Filed 1/20/16 Yee v. City and County of San Francisco CA1/1
                      NOT TO BE PUBLISHED IN OFFICIAL REPORTS
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              IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                       FIRST APPELLATE DISTRICT

                                                  DIVISION ONE


WALTER YEE et al.,
         Plaintiffs and Appellants,
                                                                     A139922
v.
CITY & COUNTY OF SAN                                                 (San Francisco City & County
FRANCISCO,                                                           Super. Ct. No. CGC13530290)
         Defendant and Respondent.

         Plaintiffs Walter and Remona Yee appeal from a judgment of dismissal following
the granting of the City and County of San Francisco’s special motion to strike under
Code of Civil Procedure section 425.16 (the “anti-SLAPP statute”).
         This lawsuit follows several rounds of construction on the Yee’s house in the
Seacliff area. The first occurred in the late 1990’s, after an old City sewer collapsed,
giving rise to a sinkhole. The Yees sued the City for property damage and settled for
$1.648 million. They then obtained a building permit to repair the damage, which was
signed off and “finaled” in 1999. Ten years later, after the Yees got into a property line
dispute with neighbors and the neighbors complained about additional construction, the
City investigated, and concluded the Yees had made further additions to their house
without the necessary permits. This led to a series of notices of violation and abatement
orders, and the Yees sought additional building permits and a variance, which were
denied. Although the Yees pursued an administrative appeal of the Planning
Commission’s adverse ruling and denial of their last-sought permit and variance, they



                                                             1
have never challenged these decisions, let alone successfully, in an administrative
mandamus proceeding.
         In 2012, the City issued an enforcement notice, and in 2013, notices of violation
and penalties. The Yees filed this lawsuit one month after the issuance of the penalty
notice, alleging causes of action for declaratory relief, injunctive relief, inverse
condemnation, violation of title 42 United States Code section 1983 (taking without just
compensation), negligent infliction of emotional distress, and intentional infliction of
emotional distress. The first four causes of action contend the Yees had a right to make
the additional improvements to their house pursuant to a promise the City allegedly made
as part of the resolution of the sinkhole mess. The second two causes of action contend
the Yees have been whipsawed by the City in connection with the repair of their house,
initially approving and then disapproving the construction, including being wrongfully
accused of misleading Planning Department officials and providing altered construction
plans.
         In the trial court, the City maintained a special motion to strike was proper
because “the gravamen of the Yees’ lawsuit relates to DBI’s [Department of Building
Inspection] and Planning’s [Planning Department] permit, variance and enforcement
actions” and “the determination that the Yees constructed additions to their Property
without the benefit of permits and submitted false documents to DBI related to the
construction.” The latter assertion referred to the construction plans the Yees provided to
the City during the investigation, which the Yees claim differed from the plans originally
approved because of changes “in the field” necessitated and approved by City.
         On appeal, the City acknowledges the first four causes of action challenge
government administrative actions that are generally not the sort that can be characterized
as “protected activity” under the anti-SLAPP statute. Instead, the City now focuses on
the last two causes of action and maintains these are based on testimony by Planning
Department officials before the Board of Appeal and, specifically, testimony that the
Yees provided misleading plans to the investigator. The City thus maintains these causes
of action arise from statements made during “official proceedings authorized by law” and


                                               2
thus are subject to a special motion to strike. (Code Civ. Proc., § 425.16, subd. (e)(1).)1
It further maintains these statements undergird the first four causes of action, as well, thus
making all causes of action susceptible to a special motion to strike. We disagree and
conclude the first four causes of action are not amenable to initial attack by way of a
special motion to strike. We therefore affirm in part and reverse in part.
                                                      2
                                        BACKGROUND

