Filed 2/27/20 Schmidt v. Woo CA2/1

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

JACOB CARL SCHMIDT, JR., et al.,

Plaintiffs and Respondents,

v.

SUZIE WOO,

Defendant and Appellant.

B294283

(Los Angeles County

Super. Ct. No. BC693741)

APPEAL from an order of the Superior Court of Los Angeles County, Malcolm Mackey, Judge. Affirmed.

Walton Law Group, John R. Walton and Ali Z. Vaqar, for Defendant and Appellant.

Law Offices of James W. Bates and James Bates, for Plaintiffs and Respondents.

________________________

INTRODUCTION

Plaintiffs Jacob Carl Schmidt, Jr. and Grace Desi Schmidt own real property that abuts defendant Suzie Woo’s lot. Both properties are in the City of Los Angeles (City). The Schmidts allege that in 2015, Woo built a deficient, dangerous retaining wall on their adjacent lot line without a permit. That same year, the City issued a notice informing Woo the wall was illegal and ordering her to stop all construction and apply for the requisite permits. In 2016 and again in 2017, Woo applied for the necessary permits. Both times, the City informed Woo it could not approve the applications until she satisfied certain prerequisites.

In 2018, the Schmidts sued Woo for nuisance and for willful and negligent trespass. Woo responded by filing a special motion to strike under the anti-SLAPP statute directed at the private nuisance cause of action. Woo argued the Schmidts were targeting her right to petition the City for permits, as well as her right to communicate regarding the petitioning process, and that the nuisance cause of action was meritless. The trial court denied the special motion to strike, holding the nuisance claim did not arise from protected activity, and that even if it did, the Schmidts had shown the requisite probability they would prevail.

Woo now appeals, contending the trial court erred in denying her special motion to strike. We disagree and affirm.

BACKGROUND

A. Factual Background

1. The Retaining Wall

The Schmidts own property directly uphill from Woo’s property. The southernmost border of the Schmidts’ property abuts the northernmost border of Woo’s parcel. The Schmidts assert that in 2015, Woo built an unpermitted 17-foot retaining wall on the lot line between the two properties. The Schmidts claim the wall was built with insufficient engineering, footings, drainage, moisture barriers, and fall protections. As a result, the wall is incapable of holding backfilled materials and bows outward towards the Schmidts’ property.

On March 18, 2015, after receiving an anonymous complaint regarding the wall, the City issued an Order to Comply Notice (2015 Order) to Woo. The 2015 Order informed Woo her property was in violation of the Los Angeles Municipal Code (LAMC). The City ordered Woo to “[s]top all work being performed without the required permit(s)” and “[o]btain all required permits and approvals prior to commencing any work.” The Order assessed fees against Woo and warned her that violating the LAMC was a misdemeanor punishable by a fine and/or imprisonment.

One year later, on March 15, 2016, Woo applied to the Los Angeles Department of Building and Safety (LADBS) for a permit to grade and construct the wall. Three days after Woo submitted the application, LADBS issued a Grading Pre-Inspection Report (2016 GPI), informing her the City would not issue any grading permits until Woo satisfied a series of requirements, including obtaining the required retaining wall permit as well as an Occupational Safety and Health Administration permit, obtaining and incorporating a soil report, conducting required drainage to the street or an approved location, retaining a Registered Deputy Inspector, compacting the fill or backfill, specifying the building plans, and staking and flagging the property lines in accordance with a licensed survey map.

Three months later, on June 30, 2016, Grace Schmidt sent Woo a demand letter (the 2016 Demand Letter) asking that Woo take remedial action regarding the wall. Specifically, Woo was asked to remove the backfill and wall within 10 days of receiving the letter. According to the Schmidts, Woo did not respond to the letter or abide by its requests.

On October 2, 2017, over a year and a half after having been issued the 2016 GPI and over a year after receiving the 2016 Demand Letter, Woo again applied to LADBS for a permit to grade and construct what City documents refer to at that point as the “collapsed” wall. Two days later, LADBS issued a second GPI (2017 GPI), again telling Woo that the permit would not be issued unless Woo obtained the predicate permits, conducted the inspections, and abided by the requirements listed in the 2016 GPI.

On February 22, 2018, about four months after the City issued the 2017 GPI and about a week after the Schmidts filed the underlying nuisance and trespass complaint, Woo applied for, and LADBS issued, a permit to allow Woo to construct or fix the wall in order to comply with the 2015 Order. On May 14, 2018, however, LADBS issued a Correction Notice (2018 Correction Notice), ordering Woo to obtain appropriate permits to repair the retaining wall because the application for the permit issued on February 22 had included incorrect diagrams of the wall. The 2018 Correction Notice also ordered Woo to obtain the permits and reports needed to comply with the 2015 Order and both GPI’s.

