The opinion
Filed 10/17/14; pub. order 11/14/14 (see end of opn.)
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
FLOYD E. SQUIRES et al.,
Plaintiffs and Appellants,
A138768; A139849
v.
CITY OF EUREKA et al., (Humboldt County
Super. Ct. No. DR100894)
Defendants and Respondents.
Appellants Floyd Squires, III and Betty Squires (when referred to collectively,
plaintiffs) sued the city of Eureka and several individuals. The complaint alleged
10 causes of action, the first seven common law claims, the last three under 42 U.S.C.
§ 1983. Defendants filed an anti-SLAPP motion, which the trial court granted as to the
first seven causes of action, allowing plaintiffs to conduct discovery on the other three.
Following such discovery, defendants filed a renewed anti-SLAPP motion, which the
trial court granted in an extensive order, concluding that plaintiffs had not shown a
probability of prevailing on any of their remaining claims. We reach the same
conclusion, and we affirm.
BACKGROUND
The Relationship
This case arises out of an October 2010 lawsuit filed by plaintiffs against the city
of Eureka (City) and various individuals connected with it (when referred to collectively,
defendants). The relationship between plaintiffs and the City goes back many years, at
least until the early 1990’s, when plaintiffs bought a property at 1429-1429½ Sunny
1
Avenue, Eureka (the Sunny Avenue property). By 2010, the time the subject lawsuit was
filed, plaintiffs had acquired ownership of 26 properties, ownership that apparently led to
much interaction between plaintiffs and City officials—and ultimately to the lawsuit here.
As to that interaction, and what triggered what, the parties’ briefs do not agree.
Plaintiffs’ brief begins as follows: “Since the filing of the present lawsuit, respondents’
behavior against petitioners has escalated. [Citation.] Shortly after petitioners filed this
lawsuit, the City filed a lawsuit against petitioners attempting to appoint a receiver and
gain control over all 26 of petitioners’ properties (all except petitioners’ personal
residence) located within the City. [Citation.]”
Defendants’ brief describes the setting this way: “Appellants Floyd and Betty
Squires are property owners in the city of Eureka who own 26 properties with code
violations that eventually resulted in the City of Eureka filing a receivership action.
[Citation.] Appellants filed the complaint below during the pendency of the city’s code
enforcement administrative proceedings preceding the filing of the City receivership
proceeding.”1
Plaintiffs’ Complaint
On October 14, 2010, plaintiffs filed a complaint for damages against the City and
five individuals, identified by plaintiffs as follows: Sheryl Schaffner, City Attorney until
her resignation on July 9, 2010; Michael Knight, Public Works Director/Building Official
and Assistant City Manager; Brian Gerving, City Planning Manager; Gary Broughton,
Deputy City Engineer; and Larry Glass, Councilman for the City Council’s Ward 1. The
complaint alleged ten causes of action, styled as: (1) harassment; (2) intentional
interference with contractual relations; (3) intentional interference with prospective
economic advantage; (4) abuse of process; (5) slander; (6) intentional infliction of
emotional distress; (7) general negligence; (8) municipal liability; (9) public entity
liability-failure to train; and (10) supervisor liability. The first eight causes of action
were alleged against all defendants, the ninth and tenth against only the City.
1
A characterization, we note, with which plaintiffs’ reply brief does not take issue.
2
The complaint was 10 pages long, much of which described the parties and their
relationships. Paragraphs 12 through 14 set forth plaintiffs’ fundamental allegations,
alleging as follows:
“Defendants Schaffner, Knight, Gerving, Boughton, and Glass (Individual
Defendants) have engaged and continue to engage, individually and in concert, in a
course of conduct and pattern of harassment, which includes a conscious intent to
deceive, vex, annoy or harm Plaintiffs in their business, i.e., they are motivated by
corruption and/or malice.
“The wrongful conduct by the Individual Defendants has included, for instance,
taking possession of certain Plaintiffs’ Subject Properties, wrongfully evicting Plaintiff’s
tenants, falsely swearing inspection warrants, inciting members of the public to file
unfounded suits against Plaintiffs, misrepresenting and manipulating evidence,
wrongfully denying Plaintiffs the right to obtain permits, filing vexatious litigation, and
generally trying to harm Plaintiffs and their business.
“The Individual Defendants have conspired against, and singled Plaintiffs out,
from all other property owners in this community (even though many of these property
owners have property in the same or similar condition as Plaintiffs’ properties) for the
specific purpose of harassing, vexing, annoying and/or harming Plaintiffs. The conduct
of the Individual Defendants is malicious, fraudulent and oppressive, and Plaintiffs are
seeking general and special damages against Defendant City and Individual Defendants,
as well as punitive damages against the Individual Defendants.”
Paragraphs 17 through 65 of the complaint alleged the essential elements of the
ten causes of action mentioned above.
3
Defendants’ Special Motion to Strike
On November 18, 2010, defendants filed a special motion to strike each cause of
action pursuant to Code of Civil Procedure section 415.16 (SLAPP or anti-SLAPP),2 set
for hearing on December 17.
On December 7, 2010, plaintiffs filed their opposition to the anti-SLAPP motion.
The opposition ignored the first seven causes of action, focusing only on the eighth,
ninth, and tenth, arguing that “plaintiffs will receive favorable judgments for their 1983
claims.”
On December 9, 2010, plaintiffs filed a motion to lift stay on discovery, requesting
the court shorten time so that their motion could be heard before the anti-SLAPP motion.