The 1998 Construction Following the Storm Water Damage
       In December 1995, sewer reconstruction activity and storm waters precipitated the
collapse of one of the City’s old brick-lined sewer tunnels in the Seacliff area, resulting in
significant soil erosion and a large sinkhole. Both the ground failure and the City’s repair
efforts damaged neighboring properties, including the Yees’ residence.
       In August 1996, the Yees sued the City alleging multiple causes of action,
including inverse condemnation, trespass, negligence and negligent infliction of
emotional distress. The Yees alleged, among other things, that the City initially told
them their house would have to be bulldozed, but ultimately it was stabilized. They
claimed as losses, the “structural integrity of their residence and two levels, including the
entire garage and its contents,” a permanent reduction in value due to “stigma” associated
with the ground failure, emotional distress, maintenance of an alternate residence, and
costs of repairs and attorneys’ fees.
       In early 1998, the parties reached a settlement. The City paid the Yees $1.648
million dollars. The Yees executed a release of all claims of any kind “which have
existed or may have existed, or which do exist, or which hereafter shall or may exist, and
which (1) are alleged or set forth or attempted to be set forth in [the Yees’ lawsuit], or (2)
arise out of or are in any way related to any of the transactions, occurrences, acts or
omissions set forth or alleged in any of the pleadings in [that lawsuit].” The Yees also

       1
         All further undesignated statutory references are to the Code of Civil Procedure
unless otherwise indicated.
       2
         We grant the City’s motion for judicial notice of transcripts, compact disks, and
minutes of various hearings related to this action. (Evid. Code, §§ 452, 459.)


                                              3
waived the protections of Civil Code section 1542, agreeing to release any claims of
additional loss or injury “arising out of or in any way related to any of the events which
gave rise to” the released claims.
       The Yees also filed for a building permit (issued as no. 845616) to “[r]epair and
restore” the “two story” residence “to its pre-damaged condition,” which the Building
Department approved in March 1998 (the “1998 permit”). While the City characterizes
the plans as including “a new one story addition over the garage,” the Yees maintain both
the garage and addition were already in existence.
       The Yees further maintain the City assured them its erosion and sinkhole repairs
would include providing them with a new foundation for the part of their house damaged
by the City’s repair efforts and on which they would be able to rebuild the house “as it
was prior to” the sewer collapse and erosion. However, over the course of its
stabilization and repair work, the City made changes in its remedial efforts, which the
Yees claim resulted in modifications to their own reconstruction plans and which the City
allegedly approved at that time. According to the Yees, the City essentially told them
they could “recapture” habitable living space that was lost due to the altered repair plans
by adding living space elsewhere in the house.3 The Yees claim the rebuilding of their
house was done in phases and all of it was done permissibly pursuant to the 1998 permit,
which they characterize as an “emergency permit.”4




       3
         The City maintains any modification to an approved construction plan must be
made by way of a written revision request, subject to review and approval, and cannot be
made at the construction site.
       4
         In support of this assertion, the Yees submitted a copy of a June 13, 1998, note
from their structural engineer to the Director of the Department of Building Inspection
confirming restoration and repair of the house “without design details and restrictions as
shown on the schematic drawings . . . permit no. 845616 and any necessary revisions
until completion.”


                                             4
      In any case, the 1998 permit was signed off and “finaled” (meaning, according to
the City, the permitted work was completed and inspected) a year and a half later, in
November 1999.5
The Additional Work During the Mid-2000’s
      In mid-2008, the Building Department received complaints from neighbors that
the Yees were making un-permitted additions to their residence.6 This precipitated an
investigation by Edward Sweeney, then Deputy Director for Inspection Services for the
Department of Building Inspection. Sweeney observed the ongoing construction,
including a two-story addition and a deck over the garage. Walter Yee provided
Sweeney with plans showing the construction and indicated these were the plans that had
been attached to the 1998 building permit.
      After the inspection, one of the neighbors contacted Sweeney and claimed the
plans Yee had given him were not, in fact, the plans that had been attached to and
approved in conjunction with the 1998 permit. This neighbor also supplied satellite
photographs of the Yees property ostensibly taken in 2002 and early 2008 which did not
show the new construction.
      Sweeney then researched the official plans and permits on file for the property.
He determined the plans Yee had given him during the site inspection were not the same
as the plans attached to the 1998 permit. The plans attached to the approved 1998 permit
did not show the new construction Sweeney had observed.
      Sweeney also found the Yees had obtained permits in 2004, 2005, and 2008 for
completing work in connection with the 1998 permit.7 No additional plans were attached


      5
         Ten years later, the Planning Department concluded the plans approved in
connection with the 1998 permit showed inaccurate property lines, site plans and floor
plans, and violated building setbacks in connection with the construction above the
garage.
       6
         In a 2009 decision, the Abatement Appeals Board found there was an ongoing
“property line dispute” between the Yees and a neighbor.
       7
         For example, the 2004 permit application stated: “Reference made to original
Application 9802662, Special Permit 845616, to restore & repair a 2-story single family

