COUNTY OF MENDOCINO, a political subdivision of the State of California,

Plaintiff,

vs

GEOFFREY GOULD AND BARBARA GOULD, individually and dba PARROT PRESERVATION SOCIETY, and DOES I through XX, inclusive,

Defendants.

BARBARA and GEOFFREY GOULD,

Cross Complainants/Defendants,

vs.

COUNTY OF MENDOCINO; RAYMOND HALL, individually and in his capacity as Director of the Mendocino County Planning Dept.; ALLEN R. FALLERI, individually and in his capacity as Chief Planner, Mendocino County Planning Dept.; RICHARD SHOEMAKER, Individually and in his capacity as Mendocino County Supervisor; MICHAEL M. DELBAR, individually and in his capacity as Mendocino County Supervisor; TOM LUCIER, individually and in his capacity as Mendocino County Supervisor; PATRICIA A. CAMPBELL, individually and in her capacity as Mendocino County Supervisor; DALE HAWLEY, individually and in his capacity as Mendocino County Zoning Enforcement Officer; WOODY HUDSON, individually and in his capacity as Mendocino County Planner; DOUGLAS ZANINI, individually and in his capacity as Mendocino County Planner; GAIL HARRIE, individually and in her capacity as Mendocino County Enforcement Officer and DOES 1 through 50,

Cross-Defendants.

CASE NO. SCUK-CVG-00-82958

DEFENDANTS/ CROSS-COMPLAINANTS OPPOSITION TO CROSS-DEFENDANTS' DEMURRER TO SECOND AMENDED CROSS-COMPLAINT AND MOTION TO STRIKE FIRST AMENDED CROSS-COMPLAINT; AND MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT THEREOF

Date: April 27, 2001

Time: 9:30 A.M.

Dept: E

SUMMARY OF THE ARGUMENT

Defendants/Cross-Complainants ("the Goulds") have filed this action for injunctive and monetary relief to redress the injuries and damages sustained by them due to the negligence and illegal and corrupt intentional acts of the cross-defendants. "County cross-defendants" ("CCD") and the County of Mendocino ("the county") have filed this third, general and special demurrer and motion to strike to the Second Amended Cross-Complaint, which is nothing more than the previous two demurrers filed in this case, combined. The CCD/the county also claim for the second time that Govt Code Sections 815(a) 818.8, and 822.2 provide them with "absolute immunity." Although they did not prevail on these claims before, they apparently want this court to ignore the court's previous rulings denying them relief on these issues, ignore the principles of res judicata and give them one more bite of the apple, since the case is now before a new judge.

 

The only new issue raised in this third demurrer is a general and very broad claim that California Civil Code Section § 47 ("Section 47") provides "absolute immunity" and somehow immunizes all cross defendants from all claims alleged in the Second Amended Cross-Complaint, and that the Goulds' Second Amended Cross-Complaint should be dismissed or struck in its entirety. Cross-defendants contorted analysis and flawed reasoning ignores the directive of the California Supreme Court which over ten years ago, declared that "...the privilege of section 47 precludes recovery for tortuously inflicted injury resulting from publications or broadcasts made during the course o judicial and quasi-judicial proceedings, but does not bar recovery for injuries from tortuous conduct regardless of the purpose for which such conduct is undertaken. Kimmel et al. v. Goland (1990) 51 Cal. 3d 202. The Goulds are not claiming injuries resulting from any statements made by the cross-defendants. As stated supra, the Goulds seek redress for injuries and damages sustained by them due to the cross-defendants' negligence, and the illegal and corrupt intentional acts of the cross-defendants. Section 47 is inapplicable to the facts and claims involved in the instant case. Moreover, Section 47 is an affirmative defense, and in this case cannot be the basis for dismissal at the demurrer stage. Once again, CCD/county's claims are merit- less.

