Maria Pia Giordani vs City of Santa Barbara

Case Number

24CV01663

Case Type

Hearing Date / Time

Fri, 02/21/2025 - 10:00

Nature of Proceedings

CMC; Motion to Strike

Tentative Ruling

For all reasons discussed herein, the City of Santa Barbara’s motion to strike plaintiff’s first amended complaint is denied.

Background:

This action commenced on March 22, 2024, by the filing of the original complaint by plaintiff Maria Pia Giordani (“Maria” or “plaintiff”) against defendant City of Santa Barbara (“the City”). The verified original complaint alleged five causes of action: (1) breach of contract; (2) breach of implied covenant of good faith and fair dealing; (3) breach of contract; (4) declaratory relief; and (5) declaratory relief. (Note: Due to common surnames and to avoid confusion, the Court will refer to plaintiff and her late husband as further discussed below by their given names. No disrespect is intended.)

On May 6, 2024, the City filed a notice of related case identifying Santa Barbara Superior Court case number 23CV01937 (the City Action) entitled the City of Santa Barbara v Maria Pia Giordani, et al., as related to the present action. On May 24, 2024, the Court ordered the present action related to the City Action.

On May 29, 2024, the City filed a demurrer to the original complaint as a whole and to each cause of action alleged in the complaint. On August 30, 2024, the demurrer was sustained, with leave to amend, as to the first, second, third, fourth, and fifth causes of action. The sustaining of the demurrer, as to those causes of action, was due to deficiencies with respect to the pleading of damages.

On September 9, 2024, plaintiff filed her operative first amended complaint (“FAC”) which contains the same causes of action as the original complaint.

As alleged in the FAC:

Forty years ago, Maria and her husband, Ettore Giordani (“Ettore”), owned real property identified as Santa Barbara County Tax Assessor’s Parcel Number 55-030-50, and which is located in the City of Santa Barbara, California (“the City Property”). (FAC, ¶ 6.) Maria also owns property identified as Santa Barbara County Tax Assessor’s Parcel Number 55-030-49, which is located in the County of Santa Barbara, California (“the County Property”). (Id. at ¶ 5.) Ettore died on June 6, 1996. (Id. at ¶ 17.)

On January 11, 1983, the City filed Santa Barbara Superior Court case number 1144056, (“the Eminent Domain Action”), against Maria and Ettore (collectively, “the Giordanis”), seeking easements for its “Penstock” pipeline which would traverse the City Property and the County Property (collectively, the Properties). (FAC., ¶ 16.) To induce the Giordanis to execute easements for the Penstock pipeline, the City offered them a high-pressure fire hydrant. (Id. at ¶ 20.)

On June 17, 1983, the City and the Giordanis entered into a court approved settlement agreement (“the settlement agreement”). (FAC, ¶ 21.) The specific rights and obligations of the City and the Giordanis under the settlement agreement are memorialized in a letter dated June 7, 1983, which was drafted by the City and entitled “Gibraltar Penstock Pipeline Realignment Letter Of Understanding For Execution Of Pipeline Easements” (“the LOU”). (Id. at ¶ 21 & Exh. A.) The LOU includes language stating, in part, that the City “ ‘will include a fire hydrant installation on the [P]enstock pipeline at a location designated by the property Owner and acceptable to the City. The fire hydrant is for the sole purpose of fire protection.’ ” (Id. at 22; see also Exh. A.)

The City took possession of the easements on June 17, 1983. (FAC, ¶ 32.) On June 24, 1983, two separate documents drafted by the City, each of which is dated June 2, 1983, and entitled “Waterline Easement Deed and Agreement” (collectively, the Easement Agreements), were recorded with the Santa Barbara Recorder’s Office with respect to the Properties. (Id. at ¶ 23 & Exhs. B-C.) The Giordanis specifically negotiated for the terms “non-exclusive” and “underground” to be included in the Easement Agreements. (Id. at ¶ 23.) Maria believes that the City used the lure of a high-pressure fire hydrant to induce the Giordanis into executing the Easement Agreements. (Id. at ¶ 31.)

