1

Filed 12/28/22

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION TWO

CHARLES JENKINS et al.,

Plaintiffs and Respondents,

v.

SUSAN BRANDT-HAWLEY 

et al.,

Defendants and Appellants.

 A162852

 (Marin County

Super. Ct. No. CIV 

2002924)

In 2017, plaintiffs Charles and Ellen Jenkins (the Jenkinses) bought a 

residential property in the town of San Anselmo (Town). The property had a 

one-bedroom home with a converted attic, built in 1909, and a small 

accessory cottage. Following conversations with an architect and contractors, 

and a meeting with the Town Planning Director, the Jenkinses filed an 

application for permits to authorize the demolition of the existing structures 

and the development of a new home with a small, detached studio. The 

Planning Commission approved the project, but the Jenkinses nevertheless 

worked with some neighbors to accommodate their concerns, and submitted 

revised plans, which were also approved at subsequent Planning Commission 

meetings.

Representing themselves, four individuals filed an appeal to the Town 

Council which, following a lengthy hearing, denied the appeal.

Following denial of the appeal, a petition for writ of mandamus was 

filed on behalf of two petitioners: Save Historic San Anselmo, an
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unincorporated association, and an individual. They were represented by 

Susan Brandt-Hawley (Ms. Brandt-Hawley), a prominent lawyer with an 

extensive background in CEQA-related matters, and her firm. The petition 

alleged two causes of action, the first for “violations of the California 

Environmental Quality Act” (CEQA), this despite that the appeal did not 

include any CEQA claim—not to mention that CEQA has a categorical 

exemption for single-family homes. The second, styled “violation of the Town 

Municipal Code,” alleged in six conclusory lines, without citation, that 

approval of the project violated the Municipal Code and the Town’s General 

Plan.

An attorney for the Jenkinses sent Ms. Brandt-Hawley a five-page 

single-spaced letter advising that the petition was frivolous, identifying ten 

reasons why, observing that “in [his] over 25 years of litigating CEQA 

actions, [he could not] recall handling a CEQA challenge that appeared this 

meritless.” The letter ended with the request that petitioners “reconsider 

their current course of action and dismiss this lawsuit, with an agreement 

that all parties will bear their own costs.” 

The writ petition came on for hearing before an experienced trial judge

(the Honorable Andrew Sweet), who easily denied the petition in a thorough 

order that, among other things, criticized aspects of Ms. Brandt-Hawley’s 

briefing and advocacy. Petitioners appealed, and along the way sought a writ 

of supersedeas (which they immediately dismissed), and then offered to 

dismiss the appeal for a waiver of fees and costs, an offer the Jenkinses 

rejected. Then, on the day petitioners’ opening brief was due, Ms. BrandtHawley dismissed the appeal.

The Jenkinses filed a complaint against Ms. Brandt-Hawley and her 

firm for malicious prosecution. They responded with a special anti-SLAPP 
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motion to strike, which came on for hearing before a different trial judge (the 

Honorable James Chou), who, in an equally thorough order, denied the 

motion, concluding that the Jenkinses had met their burden under step two 

of the anti-SLAPP procedure demonstrating a probability of success on their 

complaint. 

Our de novo review leads to the same conclusion, and we affirm.

BACKGROUND

The General Setting: The Property, the Plans, and the 

Approvals

In 2017, Charles and Ellen Jenkins, husband and wife, bought the 

property located at 260 Crescent Road, San Anselmo, where they planned to 

retire (the property). The property had two structures on it: a one-bedroom 

“Craftsman” style shingled bungalow built in 1909 (the main house) and a 

small cottage, partially over a garage, built sometime later. Around the time 

of their purchase, the Jenkinses spoke with architect Ken Linsteadt and two 

contractors regarding options for the property, all of whom advised that the 

main house was not worth saving, for numerous reasons. Mr. Linsteadt also 

advised that any addition at the back of the house would be undesirable, both 

aesthetically and in terms of design and proportion, essentially advising that 

the main house had to be torn down and rebuilt. 

Mr. Linsteadt recommended that before the Jenkinses embarked on the 

design for a new house, they first make sure the house had not been 

designated as “historic” by the Town. The Jenkinses followed the advice and 

met with the Town Planning Director Elise Simonian. Simonian then came 

to the property, examined the main house, and advised that the Town did not 

have a list or registry of historic houses; she also said she was authorized to 

determine which houses needed an historic report in order to be rebuilt, and 

that the Jenkinses’s house did not have sufficient architectural detail to 
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require such a report. Finally, Ms. Simonian confirmed what Mr. Linsteadt 

and the contractors had noted: the main house would have to be largely 

rebuilt to conform to the relevant building code requirements.

On December 11, 2017, the Jenkinses filed an application with the 

Town for permits to authorize the demolition of the existing structures and 

the development of a new three-bedroom, two-and-a-half bath house with a 

small, detached studio. The project would increase the total square footage 

from 2,882 square feet to 3,227.5 square feet, a less than 12 percent increase 

in overall square footage. The project was fully compliant with the existing 

zoning and building codes, a fact the Jenkinses confirmed with staff at the 

Planning Department. 

In January 2018, the Jenkinses learned that the planning staff had 

completed its review of the original design and were preparing a report that, 

subject to a few conditions, recommended approval of the project by the 

Planning Commission, which was to meet on February 12. Among other 

things, the planning staff report found the project was categorically exempt 

from CEQA for new construction of a single-family residence (Cal. Code 

Regs., tit. 14, §§ 15303(a) and 15300.2); that there were no “historic resource” 

exceptions to this exemption and the “residence is not historically 

significant”; and that the design was compatible with the character of 

development in the neighborhood. The staff report concluded a demolition 

permit should issue because the existing residence needs to be “significantly 

demolished and modified to bring it up to modern building codes”; and “[t]he 

structure would not qualify for state or federal historic listing . . . and the 

structure does not rise to local historic status and does not have significant 

historic, cultural or aesthetic value.” 
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The Jenkinses discussed the original design with neighbors across the 

street, at 275 and 271 Crescent Road, as well as another neighbor at 

256 Crescent Road. They also spoke with the former owner of the property, 

who had lived there for decades. All expressed their approval of, and their 

support for, the original design. However, other neighbors, primarily those 

living on Woodland Avenue (the “Woodland neighbors”), had objections to the 

original design, claiming that the proposed new house would not fit in with 

the neighborhood and would be too tall and intrude on their privacy. While 

the Jenkinses believed that the objections were misplaced, in an effort to 

assuage the Woodland neighbors’ concerns, they offered to plant an evergreen 

hedge that would provide another measure of privacy for them. 

On February 12, the Planning Commission met. A few neighbors 

raised concerns regarding the height and size of the proposed house, some 

privacy issues, and setback of the proposed accessory unit from the property 

line. The Planning Commission liked the design but, noting the Woodland 

neighbors’ objections, suggested the Jenkinses make some modifications to 

the house. 

Following the hearing, the Jenkinses met with some neighbors and 

worked with Mr. Linsteadt to revise the plans to address as many of the 

concerns as feasible. Mr. Linsteadt prepared revised plans that reduced the 

overall floor area; reduced the height of the house by an additional 18 inches,

from 28 feet nine inches to 27 feet three inches;1 reduced the accessory unit to 

a single story; increased the setback of the back cottage from two feet to five 

1 The Town Ordinance allows heights up to 30 feet. 
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feet from the property line; and reduced the size of the second story deck, 

replacing the roof with a wood trellis.2

The Planning Commission was scheduled to meet on March 5, prior to 

which the planning staff report again recommended approval, this time of the 

revised plans. The staff report described the changes, and again concluded 

that the revised design complied with the General Plan and the Municipal 

Code and that the project was categorically exempt under CEQA and was not 

historically significant. 

