Opinion

Durkin v. City and County of San Francisco

Court: California Court of Appeal
Filed: Apr 14, 2023
Status: Published
Cited by: 0 cases
Authority: More cited than 23.1%

The opinion

Filed 4/14/23

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION THREE

CHRISTOPHER DURKIN et al.,

Plaintiffs and Appellants,

A162859, A163639

CITY AND COUNTY OF SAN (City & County of San Francisco

FRANCISCO et al., Super. Ct. No. CPF-20-517317)

Defendants and Respondents;

PHILIP KAUFMAN,

Real Party in Interest and

Respondent.

After the San Francisco Planning Commission (Planning Commission)

approved a final mitigated negative declaration for the proposed renovation

of a residence by Christopher Durkin and 2417 Green Street, LLC

(appellants), Philip Kaufman, the owner of an adjacent property, appealed

the matter to the San Francisco Board of Supervisors (Board), which reversed

the Planning Commission’s decision. Appellants filed a petition for writ of

mandate against the City and County of San Francisco, the Board, the

Planning Commission, and the San Francisco Planning Department

(Planning Department), naming Kaufman as a real party in interest. In

response, Kaufman filed a special motion to strike under the anti-SLAPP1

law (Code Civ. Proc., § 425.16),2 arguing that the petition arose from his

protected petitioning activity and lacked minimal merit. The trial court

granted the anti-SLAPP motion and awarded Kaufman attorney fees as the

prevailing party on the motion.

We conclude the trial court erred in finding the mandamus petition

arose from Kaufman’s protected conduct, as the activities that form the basis

for the petition’s causes of action are all acts or omissions of the Board. That

Kaufman’s administrative appeal preceded or even triggered the events

leading to the petition’s causes of action against the Board did not mean that

the petition arose from Kaufman’s protected conduct within the

contemplation of the anti-SLAPP law. Accordingly, we reverse the anti-

SLAPP order and the related fee award.

FACTUAL AND PROCEDURAL BACKGROUND

We limit our recitation of facts to those relevant to our decision.3

A. First Categorical Exemption

In 2017, appellants filed an application with the Planning Department

to remodel and expand a single-family home located on Green Street in San

Francisco (the project). The Planning Department determined that the

1 The acronym SLAPP stands for “ ‘strategic litigation against public

participation.’ ” (Navellier v. Sletten (2002) 29 Cal.4th 82, 85 & fn. 1

(Navellier).

2 Further section references are to the Code of Civil Procedure unless

specified otherwise.

3 Appellants request judicial notice of various records filed in the

proceedings below and in another action. We deferred consideration of the

request until consideration of the merits of this appeal, and we now deny it,

as the proffered material is unnecessary to our decision. (City of Emeryville

v. Cohen (2015) 233 Cal.App.4th 293, 312, fn. 13.)

project was categorically exempt from environmental review under the

California Environmental Quality Act (Pub. Res. Code, §§ 21000 et seq.)

(CEQA).

Neighbors of the project requested that the Planning Commission

exercise its powers of discretionary review and disapprove the project. They

also appealed the categorical exemption decision to the Board, claiming the

project should not be exempt from CEQA because there was contaminated

soil at the location and the project would block light, air, and views to and

from Kaufman’s neighboring property (the historically significant Coxhead

House) and undermine its foundation.

The Board conditionally reversed the categorical exemption

determination, finding there was substantial evidence that the project may

result in substantial adverse impacts to the historic significance of

Kaufman’s neighboring property that had not been sufficiently addressed in

the categorical exemption for the project.

B. Second Categorical Exemption

Appellants submitted a revised application, and the Planning

Department issued a second categorical exemption in June 2018. However,

the Planning Department later reversed itself and rescinded the second

categorical exemption. Appellants appealed, but the Board declined to hear

the appeal.

C. Mitigated Negative Declarations

After conducting an initial study of the project and determining that

the potential environmental impacts were less than significant, the Planning

Department issued a preliminary mitigated negative declaration in June

2019. The preliminary mitigated negative declaration set forth mitigation

measures to ensure the security and stability of the project site and adjacent

historic resources.

