This case was last updated from Los Angeles County Superior Courts on 05/13/2020 at 21:23:06 (UTC).

CITY OF LOS ANGELES VS L.A. TERMINALS, INC., ET AL

Case Summary

On 01/22/2018 CITY OF LOS ANGELES filed a Contract - Other Contract lawsuit against L A TERMINALS, INC . This case was filed in Los Angeles County Superior Courts, Stanley Mosk Courthouse located in Los Angeles, California. The Judges overseeing this case are MICHAEL P. VICENCIA, KENNETH R. FREEMAN and DANIEL J. BUCKLEY. The case status is Pending - Other Pending.

Case Details Parties Documents Dockets

 

Case Details

  • Case Number:

    ****1591

  • Filing Date:

    01/22/2018

  • Case Status:

    Pending - Other Pending

  • Case Type:

    Contract - Other Contract

  • Court:

    Los Angeles County Superior Courts

  • Courthouse:

    Stanley Mosk Courthouse

  • County, State:

    Los Angeles, California

Judge Details

Presiding Judges

MICHAEL P. VICENCIA

KENNETH R. FREEMAN

DANIEL J. BUCKLEY

 

Party Details

Plaintiffs, Cross Defendants and Appellants

CITY OF LOS ANGELES A MUNICIPAL CORP

UNION PACIFIC RAILROAD COMPANY

OCCIDENTAL CHEMICAL CORPORATION NEW YORK FKA HOOKER CHEMICAL CORPORATION

PHILLIPS 66 COMPANY A DELAWARE CORP.

UNION OIL COMPANY OF CALIFORNIA INC.

Defendants, Cross Plaintiffs and Cross Defendants

DOES 1 THROUGH 50 INCLUSIVE

L.A. TERMINALS INC. A CA CORP.

OCCIDENTAL CHEMICAL CORPORATION NEW YORK

CORP.(HOOKER)

CORP.(ASH)

HOOKER CHEMICAL CORPORATION A NEW YORK

ASH-CROSS EVANS CORPORATION WASHINGTON

CORPORATION(HOOKER)

PHILLIPS 66 COMPANY

UNION PACIFIC RAILROAD COMPANY

UNION OIL COMPANY OF CALIFORNIA

OLYMPIC CHEMICAL CORPORATION

OCCIDENTAL CHEMICAL CORPORATION

SOCO WEST INC.

L.A. TERMINALS INC.

WAUSAU GENERAL INSURANCE COMPANY FKA ILLINOIS EMPLOYERS INSURANCE OF WAUSAU INTERVENING ON BEHALF OF ASH-CROSS-EVANS CORPORATION

Defendants, Respondents and Cross Defendants

PHILLIPS 66 COMPANY

UNION PACIFIC RAILROAD COMPANY

UNION OIL COMPANY OF CALIFORNIA

OLYMPIC CHEMICAL CORPORATION

OCCIDENTAL CHEMICAL CORPORATION

SOCO WEST INC.

Defendant and Cross Plaintiff

L.A. TERMINALS INC. A CA CORP.

4 More Parties Available

Attorney/Law Firm Details

Plaintiff and Respondent Attorneys

OFFICE OF THE CITY ATTORNEY

DALUISO BRIAN A.

FEUER MICHAEL NELSON

LEVINE JOSHUA NICHOLAS

BOBO CHRISTOPHER

BARENG ALLAN P

Defendant and Cross Defendant Attorneys

RUTAN & TUCKER LLP

MAZGANI PEDRAM FOWAD

O'HARA PARKER MILLIKEN CLARK

MEYER GARY ALAN

MONTEVIDEO RICHARD GARY

MINER WHITNEY R.

ALLEN DAVID C

WAHL JOSEPH MATTHEW

MAGNUS JON-ERIK WILLIAM

AGAJANIAN TIM M.

