Judge Elaine W. Mandel, Case Number: 23SMCV04848, Date: 2024-05-09 Tentative Ruling

Defendants’ Special Motion to Strike the First and Third Through Fifth Causes of Action to Plaintiff’s Complaint/Defendants’ Demurrer to Complaint

Plaintiff Askari alleges his neighbors’ tennis court creates a noise nuisance. Plaintiff sues City of Beverly Hills and its employees Yelton and Chavez for deciding not to pursue a municipal code violation claim against the neighbors. Plaintiff alleges negligence, negligent supervision, negligence per se, vicarious liability and declaratory relief against defendants City and the employee defendants.

Defendants file an anti-SLAPP motion to strike the first and third through fifth causes of action and a demurrer to the complaint.

Courts resolving an anti-SLAPP motion under Cal. Civ. Code §425.16 follow a two-step process. Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733. In prong one, the court determines whether the conduct underlying plaintiff’s cause of action arises from defendant’s constitutional rights of free speech or petition. Baral v. Schnitt (2016) 1 Cal. 5th 376, 395. This is a threshold issue—if moving party fails to show the conduct is constitutionally protected, the court need not address prong two. Jarrow, supra, 31 Cal.4th at 733.

The anti-SLAPP statute covers litigation-related activities, and any statement or writing made in “connection with” litigation receive protection. Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 962. Statements made during contractual arbitration are not subject to the anti-SLAPP statute. Century 21 Chamberlain & Assoc. v. Haberman (2009) 173 Cal.App.4th 1, 8. Courts take an expansive view of what constitutes “litigation-related activities” in the context of anti-SLAPP analysis. Baral, supra.

Under the second prong, the burden shifts to plaintiff to show a legally sufficient claim and to prove with admissible evidence a reasonable probability that plaintiff will prevail. E.g., Navellier v. Sletten (2002) 29 Cal.4th 82, 88. To fulfill prong two, plaintiff cannot rely on the allegations of the complaint but must produce evidence admissible at trial. HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.

Regarding the first prong, defendants argue the order to halt the investigation and enforcement of the alleged violation of the Beverly Hills Municipal Code (BHMC) is protected speech that is the basis for the first, third, fourth and fifth causes of action. Regarding the second prong, defendants argue plaintiff cannot establish a probability of prevailing because (a) plaintiff failed to timely present a government claim to the City and (b) defendants are protected by statutory immunities. The Court agrees.

Code Civ. Proc. §425.16 defines the speech it is meant to protect. Code Civ. Proc. §425.16(e)(2) provides that speech to be protected is “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…”

Defendants argue the order to stop investigation into the neighbors was via an email from defendant Yelton, the City’s former director of community development, while the issue was under investigation by the City. Complaint ¶62. This places the communication within the ambit of Civ. Proc. §425.16(e)(2) and speech the statute is meant to protect.

Plaintiff argues it was simply an email between employees. However, Civ. Proc. §425.16(e)(2) is clear that any communication in relation to an issue under review by a body with the power to review such issue is protected. Plaintiff made a nuisance complaint to the City, which is empowered at its discretion to determine whether such a nuisance constitutes a violation of the BHMC and whether it will act upon such information. Although the City eventually decided not to act, the subject communication was in furtherance of that deliberation. Defendants meet their threshold burden of showing the conduct underlying plaintiff’s causes of action arises from defendants’ constitutional rights of free speech.

Now the burden shifts to the plaintiff to show a legally sufficient claim and to prove with admissible evidence a reasonable probability that plaintiff will prevail. As explained below, plaintiff cannot.

Plaintiff fails to show a likelihood of prevailing because: (a) plaintiff failed to timely present a government claim to the City, and (b) defendants are protected by statutory immunities.

The Government Claims Act establishes conditions that must be met prior to filing a suit against a public entity. California Restaurant Management Systems v. City of San Diego (2011) 195 Cal.App.4^th 1581, 1591. The purpose of the Act is “to provide the public entity sufficient information to enable it to adequately investigate claims and to settle them, if appropriate, without the expense of litigation.” Hernandez v. City of Stockton (2023) 90 Cal.App.5^th 1222, 1231. Also see Gov. Code §§910 and 945.4. Failure to meet the requirements of the Act bars the claim; this is jurisdictional.

Defendants contend plaintiff did not file a government claim form with the City. Gov. Code §915(a) requires a claim to be presented to a local public entity by delivering it to the clerk, secretary or by mailing it to the clerk, secretary or auditor or to the governing body at its principal office.

Here, plaintiff filed his claim form and submitted the claim to the Office of Risk and Insurance Management (ORIM), a division of the Department of General Services, an agency of the State of California; the State is an entity completely separate from the City of Beverly Hills. Defendants argue delivering a claim to the wrong entity fails to satisfy Gov. Code §915. The Court agrees.

Plaintiff argues Gov. Code §915(e) provides a “catchall” provision: “A claim, amendment, or application shall be deemed to have been presented in compliance with this section even though it is not delivered or mailed as provided in this section if, within the time prescribed for presentation thereof, any of the following apply: (1) It is actually received by the clerk, secretary, auditor, or board of the local public entity. (2) It is actually received at an office of the Department of General Services.”