                                             5
to these permit applications, and because the permits were for seemingly minor work in
connection with all-ready approved plans (e.g., estimated job costs of $3,000 to $6,000),
the permits were issued over the counter without review. However, according to
Sweeney, the permits should not have been issued, since the 1998 permit had already
been finaled and the Yees failed to disclose that in the applications. In any case, these
permits were allowed to expire without any work being approved or finaled by the
Department.
       Following Sweeney’s investigation, the Department of Building Inspection issued
two Notices of Violation in July 2008, one for a “new third level added above garage”
and one for a “horizontal bldg enlargement” at the southeast corner towards the rear of
the property. In February 2009, the Department issued a third notice for a “south wall”
not in compliance with plans and elevations not approved for “this rear area.” The
matters went to Director’s Hearings, and following a hearing, the Director of the Building
Inspection Department issued Abatement Orders.
       The Yees appealed to the Abatement Appeals Board. Following a hearing, the
Board upheld the Abatement Orders and allowed the Yees one year to obtain additional
permits they were seeking for the new construction and to resolve a property line dispute
with a neighbor. The Yees subsequently withdrew the applications. They claim they
both filed and withdrew these permit applications at the City’s suggestion. In the
meantime, Planning Department personnel met with the Yees and with neighbors in
connection with the permit applications and attempted to significantly scale back the
unpermitted construction.
       In January 2010, the Yees filed another permit application (No. 201001074358).
The application stated it was: “[T]o revise, correct and update additions built w/o proper

residence to its pre-damaged condition prior to the Seacliff sewer incident. Specifically,
this permit will update & restore the existing Sunroom & Terrace that was not finished.
This restoration work will be in accordance with the original permit previously approved
and issued. Other repair work at the residence by CCSF/DPW permits 793329, 799077,
809171 & 841459 is noted herein for reference to work performed & completed by the
City of San Francisco.”


                                             6
Permits and Planning Department review under section 311 requirements. Alteration of
existing single family dwelling to include 1) veranda @ 1st Flr. 2) Terrace & Study room
@ 2d Flr. 3) Roof Deck @ 3rd Flr. and 4) Removal & rebuild portion of bldg. over
property line at the rear S/E corner of the property. Reference is made to previous[ly]
approved building Permit #9802662.” The estimated job cost was $22,000. This
application appears to have been initially or preliminarily approved.
       In the course of reviewing the application, the Planning Department asked the
Yees to submit revised plans that eliminated some of the new additions, and in revised
plans, the Yees agreed to pull back the additions above the garage that were encroaching
into the front setback area. However, they still needed a variance from the Zoning
Administrator for encroachment into the rear setback area.
       As a result of the public notice required for the variance, two neighbors filed a
request for discretionary review (one of which was subsequently withdrawn), asking the
Planning Commission to conduct a full review and hearing on the 2010 permit
application and to disapprove the new additions. At the hearing, the Building
Department urged approval consistent with the revised 2010 plans that had resulted from
the department facilitated discussions.
       The Commission, however, approved only “a modified project to legalize
additions to the subject property built without benefit of a building permit.” The
Commission instructed staff to “approve the project pursuant to” the 1998 permit, “with
exception to those portions that encroach over any property line. Those portions that
encroach . . . shall be removed and pulled off of any property line by a minimum of one
linear foot; and the addition over the garage shall seek and justify a variance or be set
back a minimum of three feet three inches from the front property line.” The
Commission found, among other things, that the 1998 site and floor plans “are inaccurate
and the project never received a variance from the front setback requirement,” the Yees
“knowingly built beyond the scope of work approved” under the 1998 permit “into the
rear yard, side yard, and front setback,” and the “illegal additions” violate the Planning