Plaintiffs’ motion sought to conduct discovery only as to the eighth, ninth, and tenth
causes of action.
On February 25, 2011, the trial court filed its order, granting the motion to strike
the first through seventh causes of action. The court concluded that “defendants have
made an initial showing that plaintiffs’ causes of action arise from protected activity
under CCP section 425.16” because plaintiffs’ claims against defendants “involve actions
allegedly taken by the defendants in the investigation and prosecution of plaintiffs
regarding code enforcement violations occurring at real properties owned by plaintiffs.”
The court also concluded that, “[b]ased upon the pleadings and admissible evidence
presented in the supporting and opposing declarations . . . plaintiffs’ [sic] have not
demonstrated a probability of prevailing on their claims. Plaintiffs have not made a
prima facie showing of facts necessary to establish their claim at trial.” The order was
not appealed.3
2
All statutory references are to the Code of Civil Procedure unless otherwise
indicated.
3
Defendants had also filed a demurrer. Initially scheduled for hearing on January
14, 2011, the demurrer was reset for hearing, as stipulated by the parties. On May 20,
2011, the trial court issued an order overruling the demurrer, concluding that “the
allegations set forth in the Complaint, including paragraphs 12, 13, 36, 37, 55, 58, 59, 63
and 64 are sufficient to state a cause of action,” and that “absolute prosecutorial
4
The Eighth, Ninth, and Tenth Causes of Action
The February 25 order also ordered that plaintiffs could “conduct discovery
relating to the Eighth, Ninth, and Tenth causes of action.” These three causes of action
were, as indicated, based on section 1983 of Title 42 of the United States Code, and they
alleged as follows:
The eighth cause of action (municipal liability): “Each act of the defendants
mentioned herein violated Plaintiffs’ civil rights, and occurred as a result of the official
policy or custom of defendant City. [¶] Plaintiffs were harmed, and the defendants’
conduct was a substantial factor in causing that harm.”
The ninth cause of action (public entity liability-failure to train): “Defendant
City’s training program was not adequate to train its officers and employees to properly
handle usual and recurring situations. [¶] Defendant City was deliberately indifferent to
the need to train its officers and employees adequately. [¶] The failure to provide proper
training was the cause of the deprivation of Plaintiff’s civil rights. [¶] The Plaintiffs were
harmed, and the defendant City’s failure to adequately train its employees was a
substantial factor in causing Plaintiffs’ harm.”
The tenth cause of action (supervisor liability): “Defendant City knew, or in the
exercise of reasonable diligence should have known, the Individual Defendants’ wrongful
conduct as described herein. [¶] Defendant City’s response was so inadequate that it
showed deliberate indifference to, or tacit authorization of, Individual Defendants’
conduct. [¶] Defendant City’s inaction was a substantial factor in causing Plaintiff’s
harm.”
The allowed discovery ensued, and in fact over four volumes of the 1750-page
clerk’s transcript consists of papers filed below in connection with discovery disputes.
That discovery extended over the remainder of 2011 and throughout 2012.
immunity is not immediately available to the moving parties given the nature of the
allegations in the complaint. [Citations.]”
5
Defendants’ Renewed Special Motion to Strike
On January 10, 2013, defendants filed their renewed special motion to strike the
remaining three claims. The renewed motion was accompanied by four declarations, of:
Brian Gerving, Chief Official in the City Building Department; Gary Boughton, Deputy
City Engineer; Michael Knight, Assistant City Manager; and one of defendants’
attorneys, Krista McNevin Jee. Defendants also filed a request for judicial notice.
On February 1, plaintiffs filed their opposition to the renewed SLAPP motion. It
was apparently accompanied by four declarations, those of plaintiff Floyd Squires, his
attorneys Bradford Floyd and Carlton Floyd, and Scott Penfold, an expert witness in the
receivership action (whose declaration was apparently submitted late, at the hearing).4
Attorney Brandon Floyd’s declaration consisted almost entirely of his claimed version of
testimony given at the trial of the receivership action (City of Eureka et al. v. Floyd E.
Squires et al., Super Ct. Humboldt County, No. DR110040), which case had proceeded to
trial and been submitted for decision on or about January 2, 2013. According to Floyd,
no trial transcript was provided for that case. Penfold’s declaration said that Floyd’s
recitations of what occurred at trial “are accurate and consistent with my testimony given
during trial.” Squires’s declaration consisted of 44 paragraphs, mostly addressing his
version of facts as to the City’s involvement with the Sunny Avenue property.
The City filed a reply memorandum, along with objections to the Squires and
Floyd declarations and a second request for judicial notice.
The renewed motion to strike came on for hearing on February 13, 2013. On
April 2, 2013, the trial court issued its 11-page order entitled “Rulings Re: Renewed
Special Motion to Strike.” The order was thorough and detailed, and began by granting
both of defendants’ requests for judicial notice. The court then devoted almost five pages
to the objections to evidence, addressing the defendants’ objections one by one,
sustaining some and overruling others.
4
The declaration of attorney Carlton Floyd is not in the record.
6
The court then turned to the substance of the motion, ultimately granting it. Doing
so, the court provided an extensive discussion supporting its conclusion that plaintiffs had
failed to demonstrate a probability of prevailing on the remaining three causes of action.
The court began by dividing the alleged violations into two categories: (1) acts that, on
their face, could be a violation of plaintiffs’ rights; and (2) treating plaintiffs as a “class
of one” that defendants selectively prosecuted for an impermissible motive.
