Jenkins v. Brandt-Hawley

• Decision Date: 28 December 2022
• Docket Number: A162852
• Parties: Charles JENKINS et al., Plaintiffs and Respondents, v. Susan BRANDT-HAWLEY et al., Defendants and Appellants.
• Court: California Court of Appeals Court of Appeals

86 Cal.App.5th 1357

302 Cal.Rptr.3d 883

Charles JENKINS et al., Plaintiffs and Respondents,

v.Susan BRANDT-HAWLEY et al., Defendants and Appellants.

A162852

Court of Appeal, First District, Division 2, California.

Filed December 28, 2022

Attorney for Plaintiffs and Respondents, Charles Jenkins and Ellen Jenkins : Cannata, O'Toole, Fickes & Olson, LLP, Therese Y. Cannata, Mark P. Fickes, San Francisco, Zachary Colbeth, Walnut Creek, Aaron Field, San Francisco

Amicus curiae Environmental Law Foundation and Planning and Conservation League in support of Appellants: Environmental Law Clinic, Deborah A. Sivas, Molly Loughney Melius, Caroline Zhang

Amicus curiae Sean B. Hecht in support of Appellants: UCLA School of Law, Sean B. Hecht, Los Angeles

Amicus curiae Remy Moose Manley, LLP in support of Appellants: Remy Moose Manley, LLP, Whitman F. Manley, Sacramento

Attorney for Defendants and Appellants, Susan Brandt-Hawley and Brandt-Hawley Law Group: Shute, Mihaly & Weinberger LLP, Ellison Folk, San Francisco, Lauren M. Tarpey, Peter Damrosch, Daniel P. Selmi, Los Angeles

Richman, J.

In 2017, plaintiffs Charles and Ellen Jenkins (the Jenkinses) bought a residential property in the town of San Anselmo (Town). The property had a one-bedroom home with a converted attic, built in 1909, and a small accessory cottage. Following conversations with an architect and contractors, and a meeting with the Town Planning Director, the Jenkinses filed an application for permits to authorize the demolition of the existing structures and the development of a new home with a small, detached studio. The Planning Commission approved the project, but the Jenkinses nevertheless worked with some neighbors to accommodate their concerns, and submitted revised plans, which were also approved at subsequent Planning Commission meetings.

Representing themselves, four individuals filed an appeal to the Town Council which, following a lengthy hearing, denied the appeal.

Following denial of the appeal, a petition for writ of mandamus was filed on behalf of two petitioners: Save Historic San Anselmo, an unincorporated association, and an individual. They were represented by Susan Brandt-Hawley (Ms. Brandt-Hawley), a prominent lawyer with an extensive background in CEQA-related matters, and her firm. The petition alleged two causes of action, the first for "violations of the California Environmental Quality Act" (CEQA), this despite that the appeal did not include any CEQA claim—not to mention that CEQA has a categorical exemption for single-family homes. The second, styled "violation of the Town Municipal Code," alleged in six conclusory lines, without citation, that approval of the project violated the Municipal Code and the Town's General Plan.

An attorney for the Jenkinses sent Ms. Brandt-Hawley a five-page single-spaced letter advising that the petition was frivolous, identifying ten reasons why, observing that "in [his] over 25 years of litigating CEQA actions, [he could not] recall handling a CEQA challenge that appeared this meritless."

The letter ended with the request that petitioners "reconsider their current course of action and dismiss this lawsuit, with an agreement that all parties will bear their own costs."

The writ petition came on for hearing before an experienced trial judge (the Honorable Andrew Sweet), who easily denied the petition in a thorough order that, among other things, criticized aspects of Ms. Brandt-Hawley's briefing and advocacy. Petitioners appealed, and along the way sought a writ of supersedeas (which they immediately dismissed), and then offered to dismiss the appeal for a waiver of fees and costs, an offer the Jenkinses rejected. Then, on the day petitioners’ opening brief was due, Ms. Brandt-Hawley dismissed the appeal.

The Jenkinses filed a complaint against Ms. Brandt-Hawley and her firm for malicious prosecution. They responded with a special anti-SLAPP motion to strike, which came on for hearing before a different trial judge (the Honorable James Chou), who, in an equally thorough order, denied the motion, concluding that the Jenkinses had met their burden under step two of the anti-SLAPP procedure demonstrating a probability of success on their complaint.

Our de novo review leads to the same conclusion, and we affirm.

