Opinion
H036488
01-23-2012
JOHN MANDURRAGO et al., Plaintiffs and Appellants, v. CITY OF CARMEL-BY-THE-SEA et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Monterey County Super. Ct. No. M97273)
At this court's direction, the trial court vacated its order granting defendants' anti-SLAPP motion (Code Civ. Proc., § 425.16) and entered a new order denying that motion. Plaintiffs John Mandurrago and Pacific Grove Land Company, LLC (hereafter collectively Mandurrago) then sought to recover attorney's fees incurred in defending against that motion. The trial court denied Mandurrago's attorney's fees request, and he appeals. We find no abuse of discretion in the trial court's denial of the request and affirm its order.
"SLAPP is an acronym for 'strategic lawsuit against public participation.' " (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 16, fn. 1.)
I. Background
Mandurrago sought approval of a proposed development from defendants the City of Carmel-by-the-Sea City Council (the City Council) and the City of Carmel-by-the-Sea (the City). A recirculated final environmental impact report (RFEIR) concerning the proposed development was certified by the City's planning commission, but a citizen appealed that decision to the City Council. In December 2008, the City Council sustained the appeal. In February 2009, Mandurrago filed this action for mandate, administrative mandate, damages, and declaratory and injunctive relief against the City Council and the City. He contended that the City Council's December 2008 decision was invalid because it conflicted with a November 2006 City Council decision and with various state statutes. The City filed a special motion to strike all or some of Mandurrago's causes of action and sought to recover the City's attorney's fees and costs. Mandurrago opposed the City's motion, claimed that it was frivolous, and sought to recover his attorney's fees. The trial court granted the motion to strike, awarded costs and attorney's fees to the City, and entered a judgment of dismissal.
This reference and further references to the City include both the City and the City Council.
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Mandurrago challenged the trial court's order on appeal, and this court reversed the trial court's order. On remand, Mandurrago filed a motion seeking an award of attorney's fees and costs he had incurred in opposing the City's anti-SLAPP motion and in appealing from the court's order granting that motion. He contended that the City's motion had been frivolous and intended to delay and harass him. The court denied Mandurrago's attorney's fees motion. "This court finds that the special motion to strike filed by the City of Carmel-by-the-Sea was not frivolous, nor was it filed with the intent to cause unnecessary delay or to harass the petitioners. The City relied on appropriate legal authority in filing the special motion to strike, and nothing contained in the decision of the appellate court supports petitioners' claims." Mandurrago timely filed a notice of appeal from the trial court's ruling.
II. Analysis
"If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5." (Code Civ. Proc., § 425.16, subd. (c)(1).) The party seeking fees bears the burden of establishing entitlement to those fees. (ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1020.) "A determination of frivolousness requires a finding the motion is 'totally and completely without merit' (§ 128.5, subd. (b)(2)), that is, 'any reasonable attorney would agree such motion is totally devoid of merit.' " (Decker v. U.D. Registry, Inc. (2003) 105 Cal.App.4th 1382, 1392 (Decker), superseded by statute on another point as noted in Hall v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1349.) If the court determines that the motion was frivolous, an award of costs and fees is mandatory. (Moore v. Shaw (2004) 116 Cal.App.4th 182, 199.) We review the trial court's ruling for abuse of discretion. (Decker, at p. 1391.) "A ruling amounts to an abuse of discretion when it exceeds the bounds of reason, and the burden is on the party complaining to establish that discretion was abused." (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 450.)
Mandurrago essentially maintains that it was an abuse of discretion to deny his request because the trial court was obligated to find that the City's motion was frivolous.
He claims that the trial court erroneously concluded that the City "relied on appropriate legal authority" in making its motion when, in Mandurrago's view, the City's legal authority for its motion, Mission Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713 (Mission Oaks), disapproved on other grounds in Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123, footnote 10, provided no legal support for the City's motion.
