Melek v. City of Ontario

Filed 10/13/06 Melek v. City of Ontario CA4/2

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 977.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 TWO

APPEAL from the Superior Court of San Bernardino County. Martin A. Hildreth, Judge. (Retired judge of the San Bernardino Municipal Court, West Valley Division, assigned by the Chief Justice pursuant to art. VI, § 6, of the Cal. Const.) Affirmed with directions.

Jeffrey S. Mintz for Plaintiff and Appellant.

Best Best & Krieger and Charisse L. Smith for Defendants and Respondents Best, Best & Krieger, LLP, Gene Tanaka, Jeffrey Ballinger, Charisse Smith, and Roberta Harting.

Bannan, Green, Frank & Terzian, Richard Terzian and Brian I. Hamblet for Defendants and Respondents City of Ontario, Gregory C. Devereaux, Bill Makshanoff, Donna McKnight, Debi Thomsen, Jim Furr, Traci McGinley, Robert Heitzman, Kevin Shear, Willis A. Wingert, Karen DeVrieze, Kenneth Blaylock, Max E. Williams and Joe DeSousa.

1. Introduction

Plaintiff Jacques Melek^[1] appeals from an order granting defendants’ special motion to strike brought pursuant to Code of Civil Procedure section 425.16, commonly known as the anti-SLAPP (strategic lawsuits against public participation) law.^[2] (Thomas v. Quintero (2005) 126 Cal.App.4th 635, 644.) Plaintiff’s lawsuit concerns code enforcement activities by the City of Ontario and its employees (the City defendants) and the law firm of Best, Best and Krieger and certain of its lawyers (the attorney defendants). Defendants’ SLAPP motion was granted as to four of plaintiffs’ five causes of action. The fifth cause of action remains viable.

We hold that plaintiff’s claims are based on protected activity by defendants, as defined by section 425.16, subdivisions (b) and (e), and that plaintiff cannot make the required showing of the probability of prevailing. We affirm the court’s order granting the SLAPP motion as it pertains to four causes of action. We cannot, however, review the trial court’s order denying without prejudice the SLAPP motion as to the fifth cause of action because no appeal was taken from that order. (§ 906.)

2. Factual and Procedural Background

Our recitation of the facts and proceedings derives from the complaint and from the materials submitted in support of and in opposition to defendants’ SLAPP motion.

In 1988, Melek was assigned the beneficial interest under a deed of trust secured by real property, commonly described as 820 North Richland Avenue, Ontario, and consisting of a four-unit apartment building.^[3] The property owner of record is Haim Elmaleh, Melek’s brother. Melek claims Elmaleh was in Israel throughout the course of these events.

In January 2005, a complaint was made to the City of Ontario’s Code Enforcement Department about the condition of the subject property. On January 11, the code enforcement officer, Donna McKnight, inspected the property and identified numerous code violations. On January 26, the City issued a Preliminary Notice of Substandard Conditions, which it mailed to Elmaleh, the owner. The certified mail receipt was signed by “J. Melek.”

Section 1101.3 of the 1997 Uniform Housing Code provides: “The notice and order [of the building official] . . . shall be served upon the record owner . . . the holder of any mortgage or deed of trust or other lien or encumbrance of record . . . and the holder of any other estate or legal interest of record . . . .” Section 1201.1 provides a right of appeal to any person entitled to service under section 1101.3.

Based on a subsequent inspection on February 17, the City issued a Notice and Order to Repair on March 1, addressed to Elmaleh. Again “J. Melek” signed the certified mail receipt.

On or about March 30, Melek and Elmaleh submitted an appeal, signed by Melek, to the Housing Appeals Board. The City then issued to Melek and Emaleh a Notice of Hearing on Appeal for May 4.

At the appeal hearing, Melek agreed to allow the City to inspect the property again within two weeks, or by May 18, and the City agreed to allow an additional 60 days for repairs. Nevertheless, the City was not able to obtain final consent for the inspection and finally applied to the superior court on July 25 for an inspection warrant, which the court granted. The inspection warrant contained an apparent error in the following language: “. . . the Owners are believed to be deceased.” On July 26, Officer McKnight performed the judicially-authorized inspection.

On July 27, plaintiff, acting in propria persona, filed a complaint for damages and injunctive and declaratory relief. In his complaint, Melek claims a beneficial interest in the subject property. In the first, second, and third causes of action, he alleges he filed a government claim on January 11, the same day as the first property inspection, and his claim was rejected on March 22. He also attacks the veracity of the purported code violations and contends he was slandered regarding them. He challenges the due process accorded him in the housing appeal. He asserts he was discriminated against because he is Jewish. He includes a fourth cause of action for violation of his civil rights based on the City not providing him with a copy of a tape recording of the housing appeal. He alleges the code enforcement actions were initiated by disgruntled tenants and that the inspection warrant was wrongly obtained by representing he was dead. Finally, the fifth cause of action challenges the constitutionality of the 1994 Uniform Housing Code section 201.3.^[4]

The attorney defendants, joined by the City defendants, filed a demurrer and a special motion to strike directed at the complaint.