Kaufman appealed the preliminary mitigated negative declaration to

the Planning Commission. In 2020, the Planning Commission denied

Kaufman’s appeal and adopted a final mitigated negative declaration.

D. Kaufman’s Appeal to the Board

Kaufman then appealed the final mitigated negative declaration to the

Board. The Board reversed the Planning Commission’s decision upholding

the final mitigated negative declaration and directed the Planning

Department to conduct further study on slope stability and potential impacts

to the structural integrity of Kaufman’s property and to analyze and apply

appropriate mitigation measures.

E. Appellants’ Petition for Writ of Mandamus

Appellants filed a petition for writ of mandamus against the City and

County of San Francisco, Planning Commission, Planning Department, and

Board (collectively the City). The petition named Kaufman as a real party in

interest and identified him as “the appellant to the underlying administrative

appeal.”

In the petition, appellants alleged that the City “repeatedly and

unlawfully obstructed and delayed taking action on the [p]roject for years,

instead yielding to political pressure exerted by members of the Board and

well-connected neighbors who oppose the [p]roject.” According to the petition,

the Board denied the project “in favor of the neighbors’ unsubstantiated

arguments”; “failed to make any findings in support of its denial”; and

“directed its clerk ‘to prepare findings specifying the basis for its decision’

after the fact. To date, no such findings have been made.” The petition

further alleged on information and belief that “the neighbors who oppose the

[p]roject are politically well-connected and are supported by members of the

Board in their opposition to the Project,” and that “certain neighbors who

filed [discretionary review] requests made political donations to” members of

the Board.

In the first cause of action for writ of mandate under section 1085

and/or 1094.5 and CEQA, the petition alleged that in reversing the Planning

Commission’s approval of the final mitigated negative declaration, “the Board

failed to make any findings supporting its reversal, and instead directed its

clerk to make findings for it after the fact. Because there are no findings in

the record supporting its reversal of the [mitigated negative declaration], the

Board failed to proceed in the manner required by law and/or there is no

substantial evidence that the conditions attached to the adoption of the

[mitigated negative declaration] are insufficient to mitigate the potential

[p]roject impacts (if any).” Appellants further alleged that any evidence that

was contrary to the Planning Department’s findings of less-than-significant

environmental impacts “was unsubstantiated, uncredible, and/or speculative

argument from opposing neighbors.” “Thus, there is no substantial evidence

supporting a fair argument that a significant environmental effect may occur

as a result of the [p]roject, and the Board’s decision on the [mitigated

negative declaration appeal] therefore must be reversed.”

In the second cause of action for writ of mandate under section 1085

and/or 1094.5 and Government Code section 65905.5, appellants alleged the

project is a proposed housing development project within the meaning of

Government Code section 65905.5, which provides that when a project

complies with all applicable, objective general plan and zoning standards in

effect at the time an application is deemed complete, agencies “ ‘shall not

conduct more than five hearings pursuant to [that section], or any other law,

ordinance, or regulation requiring a public hearing in connection with the

approval of that housing development project.’ ” Appellants alleged the

project was consistent with applicable, objective general plan and zoning

standards in effect when the project was deemed complete in 2017, but the

City conducted more than five hearings on the project.

In the petition’s prayer for relief, appellants requested “a writ of

mandate or other appropriate relief, including an injunction, declaration,

and/or order, reversing the Board’s decision to grant the [mitigated negative

declaration appeal] and deny the [p]roject and remanding the [p]roject to the

Board for approval.” Appellants also sought costs of suit and reasonable

attorney fees under “Gov. Code §§ 1021.5 and/or 800.”4

F. Kaufman’s Anti-SLAPP Motion

Kaufman filed an anti-SLAPP motion, contending that the petition

arose from his protected activity of appealing the final mitigated negative

declaration to the Board, and that appellants’ claims lacked minimal merit

because the Board’s decision was based on substantial evidence that the

project may have adverse environmental impacts requiring an environmental

impact report; there is no cause of action for delay in the City’s CEQA

findings; Government Code section 65905.5 exempts CEQA actions from its

five-hearing limit; and the requisite five hearings had not yet occurred.

