City knocked down on playhouse suit
The City of Santa Monica’s attempt to end an 18-month-old lawsuit over a 6-year-old’s playhouse failed in court Monday.
Los Angeles Superior Court Judge Cesar Sarmiento denied the city’s motion to dismiss the suit brought by a Santa Monica family, saying they have proven the merits of their case well enough to go to trial.
“That was a very powerful statement for us because we haven’t even gotten to discovery yet,” said Chris Harding, the attorney representing David and Beth Levy.
The Levys sued the city and former mayor Ken Genser in September of 2000 after a neighbor’s complaint led the city to reverse an earlier decision concerning the legalities of their back-yard playhouse.
In its motion to dismiss the suit, the city argued that the Levys’ backyard neighbor, Tunde Garai, had a right to complain to Genser that the family’s playhouse for their son, Jacob, was excessive and appeared to violate city zoning laws.
Genser said he forwarded Garai’s concerns to the city’s planning department, which prompted officials to rule the playhouse is illegal because it’s two stories. It was originally defined as a one-story structure.
The Levys claim Genser “advocated” to city staff that the playhouse was two stories, which pressured them into ruling the structure illegal. City charter forbids elected officials from ordering staff into any action.
The Levys, who live in an east side Santa Monica neighborhood, were ordered to either tear down the 12 1/2-foot tall building or face criminal charges.
However, in an attempt to avoid a lawsuit and reach a compromise, city officials said the playhouse could stay but would-n’t be regarded as a legal structure.
The Levys chose to sue, asking for the structure to be considered legal. The suit also asks that the city set up a public hearing process for other residents who violate zoning codes. One of the Levys’ claims is that they weren’t given due process and a forum to argue their case when they were issued a notice of violation.
The city filed its motion to dismiss last month based on two arguments. The first was to disqualify Harding, Larmore, Kutcher & Kozal, the firm representing the Levys, because Harding’s wife, Laurie Lieberman, worked as a deputy city attorney nine years ago and now works at the prominent land use law firm.
The city argued that because Lieberman works for the firm part time, she has created a conflict of interest in the case because she advised elected officials, specifically Genser, on how to conduct themselves with staff.
Judge Sarmiento barely heard arguments from either side before he denied the city’s disqualification motion.
“I just don’t see how anyone who worked there 10 years ago would have any bearing on this case,” Judge Sarmiento said.
The city’s second argument was 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 used mainly by big developers to quiet the public’s freedom of speech when speaking out against a project. It’s also used to intimidate them so they will stop complaining.
The city argued that Genser shouldn’t be criminalized over something as Democratic as passing along a citizen complaint to city officials.
Deputy City Attorney Joe Lawrence argued that the Levys’ interpretation of city law is wrong.
“Everything the plaintiffs argue are implied,” he said, adding the city’s law, written more than 50 years ago, only specifies that elected officials cannot order city staff into action. “The generation in 1946, in 1947, now known as the greatest generation alive, clearly knew the difference between ‘order’ and ‘persuasion’ or ‘advocate.’ They knew the word ‘order.’”
But for Judge Sarmiento, the Levys’ arguments that Genser may have persuaded city officials to reverse their decision on the playhouse and that the family was denied due process when they were informed about the decision are strong enough.
“I do think they have met their burden that they could prevail,” he said.
Lawrence said he’ll recommend an appeal to Judge Sarmiento’s ruling, which could delay the case for months.
“It’s my recommendation but it’s the council’s decision,” Lawrence said. “My reaction is that the judge’s ruling is incorrect... I think he gave the anti-SLAPP motion a narrow view.”
The case is scheduled to go to trial July 30.
While listening to the arguments, one lawyer waiting to be heard on a separate case leaned over to a colleague and whispered, “All this is about a playhouse?”
Originally published in the Santa Monica Daily Press print edition on March 5, 2002. Read the original PDF.