At the March 5 hearing, a few neighbors raised the same objections as 

at the February 12 hearing. The Planning Commissioners essentially 

responded that “[t]his project has done enough to address the concerns of the 

neighbors around them.” Commissioners noted among other things that the 

project was “elegant,” “well-designed,” and fit in with the neighborhood, one 

noting that “[t]hese are huge setbacks beyond what we require. . .”; “I believe 

there is more space than what the houses along Woodland have from each 

other. . . .” The commissioners discussed whether the existing home was 

historically significant, concurring with the staff report conclusion that it was 

not, stating among other things that the structures proposed for demolition 

were “not historic,” had “no historic value,” and were “nothing special . . . 

architecturally.” And at the conclusion of the meeting the Planning

Commission unanimously approved the revised design and the staff report by 

a vote of six-zero.

As to what happened next, we quote four paragraphs from a later-filed 

declaration of Charles Jenkins (all citations omitted):

2 The only change requested by the neighbors that was not made was to 

excavate further than proposed, as the Jenkinses’s engineer said the 

excavation would cause drainage problems. 
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“Shortly thereafter, and notwithstanding all of our efforts to resolve 

their issues, the objecting neighbors advised that they would appeal the 

Planning Commission’s approval of the now revised project to the Town 

Council unless we acceded to a list of five new changes. They also advised 

that they would refuse to communicate with us directly unless we first agreed 

to all of their demands. [Citations.] Because the revised design complied with 

the relevant building codes, and because we had done everything reasonably 

possible to address their previously stated privacy concerns, we declined the 

objecting neighbors’ request to further revise the plans.

“About a week after the Planning Commission approved the project, the 

owners of the house across the street from us sent a letter dated March 12, 

2018, to the Planning Commission asserting that the Town should require an 

‘Historic Resource Analysis’ for the existing Property before the Town could 

approve a categorical exemption from CEQA. [Citation.] This letter was the 

first time I recall any neighbor raising a concern about the Property being 

potentially historic or suggesting that the Town should not approve a 

categorical exemption from CEQA. [Citations.]

“Planning Director Elise Simonian stated that the Planning 

Commission had considered the allegedly historic nature of the residence at 

both hearings. [Citations.] She indicated that the site was not associated 

with any events that have made a significant contribution to the broad 

patterns of local or regional history, or with lives of persons important to 

local, state, or national history. [Citation.] She also stated that the site did 

not embody the characteristics of a type, period, region, or method of 

construction or represent the work of a master. [Citation.] In short, 

Ms. Simonian opined that the site does not meet the criteria for designating a 

historic resource as it had not yielded, and does not have the potential to 
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yield, information important to the history of the local area, the state, or the 

nation. [Citation.] Ms. Simonian advised the appellants that the Jenkinses 

“would be happy to speak with [appellants] regarding the project.” [Citation.] 

In fact, we had asked Town staff to provide our phone numbers and contact 

information to the objecting neighbors, and we said that we would welcome 

discussion with the neighbors. [Citations.] However, the Woodland 

Neighbors stated that they would ‘not be reaching out to [us] as [staff] 

suggest[s],’ indicating that they simply wanted confirmation that ‘the 

changes will be made’ and would otherwise be ‘going ahead with the appeal 

process.’ [Citations.]

“The objecting neighbors moved forward with their plan and appealed 

the Planning Commission’s approval of the revised project to the San 

Anselmo Town Council.”3

The Appeal to the Town Council

On March 15, representing themselves, four individuals—Chris and 

Kassie Livermore, Ani Wade, and Patrick Bennett—filed an administrative 

appeal. The appeal requested “the Town Council reviews this project for the 

following reasons,” all set forth in bold-face: (1) “the project is out of 

character with the neighborhood in its scale and style”; (2) “there are privacy 

issues for four adjacent neighbors which have not been addressed”; (3) “there 

were procedural missteps in the process”; and (4) “the neighborhood impact 

during construction was not considered.” Under the first bold-faced item, in 

3 A third meeting was held on April 2, where the Planning Commission 

heard the Jenkinses’s application for a grading permit. Again some 

neighbors expressed concern about the claimed historic nature of the house 

and compliance with the Municipal Code. The Planning Commission granted 

the grading permit. 
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the last of five paragraphs, was this: “[t]here is also a major concern amongst 

the neighbors, regarding the historic value of the existing home. Although 

planning staff performed their own ‘historic evaluation,’ there is significant 

information about the home that leads the neighborhood to believe the 

existing house merits an independent Historic Resource Analysis.”

The appeal was scheduled to be heard on June 26 before the Town 

Council, prior to which its staff prepared a voluminous, 23-page, singlespaced report for the Council (council staff report). The council staff report 

included: (1) a detailed discussion of the history of the property; (2) an 

analysis explaining that the property is not one of the “presumptive” types of 

historical properties under CEQA because it was not found to be eligible for 

listing in the California Register of Historical Resources and not identified as 

significant in a historical resource survey; (3) an analysis explaining that

CEQA gives the Town Council discretion regarding the designation of a 

property as historical; and (4) an analysis explaining that, although the Town 

had in the 1980s conducted an inventory of potentially historic properties

(where the property was one of 313 properties identified), the Town Council 

never ultimately adopted or approved that inventory, going on to note that 

many of those 313 properties had since been demolished, redeveloped, or 

otherwise altered. Despite all that, in light of the neighbors’ questions, the 

council staff report recommended a historic resource evaluation (HRE). 

The Jenkinses retained Page & Turnbull, an established architecture 

and preservation firm, to prepare an HRE. The firm made an extensive 

analysis of the history of the property and prepared an HRE that concluded 

the property was not eligible for listing in the California Register and was not 

an historic resource under CEQA. The HRE was submitted to the Town 

Council in advance of the hearing on the appeal. 
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The appeal came on for hearing on June 26, where the Town Council 

considered all material, including the council staff report and the expert 

Page & Turnbull report. The Town Council voted to uphold the Planning 

Commission’s approval of the project and its findings, including the finding 

that the property “does not rise to local historic status and does not have 

significant historic, cultural or aesthetic value.” The Town Council also 

affirmed the Planning Commission’s CEQA determination that the 

replacement single family home project was categorically exempt from 

CRQA’s detailed and elaborate environmental analytical and processing 

mandates such as an EIR. As Judge Chou would later describe it—following 

six-pages of quotations from the staff council report and Planning Director’s 

Simonian’s comments—“the Town Council discussed the project at length, 

including the historical nature of the property, and voted 3-1 to deny the 

appeal.”

Soon after Ms. Brandt-Hawley entered the picture.

The Petition for Writ of Mandamus and the Appeal

On August 10, some six weeks after the Town Council approved the 

project, a verified petition for writ of mandamus was filed on behalf of two 

plaintiffs: Save Historic San Anselmo, an unincorporated association, and 

Laurel Mellin. The petition was filed by Ms. Brandt-Hawley and her law 

firm, Brandt-Hawley Law Group.4 The petition alleged two causes of action, 

4 Ms. Brandt-Hawley is a most experienced attorney, described in the 

opening brief this way: “Susan Brandt-Hawley has been a California 

attorney for more than 40 years. [Citation.] She is currently an elected 

member of the California Academy of Appellate Lawyers [citation], and since 

1999, she has served as an invited co-faculty member on CEQA for the 

Center for Judicial Education and Research and the California Judicial 

Studies Program. [Citation.] Brandt-Hawley has successfully represented 
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styled in bold-face as follows: (1) “violations of [CEQA],” and (2) “violations of 

the Town Municipal Code.” The second cause of action, though entitled 

“Municipal Code,” also included a claimed violation of the “General Plan,” 

both claimed violations conclusorily described in a total of six-lines, failing to 

identify any provision of the Municipal Code or the General Plan. Shortly 

thereafter, Ms. Brandt-Hawley filed a verified First Amended Petition that,

while adding slightly more detail to the allegations, still failed to clearly state 

the claimed bases for the second cause of action. 

