereas “this tort lawsuit is not about determining the

legality of the ordinances, but rather about obtainable damages.”

The City misreads Graffiti Protective Coatings and San Ramon.

In both cases the plaintiffs (like the Shahbazians) challenged the

legality of the defendants’ actions without challenging the

validity of applicable laws. (See Graffiti Protective Coatings,



8 Park also disapproved Tuszynska v. Cunningham (2011)

199 Cal.App.4th 257 to the extent that decision “presupposes

courts deciding anti-SLAPP motions cannot separate an entity’s

decisions from the communications that give rise to them, or that

they give rise to.” (Park, supra, 2 Cal.5th at p. 1071.)

22

supra, 181 Cal.App.4th at pp. 1212-1213 [the plaintiff’s cause of

action “sought to compel the City to award the bus stop

maintenance contract through competitive bidding” as required

by the Public Contract Code and the city’s municipal code]; San

Ramon, supra, 125 Cal.App.4th at p. 348 [the plaintiff alleged the

defendants “‘fail[ed] to comply with the mandatory duties set

forth in provisions of [the applicable Government Code

sections]’”].) Moreover, the propriety of a special motion to strike

under section 425.16 does not depend on whether the plaintiff

challenges the validity of, or compliance with, an applicable law;

it depends on whether the plaintiff challenges speech or

petitioning activity.

The City also argues Graffiti Protective Coatings and San

Ramon are distinguishable because they involved mandamus

petitions and not tort actions. Thus, the City argues, granting its

special motion to strike would not chill public interest litigation

like the lawsuits brought in Graffiti Protective Coatings and San

Ramon. Courts have repeatedly held, however, that the scope of

protected activity under section 425.16 does not depend on the

form of a plaintiff’s cause of action. (See, e.g., Navellier v. Sletten,

supra, 29 Cal.4th at p. 92; Nam, supra, 1 Cal.App.5th at p. 1186;

Trilogy at Glen Ivy Maintenance Assn. v. Shea Homes, Inc.,

supra, 235 Cal.App.4th at p. 368; Feldman v. 1100 Park Lane

Associates (2008) 160 Cal.App.4th 1467, 1478; Midland Pacific

Bldg. Corp. v. King (2007) 157 Cal.App.4th 264, 272; Birkner v.

Lam (2007) 156 Cal.App.4th 275, 281.)

Moreover, the City’s argument ignores the serious

implications of granting its motion. 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

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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.

(See Bonni v. St. Joseph’s Health Systems, supra, 13 Cal.App.5th

at p. 864 [defendants who can satisfy the first step of the section

425.16 analysis “shift the burden of proof to [plaintiffs], who,

without the benefit of discovery and with the threat of attorney

fees looming, [are] obligated to demonstrate the likelihood of

prevailing on the merits”]; San Ramon, supra, 125 Cal.App.4th at

p. 358 [if mandamus petitioners “were routinely subject to a

special motion to strike . . . [they] could be forced to make a prima

facie showing of merit at the pleading stage”].) 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. (See San Ramon, at p. 358, fn. 9 [section

425.16 is not intended to discourage “petitions seeking to

overturn the denial of a planning or zoning permit applied for by

an individual property owner”]; see generally Park, supra, 2

Cal.5th at p. 1071, fn. 4 [the Legislature’s concern for citizens’

rights to petition the government “are promoted, not impaired, by

differentiating between individual speech that contributes to a

public entity’s decision and the public entity decision itself”].)9



9 Because the City did not satisfy its burden with respect to

the first step of the section 425.16 analysis, we do not consider

whether the Shahbazians showed they were likely to prevail on

the merits of their causes of action. (See City of Cotati, supra, 29

Cal.4th at pp. 80-81; Graffiti Protective Coatings, supra, 181

Cal.App.4th at p. 1225; San Ramon, supra, 125 Cal.App.4th at

p. 357.)

The order is affirmed. The Shahbazians are to recover their costs on appeal.