Filed 3/24/20 Sanderson v. Woodbridge Village Assn. CA4/3

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE

JOHN SANDERSON et al.,

Plaintiffs and Respondents,

v.

WOODBRIDGE VILLAGE ASSOCIATION et al.,

Defendants and Appellants.

G056684

(Super. Ct. No. 30-2017-00912288

consol. w/ 30-2018-00966059)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Martha K. Gooding, Judge. Affirmed.

Berman Berman Berman Schneider & Lowary, Evan A. Berman and Howard Smith for Defendants and Appellants.

Dorsey & Whitney, Kent J. Schmidt, Lynnda A. McGlinn, and Erica Haggerty, for Plaintiffs and Respondents.

Woodbridge Village Association (WVA) and each of its board of directors (the Directors) appeal from the trial court’s order denying their special motion to strike John Sanderson (John) and Shawn Anderson’s (Shawn) complaint alleging causes of action for negligence, private nuisance, and trespass. WVA and the Directors argue the court erred by denying their special motion to strike. We disagree and affirm the order.

FACTS

I. Background Facts

WVA is a homeowners association for a master-planned community with over 9,600 homes. Daigle, Cheema, Katz, Driscoll, Davis, and Woodings served as WVA Directors. The WVA acts only through its Board of Directors (Board). The development included a beach known as the North Lake Beach Club (the Club).

In 2001, John, who had a medical degree and was a medical research scientist, and Shawn purchased their home in WVA. Their home was adjacent to the Club, which had four wood burning fire pits (fire pits). When the Sandersons closed escrow, they executed a written notification the property was adjacent to the Beach Club.

In August 2006, another WVA resident complained to the Board about the fire pits. In March 2007, John appeared before the Board to address the Club’s fire pits and the health dangers from wood smoke. In May 2017, WVA began staffing the Club with a gate guard during the summer to limit use of the Club.

In March 2008, John appeared before the Board claiming toxic smoke from the fire pits was linked to respiratory ailments and cancer. He requested the fire pits be removed or replaced with gas burning fire pits. Three months later, John sent a letter to the Board repeating his concerns and requests.

WVA retained Dr. William Klein, a pulmonologist, to study the matter. In October 2008, Klein issued a report disputing there was a nexus between smoke from the fire pits and respiratory ailments or cancer.

In November 2008, based on Klein’s report, the Board voted not to convert the Club’s fire pits to gas burning fire pits. The Board approved removing one fire pit at the Club that was closest to the Sandersons’ home and moving another fire pit closer to the lake. The Club now had three fire pits.

In March 2009, the Board amended the Club’s rules to provide the fire pits were not to be used on days when the weather conditions could cause embers to be blown and to prohibit the burning of specified types of wood.

In June 2016, John e-mailed the Board stating both he and Shawn had developed cancers that have “causal associations” with the fire pits. He also said that earlier that day, Shawn, who was not a smoker, had been diagnosed with emphysema.

Over the course of several months, John and a Board representative engaged in two internal dispute resolution meetings to discuss the fire pits. At the meetings, John requested the fire pits be removed or replaced with gas burning fire pits. In April 2017, the Board denied the Sandersons’ request.

II. Procedural Facts

In November 2017, John filed a second amended complaint (SAC) against WVA and the Directors alleging causes of action for negligence, private nuisance, trespass, and injunctive relief. The thrust of the complaint was WVA and the Directors created a condition, i.e., smoke, that caused harm to the Sandersons, interfered with the use of their property, and entered their property. A couple months later, Shawn filed an identical complaint.

WVA and the Directors filed special motions to strike. The motions were supported by declarations from Kevin Chudy, WVA’s executive director, and Howard Smith, WVA’s and the Directors’ attorney.

John filed a motion to dismiss the special motion to strike based on untimeliness, and alternatively, a request to lift the discovery stay, which WVA and the Directors opposed. After a hearing on the motion, a temporary judge declined to rule on the timeliness issue, permitting John to raise the issue in his opposition to the special motion to strike. As to the discovery issue, the judge noted John had already deposed Cheema and Daigle, and stated the parties stipulated that for purposes of the special motion to strike, Cheema’s and Daigle’s deposition testimony may be imputed to and binding on any non-deposed Director. The judge denied John leave to depose Klein and said John could offer his own expert testimony.