The City filed a responsive brief in which it took “no position with

respect to the anti-SLAPP claims stated in [Kaufman’s] motion” but

4 The citation to Government Code section 1021.5 appears to be an error

and is more likely a reference to section 1021.5 of the Code of Civil Procedure,

which provides that attorney fees may be awarded to the prevailing party “in

any action which has resulted in the enforcement of an important right

affecting the public interest” under specified circumstances.

concurred with Kaufman’s positions on the merits of the “[CEQA] and

Housing Crisis Act claims advanced in the [p]etition.”

In opposition, appellants argued that Kaufman did not meet his

threshold burden to show that the petition arises from protected activity

because the petition arose not from Kaufman’s appeal to the Board, but from

the Board’s decision. Appellants further argued that their claims met the

minimal merit standard, and that the anti-SLAPP motion was frivolous and

justified the imposition of sanctions against Kaufman.

The trial court granted the anti-SLAPP motion, finding that the

petition arose from Kaufman’s protected act of filing the administrative

appeal, and that the claims in the petition lacked minimal merit. Appellants

timely appealed the anti-SLAPP order in case No. A162859.

The trial court also found Kaufman was entitled to fees as the

prevailing defendant on the anti-SLAPP motion and awarded him

$219,269.25 in total fees. Appellants timely appealed the fee order in case

No. A163639.

We consolidated the appeals for purposes of briefing, argument, and

decision.

DISCUSSION

A. Anti-SLAPP Motion

Section 425.16 authorizes a special motion to strike “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.” (§ 425.16,

subd. (b)(1).) The anti-SLAPP law “allows defendants to request early

judicial screening of legal claims targeting free speech or petitioning

activities” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 880–881

(Wilson)), and its provisions must be construed broadly (§ 425.16, subd. (a)).

The anti-SLAPP law applies to various types of claims (e.g., Navellier, supra,

29 Cal.4th at pp. 89, 92–93 [breach of contract and fraud]); CKE Restaurants,

Inc. v. Moore (2008) 159 Cal.App.4th 262, 265 [declaratory relief]), including,

“in an appropriate case, a petition for mandamus” (San Ramon Valley Fire

Protection Dist. v. Contra Costa County Employees’ Retirement Assn. (2004)

125 Cal.App.4th 343, 353 (San Ramon)).

Resolution of an anti-SLAPP motion involves a two-prong inquiry. The

first prong requires that the moving defendant make a prima facie showing

that the challenged claim or claims arise from the defendant’s

constitutionally protected free speech or petition rights. (Baral v. Schnitt

(2016) 1 Cal.5th 376, 381–382, 396 (Baral).) If the moving party meets its

burden, then under the second prong of the inquiry, the burden shifts to the

plaintiff to demonstrate the merit of the claim by establishing a probability of

success. (Id. at p. 384.) If the moving party fails to satisfy the first prong,

the motion is properly denied without proceeding to second prong. (San

Ramon, supra, 125 Cal.App.4th at p. 357.) A prevailing defendant on a

special motion to strike “shall be entitled to recover” attorney fees and costs,

while a prevailing plaintiff may be entitled to attorney fees and costs if the

court finds that the anti-SLAPP motion was “frivolous or is solely intended to

cause unnecessary delay.” (§ 425.16, subd. (c)(1).)

We review an order on an anti-SLAPP motion de novo. (Soukup v. Law

Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)

There is no dispute that Kaufman’s act of appealing the Planning

Commission’s decision to the Board constituted petitioning activity that

generally is protected under the anti-SLAPP law. (See § 425.16, subd. (e)(1),

(2) [any written or oral statement made before legislative, executive, or

judicial proceeding or in connection with issue under consideration or review

by legislative, executive, or judicial body]; Midland Pacific Building Corp. v.

King (2007) 157 Cal.App.4th 264, 272 [submissions to planning commission

and city council in course of official proceeding were protected petitioning

activities].) The dispute here concerns whether appellants’ mandamus

petition arises from Kaufman’s petitioning activity. We conclude it does not.

