Opinion
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Los Angeles County No. BC413819, Luis A. Lavin, Judge.
Henry M. Lee, Law Corporation and Henry M. Lee for Plaintiff and Appellant.
Strumwasser & Woocher, Gregory G. Luke and Jonathan D. Krop for Defendants and Respondents.
JACKSON, J.
INTRODUCTION
Plaintiff Gary Roy appeals from the judgment in favor of defendants Mount Washington Homeowners Alliance, Dan Marlos, Phot Luisiri, Daniel Wright, Lucy McCusker, Craig Price, Edmond McCormick IV, Kitson McCormick, Yolanda Vera, Kathryn Coronges, and Anthony Cahill. The court issued the judgment after granting defendants’ special motion to strike pursuant to Code of Civil Procedure section 425.16. We affirm.
FACTUAL AND PROCEDURAL BACKGROUND
In August 2007, plaintiff purchased real property consisting of the vacant land identified by the street address of 1538 Randall Court, located in the Mount Washington neighborhood of Los Angeles (also identified as Lot 28). Plaintiff intended to build a single family residence on the lot. Prior to the purchase, plaintiff obtained a preliminary opinion from a zoning engineer on behalf of the City of Los Angeles Department of Building and Safety that Lot 28 was a buildable lot. The opinion explained that restrictions might apply, in that Lot 28 was subject to the Mount Washington/Glassell Park Specific Plan, as well as the Hillside Ordinance and the municipal code.
In June 2008, plaintiff’s architect submitted the architectural plans and related documents for construction of plaintiff’s residence (plaintiff’s project) to the City of Los Angeles (City). Plaintiff then submitted an application for project approval under the Mount Washington/Glassell Park Specific Plan Permit process and an environmental assessment form to be used to determine whether an environmental assessment would be required.
The City zoning administrator held a hearing on plaintiff’s project in January 2009. In March 2009, the zoning administrator issued a written determination giving conditional approval to plaintiff’s project. One of the conditions was that building permits would issue only if the Department of Building and Safety determined there was legal street frontage on Randall Court for Lot 28. The administrator’s determination also included a mitigated negative declaration (Pub. Resources Code, § 21080, subds. (c) & (f)), requiring plaintiff to comply with the heightened construction requirements of the California Environmental Quality Act (CEQA) (id., §§ 21000-21177).
Plaintiff learned that defendants had submitted various written communications opposing his project to the City agencies and officials involved in the process for approval of his project. Defendant Mount Washington Homeowners Alliance (MWHA), a nonprofit membership organization founded in 2001, advocates on behalf of the interests of residents of the Mount Washington neighborhood in the preservation and development of the area. Membership was voluntary and was limited to those residents of the Mount Washington neighborhood who voluntarily paid an annual membership fee, usually ranging from about 400 to about 600 residents. The membership was racially diverse and included Caucasians, African Americans, Asians, Latinos and Native Americans. Defendants Dan Marlos, Phot Luisiri, Daniel Wright, Lucy McCusker, Craig Price, Edmond McCormick IV, Kitson McCormick, Yolanda Vera, Kathryn Coronges, and Anthony Cahill were residents in the Mount Washington neighborhood. Seven of the individual defendants were not members of MWHA at the time the written communications were submitted.
For convenience, we sometimes use the term “the City” to refer to one or more of the agencies and/or officials.
Plaintiff also named Albert Landini as a defendant. He was the City of Los Angeles zoning administrator handling the Lot 28 construction approval process. He was not a party to the anti-SLAPP motion at issue here and, therefore, is not a party to this appeal.
MWHA and the other defendants represented to the City that plaintiff’s construction plans were impermissible, in that they contemplated building the house facing Randall Court and using a privately owned portion of Randall Court for access to the house. Defendants claimed that the portion of Randall Court adjacent to Lot 28 was a private street, created as a road easement across the properties of, and to be shared between and among, the owners of lots to the north of Lot 28. For that reason, they claimed, there was no access to Lot 28 via the private portion of Randall Court.
Defendants Luisiri, Vera, Edmund McCormick, Kitson McCormick, Price, Coronges, McCusker, and Cahill each signed and submitted a copy of the following form letter to the zoning administrator at the January 2009 hearing: “The purpose of this letter is to address concerns about the impending development at 1538 private Randall Ct. We, as the property owners of the privately owned portion of Randall Ct[.], strongly object to the construction of this home because of the problems with its access. [¶] The project in question is a... single family residence planned to be built at 1538 private Randall Ct. The access to this building as planned will mean that cars entering and leaving the property will need to trespass on our land. [¶] We believe it is more appropriate to build any future new construction on this lot from Killarney St[.] to avoid the use of private Randall Ct. We would greatly appreciate your help and consideration on this matter.”