II. STATEMENT OF FACTS

The Goulds are known worldwide as "conservation breeders", who for the last twenty seven years have raised extremely valuable, endangered species of birds. Some for sale to private collectors and some, will be eventually reintroduced into the wild. All chicks sold are sold to a single distributor in Nebraska. The Goulds also market via mail order and the Internet, the feathers from their flock, which molts (drops its feathers) twice a year. There is no public access to the Goulds ranch and absolutely no retail sales are made from their property. The use for which they put their land is by any and all state and federal definitions, reasonable interpretations, and common sense, agricultural in nature.

The Goulds, relying on the representations of the county's employees and CCD, purchased their property and moved their entire operation, lock, stock and barrel, to the contested property and sold their farm in Arizona. The entire move took them over 6 months to complete and cost them in excess of $60,000. Five months after they were moved onto their property they received a notice of violation from the county informing them that the raising of exotic birds was not considered agriculture in Mendocino County.

This notice of violation was based upon a deliberate misinterpretation of the plain meaning of the Mendocino County Zoning Code (MCZC), and was undertaken at the instigation of Walter Stornetta (Stornetta) and with the full cooperation and assistance of Raymond Hall (Hall) and Alan Falleri(Falleri).

Stornetta, who is politically well connected in Mendocino County, leases land to Nicholas Turkeys, Inc. (Nicholas). Nicholas raises turkeys for the production of fertile eggs for sale to wholesalers and other distributors on Stornetta's land adjoining the Goulds' property. Both Nicholas and the Goulds raise large numbers of birds. The Nicholas turkeys on the adjacent property are not raised for food purposes, nor are their feathers sold for fiber. Neither ranch does any retailing from their property. Neither ranch raises their birds for food purposes. The only differences between their operations, besides scale ( the turkey ranch being a much larger operation), is that the Goulds also produce a fiber (feathers) which they market, and Nicholas does not. Nicholas objects to the proximity of the Goulds' operation.

The review of the decision by the Board of Supervisors was a sham. The exhibits attached to the cross‑complaint demonstrate inter alia that those who voted against the Goulds abused and manipulated the process, carried on a sham hearing, intentionally thwarted the Goulds ability to present their case by advancing the date of the hearing so the Goulds expert would not be able to testify at the hearing, allowed themselves to be swayed by inappropriate outside influences, and based their decision upon criteria to advance the private interest of Stornetta and Nicholas, rather than the public interests intended by the code.

As a result of the negligence and illegal and corrupt intentional acts of the cross‑defendants as alleged in the cross‑complaint, the county now seeks to force the Goulds to remove their parrots from their property. The Goulds have nowhere to move their parrots. Their birds are fragile, require constant care and maintenance and protection. They range in value from $2,000 and $40,000. to priceless and irreplaceable. Removal of the flock will result inevitably in loss of life as well as a delay for at least a year of the regular breeding cycles of almost all of the surviving birds. In addition to the loss of life that will occur, the county's actions threaten almost thirty years of focused research into the avian species that make up the Goulds' flock. Some of these rare species are extremely fragile. Should some of them succumb because of any further moves, they simply cannot be replaced at any price. The damages incurred by the Goulds are extensive.

On June 1, 2000, the Goulds filed a Cross‑Complaint for injunctive and monetary relief to redress the injuries and damages they have sustained. The cross‑defendants filed a demurrer on July 3, 2000. The Goulds then filed the First Amended Cross‑complaint on September 8. 2000, pursuant to this court's order. CCD/county filed a demurrer to the First Amended Cross-Complaint on October 20, 2000, and their motion to strike on November 1, 2000. The court entered an Order sustaining some portions of that demurrer and overruling others on January 17, 2001.

The Goulds filed their Second Amended Cross-Complaint on January 26, 2001. CCD/County filed this Demurrer and Motion to Strike the Second Amended Cross-Complaint on March 2, 2001.

III. STANDARD FOR DEMURRER

A demurrer is a pleading used to test the legal sufficiency of other pleadings, i.e., it raises issues of law, not fact, regarding the form or content of the opposing party's pleading. CCP §§. 422.10 & 589. The sole issue raised by a general demurrer is whether the facts pleaded state a valid cause of action not whether they are true. For the purpose of testing the sufficiency of a cause of action, the demurrer admits the truth of all material facts properly pleaded. Serrano v. Priest (1971) 5 C 3d 584, 591. It is not the function of the demurrer to challenge the truthfulness of the complaint; and for purposes of the ruling on the demurrer, all facts pleaded in the complaint are assumed to be true...however improbable they may be. Meyers v. Graphic Arts Int'lUnion Local No. 63‑A, 63‑B (1979) 88 CA 3d 176.

