Opinion
F084693
12-21-2023
MICHAEL NOORDEWIER, Plaintiff and Appellant, v. RICHARD MURDOCH, Defendant and Respondent.
Michael S. Warda; Wanger Jones Helsley, John P. Kinsey, Kathleen DeVaney and Hunter C. Castro for Plaintiff and Appellant. Downey Brand, Matthew J. Weber and Tyler Horn for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County, No. CV-21-006566 John D. Freeland, Judge.
Michael S. Warda; Wanger Jones Helsley, John P. Kinsey, Kathleen DeVaney and Hunter C. Castro for Plaintiff and Appellant.
Downey Brand, Matthew J. Weber and Tyler Horn for Defendant and Respondent.
OPINION
MEEHAN, J.
INTRODUCTION
This appeal involves a civil action filed by appellant and plaintiff Michael Noordewier against defendants City of Oakdale (Oakdale), Jeff Gravel, Oakdale's Director of Public Services, and Richard Murdoch. Plaintiff appeals from the trial court's order granting two special motions to strike a cause of action pursuant to Code of Civil Procedure section 425.16 (anti-SLAPP (strategic lawsuit against public participation) motions), one of which was filed by Oakdale and Gravel, and the other was filed by Murdoch (collectively, defendants)., We conclude the trial court correctly determined plaintiff's third cause of action for breach of due process is founded on actions arising from Murdoch's protected activity within the scope of the anti-SLAPP statute, and that plaintiff failed to establish a probability of prevailing on this cause of action against Murdoch. (§ 425.16, subds. (b)(1), (e).) Accordingly, we affirm.
During the pendency of this appeal, plaintiff settled with defendants Oakdale and Jeff Gravel, Oakdale's Director of Public Services, and the appeal as to those defendants has been dismissed. Plaintiff's appeal of the trial court's order granting Oakdale's and Gravel's special motion to strike under section 425.16 is no longer before us.
Individually, the defendants are referred to by name rather than party designation for the sake of clarity.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
FACTUAL BACKGROUND
I. Conduct and Legal Proceedings Underlying Plaintiff's Complaint
In February 2003, Oakdale adopted resolution No. 2003-13, City of Oakdale Single Family Residential Design Expectations (Design Expectations). The Design Expectations were "based upon the nationally-recognized Ahwahnee Principles Toward More Livable Communities ._" In 2005, Murdoch developed an eight-lot subdivision (Murdoch subdivision) after approval by Oakdale's Planning Department. As part of the conditions of approval for the Murdoch subdivision, Oakdale required the construction to meet the overall intent of the Design Expectations.
In 2005, Murdoch submitted plans to build a personal residence home at 531 Murdoch Court. The plans required revision under the Design Expectations, but were ultimately approved without consideration by the planning commission or the city council.
In April 2019, plaintiff purchased two vacant lots in the Murdoch subdivision at 551 and 571 Murdoch Court. The 551 Murdoch Court lot is directly adjacent to Murdoch's personal residence, and plaintiff purchased it from a third party, but plaintiff purchased the 571 Murdoch Court lot directly from Murdoch. In December 2019, plaintiff applied with Oakdale's Planning Department for building permits to construct two single-story homes, one on each lot.
In January 2020, Oakdale issued plan check comments, and in April 2020, building permits were issued to plaintiff. By April, plaintiff had contracted for construction on both residences. After plaintiff obtained his building permits, plaintiff alleges Murdoch, who is an Oakdale City Council member, used his official position to prevent plaintiff from constructing the homes. Specifically, on May 22, 2020, Murdoch offered to purchase 551 Murdoch Court from plaintiff, but plaintiff refused, and within four hours of doing so, Gravel (alleged to be the Oakdale official charged with issuing building permits) advised plaintiff that his building permits were revoked. On May 23, 2020, Oakdale staff indicated construction could commence on 571 Murdoch Court, but construction on 551 Murdoch Court could not proceed. Oakdale required plaintiff to resubmit a self-certification checklist pursuant to the Design Expectations.
In June 2020, plaintiff submitted a self-certification checklist pursuant to the Design Expectations. Plaintiff alleges Murdoch and Gravel reviewed the checklist furnished by plaintiff and conspired to force more design changes to prevent plaintiff from constructing the residences. On June 25, 2020, after more design changes, plaintiff and Oakdale executed a memorandum of understanding (MOU), and revised permits were issued that allowed plaintiff to proceed with construction of the homes.
On July 1, 2020, Murdoch filed a petition for writ of mandate against Oakdale and named plaintiff a real party in interest. Murdoch asserted the revised permits still failed to comply with the Design Expectations, and Murdoch sought to compel Oakdale's uniform application and enforcement of the Design Expectations. Ultimately, the court determined Oakdale had abused its discretion by failing to follow the procedures required by the Design Expectations in issuing plaintiff's permits. The building permits issued to plaintiff in April and June 2020 were held invalid, and plaintiff was enjoined from construction based on those permits.
Plaintiff did not appeal the writ decision; instead, he elected to redesign the homes and submitted new building plans to Oakdale in early 2021, which were ultimately reviewed and approved by Oakdale's city council.
II. Plaintiff's Complaint and Anti-SLAPP Motion Proceedings
Plaintiff filed this civil action in December 2021, alleging, inter alia, that defendants violated his due process rights during the permitting process prior to the writ proceeding. A first amended complaint (FAC) was filed in February 2022, and defendants filed two separate anti-SLAPP motions to strike the FAC's due process claim-one was filed by Oakdale and Gravel and the other was filed by Murdoch.
In his anti-SLAPP motion, Murdoch argued plaintiff's due process claim is based on Murdoch's efforts, through objections and complaints to local officials and in judicial proceedings (the writ proceedings), to ensure plaintiff's development of the properties complied with the Design Expectations. As such, Murdoch argued, the complained-of conduct forming the basis of the due process cause of action was protected petitioning activity under section 425.16, subdivision (e)(2). Murdoch alternatively argued it also constituted protected activity under section 425.16, subdivision (e)(4), as conduct in the furtherance of the exercise of the constitutional right of petition in connection with a public issue or an issue of public interest. In support of his motion, Murdoch filed his own declaration, which explained that prior to plaintiff submitting his first building permit applications, plaintiff had described his building plans to Murdoch and indicated they were going to be identical to homes being built in a nearby city by a different builder. Murdoch found the plans for that development online, and informed plaintiff Oakdale would likely deny plaintiff's building permits because they did not seem appropriate based on Murdoch's understanding of the Design Expectations.