In his opposition to defendants’ SLAPP motion, Melek asserts that his claims were based on years of abuse and harassment by the City. He further claims the City destroyed a tape recording of the May 4 hearing as part of its ongoing violation of his rights.

On October 11, the court sustained defendants’ demurrer without leave to amend as to the first four causes of action, and sustained with leave to amend the demurrer to the remaining fifth cause of action for declaratory relief. The primary basis for the ruling was Melek’s lack of standing because he was not the owner of the property but maintained only a beneficial interest. Also, the court ruled the first cause of action for slander was barred by the litigation privilege.

On October 20, the court granted defendants’ special motion to strike as to the four causes of action and denied the motion without prejudice as to the fifth cause of action. The court also awarded attorney’s fees and costs to defendants.

Melek appeals from the order granting the motion to strike the four causes of action. No appeal was taken from the order denying the motion to strike the fifth cause of action. In their respondents’ briefs, defendants contend the court properly granted the motion on four causes of action and should have granted the motion as to the entire complaint, including the fifth cause of action.

3. Discussion

Because no judgment has been entered, no immediate appeal lies where a demurrer is sustained without leave to amend as to some, but not all, causes of action: “The order sustaining the demurrers with leave to amend is not itself appealable, but review of such a ruling may be had in an appeal from the ultimate order of dismissal. (Otworth v. Southern Pac. Transportation Co. (1985) 166 Cal.App.3d 452, 457.)” (Leader v. Health Industries of America, Inc. (2001) 89 Cal.App.4th 603, 611.) But the order granting the motion to strike the action as a strategic lawsuit against public participation is appealable. (Code Civ. Proc., §§ 425.16, subd. (i); 904.1, subd. (a)(13); Kyle v. Carmon (1999) 71 Cal.App.4th 901, 907-908.) We independently review the propriety of the SLAPP order. (Thomas v. Quintero, supra, 126 Cal.App.4th at p. 645; ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999-1000.) But we also necessarily give tangential consideration to the order sustaining the demurrer because the sufficiency of the complaint is part of the SLAPP analysis. However, because defendants have not appealed the order denying without prejudice their SLAPP motion as to the fifth cause of action, we cannot entertain their arguments on that issue. (§ 906; Cal. Rules of Court, rule 1(a).)

The SLAPP two-step analysis first determines whether defendant has shown a protected activity is involved and then whether plaintiff has made a prima facie showing of the probability of prevailing: “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (§ 425.16, subd. (b)(1).) ‘A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e)’ [citation]. If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim. (§ 425.16, subd. (b)(1); see generally [Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53,] 67.)

“As we previously have observed, in order to establish the requisite probability of prevailing (§ 425.16, subd. (b)(1)), the plaintiff need only have ‘”stated and substantiated a legally sufficient claim.”’ [Citations.] ‘Put another way, the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”’ [Citations.]

“Only a cause of action that satisfies both prongs of the anti-SLAPP statute -- i.e., that arises from protected speech or petitioning and lacks even minimal merit -- is a SLAPP, subject to being stricken under the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.)

Plaintiff contends defendants did not support their motion to strike with the required threshold showing that the challenged third and fourth causes of action arise from protected activity. Apparently, he concedes the first and second causes of action concern protected activity. He also contends he demonstrated a probability of prevailing on the first four causes of action. In opposition, defendants contend the four causes of action are subject to the SLAPP statute and plaintiff cannot show the probability of prevailing on them.

Section 425.16 provides: “(b)(1) A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, . . .” Further:

“(e) As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”

Litigation, and preparation for litigation, qualify as protected activity under section 425.16. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115.) Basic administrative actions also qualify. (Premier Medical Management Systems, Inc. v. California Insurance Guarantee Assn. (2006) 136 Cal.App.4th 464, 474.) The reviewing court focuses on the nature of defendants’ activity, not the form of plaintiff’s cause of action, to determine whether conduct is covered by the SLAPP statute. The critical consideration is the principal thrust of plaintiff’s cause of action, not the particular type of action alleged. (Navellier v. Sletten, supra, 29 Cal.4th at pp. 89, 92; Scott v. Metabolife Intern., Inc.. (2004) 115 Cal.App.4th 404, 414; Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 615.) We conclude the third and fourth causes of action involve protected activity.

