UPDATE: September 13,2001

(A Confusing Court Order...)

County of Mendocino, Plaintiff
v
Geoffrey Gould, Barbara Gould, et al, Defendants

Minute Order on Motions to Strike and for Summary Adjudication/Judgment

The cross-complaint, in its second amended version, remains a confused recital of both evidentiary and ultimate facts. Although the number of paragraphs has been reduced from 148 to 134, that reduction is due primarily to the fact that the court sustained demurrers to the first and fifth causes of action. It still remains difficult to isolate allegations of ultimate facts from evidentiary facts for the purpose of determining the sufficiency of cross-complainants claims and allegations.

Evidentiary Objections:

In its review of demurrers and motions to strike, the court may only consider matters set forth in the challenged complaint and matters of which it may take judicial notice. (Blank vs..Kerwin (1985) 39 C3d 311, 318: CCP 437). The court cannot consider any extrinsic evidence, (Harboring Villas Homeowners Ass'n vs.. Sup. Ct. (1999) 63 CA4th 426, 429) The court will strike and not consider the following documents which were either attached to or filed in support of the moving, opposition or reply pleadings; Exhibits B and C to Motion to Strike and the Declarations of Alan Falleri and William B. Phillips.

Motion to Strike:

In their motion to strike the entire cross complaint, cross defendants essentially request the court to determine that the cross-complaint was brought to inhibit or "chill" their right of free speech and it is subject to dismissal under CCP Sec.425.16 as a so-called SLAPP lawsuit (Strategies Lawsuit Against Public Participation). In reviewing a motion to strike under CCP Sec. 425.16 the court must follow a two step process. The defendant has the initial burden of making a prima facia showing that its conduct was undertaken in furtherance of its constitutional rights of free speech in connection with a public issue. The burden then shifts to the plaintiff to demonstrate the probability that it will prevail on the claim. (Paul For Council vs.. Hanyecz (2001) 85 CA4th 1356, 1364).

Free Speech/Public Issue:

All of the cross-defendants are public employees or officials who were acting in their public capacity at the time of the performance of the described course of conduct. The courts have already determined that the term "Person" as used in CCP Sec. 415.16(be) included a governmental entity. The First Amendment protects not only private citizens but also governmental entities and their representatives and employees. (Nadel VS. Regents of the University of California (1994) 28CA4th 1251) The oral and written statements alleged in the cross-complaint all relate to the propriety of an actual or proposed use of the property in relation to the county's adopted land use regulations. Cross complainants allege that they sought information, applications and interpretations of land use regulations and required approvals from various county employees and officials at various times for the purpose of determining whether cross-complainants proposed operations complied with the governmental land use regulations. The responsive statements thus relate to an issue of public interest. The county had the constitutional right, if not also a duty, through its employees and officials to speak out on such a substantial issue private property rights and public land use regulations.

Cross complainants suggest that the described conduct of the county's employees and officials cannot constitute constitutionally protected free speech because the conduct constitutes illegal activity. The court in Paul for Council , supra, 85CA4th 1365-1367 found that conduct which constituted a criminal act (illegal campaign fund laundering) was not constitutionally protected. No showing has been made that any of the described conduct involved in the matter constitutes criminal activity. The mere fact that the conduct could give rise to civil liability does not make it criminal.

The cross defendants have established a prima facia showing that their statements, as described in the cross complaint, were made in furtherance of the county's right of free speech in connection with a public issue. The burden of proof now shifts to the cross complainants.

Probability of Success:

With the prima-facie showing that cross defendants conduct was undertaken in furtherance of free speech rights in connection with a public issue, the burden now shifts to cross complainants to demonstrate that they will probably prevail on their claims. Probability of success must be shown by competent evidence within the personal knowledge of the declarant in much the same manner as in a motion for summary judgment; averments on information and belief are not sufficient. (Church of Scientology vs. Wollersheim (l996) 41CA4th 628, 654) The cross complainants cannot simply rely on the allegations in the complaint, especially if unverified. (Paul for Council vs.. Hanyect, supra 85CA4th 1356, 1365 n5)

CC Sec.47:

Cross complainants claims of damage are not based on the broadcast or publication of statements made by cross defendants, but rather by the conduct of cross defendants. Individuals performing their duties in capacities similar to those of cross defendants must of necessity act primarily through the written and spoken word. CC46 was intended to bar causes of action predicated on statements rather than conduct. (Kimmel vs. Goland (1990) 51 C3d, 202, 209) The denial of the qualified privilege of CC Sec 47 does not diminish whatever immunities are available to cross defendants as public employees, officers and/or agents.

DEMURRERS:

Second Cause of Action, (Negligence): the second cause of action is brought against cross defendants Zanini, Hudson, Falleri, Hall, Hawley, Harrie, Shoemaker, Delbar, Lucier and Campbell on the common law theory of negligence. The required elements are: the existence of a duty, breach of duty and proximately caused damages. It in its consideration of a demurrer, the court does not make any determination as to the truth of the allegations or as to whether those allegations can be proven at trial. For the purpose of this ruling, the court must accept the stated allegations as true regardless of how improbable they may be. (Serrano vs. Priest, (l971) 5C3d, 584-581, Meyers vs.. Graphic Arts etc. (1979) 88 CA3d 176) The courts review is limited to the determination of whether or not the stated allegations, if proven to be true are sufficient to state a cause of action.