LEVINE JOSHUA NICHOLAS

BOBO CHRISTOPHER

GOODMAN ROBERT CEDRIC

ERB STEPHEN THOMAS

HUGO EDWARD ROGER

ATIGAPRAMOJ PAUL S

Defendant and Cross Plaintiff Attorney

MONTEVIDEO RICHARD GARY

 

Court Documents

Notice of Removal to Federal Court

4/20/2018: Notice of Removal to Federal Court

Legacy Document - LEGACY DOCUMENT TYPE: NOTICE

8/6/2018: Legacy Document - LEGACY DOCUMENT TYPE: NOTICE

Opposition - OPPOSITION PLAINTIFF CITY OF LOS ANGELES' OPPOSITION TO MOTION TO STRIKE

10/3/2018: Opposition - OPPOSITION PLAINTIFF CITY OF LOS ANGELES' OPPOSITION TO MOTION TO STRIKE

Opposition - L.A. TERMINALS, INC.'S OPPOSITION TO CITY OF LOS ANGELES' MOTION TO STRIKE LAT'S FOURTH CAUSE OF ACTION FOR BREACH OF CONTRACT

11/25/2019: Opposition - L.A. TERMINALS, INC.'S OPPOSITION TO CITY OF LOS ANGELES' MOTION TO STRIKE LAT'S FOURTH CAUSE OF ACTION FOR BREACH OF CONTRACT

Opposition - OPPOSITION TO DEFENDANT OCCIDENTAL CHEMICAL CORPORATION'S DEMURRER TO SECOND AMENDED COMPLAINT

11/26/2019: Opposition - OPPOSITION TO DEFENDANT OCCIDENTAL CHEMICAL CORPORATION'S DEMURRER TO SECOND AMENDED COMPLAINT

Notice - NOTICE OF COURT RULING ON OCCIDENTAL CHEMICAL CORPORATION'S DEMURRERS TO SECOND AMENDED COMPLAINT

12/24/2019: Notice - NOTICE OF COURT RULING ON OCCIDENTAL CHEMICAL CORPORATION'S DEMURRERS TO SECOND AMENDED COMPLAINT

Answer - DEFENDANT UNION OIL COMPANY OF CALIFORNIA'S ANSWER TO CITY OF LOS ANGELES' THIRD AMENDED COMPLAINT

1/21/2020: Answer - DEFENDANT UNION OIL COMPANY OF CALIFORNIA'S ANSWER TO CITY OF LOS ANGELES' THIRD AMENDED COMPLAINT

Answer - DEFENDANT UNION OIL COMPNAY OF CALIFORNIA'S VERIFIED AMENDED ANSWER TO CITY OF LOS ANGELES' THIRD AMENDED COMPLAINT

2/13/2020: Answer - DEFENDANT UNION OIL COMPNAY OF CALIFORNIA'S VERIFIED AMENDED ANSWER TO CITY OF LOS ANGELES' THIRD AMENDED COMPLAINT

Opposition - REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT OCCIDENTAL CHEMICAL CORPORATION'S OPPOSITION TO L.A. TERMINALS, INC.'S MOTION TO STAY CASE

2/28/2020: Opposition - REQUEST FOR JUDICIAL NOTICE IN SUPPORT OF DEFENDANT OCCIDENTAL CHEMICAL CORPORATION'S OPPOSITION TO L.A. TERMINALS, INC.'S MOTION TO STAY CASE

Opposition - DEFENDANT AND CROSS-COMPLAINANT L.A. TERMINALS, INC.'S REPLY TO DEFENDANT OCCIDENTAL CHEMICAL CORPORATION'S OPPOSITION TO MOTION TO STAY CASE

3/11/2020: Opposition - DEFENDANT AND CROSS-COMPLAINANT L.A. TERMINALS, INC.'S REPLY TO DEFENDANT OCCIDENTAL CHEMICAL CORPORATION'S OPPOSITION TO MOTION TO STAY CASE