A few weeks later, on May 30, 2018, one of Woo’s representatives contacted LADBS’s Grading Department to ask what Woo could do to restore the hillside. The Grading Department responded the next day, telling the representative that Woo must submit an addendum report, obtain a permit to demolish the unpermitted wall, submit plans and obtain a grading permit to restore the slope, and obtain all required inspections and reports and submit them to the City for approval. There is no information in the record indicating whether Woo addressed any of these action items.

2. The Schmidts’ Other Allegations

The Schmidts allege a variety of other facts beyond the retaining wall constituting a nuisance and trespass. Because Woo’s special motion to strike does not challenge these other allegations, we summarize them only briefly. The Schmidts allege Woo constructed a chain link fence on the easternmost part of their adjoining lot line without a permit, and in the process trespassed onto their property and removed part of the Schmidts’ preexisting fence. The Schmidts allege Woo constructed a second story on her residence, which blocks the view from the Schmidts’ property. The Schmidts assert Woo has two large dogs that escape from Woo’s yard and run onto the Schmidts’ property, in violation of the LAMC. Finally, Woo allegedly harasses the Schmidts’ tenants whenever those tenants use the jacuzzi on the Schmidts’ property.

B. Procedural Background

1. The Schmidts’ Complaint

On February 14, 2018, the Schmidts filed a complaint against Woo, seeking damages and injunctive relief based on claims of nuisance, and willful and negligent trespass. The complaint alleges Woo’s use and maintenance of her property constitute a nuisance under Civil Code section 3479. The retaining wall, the Schmidts argue, poses a serious threat of damage to their property, as well as of personal injury to the Schmidts and their tenants. The Schmidts allege that Woo committed willful and negligent trespass onto the Schmidts’ property by building the chain link fence and by allowing her dogs to run onto their property. The Schmidts also assert Woo’s use of her property has adversely impacted the Schmidts’ property’s value.

The Schmidts sought damages and a permanent injunction requiring Woo to remove the wall, the chain link fence, and the second story of the house on Woo’s property, to enjoin Woo and her dogs from trespassing onto the Schmidts’ property, and to enjoin Woo from harassing the Schmidts, their tenants, and their guests.

In support of their complaint, the Schmidts attached the 2016 Demand Letter and the 2017 GPI.

2. Woo’s Anti-SLAPP Motion

On October 12, 2018, Woo filed a special motion to strike under the anti-SLAPP statute, Code of Civil Procedure section 425.16. The motion sought to strike the nuisance cause of action, arguing it arose from Woo’s efforts to comply with the City’s 2015 Order and later permitting process, as well as her communications with the City. Woo reasoned that because obtaining permits is protected activity under section 425.16, and because her compliance with the 2015 Order and associated permitting process was a prerequisite to obtaining permits to remediate the retaining wall, her failure to tear down, fix, or take any other remedial action regarding the wall was in furtherance of protected activity.

Woo also argued that the Schmidts’ nuisance cause of action was meritless. First, she asserted, it was not supported by a sufficient prima facie showing of facts. Second, the nuisance claim relied on communications about City enforcement efforts subject to the litigation privilege (Civ. Code, § 47, subd. (b)). Third, the Schmidts’ requested remedy—an injunction mandating Woo take down the wall—would be either idle (ordering Woo to apply for permits for which she had already applied) or illegal (by forcing her to take down the wall without the City’s permission).

Woo sought $15,060 in attorneys’ fees necessitated by the special motion to strike.

In support of her motion, Woo attached her own declaration, declarations of her attorneys, documents regarding Woo’s property found on LADBS’s webpage, the 2015 Order, the 2016 GPI, a 2018 e-mail exchange between her representative and LADBS’s Grading Department, and the 2018 Correction Notice. She also sought judicial notice of the underlying complaint and of the 2013 deed to her property.

3. The Schmidts’ Opposition

The Schmidts opposed the special motion to strike, asserting their nuisance claim did not arise from protected conduct. The Schmidts further argued that to the extent their nuisance claim did arise from protected activity, they had established a probability of succeeding on the merits because the 2018 Correction Notice ordered Woo to obtain the requisite permits and Woo still had not done so. The Schmidts argued the trial court should deny Woo’s request for attorneys’ fees and should instead award them $5,600 in attorneys’ fees.

In support of their opposition, the Schmidts attached declarations from Grace Schmidt, their attorney, and a building contractor who described how the wall was deficient. The Schmidts also attached Woo’s February 2018 permit application, as well as a survey that Grace Schmidt asserted Woo delivered to her in 2015 before Woo constructed the wall.

