The City of South Pasadena and resident Alison Smith last week reported “significant progress” in efforts to settle a bitter dispute in which both sides have accused each other of retaliation. It concerns which party is responsible for a sewage spill that took place four years ago this month at Smith’s home on Hanscom Drive.
The news came in a one paragraph, joint stipulation the parties filed Jan. 12 agreeing to extend the deadline for Smith to respond to the city’s appeal of a trial court ruling. In that ruling, LA Superior Court Judge John L. Kralik rejected the City’s attempt to have Smith’s retaliation claim stricken.
“This case began as a relatively simple dispute over an outdoor sewage overflow”, the City wrote in its 54-page, Nov. 12 appeal. But it blew up after the City took additional enforcement action against Smith in what she claimed was retaliation for public statements she made during an Aug. 21 2019 City Council session about the City’s refusal to take responsibility for the spill.
Public outrage grew with the perception that the City’s law firm, Colantuono, Highsmith and Whatley, in an effort to buttress its brand as a municipal law firm with special expertise in inverse condemnation, needlessly pushed the case and billed the City hundreds of thousands of dollars to defend a claim that could have been easily settled long ago for far less. Controversy over the case and CHW’s role were also at issue in recent City Council contests and in ongoing tension over the law firm’s monthly bills and legal advice.
The parties’ stipulation offered no details about the settlement talks. But the case was discussed during a closed special meeting of City Council Jan. 12, the same day the stipulation was filed. A mandatory settlement conference last summer failed to produce any results.
In its appeal, the City complained that some of Judge Kralik’s decisions on procedural matters demonstrated “hostility to the city” while showing “an unusual amount of sympathy” for Smith.
Kralik, whose courtroom is in Burbank, was removed from the case last September. A court spokesperson said the removal was the result of a reallocation of cases enabled by the opening of two new courtrooms in Alhambra.
The original dispute is over whether the blockage that led to the sewage spill took place within city-owned main line or the lateral pipe that serves Smith’s home. Also, the City maintains the sewage flowed from “an uncapped and unpermitted sewer cleanout pipe” Smith installed at the home, and that the damage would have been mitigated if the home improvements had complied with city code. Smith told the City Council she filed the suit because city representatives, who she said initially took responsibility for the spill, later backed off.
Six weeks later, the City secured an enforcement warrant from another judge and sent four inspectors supported by three police officers to the home to investigate what it said were complaints about code violations. After the inspection, it filed a cross complaint alleging 31 mostly plumbing-related state and city or city code violations. It also commenced what it said was a separate enforcement action requiring Smith to rectify 19 additional unpermitted alterations it observed around the house.
Smith argued the inspection amounted to retaliation, prompting her to add a complaint under the Tom Bane Civil Rights Act.
Construing its application for the code enforcement warrant as a “protected activity” under the First Amendment, the City filed an “anti-SLAPP” motion asking Judge Kralik to strike Smith’s civil rights complaint. “The right to petition to an authorized government agency to determine whether Smith was in compliance with building requirements is protected by the First Amendment,” it argued.
SLAPP stands for strategic lawsuit against public interest, meaning meritless lawsuits generally filed against smaller litigants for the purpose of silencing dissent or criticism. California’s anti-SLAPP statute authorizes motions to strike such lawsuits.
Kralik questioned the City’s standing to file an anti-SLAPP motion and on Feb. 1 2021 dismissed it. He said since Smith did not clearly set out the allegations on which her claim was based, he could not conclude it was based on the City’s protected activity.
The judge also complained that “there are, apparently, Courts of Appeal in this state that believe that the word ‘person’” as used in the anti-SLAPP statute “includes government entities.” Nevertheless, he said the First Amendment and Articles 1 & 2 of the state constitution are meant to “operate as restraints on government action,” not to “give a government the right to impose penalties upon a citizen for stating a complaint against the government.”
The City argued Kralik had sufficient information to conclude the civil rights claim was based on protected activity, namely, the code enforcement action. It also argued its actions were immune, or that the civil rights claim is barred, on several other legal grounds. Smith’s civil rights complaint is “little more than retaliation against the City for taking enforcement measures.”
Concluding, the City asserted that “the law and the facts demonstrate that the anti-SLAPP statutes bar Smith’s Bane Act Claim. The trial court’s order denying the City’s anti-SLAPP motion was, as admitted in the order, contrary to binding precedent. The City should not be deprived of its lawful remedies in pursuing an anti-SLAPP motion merely because the trial court is sympathetic towards the Plaintiff.”