A demurrer can be used only to challenge defects that appear on the face of the pleadings under attack; or from matters outside the pleading that are judicially noticeable. Blank v. Kirwan (1985) 39 Cal.3d 311, 318. A court may take notice of the existence of each document in the court file. But, it can judicially notice the truth only of those facts that have been adjudicated and established in findings of fact, conclusions of law, orders and judgments.

A mistaken notion exists that taking judicial notice of court records means noticing the facts asserted in all the documents in a court file. A court cannot take judicial notice of hearsay allegations being true just because they are part of the court record or file. Day v. Sharp (1975) 50 CA 3d 904, 914; and see Garcia v. Sterling (1985)176 Cal. App. 3d 17.

Finally, the rule is well established that a general demurrer directed to the whole of the complaint should be overruled, if some portion of the complaint states a cause of action. A special demurrer is, or should be, directed to specific portions of the complaint, and the grounds should be specifically pointed out. Jones v. Iverson (1900) 131 Cal. 101. The grounds for the demurrer in the present case are not pointed to any particular paragraph or paragraphs, but are directed to the whole complaint and must be treated only as a general demurrer.

IV. ARGUMENT

This is the latest of three demurrers/motions to strike filed by the CCD/County. It consists of the same arguments as set forth in the prior two demurrers, albeit in a different order, that have already been ruled upon by this court. There is a legal concept known as res judicata to the rest of the legal world, which apparently does not exist in the Mendocino County Counsel's lexicon.

CCD/County has again demurred to the Cross-Complainant's Second Cause of Action. This was addressed in their second demurrer file October 20, 2000, pg 5. . The court in its order, pps 2-3, opined correctly that Cross-Complainants had failed to allege a duty owing by the CCD/County to the Goulds, and sustained the demurrer with leave to amend. The Goulds amended the cause of action to allege duty as directed by the court.

A complaint must contain a statement of facts sufficient to constitute a cause of action. The facts should be only the ultimate facts, i.e. the broad facts essential to the pleaders claim. Ultimate facts are logical conclusions deduced from primary evidentiary facts. Rhode v. Barthlolomew (1949) 94 Cal.App.2d 272, 279. The only new issue raised in this third demurrer is a general and very broad claim that Section 47 provides "absolute immunity" and somehow immunizes all cross-defendants from all claims alleged in the Second Amended Complaint. Cross-defendants analysis and reasoning are flawed in several respects.

The California Supreme Court over ten years ago, declared that "...the privilege of section 47(2) precludes recovery for tortuously inflicted injury resulting from publications or broadcasts made during the course of judicial and quasi-judicial proceedings, but does not bar recovery for injuries from tortuous conduct regardless of the purpose for which such conduct is undertaken. Kimmel et al. v. Goland (1990) 51 Cal. 3d 202.

 

Section 47 bars only tort causes of action which are predicated on a legislative or judicial statement or publication itself, the section does not create an evidentiary privilege for such statements. Accordingly, when allegations of misconduct properly put an individual's intent at issue in a civil action, statements made during the course of a proceeding may be used for evidentiary purposes in determining whether the individual acted with the requisite intent. Oren Royal Oaks Venture v. Greenberg, et al. (1986) 42 Cal. 3d 1157 (Citing, White v. Western Title Ins. Co. (1985) 40 Cal.3d 870, 887-889; Spellens v. Spellens (1957) 49 Cal.2d 210, 232-233.).

In the present case, the Goulds contend that defendants' tortuous conduct was the improper use of their positions for the "ulterior" purpose of benefitting Walter Stornetta at the expense of and injury to the Goulds. Section 47 does not preclude the Goulds from making evidentiary use of defendants' statements either before, during, or after the hearing to prove the intent with which defendants' conduct was undertaken. Id. Moreover, Section 47 is an affirmative defense only and is generally not available at the demurrer stage. Riley v Evening Post Pub. Co. (1916) 30 CA 294, 158 P 225.