John filed opposition to the special motion to strike supported by his declaration as well as declarations from Shawn and his attorney, Kent Schmidt. John also filed objections to Chudy’s and Smith’s declarations.

In Schmidt’s declaration, he discussed Cheema’s and Daigle’s 2017 deposition testimony. In her deposition, Daigle testified John did not offer any evidence to support his allegations and she did not obtain any additional information. In his declaration, Cheema testified that upon receiving John’s complaints, WVA hired a specialist to analyze the fire pits and draft a report.

In his declaration, John testified that when they purchased their home they did not know about the fire pits. He stated smoke from the fire pits penetrated their home and caused odors. He stated that when the Board moved one of the fire pits, it was closer to his home. John said he first learned of Klein’s report from Cheema’s deposition—he detailed alleged deficiencies in the report. John explained he had a medical degree and completed a residency in internal medicine. He was a medical research scientist who had a background in biochemistry, cell biology, metabolism, and physiology. John explained he used sophisticated devices to measure the levels of toxic particulate matter in the air from smoke that emanated into their home from the fire pits. John detailed the negative effects of the smoke and provided a list of 10 health conditions he had suffered the prior three years. Based on his research and review of medical literature, John stated he “connected the dots to come to the conclusion that Shawn and [he] were suffering a constellation of medical problems the root cause of which can be attributed to exposure to wood smoke over 17 years.” He said the fire pit smoke caused them to incur costs for installing new doors and windows, air quality monitoring systems, and filters.

In her declaration, Shawn provided a list of 10 health conditions she had suffered the prior three years, including emphysema. She stated the fire pit smoke caused their eyes to water and throats to burn. She added the fire pit smoke caused them to close their windows and doors to eliminate odors and ash that had required expensive cleaning. She also stated they incurred significant expenses to install double pane windows in their home to protect against smoke intrusion.

WVA and the Directors filed replies to the oppositions supported by Smith’s declaration and Klein’s report. They also filed 70 evidentiary objections to John’s and Shawn’s declarations.

After the trial court posted its tentative ruling, there was a hearing. The court took the matter under submission.

Later, the trial court issued a tentative ruling consolidating the cases and denying John’s motion for a preliminary injunction. As to the preliminary injunction, the court tentatively ruled John did not establish he was entitled to an injunction as to any of his three causes of action. At the hearing on those motions, the trial court opined medical causation was a legitimate concern. The court ordered the cases consolidated and took the preliminary injunction issue under submission.

The next day, the trial court issued a minute order denying WVA and the Directors’ special motion to strike. The court noted that although the special motion to strike was untimely as to some defendants, it would exercise its discretion to consider the motion as to all defendants because they were similarly situated. The court sustained two of the Sandersons’ evidentiary objections, but did not rule on any of WVA and the Directors’ evidentiary objections, concluding they were not dispositive to its ruling.

As to section 425.16’s first prong, the trial court opined the SAC’s thrust as to WVA was different from the Directors. It explained John was suing WVA for its conduct of failing to move the fire pits or converting them to gas pits, which was not protected activity, and WVA did not satisfy its burden. Citing to Lee v. Silveira (2016)

6 Cal.App.5th 527 (Lee), the court reasoned John sued the Directors for how they voted and the voting was not incidental because by not voting favorably to John, they failed to make a reasonable and informed vote. The court opined John did not allege any wrongful conduct other than “voting ‘badly[.]’” The court concluded this was protected activity, and the Directors satisfied their burden.

With respect to section 425.16’s second prong concerning the Directors, the trial court relied on the judicial deference rule articulated in Lamden v. La Jolla Shores Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249, and reasoned there was “‘minimal’” evidence the Directors “did not act in ‘good faith” in reaching their decision to not convert the fire pits[]” because they did not undertake “a reasonable investigation.” The court cited to Daigle’s deposition testimony there was insufficient evidence for her to make a determination and she did not conduct additional investigation, and noted her testimony was imputed to the other Directors. The court concluded John demonstrated a probability of prevailing on his claims against the Directors. The court denied WVA and the Directors’ special motion to strike.

DISCUSSION

“Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Sweetwater, supra, 6 Cal.5th at p. 940.) “In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).) Our review is de novo. (Sweetwater, supra, 6 Cal.5th at p. 940.)

I. First Prong

To make a showing under the first prong, the defendant must establish the cause of action arises from protected activity. (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 (Park).) A cause of action arises from protected activity if it comes within one of the four categories of section 425.16, subdivision (e). An “‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ 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.” (§ 425.16, subd. (e).)