Defendants represented to the City that they were not opposed to construction on Lot 28 if the entrance would be on Killarney Avenue, the street perpendicular to Randall Court. Plaintiff opposed a Killarney Avenue entrance, in that there is a ten-foot bluff from the construction site to Killarney Avenue below. Based upon information from his architect, plaintiff believed that the construction would involve additional problems that would significantly increase the costs, which would make construction prohibitively expensive.
Plaintiff claimed that Randall Court was a public street on the basis of its identification in various documents and his observations. He had observed private vehicles, commercial and government agency vehicles, including the City’s garbage and recycling vehicles, using the entire length of Randall Court, including the portion which defendants claimed was private. However, residents along Randall Court had refused to allow plaintiff and his construction crews access to the portion of Randall Court they claimed was privately owned.
In April 2009, Wright filed an appeal on behalf of MWHA, Luisiri and Marlos with the East Los Angeles Planning Commission. The appeal challenged the zoning administrator’s conditional approval and petitioned to have the access right determined by the zoning administrator or the East Los Angeles Planning Commission before any approval, conditional or otherwise, was given to plaintiff’s project. The appeal also objected that the zoning administrator did not adhere to CEQA when he adopted a mitigated negative declaration stating that the proposed project would have a less-than-significant impact on the environment and petitioned to elevate it to a significant impact.
A hearing on MWHA’s appeal was scheduled for May 27, 2009. About two weeks prior to the hearing date, plaintiff filed a complaint against defendants for a single cause of action alleging racial discrimination in violation of the Unruh Civil Rights Act (Civ. Code, § 51) (the Unruh Act or the Act).
Plaintiff alleged he was a victim of racial discrimination by defendants because he is African American. All new private residential construction in the Mount Washington neighborhood required approval by MWHA, and MWHA qualified as a business establishment within the scope of the Unruh Act. After one or more of the defendants discovered plaintiff was African American, defendants conspired with each other to deny MWHA’s approval for his construction based solely on plaintiff’s race. Defendants knew plaintiff’s planned construction complied with all local and Los Angeles County laws and with MWHA’s stated purpose. They knew that, without MWHA’s approval, support and endorsement, plaintiff could not proceed with construction in a timely fashion and would ultimately give up and sell Lot 28 in order to move to another neighborhood. They knew that, as a result, he would suffer financial and emotional damages. Nevertheless, in conscious disregard of plaintiff’s rights, defendants refused to extend to him the same accommodation, privilege, and services which MWHA extended to all other races with respect to approval, support and endorsement of new residential construction.
Part of the relief plaintiff sought was an injunction against defendants which mandated that MWHA issue “approval, support and endorsement” for his project. He also sought compensatory damages, punitive damages and attorney’s fees and costs.
In view of the filing of plaintiff’s complaint, the hearing on MWHA’s appeal was postponed until June 2009. At the hearing, the East Los Angeles Planning Commission granted MWHA’s appeal.
In granting MWHA’s appeal, the commission held that the zoning administrator should not have conditionally approved construction and should not have conditionally granted a variance, in that there was “a clear, substantial, and as yet unresolved dispute” as to whether Lot 28 enjoys a legal right of access to the private portion of Randall Court.
Thereafter, defendants filed their special motion to strike plaintiff’s complaint pursuant to Code of Civil Procedure section 425.16 (section 425.16), sometimes referred to as an anti-SLAPP motion. The trial court granted defendants’ anti-SLAPP motion on July 22, 2009.
A SLAPP (strategic lawsuit against public participation) is a lawsuit containing one or more causes 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 Constitution or the California Constitution in connection with a public issue.” (§ 425.16, subd. (b)(1); Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.) Section 425.16, the anti-SLAPP statute, authorizes and sets forth requirements for a special motion to strike a SLAPP cause of action. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.)
The trial court found that plaintiff’s complaint arose from defendants’ acts in furtherance of their rights of petition and free speech under the United States and California Constitutions, specifically emails, letters, testimony and/or appeals direct to City planning officials opposing plaintiff’s proposed construction. The court concluded that defendants had met their threshold burden under the anti-SLAPP statute.