After discovering plaintiff's plans had been approved, Murdoch spoke with Brian Odom, Oakdale's building inspector, and expressed his belief plaintiff's plans did not comply with the Design Expectations. In addition, Murdoch also spoke with Gravel regarding these concerns. Gravel informed Murdoch Oakdale had mistakenly skipped the design review process and had not asked plaintiff for a self-certification check list; and the permit applications were not reviewed by Oakdale's zoning manager, so Oakdale never properly determined whether the building permit application complied with the Design Expectations.
In support of his anti-SLAPP motion, Murdoch also sought judicial notice of Oakdale's 2003 resolution adopting the Design Expectations for single-family residential units; Oakdale's 2005 Planning Commission resolution No. 2005-01 approving the Murdoch subdivision; Murdoch's verified petition for writ of mandate and complaint for declaratory relief; and the trial court's March 2021 judgment granting the writ.
Oakdale and Gravel's motion to strike under the anti-SLAPP statute similarly asserted plaintiff's due process claim arose out of conduct related to the writ proceedings, which they asserted was protected activity. In support of the motion, Gravel submitted a declaration indicating that he is the director of public services for Oakdale and oversees the review of applications to build new homes in Oakdale. According to Gravel, Odom approached Gravel on May 22, 2022, with concerns relayed to Odom by Murdoch regarding approval of construction permits issued to plaintiff. In response to these concerns, Gravel reviewed the applications and discovered the proposed construction plans did not comply with the Design Expectations, and Gravel immediately suspended the two permits on May 22, 2020.
On May 30, 2020, Oakdale received an email from Murdoch stating the two homes proposed by plaintiff did not comply with the Design Expectations and would diminish the property values and quality of life in his neighborhood. That email was attached as an exhibit to Gravel's declaration and reflects that it was sent from Murdoch's personal email account to Odom and to City Manager Bryan Whitemyer, explaining the floor plans of plaintiff's proposed homes did not meet Oakdale's design standards.
According to Gravel, after much "back and forth" between plaintiff and Oakdale regarding compliance with the Design Expectations, plaintiff met with Whitemyer, and on June 25, 2020, they executed the MOU to memorialize Oakdale's agreement to accept certain elevations and architectural features for plaintiff's proposed homes.
Also in support of their motion to strike, Oakdale and Gravel submitted a request for judicial notice of (1) Oakdale's resolution No. 2003-13 adopting the Design Expectations; (2) Oakdale's 2005 approval of the Murdoch subdivision; (3) Murdoch's verified writ petition; (4) Murdoch's brief in support of the writ petition; (5) plaintiff's opposition to the writ petition; (6) the court's ruling granting the issuance of the writ petition; (7) the judgment granting the writ of mandate; and (8) planning commission minutes from March 18, 2021, regarding plaintiff's new building plans.
Plaintiff opposed both motions to strike and, in support of his position, requested judicial notice of the following documents: (1) his declaration submitted in support of his opposition to the writ proceeding and (2) the ruling on the writ petition.
Plaintiff argued his due process claim did not arise from protected activity because it involved Murdoch's actions interfering in the building permit review process occurring months before the writ petition was filed. Plaintiff asserted that any reference in the complaint to the writ proceedings was for the purpose of context and did not supply any basis for the harm alleged by plaintiff. Plaintiff maintained the mere fact he filed this lawsuit after protected activity took place-i.e., the writ proceedings-does not mean the due process claim arose because of those proceedings. Plaintiff also argued there was strong evidence that he would prevail on the merits of the claim because the evidence shows Murdoch retaliated against plaintiff when plaintiff refused Murdoch's offer to purchase the lot next to Murdoch's residence, and Murdoch used his official status as a city council member to do so.
Murdoch filed a reply brief, as did Oakdale and Gravel. Plaintiff filed a sur-reply brief asserting Murdoch's conduct in contacting Oakdale officials to complain about plaintiff's building permits was a violation of Government Code section 87100, which prohibits a public official from participating in making, or in any way attempting to use the public official's position to influence a governmental decision in which the official knows or has reason to know the official has a financial interest. Plaintiff argued Murdoch's pre-writ conduct was illegal as a matter of law, and not subject to protection under the anti-SLAPP statute. Murdoch objected to plaintiff's sur-reply brief as presenting new issues omitted from the opposition.
In May 2022, Judge Freeland, who also presided over the writ proceedings, heard argument on defendants' anti-SLAPP motions. Plaintiff's counsel argued the due process violations alleged centered on the unprotected activity that Murdoch, Gravel and Oakdale engaged in prior to the writ proceeding, and Murdoch's actions in contacting Oakdale officials to complain were illegal under the Government Code. Plaintiff's due process arguments centered on how defendants precluded plaintiff from obtaining review by Oakdale's planning commission during the permitting process before the writ was filed. Murdoch's counsel argued plaintiff could not introduce new arguments about the illegality of Murdoch's conduct in a sur-reply brief.
The trial court granted both anti-SLAPP motions, determining that defendants had met their initial burden of demonstrating plaintiff's third cause of action for breach of due process rights arose out of protected activity, and that plaintiff had not met his burden of demonstrating a probability he would prevail on the merits of this cause of action. The court also ruled plaintiff's sur-reply was unauthorized and refused to consider it in conjunction with the motions.
Plaintiff timely appealed the trial court's order. While the appeal was pending, plaintiff settled with Gravel and Oakdale, and the appeal was dismissed as to those defendants. The appeal is now limited to the trial court's order granting Murdoch's anti-SLAPP motion as to plaintiff's third cause of action for breach of due process.
DISCUSSION
I. Legal Principles
A. Anti-SLAPP Motions
Section 425.16 provides an expedited procedure for dismissing lawsuits filed primarily to inhibit the valid exercise of the constitutionally protected rights of speech or petition. (Id., subd. (a).) Subdivision (b)(1) of section 425.16 provides as follows: "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."
This provision creates a two-step inquiry for resolving anti-SLAPP motions. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) "First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Ibid.) Under the second step, the plaintiff must demonstrate (1) the pleading is legally sufficient and (2) the claim alleged is supported by sufficient evidence to make a prima facie showing of facts that would sustain a favorable judgment. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.)
B. Definitions
The first step in the anti-SLAPP analysis addresses whether the moving party has carried its burden of showing that the challenged "cause of action" is one "arising from" an activity "in furtherance of the person's right of petition or free speech"-i.e., a protected activity. (§ 425.16, subd. (b)(1).)
1. Protected Activity
A list of protected activity is set forth in subdivision (e) of section 425.16, which states as follows:
"As used in this section, 'act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (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."
The purpose of these statutory categories is to "provide objective guidelines that lend themselves to adjudication on pretrial motion." (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 422 (Vasquez).)
