Noordewier v. Murdoch
| Docket Number | F084693 |
| Decision Date | 21 December 2023 |
| Parties | MICHAEL NOORDEWIER, Plaintiff and Appellant, v. RICHARD MURDOCH, Defendant and Respondent. |
| Court | California Court of Appeals Court of Appeals |
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Stanislaus County No. CV-21-006566 John D. Freeland, Judge.
Michael S. Warda; Wanger Jones Helsley, John P. Kinsey Kathleen DeVaney and Hunter C. Castro for Plaintiff and Appellant.
Downey Brand, Matthew J. Weber and Tyler Horn for Defendant and Respondent.
This appeal involves a civil action filed by appellant and plaintiff Michael Noordewier against defendants City of Oakdale (Oakdale), Jeff Gravel, Oakdale's Director of Public Services, and Richard Murdoch.[1] Plaintiff appeals from the trial court's order granting two special motions to strike a cause of action pursuant to Code of Civil Procedure section 425.16 (), one of which was filed by Oakdale and Gravel, and the other was filed by Murdoch (collectively, defendants).[2], [3] We conclude the trial court correctly determined plaintiff's third cause of action for breach of due process is founded on actions arising from Murdoch's protected activity within the scope of the anti-SLAPP statute, and that plaintiff failed to establish a probability of prevailing on this cause of action against Murdoch. (§ 425.16, subds. (b)(1), (e).) Accordingly, we affirm.
In February 2003, Oakdale adopted resolution No. 2003-13, City of Oakdale Single Family Residential Design Expectations (Design Expectations). The Design Expectations were "based upon the nationally-recognized Ahwahnee Principles Toward More Livable Communities ._" In 2005, Murdoch developed an eight-lot subdivision (Murdoch subdivision) after approval by Oakdale's Planning Department. As part of the conditions of approval for the Murdoch subdivision, Oakdale required the construction to meet the overall intent of the Design Expectations.
In 2005, Murdoch submitted plans to build a personal residence home at 531 Murdoch Court. The plans required revision under the Design Expectations, but were ultimately approved without consideration by the planning commission or the city council.
In April 2019, plaintiff purchased two vacant lots in the Murdoch subdivision at 551 and 571 Murdoch Court. The 551 Murdoch Court lot is directly adjacent to Murdoch's personal residence, and plaintiff purchased it from a third party, but plaintiff purchased the 571 Murdoch Court lot directly from Murdoch. In December 2019, plaintiff applied with Oakdale's Planning Department for building permits to construct two single-story homes, one on each lot.
In January 2020, Oakdale issued plan check comments, and in April 2020, building permits were issued to plaintiff. By April, plaintiff had contracted for construction on both residences. After plaintiff obtained his building permits, plaintiff alleges Murdoch, who is an Oakdale City Council member, used his official position to prevent plaintiff from constructing the homes. Specifically, on May 22, 2020, Murdoch offered to purchase 551 Murdoch Court from plaintiff, but plaintiff refused, and within four hours of doing so, Gravel (alleged to be the Oakdale official charged with issuing building permits) advised plaintiff that his building permits were revoked. On May 23, 2020, Oakdale staff indicated construction could commence on 571 Murdoch Court, but construction on 551 Murdoch Court could not proceed. Oakdale required plaintiff to resubmit a self-certification checklist pursuant to the Design Expectations.
In June 2020, plaintiff submitted a self-certification checklist pursuant to the Design Expectations. Plaintiff alleges Murdoch and Gravel reviewed the checklist furnished by plaintiff and conspired to force more design changes to prevent plaintiff from constructing the residences. On June 25, 2020, after more design changes, plaintiff and Oakdale executed a memorandum of understanding (MOU), and revised permits were issued that allowed plaintiff to proceed with construction of the homes.
On July 1, 2020, Murdoch filed a petition for writ of mandate against Oakdale and named plaintiff a real party in interest. Murdoch asserted the revised permits still failed to comply with the Design Expectations, and Murdoch sought to compel Oakdale's uniform application and enforcement of the Design Expectations. Ultimately, the court determined Oakdale had abused its discretion by failing to follow the procedures required by the Design Expectations in issuing plaintiff's permits. The building permits issued to plaintiff in April and June 2020 were held invalid, and plaintiff was enjoined from construction based on those permits.