Because of the confusion inherent in the second amended cross complaint, the court will consider the allegations and the demurrer as they may apply to groups of similarly situated cross defendants.

A> Cross defendants Zanini and Hudson: The Goulds allege only the conclusory claim that these cross defendants owe a "legal duty of care" in relation to the performance of their duties (SACC, paragraph 113)) without describing that duty in any way relative to other allegations in the complaint, the conduct of those cross defendants or the specific duties and responsibilities involved. Under these circumstances, that bare allegations fail to state a cause of action for negligence.

B> Cross Defendants Falleri, Hall, Zanini, Hawley, and Harrie: the substantive allegations as to the negligent conduct of these cross defendants that they (along with cross defendant Hudson) participated in a meeting on October 25, l999, at which it was determined "that the Goulds were in violation of the Mendocino County Code" (SACC at paragraph 70). That determination was subsequently appealed by the Goulds to the County's Board of Supervisors (BOS) which heard the appeal on December 20, l999. (FACC at paragraphs 86-95) The BOS conducted a hearing, took evidence, and eventually voted to deny the Gould's appeal of these cross defendants determination. (SACC at paragraphs 88-106) Based on these allegations, it is clear that the effective decision of the county of Mendocino regarding the interpretation and application of it's zoning ordinance with respect to the Gould's operation was made by the BOS and not by these cross defendants. The appeal of the October 25 determination rendered that decision moot and ineffective. In addition, the Goulds do not allege any damages specifically relating to the period between October 25 determination by these cross defendants and the December 20 decision by the BOS. For these reasons, the SACC fails to state a cause of action for negligence against these cross defendants.

The negligence allegations are also defective due to the failure to properly allege the existence of a reasonably clear duty, as discussed above.

C> Cross defendants Shoemaker, Delbar, Lucier and Campbell: The substantive allegations against these cross defendants are that, as county supervisors, they negligently and carelessly determined that the Gould's farming operation should be classified as Animal Sales and Services in the context of the December 20 appeal hearing. (SACC paragraphs 86-106 and 112). The particular property use proposed by the Goulds apparently did not coincide with any of the various property uses described in the zoning ordinances for the AG zone. (SACC paragraphs 100, 103, 104 and 105) Under these circumstances, the BOS had to determine the underlying meaning and intent of its land use regulations. The individual county supervisors cannot be held liable for this exercise of their discretion to determine and set policy. (Gov. code sec 820.2:Johnson vs. State of California l968. 69 C2d 782) This same immunity protection is not available to cross defendants Zanini
and Hudson because their conduct was more of a ministerial act involving the interpretation of plans and policies which had been developed by policy makers. (Sanborn vs. Chron.Pub.CO 1976, 18C3d,406, 415)

The negligence allegations are also defective due to the failure to properly allege the existence of a reasonably clear duty, as discussed above.

Third Cause of Action (Wrongful Conduct of Public Employees/Officials):

The third cause of action remains an unintelligible collection of confusing allegations relating to several different causes of action. Although specific allegations of negligent conduct have been deleted, all of the allegations of negligent conduct as set forth in the second cause of action have been incorporated back into this cause of action. (SACC paragraph ll8) Specific conduct which had been previously attributed to two or three individual cross defendants is now attributed to all cross defendants. (SACC paragraph 121 16:23-26) The allegations at 16:27 to 17:6 appear to relate to a claim of malicious prosecution but, as they now must, omit a necessary element: the successful termination of the prior litigation. The allegations at 17:6 appear to relate to the December 20 action of the BOS for which the individual supervisors have discretionary immunity under Gov.COde Sec 820.2. A significant number of the allegations represent conclusions of law rather than facts. The court is simply unable to determine the nature of the claim pled and the material supporting allegations.

Fourth cause of Action (Intentional Infliction of Emotional Distress):

For the reasons stated above, the demurrer to the fourth cause of action made on the basis of Civil Code sec. 47 is overruled.

DISPOSITION:

For the reasons set forth above, it is ordered as follows:

1.Second cause of action: The demurrer to the second cause of action is sustained with leave to amend as to cross defendants Hudson and Zanini and without leave to amend as to cross defendants Falleri, Hall, Hawley, Harrie, Shoemaker, Lucier, Delbar and Campbell.

2.Third cause of action: The demurer to the third cause of action is sustained with leave to amend.

3.Fourth cause of action: The demurrer to the fourth cause of action is overruled.

4. Cross complainants shall have until September 24, 2001, within which to file and amended complaint consistent with this order.

Cross complainants are advised that the court will consider sustaining any future demurrers without leave to amend if cross complainants fail to correct the numerous and substantial pleading deficiencies that have been identified in this order, and in the court's orders of August 23, 2000 and January 17, 2001.

Dated August 20, 2001 Signature of the Judge is a STAMPED signature.

Copies to Counsel
H Peter Klein
Linda S Mitlyng