                                              7
Code and “are out of scale with the existing character of buildings on the same block,
across the street and in the neighborhood.”
       Following the Commission’s decision, the Zoning Administrator denied the Yees’
request for a variance. The Administrator found, among other things, there were no
extraordinary circumstances resulting in unnecessary hardship not created by the
applicant. Rather, the Yees had, themselves, “expanded the rear of the building without
benefit of permit and now [sought] a variance to legalize this expansion; therefore, any
practical difficulty or unnecessary hardship was created by” the Yees.
       The Yees then asked the Planning Department to deny their 2010 permit
application altogether so they could appeal to the Board of Appeals.
       The Board of Appeals heard the matter in August 2012 and upheld the denial of
the variance and denial of the 2010 permit application.
       In December 2012, the Planning Department issued an Enforcement Notification
demanding that the non-permitted additions be removed. On January 31, 2013, and
March 12, 2013, respectively, the Department issued a Notice of Violation and Penalty,
and a Notice of Penalty, for failure to remove the additions.
This Lawsuit
       Two weeks after the issuance of the penalty notice, the Yees filed this lawsuit on
April 3, 2013. They named as defendants the City, the Building Department, the
Planning Department, and the Planning Commission (the latter three, according to the
City, being “erroneously” named). They also included Doe defendants 1 through 50,
alleged to be agents and employees of the named defendants.
       The Yees alleged six causes of action. The first was for “declaratory relief.” The
Yees alleged they had initially been promised they would be able to rebuild their house
exactly as it had been before the ground failure and sinkhole, but the City later concluded
this would not be possible given the repairs it needed to make to shore up the area. The
City then allegedly promised they could build out elsewhere, to “recapture” the habitable
space they had lost. The Yees claimed this was an enforceable promise, and as a result,
they were not required to obtain a variance or any other approval from the City, and their


                                              8
additions were permissible and not subject to any investigation or enforcement action.
Their second cause of action was for “injunctive relief” and claimed the Yees were
unable to occupy and enjoy their house and were suffering irreparable harm.
       Their third cause of action was for “inverse condemnation.” The Yees alleged the
City’s initial approval of the scope of their construction and its subsequent reversal of
position, resulted in a “substantial portion” of their residence being taken for public use
without just compensation. The fourth cause of action was for a “taking” of their
property purportedly actionable under 42 U.S.C. section 1983.
       The fifth and sixth causes of action were for, respectively, negligent and
intentional infliction of emotional distress based on their alleged travails with the City
planning authorities for more than 18 years.
       The City filed a special motion to strike under the anti-SLAPP statute. As for the
“first prong” of the anti-SLAPP analysis, the City claimed the “gravamen” of the Yees’
claims arose “from their dissatisfaction” with the permit, variance and enforcement
actions taken in connection with their property, which included, according to the Yees,
false statements they had mislead the Planning Department about the approved plans.
Thus, all the claims, asserted the City, were “based on the City’s exercise of first
Amendment speech and petition rights” and subject to a special motion to strike. As for
the “second prong” of the analysis, the City maintained the first through fourth causes of
action were (a) barred by applicable limitations periods and res judicata because the Yees
failed to successfully challenge the adverse determinations through administrative
mandamus proceedings and (b) barred by the prior settlement and release in connection
with the storm water and sinkhole damage. The City maintained the fifth and sixth
causes of action were barred by statutory immunities under Government Code sections
818.4 (for decisions in connection with permit approvals or disapprovals), 818.6 (for
inspection actions), and 818.8 (for employee misrepresentations), and by the litigation
privilege.
       The Yees maintained their claims were not based on any “protected activity” as to
which a special motion to strike was proper. Rather, they were based on the fact the City


                                               9
reneged on a promise the Yees could recoup habitable square footage they lost when the
City had to alter its sinkhole repair plans by making additions elsewhere to the house.
They further claimed they had made a showing on the merits sufficient to survive a
special motion to strike.
       The trial court granted the City’s motion. The court ruled the City met its initial
burden of showing its “actions in the permitting process” were protected activity under
the anti-SLAPP statute. The court secondly ruled the Yees had not demonstrated a
probability of prevailing on the merits. Specifically, the first through fourth causes of
action were barred by the settlement and release executed in 1996, and the fifth and sixth
causes of action were barred by Government Code section 818.4. The trial court did not
rule on the City’s demurrer, filed at the same time as its special motion to strike and
based on the same substantive grounds.
                                         DISCUSSION
       Section 425.16, known as the anti-SLAPP statute, provides: “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).) “The Legislature enacted
the anti-SLAPP statute to address the societal ills caused by meritless lawsuits that are
filed to chill the exercise of First Amendment rights. [Citation.] The statute accomplishes
this end by providing a special procedure for striking meritless, chilling causes of action
at the earliest possible stages of litigation.” (Gerbosi v. Gaims, Weil, West & Epstein,
LLP (2011) 193 Cal.App.4th 435, 443.)
       “ ‘Under the statute, the court makes a two-step determination: “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