BACKGROUND

The General Setting: The Property, the Plans, and the Approvals

In 2017, Charles and Ellen Jenkins, husband and wife, bought the property located at 260 Crescent Road, San Anselmo, where they planned to retire (the property). The property had two structures on it: a one-bedroom "Craftsman" style shingled bungalow built in 1909 (the main house) and a small cottage, partially over a garage, built sometime later. Around the time of their purchase, the Jenkinses spoke with architect Ken Linsteadt and two contractors regarding options for the property, all of whom advised that the main house was not worth saving, for numerous reasons. Mr. Linsteadt also advised that any addition at the back of the house would be undesirable, both aesthetically and in terms of design and proportion, essentially advising that the main house had to be torn down and rebuilt.

Mr. Linsteadt recommended that before the Jenkinses embarked on the design for a new house, they first make sure the house had not been designated as "historic" by the Town. The Jenkinses followed the advice and met with the Town Planning Director Elise Simonian. Simonian then came to the property, examined the main house, and advised that the Town did not have a list or registry of historic houses; she also said she was authorized to determine which houses needed an historic report in order to be rebuilt, and that the Jenkinses's house did not have sufficient architectural detail to require such a report. Finally, Ms. Simonian confirmed what Mr. Linsteadt and the contractors had noted: the main house would have to be largely rebuilt to conform to the relevant building code requirements.

On December 11, 2017, the Jenkinses filed an application with the Town for permits to authorize the demolition of the existing structures and the development of a new three-bedroom, two-and-a-half bath house with a small, detached studio. The project would increase the total square footage from 2,882 square feet to 3,227.5 square feet, a less than 12 percent increase in overall square footage. The project was fully compliant with the existing zoning and building codes, a fact the Jenkinses confirmed with staff at the Planning Department.

In January 2018, the Jenkinses learned that the planning staff had completed its review of the original design and were preparing a report that, subject to a few conditions, recommended approval of the project by the Planning Commission, which was to meet on February 12. Among other things, the planning staff report found the project was categorically exempt from CEQA for new construction of a single-family residence ( Cal. Code Regs., tit. 14, §§ 15303(a) and 15300.2 ); that there were no "historic resource" exceptions to this exemption and the "residence is not historically significant"; and that the design was compatible with the character of development in the neighborhood. The staff report concluded a demolition permit should issue because the existing residence needs to be "significantly demolished and modified to bring it up to modern building codes"; and "[t]he structure would not qualify for state or federal historic listing ... and the structure does not rise to local historic status and does not have significant historic, cultural or aesthetic value."

The Jenkinses discussed the original design with neighbors across the street, at 275 and 271 Crescent Road, as well as another neighbor at 256 Crescent Road. They also spoke with the former owner of the property, who had lived there for decades. All expressed their approval of, and their support for, the original design. However, other neighbors, primarily those living on Woodland Avenue (the "Woodland neighbors"), had objections to the original design, claiming that the proposed new house would not fit in with the neighborhood and would be too tall and intrude on their privacy. While the Jenkinses believed that the objections were misplaced, in an effort to assuage the Woodland neighbors’ concerns, they offered to plant an evergreen hedge that would provide another measure of privacy for them.

On February 12, the Planning Commission met. A few neighbors raised concerns regarding the height and size of the proposed house, some privacy issues, and setback of the proposed accessory unit from the property line. The Planning Commission liked the design but, noting the Woodland neighbors’ objections, suggested the Jenkinses make some modifications to the house.

Following the hearing, the Jenkinses met with some neighbors and worked with Mr. Linsteadt to revise the plans to address as many of the concerns as feasible. Mr. Linsteadt prepared revised plans that reduced the overall floor area; reduced the height of the house by an additional 18 inches, from 28 feet nine inches to 27 feet three inches;¹ reduced the accessory unit to a single story; increased the setback of the back cottage from two feet to five feet from the property line; and reduced the size of the second story deck, replacing the roof with a wood trellis.²

The Planning Commission was scheduled to meet on March 5, prior to which the planning staff report again recommended approval, this time of the revised plans. The staff report described the changes, and again concluded that the revised design complied with the General Plan and the Municipal Code and that the project was categorically exempt under CEQA and was not historically significant.

At the March 5 hearing, a few neighbors raised the same objections as at the February 12 hearing. The Planning Commissioners essentially responded that "[t]his project has done enough to address the concerns of the neighbors around them." Commissioners noted among other things...