“A claim arises from protected activity when that activity underlies or

forms the basis for the claim. [Citations.] Critically, ‘the defendant’s act

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

furtherance of the right of petition or free speech.’ [Citations.] . . . . ‘[T]he

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 v. Board of Trustees of California State

University (2017) 2 Cal.5th 1057, 1062–1063, italics omitted (Park).) In

enacting the anti-SLAPP law, the Legislature “had in mind allegations of

protected activity that are asserted as grounds for relief. The targeted claim

must amount to a ‘cause of action’ in the sense that it is alleged to justify a

remedy.” (Baral, supra, 1 Cal.5th at p. 395.) Thus, the California Supreme

Court has instructed that “in ruling on an anti-SLAPP motion, courts should

consider the elements of the challenged claim and what actions by the

defendant supply those elements and consequently form the basis for

liability.” (Park, at p. 1063.)

Park is instructive. There, the Supreme Court held that a

discrimination claim brought by a university professor who was denied

tenure did not arise from the university’s protected statements and

communications during the official tenure process, but rather, from the

university’s unprotected act of denying tenure purportedly based on the

plaintiff’s national origin. (Park, supra, 2 Cal.5th at p. 1068.) Employing an

elements-focused approach, Park held that the elements of the discrimination

claim “depend 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.” (Id.

at pp. 1063, 1068.) The university’s protected statements “may supply

evidence of animus, but that does not convert these statements themselves

into the basis for liability.” (Id. at p. 1068.)

Also instructive is City of Cotati v. Cashman (2002) 29 Cal.4th 69 (City

of Cotati), where the Supreme Court held that a state court declaratory relief

action filed by the City of Cotati alleging a controversy with mobilehome park

owners over the constitutionality of a rent stabilization ordinance did not

arise out of protected activity even though it was filed in response to the

owners’ prior federal court declaratory relief action challenging the

constitutionality of the same ordinance. (City of Cotati, at pp. 71–72.) As the

court explained, “the mere fact an action was filed after protected activity

took place does not mean it arose from that activity. The anti-SLAPP statute

cannot be read to mean that ‘any claim asserted in an action which arguably

was filed in retaliation for the exercise of speech or petition rights falls under

section 425.16, whether or not the claim is based on conduct in exercise of

those rights.’ ” (City of Cotati, at pp. 76–77.) “[A] claim filed in response to,

or in retaliation for, threatened or actual litigation is not subject to the anti-

SLAPP statute simply because it may be viewed as an oppressive litigation

tactic. [Citation.] That a cause of action arguably may have been triggered

by protected activity does not entail that it is one arising from such.” (Id. at

p. 78.)

Here, the petition asserts two causes of action for mandamus.

“ ‘Generally, a writ of ordinary mandate will lie when (1) there is no plain,

speedy and adequate alternative remedy, (2) the public official has a legal

and usually ministerial duty to perform and (3) the petitioner has a clear and

beneficial right to performance.’ ” (Cape Concord Homeowners Assn. v. City

of Escondido (2017) 7 Cal.App.5th 180, 189.) The factual allegations of the

petition that supply these elements are the Board’s failure to make factual

findings in support of its decision to reverse the final mitigated negative

declaration; the lack of substantial evidence supporting the Board’s decision;

and the Board’s convening of more than five hearings on the project—all acts

or omissions of the Board. Although the petition names Kaufman as a real

party in interest and alleges he filed the appeal that led to the Board’s

decision, the petition seeks no coercive relief against Kaufman, and the

allegations of his petitioning activity do not supply any of the elements of the

asserted causes of action. Accordingly, the petition does not arise from

Kaufman’s petitioning activity. (Park, supra, 2 Cal.5th at p. 1063.)

It makes no difference that Kaufman’s appeal of the final mitigated

negative declaration directly preceded or even triggered the events leading to

the petition’s causes of action against the Board. “A claim may be struck

under the anti-SLAPP statute ‘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.’ ” (Wilson, supra, 7

Cal.5th at p. 890.) “That a cause of action arguably may have been triggered

by protected activity does not entail that it is one arising from such.” (City of

Cotati, supra, 29 Cal.4th at p. 78.) Thus, at most, the allegation of

Kaufman’s protected activity “merely provide[s] context, without supporting a

claim for recovery,” but such contextual allegations are not subject to being

stricken under the anti-SLAPP statute. (Baral, supra, 1 Cal.5th at p. 394;

see also Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1012

[concluding it was appropriate to consider whether the plaintiff’s “various

allegations supply the elements of a retaliation claim or merely provide

context”].)