By mailing his claim form to ORIM, plaintiff argues he satisfied Gov. Code §915. The Court disagrees. Gov. Code §915(a) provides: “A claim, any amendment thereto, or an application to the public entity for leave to present a late claim shall be presented to a local public entity by any of the following means: (1) Delivering it to the clerk, secretary, or auditor thereof. (2) Mailing it to the clerk, secretary, auditor, or to the governing body at its principal office. (3) If expressly authorized by an ordinance or resolution of the public entity, submitting it electronically to the public entity in the manner specified in the ordinance or resolution.”

Plaintiff provides no authority nor legislative history showing the intent of Gov. Code §915(e) was to create a “catchall” provision. This would, in effect, make offices like ORIM a clearinghouse for any claims against any and all entities within the State. Defendant points to both caselaw and legislative history that demonstrates this was not the Legislature’s intent.

Judicial Council of California v. Superior Court (2014) 229 Cal.App.4th 1083, 1091 states “Section 915(e)(1) reflects the Legislature's intent that a misdirected claim will satisfy the presentation requirement if the claim is ‘actually received’ by a statutorily designated recipient. Thus, compliance with section 915(e)(1) requires actual receipt of the misdirected claim by one of the designated recipients. If an appropriate public employee or board never receives the claim, an undelivered or misdirected claim fails to comply with the statute.”

The claim filed by plaintiff fails to comply with the Act. This is fatal and bars the claim.

Additionally, plaintiff fails to demonstrate the governmental immunities under Gov. Code §§818.2, 820.2, 818.6 and 815 do not apply to defendants. Gov. Code §818.2 provides “A public entity is not liable for an injury caused by adopting or failing to adopt an enactment or by failing to enforce any law.” Gov. Code §820.2 provides “Except as otherwise provided by statute, a public employee is not liable for an injury resulting from his act or omission where the act or omission was the result of the exercise of the discretion vested in him, whether or not such discretion be abused.” Gov. Code §818.6 provides “A public entity is not liable for injury caused by its failure to make an inspection, or by reason of making an inadequate or negligent inspection, of any property, other than its property for the purpose of determining whether the property complies with or violates any enactment or contains or constitutes a hazard to health or safety.” Finally, Gov. Code §815 provides “A public entity is not liable for an injury, whether such injury arises out of an act or omission of the public entity or a public employee or any other person.”

Each of the causes of action is grounded in the allegation that the City and its employees did not enforce a zoning ordinance of the BHMC. However, enforcement of the BHMC is discretionary:

Any use, occupation, building, or structure maintained contrary to the provisions of this chapter shall constitute a public nuisance. Any person violating any of the provisions of this chapter shall be guilty of a misdemeanor, and may be prosecuted in a criminal misdemeanor action unless prosecuted in a civil administrative action pursuant to title 1, chapter 3, article 3 of this code. Emphasis added. 1962 Code §§ 10-108, 10-865; amd. Ord. 73-O-1493, eff. 11-1-1973; Ord. 00-O-2356, eff. 11 3-2000 (emphasis added).

Defendants argue “may” indicates discretion, so the City is immune from liability for failure to enforce. Plaintiff provides no authority to the contrary. Motion GRANTED.

As the motion to strike is granted in its entirety, the court need not address the demurrer as to those causes of action.

“[A] demurrer tests the legal sufficiency of the allegations in a complaint.” Lewis v. Safeway, Inc. (2015) 235 Cal.App.4th 385, 388. A demurrer can be used only to challenge defects that appear on the face of the pleading under attack or from matters outside the pleading that are judicially noticeable. See Donabedian v. Mercury Ins. Co. (2004) 116 Cal.App.4th 968, 994 [in ruling on a demurrer, a court may not consider declarations, matters not subject to judicial notice, or documents not accepted for the truth of their contents. For purposes of ruling on a demurrer, all facts pleaded in a complaint are assumed to be true, but the reviewing court does not assume the truth of conclusions of law. Aubry v. Tri-City Hosp. Dist. (1992) 2 Cal.4th 962, 967.

There remains one cause of action unresolved. Defendants argue: (1) plaintiff failed to timely file a government claim with the City and is now time-barred from filing a claim, and (2) defendants are immune under governmental immunities. Plaintiff argues the government claim form was filed timely, and the immunities do not apply. The Court disagrees as above, and sustains the demurrer in its entirety.

Leave to amend must be allowed where there is a reasonable possibility of successful amendment. See Goodman v. Kennedy (1976) 18 Cal.3d 335, 349 [court shall not “sustain a demurrer without leave to amend if there is any reasonable possibility that the defect can be cured by amendment”]. As there is no reasonable possibility of successful amendment, leave to amend is denied.

Defendants’ anti-SLAPP motion as to the first and third through fifth causes of action is GRANTED. Additionally, the demurrer is SUSTAINED in its entirety, without leave to amend.