On October 25, on behalf of the Jenkinses, attorney Rick Jarvis sent 

Ms. Brandt-Hawley a five-page, single-spaced letter that he called a “meet 

and confer” letter under Code of Civil Procedure sections 128.5 and 128.7, 

asserting that in his view the writ petition was frivolous, stating that “the 

claims asserted appear to be completely without merit and presented 

primarily or solely for the improper purpose of harassing [the Jenkinses] 

(e.g., intending that the cost of litigation will dissuade them from 

proceeding).” Mr. Jarvis’s letter specifically identified no fewer than

10 problems with the petition, including these:

• That the home of plaintiff Mellin (built in 1911) had been 

substantially remodeled without any historical impact analysis, 

and that a home at 132 Woodland (which also appeared on the 

1980s inventory) had recently “had its entire exterior removed 

and [was] in the process of being redeveloped without any historic 

analysis”;

• That the Jenkinses’s new home would be consistent with other 

homes in the neighborhood;

public interest groups in CEQA litigation, with a particular focus on historic 

preservation issues. [Citation.]” An impressive record indeed.
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• That the neighbors’ objections to the project were ever-changing, 

but, in their latest form, were impossible as a matter of 

engineering;

• That the Town had wide discretion to approve the project and 

had clearly done so based on substantial evidence;

• That the Town had found, based on the evidence presented, that 

“the structure does not rise to local historic status and does not 

have significant historic, cultural, or aesthetic value”;

• That the standard of review was “substantial evidence,” and that 

the petition’s contention that a “fair argument” supported 

Ms. Brandt-Hawley’s clients’ position in administrative 

proceedings could not possibly support the claims in her lawsuit;

• That the Page & Turnbull study constituted “substantial 

evidence” supporting the Town’s findings of insufficient “local 

historical status” and “historic, cultural, or aesthetic value,” as 

did the report and recommendations of the Planning Commission 

staff;

• That the verified allegation that the Planning Director 

“recommended” an independent study other than the

Page & Turnbull report was a misrepresentation: that the 

Director had instead merely stated that the Town had the 

alternative of requesting an independent study;

• That the “mitigation measures” argument for the application of 

CEQA had never been raised in the underlying administrative 

proceedings, which foreclosed her from presenting it in the trial 

court; and
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• That even if the claim had been raised in the administrative 

proceedings, “an unbroken line of CEQA caselaw establishes that 

visual impacts to neighboring properties are not environmental 

impacts subject to CEQA in the first place,” citing Association for 

Protection of Environmental Values v. City of Ukiah (1991) 

2 Cal.App.4th 720, 734; Mira Mar Mobile Community v. City of 

Oceanside (2004) 119 Cal.App.4th 477, 492; and Eureka Citizens 

for Responsible Growth v. City of Eureka (2007) 147 Cal.App.4th 

357, 376.

Mr. Jarvis’s letter ended with this paragraph: “Thus, the allegations in 

your amended petition, taken together with the surrounding circumstances of

this project, leave both me and my clients with the strong impression that the 

present action is frivolous and improperly harassing. Indeed, in my over 

25 years of litigating CEQA actions, I cannot recall handling a CEQA 

challenge that appeared this meritless. My clients request that Petitioners 

reconsider their current course of action and dismiss this lawsuit, with an 

agreement that all parties will bear their own costs.” 

Ms. Brandt-Hawley did not respond in writing to Mr. Jarvis’s letter. In 

a later filed declaration she would say she had “telephone conversations with 

[Mr. Jarvis] why [she] held a different legal opinion”—never, we might add, 

saying anything about any of the facts.

On December 26, Mr. Jarvis filed an answer on behalf of the Jenkinses, 

which answer also asserted that the petition was meritless as a matter of fact 

and a matter of law. Among other things, the answer alleged as a sixth 

affirmative defense estoppel, that Mellin, her predecessors, and other 

neighbors had substantially redeveloped homes without any CEQA review or 

historic analysis (despite that many, including 132 Woodland, appeared on 
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the 1980s inventory that Ms. Brandt-Hawley relied on to support much of her 

case), and that Ms. Brandt-Hawley’s “historic resource concerns” had not 

been raised before the Planning Commission, but had instead been raised for 

the first time before the Town Council, in a last-ditch effort to stop or delay 

the Jenkinses’s project. The seventh affirmative defense, styled “frivolous 

action,” asserted that the lawsuit was frivolous under Code of Civil Procedure 

sections 128.5 and 128.7. 

Ms. Brandt-Hawley filed her brief on the petition, asserting three main 

arguments in this order: (1) the approval of the project violated Town 

Municipal Code section 10-3.1305(e); (2) the approval of the project violated 

provisions of the Town’s General Plan stating a policy of preserving 

historically and significant structures; and (3) the Town had incorrectly 

approved the project based on its conclusion that the project was categorically 

exempt from CEQA while adopting “mitigation measures” that foreclosed a 

categorical exemption. 

The petition came on for hearing before Judge Sweet, who on April 22, 

filed his order, a comprehensive 33-page ruling denying the petition. The 

order began with an exhaustive 15-page discussion of the background. Then, 

after setting forth the standard of review, Judge Sweet began with 

preliminary observations, including these: Referring to the Jenkinses’s 

argument that it was Ms. Brandt-Hawley’s “burden to affirmatively show 

there was no substantial evidence in the entire record to support the Town’s 

findings and conclusions,” Judge Sweet noted that Ms. Brandt-Hawley was 

required to “lay out the evidence favorable to the other side and show why it 

is lacking,” and that “[f]ailure to do so is fatal.” And he went on to note,

“[e]xcept for brief references to expressions by councilmembers [of] differing 

views on the issue of historical significance [citation], petitioners do not [lay] 
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out all the evidence in the record that supports the Town’s findings; e.g., the 

opening brief does not summarize the evidence in the HRE or in the Planning 

Commission staff reports which found the house is not historically 

significant.”

Judge Sweet then went on to deny the petition on the merits, with 

these three fundamental conclusions:

(1) He rejected Ms. Brandt-Hawley’s reading of the Town Municipal 

Code section 10-3.1305(e), holding that the plain language of that section 

made a finding of hardship optional. 

(2) He rejected Ms. Brandt-Hawley’s argument as to the General 

Plan, holding that the HRE, the Planning Commission staff report, and the 

finding that the old house “[did] not rise to local historic status and [did] not 

have significant historic, cultural or aesthetic value” were substantial 

evidence that requirements of the General Plan had been satisfied. 

(3) He rejected Ms. Brandt-Hawley’s CEQA argument, holding that 

it had not been raised in the administrative proceedings; that Ms. BrandtHawley had repeatedly not supplied any record reference for her argument or 

pointed to any discussion showing the Town was aware of the nature of her 

“mitigation measures” argument; and that her proposed rule would “nullify 

the exhaustion of remedies requirement.” Beyond all that, he noted that if he 

“were to reach the merits of this claim, the court would find the measures at 

issue are not mitigation measures required by CEQA,” but rather design 

features and components of the project itself not subject to CEQA.

Judge Sweet stayed his order until April 25. But instead of appealing 

or filing a motion to stay in that time, on May 29 Ms. Brandt-Hawley filed a 

notice of appeal. Then, in mid-June, after hearing that the Jenkinses had 

received a demolition permit, she filed a petition for writ of supersedeas 
16

seeking an emergency stay, a petition that did nothing more than reargue the 

arguments rejected below, giving short shrift—one sentence—to Judge 

Sweet’s comprehensive order. Following correspondence from Mr. Jarvis, 

Ms. Brandt-Hawley withdrew the petition that same day. On August 12, Ms. 

Brandt-Hawley offered to dismiss the appeal if the Jenkinses would “waive[] 

recovery of their fees and costs.” The Jenkinses declined. On September 6—

the day her opening brief was due—Ms. Brandt-Hawley voluntarily 

dismissed the appeal. 

The Jenkinses File Suit For Malicious Prosecution

On September 30, the Jenkinses filed a complaint naming as 

defendants Ms. Brandt-Hawley and her firm, Brandt-Hawley Law Group

(when referred to collectively, Brandt-Hawley). It alleged one cause of action, 

for malicious prosecution.

On February 9, 2021, Brandt-Hawley filed a special motion to strike 

the complaint under Code of Civil Procedure section 425.16 (SLAPP or antiSLAPP motion). Brandt-Hawley also filed a request for judicial notice 

seeking judicial notice of the register of actions in Save Historic San 

Anselmo v. Town of San Anselmo (Super. Ct. Marin County, 2018, No. 2826), 

including 986 pages from the administrative record. 