The Penstock pipeline and the fire hydrant were installed in late December 1983 or the beginning of 1984. (FAC, ¶ 25.) The Giordanis sold the City Property in 1984. (Id. at ¶ 26.) After the Giordanis and the City were unable to reach an agreement as to valuation for the City’s taking of their real property, a contested court trial ensued resulting in a judgment in favor of the Giordanis on December 27, 1984, which was upheld on appeal. (Id. at ¶¶ 27-29.)

In 2020, a City engineer informed Maria that the City intended to install a pressure relief valve and requested to meet at the Giordani property. (FAC, ¶ 35.) Maria asked her son, Giovanni (Gio), to attend for her, and Gio subsequently held two on-site meetings with the City engineers regarding the proposed air release valve. (Ibid.) During a subsequent discussion, Maria stated to a City engineer that she needed additional information to assess the City’s request. (Id. at ¶ 36.) Maria also informed the City that the fire hydrant was located on her property for her benefit, and that the Easement Agreements provide for only underground waterlines and appurtenances. (Id. at ¶ 37.) The City employees who were present for the initial on-site meeting denied any knowledge of the high-pressure fire hydrant or any of the previously agreed upon terms. (Id. at ¶ 38.) At a second on site meeting on August 12, 2020, the City engineer stated that the fire hydrant would work if the line was pressurized, and that the fire hydrant would produce water at a pressure of 100 pounds psi or greater. (Id. at ¶ 39.) Maria informed the City employee that she wanted a reaffirmation of the City’s commitment to abide by the terms of the settlement which required the City to provide high pressure fire hydrant service during fire events. (Id. at ¶ 40.)

After viewing the fire hydrant, the City informed Maria in writing that it intended to remove and replace the hydrant with the air release valve, and that the City would also pour a concrete pad and erect a cinderblock wall at the location of the hydrant. (FAC, ¶¶ 41-42.) Under the Easement Agreements as they relate to the County parcel, Maria holds the “ ‘right to construct or install concrete and asphalt paving for driveways on said easement, if said driveways do not interfere with the City’s operations of said waterlines.’ ” (Id. at ¶ 43.)

On June 28, 2022, Assistant City Attorney Daniel S. Hentschke (“Hentschke”) sent a letter to Maria notifying her that the City intended the “ ‘removal of the existing fire hydrant’ ”, that Hentschke had “ ‘personally searched the archive records of the Superior Court and located the [LOU]’ ”, and that “ ‘[n]either the [LOU], nor any other document, indicates that . . . the City is required to maintain a fire hydrant connected to the [P]enstock pipeline.’ ” (FAC, ¶ 44-46 & Exh. D.) In over 40 years, the City never notified Maria of an inability to perform, nor has Maria prevented the City from performing, maintenance on the fire hydrant. (Id. at ¶¶ 47-49.)

Because Maria would not grant the City permission to remove her “contractual consideration” of a high-pressure fire hydrant, on October 27, 2022, the City sued Maria for Breach of Contract, Interference with Secondary Easement, Injunctive Relief, and Declaratory Relief in SBSC Case No. 22CV04233. (FAC., ¶ 50.) On November 1, 2022, the City filed its first amended complaint for Breach of Contract, Interference with Secondary Easement, Injunctive Relief, and Declaratory Relief. (Id. at ¶ 51.) On December 8, 2022, the City filed the application in the Injunction Action seeking a “ ‘preliminary injunction enjoining, mandating and compelling’ ” Maria to comply with the provisions of the Easement Agreements, specifically by allowing access in order to replace a “ ‘functionally obsolete fire hydrant with an air relief/vacuum valve.’ ” (Id. at ¶¶ 52-53 & Exh. E.) The application, which was opposed by Maria, was based exclusively on the declaration of Hentschke. (Id. at ¶¶ 54, 57-58 & Exh. F.)

In the Eminent Domain Action, the City had claimed that, in exchange and consideration for executing the Easement Agreements, the Giordanis would receive the installation of the fire hydrant from the City which the City valued at $50,000. (FAC, ¶¶ 60-61.) The fire hydrant is located on Maria’s private property and is not included in the Easement Agreements, nor have the Easement Agreements ever been amended to include the fire hydrant or the property running to or under it. (Id. at ¶¶ 68-69 & 71.) The City knew that the fire hydrant was for the benefit of the Giordanis, and that the hydrant is located eighty-five feet from the Penstock pipeline, outside the easement area, and on Maria’s private property. (Id. at ¶ 59.) In addition, any and all above surface rights in the easement area were negotiated away by the City to obtain rights to install the Penstock pipeline in the specified area across the Giordanis’ property such that the Easement Agreements do not grant the City authority to build above-ground structures or to pour concrete. (Id. at ¶¶ 66-67.) The City’s easements are also nonexclusive and narrow in their scope. (Id. at ¶¶ 72-73.)