2. Cause of Action
The next statutory term of significance to the first step of the anti-SLAPP analysis is "cause of action." (§ 425.16, subd. (b)(1).) What constitutes a "cause of action" subject to being struck under the anti-SLAPP statute has been widely litigated. Our Supreme Court has addressed the problem of "a so-called 'mixed cause of action' that combines allegations of activity protected by the statute with allegations of unprotected activity." (Baral, supra, 1 Cal.5th at p. 381.) The court concluded the Legislature used the term "'cause of action'" to target "only claims that are based on the conduct protected by the statute" and, thus, courts should not be concerned with how a complaint is framed or how the primary right theory might define a cause of action. (Id. at p. 382.) Consequently, "an anti-SLAPP motion may challenge any claim for relief founded on allegations of protected activity, [but] it does not reach claims based on unprotected activity." (Ibid., italics added.)
Stated differently, an anti-SLAPP motion need not challenge an entire cause of action as pleaded in the complaint. (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010 (Bonni).) Accordingly, "courts should analyze each claim for relief-each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action-to determine whether the acts are protected ._" (Ibid.) This inquiry requires courts to "consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1063 (Park).)
3. Arising From
The statutory term "arising from" also plays a role in the first step of the anti-SLAPP analysis. (§ 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 pp. 1062-1063, italics added; accord, Bonni, supra, 11 Cal.5th at p. 1009.) Thus, a defendant can satisfy the "arising from" element of the statute by demonstrating that the defendant's conduct by which plaintiff claims to have been injured falls within one of the categories of subdivision (e) of section 425.16. (Park, supra, at p. 1063.)
C. Standard of Review
The grant or denial of an anti-SLAPP motion is reviewed de novo. (Park, supra, 2 Cal.5th at p. 1067.) Under this standard of review, appellate courts "exercise independent judgment in determining whether, based on [the court's] review of the record, the challenged claims arise from protected activity." (Ibid.) An appellate court must "consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) Neither trial nor appellate courts weigh credibility or compare the weight of the evidence. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 (Soukup).) "Rather, the court's responsibility is to accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law." (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
II. Parties' Arguments
Plaintiff argues his third cause of action for breach of due process against Murdoch centers on Murdoch's pre-writ conduct, not the filing of the writ or the writ proceedings themselves. Relying on the allegations in the complaint, Gravel's declaration in support of Oakdale and Gravel's anti-SLAPP motion, and Murdoch's verified writ petition, plaintiff argues that when he applied for building permits for both lots, Murdoch used his official position as a city council member to meet with and influence Gravel to frustrate plaintiff's ability to construct a residence next to Murdoch's personal residence.
Plaintiff maintains the trial court erred in finding Murdoch's pre-writ conduct that underlies the due process cause of action is protected activity under the anti-SLAPP statute because (1) it is illegal as a matter of law under the Political Reform Act of 1974 (Gov. Code, § 81000 et seq.) (PRA) and (2) it is separate from and predates the writ proceedings and thus does not constitute protected petitioning activity. Plaintiff also asserts the trial court erred in determining he had not established a probability of success of his due process claim against Murdoch.
Murdoch contends the trial court properly concluded the conduct that underlies plaintiff's due process claim was protected petitioning activity that related both to the writ proceedings and to petitioning activities before local officials prior to the writ being filed. Murdoch argues plaintiff has forfeited the theory of illegality under the PRA because it was not timely raised in the trial court proceedings. But, even on the merits, Murdoch points out he has not conceded his conduct was illegal, and plaintiff has not conclusively established the conduct was criminally illegal as a matter of law. Finally, Murdoch argues, plaintiff cannot show a likelihood of success on his due process claim because he has failed to allege a necessary protected property interest, he has failed to sufficiently allege and show Murdoch is a government actor, plaintiff cannot recover damages as a remedy for a due process violation, and Murdoch's conduct is protected by the litigation privilege under Civil Code section 47, subdivision (b).
III. Analysis
A. Step One: Protected Activity
1. Illegality Under the PRA
Plaintiff first contends Murdoch's conduct prior to the filing of the writ proceeding, which comprises the basis for plaintiff's claim for breach of due process, is not protected activity under the anti-SLAPP statute because it was illegal as a matter of law.
Due to the important interests the anti-SLAPP statute seeks to protect, the Legislature commands that it be construed broadly. (§ 425.16, subd. (a); Flickinger v. Finwall (2022) 85 Cal.App.5th 822, 832.) Yet, "not all speech or petition activity is protected by section 425.16." (Flatley v. Mauro (2006) 39 Cal.4th 299, 313.) As relevant here, section 425.16 does not protect "speech or petition activity [that is] illegal as a matter of law." (Flatley v. Mauro, supra, at p. 320.) This exception applies only in "narrow circumstance[s]" where "either the defendant concedes ... or the illegality is conclusively shown by the evidence" to be illegal as a matter of law. (Id. at p. 316.)
a. Relevant Provisions of the PRA
Government Code section 87100, which is part of the PRA, states "A public official at any level of state or local government shall not make, participate in making, or in any way attempt to use the public official's position to influence a governmental decision in which the official knows or has reason to know the official has a financial interest." (Italics added.) "A violation occurs not only when the official participates in the decision, but when he influences it, directly or indirectly." (Commission on Cal. State Gov. Org. &Econ. v. Fair Political Practices Com. (1977) 75 Cal.App.3d 716, 723.) "Thus, a public official outside the immediate hierarchy of the decision-making agency may violate the conflict of interest law if he uses his official authority to influence the agency's decision." (Ibid.)
The implementing regulation provides that "A public official uses an official position to influence a governmental decision if the official: [¶] (1) Contacts or appears before any official in the official's agency or in an agency subject to the authority or budgetary control of the official's agency for the purpose of affecting a decision; or [¶] (2) Contacts or appears before any official in any other government agency for the purpose of affecting a decision, and the public official acts or purports to act within the official's authority or on behalf of the official's agency in making the contact." (Cal. Code Regs., tit. 2, § 18704, subd. (c)(1)-(2) (Regs., § 18704).)
"Making, participating in, or influencing a governmental decision does not include: [¶] ... [¶] (2) Appearances as a Member of the General Public. An appearance by a public official as a member of the general public before an agency in the course of its prescribed governmental function if the official is appearing on matters related solely to the official's personal interests in: [¶] (A) Real property owned entirely by the official .." (Regs., § 18704, subd. (d)(2) &(2)(A).)