The SLAPP motion was accompanied by two declarations of: (1) Jeff 

Kroot, one of the members of Save Historic San Anselmo, and (2) Ms. BrandtHawley. Ms. Brandt-Hawley’s declaration began with four pages of her 

“professional background,” which included testimony describing her

reputation, her awards, her teaching, and her experience; it also included a 

listing of 23 reported cases she handled in the California Supreme Court and 

various Appellate Courts. There followed her description of her 

“Representation of Save Historic San Anselmo and Dr. Laurel Mellin.” And 
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the declaration ended with five pages, containing 10 paragraphs, under the 

heading “Probable Cause Supported the Litigation.” 

On April 22, the Jenkinses filed their opposition, which included four 

declarations of: Charles Jenkins, Ellen Jenkins, Mr. Jarvis, and Jennifer L. 

Hernandez, the last person an attorney in private practice with more than 

30 years of experience in the practice of land and environmental law. The 

Jenkinses also filed a request for judicial notice of 10 exhibits, consisting of 

over 700 pages. 

Mr. Jenkins’s declaration testified he had reviewed the petition and 

amended petition that “Ms. Brandt-Hawley personally verified . . . under 

penalty of perjury,” which petitions “were misleading as to material facts.” 

As we discuss in some detail below, Mr. Jenkins went on to list nine specific 

passages that he testified were “misleading.” Mr. Jenkins also testified that 

Ms. Brandt-Hawley “made material misrepresentations at the hearing on the 

writ petition,” going on to identify five specific misrepresentations. 

On April 28, Brandt-Hawley filed a reply memorandum and also a 

declaration of Paul Clifford, an attorney representing them. There was no 

supplemental declaration from Ms. Brandt-Hawley—nothing taking issue 

with anything said in Mr. Jenkins’s declaration.

The anti-SLAPP motion came on for hearing on May 12, before the 

Honorable James Chou, prior to which he had issued a tentative ruling 

denying the motion. At the conclusion of the hearing, Judge Chou adopted 

his tentative ruling and thereafter filed an order formally adopting the 

tentative ruling, attached to which was a detailed, 20-page analysis 

explaining his ruling, which concluded the Jenkinses had met their burden 

under step two of the anti-SLAPP analysis, demonstrating a probability of 

prevailing on their claim for malicious prosecution. As to the issue of 
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probable cause, Judge Chou examined each of the three claims against the 

Jenkinses separately, and concluded the Jenkinses had satisfied their burden 

of showing a probability of success, demonstrating that two of the claims, 

those regarding the Municipal Code and CEQA, were legally untenable. He 

also found that the Jenkinses had met their burden on the issue of malice.5

On June 7, Brandt-Hawley filed a notice of appeal. 

DISCUSSION

The Law of Anti-SLAPP

In Lanz v. Goldstone (2015) 243 Cal.App.4th 441 (Goldstone), we 

addressed an appeal in a setting identical to that here: plaintiff filed a 

complaint that alleged one count for malicious prosecution; defendant filed an 

anti-SLAPP motion; the trial court denied it, concluding that plaintiff had 

met his burden of probability of success; and defendant appealed. In short, 

the setting in Goldstone was identical to that here, and provides a perfect 

template for our analysis, and we thus begin with extensive quotation from 

Goldstone, with minor edits to accommodate the setting here:

“SLAPP Law and the Standard of Review

“Subdivision (b)(1) of section 425.16 of the Code of Civil Procedure 

provides that ‘[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 

5 Judge Chou found against the Jenkinses on the issue of probable 

cause as to the claim based on the general plan; he also granted the requests 

for Judicial Notice and sustained Ms. Brandt-Hawley’s objection to the 

Hernandez declaration. 
19

the plaintiff will prevail on the claim.’ Subdivision (e) of section 425.16 

elaborates the four types of acts within the ambit of a SLAPP.

“A two-step process is used for determining whether an action is a 

SLAPP. First, the court decides whether the defendant has made a threshold

showing that the challenged cause of action is one arising from protected

activity, that is, by demonstrating that the acts underlying the plaintiff’s

complaint fit one of the categories spelled out in Code of Civil Procedure

section 425.16, subdivision (e). If the court finds that such a showing has

been made, it must then determine the second step, whether the plaintiff has

demonstrated a probability of prevailing on the claim. (Navellier v.

Sletten (2002) 29 Cal.4th 82, 88 (Navellier).)

“Here, the parties agreed that the [Jenkinses’s] malicious prosecution

case came within the first step of the anti-SLAPP analysis. (See Daniels v.

Robbins (2010) 182 Cal.App.4th 204, 215 [‘The plain language of the antiSLAPP statute dictates that every claim of malicious prosecution is a cause of

action arising from protected activity because every such claim necessarily

depends upon written and oral statements in a prior judicial proceeding’].)

“So, . . . [Judge Chou’s] analysis addressed only the second step in the

SLAPP analysis, as will we. And as to how we decide that step, we set forth

the governing law in Grewal v. Jammu (2011) 191 Cal.App.4th 977, 989–990

(Grewal):

“ ‘We decide the second step of the anti-SLAPP analysis on

consideration of “the pleadings and supporting and opposing affidavits

stating the facts upon which the liability or defense is based.” (§ 425.16,

subd. (b).) Looking at those affidavits, “[w]e do not weigh credibility, nor do

we evaluate the weight of the evidence. Instead, we accept as true all

evidence favorable to the plaintiff and assess the defendant’s evidence only to
20

determine if it defeats the plaintiff’s submission as a matter of law.”

(Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688,

699–700.)

“ ‘That is the setting in which we determine whether plaintiff has met

the required showing, a showing that is “not high.” (Overstock.com, Inc. v.

Gradient Analytics, Inc., supra, 151 Cal.App.4th at p. 699.) In the words of

the Supreme Court, plaintiff needs to show only a “minimum level of legal

sufficiency and triability.” (Linder v. Thrifty Oil Co. (2000) 23 Cal.4th 429,

438, fn. 5.) In the words of other courts, plaintiff needs to show only a case of

“minimal merit.” (Peregrine Funding, Inc. v. Sheppard Mullin Richter &

Hampton LLP (2005) 133 Cal.App.4th 658, 675, quoting Navellier[, supra,]

29 Cal.4th 82, 95, fn. 11.)

“ ‘. . . As the Supreme Court early on noted, the anti-SLAPP statute

operates like a “motion for summary judgment in ‘reverse.’ ” (College

Hospital, Inc. v. Superior Court (1994) 8 Cal.4th 704, 719.) Or, as that court

would later put it, “Section 425.16 therefore establishes a procedure where

the trial court evaluates the merits of the lawsuit using a summaryjudgment-like procedure at an early stage of the litigation. [Citation.]”

(Varian Medical Systems, Inc. v. Delfino [(2005)] 35 Cal.4th [180,] 192;

accord, Taus v. Loftus (2007) 40 Cal.4th 683, 714.)

“ ‘Numerous Courts of Appeal have articulated the test in similar

language. (See Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049,

1062 [“a standard ‘similar to that employed in determining nonsuit, directed

verdict or summary judgment motions’ ”]; Yu v. Signet Bank/Virginia (2002)

103 Cal.App.4th 298, 317 [“plaintiff’s burden as to the second prong of the

anti-SLAPP test is akin to that of a party opposing a motion for summary

judgment”][, disapproved on another ground in Newport Harbor Ventures,
21

LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 646]; Kyle v.

Carmon (1999) 71 Cal.App.4th 901, 907 [“similar to the standard used in

determining motions for nonsuit, directed verdict, or summary judgment”].)’

(Grewal, supra, 191 Cal.App.4th at pp. 989–990.)

“With those principles in mind, we turn to an analysis of whether [the

Jenkinses] established a probability that [they] will prevail on [their] claim

for malicious prosecution, an analysis we make on de novo review. (Grewal,

supra, 191 Cal.App.4th at p. 988.)” (Lanz v. Goldstone, supra,

243 Cal.App.4th at pp. 456–458.)

The Jenkinses Demonstrated a Probability of Prevailing on 

Their Claim for Malicious Prosecution

The Law of Malicious Prosecution

“To establish a cause of action for the malicious prosecution of a civil

proceeding, a plaintiff must plead and prove that the prior action (1) was

commenced by or at the direction of the defendant and was pursued to a legal

termination in his, plaintiff’s, favor [citations]; (2) was brought without

probable cause [citations]; and (3) was initiated with malice [citations].”