 

CCD/County has again demurred to the Cross-Complainant's Fifth Cause of Action, Intentional Infliction of Emotional Distress. This was addressed in their demurrer to the First Amended Cross-Complaint filed October 20, 2000, pg 14. (Although misidentified by the CCD/County in its Table of Contents) The court has already overruled the demurrer to this cause of action. See Minute Order Filed January 17, 2001, P 5, entitled Fourth Cause of Action.

 

A. On the Face of the Complaint the Goulds Have Alleged Facts Which Would Support All of the Causes of Action.

As to the claim that the causes of action do not state a claim, the cross‑defendants have chosen to argue the sufficiency of the evidence in conclusory fashion in a light most favorable to them, rather than the sufficiency of the allegations. As stated supra, the facts as alleged in the complaint are assumed to be true for purposes of a demurrer. The same holds true for a special motion to strike.

On the advice of this court the Goulds' did not allege conspiracy as a separate cause of action but instead, because they believe a conspiracy did exist, they have alleged this within the cause of action where the conspiracy was relevant. Not surprisingly, the CCD now argue that conspiracy is not applicable as to them because of the same immunities they claim provide them with complete immunity. Since these immunities are not available, neither will they provide a defense to the conspiracy claims.

Regardless of the CCD/county's claims, the cause of action for wrongful conduct of a public official is a separate tort and not to be viewed in terms of one for fraud or misrepresentation. Although this would assist the CCD/county in attempting to claim immunities, the cause of action is exactly what the Goulds have claimed. In support of this cause of action the court is directed to the claims in the cause of action and to all facts alleged in the common facts, which clearly provide a basis for this cause of action.

The CCD/county have chosen to ignore allegations that support the causes of action and them claim that they are not there. The Goulds' Second Amended Cross‑complaint speaks for itself and clearly alleges facts which must be accepted as true to support all of the causes of action alleged therein.

ARGUMENT IN OPPOSITION TO MOTION TO STRIKE

The nature of a SLAPP suit in very general terms is a merit less suit filed primarily to chill the defendant's exercise of First Amendment rights. See Hull v. Rossi (1993) 13 Cal.App.4th 1763, 1769. The irony of the instant motion to strike filed by the cross-defendants, as discussed below, is that the very laws intended to protect citizens like the Goulds, are now being used by a county government to bankrupt and damage those citizens, in the same way and to the same degree that the statute was intended to prohibit. The intent of the legislature in enacting California Civil Procedure Code Section 425.16 ("Section 425.16") was to provide a shield to citizens, with limited resources, against unmeritorious lawsuits aimed at preventing citizens from exercising their political rights or punishing those citizens who have done so.

Litigation which has come to be known as SLAPP is defined by the sociologists who coined the term as "civil lawsuits ... that are aimed at preventing citizens from exercising their political rights or punishing those who have done so." Canan & Pring, Strategic Lawsuits Against Public Participation (1988) 35 Social Problems 506. In many cases across California and the nation, public or corporate entities with deep pockets use litigation to inhibit or retaliate against those who exercise their constitutionally protected rights of speech and petition in ways that threaten the entities' interests. These actions have come to be called SLAPP suits. The name -- an acronym for Strategic Lawsuits Against Public Participation -- was invented by Penelope Canan and George W. Pring in their ground-breaking 1988 article, the first to identify the problem as an area of study. Id. A SLAPP suit is a lawsuit aimed at discouraging public use of the governmental process. Typically (but by no means always) the aim is to stifle opposition to a private development or enterprise.

The paradigm SLAPP is a suit filed by a large land developer against environmental activists or a neighborhood association intended to chill the defendants' continued political or legal opposition to the developers' plans. (See, e.g., Gordon v. Marrone (1992) 155 Misc.2d 276 [590 N.Y.S.2d 649, 651]; Protect Our Mountain v. District Court(Colo. 1984) 677 P.2d 1361, 1364; Webb v. Fury (1981) 167 W.Va. 434 [282 S.E.2d 28]; Note, (1975) Counterclaim and Countersuit Harassment of Private Environmental Plaintiffs: The Problem, Its Implications, and Proposed Solutions 74 Mich. L.Rev. 106, 112, 113.)