As to the first category of violations, the court found that: “To substantiate the
first category of violations, the Squires [plaintiffs] submit the declarations of . . .
[attorney] Floyd and Floyd Squires. . . . [¶] Floyd Squires’s declaration similarly does not
make a prima facie showing of facts sufficient to sustain a judgment in the Squires’[s]
favor. Squires faults Assistant City Manager Michael Knight for executing an inspection
warrant . . . many years ago, in 2004, to determine whether debris was being dumped on
the property. Yet, Squires simultaneously explains in detail his belief that the warrant
was based on an actual informant who, unbeknownst to Eureka, had purposely dumped
debris on the property because of a personal vendetta against Squires. Clearly, Squires
thinks it suspicious that Knight may have relied on an informant that Squires believes has
no credibility. But even had Knight done so, the Court fails to see how that reliance
would be a violation of the Squires’[s] civil rights; Squires himself characterizes Knight’s
reliance as Knight being duped, not Knight being malicious. . . . Squires also complains
about a search years later in which Eureka alleged that sewage from the property was
draining into ‘the gulch’ and garbage was being dumped onto the property. Squires
characterizes this search as improper, yet admits that ‘the tenant in the upper house had
connected a washing machine on his deck to a house gutter to drain and the gray water
was draining into the woods.’ He also admits that furniture and household items had
been thrown on the property by his tenants, and that a stack of ‘building debris’ was in
the driveway.
“In sum, the Court fails to see anything in the declarations of [attorney] Floyd or
Floyd Squires sufficiently substantiating the grave allegations of the Complaint, such as
that Defendants falsely swore inspection warrants and manipulated evidence.”
7
In regard to the second category of violations—that the plaintiffs constitute a
“class of one” that defendants selectively prosecuted for an impermissible motive—the
court found as follows:
“The problem the Squires encounter with respect to this second category is
twofold. First, the Court agrees with Defendants that the Squires have not offered
evidence that any of the community members who are allegedly treated more favorably
are similarly situated to the Squires. (See Squaw Valley [Dev. Co. v. Goldberg]
(9th Cir. 2004) 375 F.3d [936,] 944 [class of one theory must be based on the fact that the
plaintiff has been treated differently from other ‘similarly situated’].) The record makes
clear that the Squires could be unique in the community for at least two reasons: they
own 13 different properties in Eureka and the aggregate number of violations on those
properties is great.
“Second, the Court concludes that the Squires have not made a sufficient showing
that Defendants had an ‘impermissible motive’ in singling them out. (See Squaw Valley,
supra, 375 F.3d at p. 944.) The record is full of allegations of an impermissible motive
but the only evidence of an impermissible motive is the fact that Defendants posted an
abatement notice on the same day that the Squires lodged with Eureka their claim for
money damages that was prerequisite to this suit.
“The Court acknowledges that the close proximity in time between the Squires’
lodging their claim and Defendants’ abatement notice is circumstantial evidence that the
reason Eureka singled out the Squires was to retaliate against them. However, the Court
is unconvinced that the timing alone is sufficient to demonstrate an impermissible
motive. The timing does not appear nearly as suspicious once it is understood that
Eureka issued at least ten abatement notices on the Squires’ properties in recent years,
none of which has been shown to be unfounded. (See [citation]; Vargas [v. City of
Salinas (2009) 46 Cal.4th 1] at p. 20 [anti-SLAPP motion should be granted ‘ “if, as a
matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s
attempt to establish evidentiary support for the claim” ’].)
8
“Perhaps it could be argued that all ten abatement notices were retaliation for the
Squires’[s] claim for damages. But there is a more fundamental problem with the
purported retaliatory motive; namely, that the Squires claimed that there were being
singled out before Eureka even had notice of the claim for money damages. The claim
for money damages itself alleges that Defendants ‘have conspired against, and singled
claimants out, from all other property owners in this community . . . for the specific
purpose of harassing, vexing, annoying and/or harming claimants.’ . . . Since the Squires
believed and claimed that they were being singled out before they lodged the claim for
damages, the Court has trouble accepting the argument that the reason they are being
singled out is because they made the claim for damages.”
On May 23, 2013, plaintiffs filed their notice of appeal, stating they were
appealing from the “Ruling Re: Renewed Motion to Strike.” This appeal was numbered
in this court case number A138768.
On May 31, 2013, defendants filed a motion for attorney fees. Plaintiffs filed
opposition, and defendants a reply. The motion came on for hearing on July 1, and on
July 29, the trial court entered its order awarding defendants $57,414.28, significantly
less than they sought.
On September 24, 2013, plaintiffs filed another notice of appeal, stating that they
were appealing the “Judgment entered May 30, 2013 and order granting statutory
attorney fees entered July 29, 2103 under Code of Civil Procedure section 904.1(a)(13).”
This appeal was numbered in this court case number A139849. By order dated May 2,
2014, we ordered the appeals consolidated.
DISCUSSION
SLAPP Law and Standard of Review
We recently discussed the SLAPP law and its operation in Hecimovich v. Encinal
School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 463–464:
“Subdivision (b)(1) of section 425.16 provides that ‘[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
9
connection with a public issue shall be subject to a special motion to strike, unless the
court determines that the plaintiff has established that there is a probability that the
plaintiff will prevail on the claim.’ Subdivision (e) elaborates the four types of acts
within the ambit of a SLAPP, including, as pertinent here, ‘(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.’