Relying on section 425.16 and Lee, supra, 6 Cal.App.5th 527, WVA and the Directors contend the trial court erred by treating them differently and it should have concluded section 425.16 applied to WVA. Thus, their claim appears to be the Sanderson’s causes of action arise from protected activity pursuant to 425.16, subdivision (e)(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[.]”

But WVA and the Directors cite to no written or oral statement made in a place open to the public or a public forum. And their reliance on Lee, supra,

6 Cal.App.5th 527, is inapposite. That case concerned three board members suing six board members regarding the award of a contract and the decision-making process at board meetings. (Id. at p. 542.) Notably, unlike here where the issue concerns WVA, the three board members in Lee did not sue the association even though the dispute focused on the board’s activities. (Id. at pp. 530-531.)

Here, the trial court concluded the Sandersons’ causes of action against WVA did not arise from protected activity but their same claims against the Directors did arise from protected activity. We will first discuss WVA and then the Directors.

The parties agree Park, supra, 2 Cal.5th 1057, is instructive. In Park, the court opined as follows: “[A] claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.” (Park, supra, 2 Cal.5th at

p. 1060.) The Park court explained as follows: “[T]he focus is on determining what ‘the defendant’s activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.’ [Citation.] ‘The only means specified in section 425.16 by which a moving defendant can satisfy the [“arising from”] requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e)

. . . .’ [Citation.]” (Park, supra, 2 Cal.5th at p. 1063.) The court stated, “[w]hat gives rise to liability is not that the defendant spoke, but that the defendant denied the plaintiff a benefit, or subjected the plaintiff to a burden . . . .” (Id. at p. 1066.)

Here, the SAC is not a model of clarity. It lumps together WVA and the Directors and throughout refers to the “Defendants.” But the SAC did not allege any Board proceedings were unlawful. The SAC did not seek to invalidate any Board vote. The SAC does not mention the word vote.

As to WVA, the Sandersons’ claims do not arise from protected activity. The WVA’s activity that gives rise to the Sandersons’ claims was its conduct in not removing the fire pits or converting them to gas burning fire pits. That conduct is not protected speech or petitioning. The Board’s vote did not give rise to liability, but instead its conduct in leaving three fire pits in the Club was the basis for the claims. The Board’s vote was not the wrong complained of, but instead “a step leading to some different act for which liability is asserted.” (Park, supra, 2 Cal.5th at p. 1060.)

For the first time, WVA seems to suggest section 425.16, subdivision (e)(4) [petitioning activity], supports their claim the causes of action arise from their protected activity—the Board’s vote to not remove or convert the fire pits. As in Park, the Sandersons could have omitted allegations about filing a complaint with WVA and still stated the same claim because their claim depended not on the complaint proceeding but only on refusal to remove or convert the fire pits. (Park, supra, 2 Cal.5th at p. 1068.)

WVA relies on Cheveldale v. Tri Palms Unified Owners Assn. (2018)

27 Cal.App.5th 1202 (Cheveldale), and Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Assn. (2018) 19 Cal.App.5th 399 (Golden Eagle). Their reliance on those cases is misplaced. Cheveldale, supra, 27 Cal.App.5th at page 1213, concerned section 425.16, subdivision (e)(2), and a settlement agreement that affected a number of issues before various courts. The facts here are dissimilar. Golden Eagle, supra, 19 Cal.App.5th at page 425, concerned section 425.16, subdivision (e)(4), and a homeowner’s association’s sending correspondence, setting agendas, and conducting meetings. Again, below and on appeal WVA and the Directors primarily rely on section 425.16, subdivision (e)(3). And the Board’s sending correspondence, setting agendas, and conducting meetings is not the wrong the Sandersons complain of.

The trial court properly concluded the Sandersons’ causes of action against WVA did not arise from protected activity and WVA failed its burden to satisfy the first prong. The Sandersons’ claims against WVA may proceed.

With respect to the Directors, we assume without deciding the Sandersons’ causes of action arose from their protected activity. We may avoid discussion of the first prong analysis when a plaintiff demonstrates a probability of prevailing on its claims. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820 [inherent authority to skip to second step].) Because the Sandersons demonstrated a probability of prevailing on its claims, we will proceed directly to the second step as to the Directors. (Ibid.)