The third cause of action for declaratory relief asserts the City’s repair order, issued on March 1, 2005, was unlawful. Plaintiff alleges no inspection was actually made by McKnight on February 17 and none was authorized. Because the repair order was signed by Ken Blaylock over the typed name of Kevin Shear, plaintiff contends the order was a fraud and it was illegally issued by McKnight and the City to deprive plaintiff of property rights and various federal statutory and constitutional rights, as well as reducing the amount of affordable low-income housing.

The fourth cause of action asserts a violation of plaintiff’s federal civil rights under Title 42 United States Code section 1983 (section 1983) in connection with damage allegedly caused by the former tenants on July 18, 2005, and the complaints they made to the Ontario police regarding plaintiff. Plaintiff also claims McKnight exploited this opportunity to harass plaintiff further and to obtain information to support the unlawful inspection warrant. In this same cause of action, plaintiff lists a number of grievances about the code enforcement hearing procedures, including his contention the City destroyed the tape recording of the May 4 hearing.

The principal thrust of all of plaintiff’s claims, including the third and fourth causes of action, involve code enforcement activities and writings “made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.” (§ 425.16, subd. (e)(2).). Plaintiff concedes the making of the repair order by the City’s code enforcement department, and, by reasonable extrapolation, all code enforcement activities, seem “to be presumptively subject to the SLAPP statute.” But plaintiff argues a declaratory relief claim is not subject to the SLAPP statute because he merely seeks a determination as to the validity of the repair order, a matter involving equal protection and due process. Plaintiff cites general legal authority that he is entitled, one way or another, to a declaration of his rights. (General Ins. Co. of America v. Whitmore (1965) 235 Cal.App.2d 670.)

One problem with this argument, as has been repeatedly emphasized by defendants and the court below, is plaintiff is not the owner or an occupant of the property. Plaintiff possesses a beneficial interest, secured by a deed of trust. (Civ. Code, § 2953.1, subd. (a).) The property is owned by Elmaleh, plaintiff’s brother. (Civ. Code, § 1092.) The protected activity by the City’s code enforcement department most directly involves either the owner or the occupant’s interest, not the plaintiff’s beneficial interest. Even though sections 1101.3 and 1201.1 of the 1997 Uniform Housing Code afford plaintiff some rights of notice and administrative appeal, a claimant must pursue declaratory relief regarding the validity of an enforcement action by writ of mandate, not in a civil suit. (Civ. Code, § 1094.5; McHugh v. Santa Monica Rent Control Board (1989) 49 Cal.3d 348, 376.)

Additionally, this case differs from those relied upon by plaintiff, in which the courts found defendants’ protected activity was not the basis underlying the controversy. (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80-81; State Farm Gen. Ins. Co. v. Majorino (2002) 99 Cal.App.4th 974, 977-978.) Instead, the present case involves an ongoing controversy absolutely entwined with the City’s code enforcement efforts. Plaintiff has not articulated any discrete controversy, independent of defendants’ protected activity, that does not involve code enforcement and is not subject to a SLAPP motion.

As to both the third and fourth causes of action, plaintiff maintains federal preemption prohibits the state court from applying the SLAPP statute. He relies on a federal district court case, Globetrotter Software, Inc. v. Elan Computer Group, Inc. (N.D.C.A. 1999) 63 F. Supp.2d 1127, which is not controlling authority for this court, and U.S. v. Lockheed Missiles and Space Co., Inc. (9th Cir. 1999) 171 F.3d 1208, in which the court did not address whether the SLAPP statute applies to federal causes of action. On this issue, plaintiff may again lack standing and, for additional reasons, we reject plaintiff’s argument that SLAPP does not apply to his federal claims as a protected activity.

Section 1983 creates a cause of action against a person acting under color of state law who deprives a plaintiff of some federal right. Plaintiff, neither owner or occupant, has no personal constitutional claim. (Conn v. Gabbert (1999) 526 U.S. 286, 292; Johns v. County of San Diego (9th Cir. 1997) 114 F.3d 874, 876; Siebert v. Severino (7th Cir. 2001) 256 F.3d 648. Even if he did, however, an anti-SLAPP motion may be brought against a section 1983 claim.

In state court, state procedural rules apply to a section 1983 claim unless such application is expressly preempted or the imposition of state law would result in a very different outcome than in federal court. (County of Los Angeles v. Superior Court (1999) 21 Cal.4th 292, 297-299, citing Felder v. Casey (1988) 487 U.S. 131.) The SLAPP statute may be applied to federal claims unless Congress dictates otherwise: “Where the action is founded on a federal statute and brought in state court, state procedure controls unless the federal statute provides otherwise. (Chavez v. Keat (1995) 34 Cal.App.4th 1406, 1413-1414.) The Legislature, in enacting section 425.16, recognized ‘that all kinds of claims could achieve the objective of a SLAPP suit . . .’” (Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1118, citing Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 652.)