Making, participating in, or influencing a governmental decision also does not include drawings or submissions of an architectural, engineering, or similar nature prepared by a public official for a client to submit in a proceeding before the official's agency if the work is performed pursuant to the official's profession, and the official does not make any contact with the agency other than contact with agency staff concerning the process or evaluation of the documents prepared by the official. (Regs., § 18704, subd. (d)(6)(A).)
"Any person who knowingly or willfully violates any provision of this title is guilty of a misdemeanor." (Gov. Code, § 91000, subd (a).) "Whether or not a violation is inadvertent, negligent or deliberate, and the presence or absence of good faith shall be considered in applying the remedies and sanctions of this title." (Gov. Code, § 91001, subd. (c).)
There are four steps to determine whether a public official has a prohibited conflict of interest under the PRA, which are formulated as a series of questions. (Cal. Code Regs., tit. 2, § 18700, subd. (d)(1)-(4).) The steps are as follows:
"(1) Step One: Is it reasonably foreseeable that the governmental decision will have a financial effect on any of the public official's financial interests?....
"'Financial effect' means an effect that provides a benefit of monetary value or provides, prevents, or avoids a detriment of monetary value." (Cal. Code Regs., tit. 2, § 18700, subd. (c)(5).) "'Financial interest' means anything or anyone listed in subparagraphs (A-E) and includes an interest in the public official's own personal finances and those of a member of the official's immediate family." (Id., subd. (c)(6).)
"(2) Step Two: Will the reasonably foreseeable financial effect be material?.. If the answer is yes, proceed to Step Three.
The materiality standards are provided in title 2 of the Code of Regulations, section 18702, which includes a governmental decision that affects a financial interest in real property. (Id., subd. (a)(2).)
"(3) Step Three: Can the public official demonstrate that the material financial effect on the public official's financial interest is indistinguishable from its effect on the public generally?.. If the answer is no, proceed to Step Four.
"(4) Step Four: If after applying the three step analysis and determining the public official has a conflict of interest, absent an exception, the official may not make, participate in making, or in any way attempt to use the official's position to influence the governmental decision...."
b. Analysis
Plaintiff argues Murdoch's email sent to Oakdale officials complaining about plaintiff's building permits (submitted with Gravel's declaration in support of Oakdale and Gravel's anti-SLAPP motion) includes an express statement that "[a]llowing two of these homes to be built is a huge financial hit as well as a significant quality of life downgrade for our neighborhood." As Murdoch is an Oakdale official, plaintiff maintains this acknowledged personal financial interest satisfies the conflict of interest analysis under the PRA weighing against any participation or influence by Murdoch concerning plaintiff's permits. Thus, plaintiff argues, the trial court's conclusion that all the conduct alleged in the third cause of action arose out of protected activity was erroneous for ignoring Murdoch's PRA violations, which occurred before the writ petition was filed.
Murdoch contends plaintiff's illegality theory was forfeited because it was not timely asserted below in plaintiff's opposition brief. Had plaintiff raised the issue timely, Murdoch argues he would have had time to develop the record to refute plaintiff's allegations "by (among other things) obtaining testimony from [Oakdale] staff explaining that [Murdoch's] conduct was viewed simply as a citizen's complaint." On the merits, Murdoch argues none of the facts plaintiff points to establish that Murdoch knowingly or willfully used his position as a public official to influence a governmental decision. Moreover, Murdoch contends, his complaints to Oakdale are subject to the exclusions under Regulations section 18704, subdivision (d)(2)(A) and (d)(6)(A).
Plaintiff responds he raised the issue in his sur-reply brief and at the hearing on the motions, and the facts that support his claim of illegality were set forth in the FAC-the theory is not based on any new or different conduct than that already alleged. As to Murdoch's development of additional facts, plaintiff argues Murdoch failed to show how third party perceptions of his conduct would be relevant. Further, neither of the exceptions under Regulations section 18704, subdivision (d), are applicable. Murdoch's complaints to Oakdale do not constitute an "appearance" under Regulations section 18704, subdivision (d)(2)(A), and Regulations section 18704, subdivision (d)(6)(A), applies only to those officials who are in the business of preparing architectural and engineering drawings for submissions for clients to submit to their own agency for consideration.
If a plaintiff asserts the illegality exception as a defense to an anti-SLAPP motion, the plaintiff's opposition brief must provide notice to both the defendant and the court of the particular statute the plaintiff asserts the defendant violated, so as to allow the defendant to intelligibly respond to, and the trial court to assess, the claim. (Bergstein v. Stroock &Stroock &Lavan LLP (2015) 236 Cal.App.4th 793, 809 (Bergstein) [citing and extending Soukup, supra, 39 Cal.4th at p. 287].) Moreover, the plaintiff must show the specific manner the statute was violated with reference to the elements; generalized assertions that a particular statute was violated "'without a particularized showing of the violation will be insufficient to demonstrate illegality as a matter of law.'" (Bergstein, supra, at p. 809, quoting Soukup, supra, at p. 287.)
Plaintiff did not raise illegality under the PRA in opposition to Murdoch's anti-SLAPP motion, and although the issue was argued in plaintiff's sur-reply brief, that brief was deemed unauthorized by the trial court and was not considered. Moreover, while plaintiff generally argued illegality at the hearing on the motions, Murdoch objected to the argument as untimely. Like the plaintiffs in Bergstein, plaintiff's opposition to the anti-SLAPP motions did not comply with the requirements that a plaintiff provide notice to the defendant and the trial court of the particular statute a defendant violated so that the defendant may "'intelligibly respond to, and the court [may] assess, the claim.'" (Bergstein, supra, 236 Cal.App.4th at p. 809.) Not only did Murdoch lack an opportunity to oppose the illegality theory under the PRA as a matter of law, he lacked a sufficient opportunity to develop evidence supporting a question of fact. (Vasquez, supra, 1 Cal.5th at p. 424 [disputed allegations of illegality both as a matter of law and as a question of fact defeated illegality claim].)
Plaintiff argues this is not a new theory-it is based on the same factual and legal assertions in the FAC delineating Murdoch's unlawful conduct. Yet, a defendant's underlying conduct is always alleged to be unlawful in the context of an anti-SLAPP motion, otherwise there would be no underlying lawsuit. The illegality theory is much more specific than merely asserting conduct is generally unlawful. The theory presents a narrow exception to the anti-SLAPP statute for which the plaintiff bears the burden to specifically identify the statute under which the conduct is criminal and, in the absence of a defendant's concession of illegality, to conclusively establish the conduct is illegal as a matter of law. (Bergstein, supra, 236 Cal.App.4th at pp. 808-809.) Generally alleging conduct is unlawful is inadequate to prove criminal illegality as a matter of law under a particular statute, and raising the issue in a sur-reply or at the hearing on an anti-SLAPP motion is untimely and insufficient. (Id. at p. 809.)