“A two-step process is used for determining whether an action is a SLAPP. First,
the court decides whether the defendant has made a threshold showing that the
challenged cause of action is one arising from protected activity, that is, by demonstrating
that the facts underlying the plaintiff’s complaint fit one of the categories spelled out in
section 425.16, subdivision (e). If the court finds that such a showing has been made, it
must then determine the second step, whether the plaintiff has demonstrated a probability
of prevailing on the claim. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).)
“ ‘The Legislature enacted section 425.16 to prevent and deter “lawsuits [referred
to as SLAPP’s] brought primarily to chill the valid exercise of the constitutional rights of
freedom of speech and petition for the redress of grievances.” (§ 425.16, subd. (a).)
Because these meritless lawsuits seek to deplete “the defendant’s energy” and drain “his
or her resources” [citation], the Legislature sought “ ‘to prevent SLAPPs by ending them
early and without great cost to the SLAPP target’ ” [citation]. Section 425.16 therefore
establishes a procedure where the trial court evaluates the merits of the lawsuit using a
summary-judgment-like procedure at an early stage of the litigation.’ (Varian Medical
Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.)
“Finally, and as subdivision (a) of section 425.16 expressly mandates, the section
‘shall be construed broadly.’
“With these principles in mind, we turn to a review of the issues before us, a
review that is de novo. (Grewal v. Jammu (2011) 191 Cal.App.4th 977, 988 (Grewal).)”
Plaintiffs’ Causes of Action Arise from Protected Activity
The trial court found that “defendants have made an initial showing that plaintiffs’
causes of action arise from protected activity under CCP section 425.1” because
10
plaintiffs’ claims against defendants “involve actions allegedly taken by the defendants in
the investigation and prosecution of plaintiffs regarding code enforcement violations
occurring at real properties owned by plaintiffs.” This was undisputed by plaintiffs
below, and is expressly conceded here. Thus the issue before us involves that in the
second step of the SLAPP analysis: whether plaintiffs demonstrated a probability they
would prevail.
Plaintiffs Have Not Demonstrated a Probability of Prevailing
Introduction to the Analysis
Plaintiffs’ opening brief begins with a passage that includes a short “Introduction,”
a “Statement of the Case” (including a one-page statement of facts), and a “Statement of
Law.” All this is in some four pages. Plaintiffs’ brief then sets forth what they claim are
the “Legal Standards for Anti-SLAPP Claims,” a short passage that ends with this:
“Unlike the summary judgment statute, the anti-SLAPP statute expressly permits the
court to consider the parties’ pleadings, and supporting and opposing affidavits stating
the facts upon which the liability or defense is based. (Code Civ. Proc., § 425.16(b)(2).)
[¶] If the court determines that petitioners have established this minimal threshold of a
‘probability’ of recovery, as it should, the action proceeds.”
From there, plaintiffs go on to discuss what they have “alleged,” and to cite
several times to their opposition brief in the trial court as though this will avail them. It
will not. The law is that plaintiffs cannot rely on their own pleadings, even if verified, to
demonstrate a probability of success on the merits. (Hecimovich v. Encinal School
Parent Teacher Organization, supra, 203 Cal.App.4th at p. 474; Paiva v. Nichols (2008)
168 Cal.App.4th 1007, 1017.)
Unfortunately, perhaps impelled by plaintiffs’ reference to their pleadings,
defendants devote some 10 pages in their respondents’ brief to argument that the
plaintiffs’ “complaint fails to allege any constitutional injury.” While it is true that
plaintiffs’ burden requires that they show a legally sufficient claim (Navellier, supra,
29 Cal.4th at p. 93), we also note that defendants’ demurrer was overruled. (See fn. 3,
ante.) Thus, we refrain from any analysis of the pleadings, and turn, as is usual, to the
11
factual showing by plaintiffs, to determine whether they met the burden imposed on them
under the second step in the SLAPP analysis. And conclude they did not.
The Law
We confirmed the applicable law in Grewal, supra, 191 Cal.App.4th at page 989:
“We decide the second step of the anti-SLAPP analysis on consideration of ‘the
pleadings and supporting and opposing affidavits stating the facts upon which the liability
or defense is based.’ (§ 425.16, subd. (b).) Looking at those affidavits, ‘[w]e do not
weigh credibility, nor do we evaluate the weight of the evidence. Instead, we accept as
true all evidence favorable to the plaintiff and assess the defendant’s evidence only to
determine if it defeats the plaintiff’s submission as a matter of law.’ (Overstock.com,
Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699–700.) [¶] That is the
setting in which we determine whether plaintiff has met the required showing, a showing
that is ‘not high.’ (Overstock.com, Inc. v. Gradient Analytics, Inc., supra,
151 Cal.App.4th at p. 699.) In the words of the Supreme Court, plaintiff needs to show
only a ‘minimum level of legal sufficiency and triability.’ (Linder v. Thrifty Oil Co.
(2000) 23 Cal.4th 429, 438, fn. 5.) In the words of other courts, plaintiff needs to show
only a case of ‘minimal merit.’ (See Peregrine Funding, Inc. v. Sheppard Mullin Richter
& Hampton LLP (2005) 133 Cal.App.4th 658, 675, quoting Navellier v. Sletten[, supra,]
29 Cal.4th 82, 95.)”
While plaintiffs’ burden may not be “high,” they must demonstrate their claim is
legally sufficient. (Navellier, supra, 29 Cal.4th at p. 93.) And they must show it is
supported by a sufficient prima facie showing, one made with “competent and admissible
evidence.” (Tuchscher Development Enterprises, Inc. v. San Diego Unified Port Dist.