Government SLAPPing citizens for opposing policy is not an occasional outrage. Pring and Canan estimate that fully seven percent of the SLAPPs nationwide are filed by official government bodies (not counting those filed by individual public officials, for example police officers retaliating against complainants). See George W. Pring & Penelope Canan, SLAPPs: Getting Sued for Speaking Out p. 216 (1996).

California has had its share of these, although they have not generally been reflected in the appellate cases. A notorious and well-publicized example is LaPointe v. West Contra Costa Sanitary District, No. C89-0710 (N.D. Cal. filed May 2, 1988). A local activist opposed a waste-disposal plant at agency meetings and elsewhere, and eventually filed a taxpayer's action against the agency. See William B. Chapman, SLAPPs: Strategic Lawsuits Against Public Participation in Government, C935 ali-aba 155, 157-58 (1994) (referring to LaPointe v. West Contra Costa Sanitary District, No. C89-0710DLJ (N.D. Cal. 1992)). The agency cross-claimed against him and 490 Doe defendants for $ 42 million, for interference with economic advantage. See Id. at 157-58. The agency said in a news release, "We anticipate obtaining a financial contribution from LaPointe to make up for the lost revenue in a small way . . . Those people [named as Doe defendants and] identified later as the litigation unfolds may be forced to participate in substantially larger amounts. We have a good idea who they are and we expect to be able to identify them later." Id. at 158. This action was the subject of a pioneer SLAPP back in federal court, under the civil rights law 42 U.S.C. § 1983, by which LaPointe won a judgment of $ 865,000. See Id. At 158-59 (citing LaPointe v. West Contra Costa Sanitary District, No. C89-0710 (N.D. Cal. 1992)); see also, e.g., California Dep't. of Fish and Game v. Mountain Lion Preservation Found., No. 501627 (Sacramento Super. Ct. filed 1988) (discussing suit, later dropped, against nonprofit group for testifying against lifting hunting ban, by Department of Fish and Game); County of San Luis Obispo v. Abalone Alliance, No. 55664 (San Luis Obispo Super. Ct. filed Nov. 25, 1981) (finding against demonstrators opposing nuclear power plant), dismissal aff'd.,178 Cal. App. 3d 848, 223 Cal. Rptr. 846 (Ct. App. 1986); San Joaquin Hills Transp. Corridor Agency v. Laguna Greenbelt, Inc., No. CV 92-4156 (S.D. Cal. dismissed Oct. 1992) (finding that environmental impact report was needed and dismissing suit). The above local examples have been gathered from Pring and Canan. See Pring & Canan, supra, SLAPPs: Getting Sued for Speaking Out at 80-81.

The favored causes of action in SLAPP suits are defamation, various business torts such as interference with prospective economic advantage, nuisance and intentional infliction of emotional distress. (Barker, Common-Law and Statutory Solutions to the Problem of SLAPPs (1993) 26 Loyola L.A. L.Rev. 395, 402 403.) Plaintiffs in these actions typically ask for damages which would be ruinous to the defendants. (See, e.g., Protect Our Mountain v. District Court, supra, 677 P.2d at p. 1364 [developer sought $10 million compensatory and $ 30 million punitive damages]; Barker, supra, 26 Loyola L.A. L.Rev. at p. 403 [estimating damage claims in SLAPP's average $ 9.1 million].)