(Bertero v. National General Corp. (1974) 13 Cal.3d 43, 50 (Bertero); see CACI

No. 1501.)

Bertero went on to explain the two reasons why malicious prosecution

is actionable: “The malicious commencement of a civil proceeding is

actionable because it harms the individual against whom the claim is made,

and also because it threatens the efficient administration of justice. The

individual is harmed because he is compelled to defend against a fabricated

claim which not only subjects him to the panoply of psychological pressures

most civil defendants suffer, but also to the additional stress of attempting to

resist a suit commenced out of spite or ill will, often magnified by slanderous

allegations in the pleadings.” (Bertero, supra, 13 Cal.3d at pp. 50−51.) And
22

“[t]he judicial process is adversely affected by a maliciously prosecuted cause

not only by the clogging of already crowded dockets, but by the unscrupulous

use of the courts by individuals ‘. . . as instruments with which to maliciously

injure their fellow men.’ ” (Id. at p. 51.)

Bertero contains one other principle apt here, that if the underlying 

action contains more than one claim, each claim must be based on probable 

cause. (Bertero, supra, 13 Cal.3d at p. 57; accord, Crowley v. Katleman (1994) 

8 Cal.4th 666, 695; Sierra Club Foundation v. Graham (1999) 72 Cal.App.4th 

1135, 1152−1153.) Put slightly differently, a malicious prosecution cause of 

action can succeed if any of the claims was brought without probable cause. 

Here, there is no issue of element one, favorable termination. The 

issues are with elements two and three: “without probable cause” and 

“malice.”

Without Probable Cause

“If there is ‘ “no dispute as to the facts upon which an attorney acted in

filing the prior action, the question of whether there was probable cause to

institute that action is purely legal.” [Citation.] “The resolution of that

question of law calls for the application of an objective standard to the facts

on which the defendant acted.” [Citation.]’ (Daniels v. Robbins, supra,

182 Cal.App.4th at p. 222.) So, it is often said that ‘the existence or absence

of probable cause has traditionally been viewed as a question of law to be

determined by the court, rather than a question of fact for the jury. . . .

[¶] . . . [It] requires a sensitive evaluation of legal principles and precedents,

a task generally beyond the ken of lay jurors . . . .’ (Sheldon Appel Co. v.

Albert & Oliker (1989) 47 Cal.3d 863, 875 (Sheldon Appel).)

“On the other hand, when there is a dispute as to the state of the

defendant’s knowledge and the existence of probable cause turns on
23

resolution of that dispute, there becomes a fact question that must be

resolved before the court can determine the legal question of probable cause.

(See Sheldon Appel, supra, 47 Cal.3d at p. 881 [‘[T]he jury must determine

what facts the defendant knew . . .’].)” (Lanz v. Goldstone, supra,

243 Cal.App.4th at p. 462.)

As noted, Judge Chou found that the Jenkinses demonstrated a 

probability of prevailing on the issue of lack of probable cause as to two of Ms. 

Brandt-Hawley’s claims, that the Municipal Code and CEQA claims were 

legally untenable. Our de novo review leads to the same conclusion.

The claim in the petition was that the Town violated section 10-3.1305 

of the Municipal Code, which provides that before issuing a demolition 

permit, the Town “must” find that the proposed use will not have certain 

specified detrimental results. In support of the petition, Ms. Brandt-Hawley 

argued that the Code also required compliance with section 10-3.1305(e),

which provides in its entirety as follows: “Demolitions of Commercial, 

Professional, and/or Residential Dwelling Structures: The Town will 

encourage the preservation, maintenance, restoration, rehabilitation, moving 

or continued use of all structures of historic, cultural, or aesthetic value. The 

granting or denying of a conditional use permit for the demolition of 

structures may also be subject to the following findings based on substantial 

evidence as determined by the Planning Commission or Town Council.

“(1) Failure to approve a demolition permit will cause immediate and 

substantial hardship because of the conditions peculiar to a particular 

structure, and such hardship has not been created by an act of the owner in 

anticipation of action under this chapter. Examples of hardship include 

health and safety hazards that cause the building to be unsafe. Personal, 
24

family, financing difficulties, loss of prospective profits and neighboring

violations are not justifiable hardships.

“(2) It is necessary to reveal previous architectural features covered up, 

such feature that would be functionally and aesthetically compatible with the 

existing improvements and the natural elements of the area.” 

The argument is very wrong. 

Municipal Code, section 10-3.1305(a) provides that before issuing a 

demolition permit, the Town “must” find that the proposed use will not have 

certain specified detrimental results. The Town did that here. While section 

10-3.1305(e) identifies further findings that the Town “may also” make when 

approving a demolition permit, a permissive phrasing that “may also” leave 

the Town with discretion to identify further findings. In short, section 10-

3.1305(e) makes an “immediate and substantial hardship” finding optional. 

(See Great Lakes Properties, Inc. v. El Segundo (1977) 19 Cal.3d 152, 155.)

As Judge Chou summed up: the Jenkinses argued, and Judge Sweet 

agreed, that the hardship language was permissive, not mandatory, given the 

use of the words “may also be subject to the following findings . . . . [¶] 

Defendants contended they had probable cause to make their argument 

because the quoted ‘may also’ sentence was not even part of the record and 

was not included in the Town’s findings. To the contrary, Defendants argue, 

Town staff stated in its report that the special finding ‘must be made’ in this 

case ‘for the demolition of the existing structure.’ [¶] The court finds that 

[the Jenkinses] have satisfied their burden of showing a probability of success 

on their claim as it pertains to this ground asserted by defendants in the writ 

petition, and which defendants continued to pursue in their writ of 

supersedeas. The language of section 10-3.1305(e) is permissive, making the 

hardship finding discretionary rather than mandatory.” 
25

Even if section 10-3.1305(e) were ambiguous—and it is not—any 

reasonable attorney would know that Brandt-Hawley’s interpretation would 

be rejected. It would be unreasonable—and arbitrary—for the Town to 

prevent itself from ever issuing demolition permits absent “immediate and 

substantial hardship,” no matter the circumstances. (See Commission on 

Peace Officer Standards & Training v. Superior Court (2007) 42 Cal.4th 278, 

297−298.) It would also be inconsistent with the rest of the statute, which 

uses “must,” rather than “may,” when referring to mandatory filings. (See 

City of San Jose v. Superior Court (2017) 2 Cal.5th 608, 606−617 [courts 

consider entire statute and give “significance to every word”].)

Superimposed on all the above is that the Town’s interpretation of its 

own Municipal Code was “entitled to considerable deference.” (Citizens for 

Responsible Equitable Environmental Development v. City of San Diego 

(2010) 184 Cal.App.4th 1032, 1047.) Brandt-Hawley’s failure to demonstrate 

that the Town had ever required a showing of “immediate and substantial 

hardship” before approving a demolition permit also undermined her claim. 

On top of all that, Ms. Brandt-Hawley’s briefing on the issue never 

quoted the actual text of subdivision (e). Instead, she misleadingly referred 

the trial court to AR 7 (administrative record), a summary of subdivision (e)

referenced in the Town’s findings, which summary omitted the word “may.” 

Such failure to present the record fairly supports the inference that 

Ms. Brandt-Hawley knew the claim was untenable.