Appellants and the City both cite Rudisill v. California Coastal Com.

(2019) 35 Cal.App.5th 1062 (Rudisill) as supporting their respective

positions. In Rudisill, the petitioners filed a mandamus petition contesting

building permit decisions by the California Coastal Commission (Coastal

Commission) and the City of Los Angeles, naming as real parties in interest

the persons and entities who had applied for the permits. (Id. at p. 1068.)

The petition alleged that the Coastal Commission violated applicable laws by

processing permits for the demolition of existing structures and for new

construction separately rather than as a single application, and that the real

parties in interest filed permits for demolition and new construction in such

close temporal proximity as to result in “ ‘a piecemealing of the demolition

and the new construction.’ ” (Ibid.)5 The trial court denied the real parties in

interest’s anti-SLAPP motion and imposed attorney fees on them for filing a

frivolous motion. (Id. at p. 1069.) On appeal from the fee award, the

appellate court reversed, concluding the anti-SLAPP motion was not frivolous

because the real parties in interest could have reasonably concluded (1) they

were “ ‘person[s]’ ” against whom a cause of action was asserted within the

meaning of the anti-SLAPP statute; and (2) the petition’s “claim for attorney

5 The petition also alleged that one of the real parties in interest

“participated in a below market sale involving related parties that ‘may have

been done in order to evade the requirements to treat the permits for the

Grand Blvd Unified Development as one project.’ ” (Rudisill, supra, 35

Cal.App.5th at p. 1073.)

fees,” which was not limited to a fee award against the government

respondents, was a claim asserted against them that arose from their

protected conduct of filing permits. (Rudisill, at pp. 1066, 1075.)

For its part, the City relies on portions of the Rudsill decision in which

the court analyzed the statutory phrase from section 425.16, subdivision

(b)(1) “[a] cause of action against a person” (not at issue here) and generally

held that the real parties in interest reasonably concluded the petition

asserted a claim against them arising from their protected conduct. But as

appellants point out, in navigating the latter issue, Rudisill first observed

that “[t]he trial court was on solid ground in concluding that the mandamus

relief Petitioners sought against the Commission and the City did not arise

from Real Parties in Interest’s petitioning conduct”—i.e., their filing of

applications for building permits—because the petitioning conduct “was not a

necessary part of Petitioners’ claim that the governmental entities

themselves acted unlawfully.” (Rudisill, supra, 35 Cal.App.5th at p. 1075.)

This merits assessment, relevant to Rudisill’s evaluation of whether the anti-

SLAPP motion was frivolous, reinforces our conclusion that Kaufman’s

petitioning conduct was not a necessary part of appellants’ mandamus claims

against the City.

In a separate part of its analysis that neither the City nor Kaufman

cited in their briefs, Rudisill held that the real parties in interest reasonably

viewed the petition’s “claim for attorney fees” as a claim arising from their

petitioning activity. (Rudisill, supra, 35 Cal.App.5th at p. 1072.) On this

score, Rudisill reasoned as follows. A real party in interest who actively

participates in litigation may be considered an “opposing part[y]” for

purposes of fee shifting under section 1021.5. (Id. at pp. 1072–1073, citing

section 1021.5 and Mejia v. City of Los Angeles (2007) 156 Cal.App.4th 151,

160.) Because the petition at issue alleged that the real parties in interest

were “participants in regulatory missteps or outright wrongdoing” and were

therefore “at least partially responsible for the alleged improper

‘piecemealing’ of the challenged development because of the permits that they

filed,” it was reasonable for the real parties in interest to believe that the

petition asserted claims for relief against them that arose from their

protected conduct. (Rudisill, at pp. 1072–1073, 1075.)

