A lawsuit filed by Malibu property owners while the City of Malibu was suing the Coastal Commission was not a Strategic Lawsuit Against Public Participation, the Second District Court of Appeal has ruled.

The unanimous three-judge appellate panel also upheld the trial court's award of $35,000 in fees to the property owners and ordered the city to pay appeals costs.

As with most Malibu land use controversies, local history colors this case. That history extends to the first nine years of Malibu's cityhood, during which the city never adopted a required Local Coastal Plan (LCP). Because there was no locally certified LCP, the Coastal Commission itself had to decide on applications for development permits. The state panel often spent one day a month dealing with permit applications from Malibu, nearly all of which lies in the coastal zone.

In 2000, the Coastal Commission sought and won statutory authority to write an LCP for Malibu. The Commission adopted the plan in 2002. Malibu voters responded by gathering signatures on a petition to force a local referendum of the state-authored plan. The city then declared the LCP invalid, but the Coastal Commission refused to budge. The city sued the Coastal Commission but lost at both the trial court and appellate court levels. In City of Malibu v. California Coastal Comm., 121 Cal.App4th 989 (see CP&DR Legal Digest, October 2004), the court held that the state Legislature could require the Coastal Commission to write the LCP and that the state-prepared plan was not subject to local referendum.

In July 2003 - while Malibu's appeal was pending before the Second District - property owners David and Sandra Visher applied for a coastal development permit (CDP) so that they could build a house on their vacant lot. The city refused to issue the permit. The city contended that granting the permit would amount to voluntary compliance with the trial court's order, thus jeopardizing the city's appeal.

The Vishers sued to force the city to process their application. The city argued that the Vishers filed their lawsuit in response to the city's appeal in the Coastal Commission case, making the Vishers action a Strategic Lawsuit Against Public Participation (SLAPP). Such lawsuits are intended to hinder constitutionally protected rights of free speech and petition, and Code of Civil Procedure § 425.16 subdivision (b)(1) authorizes courts to dismiss SLAPP lawsuits. Thus, the city asked the trial court to dismiss the Vishers' lawsuit.

Los Angeles County Superior Court Judge Allan Goodman, however, ruled that the Vishers sought only a permit to build a house, and he rejected the city's SLAPP argument. Judge Goodman also awarded the Vishers $35,000 in fees. The city appealed, but the same three-judge panel that ruled against the city in the Coastal Commission case upheld Goodman's decision.

Writing for the Second District, Justice Laurence Rubin cited City of Cotati v. Cashman, 29 Cal.4th 69 (see CP&DR Legal Digest, October 2002). There, the city had adopted a mobile home rent control ordinance. Mobile home park owners filed suit in federal court contending that the ordinance was unconstitutional. The city then filed a validating action in state court. The park owners argued that the city's validating action was a SLAPP, but the state Supreme Court disagreed. The court said that the actual controversy was the ordinance itself, not the park owners' federal lawsuit.

“Likewise here,” Rubin wrote. “The Vishers' petition arose from Malibu's refusal to process CDPs. It did not arise from Malibu's lawsuit against the Coastal Commission. Indeed, Malibu's refusal to process CDPs tellingly predated both its lawsuit against the Coastal Commission and the Vishers' lawsuit against Malibu. While the onset of litigation may have given Malibu an additional reason not to process the Vishers' CDP, it was Malibu's refusal to process CDPs of which the Vishers complained, not Malibu's engagement in the protected activity of suing the Coastal Commission.”

Malibu also argued that the award of fees was improper because it did not file the anti-SLAPP motion in bad faith. The trial court disagreed, and so did the Second District. “[T]he sanctions order here involved the reasonableness of Malibu's resorting to a SLAPP motion to rid itself of the Vishers' petition,” Rubin wrote. “Malibu completely failed on that point.”

The Case:
Visher v. City of Malibu, No. B173471, 05 C.D.O.S. 961, 2005 DJDAR 1355. Filed February 1, 2005.
The Lawyers:
For Visher: David and Sandra Visher for themselves.
For the city: Christi Hogin, Jenkins & Hogin, (310) 643-8448.