                                              10
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). . . .)”
[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.” [Citation.]’ ” (Tutor–
Saliba Corp. v. Herrera (2006) 136 Cal.App.4th 604, 609, italics omitted (Tutor–
Saliba).)
       An appellate court reviews an order granting or denying an anti-SLAPP motion de
novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325–326 (Flatley); Schwarzburd v.
Kensington Police Protection & Community Services District Board (2014)
225 Cal.App.4th 1345, 1350 (Schwarzburd.) This includes whether the challenged
activity is “protected.” (Tutor–Saliba, supra, 136 Cal.App.4th at p. 609.) We also
independently determine whether plaintiffs established a reasonable probability of
success on their claims. (Id. at p. 610.) “ ‘We consider “the pleadings, and supporting
and opposing affidavits . . . upon which the liability or defense is based.” (§ 425.16,
subd. (b)(2).) However, we neither “weigh credibility [nor] compare the weight of the
evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and
evaluate the defendant’s evidence only to determine if it has defeated that submitted by
the plaintiff as a matter of law.” [Citation.]’ [Citation.]” (Flatley, supra, 39 Cal.4th at
p. 326.)
The First Four Causes of Action
       The Yees claim their first four causes of action—for declaratory and injunctive
relief, and inverse condemnation and a “taking”—are based on the City’s alleged breach
of a promise that they could “recapture” habitable space they had lost and on their
inability to fully occupy their house, none of which is “protected” activity under the anti-
SLAPP statute. The City maintains, in turn, “each of these four causes of action is
premised, in substantial part, on the Yees’ dissatisfaction with statements made by City
employees during administrative hearings . . . ” and thus are based on “protected” speech.



                                             11
       The anti-SLAPP statute applies only to causes of action “arising from” protected
activity—that is, activity “in furtherance of a person’s right of petition or free speech
under the United States or the California Constitution in connection with a public issue.”
(§ 425.16, subds. (b)(1), (e); Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154,
160 (Marlin).) Such activity 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, or (4) 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.” (§ 425.16, subd. (e); Marlin, at p.160.)
       The “arising from” requirement is not satisfied simply because there is some
relationship between the cause of action and protected activity. “Fortunately the cases
suggest a more concrete test: a cause of action arises from protected conduct if the
wrongful, injurious act(s) alleged by the plaintiff constitute protected conduct.” (Old
Republic Construction Program Group v. Boccardo Law Firm, Inc. (2014)
230 Cal.App.4th 859, 868.) Thus, “the mere fact that an action was filed after protected
activity took place does not mean the action arose from that activity for the purposes of
the anti-SLAPP statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) Even if a cause
of action is “triggered” by protected activity, that does not mean the lawsuit arises from
it. (Ibid.) Rather, “the critical consideration is whether the cause of action is based on
the defendant’s protected free speech or petitioning activity.” (Ibid.)
       A “public official or government body, just like any private litigant, may make an
anti-SLAPP motion where appropriate.” (San Ramon Valley Fire Protection District v.
Contra Costa County Employees’ Retirement Association (2004) 125 Cal.App.4th 343,
353 (San Ramon).) There is also “support for the argument that the protection accorded
by the anti-SLAPP statute extends to statements made by public officials at an official


