On March 10, 2017, Ventura Judge Mark Borrell issued a ruling to deny the City of Santa Barbara’s anti-SLAPP motion in the lawsuit brought by Theo Kracke challenging the City’s ban of short-term vacation rentals as a violation of the Coastal Act.

The City’s anti-SLAPP motion alleged Kracke’s lawsuit chilled the City’s right to free speech.  Instead, the Court agreed with Kracke’s attorneys, Travis C. Logue and Jason W. Wansor of Rogers, Sheffield & Campbell, LLP, that Kracke’s Petition did not arise out of protected speech or activity.

A party who brings an anti-SLAPP motion bears the burden of making a threshold showing that the challenged cause of action is one “arising from” protected activity.  Generally, “protected activity” is any act in furtherance of a person’s right of petition or free speech under the United States Constitution or California Constitution in connection with a public issue.  “Cause of action…arising from” means simply that 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.

According to the Court, “The City fails to carry its burden to demonstrate that this action arises out of protected activity.  That is, the City does not establish that this action arises out of protected speech…[T]he court is not persuaded that the City accurately characterizes Kracke’s claims as arising from speech.  The gravamen on Kracke’s claims is not predicated on what was said by City’s representatives, but rather the action the City took following those statements – to wit:  the City’s alleged implementation of a ban of STVRs without following the required procedures under the Coastal Act.  The harm of which Kracke complains flows from the City’s actions and not its words.  The speech was merely a predicate to the action.”

Kracke’s attorneys argued in their filings that it was the City who was attempting to chill Kracke’s free speech. The court appeared to agree.

According to the court, “ [A]ppellate courts have been reluctant to allow public entities to invoke the anti-SLAPP statute in cases involving petitions for writ of mandate and associated claims, under the theory that requiring petitioners seeking writs of mandate to make prima facie showings of merit up front would chill the right to seek judicial review of public agency proceedings.”

Had the City prevailed with its motion, Kracke would have been liable for City’s attorneys’ fees and costs.

The court also issued a ruling on the City’s Demurrer Motion.  While the City granted the City’s Demurrer, it is allowing Kracke the opportunity to amend his Petition and allege additional facts as to why the City’s action constitutes “development” under the Coastal Act.  The court has requested more details as to how and why the City’s actions to ban STVRs had more than an “unintended, minor, indirect, and unquantifiable” impact on the intensity of use of land or of access to the coastline. Kracke has 20 days to file an amended Petition.

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