Dunning v. Johnson

Decision Date23 April 2021
Docket NumberD076570
Citation64 Cal.App.5th 156,278 Cal.Rptr.3d 607
CourtCalifornia Court of Appeals Court of Appeals
Parties Jan DUNNING et al., Plaintiffs and Respondents, v. Kevin K. JOHNSON, APLC, et al. Defendants and Appellants.

Dunn DeSantis Walt & Kendrick, James A. McFaul, and Bradley A. Lebow, for Defendants and Appellants Kevin K. Johnson, APLC, Jeanne L. Mackinnon, and Kevin K. Johnson.

Polek Law and Frank J. Polek, San Diego, for Defendant and Appellant Christian Clews.

Higgs Fletcher & Mack, John Morris, San Diego, Rachel E. Moffitt, and Steven Brunolli, for Defendants and Appellants Barbara Clews and Clews Land & Livestock.

Aannestad Andelin & Corn, Jonathan C. Corn, Del Mar, Anders T. Aannestad, Cardiff-by-the-Sea, Lee M. Andelin, and Arie L. Spangler, San Diego, for Plaintiffs and Respondents.



Kevin K. Johnson, APLC, Kevin Johnson, and Jeanne MacKinnon (collectively, the attorney defendants) filed a petition for writ of mandate and complaint on behalf of their clients Christian Clews (Christian), Barbara Clews (Barbara), and Clews Land & Livestock, LLC (CLL) (collectively, Clews Horse Ranch) challenging a decision of the City of San Diego (City) to approve the construction of a private secondary school adjacent to the Clews's commercial horse ranch. The petition asserted the City's approval of the project and adoption of a mitigated negative declaration for the project violated the California Environmental Quality Act (CEQA, Pub. Resources Code, § 21000 et seq. ),1 the San Diego Municipal Code (Municipal Code), and the City's land use plan. The trial court denied relief and, in Clews Land and Livestock, LLC v. City of San Diego (2017) 19 Cal.App.5th 161, 227 Cal.Rptr.3d 413 ( Clews ), we affirmed the judgment. Hereafter, we will refer to the mandate proceeding and related appeal as the CEQA Litigation.

Jan Dunning, Cal Coast Academy RE Holdings, LLC, and North County Center

for Educational Development, Inc. (collectively, Cal Coast)—the developers of the project and real parties in interest in the CEQA Litigation—then filed this lawsuit against Clews Horse Ranch and the attorney defendants for malicious prosecution. Cal Coast asserted the defendants lacked probable cause and acted with malice when they pursued the CEQA Litigation.

The attorney defendants filed a special motion to strike Cal Coast's complaint under section 425.16 of the Code of Civil Procedure, commonly known as the anti-SLAPP statute. Clews Horse Ranch filed a notice of joinder to the attorney defendants' anti-SLAPP motion. The trial court denied the motion after finding that Cal Coast established a probability of prevailing on its malicious prosecution claim. Clews Horse Ranch and the attorney defendants appeal the order denying the anti-SLAPP motion.

We conclude Cal Coast established a probability of prevailing on its malicious prosecution claim against Clews Horse Ranch, but not against the attorney defendants. Therefore, we affirm the order denying the anti-SLAPP motion as to Clews Horse Ranch and reverse the order denying the anti-SLAPP motion as to the attorney defendants.


The facts set forth in Sections II.A, II.B, and II.C are drawn largely from this court's opinion in Clews, supra , 19 Cal.App.5th 161, 227 Cal.Rptr.3d 413.

AThe Project

In 2013, Cal Coast purchased land in Carmel Valley with the intent to construct and operate a private secondary school on the property. The property sat on a bluff above State Route 56, a busy divided highway, and was adjacent to an equestrian facility owned and operated by Clews Horse Ranch. The property was situated at the end of Clews Ranch Road, a private driveway that also provided access to the ranch. Clews Ranch Road connected with Carmel Country Road. At that intersection, a public parking lot served recreational bicycle and hiking trails in the area.

Cal Coast planned to construct a 5,340-square-foot school, divided into three classroom buildings under a single roof. The school would have approximately 18 staff members and a maximum enrollment of 75 students. The parking lot at the intersection of Clews Ranch Road and Carmel Country Road would serve as a pick-up and drop-off point for students. Cal Coast would use shuttle vans to transport students between the parking lot and the school to reduce traffic and noise on Clews Ranch Road.