Other - - DEFENDANT OCCIDENTAL CHEMICAL CORPORATION'S PROPOSED DISCOVERY PLAN

3/13/2020: Other - - DEFENDANT OCCIDENTAL CHEMICAL CORPORATION'S PROPOSED DISCOVERY PLAN

Other - - Appendix

8/6/2018: Other - - Appendix

Other - - Civil Deposit

8/29/2018: Other - - Civil Deposit

Notice of Posting of Jury Fees -

9/6/2018: Notice of Posting of Jury Fees -

Response - Response to Plaintiff' City of Los Angeles' Objections to Defendant Occidental Chemical., F/K/A Hooker Chemical Corporation's Request for Judicial Notice

10/11/2018: Response - Response to Plaintiff' City of Los Angeles' Objections to Defendant Occidental Chemical., F/K/A Hooker Chemical Corporation's Request for Judicial Notice

Reply -

10/18/2018: Reply -

Response - Response Plaintiff and Cross-Defendants Response to L.A. Terminals' Objections to Court's Minute Order Compelling Transfer to Los Angeles Superior Court, Civil Complex

10/30/2018: Response - Response Plaintiff and Cross-Defendants Response to L.A. Terminals' Objections to Court's Minute Order Compelling Transfer to Los Angeles Superior Court, Civil Complex

Summons - SUMMONS ON FIRST AMENDED CROSS-COMPLAINT

5/30/2019: Summons - SUMMONS ON FIRST AMENDED CROSS-COMPLAINT

218 More Documents Available

 

Docket Entries

  • 07/07/2020
  • Hearing07/07/2020 at 13:45 PM in Department 1 at 312 North Spring Street, Los Angeles, CA 90012; Hearing on Motion for Stay of Proceedings

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  • 04/22/2020
  • Docketat 10:34 AM in Department 1, Daniel J. Buckley, Presiding; Non-Appearance Case Review

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  • 04/22/2020
  • DocketMinute Order ( (Non-Appearance Case Review re Continuance)); Filed by Clerk

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  • 04/22/2020
  • DocketClerks Certificate of Service By Electronic Service; Filed by Clerk

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  • 04/16/2020
  • Docketat 1:45 PM in Department 1, Daniel J. Buckley, Presiding; Hearing on Motion for Stay of Proceedings - Not Held - Rescheduled by Court

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  • 04/03/2020
  • DocketAppeal - Notice Court Reporter to Prepare Appeal Transcript (;B303829, NOA 1/23/20;); Filed by Clerk

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  • 03/20/2020
  • DocketUnion Pacific Railroad Company's Discovery Plan; Filed by Union Pacific Railroad Company (Cross-Defendant)

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  • 03/20/2020
  • DocketDefendant Union Oil Company of California's Discovery Plan; Filed by Union Oil Company of California (Defendant)

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  • 03/20/2020
  • DocketMessage Board Posting (Notice of Continued Hearing); Filed by Clerk

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  • 03/17/2020
  • Docketat 1:45 PM in Department 1, Daniel J. Buckley, Presiding; Hearing on Motion for Stay of Proceedings - Not Held - Rescheduled by Court

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276 More Docket Entries
  • 03/02/2018
  • DocketSummons (on Amended Complaint (1st)); Filed by Clerk

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  • 03/02/2018
  • DocketComplaint ( (1st)); Filed by CITY OF LOS ANGELES, A MUNICIPAL CORP (Plaintiff)

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  • 03/02/2018
  • DocketSummons; Filed by CITY OF LOS ANGELES, A MUNICIPAL CORP (Plaintiff)

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  • 03/02/2018
  • DocketFirst Amended Complaint; Filed by CITY OF LOS ANGELES, A MUNICIPAL CORP (Plaintiff)

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  • 01/22/2018
  • DocketComplaint; Filed by CITY OF LOS ANGELES, A MUNICIPAL CORP (Plaintiff)

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  • 01/22/2018
  • DocketSummons; Filed by CITY OF LOS ANGELES, A MUNICIPAL CORP (Plaintiff)

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  • 01/22/2018
  • DocketNotice of Case Assignment - Unlimited Civil Case

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  • 01/22/2018
  • DocketCivil Case Cover Sheet; Filed by CITY OF LOS ANGELES, A MUNICIPAL CORP (Plaintiff)

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  • 01/22/2018
  • DocketOrder (To Show Cause Hearing); Filed by CITY OF LOS ANGELES, A MUNICIPAL CORP (Plaintiff)

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  • 01/22/2018
  • DocketNotice of Case Management Conference

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Tentative Rulings

Case Number: NC061591    Hearing Date: December 20, 2019    Dept: 1

TENTATIVE RULING

MOTION: (1) Demurrer; (2) Anti-SLAPP

HEARING DATE: December 20, 2019

CASE NUMBER: NC061591

CASE NAME: City of Los Angeles v. L.A. Terminals, Inc.