Assuming, without deciding, that Rudisill correctly concluded the anti-

SLAPP law applies to a request for attorney fees contained in a prayer for

relief (but see Coretronic Corp. v. Cozen O’Connor (2011) 192 Cal.App.4th

1381, 1392 [anti-SLAPP statute does not apply to remedies sought in prayer

for relief]), we conclude Rudisill’s attorney fee rationale does little to assist

our analysis. First, as mentioned, neither the City nor Kaufman relied on

this portion of Rudisill in their briefs or advanced a similar argument based

on the petition at issue here. Second, our review of the petition discloses no

specific factual allegations that Kaufman was at least partially responsible

for the challenged practices of the Board that gave rise to this litigation such

that Kaufman could be liable for section 1021.5 attorney fees under Rudisill’s

rationale. Instead, the petition’s sole allegation regarding Kaufman is that

he filed the underlying administrative appeal.6

6 The petition alleges that anonymous “neighbors” engaged in “political

pressure” on the Board, made political donations to Board members, engaged

in a “campaign of opposition to the [p]roject,” and made “unsubstantiated

arguments” before the Planning Commission. But the petition does not

allege that Kaufman was one of those neighbors, and Kaufman did not argue

or submit evidence below that he understood these references to apply to him.

Kaufman cited only his administrative appeal as the protected activity

allegedly targeted by the petition. That said, we express no opinion on the

ultimate question of whether Kaufman could be liable to appellants for

section 1021.5 attorney fees at the conclusion of this litigation.

Next, Kaufman and the City contend it was unnecessary for appellants

to name Kaufman in the petition because he is not a necessary or

indispensable party within the meaning of section 389,7 nor is he among the

persons deemed real parties in interest under certain provisions of CEQA

(see Pub. Res. Code, § 21065, subds. (b) [person receiving contracts, grants,

subsidies, loans, or other assistance from public agency], (c) [person receiving

lease, permit, license, certificate or other entitlement by public agency];

§ 21167.6.5, subd. (a) [petitioner shall name as real party in interest persons

identified by public agency in notice under § 21108 or § 21152 or, if no notice

filed, persons in § 21065, subds. (b) or (c)]). From this, Kaufman and the City

conclude that the only reason Kaufman was named a real party in interest

was because he appealed the Planning Commission’s approval of the final

mitigated negative declaration to the Board. In response, appellants argue

that (1) the City and Kaufman have already taken a contrary position that

Kaufman is an interested and/or necessary party to this case, and they are

judicially estopped from claiming otherwise; (2) Kaufman has already

demonstrated his interest in the subject matter of this case by filing a

separate court action challenging an administrative decision on the same

project; and (3) appellants offered to dismiss Kaufman as a real party in

interest if he disclaimed any interest in the proceeding and the City agreed to

adequately represent his interests, but neither Kaufman nor the City agreed

to the proposal.

7 Under section 389, a person “shall” be joined as a party in an action if

(1) complete relief cannot be accorded among those already parties in his or

her absence or (2) he or she claims an interest in the subject of the action and

is so situated that disposition in his or her absence may, as a practical

matter, impair or impede his or her ability to protect that interest, or leave

any of the parties subject to a substantial risk of multiple or inconsistent

obligations. (§ 389, subd. (a).)

We need not wade into this thicket. Even assuming for the sake of

argument that it was unnecessary for appellants to name Kaufman as a real

party in interest, it does not follow that their doing so subjected their petition

to application of the anti-SLAPP law. The anti-SLAPP law does not target

unnecessary claims, but those that arise from protected conduct. (§ 425.16,

subd. (b)(1); Park, supra, 2 Cal.5th at p. 1063.) Consequently, the pertinent

inquiry is whether Kaufman’s petitioning activity is itself the wrong

complained of in the petition or the basis for any relief claimed therein. (See

Wilson, supra, 7 Cal.5th at p. 884; Park, at p. 1063; Baral, supra, 1 Cal.5th at

p. 395.) As we have explained, it is not.8

8 If Kaufman is not a necessary party as he contends, then it stands to

reason there is no need for him to actively participate in the proceedings,

thereby undercutting another premise of Rudisill’s attorney fee rationale.

Although Kaufman and the City suggest that Kaufman is being forced to

defend the Board’s decision, they are incorrect. Merely naming a person as

the real party in interest in a mandamus petition does not compel that person

to defend the litigation. It simply confers certain rights, i.e., to be served

with the petition, to file an answer or other pleadings, and to be heard before

the court issues a peremptory writ. (Inland Counties Regional Center, Inc. v.