Plaintiff argues it would have made no difference if Murdoch had been given an opportunity to marshal evidence in opposition because Murdoch failed to make a proffer on appeal that presents a factual question about whether his conduct was illegal under the PRA. Plaintiff points out that while Murdoch claims he could have obtained evidence that his contacts with Oakdale officials were viewed as citizen complaints not made in his official capacity, Murdoch has cited no authority that third party perceptions have any bearing on legality under the PRA. Plaintiff argues Murdoch's May 30, 2020, email conclusively establishes he willfully contacted Oakdale officials (who were his direct reports) about plaintiff's permits, knowing he had a personal financial interest in the permitting decision. According to plaintiff, that conclusively establishes Murdoch's contacts with Oakdale officials complaining about the invalidity of the permits constituted a misdemeanor under Government Code sections 87100 and 91000.
Plaintiff's argument of what facts are relevant presupposes his interpretations of Government Code sections 87100 and 91000 and Regulations section 18704 are controlling. Yet, the parties dispute how the scope of the exception under Regulations section 18704, subdivision (d)(A)(2), should be construed. Murdoch also raises a potential interpretive issue regarding how a person "knowingly or willfully" violates the PRA within the meaning of Government Code section 91000, which neither party addresses in detail. Although the illegality and criminal nature of Murdoch's conduct will turn on how these statutes and regulations are interpreted, neither party has offered specific statutory-construction analyses. At best, the parties argue about the weight to be ascribed to guidance letters issued by the Fair Political Practices Commission for purposes of construing Regulations section 18704, subdivision (d)(2)(A). Although these advice letters are entitled to weight (City of Agoura Hills v. Local Agency Formation Com. (1988) 198 Cal.App.3d 480, 498), they are not the only, nor even the primary, facet of the interpretive analysis (see Little v. Commission on Teacher Credentialing (2022) 84 Cal.App.5th 322, 335 [rules governing interpretation of statutes apply to interpretation of regulations]).
Murdoch generally maintains that to establish a misdemeanor violation of the PRA under Government Code section 91000, the facts must establish Murdoch "willfully used his position as a public official to influence a governmental decision." Plaintiff contends that because Murdoch knew he had a financial interest in the building permits, and he willfully made contacts with Oakdale officials to influence a decision on those permits, this is a violation of the PRA that is criminalized under Government Code section 91000. There is some case authority that suggests plaintiff's apparent construction of Government Code section 91000 is correct (see People v. Honig (1996) 48 Cal.App.4th 289, 334, 337-338 [interpreting phrase "'willfully violates'" under Gov. Code, § 1097 to mean the official must purposefully make a contract in which he is financially interested and know there is a reasonable likelihood it may result in a personal financial benefit to him]), but the parties' arguments are not well developed in this regard.
We emphasize this truncated analytical focus not as an indictment of the parties' appellate briefs, but to highlight the lack of particularized arguments about how to interpret these provisions, which likely stems from the fact the issue was not timely raised below. Moreover, even if we decided the legal interpretive issues in the first instance, it may not render factual matters irrelevant to resolution of the illegality issue. To that end, Murdoch is disadvantaged having not had a sufficient opportunity to confront the illegality argument and marshal any necessary factual evidence to dispute it. Additionally, the trial court declined to consider the illegality issue-the sur-reply brief was deemed unauthorized, and the order granting the anti-SLAPP motions makes no reference to the illegality argument as articulated at the hearing. Considering the issue on appeal would effectively overrule the trial court's implicit and correct conclusion the matter was not presented timely below, and it ignores the decisional authority that requires the issue of illegality to be raised in opposition to the anti-SLAPP motion before the trial court. (Soukup, supra, 39 Cal.4th at p. 287; Bergstein, supra, 236 Cal.App.4th at p. 809 .)
While appellate courts have discretion to entertain important, purely legal issues on undisputed facts that were not presented timely below, we must exercise that discretion sparingly. (In re S.B. (2004) 32 Cal.4th 1287, 1293 [noting that discretion to excuse forfeiture should be exercised rarely].) For the reasons outlined above, we decline to do so in this case. In light of this, we turn to consider whether the conduct that underlies plaintiff's due process cause of action arises from protected activity under the anti-SLAPP statute.
2. Protected Activity Under Section 425.16, Subdivision (e)
A defendant's first-step burden "is to identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute. A 'claim may be struck 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 v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884.) "To determine whether a claim arises from protected activity, courts must 'consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.'" (Ibid.) The court then evaluates "whether the defendant has shown any of these actions fall within one or more of the four categories of '"act[s]"' protected by the anti-SLAPP statute." (Ibid.)
Although plaintiff's central contention of error revolves around illegality as a matter of law under the PRA, plaintiff also asserts the trial court erred in concluding the conduct that forms the basis of the due process claim against Murdoch arises from protected activity involving the writ proceedings. Plaintiff claims the trial court failed to acknowledge defendants' specific misconduct that had nothing to do with, and occurred before, the writ proceedings.
Murdoch maintains the writ proceedings do form the basis of the due process cause of action, which is protected activity under section 425.16, subdivision (e)(2). Moreover, Murdoch contends, plaintiff ignores the fact the trial court ruled the conduct underlying the due process claim included Murdoch's exercise of his constitutional rights in connection with his opposition to Oakdale's issuance of building permits, which is also protected petitioning activity.
There is no dispute that Murdoch's filing of the writ petition against Oakdale is protected petitioning activity. "'The filing of lawsuits is an aspect of the First Amendment right of petition' [citation], and thus is a protected activity under the anti-SLAPP statute." (Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1165-1166.) As a cause of action "arising from any act ... in furtherance of the ... right of petition" is subject to the anti-SLAPP motion (§ 425.16, subd. (b)(1), italics added), "'[a] cause of action "arising from" [a] defendant's litigation activity may appropriately be the subject of a section 425.16 motion to strike.' [Citation.] 'Any act' includes communicative conduct such as the filing, funding, and prosecution of a civil action." (Rusheen v. Cohen, supra, 37 Cal.4th at p. 1056.)