BThe Approval Process

Cal Coast applied to the City for the approvals necessary for the project. The City prepared an initial study in which its staff determined the project would not have a significant impact on any environmental factors with the exception of cultural resources. City staff concluded the impact on cultural resources would be less than significant if mitigation measures were adopted. They also determined a farmhouse on the project site was a historical resource, but the project's effect on the farmhouse would be less than significant. Further, they determined the project was compatible with the community plan, would not expose people or structures to a significant risk of loss, injury, or death involving wildland fires, and would have no environmental impact on noise, recreational resources, or traffic and transportation.

Based on the initial study, City staff prepared a draft mitigated negative declaration (MND) for the project.2 The draft MND described the project, identified the potential impact on cultural resources, and discussed the mitigation measures required to lessen any such impact.

Interested parties submitted comments to the draft MND. Johnson submitted a comment on behalf of Clews Horse Ranch challenging the use of an MND and asserting an environmental impact report (EIR) was necessary to assess the project's potential impacts on historical resources, fire hazards, noise, and transportation and traffic. As relevant here, the comment posited that potential noise from the school, such as buzzers and bells, may "spook horses, distract riders and seriously annoy professional trainers" at the ranch. A rider associated with Clews Horse Ranch also submitted a comment opposing the project and noting that "[o]n at least three occasions riders [had been] thrown from terrified horses due to loud, unanticipated noise[s], or blowing plastic sheets that were improperly tied down."

Cal Coast commissioned consultants to prepare analyses regarding noise and other topics discussed in the comments to the draft MND. The noise consultant reported the school would be in session from 8:30 a.m. until 2:00 p.m., with morning and lunch breaks. No physical education classes would be on site and the school would not use bells or other alarms (except for fire alarms). Given the proximity of State Route 56, approximately 200 feet from the project site, the consultant found the average ambient noise level at the project site was approximately 60 decibels. The consultant identified the loudest likely noise generated by students and faculty at the school would be laughter, which has a noise level of approximately 88 decibels. It modeled a worst-case scenario, where the laughter would be continuous over a one-hour period, and measured the noise that would be heard at receiver locations in the habitat area adjacent to the project site. The weighted average noise levels ranged between 38 and 49 decibels at the receivers in the model. Because these levels were less than 60 decibels and less than ambient noise levels, the consultant concluded the project's noise impact would not exceed levels that would disturb sensitive wildlife under the City's noise significance determination thresholds.3

City staff then responded to the comments regarding the draft MND. In the response to Clews Horse Ranch's comment, City staff stated an EIR was not appropriate because all significant environmental risks would be avoided or mitigated due to project design features and revisions to the project. Regarding the issue of noise, City staff referenced the noise consultant's study and its conclusion that "the noise levels generated by the proposed school would not exceed 60 [decibels] at the adjacent habitat and would also be less than existing ambient noise levels." City staff prepared and adopted a final MND for the project.

Thereafter, the Carmel Valley Community Planning Board (the Board) considered the project. The Board is an advisory group that makes recommendations to decisionmakers regarding development projects. Several Board members expressed concern about the zoning of the project site and expressed their desire to have open space there. The project was put to a vote and failed, with five in favor, four opposed, and two abstentions. Nine votes were required to support the project.

A City hearing officer then considered the project at a public hearing during which attendees spoke in favor of and against the project. Christian spoke in opposition to the project and stated the project would "condemn" his horse ranch, which had "lost three [boarded] horses just because of the threat of the school ...." Regarding the issue of noise, Christian stated the school's fire alarms might produce noise if they needed to be tested or if they malfunctioned. A speaker who boarded a horse at the ranch also spoke in opposition to the project, stating he would not ride his horse on a trail located to the north of the project site out of concern that the school would be noisy. Notwithstanding these and other stated concerns, the hearing officer approved the project and adopted the MND.

At the time, the Municipal Code provided that a hearing officer's decision may be appealed to the City's Planning Commission within 10 business days (Mun. Code, § 112.0506, subd. (b)), but any appeal from an environmental determination—including adoption of an MND—must simultaneously be made to the City Council within the same period (id. , §§ 112.0520, subds. (a)(b), (e), 113.0103.) The attorney defendants, on behalf of Clews Horse Ranch, appealed the hearing officer's...

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    • United States
    • California Court of Appeals Court of Appeals
    • December 28, 2022
    ...that lack of probable cause may be relevant on the issue of malice, though it is not by itself enough. ( Dunning v. Clews (2021) 64 Cal.App.5th 156, 177, 278 Cal.Rptr.3d 607 ( Dunning ) ["While a lack of probable cause is relevant to the issue of malice, it is insufficient, standing alone, ......
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    ...Malice is another form of incivility that can lead to financial detriment. However, as the court properly held in Dunning v. Clews, 64 Cal. App. 5th 156, a finding of malice by a client cannot be imputed to the attorney in a malicious prosecution action. In Dunning, the plaintiff purchased ......
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