                                             12
public meeting, and perhaps also to their votes.” (Ibid.) However, “the fact that a
complaint alleges that a public entity’s action was taken as a result of a majority vote of
its constituent members does not mean that the litigation challenging that action arose
from protected activity, where the measure itself is not an exercise of free speech or
petition. Acts of governance mandated by law, without more, are not exercises of free
speech or petition. ‘[T]he defendant’s act underlying the plaintiff’s cause of action must
itself have been an act in furtherance of the right of petition or free speech. [Citation.]’
[Citation.]” (Id. at p. 354.)
       The City concedes “acts of governance mandated by law . . . are not subject to the
anti-SLAPP statute” and correctly recognizes the anti-SLAPP statute is inapplicable to
lawsuits against a government entity for acts of governance, even though some
government speech is necessarily incidental to the government action.8 (See San Ramon,
supra, 125 Cal.App.4th at p. 357 [anti-SLAPP statute did not apply to a suit against a
county retirement board for voting to charge the fire district “more for certain pension
contributions than the District believes is appropriate”]; Schwarzburd, supra, 225
Cal.App.4th 1345, 1355 [anti-SLAPP statute does not apply to suit against local police
board for unlawfully approving a retroactive pay increase to police chief]; Graffiti
Protective Coatings, 181 Cal.App.4th 1207, 1224 [anti-SLAPP statute did not apply to
suit alleging city failed to follow laws relating to competitive bidding].)
       The City maintains, however, that “[e]ach of these four causes of action is
premised, in substantial part, on the Yees’ dissatisfaction with statements made by City
employees during administrative hearings that the Yees engaged in unpermitted
construction, used falsified building plans, and otherwise provided false information to
City departments.” Thus, City claims the causes of action “arise[] in substantial part

       8
           While the City claims the Yees have waived the argument that their lawsuit
challenged “a final government decision” and not protected speech, the Yees sufficiently
raised the issue, asserting in their opening brief that the “gravamen of the case is a taking
without due process.” Moreover, on appeal we “review the record independently to
determine whether the asserted cause of action arises from activity protected under the
statute. . . .” (Schwarzburd, supra, 225 Cal.App.4th 1345, 1350.)


                                              13
from a challenge to speech [and are] subject to an anti-SLAPP motion even if it also
concerns a governmental act,” relying on the assertedly “analogous” case of Mission
Oaks Ranch, Ltd. v. County of Santa Barbara (1998) 65 Cal.App.4th 713 (Mission Oaks)
[disapproved on another ground in Briggs v. Eden Council for Hope & Opportunity
(1999) 19 Cal.4th 1106, 1123, fn.10].)
       In Mission Oaks, a developer applied to the County of Santa Barbara to subdivide
and develop property. (Mission Oaks, supra, 65 Cal.App.4th at p. 718.) After issuing a
“request for proposal” to nine independent consultants to prepare the environmental
impact report (EIR), the county contracted with Envicom, which was to “exercise its own
independent judgment in accord with county guidelines,” in preparing the EIR. (Id. at
p. 719.) Mission Oaks agreed “that the adequacy of performance of consultant . . . shall
be determined at the sole discretion of County,” and that “final authority on all decisions
concerning the preparation of contractual documents lies in the sole discretion of
County.” (Ibid.) The contract between the county and Envicom stated in part: “ ‘[T]he
draft EIR . . . and the final EIR must reflect the . . . County’s independent judgment. . . .
Accordingly, the final responsibility and final authority on all questions concerning the
content and quality of the EIR lies in the sole discretion of the County. . . . Consultant
understands and agrees that its responsibility to provide a complete and accurate EIR is
owed solely to County . . . and not to Applicant. . . .’” (Ibid.)
       Envicom prepared an EIR which listed “a multitude of significant adverse
unmitigable impacts presented by the project. . . .” (Mission Oaks, supra, 65 Cal.App.4th
at p. 719.) Mission Oaks sued, claiming that Envicom and County “engaged in a
conspiracy to commit fraud by predetermining that it would reject the project and . . .
[that] County owed and breached its duty to Mission Oaks to comply with CEQA in
preparing the EIR, . . . [asserting] it is a third party creditor beneficiary to the contract
between the County and Envicom.” (Id. at p. 722.) Mission Oaks further alleged “the
consultants collusively prepared the EIR with the County in derogation of law and
without factual support as part of a conspiracy to deny Mission Oaks the right to develop
its property.” (Id. at p. 720.)