But the failure to present the record fairly extended to other items as 

well. For example, the briefing also made multiple misleading statements, 

including that Planning Director Simonian had been critical of the HRE, even 

though the Planning Director had also said the HRE seemed “thorough and 

complete.” The brief asserted that “there is no question that the Town 
26

Council was fully informed not just of ‘generalized’ environmental concerns 

but of residents’ specific objections both to the categorical exemption and to 

the project’s environmental impacts based in part on inadequate mitigation 

for visual impacts and grading.” Yet the brief cited nothing—and the record 

said otherwise.6 

Turning to the cause of action in the petition for violations of CEQA, 

the Jenkinses met their burden on it as well, beginning with the 

demonstration that the claim would run afoul of established CEQA law

requiring exhaustion of administrative remedies. Public Resources Code 

section 21177 provides that a CEQA petitioner may not challenge a project 

“unless the alleged grounds for noncompliance . . . were presented to the 

public agency orally or in writing by any person during the public comment 

period provided by this division or before the close of the public hearing on 

the project before the issuance of the notice of determination.” 

(Pub. Resources Code, § 21177, subd. (a).) This principle is not only codified, 

it exists through case law as well. (Tomlinson v. County of Alameda (2012) 

6 Some mistreatment of the record continued on appeal, as BrandtHawley’s opening brief asserts that “the Town did not file a single brief in the 

underlying litigation, nor did it join in the Respondents’ briefing” and that 

the Jenkinses’s opposition brief in the underlying litigation was filed “with no 

joinder from the Town.” 

The Jenkinses’s brief called Brandt-Hawley on that, citing to the fact 

that the Town Council, respondents in the petition, did in fact join the 

Jenkinses in opposition to the petition—indeed, that Ms. Brandt-Hawley

even included that “joinder” brief by the Town in the Appellant’s Appendix. 

Furthermore, Town attorney Benjamin Stock attended the proceedings before 

Judge Sweet, making clear that the Town supported the Jenkinses’s position 

in the petition. 

Brandt-Hawley’s reply brief attempts to explain how the misstatement 

came about, and in any event apologizes for the error. 
27

54 Cal.4th 281, 291 [section 21177, subdivision (a)’s exhaustion-ofadministrative-remedies requirement “applies to a public agency’s decision 

that a proposed project is categorically exempt from CEQA compliance”]; 

Bridges v. Mt. San Jacinto Community College. Dist. (2017) 14 Cal.App.5th 

104, 116.)

To satisfy the exhaustion doctrine, objections cannot be generalized or 

unelaborated, but rather must be “specific” and involve the “exact issue.” As 

our colleagues in Division One put it, “the requirement of exhaustion is a 

jurisdictional prerequisite,” and “[t]he purposes of the doctrine are not 

satisfied if the objections are not sufficiently specific so as to allow the Agency 

the opportunity to evaluate and respond to them,” that the “exact issue must 

have been presented to the administrative agency.” (Stop Syar Expansion v. 

County of Napa (2021) 63 Cal.App.5th 444, 453−459, citations and internal 

quotation marks omitted; North Coast Rivers Alliance v. Marin Municipal 

Water Dist. Bd. of Directors (2013) 216 Cal.App.4th 614, 623 [“bland and 

general references to environmental matters, or isolated and unelaborated 

comments do not satisfy” the exhaustion requirement].) Here, Judge Sweet, 

in denying the petition, and Judge Chou, in denying the SLAPP motion, both 

found that the CEQA claim was clearly barred by this requirement. 

As noted, the Town determined that the project fell within a categorical 

CEQA exemption for single-family residences. (See Cal .Code Regs., tit. 14, 

§ 15303, subd. (a); Pub. Resources Code, § 21084, subd. (a).) In the petition, 

Brandt-Hawley argued that an exception to this exemption precluded that 

determination, asserting that the project could not be deemed categorically 

exempt because it was slightly modified to address neighbors’ aesthetic and 

privacy concerns. However, as both Judge Sweet and Judge Chou found, this 

argument is nowhere to be found in the administrative record. As Judge 
28

Sweet put it, “[T]here is nothing in these references that indicates the 

opponents specifically, or even generally, objected to the Town’s finding the 

project is categorically exempt because of the imposition of any mitigation 

measures.” Indeed, Judge Sweet did his own review of the administrative 

record and did not find “any reference where the project opponents 

specifically raised this issue when challenging the Town’s categorical 

exemption finding.” 

Similar to Judge Sweet’s analysis, Judge Chou also found that Ms. 

Brandt-Hawley failed to demonstrate that the CEQA exemption argument 

was raised before the Town and was thus waived. For this reason alone, the 

CEQA claim was legally untenable.

But even if the claim had been preserved, it would still fail because any 

reasonable attorney would conclude that the modifications were not 

“mitigation measures” under CEQA, as they did not meet either part of the 

two-part test required by our Supreme Court in a 2015 case in which 

Ms. Brandt-Hawley was the attorney for plaintiffs—Berkeley Hillside 

Preservation v. City of Berkeley (2015) 60 Cal.4th 1086 (Berkeley Hillside). 

Berkeley Hillside, like here, involved a single-family residence, though 

unlike the simple project here, one involving a 6,478 square-foot home with 

an attached 3,394 square-foot 10-car garage situated on a steep slope in a 

heavily wooded area. The plan was supported by neighbors, by the City of 

Berkeley Planning and Development, and by the City Council. And the City 

found the categorical exemption under CEQA for a single-family home 

applied. (Berkeley Hillside, supra, 60 Cal.4th at pp. 1092, 1093–1096.) 

Representing the petitioners, Ms. Brandt-Hawley filed a petition that 

acknowledged the deferential substantial evidence standard of review 

applied, but contended an exception to the categorical exemption also applied 
29

because the project might result in significant environmental impacts due to 

“unusual circumstances.” 

The trial court denied the petition. It first concluded that the 

administrative record contained substantial evidence to support the City’s 

application of the small-structures categorical exemptions. It next found that 

the unusual circumstances exception (Cal. Code Regs, tit. 14, § 15300.2, 

subd. (c) (Guidelines)) did not preclude application of those categorical 

exemptions because, notwithstanding evidence of potential significant 

environmental effects, the proposed project did not present any unusual 

circumstances. The Court of Appeal reversed. Citing to “substantial 

evidence of a fair argument that the proposed project may have a significant 

environmental impact,” the court held that the exemptions the City invoked 

did not apply, that “ ‘the fact that the proposed activity may have an effect on 

the environment is itself an unusual circumstance’ that triggers the 

exception.” (Berkeley Hillside, supra, 60 Cal.4th at pp. 1092−1093, 1096.)

The Supreme Court reversed, concluding that neither the trial court 

nor the appellate court had correctly analyzed whether unusual 

circumstances precluded the application of categorical exceptions. (Berkeley 

Hillside, supra, 60 Cal.4th at p. 1093.) And the Court established the twopart test to determine whether the “unusual circumstances exception” applies 

precluding a categorical exemption: under the agency-deferential substantial 

evidence standard, the petitioner must establish an “unusual circumstance” 

by showing that a project “has some feature that distinguishes it from others 

in the exempt class, such as its size or location”; and if “unusual 

circumstances” are present, the petitioner must also establish that the 

unusual circumstance gives rise to a “reasonable possibility that the activity 

will have a significant effect on the environment.” (Id. at p. 1105.)
30

Brandt-Hawley fails to come close to meeting Berkeley Hillside’s first 

burden, showing that no substantial evidence supported the Town’s 

exemption decision, let alone the second, “significant effect on the 

environment.” Ms. Brandt-Hawley has never described a substantial 

environmental impact that would be caused by the project, not in the 

petition, not in the anti-SLAPP motion—and not here. 

Construction of a “single-family residence” constitutes a categorical 

exemption from CEQA, and one challenging the applicability of this 

exemption must overcome the heavy burden of establishing that there is no 

substantial evidence supporting it, something that Brandt-Hawley was 

necessarily aware of based on her general experience with CEQA, as well as 

her specific experience in Berkeley Hillside. The record here is filled with 

substantial evidence in support of the Town’s determination that the 

Jenkinses’s single-family residence would be categorically exempt from 

CEQA, including, for example the Page & Turnbull study, the Town’s 

numerous reports and recommendations, and the opinion of Planning 

Director Simonian.7

The above supports the inference that Ms. Brandt-Hawley knew the 

claims in the petition were untenable, especially given her extensive CEQA 

and land use law experience and the law from Berkeley Hillside. Despite 

this, she filed the petition, and pushed on in the face of the detailed letter 

7 The Jenkinses argue that Judge Chou erred in his holding that there 

was probable cause for the claim based on the General Plan, and that this 

part of his order should be reversed. We do not consider the argument as it is 

misplaced, the Jenkinses having not filed a cross-appeal. (See Preserve 

Poway v. City of Poway (2016) 245 Cal.App.4th 560, 585 [“To obtain relief by 

way of appeal, respondents must themselves file a notice of appeal and 

become cross-appellants”].)
31

from Mr. Jarvis. Then, and despite that that petition was easily rejected by 

Judge Sweet, she nevertheless appealed, then filed a supersedeas petition 

(which she immediately dismissed), thereafter pressed for a waiver of fees 

and costs, ultimately to dismiss the appeal. 