(2003) 106 Cal.App.4th 1219, 1236; see Evans v. Unkow (1995) 38 Cal.App.4th 1490,
1497.)
Defendants’ Showing
As noted, defendants’ renewed motion was supported by four declarations, three
of which were of named defendants. Those declarations testified about the interactions
12
with plaintiffs and their properties, testifying in great detail as to specific incidents and
events.
One such declaration was that of Brian Gerving, the City’s Chief Building Official
since August 2010 and, among other things, a building official for several years before
that. Gerving described observing six code violations at the Sunny Avenue property in
the course of serving a criminal search warrant on those premises in October 2009.
Gerving notified Floyd Squires of these violations, they were not corrected, and
additional citations and enforcement were necessitated. And as of December 26, 2012,
the date of Gerving’s declaration, the violations still had not been corrected.
Gerving also described serving an inspection warrant on another property owned
by plaintiffs (117/119 5th Street), where he observed 39 violations. This resulted in
written notice of violations, a nuisance abatement hearing resulting in fines, and
assessment against the property for the fines. Gerving engaged in further abatement
efforts on December 23, 2010 and obtained an inspection warrant in May 2011 which
revealed a violation of an injunction that the City had obtained in July 2009, which was
affirmed by the Court of Appeal in May, 2011, preventing the property from being used
as sleeping quarters.
Gerving testified about several other properties, including similar enforcement
proceedings at 315 C Street; inspection and related abatement activities at 317 C Street;
seven new violations at 833 H Street (coupled with a failure to correct prior violations),
and unpaid administrative fines resulting from an assessment against the property for
$34,918.50. Gerving went on to describe additional actions in response to earthquake
damage at 219 5th Street that caused red tagging of the building. Finally, Gerving
described additional code enforcement activities at 1233 A Street, 2325 2nd Street,
1625 G Street, and 1803 C Street, all with plaintiffs failure to comply.5
Assistant City Manager Michael Knight, whose responsibilities included oversight
of the Building and Public Works Departments, also submitted a declaration in support of
5
Gerving also explained how City building officials are trained and certified.
13
the renewed motion to strike, which declaration described his enforcement activity with
respect to four of plaintiffs’ properties. The first was property at 117/119 9th Street,
concerning which Knight instituted an administrative nuisance abatement hearings, and at
which he testified (as well as at court hearings). Knight’s inspection, testimony, and
other enforcement efforts “directly related to the City’s determination to file
administrative, civil and criminal proceedings concerning the property.”
Knight described how the 10 serious code violations at 315 C Street documented
by Gerving created an immediately dangerous condition and his approval of the
subsequent summary abatement of such dangerous conditions, working along with the
City Attorney. Knight also prepared documentation to the Board of Appeals/Hearing
officers in April 2010 with respect to violations on this property, and how the Board
determined that the property was a substandard building and a public nuisance—a ruling
plaintiffs did not appeal. Finally, Knight described environmental health code
enforcement at the Sunny Avenue property which included County of Humboldt officials
and Fish and Game representatives.6
Plaintiffs’ Response
As noted, plaintiffs attempted to meet their burden under the second step of the
SLAPP analysis with four declarations, only three of which are in the record here, those
6
The only declaration addressing any of these facts was that submitted by Floyd
Squires, who admitted that “gray water was draining into the woods” from “the tenant in
the upper house” who had connected “a washing machine to a house gutter drain,”
tenants had thrown broken furniture and household items over the bank, building debris
remained on a site, and that a representative of the “Corps of Engineers” said “pick up the
debris out of the water and take it to the dump . . . .”
Squires’s declaration in fact made two references to Michael Knight. The first
was conclusory: “Mike Knight fabricated search warrants on all our properties at one
time or another.” Defendants’ objection, including on grounds of lack of foundation,
speculation, lack of personal knowledge, and argumentative, was sustained by the trial
court. The second was that Squires attached a list of actions he claimed that Knight had
taken against him concerning various properties he owned in the City. Defendants
objected to the list on a number of grounds, including relevancy, lack of foundation,
speculation, lack of personal knowledge, hearsay, and argumentative. The trial court
sustained the objection.
14
of: (1) one of plaintiffs’ attorneys, Bradford Floyd; (2) Scott Penfold; and (3) Floyd
Squires. As also noted, attorney Floyd’s declaration consisted almost entirely of his
description of what he asserted was testimony given at the trial of the receivership action.
The sum total of Penfold’s declaration was that Floyd’s recitations of what occurred at
trial “are accurate and consistent with my testimony given during trial.” And Squires’s
declaration consisted of 44 paragraphs, mostly addressing his version of facts as to the
City’s involvement with the Sunny Avenue property.
Defendants filed objections to both the Squires and Floyd declarations, objections
that totaled 39 in number. The trial court ruled on the objections one by one, and
sustained 25 of them (some of which were sustained in part). Most of the sustained
objections were to Floyd Squires’s declaration, and plaintiffs do not contest any of those
evidentiary rulings on appeal.