Office of Administrative Hearings (1987) 193 Cal.App.3d 700, 704; Sonoma

County Nuclear Free Zone ’86 v. Superior Court (1987) 189 Cal.App.3d 167,

173.) A real party in interest may simply decline to participate. (See, e.g.,

Bolsa Chica Land Trust v. Superior Court (1999) 71 Cal.App.4th 493, 500–

501, 517 [attorney fees awarded only against two real parties in interest who

actively participated in litigation], overruled on other grounds in Dhillon v.

John Muir Health (2017) 2 Cal.5th 1109, 1116, fn. 2; and Washburn v. City of

Berkeley (1987) 195 Cal.App.3d 578, 582, 591, 593 [awarding proportioned

attorney fees against one of nine named real parties in interest who opposed

mandamus petition against city]; see also Harris v. Alcoholic Beverage

Control Appeals Board (1966) 245 Cal.App.2d 919, 923 [real party in interest

who did not participate in trial court still had right to appeal judgment].)

The remaining case authorities cited by the City and Kaufman in

support of the trial court’s decision are distinguishable and do not compel a

different conclusion.

In Levy v. City of Santa Monica (2004) 114 Cal.App.4th 1252 (Levy), the

plaintiffs sought declaratory and injunctive relief and damages against the

City of Santa Monica and a city council member (collectively the city

defendants), alleging a controversy over whether a playhouse on the

plaintiffs’ property complied with building regulations. (Id. at pp. 1256–

1257.) In one of their causes of action, the plaintiffs sought a declaratory

judgment and a permanent injunction precluding the city defendants from

discussing the playhouse matter with planning department staff. (Id. at

p. 1257.) The complaint named the plaintiffs’ neighbor as a real party in

interest and alleged that she had complained to the city about the playhouse.

(Id. at p. 1256.) Levy held that the city defendants met their initial burden

under the anti-SLAPP law because the complaint arose from their

constitutionally protected speech (i.e., speaking with city planning

department employees on behalf of a constituent to inquire about the

playhouse) and sought to enjoin such communications. (Id. at pp. 1255,

1258–1259.)

Unlike the instant matter, the anti-SLAPP movant in Levy was the

government, not the real party in interest. Thus, Levy did not actually hold

that naming the neighbor as a real party in interest triggered the protections

of the anti-SLAPP law as to her. True, Levy remarked that the neighbor’s

complaint to the city was “constitutionally protected speech” (Levy, supra,

114 Cal.App.4th at pp. 1258–1259), but this statement was unnecessary to

the court’s decision that the complaint arose from the city defendants’

protected conduct. As to those parties, Levy soundly concluded the first prong

was met, as the plaintiffs sought a declaratory judgment and a permanent

injunction precluding city council members from their protected acts of

discussing the playhouse matter with planning department staff. (Id. at

p. 1257.) Although Levy predated Baral, these allegations met both Park’s

elements-based approach and Baral’s formulation that the allegations of

protected activity must be asserted as grounds for relief. Here, in contrast,

the petition does not meet the Park elements test or any other formulation

articulated by the California Supreme Court in recent years for determining

whether a claim arises from protected activity.

After the conclusion of briefing, Kaufman filed a notice of new

authority citing City of Oxnard v. Starr (2023) 88 Cal.App.5th 313 (Oxnard).

There, the City of Oxnard brought a declaratory relief action challenging two

initiative measures passed by the electorate. (Id. at p. 318.) The complaint

named as the sole defendant an Oxnard resident (Aaron Starr) who was a

proponent of the measures and had gathered signatures for them. (Ibid.)

Distinguishing Park, the appellate court held that the complaint arose from

Starr’s protected activity, as “Starr was sued because he is a proponent of two

initiatives. Being a proponent of an initiative is an activity that clearly

constitutes protected speech and petitioning.” (Id. at p. 321.)

Notably, Oxnard contains no discussion as to whether Starr’s advocacy

or signature gathering were, themselves, the wrongs complained of in the

complaint (Wilson, supra, 7 Cal.5th at p. 884), or whether such protected acts

supplied the elements of the declaratory relief cause of action (Park, supra, 2

Cal.5th at p. 1063). From the Oxnard opinion, it appears the government

sought to void the initiatives not because of anything Starr said or did, but on

the ground that the measures were administrative rather than legislative in

nature, and the electorate only had the power to initiate legislative acts.