The remaining issue is whether the Jenkinses showed a probability of 

prevailing on the third element of their malicious prosecution claim—malice. 

Like Judge Chou, we conclude they did.

Malice

Malice in connection with malicious prosecution “ ‘relates to

the subjective intent or purpose with which the defendant acted . . . .’ ”

(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 292 (Soukup).

As an earlier Supreme Court case put it, the malice required “is not limited to

actual hostility or ill will toward plaintiff but exists when the proceedings are

instituted primarily for an improper purpose” (Albertson v. Raboff (1956)

46 Cal.2d 375, 383, superseded by statute on other grounds as stated in La

Jolla Group II v. Bruce (2012) 211 Cal.App.4th 461, 473), adding that suits

brought with improper purposes include: “ ‘[T]hose in which (1) the person

initiating them does not believe that his claim may be held valid; (2) the

proceedings are begun primarily because of hostility or ill will; (3) the

proceedings are initiated solely for the purpose of depriving the person

against whom they are initiated of a beneficial use of his property; [or] (4) the

proceedings are initiated for the purpose of forcing a settlement which has no

relation to the merits of the claim.’ ” (Ibid.) In short, malice “ ‘may range

anywhere from open hostility to indifference’ ”; it is not limited to “ ‘ill will

toward plaintiff but exists when the proceedings are [prosecuted] primarily

for an improper purpose.’ ” (Soukup, supra, 39 Cal.4th at p. 292.)
32

Since malice concerns mental state, it necessarily presents a question

of fact. (Sheldon Appel, supra, 47 Cal.3d at p. 874.) Particularly apt here, a

SLAPP case with its reverse summary judgment analysis, is this observation

by the dissenting justice in Crowley v. Katleman, supra, 8 Cal.4th at p. 696

(dis. opn. of Arabian, J.): “malice is such a highly factual issue that it often

precludes summary disposition.”

Likewise pertinent are the cases recognizing that the evidence 

supporting malice is usually circumstantial (HMS Capital, Inc. v. Lawyers 

Title Co. (2004) 118 Cal.App.4th 204, 218), a recognition demonstrated by the 

many cases that have denied anti-SLAPP motions in malicious prosecution 

cases based on evidence that a party pursued, or continued to pursue, a case 

after learning it was untenable. (See, e.g., Area 55, LLC v. Nicholas & 

Tomasevic, LLP (2021) 61 Cal.App.5th 136, 169−171; Golden State Seafood, 

Inc. v. Schloss (2020) 53 Cal.App.5th 21, 38−39; Cuevas-Martinez v. Sun Salt 

Sand, Inc. (2019) 35 Cal.App.5th 1109, 1122; Olivares v. Pineda (2019) 

40 Cal.App.5th 343, 356−357; Medley Capital Corp. v. Security National

Guaranty, Inc. (2017) 17 Cal.App.5th 33, 48−50.)

And also pertinent are the cases holding that lack of probable cause 

may be relevant on the issue of malice, though it is not by itself enough. 

(Dunning v. Clews (2021) 64 Cal.App.5th 156, 177 (Dunning) [“While a lack of 

probable cause is relevant to the issue of malice, it is insufficient, standing 

alone, to support a finding of malice”].) 

Here, lack of probable cause does not stand alone. The record contains 

abundant other evidence, including this:

Shortly after filing the amended writ petition, Ms. Brandt-Hawley was 

confronted by the accusations in Mr. Jarvis’s lengthy letter, and responded 

only orally, that at some unidentified time she “explained in telephone 
33

conversations . . . why I held a different legal opinion.” Notably, nothing was 

said about the facts laid out by Mr. Jarvis. This is indifference. (Soukup, 

supra, 39 Cal.4th at p. 292.)

As alluded to above, in his declaration Mr. Jenkins pointed to 

numerous statements by Ms. Brandt-Hawley in the writ petition that he said 

were “misleading as to material facts,” going on to specify nine examples, 

including the following (all citations omitted):

“At page 1, lines 13−15, she states that the existing one-story house at 

260 Crescent Road was ‘one of the first houses built in San Anselmo.’ 

[Citation.] In fact, there are many San Anselmo houses that were built 

earlier than 1908, which is the year the 260 Crescent house was built. 

[Citation.]

“At page 2, lines 2−4, she states: ‘[t]o accommodate the Jenkins’[s] 

proposal for a new home, the Town Council issued its first-ever approval for 

demolition of an over-100-year-old structure in its historic Seminary 

neighborhood. . . .’ [Citation.] This too was demonstrably false. Planning 

Director Elise Simonian had identified about twelve vintage houses the Town 

had previously approved to be demolished and replaced with new 

construction, without first preparing an Historic Resource Evaluation, 

including eight that were identified by the Inventory as eligible for listing for 

local historic status. [Citation.] [¶] . . . [¶] 

“At page 2, lines 13-14, she states ‘[t]he Council also recognized need 

for, and imposed, mitigation measures that now defeat the exemption.’ 

[Citation.] Again, the trial court found the CEQA exemption was not before 

the Court and the referenced mitigation measures were conditions of 

approval that do not defeat the exemption. [Citation.]
34

“At page 3 at lines 8-11, she states ‘Laurel Mellin objected to the 

Town’s approval of the 260 Crescent Road project and exhausted 

administrative remedies and acquired standing on behalf of herself and the 

later-formed group.’ [Citation.] The trial court specifically ruled, based on 

the record presented, that Ms. Brandt-Hawley’s client(s) did not exhaust 

administrative remedies and therefore waived their arguments resisting the 

CEQA categorical exemption. [Citation.]

“At page 6, line 12 and again at page 8, line 11, Ms. Brandt-Hawley 

injects as ‘fact’ a statement that finds no support in the record—that the 

house at issue was a ‘historic’ house and that the house ‘qualifies as historic 

under the General Plan Policy 6.1.’ [Citation.] Again, there is nothing in the 

record to support this and the trial court pointed out that this was not the 

case. [Citation.]

“At page 5, lines 10-12, she states ‘[a]bsent the relief prayed for, the 

project will proceed with significant irreparable and irreversible 

environmental impacts to the town’s environment and its residents.’ 

[Citation.] There were no environmental impacts associated with this 

project. [Citation.]” 

Mr. Jenkins also referred to the hearing on the petition, where he 

claimed Ms. Brandt-Hawley misrepresented the facts in her argument before 

Judge Sweet, identifying five specific misrepresentations.

As noted, Ms. Brandt-Hawley did not respond to any of Mr. Jenkins’s 

charges. Again, indifference.

But it was not only Mr. Jarvis or Mr. Jenkins who said Ms. BrandtHawley failed to state the record fairly or accurately. As Judge Chou 

summed it up in his conclusion on the issue: “Plaintiffs contend that 

Defendants knew their claims were untenable given their background and 
35

expertise but continued to pursue them anyway, Plaintiffs’ counsel advised 

Defendants four times that their arguments were frivolous, Defendants’ 

failure to present the record fairly supports a finding they knew their claims 

were untenable, Defendants made misleading arguments, Defendants filed 

and swiftly dismissed the Writ of Supersedeas, and Defendants maintained 

their appeal for three months and offered to dismiss the appeal only if 

Plaintiffs agreed to waive any claim to fees and costs.” “Failure to present 

the record fairly.” Making “misleading arguments.” That is more evidence of 

malice. 