On March 15, 2023, City Attorney Brian English sent an email to Maria’s counsel stating that the City concurred that the fire hydrant is not located within the easement and that the City would no longer seek to remove the hydrant. (FAC, ¶¶ 90-92 & Exh. G.) On March 20, 2023, the City withdrew the application and on March 22, 2023, the City dismissed the Injunction Action. (Id. at ¶¶ 94-96.)

The City’s attempt to install a permanent structure in addition to removing Maria’s contractually provided for high pressure fire hydrant on her private property was wrongful, and forced Maria to incur damages including additional fire suppression equipment. (FAC, ¶¶ 75, 77-80, 89, 102.) In addition, the City’s attempt to expand the easement boundary was without justification or compensation. (Id. at ¶ 101.) Based on the City’s concessions regarding the fire hydrant, the City is in breach of its obligation to test, inspect, and maintain the hydrant. (Id. at ¶¶ 93 & 102-103.)

The City filed the present special motion to strike plaintiff’s FAC on November 12, 2024.

Plaintiff opposes the motion.

Analysis:

Code of Civil Procedure section 425.16 provides, in relevant parts:

(a) The Legislature finds and declares that there has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. The Legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and that this participation should not be chilled through abuse of the judicial process. To this end, this section shall be construed broadly.

(b)(1) 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.

(2) In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.

(3) If the court determines that the plaintiff has established a probability that he or she will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, or in any subsequent action, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination in any later stage of the case or in any subsequent proceeding.

* * *

(e) As used in this section, “act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue” 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 . . . . [Emphasis added.]

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by [Code of Civil Procedure] section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success. We have described this second step as a ‘summary-judgment-like procedure.’ [Citation, fn.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] ‘[C]laims with the requisite minimal merit may proceed.’ [Citation.]” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384–385.)

            1. Timeliness

Plaintiff argues that the motion is untimely.

The City argues that it is not untimely because of new claims alleged in the FAC. Specifically: The FAC “sets forth new allegations on both components of her claim: 1) allegations that the City’s filing of the 2022 lawsuit constituted a breach of the parties’ contractual and related duties’ and 2) that the fees incurred by [plaintiff] in defending the City’s 2022 lawsuit constituted her damages resulting from the City’s alleged breach.” (Reply, p. 4, ll. 14-19.)

“The special motion may be filed within 60 days of the service of the complaint or, in the court’s discretion, at any later time upon terms it deems proper.” (Code Civ. Proc., § 425.16, subd. (f).)

“ ‘An anti-SLAPP motion is not a vehicle for a defendant to obtain a dismissal of claims in the middle of litigation; it is a procedural device to prevent costly, unmeritorious litigation at the initiation of the lawsuit.’ ” [Citation.] To minimize this problem, section 425.16, subdivision (f), should be interpreted to permit an anti-SLAPP motion against an amended complaint if it could not have been brought earlier, but to prohibit belated motions that could have been brought earlier (subject to the trial court’s discretion to permit a late motion). This interpretation maximizes the possibility the anti-SLAPP statute will fulfill its purpose while reducing the potential for abuse.” (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 645; italics added.)

Here, plaintiff has pled the same causes of action in her FAC as she did in the original. No new causes of action were added. And, comparing the original complaint with the FAC, the causes of action are all based on the exact same set of underlying facts. Those allegations, in fact, begin with the first paragraph of both the original and FAC. Additionally: The FAC, again like the original complaint, seeks, as one of the remedies, legal costs and attorneys’ fees incurred, as a result of the prior litigation.

The single argument containing any merit, presented by the City with regard to the timeliness of the Anti-SLAPP motion, is that plaintiff added the language regarding an injunction as a remedy. This does not in any way change the nature of the allegations or the City’s ability to file an Anti-SLAPP motion in response to the original complaint.

The original complaint was filed on March 22, 2024, making the motion due, without court permission, no later than Tuesday, May 21, 2024. The present motion is untimely and will be denied on that basis.

