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In Durkin v. City & County of San Francisco (2023) 90 Cal.App.5th 643, the First District Court of Appeal held that the trial court erred in granting the real party in interest’s special motion to strike under anti-SLAPP (strategic litigation against public participation) law on the grounds that the real party’s actions were not the basis for the petitioner’s complaint. Although the First District reversed the trial court’s decision, the Court found that the real party in interest’s special motion was not frivolous and denied petitioner’s request for sanctions.

After the Planning Department for the City & County of San Francisco (City) issued a mitigated negative declaration (MND) for the remodel and expansion of a single-family home (Project), a neighbor (Neighbor) appealed the decision to the City’s Planning Commission arguing, among other things, that the Project would undermine the foundation of the Neighbor’s historic home. After the Neighbor’s appeal was denied by the City Planning Commission, the Neighbor then appealed to the San Francisco Board of Supervisors (Board) who reversed the Planning Commission’s decision and ordered the Planning Department to conduct further studies with regard to slope stability and potential impacts to the foundation of the Neighbor’s property.

The Project applicant (Petitioner) then filed a petition for writ of mandate against the City under both CEQA and Housing Crisis Act claims, alleging that the City unlawfully obstructed and delayed the Project for years in favor of various neighbors’ unsubstantiated arguments, failed to make findings in support of the City’s denial, and ordered the clerk to make post-hoc findings justifying the City’s decision after it was made. Petitioner named the Neighbor as a real party in interest in the case, identifying him as the “appellant in the underlying administrative appeal.” In response, the Neighbor filed an anti-SLAPP motion contending that the petition arose from his protected activity of appealing the final MND to the Board, and that the Petitioner’s claims lacked merit as the City’s decision was supported by substantial evidence. The trial court granted the Neighbor’s motion and awarded him over $200,000 in total fees for prevailing on the anti-SLAPP motion. Petitioner timely appealed both the trial court’s orders.

The anti-SLAPP law allows for a special motion to strike a cause of action against a person that arises from any act of that person in furtherance of their right of petition or free speech in connection with a public issue. While the Court acknowledged that the Neighbor’s administrative appeals to the City constituted petitioning activity that is generally protected under the anti-SLAPP law, the Court questioned whether the dispute here actually arose from the Neighbor’s petitioning activity. In ruling on an anti-SLAPP motion, courts must consider the elements of the challenged claim and what action by the defendant formed the basis for liability.

The Court found that it made no difference whether the Neighbor’s appeal directly preceded or even triggered the events leading to Petitioner’s causes of action against the City. The main question was whether the speech or the petitioning activity itself was the wrong complained of and not simply a step leading to some different act by a third party for which liability was asserted. Here, the Court determined that all of the elements of the underlying cause of action related to the acts or omissions of the City, not the Neighbor. Accordingly, the Court held that the petition did not arise from the Neighbor’s petitioning activity, and, therefore, the trial court’s order granting the anti-SLAPP motion was invalid. Because the Neighbor reasonably relied on anti-SLAPP case law that was procedurally similar to this case, the Court determined that the Neighbor’s anti-SLAPP motion was not frivolous and denied Petitioner’s request for sanctions. The Court did not weigh in on the merits of Petitioner’s underlying CEQA and Housing Crisis Act claims.