As discussed hereafter, plaintiffs here rely almost exclusively on the Floyd
declaration, to his claimed attributions about what City witnesses purportedly testified to
in the receivership action. Before turning to a discussion of plaintiffs’ attempted factual
showing, we begin with a description of their legal position, which is contained in three
arguments, in a total of 13 pages. Plaintiffs’ first argument is entitled “Municipal
Liability” (42 U.S.C. 1983), and has four subarguments, labeled as follows:
(1) “Respondents’ Actions Against Petitioners Were Approved by the City’s Lawmaking
Officers or Policy Making Officials”; (2) “Respondents Violated Petitioners’ Equal
Protection Rights Because Respondents Did Not Give Petitioners Equal Protection of the
Law”; (3) “Respondents Violated Petitioners’ Substantive Due Process Rights Because
Respondents Have Deprived Petitioners’ [sic] of Their Property for Arbitrary Reasons,”
and (4) “Respondents Have Violated Petitioners’ Fourth Amendment Rights By Falsely
Swearing Their Search Warrants and Affidavits and/or Entering Petitioners’ Properties
for Inspection Without Permission and Without Inspection Warrants” The last two
arguments, set forth in fewer than four pages, are entitled, “(2) Public Entity Liability—
Failure to Train”; and “(3) Supervisor Liability.”
15
Most of what is contained in these arguments are cases cited for general
propositions of law, with little discussion of how the facts in plaintiffs’ opposition
support the actual law governing here—law devastating to plaintiffs.
To begin with, in order to support a claim for municipal liability under
section 1983, that alleged in the eighth cause of action, plaintiffs must demonstrate that
they suffered a constitutional injury at the hands of a municipal employee. (City of Los
Angeles v. Heller (1986) 475 U.S. 796, 799 [“[N]either Monell v. New York City Dept. of
Social Services (1978) 436 U.S. 658, nor any other of our cases authorizes the award of
damages against a municipal corporation based on the actions of one of its officers when,
in fact, the jury has concluded that the officer inflicted no constitutional harm.”].)
Defendants devote over 10 pages of their brief demonstrating that plaintiffs have
not shown any constitutional injury. Plaintiffs’ entire response is in this one nine-line
paragraph: “The declaration of Bradford C. Floyd also shows that both Brian Gerving
and Mike Knight were the ones going around and posting the notices to abate and
attempting to have a receiver appointed over respondents’ properties. [Citation.]
Furthermore, Fitzhugh stated that Gerving and Knight were treating the petitioners
differently from other property owners and singling them out with the notices to abate.
[Citation.] As has already been stated above under the equal protection and substantive
due process claims, there was no rational basis for posting each property owned by
petitioners, yet, Gerving and Knight did so anyways. These specific actions of Gerving
and Knight are exactly what causes respondents’ constitutional deprivations.”
We fail to see how attorney Floyd’s “testimony” demonstrates any injury to
plaintiffs, let alone constitutional injury. And not one paragraph in Floyd Squires’s
declaration testifies about any injury.7
As indicated, the trial court treated plaintiffs’ “equal protection” claim as
involving a “class of one.” Such a claim requires plaintiffs to demonstrate three
7
The attachment to the Floyd Squires declaration entitled “Knight Wrongful
Actions” might be read as to include some injury. That attachment was ruled
inadmissible by the trial court.
16
elements: (1) plaintiffs were treated differently than other similarly situated persons;
(2) the different treatment was intentional; and (3) there was no rational basis for the
difference in treatment. (Village of Willbrook v. Olech (2000) 528 U.S. 562, 564 (Olech);
Genesis Environmental Services v. San Joaquin Valley Unified Air Pollution Control
Dist. (2003) 113 Cal.App.4th 597, 605.)
To satisfy the first element, plaintiffs must not only demonstrate a disparity in
treatment but also that “the level of similarity between [them] and the persons with whom
they compare themselves must be extremely high.” (Neilson v. D’Angelis
(2004) 409 F.3d 100, 104; accord, Racine Charter One, Inc. v. Racine Unified School
Dist. (7th Cir. 2005) 424 F.3d 677, 686 [to be considered “ ‘similarly situated,’ ”
comparators must be “ ‘prima facie identical in all relevant respects’ ” or “ ‘directly
comparable to [plaintiff] in all material respects’ ”].)
The undisputed testimony of the City’s representatives established that plaintiffs
had a long history of noncompliance with respect to their properties, properties that were
the subject of ongoing—and frequent—complaints from neighbors and residents.
Plaintiffs submitted no declarations establishing any such similar conduct by any other
owner of multiple properties.
Moreover, Olech, supra, 582 U.S. 562 at p. 564, held that disparate treatment is
permissible if it has a rational basis. “Under the rational basis test, courts must presume
the constitutionality of government action if it is plausible that there were legitimate
reasons for the action. In other words, the plaintiff must show that the difference in
treatment was ‘so unrelated to the achievement of any combination of legitimate purposes
that we can only conclude that the [government’s] actions were irrational.’ [Citation.]
Proving the absence of a rational basis can be an exceedingly difficult task. In some
circumstances involving complex discretionary decisions, the burden may be
insurmountable.” (Accord, Las Lomas Land Company, LLC v. City of Los Angeles
(2009) 177 Cal.App.4th 837, 859 (Las Lomas).)
Likewise well established is that individualized discretionary decisions will not
support a class of one claim. Again, the Supreme Court is apt: “There are some forms of
17
state action, however, which by their nature involve discretionary decisionmaking based
on a vast array of subjective, individualized assessments. In such cases the rule that
people should be ‘treated alike, under like circumstances and conditions’ is not violated
when one person is treated differently from others, because treating like individuals
differently is an accepted consequence of the discretion granted. In such situations,
allowing a challenge based on the arbitrary singling out of a particular person would
undermine the very discretion that such state officials are entrusted to exercise.”
