City says playhouse lawsuit is politically motivated
(Editor’s note: This is the third story in a series on a lawsuit filed by a Sunset Park family over their son’s playhouse.) A lawsuit filed against Santa Monica City Hall over a backyard playhouse is little more than an attempt to silence free speech, the city argues.
On the contrary, claims the opposing lawyer. The suit is about getting City Hall to open its rule-making to public appeal.
The “Tempest in a Playhouse” began after the city told David and Beth Levy that the backyard playhouse they were building for their 6-year-old son was fine under the zoning code. But City Hall later changed its mind after then-mayor Ken Genser passed on a complaint from a neighbor, who’d originally approved of the structure. By now deciding that the playhouse, elevated on posts, was two stories instead of one, City Hall suddenly threatened to prosecute the Levys for a criminal violation of the zoning code.
The Levys sued in September of 2000, bringing in a lawyer who’s known for suing City Hall. Some say the attorney, Chris Harding, is nursing a vendetta against Genser. Harding says he’s so motivated by pure principle that he’s working for free.
Now the case has become a question of free speech. By filing an “anti-SLAPP” motion last month, City Hall invoked a legal argument that protects citizens from being punished for speaking out.
The city’s move is based on a law that prevents people from being punished for exercising their First Amendment rights. It also is designed to protect them when they complain to government officials.
Strategic Lawsuit Against Public Participation — also known as SLAPP suits, are meritless lawsuits often used by big developers to chill the public’s freedom of speech when speaking out against a project. They’ve also been used to intimidate opponents so they will stop complaining.
In response to those suits, the Legislature enacted California’s anti- SLAPP law, to better protect people who want to speak out. “... An elected official gave his opinion and let city staff attempt to resolve the matter,” reads the city’s motion. “For this he is sued and vilified, and so is the city he serves. Even in today’s jaded world, plaintiff’s lawsuit is an affront to Democracy.”
“Even in today’s jaded world, plaintiff’s lawsuit is an affront to Democracy.” — — CITY LAWSUIT
Harding, a land use lawyer, has made something of a practice out of suing City Hall. He argues the city’s anti-SLAPP motion is “a desperate attempt to prevent a full airing of an obviously embarrassing chapter in city history by preventing this case from proceeding to the merits.”
“What makes this case ironic is that the Levys are trying to exercise their constitutional rights and they have to do it in court,” said Tom Larmore, a partner in Harding’s law firm. “But the city itself is trying to characterize it as a SLAPP. It’s a way to intimidate (the Levys).”
All this over a backyard playhouse. The Levys argue that their lawsuit doesn’t attempt to chill the neighbor’s right to free speech. They claim the city violated its own laws because Genser influenced city staffers to change their minds and rule the playhouse had two stories, making it illegal under zoning codes.
Genser says he only forwarded the neighbor’s complaint and never ordered or advocated city staff to do anything. The Levys’ arguments are weak and the suit is nothing more than harassment, the city argues.
A close reading of the pair of e-mails Genser sent to city officials appears to support his position. He suggested the playhouse might be illegal, and prodded city staff to look into it. But the e-mails contain no instructions.
“Plaintiff’s lawsuit is hopelessly defective, piles self-indulgences upon self-indulgences and most importantly, tramples on the very Democratic rights that California and the country hold so dear,” the city’s motion states.
The city’s ratcheted up its case a notch by asking a judge to disqualify Harding and his law firm from pressing the case. It says Harding’s wife, Laurie Lieberman, once gave Genser advice when working as a deputy city attorney nine years ago. She now works part-time at his land use and real estate law firm.
The city argues that Lieberman has created a conflict of interest in the case because she once gave advice to elected officials including Genser.
“Laurie Lieberman gave me specific advice on how to deal with staff,” Genser said of her stint nearly a decade ago.
Harding and Levy say the city’s attempt to disqualify the law firm is a reach at best.
“The disqualification of us is ridiculous,” Harding said, adding Lieberman has only proofed documents relating to the case.
Genser is at a loss as to why the case has gone this far, especially since the city is allowing the Levys to use the playhouse. The city has made several attempts to settle the case but the Levys and Harding continue to push the issue, attorneys argue.
“We don’t see what this case is about,” Genser said, adding he thinks it may be politically motivated. “It seems to have other motivations... Chris and I have had a long history of disagreement.”
Levy, a psychiatrist who has lived in Santa Monica since 1975, has never been politically involved — until now. As far as he’s concerned, the city went back on its word. He’s asked that the playhouse be deemed legal with no strings attached and that a hearing process be set up so those accused of violating zoning laws get heard.
A judge will hear the latest arguments on Feb. 25.
Originally published in the Santa Monica Daily Press print edition on February 20, 2002. Read the original PDF.