Plaintiff did not appeal the writ decision; instead, he elected to redesign the homes and submitted new building plans to Oakdale in early 2021, which were ultimately reviewed and approved by Oakdale's city council.
Plaintiff filed this civil action in December 2021, alleging, inter alia, that defendants violated his due process rights during the permitting process prior to the writ proceeding. A first amended complaint (FAC) was filed in February 2022, and defendants filed two separate anti-SLAPP motions to strike the FAC's due process claim-one was filed by Oakdale and Gravel and the other was filed by Murdoch.
In his anti-SLAPP motion, Murdoch argued plaintiff's due process claim is based on Murdoch's efforts, through objections and complaints to local officials and in judicial proceedings (the writ proceedings), to ensure plaintiff's development of the properties complied with the Design Expectations. As such, Murdoch argued, the complained-of conduct forming the basis of the due process cause of action was protected petitioning activity under section 425.16, subdivision (e)(2). Murdoch alternatively argued it also constituted protected activity under section 425.16, subdivision (e)(4), as conduct in the furtherance of the exercise of the constitutional right of petition in connection with a public issue or an issue of public interest. In support of his motion, Murdoch filed his own declaration, which explained that prior to plaintiff submitting his first building permit applications, plaintiff had described his building plans to Murdoch and indicated they were going to be identical to homes being built in a nearby city by a different builder. Murdoch found the plans for that development online, and informed plaintiff Oakdale would likely deny plaintiff's building permits because they did not seem appropriate based on Murdoch's understanding of the Design Expectations.
After discovering plaintiff's plans had been approved, Murdoch spoke with Brian Odom, Oakdale's building inspector, and expressed his belief plaintiff's plans did not comply with the Design Expectations. In addition, Murdoch also spoke with Gravel regarding these concerns. Gravel informed Murdoch Oakdale had mistakenly skipped the design review process and had not asked plaintiff for a self-certification check list; and the permit applications were not reviewed by Oakdale's zoning manager, so Oakdale never properly determined whether the building permit application complied with the Design Expectations.
In support of his anti-SLAPP motion, Murdoch also sought judicial notice of Oakdale's 2003 resolution adopting the Design Expectations for single-family residential units; Oakdale's 2005 Planning Commission resolution No. 2005-01 approving the Murdoch subdivision; Murdoch's verified petition for writ of mandate and complaint for declaratory relief; and the trial court's March 2021 judgment granting the writ.
Oakdale and Gravel's motion to strike under the anti-SLAPP statute similarly asserted plaintiff's due process claim arose out of conduct related to the writ proceedings, which they asserted was protected activity. In support of the motion, Gravel submitted a declaration indicating that he is the director of public services for Oakdale and oversees the review of applications to build new homes in Oakdale. According to Gravel, Odom approached Gravel on May 22, 2022, with concerns relayed to Odom by Murdoch regarding approval of construction permits issued to plaintiff. In response to these concerns, Gravel reviewed the applications and discovered the proposed construction plans did not comply with the Design Expectations, and Gravel immediately suspended the two permits on May 22, 2020.
On May 30, 2020, Oakdale received an email from Murdoch stating the two homes proposed by plaintiff did not comply with the Design Expectations and would diminish the property values and quality of life in his neighborhood. That email was attached as an exhibit to Gravel's declaration and reflects that it was sent from Murdoch's personal email account to Odom and to City Manager Bryan Whitemyer, explaining the floor plans of plaintiff's proposed homes did not meet Oakdale's design standards.
According to Gravel, after much "back and forth" between plaintiff and Oakdale regarding compliance with the Design Expectations, plaintiff met with Whitemyer, and on June 25, 2020, they executed the MOU to memorialize Oakdale's agreement to accept certain elevations and architectural features for plaintiff's proposed homes.
Also in support of their motion to strike, Oakdale and Gravel submitted a request for judicial notice of (1) Oakdale's resolution No. 2003-13 adopting the Design Expectations; (2) Oakdale's 2005 approval of the Murdoch subdivision; (3) Murdoch's verified writ petition; (4) Murdoch's brief in support...
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