MOVING PARTY: (1) Defendant and Cross-Defendant Occidental Chemical Corporation (“Occidental”); (2) Plaintiff and Cross-Defendant City of Los Angeles (“City”).

RESPONDING PARTY: (1) Plaintiff and Cross-Defendant City of Los Angeles; (2) Defendant and Cross-Complainant L.A. Terminals, Inc. (“LAT”).

TRIAL DATE: Not Set

Background

On January 22, 2018, Plaintiff City of Los Angeles (“City) filed this action seeking to recover environmental clean-up costs from previous occupants of City property in the Los Angeles Port. Before the Court are two matters: Defendant and Cross-Defendant Occidental Chemical Corporation’s (“Occidental”) demurrer to City’s fourth, sixth, and seventh causes of action; and City’s special motion to strike the fourth cause of action in Defendant and Cross-Complainant L.A. Terminals, Inc.’s (“LAT”) cross-complaint. The Court addresses each in turn.

Discussion

A. Demurrer.

Occidental demurs to City’s fourth cause of action for contribution pursuant to California Civil Code section 1432, sixth cause of action contribution or indemnity pursuant to the Hazardous Substance Account Act, and seventh cause of action for declaratory relief pursuant to the Hazardous Substance Account Act on the grounds that they are insufficiently pleaded and uncertain.

1. Legal Standard.

When ruling on a demurrer or motion to strike, the Court accepts the truth of all properly pleaded material facts of the subject pleading, Aubry v. Tri-City Hosp. Dist., 2 Cal. 4th 962, 966-967 (1992), and draws reasonable “inferences favorable to the plaintiff, not the defendant.” Perez v. Golden Empire Transit Dist., 209 Cal. App. 4th 1228, 1239 (2012); see Doe v. Roman Catholic Bishop of Sacramento, 189 Cal. App. 4th 1423, 1427 (2010); Clauson v. Superior Court, 67 Cal. App. 4th 1253, 1255 (1998) (“In passing on the correctness of a ruling on a motion to strike, judges read allegations of a pleading subject to a motion to strike as a whole, all parts in their context, and assume their truth.”). The Court may also consider matters properly subject to judicial notice, Blank v. Kirwan, 39 Cal. 3d 311, 318 (1985), but need not accept “contentions, deductions or conclusions of fact or law.” Daar v. Yellow Cab Co., 67 Cal. 2d 695, 713 (1967). 

Though the governing standards are similar, demurrers and motions to strike differ starkly in their respective purposes. Demurrers can only be used to reach entire causes of action. See Ellena v. Dep’t of Ins., 230 Cal. App. 4th 198, 206 (2014) (“A demurrer must be overruled if the complaint states a claim on any theory.”); Kong v. City of Hawaiian Gardens Redevelopment Agency, 108 Cal. App. 4th 1028, 1047 (2002) (“[A] demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.”). On the other hand, the purpose of a motion to strike is “to reach certain kinds of defects in a pleading that are not subject to demurrer.” Baral v. Schnitt, 1 Cal. 5th 376, 388 (2016) (citing 5 Witkin, Cal. Proc. 5th, Pleading § 1008 (2008)) (internal quotation marks omitted) (emphasis added).

2. The City’s Causes of Action Under the California Hazardous Substances Account Act (“HSAA”) Are Not Subject to Demurrer.

