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Reverge Anselmo et al v. Russ Mull et al

October 24, 2011

REVERGE ANSELMO ET AL., PLAINTIFFS AND RESPONDENTS,
v.
RUSS MULL ET AL., DEFENDANTS AND APPELLANTS.



(Super. Ct. No. 164445)

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

Anselmo v. Mull 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NOT TO BE PUBLISHED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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

Plaintiff Reverge Anselmo, owner of plaintiff Seven Hills Land and Cattle Company, LLC (sometimes collectively, Anselmo), tangled with defendants County of Shasta and its Board of Supervisors (County), the Shasta County Assessor-Recorder, two county supervisors, and a county employee over the propriety of Anselmo's actions in clearing his land. Anselmo filed an action alleging civil rights violations against defendants. Defendants filed a motion to strike pursuant to Code of Civil Procedure section 425.16.*fn1

The trial court denied the motion, finding that although defendants sustained their burden of proving the complained-of activity was within the scope of conduct subject to a special motion to strike, Anselmo had established a prima facie case showing facts that demonstrated a probability of prevailing. Defendants appeal, contending their actions do not rise to the level of constitutional violations. We shall affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

The following facts are taken from Anselmo's second amended complaint and his declaration in opposition to defendants' motion to strike. In 2007 Anselmo purchased property in Shasta County and began preparing the land for cultivation. Anselmo filed the forms necessary to have the land restricted to agricultural use under the California Land Conservation Act of 1965, also known as the Williamson Act. (Gov. Code, § 51200 et seq.)

In October 2007 an employee of the State Regional Water Quality Control Board (Board), Andrew Jensen, visited Anselmo's property. The south fork of Bear Creek flows through the property. Jensen directed employees who were clearing weeds to stop working or face steep fines or possible arrest.

The following day, Anselmo met with Jensen on Anselmo's property. Anselmo told Jensen he was restoring the pasture, had filed a Williamson Act contract application to keep the land agricultural, and that the prior owner had made previous improvements with the necessary approvals.

Jensen filed a report and the Board instituted proceedings against Anselmo, issuing a cleanup and abatement order. The Board later rescinded the order without any formal proceedings having taken place. Jensen published his report to the Shasta County Department of Environmental Health, the Shasta County District Attorney, and the State Department of Fish and Game.

Jensen and Anselmo later stipulated to a dismissal with prejudice of the underlying action against Jensen. As part of the dismissal, the Board agreed to distribute an internal memorandum to its regulatory staff. The memo states, in part, that "[i]f another agency informs staff of a water quality issue or participates in an inspection(s) . . . a coordinated effort should be made to determine which agency or agencies should pursue enforcement actions. . . . If formal enforcement is proposed, staff must discuss the matter with management . . . to avoid subjecting the discharger to unwarranted multiple enforcement actions or conflicting orders from more than one regulatory agency. In cases where a discharger has violated requirements of multiple agencies, management may decide that a coordinated multi-agency approach is appropriate. However, coordinating enforcement with other regulatory agencies to simply increase the regulatory burden on a discharger without increasing the possibility or likelihood of compliance is generally not supported by Regional Water Board management." (Italics added.)

In October 2007 the County issued a "Notice of Grading Violation" to Anselmo. The County ordinance referenced establishes minimum requirements for grading, excavating, and filling in order to control erosion and sediment and to prevent damage to aquatic habitat. (Shasta County Code, § 12.12.010.) Cultivation and production of agricultural products are exempt from permit requirements. (Id. at § 12.12.050.)

Anselmo met with defendant County Supervisor Les Baugh and asked why he was being targeted for selective enforcement of County ordinances. Baugh called Anselmo the following day and told him the forces aligned against him were "overwhelming" and that there was a desire to see Anselmo "run out of the County on a rail." In addition, Baugh stated there was "too much pressure coming down on . . . Baugh" for him to help Anselmo. According to Baugh, this "punishment" was the result of Jensen's report.

Although Anselmo informed the County that his land was being used for agricultural purposes, the grading violation was not rescinded. Anselmo retained legal counsel and documented there was no basis for the grading violation.

In January 2008 Anselmo contacted defendant County Supervisor Glen Hawes, who visited Anselmo at his property. Hawes stated that, in his opinion, this was "not the way we like to see people welcomed to Shasta County." Hawes offered to intervene and mentioned that he had a "mitigation bank" that might be "useful to prevent enforcement by the Shasta County officials under his supervision." Anselmo interpreted Supervisor Hawes's comments as an offer to help if Anselmo paid a fee to Supervisor Hawes's company. Anselmo declined the offer.

Through January 2008 the County failed to conduct any investigation of Anselmo's claims. As a result, Anselmo could not plant pasture grass and lost one growing season.

Anselmo's property also contained a small winery and tasting room under construction. Anselmo obtained all required permits. Inspections revealed no violation of County ordinances.

On February 1, 2008, several County officials toured the site of the alleged grading violation on Anselmo's land. Defendant Russ Mull, the Director of the County's Department of Resource Management, told Anselmo, "If you don't pay me for the grading permit here, I could hold up your C.O. [certificate of occupancy] at ...


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