City Finally Settles Six-Year-Old Point Dume Court Case

BY BILL KOENEKER

A six-year legal ordeal between the City of Malibu and David Visher, a longtime Point Dume resident, was recently settled when the city’s insurer reportedly issued a discharge of $1 million to Visher.
“The lawsuit is settled. I’m happy it is settled,” said Visher, who would not confirm the amount.
Municipal officials are being tight-lipped about the settlement that was eventually made when the insurance carrier decided to settle the longterm litigation. Visher said, after an appeal was remanded to the trial court, the city dragged its feet on the litigation, but in the end settled.
The litigation is an outgrowth of the de facto building moratorium that occurred in 2003 when the city’s Local Coastal Program was being written by the California Coastal Commission and challenged in court by Malibu. No agency, including the city or the Coastal Commission, was issuing coastal development permits.
During that time, Visher sought a permit to build a home on a vacant lot and sued the city to obtain a coastal permit. The city tried to get the lawsuit dismissed, but the court sided with Visher and refused the city’s request.
Los Angeles County Superior Court Judge Allan Goodman, whose decision to allow the lawsuit to go to trial, which was unsuccessfully appealed by the city, ruled that the SLAPP motion, or Strategic Lawsuit Against Public Participation, filed by the city was “both frivolous and solely intended to cause unneccessary delay.” He awarded Visher attorney fees of $35,000 at that time.
However, the litigation itself was more complicated, because in an unrelated legal maneuver the city had asked the court to allow it to process building permits, while it battled it out with the Coastal Commission on an appeal of the same judge’s decision denying the city’s challenge to the validity of the CCC’s state-mandated Local Coastal Program.
The court had denied that motion, citing a lack of jurisdiction since the city had filed an appeal of the preliminary injunction, which the court had issued in which it ordered the city to accept and process such applications.
During the Visher matter, the judge recalled, the city had previously asked the court to order it to do what Visher in his legal action was now seeking.
The court further observed that in Visher v. Malibu, the city filed a SLAPP motion to preemptively terminate the request of Visher that the city be ordered to do that which the city had been ordered to do in the other action, but which was stayed because the city was appealing that matter.
Goodman took issue with the city’s maneuvering at this point, noting that the city’s argument was essentially that Visher filed his action to get the city to comply with the court’s order and that action is barred because the issue is in on appeal.
“[The city] may not, when challenged as these petitioner-homeowners have done in this case, file a motion which seeks to summarily prevent these petitioners from seeking their day in court—particularly when they seek relief identical to that which the city itself sought just seven months ago,” Goodman concluded.
In an interview this week, Visher said he sold the vacant land when he could not get a permit.