City’s sixth and seventh causes of action arise from California’s Hazardous Substances Account Act (“HSAA”), see Health & Saf. Code §§ 25300-25395.45. Occidental contends that these causes of action are subject to demurrer because the HSAA provides that it “shall not be construed as imposing any new liability associated with acts that occurred on or before January 1, 1982, if the acts were not in violation of existing state or federal laws at the time they occurred,” Health & Saf. Code § 25366, and the City’s complaint alleges that Occidental operated on the Silver Site premises from 1947 to 1978, see, e.g., Second Amended Compl. ¶ 22, but does not allege a violation of state or federal law.

Occidental’s argument fails to recognize that “Health and Safety Code section 25366, subdivision (a) establishes an affirmative defense to liability under the HSAA.” Orange County Water Dist. v. Sabic Innovative Plastics US, LLC, 14 Cal. App. 5th 343, 388 (2017). Thus, Occidental will “bear the burden of proof at trial on this defense,” id., and the City is not required preemptively plead the failure of Occidental’s affirmative defenses. Nor is the City required to identify or put specific state and federal laws at issue in its complaint. Rather, “it is appropriate to place the burden on the otherwise-liable defendant to prove compliance with then-existing environmental laws, e.g., through compliance records or the testimony of knowledgeable individuals.” Id. at 389.

While Occidental can certainly rely on the allegations of the City’s complaint as judicial or evidentiary admissions when establishing that its targeted conduct occurred prior to 1982, any potential concession on this point in the complaint does not relieve Occidental of its burden to affirmatively establish its compliance with state and federal law. Thus, the City’s claims are not subject to demurrer on this ground, because the existence of this affirmative defense is not conclusively established on the face of the complaint. See Casterson v. Superior Court, 101 Cal. App. 4th 177, 183 (2002) (“[A] demurrer based on an affirmative defense will be sustained only where the face of the complaint discloses that the action is necessarily barred by the defense.”).

Occidental’s reliance on an earlier unpublished opinion does not change this conclusion. See Occidental Demurrer, 5:1-8 (citing Johnson v. City of San Diego, 2005 WL 503310 at *8 (Cal. Ct. App. 2005)). Therefore, Occidental’s demurrers to the City’s sixth and seventh causes of action are OVERRULED.

3. The City’s Cause of Action for Contribution Under Civil Code Section 1432 Is Not Subject to Demurrer.

Occidental contends that the City’s fourth cause of action for contribution fails because the City does not allege a joint, or joint and several, obligation with Occidental. The City contends that it seeks contribution from Occidental for the potential joint liability for their release of contaminants at the Silver Site premises that they face from L.A. Terminal, Inc.’s cross-complaint. The Court finds, however, that this basis is not properly reflected in the Second Amended Complaint, see Second Amended Compl. ¶¶ 77-81, which primarily alleges costs of clean-up and remediation (i.e. a direct liability and not joint obligation to another) as the obligation that they seek contribution from Occidental.

Accordingly, Occidental’s demurrer to City’s fourth cause of action is SUSTAINED with leave to amend. Occidental’s insinuation that leave should be withheld because contribution was alleged in the First Amended Complaint, well before L.A. Terminal, Inc. filed its cross-complaint in this action, is of no effect. Even if the contribution claim was improperly alleged in an earlier, superseded pleading, that fact does not—and cannot—preclude a party from later asserting that same cause of action on a different, viable theory.

B. Special Motion to Strike.

“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 . . . 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 the plaintiff will prevail on the claim.” Civ. Proc. Code § 425.16(b)(1). Protected activity includes: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law, (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law, (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest, or (4) any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.” Id. at § 425.16(e); see Equilon Enterprises v. Consumer Cause, Inc., 29 Cal. 4th 53, 66 (2002).

Thus, the Court undertakes a two-step analysis: First, the Court must determine “whether the defendant has made a threshold showing that the challenged cause of action is one ‘arising from’ protected activity.” City of Cotati v. Cashman, 29 Cal. 4th 69, 76 (2002). If such a showing has been made, the Court must then “consider whether the plaintiff has demonstrated a probability of prevailing on the claim.” Id. When ruling on a special motion to strike, the Court must “consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” Civ. Proc. Code § 425.16(b)(2).