The court found further that plaintiff failed to demonstrate a reasonable probability of success on his claim of racial discrimination under the Unruh Act, as required to defeat defendants’ anti-SLAPP motion. More specifically, the court ruled that the Unruh Act did not apply to defendants. The court found: (1) plaintiff failed to show that MWHA and the other defendants qualify as a “business establishment” within the meaning of the Unruh Act; (2) contrary to plaintiff’s claim, MWHA had no authority to approve or disapprove of development projects in the Mount Washington neighborhood and, thus, it does not provide a “service” within the meaning of the Act; and (3) plaintiff did not present admissible evidence which established the requisite intentional, invidious discrimination by defendants. The court further ruled that all of defendants’ statements denying approval, support or endorsement of plaintiff’s project were privileged under Civil Code section 47, subdivision (b).
On August 21, 2009, the trial court entered a judgment dismissing plaintiff’s complaint and entitling defendants to recover their attorney’s fees and costs. After a subsequent hearing, the court awarded defendants their attorney’s fees and costs in the amount of $106,327.
In his reply brief, plaintiff contends we should not consider defendants’ brief, in that it was not timely filed as required by California Rules of Court, rules 8.212 and 8.220. We disagree. Defendants’ brief was timely filed pursuant to California Rules of Court, rule 8.25.
A. Anti-SLAPP Principles and Standard of Review
The anti-SLAPP statute provides that “[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 Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) On appeal, we review the grant of an anti-SLAPP motion de novo, employing the same two-step process as the trial court. (Rusheen v. Cohen, supra, 37 Cal.4th at pp. 1055-1056.)
In the first step, we determine if defendants made a threshold showing that plaintiff’s cause of action arises from acts of defendants which they took “‘in furtherance of the [defendants’] right of petition or free speech under the United States or California Constitution in connection with a public issue, ’ as defined in the statute.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Included in the anti-SLAPP statutory definition is any written or oral statement or writing “made before... any... official proceeding authorized by law” or “made in connection with an issue under consideration or review by... any... official proceeding authorized by law.” (§ 425.16, subd. (e)(1) & (2).) If defendants show their acts constituted protected activity, in the second step, we proceed to determine “whether the plaintiff has demonstrated a probability of prevailing on the claim.” (Equilon Enterprises, supra, at p. 67.) If we determine plaintiff succeeded in doing so, we must reverse the judgment. If plaintiff failed to make such a showing, we must affirm.
In making our determinations, we consider “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2); accord, Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 67.) We must accept as true the evidence favorable to plaintiff, and we do not weigh the evidence or determine credibility. (Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th 903, 918.)
B. Defendants’ Constitutionally Protected Acts
The acts of defendants which plaintiff claims were racially discriminatory were protected activities under section 425.16, in that they were “statements or writings made in connection with issues under consideration or review by official bodies or proceedings.” (Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1115; § 425.16, subds. (b) & (e).) Defendants made statements or submitted writings to the City zoning administrator, the East Los Angeles Planning Commission, and City planning department officials and staff. The statements and writings related, in whole or in part, the same information-that the entrance and drive on plaintiff’s construction plans would require access over the part of Randall Court to which plaintiff had no right of access, in that that part was privately owned.
Plaintiff argues that defendants’ acts with respect to the zoning administrator and planning commission are not part of his Unruh Act cause of action but only have significance because they are evidence of defendants’ racial discrimination against him. As the California Supreme Court has explained, however, “‘the nature or form of the action is not what is critical but rather that it is against a person who has exercised certain rights.’” (Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th at p. 60.) “The anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability-and whether that activity constitutes protected speech or petitioning.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 92.) “[A] plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a ‘garden variety... claim’ when in fact the liability claim is based on protected speech or conduct. [Citation.]” (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 187.)
In plaintiff’s declaration in opposition to the anti-SLAPP motion, the offending actions he identified were statements and writings by defendants to the City with respect to the project approval and permit process. Thus, we conclude that defendants met their burden to demonstrate that their activities underlying plaintiff’s claim fall squarely within the anti-SLAPP’s definition of protected activities. (§ 425.16, subds. (b) & (e).)
C. Plaintiff’s Demonstration of a Probability of Prevailing
The second step in the anti-SLAPP process requires us to determine if plaintiff has established a probability of prevailing on his claim. (§ 425.16, subd. (b)(1).) “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.]” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) Plaintiff contends that he made the requisite showing. We disagree.