4. The Trial Court’s Denial of Woo’s Motion

On November 30, 2018, the trial court denied Woo’s special motion to strike. The court found the Schmidts’ nuisance cause of action arose from Woo’s construction of a defective, unpermitted wall and Woo’s dogs trespassing onto the Schmidts’ property, and not from Woo seeking to obtain permits related to the wall. The court further held that even if the nuisance claim did arise from protected activity, the Schmidts had shown the claim had the requisite level of merit, since there was evidence in the record Woo was involved with the defective wall. The court also explained that a cause of action for nuisance did not require that Woo’s conduct be willful or malicious; assertions of omissions and alleged negligence were enough. Finding the motion was not frivolous or solely intended to cause unnecessary delay, the court declined to award attorneys’ fees to the Schmidts.

Woo timely appealed.

DISCUSSION

A. Standard of Review

We review the denial of a special motion to strike under the anti-SLAPP statute de novo. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 (Park).)

B. The Trial Court Did Not Err in Denying Woo’s Special Motion to Strike

1. The Statutory Framework

The Legislature enacted section 425.16 to “combat lawsuits designed to chill the exercise of free speech and petition rights.” (Park, supra, 2 Cal.5th at p. 1060.) To that end, the anti-SLAPP statute 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 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.” (§ 425.16, subd. (b)(1).) Acts in furtherance of the rights of petition and speech include statements made before, or in connection with an issue under consideration by, an official proceeding authorized by law. (§ 425.16, subds. (e)(1)-(2); Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115 (Briggs).)

When considering whether a claim should be struck, courts undertake a two-prong analysis. “First, the court must decide whether the defendant has made a prima facie showing that the acts of which the plaintiff complains were taken in furtherance of the defendant’s rights of petition or free speech. [Citation.] If the defendant carries that burden, the burden shifts to the plaintiff to show a probability of prevailing on the claim. [Citation.] The plaintiff can carry his burden by making a prima facie showing of facts that would, if proved, support a judgment in his favor. [Citation.] The court’s consideration of the defendant’s evidence is limited to determining whether it defeats the plaintiff’s showing as a matter of law. [Citation.] The trial court does not weigh the evidence or make credibility determinations. [Citation.]” (Midland Pacific Building Corp. v. King (2007) 157 Cal.App.4th 264, 271 (Midland).)

2. The Nuisance Cause of Action Does Not Arise From Protected Activity

Woo asserts the nuisance cause of action arises from her protected activity of petitioning the City for permits, as well as communicating with the City throughout the petitioning process. Woo argues that: (1) the City has directed she cannot abate the alleged nuisance posed by the retaining wall until she obtains the requisite permits, and therefore (2) the nuisance claim “targeted her protected petitioning activity, namely her engaging in the permit-seeking process and complying with the City’s directives,” by seeking to compel Woo “to abandon the permit-seeking process and engage in the illegal act of fixing the alleged nuisance immediately . . . .”

For a claim to be struck under the anti-SLAPP statute, it is not enough that it be related to defendant’s protected activity. It must arise from such activity. (§ 425.16, subd. (b)(1).) “A claim arises from protected activity when that activity underlies or forms the basis for the claim.” (Park, supra, 2 Cal.5th at p. 1062.) In turn, an activity “underlies or forms the basis of the claim” only where 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.” (Id. at p. 1060.) We must be “attuned to and . . . take[] care to respect the distinction between activities that form the basis for a claim and those that merely lead to the liability-creating activity . . . .” (Id. at p. 1064.) Accordingly, “in ruling on an anti-SLAPP motion, courts should consider the elements of a challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.’ ” (Id. at p. 1063.)

We agree with the trial court that the Schmidts’ claims of nuisance do not arise from protected activity. Woo’s acts of petitioning to and communicating with the City are not the wrong complained of, do not supply the elements of the challenged claim, and do not form the basis for liability. (Park, supra, 2 Cal.5th at pp. 1060, 1063.) The wrong complained of is not petitioning activity, or Woo’s communication with the City, but rather Woo’s negligent or reckless failure over the past five years to tear down or fix the allegedly dangerous wall she built. Indeed, protected activity is not even mentioned in the paragraphs identified in the special motion to strike. Paragraph 10 lists a variety of ways in which the wall is deficient and mentions the wall “was built without permits.” Paragraph 14 alleges the wall does not comply with the 2017 GPI. Paragraphs 20―25 and 27 do not mention permits at all. Paragraph 26 alleges the wall was built without permits, and in violation of the LAMC.

