Harchol v. City of Tustin

Filed 5/22/06 Harchol v. City of Tustin CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 977(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 977(b). This opinion has not been certified for publication or ordered published for purposes of rule 977.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

Appeal from a judgment of the Superior Court of Orange County, Gregory H. Lewis, Judge. Affirmed.

Peter J. Porter for Plaintiff and Appellant.

Woodruff, Spradlin & Smart and M. Lois Bobak for Defendants and Respondents.

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Introduction

Property owner Amy Harchol sued the City of Tustin (the City), and its contract city attorney, Woodruff, Spradlin & Smart (the City Attorney). Harchol alleged the City, relying on fraudulent, negligent, and misleading findings of an unlicensed structural engineer in its employ, refused to accept Harchol's plans for her property, declared the existing structure unsound, and caused Harchol damage by red tagging and ultimately razing the structure. Harchol also alleged the City and the City Attorney caused her damage through various actions, including, but not limited to, preparing false and misleading reports and findings regarding the condition of the structure, instituting misdemeanor criminal actions, and preparing and serving orders to demolish the structure.

The City and the City Attorney filed a special motion to strike the complaint pursuant to Code of Civil Procedure section 425.16, commonly referred to as the anti-SLAPP (strategic lawsuit against public participation) statute. (All further statutory references are to the Code of Civil Procedure.) The trial court granted the motion, and entered judgment. Harchol appealed from the judgment.

We conclude Harchol's appeal from the judgment is improper, as an order granting a motion to strike under section 425.16 is directly appealable. Because it is reasonably clear that Harchol intended to appeal from the order granting the motion to strike, the appeal would have been timely, and the City and the City Attorney would not be prejudiced, we will construe the notice of appeal to be from the order granting the motion to strike.

On the merits, we conclude the trial court did not err in granting the motion to strike. The statements and actions of the City and the City Attorney in conducting official proceedings authorized by law (the acts of inspecting, condemning, and ultimately demolishing the structure on Harchol's property), and their statements and actions in anticipation of or in connection with the parties' various civil and criminal judicial actions were all within section 425.16, subdivision (e)(1) and (2). The appellate record does not contain any evidence sufficient to make a prima facie showing of facts that would support a judgment in Harchol's favor. Therefore, we affirm.

Statement of Facts and Procedural History[1]

I.

Harchol's Code Violations and the City's Criminal Complaints

Harchol owns a parcel of real property located in the City. In early 1999, the City's code enforcement officers observed various violations of the Tustin City Code on Harchol's property. The City notified Harchol and her husband, Arther Masaoka, of the violations by letter, by telephone, and in person, and requested that they be corrected. On March 2, 2001, the City, through the City Attorney, filed a misdemeanor complaint against Harchol to force compliance with the City's code (Orange County Superior Court case No. 01CY00047). (The criminal complaint was ultimately abandoned by the City in favor of a civil nuisance abatement action.)

In mid-April 2001, the City's acting building official, Behrouz Azarvand, conducted an inspection of Harchol's property. He found numerous violations of local and state building and housing regulations, which in his opinion rendered the house unsafe for occupancy. The substandard conditions observed by Azarvand, which posed a substantial danger to public health, safety, and welfare, included the following: sections of the exterior walls had deteriorated to the point that daylight could be seen through gaps in the walls; the ceilings and roof were bowing and/or separated from the structural membrane supporting them; the structure appeared to lack a foundation, and the walls appeared to be resting directly on the ground without adequate structural support; the floor supports had deteriorated and suffered serious structural damage, making the existing floor unstable; the plumbing lines had been improperly altered, causing fixtures and waste lines to leak into the ground below the flooring; the interior and exterior electrical wires were not covered; the walls on the south side of the structure had shifted off the foundation due to a lack of foundation or a lack of connection to the foundation; cement blocks were stacked eight feet high to support a sagging roof over the front entrance, without any mortar or steel reinforcement; garbage, furniture, wrought iron, lumber, clothes, and â€