The Unruh Act expressly limits the scope of the application of its prohibition of racial discrimination to “business establishments of every kind whatsoever.” (Civ. Code, § 51, subd. (b).) As we shall explain, none of defendants or any configuration of defendants qualifies as a “business establishment” to which the Act applies.
Civil Code section 51, subdivision (b), provides: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability, medical condition, marital status, or sexual orientation are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.”
In Curran v. Mount Diablo Council of the Boy Scouts (1998) 17 Cal.4th 670, the Supreme Court differentiated between characteristics of a “business establishment” to which the Unruh Act applies and characteristics of an entity not subject to the Act. The term “business establishment” must be interpreted “‘“in the broadest sense reasonably possible.”’” (Id. at p. 696.) Accordingly, in various previous cases, the court held that the Unruh Act applied to a nonprofit condominium owners association and other entities “that ordinarily might not be thought of as a traditional business establishment, ” but the purpose of which was “to serve the business or economic interests of its owners or members.” (Id. at pp. 696-697, fn. omitted.) By contrast, the Act does not apply to “a charitable, expressive, and social organization... whose formation and activities are unrelated to the promotion or advancement of the economic or business interests of its members, ” (id. at p. 697) and whose primary function is not to be “a commercial purveyor of the primary incidents and benefits of membership in the organization” (id. at p. 700) and is not otherwise “comparable to those of a traditional place of public accommodation or amusement” (id. at p. 699). (Accord, Randall v. Orange County Council (1998) 17 Cal.4th 736, 744.)
Plaintiff failed to provide evidence that MWHA, or any configuration of defendants, was an entity which was formed and operated “to serve the business or economic interests of its owners or members.” (Curran v. Mount Diablo Council of the Boy Scouts, supra, 17 Cal.4th at pp. 696-697, fn. omitted.) Rather, the record shows that MWHA lacks the earmarks of a traditional business. It is a nonprofit association with no real property, place of business or staff. Membership is voluntary and limited only to residents of the Mount Washington neighborhood. MWHA does not offer specific products or services to its members on an ongoing basis. Thus, it is not “a commercial purveyor of the primary incidents and benefits of membership in the organization.” (Id. at p. 700.) MWHA does not engage in other types of business activities that have been the basis for deeming a nonprofit organization to be a “business establishment” subject to the Unruh Act. (See, e.g., Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594, 598 [extensive business transactions with nonmembers involving use of club property and other resources]; Isbister v. Boys’ Club of Santa Cruz, Inc. (1985) 40 Cal.3d 72, 78-84 [club operated a recreation facility open to all local male minors]; Rotary Club of Duarte v. Board of Directors (1986) 178 Cal.App.3d 1035, 1055 [“there are substantial business benefits to be gained by belonging to an organization [with extensive other businesslike attributes] which is comprised of community business and professional leaders”].)
In its organizational documents, MWHA identifies its purposes as being to preserve and enhance “the unique urban oasis qualities of Mount Washington” and to advocate a “balance between real estate development interest and the fundamental values of community as expressed in the Los Angeles General Plan, the Northeast Community Plan, and the Mount Washington/Glassell Park Specific Plan.” Neighborhood preservation and advocacy with respect to development of the neighborhood consistent with such preservation are expressive and advocacy purposes, rather than commercial or business purposes, to advance the members’ business or economic interests. (Curran v. Mount Diablo Council of the Boy Scouts, supra, 17 Cal.4th at pp. 696-697; accord, Randall v. Orange County Council, supra, 17 Cal.4th at p. 744.) For the foregoing reasons, we conclude that neither individual defendants nor any configuration of defendants constitutes a “business establishment” to which the Unruh Act applies.
Plaintiff repeatedly asserts that MWHA is a “gatekeeper to development of Mount Washington, ” and that its support of, or objection to, a development project governs whether the City will approve the project and, if so, will impose CEQA or other conditions on the project. Plaintiff provides no evidence or legal authority that substantiates his assertion. Our review of the record reveals evidence to the contrary. Declarations by MWHA officers and members state that MWHA has no such approval authority. We know of no legal authority that supports plaintiff’s position. (See, e.g., City of Los Angeles Municipal Code, §§ 11.09, 11.5.7.C, 12.24X.)
