This post was authored by Amy Lavine, Esq.
A California case decided in March declined to allow an anti-SLAPP motion brought by a property owner who had applied to build two houses and who sought to block his neighbor’s nuisance lawsuit, which was based on the impacts that the proposed houses would have on the views from his existing house. The neighbor’s nuisance claim did not “arise” from any protected conduct, the court held, because the property owner’s action in merely filing applications for the proposed houses was not protected activity and even if it were, the neighbor’s nuisance claim did not arise from the filing of these applications but rather arose from building construction actually proposed by these applications.
The parties in this case, Greenfield and Porter, were neighbors on residential properties in Los Angeles. Greenfield had an existing house on his property and when Porter proposed building two new houses he filed a nuisance complaint alleging that they would interfere with his views. Greenfield had attempted to reach a compromise with Porter prior to the public hearing and asked Porter to revise the building plans, and while Porter did revise his proposal, his new plans were allegedly worse and “maximized blockage of views…, with the sole or primary purpose being to block those views and destroy the sense of openness enjoyed by the occupants of, and visitors to, [Greenfield’s] residence…. or as mere spite against [Greenfield].” The revised plans, Greenfield contended, qualified as a “spite fence” under a code section that defined a private nuisance to include any fence “or other structure in the nature of a fence” that exceeds 10 feet in height and that is “maliciously erected or maintained for the purpose of annoying the owner or occupant of adjoining property.” He also claimed and the proposed houses would create a nuisance and accordingly sought an injunction to prohibit any construction of the planned houses.
Porter then filed an anti-SLAPP motion in response, claiming that Greenfield’s lawsuit was merely made in retaliation for his participation in the building permit process and his filing of building permit applications. The trial court dismissed Porter’s anti-SLAPP motion, explaining that Porter’s claim did not arise from any protected activity because “[t]he wrong [Greenfield] complained of is the planned construction of two houses which [he] contends will constitute a nuisance, not [Porter’s] attempts to obtain permits to build.” On appeal, the court affirmed.
The court first provided general background on California’s anti-SLAPP statute, which authorizes a special motion to strike for retaliatory legal claims that arise from acts taken in connection with a public issue and in furtherance of a person’s right of petition or free speech. Essentially, the motion is intended to protect people who exercise their free speech or petition rights from retaliation intended to silence them or force them to withdraw their opposition. Any claims that are found to be retaliatory must be stricken under the anti-SLAPP law, unless the court finds that the claims are legally sufficient and factually substantiated. The law also specifically defines the types of acts that are in “furtherance of a person’s right of petition or free speech” to include “any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law,” and “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.”
Applying these standards, the court found that Greenfield’s nuisance claim did not arise from Porter’s protected petitioning conduct during the planning process. The elements of the nuisance claim, the court explained, were defined in the spite fence law, and did not arise from Porter’s actions in participating in the building permit process. Rather, Greenfield’s claim only “arose” from the building permit applications in the sense that they were evidence of Porter’s intent to build the houses and the annoying nature of his specific building plans. The nuisance claim didn’t directly challenge the protected conduct of submitting those building permit applications, however, as opposed to the sort of direct challenge that might be involved in a claim asserting that Porter had committed fraud or misrepresentation merely by the filing of his applications.
Porter nevertheless argued that Greenfield’s claim could not exist without his petitioning conduct, and therefore that his claim must have “arisen” from it. But the court disagreed and clarified that this argument “confuses the legal basis for Greenfield’s nuisance claim with the evidentiary support for the claim…. It is the planned construction, not the application for permits, that is the basis for Greenfield’s claim.” Porter was also wrong, the court concluded, in contending that the nuisance action should be barred because Greenfield’s true intention was to use the planning process to intimidate him. As the court explained, the intent for Greenfield’s nuisance lawsuit was irrelevant to the question of whether his claim arose from Porter’s protected conduct. At the most, the court found that Greenfield’s claim was “filed after, or because of” Porter’s protected conduct, but this simply was not enough for anti-SLAPP relief.
Greenfield v. Porter, 2019 WL 1253178 (3/19/19).
LAW OF THE LAND 
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