Mission Oaks Ranch, Ltd. v. County of Santa Barbara

• Decision Date: 18 June 1998
• Docket Number: B111367,Nos. B108463,s. B108463
• Citation: 77 Cal.Rptr.2d 1,65 Cal.App.4th 713
• Court: California Court of Appeals Court of Appeals
• Parties: , 98 Cal. Daily Op. Serv. 5697, 98 Daily Journal D.A.R. 7903 MISSION OAKS RANCH, LTD., Plaintiff and Appellant, v. COUNTY OF SANTA BARBARA et al., Defendants and Respondents. MISSION OAKS RANCH, LTD., Plaintiff and Respondent, v. COUNTY OF SANTA BARBARA, Defendant and Appellant.

Page 1

77 Cal.Rptr.2d 1

65 Cal.App.4th 713, 98 Cal. Daily Op. Serv. 5697,

98 Daily Journal D.A.R. 7903

MISSION OAKS RANCH, LTD., Plaintiff and Appellant, v. COUNTY OF SANTA BARBARA et al., Defendants and Respondents.

MISSION OAKS RANCH, LTD., Plaintiff and Respondent, v. COUNTY OF SANTA BARBARA, Defendant and Appellant.

Nos. B108463, B111367.

Court of Appeal, Second District, Division 6, California.

June 18, 1998.

Rehearing Denied July 16, 1998.

Review Denied Oct. 14, 1998. ^*

Alschuler, Grossman & Pines LLP, Marshall B. Grossman, Burt Pines, Kenneth S. Meyers, Los Angeles; Reicker, Clough, Pfau & Pyle LLP, Frederick Clough, Santa Barbara; and Law Offices of Douglas B. Schwab, Los Angeles, for Plaintiff and Appellant and for Plaintiff and Respondent.

Stephen Shane Stark, County Counsel, Virginia R. Pesola, Deputy; Hedges & Caldwell, David Pettit and Mary Newcombe, Los Severson & Werson, Jan T. Chilton and David A. Ericksen, San Francisco, for Defendants and Respondents.

Angeles, for Defendants and Respondents and for Defendant and Appellant.

STEVEN J. STONE, Presiding Justice.

A developer is disgruntled with the findings of a draft environmental impact report (DEIR) prepared by the consultant the county hires to evaluate the developer's project proposal. The DEIR explains that unmitigable impacts would result if the project were developed. The developer hires its own consultant who prepares and submits a report to the county which states there are no such unmitigable impacts. In the final environmental impact report (FEIR), the county denies approval for the project due to the unmitigable impacts. The developer sues the county, the county's consultant and others over the denial of project approval. The trial court sustains defendants' demurrers and grants motions to strike the action and enters judgment in favor of the defendants.

Mission Oaks Ranch, Ltd. (Mission Oaks) appeals from the judgment in favor of the County of Santa Barbara (the County), Envicom Corporation (Envicom), Storrer Environmental Services (Storrer) and various individuals. ¹ Because the action is untimely and administrative mandamus would have been the proper remedy to seek, we affirm. Furthermore, we affirm because the respondents owe no duty to Mission Oaks, the statements at issue are privileged under Civil Code section 47, and the complaint is subject to Code of Civil Procedure section 425.16, the anti-SLAPP statute. ² (SLAPP is an acronym for Strategic Lawsuit Against Public Participation.)

FACTS

Mission Oaks submitted an application to the County for a tentative tract map to subdivide and develop 3,877 acres near Buellton into 32 lots. Based on the initial study, the County issued a request for proposal to nine independent consultants to prepare the environmental impact report (EIR). The County informed Mission Oaks that it would select an independent consultant who would exercise its own independent judgment in accord with county guidelines. Mission Oaks alleges that the County did not consult Mission Oaks regarding the selection of Envicom and Storrer, the consultants chosen by the County to prepare the EIR. ³ But Mission Oaks also alleges that it notified the County that it had selected Envicom as the independent consultant, a decision the County accepted.

Mission Oaks had the responsibility to pay the consultants to prepare the EIR. Mission Oaks agreed with the County "that the adequacy of performance of consultant ... shall be determined at the sole discretion of County. Applicant [Mission Oaks] agrees that final authority on all decisions concerning the preparation of contractual documents lies in the sole discretion of County...."

The County contracted with Envicom to prepare the EIR. The contract states, in pertinent part, "[T]he draft EIR ... and the final EIR must reflect the lead agency's [County's] independent judgment (CEQA [California Environmental Quality Act] Guidelines, [Cal.Code Regs., tit. 14, s] 15084 [and] Pub. [Resources] Code, [s] 21082.1, [subd.] (c).) 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.... [p] Consultant understands and agrees that its responsibility to provide a complete and accurate EIR is owed solely to County and that its accountability under this Contract shall likewise be solely to County and not to Applicant or to any other third-person or entity.... " (Italics added.)