(Engquist v. Oregon Dept. of Agriculture (2008) 553 U.S. 591, 603; also see Las Lomas,
supra, 177 Cal.App.4th at pp. 859-860.) Such rule applies here, with the discretion
necessarily inherent in enforcing city codes and ordinances as to individual properties
containing different violations and different classes and types of owners. Such rule
precludes plaintiffs’ claim.
As quoted, the trial court concluded that Floyd’s declaration (and, for that matter,
that of Penfold) “do not substantiate any wrongful conduct of Defendants other than their
allegedly singling out the Squires for investigation and prosecution.” The trial court also
noted that, while the Squires declaration “faults Assistant City Manager Michael Knight
for executing an inspection warrant” for the Sunny Avenue property “many years ago in
2004,” Squires also acknowledged that the warrant was based upon “an actual informant
who unbeknownst to Eureka had purposely dumped debris on the property because of a
personal vendetta against Squires.” The trial court failed to see how the city’s reliance on
the informant could be a violation of plaintiffs’ civil rights. So do we.
Virtually ignoring Squires’s testimony in their briefs on appeal, plaintiffs focus
their factual showing on the declaration of attorney Floyd who, as noted, purported to
testify as to what others had testified to in the receivership action. Without discussion,
the trial court overruled defendants’ objections to Floyd’s declaration on the basis that
18
they were “party admissions”, and went on to hold that Floyd’s declaration did not make
the requisite showing under the second step of the SLAPP analysis.8
Passing over the evidentiary issue, we conclude, as did the trial court, that
plaintiffs’ “factual” showing is manifestly insufficient. For example, under their “equal
protection” argument, plaintiffs’ opening brief says this: “There was ample testimony at
the receivership trial in which the City’s own employee, Mr. Fitzhugh, stated that on
multiple occasions, the City and it’s [sic] employees singled petitioners out and treated
them differently than other property owners in Eureka. [Citation.] Furthermore,
Mr. Fitzhugh testified that it was not a practice the City usually followed to go around the
City searching for violations. [Citation.] The reason he gave was that if it did that, it
would find many other houses in much worse condition than those owned by petitioners.
[Citations.] In petitioners’ case, the respondent singled petitioners out, inspecting every
one of their properties within the City’s jurisdiction, and posting notices to abate on each
one of them. [Citation.] [¶] . . . [¶] Finally, the photos described and attached to the
Declaration of Bradford Floyd show that many petitioners’ [sic] properties that have been
under respondents’ scrutiny are clearly in much better condition than the neighboring
houses. [Citation.]” Such conclusory “testimony” does not meet any, let alone all, the
elements required under Olech, supra, 582 U.S. 562 at p. 564.
Floyd’s declaration did not establish that Fitzhugh had any knowledge or
involvement in the particular matters on which the individuals had testified, or was aware
of the large number of complaints that city officials had received about plaintiffs’
properties. Moreover, nothing in Floyd’s declaration indicated, let alone demonstrated,
that any other property owner engaged in conduct manifesting the consistent
noncompliance concerning serious problems in the conditions and activities on their
8
Defendants renew their evidentiary objections here, which, we note, might be
well taken, as the issue is not so simple. As Witkin describes it: “The admissions of an
agent or employee who is a party to the action are, of course, received in evidence against
that party. But the introduction of these statements against the principal or employer
raises problems of substantive law as well as evidence.” (1 Witkin, Cal. Evidence (5th
ed. 2012) § 120, p. 952.)
19
properties as did plaintiffs. Nor any other owner who has prompted the number and
frequency of resident and neighborhood complaints that plaintiffs generated concerning
their property. In sum and in short, nothing in Floyd’s declaration claiming to testify
about the claimed testimony of Mr. Fitzhugh even addressed, much less disputed, the
testimony in the declarations submitted by defendants.
Also under subargument 2, plaintiffs make reference to two cases, and conclude:
“This is similar to petitioners’ case because respondents have been attempting to deprive
petitioners of their property for arbitrary reasons. [Citation.] . . . [¶] . . .[¶] One possible
reason for the large number of inspections and posting on petitioners’ properties is based
in retaliation. On April 13, 2010, petitioners filed a claim against the City for damages.
On the same day, April 13, 2010, the City caused to be posted on one of petitioners’
properties a notice to abate. The closeness in time to petitioners’ claim against the City
shows that the notices to abate were retaliatory in nature. [Citation.]” Such conclusory
statement is unavailing.
The ninth cause of action was for “Failure to Train (42 USC 1983).” The elements
of such cause of action are well established,9 and include that the City “knew because of
a pattern of similar violations that the inadequate training was likely to result in a
deprivation” of some right of plaintiffs. Put otherwise, the inadequate training must
9
The CACI jury instruction (no. 3003) provides as follows:
“[Name of plaintiff] claims that [he/she] was deprived of [his/her] civil rights as a
result of [name of local governmental entity]’s failure to train its [officers/employees].
To establish this claim, [name of plaintiff] must prove all of the following:
“1. That [name of local governmental entity]’s training program was not adequate
to train its [officers/employees];
“2. That [name of local governmental entity] knew because of a pattern of similar
violations[, or it should have been obvious to it,] that the inadequate training program
was likely to result in a deprivation of the right [specify right violated];;
“3. That [name of officer or employee] violated [name of plaintiff]’s right
[specify right]; and
“4. That the failure to provide adequate training was the cause of the deprivation
of [name of plaintiff]’s right [specify right].”