City specially moves to strike Defendant and Cross-Complainant L.A. Terminals, Inc.’s (“LAT”) fourth cause of action for breach of contract in its cross-complaint.

1. LAT’s Fourth Causes of Action Does Not Arise from Protected Activity.

“[T]he arising from requirement is not always easily met.” Equilon Enterprises, 29 Cal. 4th at 66. “In short, the statutory phrase ‘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.” City of Cotati, 29 Cal. 4th at 78. “In the anti-SLAPP context, the critical point is whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.” Id. Thus, the conduct that a plaintiff claims injured him must be conduct that falls within Code of Civil Procedure section 425.16(e)(1)-(4). Park v. Board of Trustees of California State University, 2 Cal. 5th 1057, 1063 (2017).

LAT is a former tenant of certain Los Angeles Port properties that ran a chemical storage and distribution operation therein. Cross-Compl. ¶¶ 1, 37. In 2008, LAT was issued a clean-up and abatement order by the Los Angeles Regional Water Quality Control Board (“Regional Board”). Id. at ¶ 3. In response to that order, LAT proposed a remedial action plan consisting largely of monitored natural attenuation—essentially a wait-and-see if the environment fixes itself approach. Cannon Decl. ¶ 6. The City raised several concerns with this approach to LAT and the Regional Board. Id. at ¶ 7, Ex. E. In 2017, the Regional Board ordered that LAT submit a revised remedial action plan. Id. at Ex. F. Throughout this process, the City and LAT were involved in extensive negotiations with one another, and they eventually entered into a tolling agreement with one another that required the City to meet and confer with LAT in good faith before taking or advocating “any position involving any remedial investigation or remedial action concerning the Premises or the LAMT Property, with the Regional Board, that could reasonably be expected to interfere with or materially increase the cost and/or time to address or resolve any Permit/Contamination Claim (“Alternative Position”),” Montevideo Decl. ¶¶ 2, 4, Ex. 1.

LAT’s fourth cause of action alleges breach of this tolling agreement based on the City’s failure “to attempt to meet and confer with LAT to discuss the City Alternative Positions prior to advocating such positions to the Regional Board.” Cross-Compl. ¶ 107. LAT alleges that those Alternative Positions contained in the City’s Comment Letter sent to the Regional Board interfered with its efforts to obtain approval of its revised remedial action plan. Id. at ¶ 104.

The City contends that the fourth cause of action arises from its Comment Letter “made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law,” Civ. Proc. Code § 425.16(e)(2). LAT counters that its fourth cause of action is based on the City’s failure to engage in the bargained for meet and confer process (i.e. informal dispute resolution) as provided in the parties’ tolling agreement, which is not protected activity. The Court agrees with LAT.

Contrary to the City’s assertions, even if the fourth cause of action cannot be established without reference to the City’s Comment Letter, see City’s Reply, 4:16-18, it does not follow that the fourth cause of action necessarily arises from that letter. Here, LAT’s fourth cause of action clearly alleges breach of contract resulting from the City’s failure to meet and confer prior to sending its Comment Letter to the Regional Board.

Thus, while the City is correct that this lawsuit would not exist but for the City’s Comment Letter, that framing only elucidates half of the picture. Phrased differently (and more accurately), this lawsuit would not exist but for the City’s failure to follow the meet and confer process before sending its Comment Letter. Thus, the act underlying the fourth cause of action is not the City’s exercise of protected speech, see Civ. Proc. Code § 425.16(e)(2), (4), but the City’s failure to abide by an agreed upon informal—albeit non-binding—dispute resolution process.

The City’s decision to not engage in this process cannot constitute protected activity. Therefore, the City has failed to carry its burden that the fourth cause of action arises from protected activity. The City’s special motion to strike is DENIED accordingly.

Conclusion

Occidental’s demurrer is OVERRULED in part and SUSTAINED with leave to amend in part.

City’s special motion to strike under Code of Civil Procedure section 425.16 is DENIED.