Nor does protected petitioning or speech activity supply the elements of the challenged claim, or form the basis for liability. The elements of a private nuisance cause of action are enumerated in CACI No. 2021. They are: (1) that the Schmidts own their property; (2) that Woo, by acting or failing to act, created a condition or permitted a condition to exist that was harmful or potentially dangerous to the Schmidts’ property; (3) that Woo’s conduct in acting or failing to act was either intentional and unreasonable or unintentional but negligent or reckless; (4) that this condition substantially interfered with the Schmidts’ use or enjoyment of their land; (5) that an ordinary person would reasonably be annoyed or disturbed by Woo’s conduct; (6) that the Schmidts did not consent to Woo’s conduct; (7) that the Schmidts were harmed; (8) that Woo’s conduct was a substantial factor in causing the Schmidts harm, and (9) that the seriousness of the harm outweighs the public benefit of Woo’s conduct. Woo suggests the Schmidts are relying on her participation (or rather, her lack of participation) in the petitioning process to prove the third element—that her actions were intentional, reckless, or negligent—based on her alleged delay in obtaining permits to abate the nuisance. But when, as is the case here, petitioning or speech activity is “just evidence of liability or a step leading to some different act for which liability is asserted,” the first prong of the anti-SLAPP statute is not met. (Park, supra, 2 Cal.5th at p. 1060.)

Woo primarily relies on three cases where courts have found claims arose from petitioning the government—Briggs, Midland, and Levy v. City of Santa Monica (2004) 114 Cal.App.4th 1252 (Levy). Those cases, however, are inapposite. In Briggs, the plaintiffs’ three causes of action—defamation, and intentional and negligent infliction of emotional distress—all stemmed directly from statements or writings that the defendant made in official proceedings or in connection with issues under consideration by governmental bodies. (19 Cal.4th at pp. 1114―1115.)

Similarly, in Levy, plaintiffs sought injunctive and declaratory relief against the City of Santa Monica and a city council member from taking enforcement action against a nonconforming playhouse in plaintiffs’ backyard. (114 Cal.App.4th at pp. 1256―1257.) The plaintiffs alleged their neighbors complained to the city council member about the playhouse, and the city council member forwarded the complaint to the city’s planning staff. (Id. at pp. 1258.) Because the city council member’s communication with both the city planning staff and his constituent were protected petitioning activity, and the claims arose from and sought to prevent such communication, the court found the first prong of the anti-SLAPP analysis met. (Id. at pp. 1258―1259.)

In Midland, the parties had entered a contract for defendants to obtain governmental approval of a development plan. (157 Cal.App.4th at p. 273.) Plaintiff then sued the defendants for submitting what plaintiff believed was the wrong plan to the city. (Id. at p. 269.) The court held that, because the action underlying the plaintiff’s breach of contract claim was the communication to the city itself, and because this communication was the essence of the entire contract, the claim arose from protected activity. (Id. at pp. 272―273.) The court noted, however, that “modern real estate development almost always requires governmental permits. The anti-SLAPP statute will not protect a developer from a complaint for breach of contract simply because the developer sought governmental permits for the activity that constitutes the breach.” (Id. at p. 273.)

As opposed to Briggs, Levy, and Midland, the Schmidts’ nuisance claim does not directly arise from protected activity and does not seek to bar speech or petitioning activity. Instead, as the Midland court observed, the anti-SLAPP statute does not apply “simply because the [defendant] sought government permits for the activity that constitutes the [cause of action.]” (157 Cal.App.4th at p. 273.) The basis of the nuisance claim is Woo’s failure to address an allegedly dangerous and deficient wall for the past five years, not the collateral activity of pursuing government approvals. While evidence of Woo’s petitioning activity (or lack thereof) may be evidence of liability or a step leading to a different act for which liability is asserted, or may be used by Woo to demonstrate she has acted in good faith to abate the alleged nuisance, her protected activity is not the wrong complained of. Taking the allegations of the complaint as true, Woo is not shielded from a claim for an alleged dangerous nuisance simply because she tardily applied for (and so far has failed to obtain) permits necessary to help abate that nuisance.

Because we find the nuisance cause of action does not arise from protected activity, and thus fails to satisfy the first prong of the anti-SLAPP statute, we need not address whether the Schmidts showed a probability of prevailing on their nuisance claim.

DISPOSITION

The order denying the special motion to strike is affirmed. The Schmidts are to recover their costs on appeal.

NOT TO BE PUBLISHED

WEINGART, J.*

We concur:

CHANEY, Acting P.J.

BENDIX, J.