SLAPP suits are brought to obtain an economic advantage over the defendant, not to vindicate a legally cognizable right of the plaintiff. (Comment, Strategic Lawsuits Against Public Participation: An Analysis Of The Solutions(1991) 27 Cal. W. L.Rev. 399, 402; Barker, supra, 26 Loyola L.A. L.Rev. at p.406.) Indeed, one of the common characteristics of a SLAPP suit is its lack of merit. (Barker, Common-Law and Statutory Solutions to the Problem of SLAPPs, supra, 26 Loyola L.A. L.Rev. at pp. 396, 399.) But lack of merit is not of concern to the plaintiff because the plaintiff does not expect to succeed in the lawsuit, only to tie up the defendant's resources for a sufficient length of time to accomplish plaintiff's underlying objective. (Id. at p. 405.) As long as the defendant is forced to devote its time, energy and financial resources to combating the lawsuit its ability to combat the plaintiff in the political arena is substantially diminished. (Gordon v. Marrone, supra, 590 N.Y.S.2d at p. 656;Brecher, The Public Interest and Intimidation Suits: A New Approach (1988) 28 Santa Clara L.Rev. 105, 114; Comment, Strategic Lawsuits Against Public Participation: An Analysis of the Solutions, supra, 27 Cal. W. L.Rev. at p.404.)

The SLAPP strategy also works even if the matter is already in litigation because the defendant/cross-complainant hopes to drive up the cost of litigation to the point where the plaintiff/cross-defendant will abandon its case or have less resources available to prosecute its action against the defendant/cross-complainant and to deter future litigation. (Note, Counterclaim and Countersuit Harassment of Private Environmental Plaintiffs: The Problem, Its Implications, and Proposed Solutions, supra, 74 Mich. L.Rev. at pp. 109-110.) Thus, while SLAPP suits "masquerade as ordinary lawsuits" the conceptual features which reveal them as SLAPP's are that they are generally merit less suits brought by large private interests to deter common citizens from exercising their political or legal rights or to punish them for doing so.(Pring, SLAPPs: Strategic Lawsuits Against Public Participation (1989) 7 Pace Envtl. L.Rev. 3, 5-6, 9.) Because winning is not a SLAPP plaintiff's primary motivation, defendants' traditional safeguards against merit less actions, (suits for malicious prosecution and abuse of process, requests for sanctions) are inadequate to counter SLAPP's. Instead, the SLAPPer considers any damage or sanction award which the SLAPPee might eventually recover as merely a cost of doing business. (Barker, Common-Law and Statutory Solutions to the Problem of SLAPPs, supra, 26 Loyola L.A. L.Rev. at pp.406-407.) By the time a SLAPP victim can win a "SLAPP-back" suit years later the SLAPP plaintiff will probably already have accomplished its underlying objective. Furthermore, retaliation against the SLAPPer may be counter-productive because it ties up the SLAPPee's resources even longer than defending the SLAPP suit itself. (Id. at p. 432; Comment, Strategic Lawsuits Against Public Participation: An Analysis of the Solutions, supra, 27 Cal. W.L.Rev. at p. 403.)

In the instant case there are three reasons the CCD/County's Motion to Strike per CCP 425.16 fails.

First, the Goulds are not suing the named defendants because of their exercise of their right to petition the government. They are suing them because of their participation in an illegal scheme to deny the Goulds equal protection under the laws of the State of California and of the United States. Illegal activity is not protected under CCP 425.16.

Cross -Defendants illegal conduct is not entitled to the statutory protection from suit which prohibits SLAPP suits. Paul v. Hanyecz, et al. 85 CalApp 4^th, 1356 (2001)

Winning their cross-complaint is the only motivation for the Goulds in filing their cross-complaint, not just the primary motivation. Moreover, the Goulds are only asking for injunctive relief and those damages that would make them whole. They are not asking for damages which would be ruinous to the cross-defendants. Additionally the causes of action the Goulds are alleging do not fall within those categories usually seen in SLAPP suits. i.e. defamation, business torts, nuisance, etc., which are the very causes of action the cross defendants have filed in their complaint, or claim in their declarations. This further supports that the County defendants are not being sued because of their exercise of their right to petition or their speech, but rather for their illegal and corrupt actions.

The Goulds are most definitely not the sorts of plaintiffs which the SLAPP suit statute is meant to be utilized against. They are not trying to delay the county's action against them from being tried. Just the opposite. It is the County that is doing everything possible, dragging out the pre-trial process with repetitive