                                               14
       The court held “Mission Oaks is simply a disgruntled developer that does not like
the findings prepared by the independent environmental consultants for the County and
the public. Mission Oaks seeks to stifle the EIR . . . [and] coerce the County and the
consultants to change their views on the development proposal.” (Mission Oaks, supra,
65 Cal.App.4th at 729.) “The anti-SLAPP statute is designed to preclude such attempts
to silence those who speak out on matters of public interest before legislative bodies.”
(Ibid.) As the court in San Ramon noted, the Mission Oaks “suit arose out of the
submission of the environmental impact report to the county, and the court not
surprisingly held that this act constituted speech in connection with an issue of public
concern under consideration by a legislative body.” (San Ramon, supra, 125 Cal.App.4th
at p. 357.)
       In contrast, the first four causes of action in this case did not arise from protected
speech, but from alleged “acts of governance” and primarily from the City’s alleged
breach of a promise that the Yees could restore the habitable space in their home. (San
Ramon, supra, 125 Cal.App.4th at p. 354.) Simply because some speech occurred in
connection with the City’s actions does not transform those actions into protected
exercises of free speech or petition. Contrary to City’s assertion, the gravamen of Yees’
claims is not their “dissatisfaction with statements made by City employees during
administrative hearings,” but rather, their dissatisfaction with the City’s reneging during
the course of the protracted administrative proceedings on an alleged promise to allow
them to “recoup habitable square feet” lost when the City altered its sinkhole repair plans.
       Because the first prong of the anti-SLAPP statute was not satisfied as to the first
four causes of action, the City’s special motion to strike should have been denied as to
those causes of action.
The Last Two Causes of Action
       In contrast to the first four causes of action, the Yees’ fifth and sixth causes of
action—for negligent and intentional infliction of emotional distress— were primarily
based on the speech of City employees. The Yees alleged they suffered emotional
distress due to the City’s “suggestion that [they] somehow were complicit in efforts by


                                              15
unknown persons to falsify planning documents,” the City’s “false accusations against
the plaintiffs [and] disavow[als of] any knowledge or responsibility for the approvals that
plaintiffs had relied upon, . . .[and] the City’s “accusations and insinuations.” The Yees
further alleged the City intended to cause them emotional distress “or there was a reckless
disregard of the probability that [they] would suffer emotional distress, knowing that their
remarks would be taken into consideration by the various boards and agencies of the
City. . . .”
        “[I]t is clear, in light of both the language and purpose of California’s anti-SLAPP
statute, that the statutory remedy afforded by section 425.16 extends to statements and
writings of governmental entities and public officials on matters of public interest and
concern that would fall within the scope of the statute if such statements were made by a
private individual or entity.” (Vargas v. City of Salinas (2009) 46 Cal.4th 1, 17
(Vargas).) Section 425.16 “extends to public employees who issue reports and comment
on issues of public interest relating to their official duties. Where, as here, a
governmental entity and its representatives are sued as a result of written and verbal
comments, both may move to dismiss under section 425.16.” (Bradbury v. Superior
Court (1996) 49 Cal.App.4th 1108, 1114–1115.) The Yees do not dispute that their
emotional distress causes of action are based on statements made by City employees
relating to their official duties at “official proceedings authorized by law.” (§ 425.16,
subd. (e)(1).)
        The burden thus shifted to the Yees to produce sufficient admissible evidence to
establish the probability of prevailing on the merits on their causes of action for
emotional distress. (Schwarzburd, supra, 225 Cal.App.4th at p. 1350.) “ ‘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.]’ ” (Vargas, supra,
46 Cal.4th at pp. 19–20.)
        The Yees did not carry their burden in this regard. Among other problems they
face, the actions of the planning department officials who investigated and reported on


                                              16
the permitting situation of the Yees’ property, including stating the plans the Yees
produced during the investigation differed from the plans that had been approved by the
City, are subject to immunities under the Tort Claims Act.9
       For example, Government Code section 821.6, provides, “A public employee is
not liable for injury caused by his instituting or prosecuting any judicial or administrative
proceeding within the scope of his employment, even if he acts maliciously and without
probable cause.” (Gov. Code § 821.6.) This immunity is not limited to prosecutors and
law enforcement personnel, but has been applied to any public employee involved in
investigative or prosecutorial functions (e.g., Hardy v. Vial (1957) 48 Cal.2d 577, 583
[school personnel investigating molestation allegations]; Gensburg v. Miller (1995)
31 Cal.App.4th 512, 518 [social worker investigating child abuse allegations]), heads of
administrative departments (White v. Towers (1951) 37 Cal.2d 727, 732 [investigator of
Fish & Game Department]), county coroners (Stearns v. County of Los Angeles (1969)
275 Cal.App.2d 134, 137), and members of county boards of supervisors (Dawson v.
Martin (1957) 150 Cal.App.2d 379, 382). The immunity has been applied to a crime
victim’s claims against police officers for false imprisonment and intentional and
negligent infliction of emotional distress. (E.g., Amylou R. v. County of Riverside (1994)
28 Cal.App.4th 1205, 1211–1212.) And similar to the present case, in White v. Brinkman
(1937) 23 Cal.App.2d 307, 313–315, the immunity represented by section 821.6 was
applied to a building inspector and a prosecuting attorney who plaintiff alleged
maliciously and without probable cause investigated alleged building code violations and
instigated a criminal prosecution against him. Likewise, in Dawson v. Rash (1958)
160 Cal.App.2d 154, 161, the immunity precluded any civil liability against a building
inspector investigating purported building code violations.10