(Oxnard, supra, 88 Cal.App.5th at pp. 320–321.) In any event, as the Oxnard

court acknowledged in its second prong analysis, the case involved unique

circumstances in which, apart from Starr, there was “no other logical

defendant” to sue for declaratory relief. (Id. at p. 323 [observing that Starr

had been conferred legal standing to defend the measures by both the

language of the measures themselves and Perry v. Brown (2011) 52 Cal.4th

1116, 1152].) Here in contrast, appellants brought a mandamus proceeding

challenging particular acts and omissions of the City, making the City the

“logical” respondent in this case. As such, all of the petition’s claims for relief

were asserted against the City. On this record, Oxnard is not controlling.

In sum, appellants’ mandamus petition does not arise from Kaufman’s

protected petitioning activity because that conduct is not the wrong

complained of; the allegations of such conduct do not supply any of the

elements of appellants’ causes of action; and the petitioning activity is not

asserted as grounds for relief. (Wilson, supra, 7 Cal.5th at p. 884; Park,

supra, 2 Cal.5th at p. 1063; Baral, supra, 1 Cal.5th at p. 395.) Thus,

Kaufman failed to carry his initial burden on the anti-SLAPP motion, and the

motion should have been denied. (San Ramon, supra, 125 Cal.App.4th at

p. 357.) Furthermore, because it was error to find that Kaufman prevailed on

his anti-SLAPP motion, the order granting Kaufman’s motion for attorney

fees must also be reversed and vacated.

B. Frivolous Anti-SLAPP Motion

Appellants contend the anti-SLAPP motion was frivolous and

sanctionable under section 425.16, subdivision (c). Because the parties

appear to agree that we may decide this issue in the first instance, we will

reach the merits. For the reasons below, we conclude the motion was not

frivolous or solely intended to cause unnecessary delay, and accordingly, we

deny the request for sanctions.

Section 425.16, subdivision (c)(1), provides in pertinent part that “[i]f

the court finds that a special motion to strike is frivolous or is solely intended

to cause unnecessary delay, the court shall award costs and reasonable

attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section

128.5.” “ ‘Frivolous in this context means that any reasonable attorney would

agree the motion was totally devoid of merit.’ ” (L.A. Taxi Cooperative, Inc. v.

The Independent Taxi Owners Assn. of Los Angeles (2015) 239 Cal.App.4th

918, 932; see § 128.5, subd. (b)(2) [“ ‘Frivolous’ means totally and completely

without merit or for the sole purpose of harassing an opposing party”].)

As discussed, Rudisill held on facts procedurally similar to those here

that an anti-SLAPP motion was not frivolous. Thus, a reasonable attorney

could have relied on Rudisill to conclude that Kaufman’s anti-SLAPP motion

was not totally devoid of merit. Appellants provide no evidentiary basis for

concluding the anti-SLAPP motion was brought solely for the purpose of

harassment or delay. Accordingly, we conclude the anti-SLAPP motion was

not frivolous, and we deny appellants’ request for attorney fees and costs

under section 425.16, subdivision (c).

DISPOSITION

The orders granting Kaufman’s anti-SLAPP motion and motion for

attorney fees are reversed and vacated. On remand, the trial court is

directed to enter a new order denying both motions. Appellants’ request for

attorney fees and costs under section 425.16, subdivision (c), is denied.

Appellants shall recover their costs on appeal.

FUJISAKI, J.

WE CONCUR:

TUCHER, P.J.

PETROU, J.

Trial Court: City & County of San Francisco Superior Court

Trial Judge: Hon. Rochelle C. East

Counsel: Zacks & Freedman, Ryan J. Patterson, and Emily Lowther

Brough for Plaintiff and Appellant

David Chiu, City Attorney, Kristen Ann Jensen, Audrey

Williams Pearson, and Lauren Skellen, Deputy City

Attorneys for Defendants and Respondents

Lozeau Druty, Richard Toshiyuki Drury; and Law Office of

Jonathan Weissglass, Jonathan David Weissglass for

Real Party in Interest

Durkin v. City and County of San Francisco (A162859 & A163639)

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