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Shahbazian v. City of Rancho Palos Verdes

California Court of Appeals, Second District, Seventh Division

November 22, 2017

HOSSEIN SHAHBAZIAN et al., Plaintiffs and Respondents,
v.
CITY OF RANCHO PALOS VERDES, Defendant and Appellant.

         APPEAL from an order of the Superior Court of Los Angeles County No. YC070413, Stuart M. Rice, Judge. Affirmed.

          Kutak Rock, Edwin J. Richards, Antoinette P. Hewitt and Christopher D. Glos for Defendant and Appellant.

          Callanan, Rogers & Dzida and Joseph S. Dzida for Plaintiffs and Respondents.

          SEGAL, J.

         INTRODUCTION

         Governments speak. They also petition. And they act in ways that are neither speaking nor petitioning. It is important to distinguish between the three, because Code of Civil Procedure section 425.16 (section 425.16) may apply to the first two, but not the third.

         This case concerns whether the City of Rancho Palos Verdes properly issued a permit for a fence separating two neighbors. Hossein and Victoria Shahbazian challenged the permit by suing the City. The Shahbazians alleged the City violated certain ordinances and selectively applied others in issuing the permit for the fence while denying a permit for a deck the Shahbazians had built. The City filed a special motion to strike under section 425.16, arguing the Shahbazians' complaint targeted “protected speech” because the City's decisions followed official government proceedings. The trial court denied the motion, and the City appealed.

         We conclude section 425.16 does not protect a governmental entity's decisions to issue or deny permits, and we agree with the trial court that granting a special motion to strike in these circumstances would chill citizens' attempts to challenge government action. Therefore, we affirm.

         FACTUAL AND PROCEDURAL BACKGROUND

         A. The Shahbazians Contest Their Neighbors' New Fence

         The Shahbazians live next door to Darrel and Brenda Hesser.[1] A retaining wall topped by a lattice wood fence originally separated the two properties. In 2014 the Hessers partially constructed a new fence and allegedly “shaved” the retaining wall without the approval of the Shahbazians or a permit from the City. (See Rancho Palos Verdes Mun. Code, § 17.76.030.) The Shahbazians alleged the alterations to the fence and the wall created drainage problems, interfered with their ocean view, and reduced the value of their property.

         The Shahbazians complained to the City's community development department, whose code enforcement division initiated an investigation. After consulting with the planning and zoning division, the code enforcement division concluded the portions of the fence the Hessers had already built complied with the municipal code. The City issued what it called “an over-the-counter after-the-fact permit” for the “already-built” portion of the fence.[2]

         The planning and zoning division concluded the portion of the fence not yet built would comply with the municipal code if modified in certain respects, and it issued a conditional permit for that portion of the fence. The Shahbazians appealed that decision to the planning commission. Following a noticed public hearing, the planning commission approved the permit. The Shahbazians appealed that decision to the city council. Following another noticed public hearing, the city council remanded the matter to the planning commission with instructions to consider whether the fence as a whole complied with the municipal code.

         Meanwhile, the Shahbazians appealed the “over-the-counter after-the-fact permit” for the portion of the fence the Hessers had already built. Following another noticed public hearing, the planning commission approved the permit with modifications, effectively approving the entire fence. The Shahbazians appealed that decision to the city council, which affirmed the decision of the planning commission. According to the City, the Hessers complied with the required modifications when they completed the fence.

         The Shahbazians' complaints about the Hessers' fence apparently prompted the Hessers to complain to the City about a deck the Shahbazians had built without a permit. The City investigated the deck and concluded it did not comply with the municipal code. The City nevertheless conditionally approved a permit pending certain modifications to the deck. The City contends the Shahbazians did not make those modifications, and the City did not issue a final permit for the deck.

         B. The Shahbazians Sue the City

         The Shahbazians sued the City and the Hessers. The operative first amended complaint alleged causes of action against the City for negligence, inverse condemnation, and selective enforcement. In connection with the cause of action for negligence, the Shahbazians alleged, among other things, the City had a “mandatory duty” to refuse to issue any permit without first giving the Shahbazians prior notice and an “opportunity to be heard.” The Shahbazians claimed the City “violated its own ordinances by permitting the Hessers to alter the [fence] without required permits and without prior notice and hearing as required by law.” The Shahbazians alleged the City acted unreasonably by failing to require the Hessers to repair damage to the Shahbazians' property before issuing the permit.

         In connection with the cause of action for inverse condemnation, the Shahbazians alleged the City was jointly and severally liable with the Hessers because the City “conducted itself... to protect itself from suit and liability rather than in the objective performance of its public duties.” In connection with the cause of action for selective enforcement, the Shahbazians alleged “the City acted arbitrarily and engaged in illegal selective enforcement by refusing to strictly enforce and follow its own ordinances with respect to the Hessers while having previously and at the same time strictly enforced such ordinances as to the Shahbazians.” The Shahbazians alleged that “at least one motive for the City's arbitrary conduct and selective enforcement was the improper and illegal motive of discrimination against persons of Middle Eastern ethnicity and descent.”

         C. The City Files a ...


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