       9
          The Yees’ appellate briefing did not even respond to, let alone attempt to refute,
the City’s assertion of statutory immunities.
       10
           Both White and Dawson, which predated the enactment of section 821.6,
conferred upon the defendants the common law quasi-judicial immunity afforded public
employees performing their duties in connection with the judicial process. Section 821.6

                                             17
       The Yees’ emotional distress claims are based entirely on actions by the City’s
building inspection personnel while investigating and reporting on alleged code
violations—actions taken in their official capacity as code enforcement officials and in
the course and scope of their employment. Under section 821.6, no civil liability can be
based on this conduct.
       Government Code section 818.4 provides: “A public entity is not liable for an
injury caused by the issuance, denial, suspension or revocation of, or by the failure or
refusal to issue, deny, suspend or revoke, any permit, license, certificate, approval, order,
or similar authorization where the public entity or employee of the public entity is
authorized by enactment to determine whether or not such authorization should be issued,
denied, suspended or revoked.” (Gov. Code, § 818.4.) Similarly, section 821.2 provides:
“A public employee is not liable for an injury caused by his issuance, denial, suspension
or revocation of, or by his failure or refusal to issue, deny, suspend or revoke, any permit,
license, certificate, approval, order, or similar authorization where he is authorized by
enactment to determine whether or not such authorization should be issued, denied,
suspended or revoked.” (Gov. Code, § 821.2.) Numerous courts have held that decisions
to issue or deny building permits are quintessential discretionary actions protected by
these immunities. (See generally Thompson v. City of Lake Elsinore (1993)
18 Cal.App.4th 49,55.)
       While the Yees attempt to segregate out the statements by building department
personnel they contend unfairly impugned their character and caused them emotional
distress, the comments were part and parcel of the administrative process by which their
applications for a permit and variance were reviewed and denied. Accordingly, the
immunities provided by sections 818.4 and 821.2 apply. (See Freeny v. City of San
Buenaventura (2013) 216 Cal.App.4th 1333, 1341–1345 [allegations of fraud, corruption
and malice did not preclude statutory immunities, including section 821.2, protecting



is a codification of that immunity. (See Sullivan v. County of Los Angeles (1974)
12 Cal.3d 710, 720-721.)


                                             18
individual city council representatives who voted to deny conditional use permit and
variance].)11
       Thus, on statutory immunity grounds, alone, the Yees failed to demonstrate a
probability of prevailing.12 Accordingly, the trial court did not err in granting the City’s
special motion to strike as to the fifth and sixth causes of action.
                                        DISPOSITION
       The judgment of dismissal is reversed as to the first four causes of action, and is
otherwise affirmed. The parties are to bear their own costs on appeal.




       11
           We need not, and do not, consider whether section 818.8, which provides that
“[a] public entity is not liable for an injury caused by misrepresentation by an employee
of the public entity, whether or not such misrepresentation be negligent or intentional,”
also applies. We note this immunity applies only to claims for deceit seeking damages
for economic or financial loss. (See, e.g., City of Costa Mesa v. D’Alessio Investments
LLC (2013) 214 Cal.App.4th 358, 383 [“[t]ort causes of action based on reputational
harm (slander, trade libel, and intentional interference based on false statements to third
parties) are not included within the “deceit” rubric identified by our Supreme Court when
it interpreted Government Code sections 818.8 and 822.2”].)
        12
           We therefore do not consider the other asserted deficiencies in the Yees’
emotional distress claims.


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                                              _________________________
                                              Banke, J.


We concur:


_________________________
Margulies, Acting P. J.


_________________________
Dondero, J.




A139922, Yee v. City and County of San Francisco




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