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Bradshaw Landing, LLC v. Forster-Gill

March 29, 2011

BRADSHAW LANDING, LLC, CROSS-COMPLAINANT AND RESPONDENT,
v.
FORSTER-GILL, INC., CROSS-DEFENDANT AND APPELLANT.



(Super. Ct. No. 34200800013077CUWMGDS)

The opinion of the court was delivered by: Robie, J.

Bradshaw Landing v. Forster-Gill

CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Forster-Gill, Inc. appeals the denial of its special motion to strike pursuant to Code of Civil Procedure section 425.16*fn1 a nuisance cause of action in a cross-complaint filed by Bradshaw Landing, LLC. In denying the motion to strike, the trial court concluded that the nuisance cause of action did not arise from an act by Forster-Gill in furtherance of its right of petition or free speech. We agree. Accordingly, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

We take the facts in the next two paragraphs from the trial court's ruling:

"This action arises out of a dispute over a proposed movie theater, restaurant and retail project on the site of the Sacramento 6 Drive-In Theatre property off Bradshaw Road in Sacramento County. One of the features of the proposed project is the use of an existing access road known as Oates Drive as the primary entrance to the complex. Plaintiff/petitioner Forster-Gill . . . owns a parcel of land on Oates Drive on which it occupies an 80,000 square foot industrial building. Trucks and automobiles doing business with Forster-Gill use Oates Drive for access to this building."

"On June 12, 2008, Forster-Gill filed a complaint and petition for writ of mandate setting forth various claims in relation to the proposed project. . . . The petition and complaint named the County of Sacramento as the respondent and a number of other persons and entities as real parties in interest, including the developers of the proposed project, Syufy Enterprises, LLC, Bradshaw Landing . . . , and Sywest Development, LLC . . . ."

Bradshaw Landing filed a cross-complaint against Forster-Gill, alleging causes of action for quiet title, nuisance, and declaratory relief. In its cross-complaint, Bradshaw Landing alleges that it owns an easement to use Oates Drive for ingress and egress. In paragraph 8 of the cross-complaint, Bradshaw Landing further alleges that Forster-Gill is "'purporting to utilize portions of [the property over which Oates Drive runs] in such a way as to preclude the usage of [the property] as a roadway for ingress and egress, including but not limited to placement of truck loading and maneuvering areas within such property and other significant and sustained interference with [Bradshaw Landing's] use of [the property] and other property.'" In its cause of action for nuisance, Bradshaw Landing alleges that Forster-Gill's use of the property over which Oates Drive runs "'substantially and materially interfere[s] with [Bradshaw Landing's] easement rights' and 'unlawfully obstructs and interferes with the free passage or use of a street, and is therefore a nuisance within the meaning of Civil Code section 3479.'"*fn2

In April 2009, Forster-Gill filed a special motion to strike the nuisance cause of action, asserting that "the allegations of the Cross-complaint arise out of [Forster-Gill]'s exercise of its constitutional right to petition for grievances, are retaliatory in nature, and it is not probable that [Bradshaw Landing] will prevail on its claim for nuisance." More specifically, Forster-Gill argued that Bradshaw Landing filed the nuisance cause of action in retaliation for Forster-Gill's filing of its complaint and mandamus petition, which was "an exercise of [Forster-Gill's] constitutional right to petition for grievances."

In opposing the special motion to strike, Bradshaw Landing argued that its nuisance cause of action "ar[o]se from [Forster-Gill]'s interference in [Bradshaw Landing]'s property rights and claim of right to control or exclude access over a portion of Oates Drive" and not from "any assertion by Forster-Gill of its constitutional rights of petition or free speech."

In its reply brief, Forster-Gill changed its position slightly, arguing for the first time that the nuisance cause of action "arises solely from statements made by Forster-Gill during the ...


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