Ms. Brandt-Hawley’s lengthy declaration in support of the anti-SLAPP 

motion describes what she did before filing the petition, including that she 

reviewed the “project related documents.” But one thing missing from the 

declaration is any testimony she did any legal research. As the Supreme 

Court has recognized, where a case is brought without probable cause—as 

here—“the extent of [an] attorney’s investigation and research may be 

relevant to the further question of whether or not the attorney acted with 

malice.” (Sheldon Appel, supra, 47 Cal.3d at p. 883.)

On the issue of malice, Brandt-Hawley relies on Dunning and asserts 

this: the “alleged proof [of malice] rests almost entirely on the Jenkins’[s]

assertion that their attorney informed Brandt-Hawley that he believed the 

action was frivolous. They then reason that, because Brandt-Hawley ‘knew’ 

the action lacked merit, her decision to continue litigating and to take routine 

litigation actions demonstrates malice.” As noted, there is much more 

evidence here. And Dunning is easily distinguishable.

Dunning involved a malicious prosecution action brought by the 

developers of a private secondary school against a neighboring ranch and its 

attorneys, after the developers succeeded in having an environmental 
36

challenge to the development project dismissed. The trial court granted the 

defendants’ anti-SLAPP motion. Plaintiffs appealed, and the Court of Appeal 

affirmed in part and reversed in part, holding that the malicious prosecution 

case should have survived the anti-SLAPP motion as to the ranch. However, 

as to the attorney defendants, the Court held there was no prima facie 

showing of malice, on the fundamental basis that the motives of their clients 

would not be imputed to their attorneys. (Dunning, supra, 64 Cal.App.5th at 

p. 176.) The Court also rejected as unsupported the developers’ arguments 

that malice was shown by the settlement negotiations, which, they claimed, 

“ ‘may have been negotiated to wear [the developers] down,’ ” which would 

avoid a “ ‘decision on the merits’ ” and thus reduce the likelihood that the 

ranch would sue the attorneys for malpractice. (Id. at p. 178.) In short, 

Dunning was one Court of Appeal’s de novo review that led it to conclude that 

the sparse record there was “ ‘insufficient as a matter of law to establish 

malice.’ ” (Ibid.) The record here for our de novo review is a far cry. 

Some Observations on the Amicus Briefs

Three amicus briefs were filed in support of Brandt-Hawley, by: 

(1) Remy Moore Manley, LLP, a Sacramento law firm that does CEQA work, 

has litigated extensively with Ms. Brandt-Hawley, and whose partner served 

as “faculty and seminars” with Ms. Brandt-Hawley (the RMM brief); 

(2) Richard M. Frank and Sean B. Hecht, respectively professors at U.C.L.A.

and UC Davis Law schools (the Frank/Hecht brief); and (3) the 

Environmental Law Foundation and Planning Conservation League, a clinic 

at Stanford Law School (the ELF/PCL brief). 

To various extents, the briefs make arguments addressing some issues 

on the merits, arguing things such as the claims in the writ petition were 
37

“tenable,” and had “minimal merit.” These claims were addressed above, and 

nothing more need be said about them here.

The RMM brief asserts that its experience litigating other cases against 

Ms. Brandt-Hawley “undermines the suggestion” she acted with malice here. 

Passing over what might be called admissibility or relevancy issues—what 

Ms. Brandt-Hawley’s conduct in other cases has to do with her conduct 

here—the RMM’s biased comments have nothing to do with the situation 

here.

All three amicus briefs suggest that CEQA-related cases should be in 

essence immune or insulated from malicious prosecution cases, arguing 

things such as CEQA is too “uncertain” and too “complicated” for there ever 

to be a malicious prosecution claim. Nothing is cited in support of any such 

special carve out. 

But not only that, we recently published a 107-page opinion in a CEQA 

case, Tiburon Open Space Committee v. County of Marin (2022) 

78 Cal.App.5th 700, that involved a 43-unit residential development in Marin 

County. Our opinion ended with “closing observations” that included 

citations to, and quotations from, various cases and law review articles that 

described the possible misuse of CEQA actions, and the harm they could 

cause. Among other things we noted that while “CEQA was meant to serve 

noble purposes . . . it can be manipulated to be a formidable tool of 

obstruction.” (Id. at p. 782.)

The Frank/Hetch and ELF/PCL briefs assert that allowing cases like 

that brought by the Jenkinses will chill legislative advocacy and result in 

reduction in court access regarding cases challenging government actions, 

advancing environmental enforcement and justice, and involving novel 

environmental legal claims. We see no such correlation, and those cases, like 
38

all others, should allow for a broad degree of freedom in legitimate CEQA 

advocacy, while also protecting litigation defendants (such as the Jenkinses)

from having to fend off litigation brought without probable cause and malice. 

Along those same lines, the ELF/PCL brief asserts that allowing the 

Jenkinses’s case to proceed will deter private citizen enforcement actions and 

create a barrier to the advancement of environmental justice. Contrary to 

the sweeping alarmist predictions, the Jenkinses’s lawsuit does not preclude 

or deter “public participation” or “[a]ctive citizen involvement” in important 

environmental matters. The Jenkinses did not challenge the administrative 

proceedings, the appeal, or the ability of citizens and individuals to voice 

their concerns during the public comment periods or thereafter. The 

Jenkinses did not name any individual in their lawsuit, nor even the group 

that brought the petition against them. Rather, based on the evidence and 

the law, they named only Brandt-Hawley due to the specific nature of her 

untenable claims—and her apparently deliberate indifference in the petition. 

The ELF/PCL Brief references “environmental” protection and 

regulation, but the Jenkinses’s situation has nothing to do with

environmental protection and everything to do with the privacy and aesthetic 

design concerns of several of the Jenkinses’s neighbors. 

Finally, the Jenkinses’s lawsuit has nothing to do with “disadvantaged 

communities,” “underserved communities,” “marginalized communities,” 

“pollution,” “human health consequences,” or “urban decay,” to name just a 

few of the topics raised in the ELF/PCL brief. To the contrary, we find that 

the description in the Jenkinses’s brief is apt: the petition “here involved a 

group of well-off, ‘NIMBY’ neighbors living in one of the most expensive zip 

codes in the country trying to prevent their fellow neighbor from rebuilding a 

decrepit and dangerous residence on their property because the neighbors 
39

were concerned about privacy and the design aesthetics of the new build. 

[Citation.] It had nothing to do with significant or negative environmental 

effects under CEQA, and the Jenkinses even fell within a clear-cut CEQA 

categorical exemption for single-family residences.” 

DISPOSITION

The order denying the anti-SLAPP motion is affirmed. Respondents 

Charles and Ellen Jenkins shall recover their costs on appeal.
40

_________________________

Richman, J.

We concur:

_________________________

Stewart, P.J.

_________________________

Mayfield, J. *

Jenkins v. Brandt-Hawley (A162852)

*Judge of the Mendocino Superior Court, Judge Cindee Mayfield, 

sitting as assigned by the Chief Justice pursuant to article VI, section 6 of the 

California Constitution.
41

Trial Court: Marin County Superior Court

Trial Judge: Honorable James Chou

Attorney for Plaintiffs and 

Respondents, Charles Jenkins 

and Ellen Jenkins:

Cannata, O’Toole, Fickes & 

Olson, LLP, Therese Y. 

Cannata, Mark P. Fickes, 

Zachary Colbeth, Aaron Field

Amicus curiae Environmental 

Law Foundation and Planning 

and Conservation League in 

support of Appellants

Environmental Law Clinic, 

Deborah A. Sivas, Molly 

Loughney Melius, Caroline 

Zhang

Amicus curiae Sean B. Hecht 

in support of Appellants

UCLA School of Law, Sean B. 

Hecht

Amicus curiae Remy Moose 

Manley, LLP in support of 

Appellants 

Remy Moose Manley, LLP, 

Whitman F. Manley

Attorney for Defendants and 

Appellants, Susan BrandtHawley and Brandt-Hawley 

Law Group

Shute, Mihaly & Weinberger 

LLP, Ellison Folk, Lauren M. 

Tarpey, Peter Damrosch, 

Daniel P. Selmi