The question is whether Murdoch's conduct underlying plaintiff's due process claim arises from that protected petitioning activity, and we conclude some of it does. In his reply brief, plaintiff clarifies his due process cause of action against Murdoch is predicated on substantive, not procedural, due process. Beyond alleging a protected property or liberty interest or a statutorily conferred benefit (Benn v. County of Los Angeles (2007) 150 Cal.App.4th 478, 489, fn. omitted (Benn) ["threshold requirement to a substantive or procedural due process claim is the plaintiff's showing of a liberty or property interest protected by the Constitution"]; Bottini v. City of San Diego (2018) 27 Cal.App.5th 281, 316 (Bottini) [Cal. Const.]), a substantive due process claim requires allegations of some form of outrageous or egregious conduct by a government actor constituting a true abuse of power. (Galland v. City of Clovis (2001) 24 Cal.4th 1003, 1032; Hobbs v. City of Pacific Grove (2022) 85 Cal.App.5th 311, 320-321 (Hobbs) [substantive due process violation under the U.S. and Cal. Consts. requires some form of outrageous or egregious behavior].)
In disputing Murdoch's argument, plaintiff contends "Murdoch misconstrues [plaintiff's] Third Cause of Action, which is based on the substantive due process right to be free from arbitrary and capricious government action."
In setting forth supporting allegations, plaintiff claims Murdoch improperly urged Oakdale to take vacillating positions with respect to plaintiff's permits, including the position Murdoch and Oakdale took in the writ proceedings. Specifically, the FAC alleges Murdoch and Gravel conspired to create hardship and obstacles to constructing homes on the lots, which included disallowing plaintiff from seeking review of the permitting decisions with the planning commission or the city council, but then they maintained during the writ proceedings that review by the planning commission or the city council was a necessary part of the process. The FAC also alleges that Murdoch and Oakdale used the writ petition as a method to cover up their vacillation in positions with respect to review by the planning commission.
Plaintiff's due process claim is predicated, in part, on how defendants arbitrarily precluded plaintiff from accessing the correct review procedures (review by the planning commission) and then, in an abrupt about-face, maintained in the writ proceeding plaintiff's permits were not valid because the proper review procedures were not followed. The fact the writ proceedings were instituted alleging plaintiff's building permits were invalid or that defendants took a particular litigation position in that proceeding are protected petitioning activities under section 425.16, subdivision (e)(2), which protects any written or oral statements made in connection with an issue under consideration or review by a judicial body. (Ibid.)
Nevertheless, this is not the only conduct that underlies plaintiff's due process cause of action. Plaintiff is correct that his due process allegations include Murdoch's pre-writ filing activities that are separate from Murdoch's filing of, or participation in, the writ proceedings. But plaintiff does not address the trial court's ruling that Murdoch's opposition to Oakdale's issuance of plaintiff's building permits was also protected activity, and plaintiff fails to address why the pre-writ conduct was not protected activity under subdivision (e) of section 425.16. On this basis alone, we cannot conclude plaintiff carried his burden to establish the trial court erred at the first step of the anti-SLAPP analysis.
As articulated in plaintiff's appellate briefs, one theory of due process liability revolves around the fact that Murdoch, as a financially interested Oakdale official, was disqualified from any aspect of the permitting process, but nevertheless involved himself. The related pre-writ activities underlying this theory are Murdoch's communications with Oakdale officials, including Gravel, asserting plaintiff's building plans did not meet the Design Expectations. Plaintiff alleges that Murdoch coordinated and conspired with Gravel to suspend plaintiff's building permits hours after Murdoch offered to purchase one of plaintiff's lots; Murdoch and Gravel conspired to make demands on plaintiff, including attempting to have him modify floor plans; Murdoch and Gravel did not allow plaintiff to appeal the revocation or reissuance decision to the planning commission; and Gravel and Murdoch engaged in these activities to promote Murdoch's personal financial interests.
The only way for Murdoch to contact Oakdale officials improperly, or to conspire and coordinate with Oakdale officials about plaintiff's permits, was through statements about plaintiff's building plans and permits-either oral or in writing. The crux of plaintiff's due process claim is not that Murdoch gleaned information about plaintiff's permits from Oakdale officials, that he was present for discussions about plaintiff's permits or that he knew how Oakdale officials were handling the matter. The conduct complained of is that Murdoch had opinions about plaintiff's building plans and permits, which he expressed to Oakdale officials that, in turn, influenced the process. Indeed, in arguing Murdoch used his official position to frustrate plaintiff's ability to build on the lots, plaintiff points to Murdoch's verified writ petition and Gravel's declaration indicating Murdoch voiced complaints to Oakdale officials, including Murdoch's email to Oakdale officials on May 30, 2020. Yet, statements or writings by Murdoch to Oakdale officials about the validity of plaintiff's permit and whether plaintiff's building plans complied with the Design Expectations was protected activity "made in connection with an issue under consideration or review" in an official proceeding authorized by law. (§ 425.16, subd. (e)(2).)
For example, in Levy v. City of Santa Monica (2004) 114 Cal.App.4th 1252 (Levy), the homeowning plaintiffs pursued an action for declaratory and injunctive relief and damages against a city, a city council member, and the plaintiffs' neighbor. (Id. at p. 1257.) At issue was a playhouse the plaintiffs had constructed in their backyard, which a neighbor complained about to a city council member. (Id. at pp. 1255-1256.) The city council member then contacted the city officials, and indicated he did not believe the playhouse conformed to the city requirements. (Id. at p. 1256.) The plaintiffs sought declaratory relief that the city council members be precluded from influencing the city administrative staff regarding the playhouse. (Id. at p. 1257.) Levy reversed the trial court's determination that the anti-SLAPP statute did not apply, and concluded the city had met its burden of showing the plaintiffs' action arose from protected activity. (Levy, supra, at p. 1258.) Specifically, "[the neighbor's] act of contacting her representative and [the city council member's] act of contacting planning staff are petitions for grievances against the government protected by the First Amendment." (Ibid.)
Similarly, here, Murdoch's communications with Oakdale officials that plaintiff's building plans did not comply with the Design Expectations was "made in connection with an issue under consideration or review by ... any other official proceeding authorized by law ._" (§ 425.16, subd. (e)(2); see Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Assn. (2018) 19 Cal.App.5th 399, 418, 420-421 [homeowners' association's activities and its communications with the county regarding a proposed land development project were protected activities].) Although there were no allegations the council member in Levy had a personal financial interest in the matter, the council member's activities in Levy are similar to those alleged of Murdoch here. Both council members complained to city officials about the construction of structures by another resident and were alleged to have inserted themselves into staff decisions with respect to zoning enforcement or permitting matters. (Levy, supra, 114 Cal.App.4th at p. 1257.)
Plaintiff does not argue Oakdale's investigation into the validity of the building permits was not an "official proceeding authorized by law" or that Murdoch's communications to Oakdale officials about the impermissibility of plaintiff's building plans were not "made ... in connection with an issue under consideration" by Oakdale officials within the meaning of section 425.16, subdivision (e)(2). As noted, plaintiff does not address this basis for the trial court's ruling at all-i.e., that plaintiff's due process claim arises, in part, out of Murdoch's exercise of his constitutional rights in opposing Oakdale's issuance of building permits to plaintiff.