Although Mission Oaks ultimately proved inadequate to support the City's position on its anti-SLAPP motion, that failure does not mean that the City acted inappropriately or frivolously in attempting to support its position by citing Mission Oaks. In this court's opinion reversing the trial court's grant of the City's anti-SLAPP motion, this court observed that Mission Oaks would have supported the City's motion if Mandurrago's causes of action had been "based on statements in an EIR." However, this court's analysis of each of Mandurrago's causes of action led it to conclude that these causes of action were not based on "statements in an EIR," as to which an anti-SLAPP motion could have succeeded, but instead were based on the City's "act of governance," as to which an anti-SLAPP motion could not succeed. This court acknowledged that some of Mandurrago's causes of action were "not easy to categorize" because they contained allegations concerning the City's acts in furtherance of its free speech rights. Nevertheless, this court concluded that the "gravamen" of those causes of action was the City's act of governance rather than its acts in furtherance of its free speech rights.
This court's detailed parsing of Mandurrago's causes of action demonstrated the nuanced analysis necessary to distinguish Mission Oaks. Contrary to Mandurrago's claim, this court did not find Mission Oaks to be " 'easily distinguishable' " from the situation posed in this case. Instead, those words simply appeared in language this court quoted from the opinion in San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees' Retirement Assn. (2004) 125 Cal.App.4th 343 (San Ramon), where that court found Mission Oaks "easily distinguishable" from the situation before it. (San Ramon, at p. 357.) Unlike the causes of action in Mission Oaks and Mandurrago's causes of action, the causes of action in San Ramon had no relationship to an EIR. The City's mistake was not in relying on Mission Oaks but in failing to undertake the very precise and nuanced analysis of the "gravamen" of Mandurrago's causes of action, which would have revealed that these causes of action, while referencing "statements in an EIR," did not "aris[e] from" those statements. (Code Civ. Proc., § 425.16, subd. (b)(1).) Although the City's legal authority proved inapplicable to the particular circumstances of the case, it was not inappropriate or frivolous for the City to cite that authority and attempt to demonstrate that it did apply.
Mandurrago asserts: "Since the City failed to meet its threshold burden to establish [that Mandurrago's] causes arose from the City's protected speech, the City's motion must be found frivolous." Not so. The fact that the City's motion ultimately failed does not mean that it was frivolous as a matter of law. The trial court, which had originally granted the City's motion, could have rationally determined that the City's motion was not "totally and completely without merit." (Code Civ. Proc., § 128.5, subd. (b)(2) [defining frivolous].) The court could have found that a reasonable attorney could have mistakenly believed that the gravamen of Mandurrago's causes of action, with their wide-ranging allegations, was the City's speech rather than its decisions. Accordingly, the trial court's ruling was not an abuse of discretion.
Mandurrago's reliance on Visher v. City of Malibu (2005) 126 Cal.App.4th 364 (Visher) is inapt. In Visher, the trial court denied the defendant's anti-SLAPP motion and awarded fees to the plaintiffs. The defendant appealed and claimed that the trial court had abused its discretion in awarding fees. The Court of Appeal found no abuse of discretion because the record reflected that there was no plausible basis for the defendant's motion. (Visher, at p. 371.) Because an award of fees to a prevailing plaintiff on an anti-SLAPP motion is reviewed on appeal under the deferential abuse of discretion standard, an appellate affirmance of an award under particular circumstances does not establish that the denial of an award would have been an abuse of discretion. Moreover, unlike the situation in Visher, here, the trial court could have reasonably concluded that the City did have a plausible basis for its motion, particularly since the trial court initially agreed with the City and granted its motion.
Mandurrago complains about certain comments that the trial court made at oral argument on his request for fees. " 'Because we review the correctness of the order, and not the court's reasons, we will not consider the court's oral comments or use them to undermine the order ultimately entered.' " (Pellegrino v. Robert Half Internal, Inc. (2010) 182 Cal.App.4th 278, 293.) Therefore, we refuse to consider these comments.
Mandurrago's final contention is that "public policy" mandates that he be awarded his fees. While his argument seems to be based on the legislative intent underlying Code of Civil Procedure section 425.16, this statute plainly provides that a fee award to a plaintiff is appropriate only where the defendant's motion was frivolous. Since the trial court did not abuse its discretion in finding that the City's motion was not frivolous, the statute plainly did not permit a fee award. As the intent underlying the statute cannot overcome its plain language, Mandurrago's public policy argument provides no support for his contention.
III. Disposition
The trial court's order is affirmed.
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Mihara, J.
WE CONCUR: ____________
Elia, Acting P. J.
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Bamattre-Manoukian, J.