Nothing in section 1983 expressly preempts the application of state law and no controlling authority has ruled the SLAPP statute does not apply to a section 1983 claim brought in state court. There is no reason to decide the imposition of state law would result in very different outcome than in federal court. In the latter instance, plaintiff would likely face dismissal of his claims in protection of the right to petition expressed in the analogous Noerr-Pennington doctrine. (Empress LLC v. City and County of San Francisco (2005) 419 F.3d 1052, 1056-1057.) Meanwhile, the California courts have countenanced the use of the SLAPP motion against federal claims. (Bradbury v. Superior Court, supra, 49 Cal.App.4th at pp. 117-118; Levy v. City of Santa Monica (2004) 114 Cal.App.4th 1252, 1259-1260.)

Having determined that plaintiff’s claims are based on protected activity by defendants, we next evaluate the probability of plaintiff prevailing on any of the four causes of action. (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) On this issue, we note that plaintiff’s SLAPP opposition was seriously deficient, consisting entirely of five pages, one of which constituted his declaration. Plaintiff did not submit admissible evidence, sufficient for the court to determine whether there is a probability he will prevail. (ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th at p. 1010; Simmons v. Allstate Ins. Co. (2001) 92 Cal.App.4th 1068, 1073-1074.) On appeal, plaintiff asserts his probability of success is based primarily on his contention that defendants destroyed, or otherwise made unavailable, a tape recording of his administrative hearing before the Housing Appeals Board. (Gov. Code, § 6200.) With respect to each cause of action, plaintiff’s claims do not meet the test of minimal merit outlined in Navellier v. Sletten, supra, 29 Cal.4th at pp. 89, 95, fn. 11, because, by themselves, his mere allegations that defendants acted illegally are not enough evidence to show plaintiff’s probability of success. (ComputerXpress, Inc. v. Jackson, supra, 93 Cal.App.4th at p. 1010; Simmons v. Allstate Ins. Co., supra, 92 Cal.App.4th at pp. 1073-1074.)

Plaintiff’s first cause of action is for slander and slander per se. (Civ. Code, § 46.) The statements plaintiff alleges were slanderous were all made in an official proceeding and thus were privileged. (Civ. Code, § 47.) Plaintiff does not offer any evidence to the contrary. Plaintiff’s allegations do not support a cause of action for slander or slander per se so he cannot prevail on the first cause of action. (Silberg v. Anderson (1990) 50 Cal.3d 205, 212; Harris v. King (1998) 60 Cal.App.4th 1185, 1188.)

Plaintiff’s second cause of action for conspiracy suffers from similar defects. A cause of action for conspiracy fails if not based on a wrongful action or separately actionable claim. (Tietz v. LAUSD (1965) 238 Cal.App.2d 905, 913.) Because the conspiracy claim is based on the slander claims, it must also fail.

The third cause of action has no probability of success because it should have been brought by writ of mandate. (§ 1094.5; McHugh v. Santa Monica Rent Control Board, supra, 49 Cal.3d at p. 376.) Plaintiff’s standing is also questionable, as previously discussed. And plaintiff has not submitted evidence opposing the SLAPP motion to support his diffuse and uncertain allegations. The same problems with standing, uncertainty, and lack of evidence afflict the fourth cause of action.

We reject plaintiff’s undeveloped argument that the City defendants could not join in the SLAPP motion filed by the attorney defendants. (Barak v. Quisenberry Law Firm (2006) 135 Cal.App.4th 654, 660-661.)

4. Disposition

We affirm the judgment. The trial court’s award of attorney fees to defendants pursuant to section 425.16 is also affirmed. Defendants are awarded their costs and attorney fees on appeal. The matter is remanded to the trial court to determine the amount of attorney fees. (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 287.)

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

s/Gaut

J.

We concur:

s/Ramirez

P. J.

s/McKinster

J.

Publication courtesy of California pro bono legal advice.

Analysis and review provided by La Mesa Property line Lawyers.

^[1] The records reflects three apparent spellings of Melek’s name: Jacques Melek, Jacob Eli Melek, and Jacob Elimelech.

^[2] Unless stated otherwise, all statutory references are to the Code of Civil Procedure.

^[3] The property is also described as 820 East Richland Street.

^[4] The 1994 Uniform Housing Code was superseded by the 1997 Uniform Housing Code. Section 201.3, entitled “Responsibilities Defined,” appears to be unchanged between the 1994 and 1997 versions. Both versions are now replaced by the International Property Maintenance Code 2006.