In the alternative, the motion fails on substantive grounds.

2. First Prong

“A claim arises from protected activity when that activity underlies or forms the basis for the claim. [Citations.] Critically, ‘the 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.’ [Citations.] ‘[T]he 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.’ [Citations.] Instead, the focus is on determining what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’ [Citation.] ‘The only means specified in section 425.16 by which a moving defendant can satisfy the [“arising from”] requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e)....’ [Citation.] In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062–1063.)

A.        Petitioning Activities

The City’s motion is as to the entire FAC rather than specific sections of the FAC.

“As our Supreme Court has repeatedly emphasized, the moving party bears the burden “ ‘to identify what acts each challenged claim rests on and to show how those acts are protected under a statutorily defined category of protected activity.’ ” [Citations.] Because the [moving parties] moved to strike only the entire complaint, and did not identify in their motion individual claims or allegations that should be stricken even if the entire complaint were not, the trial court was permitted to deny the anti-SLAPP motion once it concluded - correctly - that the complaint presented at least one claim that did not arise from anti-SLAPP protected conduct.” (Park v. Nazari (2023) 93 Cal.App.5th 1099, 1106.)

“[A]ny litigant seeking . . . allegation-by-allegation relief should (1) make clear in its notice of motion that it seeks an order striking discrete allegations within a cause of action or within causes of action, and (2) set forth plainly and concisely in its moving papers exactly what factual allegations it wishes to have stricken, in a table or chart showing exactly how each such allegation aligns with elements of the cause of action or causes of action the motion attacks. [Citation.] That will not only allow a determination to be made about whether the movant has borne its initial burden of proof, but will place the nonmoving party on notice of what aspects of its pleading are being attacked, thus allowing that party, if possible, to explain why the facts identified are incidental background matter [citation] or are otherwise unprotected.” (Young v. Midland Funding LLC (2023) 91 Cal.App.5th 63, 100, fn. 15.)

Here, the City has moved to strike the entire complaint and has not set forth plainly and concisely in its moving papers exactly which factual allegations, or prayers for relief, it wishes to have stricken. As such, if the FAC presents at least one claim that did not arise from anti-SLAPP protected conduct, the motion will be denied.

The City argues that plaintiff’s FAC arises completely from the City’s protected petitioning activities, in that it is based on the earlier action which constitutes a “written or oral statement or writing made before a . . . judicial proceeding . . .” pursuant to Code of Civil Procedure section 425.16, subdivision (e)(1).

Under Civil Code section 47(b), a publication or broadcast made in a judicial proceeding is privileged.

Plaintiff argues that the present action is not based on the City exercising its rights to petition by way of prior action. Rather, plaintiff argues, the prior action is, essentially, background information regarding “the City’s decision to no longer maintain the bargained-for hydrant, and remove it and install an above ground Combination Air Relief/Vacuum valve . . . in its place.” (Opp., p. 7, ll. 18-21.)

In reply, the City argues that, due to the court sustaining the City’s demurrer to the original complaint, plaintiff is attempting to overcome the pleading deficiencies by alleging new claims in the FAC. The main gist of the City’s argument is that plaintiff’s focus on the City’s prior lawsuit against plaintiff demonstrates that the FAC arises from the City’s protected litigation activities. (Reply, p. 2, ll. 3-14.) As the court notes above, the original complaint was also focused on many of the facts from the prior lawsuit. In fact, very few facts differ between the two pleadings.

The City is conflating the concepts of activities that occurred as part of the prior litigation, with activities that were related to the subjects of the litigation. At most, the preliminary injunction action, as well as the other actions filed against plaintiff, were ancillary to the events that form the basis of the FAC. Just one example is the allegations of the complaint that support a claim that the City violated International Fire Code sections by failing to maintain the hydrant, remove it, and install an above ground CARV valve. (FAC, ¶¶ 46, 93, 103, 133, et cet.)

A thorough review of the FAC, which the court has considered as a whole, because the City filed the motion as to the entirety of the complaint, shows that many of the allegations do not fall under the anti-SLAPP protections.

Because the City has not met its burden of demonstrating that its conduct by which plaintiff claims to have been injured is anti-SLAPP protected conduct, the court need not address the second prong.