Pursuant to the consultant contract, Envicom prepared the DEIR which sets forth a multitude of significant adverse and unmitigable In August 1995, Mission Oaks filed a petition for administrative mandate seeking to compel the board to vacate its denial of the tract map application and to obtain a revised EIR. Mission Oaks also sought damages for a taking of its property and for violation of its civil rights. That petition is not before us today.

impacts presented by the project proposal on numerous basic resources. Mission Oaks opines that the preparation of the DEIR was a sham, and that the conclusions in the DEIR are false. It hired its own consultant to submit reports concluding that there is no substantial evidence to support the findings and conclusions of the DEIR. The County's FEIR adhered to the DEIR, and the County's planning commission recommended denial of the project. After holding four hearings, the board of supervisors denied the project proposal. On May 23, 1995, the board adopted findings and conclusions in support of its decision.

Mission Oaks filed the instant complaint on December 21, 1995, asserting that the EIR is a sham; that 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. Mission Oaks alleged that "for no valid reasons whatsoever, but simply to prevent development and for the purpose of generating excessive fees, the County falsely encouraged Mission Oaks to proceed with the EIR while knowingly having no intention of ever approving or recommending approval of the Project."

Except for a Williamson Act claim, concerning agricultural preserves, the trial court sustained the demurrers submitted by respondents without leave to amend and granted the consultants' special motions to strike the complaint pursuant to section 425.16. Mission Oaks dismissed the Williamson Act claim, and the trial court entered judgment in favor of respondents.

The trial court issued a lengthy decision and order in support of the judgment. Pursuant to the stipulation of the parties, the court awarded attorney fees and costs to the individual defendants but denied attorney's fees to the County by ruling that the County is not a "person" for purposes of SLAPP, and because the County did not prevail on the Williamson Act claim. This appeal, and a cross-appeal regarding attorney's fees, ensued from the judgment. ⁴

DISCUSSION

In reviewing a judgment of dismissal after demurrers are sustained without leave to amend, we treat the pleadings as admitting all material facts properly pleaded, but not contentions, deductions or conclusions of fact or law. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 967, 9 Cal.Rptr.2d 92, 831 P.2d 317.) When documents, such as contracts, are incorporated by reference into the complaint as here, "The recitals, if contrary to allegations in the pleading, will be given precedence, and the pleader's inconsistent allegations as to the meaning and effect of an unambiguous document will be disregarded." (4 Witkin, Cal. Procedure (3d ed. 1985) Pleading, § 385, p. 433; Stoddard v. Treadwell (1864) 26 Cal. 294, 303.) We independently review the complaint to determine whether it states a cause of action and whether defects can be cured by amendment. The burden of proof is squarely on the plaintiff, and if there is no liability as a matter of law, leave to amend should not be granted. (Hendy v. Losse (1991) 54 Cal.3d 723, 742, 1 Cal.Rptr.2d 543, 819 P.2d 1; Blank v. Kirwan (1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58; Ramirez v. USAA Casualty Ins. Co. (1991) 234 Cal.App.3d 391, 397, 285 Cal.Rptr. 757.) The judgment of dismissal will be affirmed if it is proper on any of the grounds stated in the demurrers, whether or not the trial court relied on any of those grounds. (Carman v. Alvord (1982) 31 Cal.3d 318, 324, 182 Cal.Rptr. 506, 644 P.2d 192.)

In reviewing a judgment of dismissal after the trial court grants a special motion to strike pursuant to section 425.16, we use our independent judgment to determine whether defendants acted in furtherance of their right of petition or free speech in connection with a public issue. (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548, 46 Cal.Rptr.2d 880; Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 819-821, 33 Cal.Rptr.2d 446.) Defendants bear the burden to make this prima facie case. If defendants meet their burden, we then consider whether plaintiffs have produced sufficient admissible evidence to establish the probability of prevailing on the merits on every cause of action asserted. (College Hospital Inc. v. Superior Court (1994) 8 Cal.4th 704, 719, 34 Cal.Rptr.2d 898, 882 P.2d 894; Matson, supra, at p. 548, 46 Cal.Rptr.2d 880; Wilcox, supra, at pp. 823-824, 33 Cal.Rptr.2d 446.) The motion to strike is properly granted if, as a matter of law, the properly pleaded facts do not support a claim for relief. (Wilcox, supra, at pp. 823-824, 33 Cal.Rptr.2d 446.)

The only cause of action against the County which remains at issue is the breach of contract claim--that the EIR was not prepared pursuant to requirements of CEQA and that the fees charged Mission Oaks unreasonable.

Mission Oaks appeals as to its claims against Envicom and its principal, Joseph Johns, for misrepresentation of Envicom's abilities and responsibilities, for breach of contract as a third-party...