20
amount to a deliberate indifference to constitutional rights. (Clouthier v. County of
Contra Costa (9th Cir. 2010) 591 F.3d 1232, 1242.) Such deliberate indifference
requires proof of a pattern of violations (except in those few very rare situations in which
the unconstitutional consequences of failing to train are patently obvious). (See
Connick v. Thompson (2011) __ U.S. __ [131 S.Ct. 1350, 1361]; see generally City of
Cantor v. Harris (1989) 489 U.S. 378, 388-389.)
Plaintiffs’ claimed showing in their opening brief10 as to this element is in two
paragraphs: “As was explained above, each respondent was implementing policies
created by lawmaking officers/policymaking officials of respondent City. The regularity
of respondents’ constitutional violations makes it highly unlikely that respondent City’s
employees were receiving adequate training with regard to how their actions were
violating petitioners’ civil rights. How else would such unconstitutional behavior be so
widespread throughout respondent City’s directors and employees?
[¶] . . . [¶] Furthermore, as proof that the City knew it had not been adequately training its
employees in civil rights violations is due to the various claims to respondent City
petitioning it to stop violating petitioners’ rights. [Citation.] Respondents simply denied
the claims and their conduct in violation of petitioners’ civil rights described above only
intensified. [Citations.]” Such showing is inadequate.
The tenth cause of action was for “Supervision Liability” which, as plaintiffs
acknowledge, also requires among other elements deliberate indifference, as held in
Grassilli v. Barr (2006) 142 Cal.App.4th 1260, 1279: “To establish supervisor liability
under section 1983, petitioners must show: (1) the supervisor had actual or constructive
knowledge of respondent’s wrongful conduct; (2) the supervisor’s response ‘was so
inadequate as to show deliberate indifference to or tacit authorization of the alleged
offensive practices; and (3) the existence of an affirmative cause link between the
supervisor’s inaction and plaintiff’s injuries.”
10
Plaintiffs’ reply brief does not even mention the ninth or tenth causes of action.
21
Plaintiffs’ claimed showing of this law says this: “In this case, petitioners have
been through multiple lawsuits with respondents City as well as made various claims to
respondent City, petitioning them to stop its violation of petitioners’ rights. [Citations.]
Thus, the City and its supervisors, many of whom are respondents in this case have been
aware of this conduct as long as it has been going on. [Citation.] Respondent City and
even the individual respondents have instituted the majority of the lawsuits against
petitioners as well as denial of petitioners’ claims. [Citations.] [¶] Neither respondent
City nor its supervisors took any actions to address petitioners’ grievances; instead the
violative behavior has only increased and intensified. [Citations.] For example, shortly
after filing this lawsuit against respondents, the City filed its own lawsuit attempting to
have a receiver appointed over 26 of petitioners’ properties. [Citation.] Again, this
shows that the heightened harassment of petitioners has all been instituted by respondent
City as well as the individual respondents, thus there has undoubtedly been tacit
authorization of the individual respondents and other City employees’ conduct.” It is
manifestly deficient.
DISPOSITON
The orders are affirmed. Defendants are awarded their costs and attorney fees on
appeal.11
11
Defendants’ brief ends with the request that we “award the City its attorney’s
fees on appeal subject to a showing to this Court by declarations and supporting invoices
as to the reasonableness of the amount of the fees incurred and sought by respondents.”
At oral argument, defendants’ counsel renewed the request that this court hear and
determine the attorney fee issue. We allowed supplemental letter briefing on the subject,
which we have reviewed. And we now deny the request. While defendants are, under
the anti-SLAPP statute, entitled to their fees on appeal (see Evans v. Unkow, supra,
38 Cal.App.4th 1490), the usual procedure is for the trial court to determine the amount
of such fees. (See City of Alhambra v. D’Ausilio (2011) 193 Cal.App.4th 1301, 1310; see
generally, Pearl, Cal. Attorney Fee Awards (2014) § 12.13, p. 12-9.)
22
_________________________
Richman, J.
We concur:
_________________________
Kline, P.J.
_________________________
Brick, J.*
*
Judge of the Alameda County Superior Court, assigned by the Chief Justice
pursuant to article VI, section 6 of the California Constitution.
23
Filed 11/14/14
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FIRST APPELLATE DISTRICT
DIVISION TWO
FLOYD E. SQUIRES et al.,
Plaintiffs and Appellants,
A138768; A139849
v.
CITY OF EUREKA et al., (Humboldt County
Super. Ct. No. DR100894)
Defendants and Respondents.
THE COURT:
The opinion in the above-entitled matter filed on October 17, 2014, was not
certified for publication in the Official Reports. For good cause appearing and pursuant
to California Rules of Court, rule 8.1105, the opinion in the above-entitled matter is
ordered certified for publication in the Official Reports.
Dated: ______________ ___________________________
Kline, P.J.
24
Trial Court: Humboldt County Superior Court
Trial Judge: Honorable W. Bruce Watson
Attorney for Plaintiffs and Appellants: Law Office of Bradford C. Floyd,
Bradford C. Floyd, Carlton D. Floyd
Attorneys for Defendants and Respondents: Cyndy Day-Wilson, City Attorney, City of
Eureka; Burke, Williams & Sorensen,
Manuela Albuquerque
25