In sum, it appears to us that “[t]ransformation of... a loosely knit protective association [like MWHA and its members or defendants in any configuration] into a ‘business’ [establishment] is stretching the concept of an entrepreneurial venture beyond all reason.” (O’Connor v. Village Green Owners Assn. (1983) 33 Cal.3d 790, 802 (dis. opn. of Mosk, J.).) Our conclusion that defendants do not constitute a “business establishment” is a sufficient basis upon which to conclude that plaintiff cannot demonstrate a probability of prevailing on his cause of action alleging racial discrimination in violation of the Unruh Act. (§ 425.16; Wilson v. Parker, Covert & Chidester, supra, 28 Cal.4th at p. 821.) Having resolved the issue on this basis, we need not address the absolute privilege applicable to defendants’ statements and writings pursuant to Civil Code section 47, subdivision (b), or other factors that preclude plaintiff from having a probability of prevailing on his cause of action.
D. Attorney’s Fees
Plaintiff does not challenge defendants’ entitlement to attorney’s fees as prevailing parties under the anti-SLAPP statute, insofar as we have concluded the trial court properly granted defendants’ anti-SLAPP motion. (§ 425.16, subd. (c).) Rather, he contends that the amount of attorney’s fees awarded is excessive. We disagree.
We review a trial court’s award of attorney’s fees for abuse of discretion. (Jones v. Union Bank of California (2005) 127 Cal.App.4th 542, 549.) A trial court abuses its discretion when its ruling “‘exceeds the bounds of reason, all of the circumstances before [the trial court] being considered.’” (Denham v. Superior Court (1970) 2 Cal.3d 557, 566; accord, PLCM Group, Inc. v. Drexler (2000) 22 Cal.4th 1084, 1095.) Accordingly, we will not disturb a trial court’s attorney’s fees award unless the amount “is manifestly excessive in the circumstances” (Children’s Hospital & Medical Center v. Bonta (2002) 97 Cal.App.4th 740, 782) or “so large... that it shocks the conscience” (Akins v. Enterprise Rent-A-Car Co. (2000) 79 Cal.App.4th 1127, 1134).
Plaintiff challenges the defense attorneys’ billing rates as excessive. Defendants presented evidence of billing rates of comparably qualified attorneys to support the hourly rates billed by defendants’ attorneys, Gregory Luke ($545) and Aparna Sridar ($305). Courts have recognized that an “‘“experienced trial judge is the best judge of the value of professional services rendered in his [or her] court, and [the judge’s] judgment... will not be disturbed unless the appellate court is convinced that it is clearly wrong.”’ [Citation.]” (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1132.) We conclude the trial court had a reasonable basis for its finding that the billing rates reasonably reflected rates charged by attorneys of similar skill, reputation and experience in the community.
Plaintiff also claims the number of hours billed was inflated. Specifically, for example, plaintiff argues that the declarations of defendants in support of their motion were very similar, such that billing for each of them amounts to duplicative billing and requires a corresponding deduction in the fees amount. Plaintiff’s argument is not supported by the record. Defendants’ attorneys represented 11 defendants, including a neighborhood association. It was plaintiff’s choice to name so many defendants. Review of the declarations reveals that, although the declarations are similar in some respects, each primarily identifies relevant conduct and other facts specific to the declarant.
In addition, as the trial court noted, the billing records showed that defendants’ counsel exercised significant billing judgment, in that counsel performed at least 50 hours of relevant work at no charge, in addition to the billed hours. The trial court properly concluded the number of hours billed were necessary and reasonable. Further, the trial court did not award all the fees requested. It denied application of the 1.25 multiplier requested by defendants’ attorneys. For the foregoing reasons, we conclude that the trial court did not abuse its discretion in awarding attorney’s fees and costs. (Ketchum v. Moses, supra, 24 Cal.4th at p. 1132.)
DISPOSITION
The judgment is affirmed. Defendants are to recover their costs on appeal.
We concur: PERLUSS, P.J., WOODS, J.
Defendant Marlos wrote about concerns related to the environmental assessment of the project and access over the private portion of Randall Court to the zoning engineer in 2008 and to the zoning administrator in January and February 2009. Luisiri submitted a January 26, 2009 letter and testified at the January 26, 2009 zoning administrator’s hearing. McCusker also testified at the January 26, 2009 hearing. Defendant Wright edited a MWHA comment letter and drafted the MWHA appeal.
MWHA submitted a comment letter in February 2009 prior to the zoning administrator issuing his determination.