"Land use regulation in California historically has been a function of local government under the grant of police power contained in article XI, section 7 of the California Constitution" (Big Creek Lumber Co. v. County of Santa Cruz (2006) 38 Cal.4th 1139, 1151, fn. omitted), which provides that "A county or city may make and enforce within its limits all local, police, sanitary, and other ordinances and regulations not in conflict with general laws" (Cal. Const., art. XI, § 7). Government Code section 38660 generally provides that a city may regulate the construction of all buildings and may prohibit the construction of structures not conforming to such regulations.
Without specific arguments explaining how section 425.16, subdivision (e), is inapplicable to Murdoch's pre-writ conduct, plaintiff has not carried his burden on appeal to demonstrate the trial court erred in concluding plaintiff's due process claim against Murdoch arises out of protected activity. (Bains v. Moores (2009) 172 Cal.App.4th 445, 455 ["'"As with an appeal from any judgment, it is the appellant's responsibility to affirmatively demonstrate error"'" even where the appellate court's review is de novo].)
B. Step Two: Probability of Prevailing
As plaintiff has not shown the trial court erred at the first step in concluding the third cause of action arises from protected activity, we proceed to the second step where plaintiff must demonstrate a probability of prevailing on the claim, meaning the claim has "at least 'minimal merit.'" (Park, supra, 2 Cal.5th at p. 1061.) "In order to establish a probability of prevailing on the claim (§ 425.16, subd. (b)(1)), a plaintiff responding to an anti-SLAPP motion must '"state[] and substantiate[] a legally sufficient claim"' [Citations.] Put another way, the plaintiff 'must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.'" (Wilson v. Parker, Covert &Chidester (2002) 28 Cal.4th 811, 821.) "A complaint 'is sufficient if it alleges ultimate rather than evidentiary facts,' but the plaintiff must '"'"set forth the essential facts of his [or her] case with reasonable precision and with particularity sufficient to acquaint [the] defendant with the nature, source, and extent"'"' of the plaintiff's claim. Legal conclusions are insufficient." (Thrifty Payless, Inc. v. The Americana at Brand, LLC (2013) 218 Cal.App.4th 1230, 1238 [appeal from a ruling on a demurrer].)
"The court does not weigh evidence or resolve conflicting factual claims.... It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law." (Baral, supra, 1 Cal.5th at pp. 384-385.) The plaintiff must demonstrate this probability of success with admissible evidence. (Sheley v. Harrop, supra, 9 Cal.App.5th at p. 1162.) "'The plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.'" (City of Costa Mesa v. D'Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 376.)
Moreover, "[p]erhaps the most fundamental rule of appellate law is that the judgment challenged on appeal is presumed correct, and it is the appellant's burden to affirmatively demonstrate error." (People v. Sanghera (2006) 139 Cal.App.4th 1567, 1573.) Even on de novo review, "the appellant must frame the issues for us, show us where the superior court erred, and provide us with proper citations to the record and case law." (Morgan v. Imperial Irrigation Dist. (2014) 223 Cal.App.4th 892, 913.)
In urging reversal of the trial court's second-step determination, plaintiff argues his claim is one based on substantive due process. Plaintiff points to Murdoch, an Oakdale official with a personal and disqualifying financial interest in plaintiff's building permits, who "heavily influenced" Oakdale's actions with respect to plaintiff's permits. Plaintiff maintains the complaint identified at least five instances of arbitrary and capricious activity, which, taken together, represent unlawful conduct aimed at engineering a desirable financial result for Murdoch.
As set forth in the FAC, plaintiff's due process claim is somewhat difficult to parse. The FAC allegations make no reference to substantive due process, nor are there allegations that expressly signal a substantive due process claim-there is no articulation that Murdoch's conduct was outrageous or egregious and constituted a true abuse of power. Moreover, there are allegations Murdoch worked with Gravel to prevent plaintiff from appealing the revocation of his permits to the planning commission; that Oakdale failed to create an appellate process for permits that were denied; and that due process under both the state and federal Constitutions requires reasonable notice and an opportunity to be heard. These allegations involve procedural due process concerns perhaps aimed primarily at Oakdale and Gravel, but, as already noted, plaintiff maintains on appeal his third cause of action is based on substantive due process.
1. Protected Interest or Statutorily Conferred Benefit
Plaintiff does not make clear whether his substantive due process claim is asserted under the United States Constitution, the California Constitution, or both.
"The state and federal Constitutions prohibit government from depriving a person of property without due process of law. (Cal. Const., art. I, §§ 7, 15; U.S. Const., 14th Amend., § 1)." (Kavanau v. Santa Monica Rent Control Bd. (1997) 16 Cal.4th 761, 771.) "The substantive aspect of this guarantee 'protects against arbitrary government action.'" (Lafayette Bollinger Development LLC v. Town of Moraga (2023) 93 Cal.App.5th 752, 784.)
For purposes of the federal Constitution, a party asserting a deprivation of substantive due process must first establish a valid liberty or property interest within the meaning of the federal Constitution. (Clark v. City of Hermosa Beach (1996) 48 Cal.App.4th 1152, 1184 (Clark); see Benn, supra, 150 Cal.App.4th at p. 489, fn. omitted ["threshold requirement to a substantive or procedural due process claim is the plaintiff's showing of a liberty or property interest protected by the Constitution"].) Similarly, a substantive due process claim under the California Constitution also requires a plaintiff to identify a protected interest or statutorily conferred benefit with which the government interfered. (Bottini, supra, 27 Cal.App.5th at p. 316.)
As Murdoch notes, plaintiff had no vested property interest in invalid building permits (Pettitt v. City of Fresno (1973) 34 Cal.App.3d 813, 824), which a local government may revoke at any time (Cal. Code Regs., tit. 24, pt. 2, § 105.6), and the FAC does not identify another protected interest or statutorily conferred benefit that Murdoch's conduct implicated. Plaintiff has not presented any legal authority that his due process claim is viable in the absence of such a showing.
2. Outrageous or Egregious Conduct of Constitutional Dimension
Stating a substantive due process claim also requires allegations of arbitrary government action. (County of Sacramento v. Lewis (1998) 523 U.S. 833, 845.) "A substantive due process violation requires more than 'ordinary government error,' and the '"'arbitrary and capricious'"' standard applicable in other contexts is a lower threshold than that required to establish a substantive due process violation." (Las Lomas Land Co., LLC v. City of Los Angeles (2009) 177 Cal.App.4th 837, 855-856 (Las Lomas).)
"Typical land use disputes involving alleged procedural irregularities, violations of state law and unfairness ordinarily do not implicate substantive due process." (Las Lomas, supra, 177 Cal.App.4th at p. 856 .) "'"Even where state officials have allegedly violated state law or administrative procedures, such violations do not ordinarily rise to the level of a constitutional deprivation."'" (Bottini, supra, 27 Cal.App.5th at p. 315.) "Rather, '[a] substantive due process violation requires some form of outrageous or egregious conduct constituting a "true abuse of power."'" (Ibid., quoting Las Lomas, supra, at p. 856; accord, Hobbs, supra, 85 Cal.App.5th at p. 321.)
In Stubblefield Construction Co. v. City of San Bernardino (1995) 32 Cal.App.4th 687 (Stubblefield), the court held that evidence an individual city council member vigorously opposed a development project and proposed an ordinance to block the project, and that the city officials initially supported the development, but the city council later prevented it, was insufficient, as a matter of law, to establish a substantive due process violation under federal law. (Id. at pp. 710-711.)
Similarly, in Las Lomas, it was alleged a council member vigorously opposed a development project, made misleading public statements concerning the project, and successfully moved the city council to terminate the environmental review process. (Las Lomas, supra, 177 Cal.App.4th at p. 844.) Further, the city was alleged to have changed course by deciding not to proceed with the proposed development; allegedly violated the California Environmental Quality Act (Pub. Resources Code, § 21000 et seq.) by failing to complete and consider an environmental impact report before rejecting the project; and that a modified motion by a councilmember was made without proper notice or an opportunity to respond to new evidence. (Las Lomas, supra, at pp. 844, 847.) The court concluded that, as a matter of law, these allegations did not amount to an outrageous or egregious abuse of power of a constitutional dimension. (Id. at p. 857.)
Here, the FAC alleges Murdoch unlawfully interfered in the permitting process and intentionally, without justification, worked with Gravel to revoke plaintiff's initial building permits; Murdoch used his official position as an Oakdale council member to interfere in Oakdale's permitting of plaintiff's project; Murdoch reviewed documents plaintiff submitted to Oakdale and conspired with Gravel to require more design changes to improperly prevent plaintiff's construction projects; and that Murdoch had a personal financial interest in doing so.
Much like the conduct by the city and a city council member in Las Lomas, these allegations are insufficient as a matter of law to state a substantive due process claim. Even with the allegations of Murdoch's personal financial interest in plaintiff's compliance with Oakdale's Design Expectations, the FAC does not aver outrageous or egregious conduct of a constitutional dimension. Murdoch's complaints to Oakdale officials and his insistence on plaintiff's compliance with Oakdale's Design Expectations, even if unlawful conduct as a financially interested official, were not irrational. As the writ proceedings confirmed, the permits issued by Oakdale were invalid. And, as the FAC alleges, the plans that were ultimately approved following the writ proceedings were substantially different from those originally approved by Oakdale. Moreover, Oakdale's vacillation in approving plaintiff's permits, revoking them, requesting more design changes and then issuing permits again pursuant to the MOU (also found to be invalid in the writ proceedings) was rationally related to issuing valid permits that comported with local ordinances, despite plaintiff's allegations of the subjective motive of Oakdale officials and Murdoch. (See Stubblefield, supra, 32 Cal.App.4th at p. 709 [even where state officials allegedly violate state law or procedures, violations involving refusals to issue building permits do not ordinarily rise to the level of constitutional deprivation].)
Nevertheless, even if these allegations were sufficient to state a cognizable substantive due process claim, there must also be a prima facie factual showing sufficient to sustain a favorable judgment. (Wilson v. Parker, Covert &Chidester, supra, 28 Cal.4th at p. 821 [the plaintiff must demonstrate complaint is both legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if evidence submitted by the plaintiff is credited].) Crediting the evidence in plaintiff's favor, Murdoch was financially interested in plaintiff's building plans and permits, he contacted and complained to Oakdale about plaintiff's permits, and Oakdale vacillated several times regarding plaintiff's building plans and the validity of plaintiff's permits based on Murdoch's complaints, including what processes were required under the Design Expectations. Yet, substantive due process does not "'"protect individuals from all [governmental] actions that infringe liberty or injure property in violation of some law."'" (Stubblefield, supra, 32 Cal.App.4th at p. 709.) "'"Rather, substantive due process prevents 'governmental power from being used for purposes of oppression,' or 'abuse of government power that shocks the conscious,' or 'action that is legally irrational in that it is not sufficiently keyed to any legitimate state interests.'"'" (Id. at pp. 709-710.)
"'[T]o satisfy the "shock the conscience" standard, a plaintiff must do more than show that the government actor intentionally or recklessly caused injury to the plaintiff by abusing or misusing government power. That is, the plaintiff must demonstrate a degree of outrageousness and a magnitude of potential or actual harm that is truly conscience shocking.'" (Clark, supra, 48 Cal.App.4th at p. 1185.) Even assuming Murdoch's involvement was unlawful under the PRA due to his personal financial interest, his complaints to Oakdale about plaintiff's permits not complying with the Design Expectations and his efforts to ensure Oakdale's compliance with those Design Expectations were not irrational-Oakdale had an obligation to comply with the Design Expectations process, and the building permits they had issued to plaintiff were ultimately held to be invalid.
Moreover, Oakdale's vacillation regarding plaintiff's building permits, even if unlawful because it was due to Murdoch's improper participation and because it failed to properly follow procedure, was rationally connected to enforcing and ensuring compliance with the Design Expectations. It is not conscience-shocking that Oakdale sought to ensure valid permit issuance, even if subjective motivations of Oakdale officials involved producing a desirable financial result for Murdoch. (Cf. Breneric Associates v. City of Del Mar (1998) 69 Cal.App.4th 166, 184 [government official's motivation for voting on land issues is irrelevant to whether there has been a due process violation].)
In light of the caselaw discussed above, plaintiff has not sufficiently stated a substantive due process claim or established the probability he will prevail on the merits. In sum, the trial court did not err in concluding plaintiff was not likely to prevail on its substantive due process claim arising against Murdoch.
We do not reach Murdoch's contentions he was not established to be a government actor, or that Murdoch's conduct is protected by the litigation privilege under Civil Code section 47, subdivision (b).
DISPOSITION
The court's order granting Murdoch's anti-SLAPP motion is affirmed. Murdoch is entitled to his costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
WE CONCUR: DETJEN, Acting P. J. PENA, J.