II. Second Prong

If the defendant satisfies the first prong, the burden shifts to the plaintiff to establish the claim’s merit by demonstrating “there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) The plaintiff must demonstrate each cause of action is both legally sufficient and supported by a prima facie showing of facts sufficient to support a favorable judgment if the plaintiff’s evidence is credited. (Navellier v. Sletten (2002) 29 Cal.4th 82, 93.) “[T]his second step [i]s a “summary-judgment-like procedure.” [Citation.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine if it defeats the plaintiff’s claim as a matter of law. [Citation.] “[C]laims with the requisite minimal merit may proceed.”’ [Citation.]” (Sweetwater, supra, 6 Cal.5th at p. 940.)

In Sweetwater, supra, 6 Cal.5th at page 937, our Supreme Court addressed the form and admissibility of evidence a trial court may consider on prong two. Sweetwater concerned change of plea forms and grand jury testimony excerpts. (Id. at pp. 938-939.) In addressing form, the court concluded “the court may consider statements that are the equivalent of affidavits and declarations because they were made under oath or penalty of perjury in California.” (Id. at p. 945.) In addressing admissibility, the court explained as follows: “the court may consider affidavits, declarations, and their equivalents if it is reasonably possible the proffered evidence set out in those statements will be admissible at trial. Conversely, if the evidence relied upon cannot be admitted at trial, because it is categorically barred or undisputed factual circumstances show inadmissibility, the court may not consider it in the face of an objection. If an evidentiary objection is made, the plaintiff may attempt to cure the asserted defect or demonstrate the defect is curable.” (Id. at p. 949.)

The Directors’ complaint regarding all three causes of action is the Sandersons failed to offer any admissible evidence of causation. Causation is an element of negligence, public nuisance, and trespass. (Kesner v. Superior Court (2016) 1 Cal.5th 1132, 1158 [negligence]; San Diego Gas & Electric Co. v. San Diego Regional Water Quality Control Bd. (2019) 36 Cal.App.5th 427, 436 [public nuisance]; Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 262 [trespass].)

The Directors assert the Sandersons did not offer any evidence to refute Klein’s opinion and therefore no evidence of causation. Although the Sandersons do refer to future damages, they add that for anti-SLAPP purposes, they have established their causes of action have minimal merit. Mindful of that standard, and of the requirement we must accept the Sandersons’ evidence as true and not weigh the evidence, the Sandersons produced evidence of causation.

As to the negligence causes of action, John’s declaration provided evidence the fire pits smoke caused the Sandersons’ harm. In his declaration, John detailed he had a medical degree and specialized in internal medicine. Additionally, he was a medical research scientist who had a background in biochemistry, cell biology, metabolism, and physiology. He explained that after he reviewed the applicable medical literature, he concluded the fire pit smoke was “the root cause” of his and Shawn’s medical ailments. In Sweetwater, our Supreme Court stated the court may consider evidence if it was “reasonably possible the proffered evidence set out in those statements will be admissible at trial.” (Sweetwater, supra, 6 Cal.5th at p. 949, italics added.)

“Expert opinion testimony is admissible only if it is ‘[r]elated to a subject that is sufficiently beyond common experience that the opinion of an expert would assist the trier of fact.’ [Citation.] ‘A person is qualified to testify as an expert if he has special knowledge, skill, experience, training, or education sufficient to qualify him as an expert on the subject to which his testimony relates.” (People v. Watson (2008) 43 Cal.4th 652, 692.)

The Directors’ foundational objections to John’s declaration are not well taken. Both John and Shawn could offer their lay opinions that when the fire pit smoke entered their home, their eyes watered and throats burn, and they smelled offense odors. Based on his education, training, and experience as a medical doctor John could testify the fire pits smoke was “the root cause” of his and Shawn’s medical ailments. As the Sweetwater court stated, “[T]he SLAPP Act was ‘intended to end meritless SLAPP suits early without great cost to the target’ [citation], not to abort potentially meritorious claims due to a lack of discovery.” (Sweetwater, supra, 6 Cal.5th at p. 949.)

With respect to the private nuisance and trespass causes of action, both John’s and Shawn’s declarations provided evidence the fire pits were a substantial factor, i.e., caused them harm. Both John and Shawn stated the fire pit smoke caused them to incur costs in cleaning their home and installing new doors and windows, air quality monitoring systems, and filters. This was evidence the fire pit smoke caused the Sandersons’ damage. Thus, the Sandersons demonstrated a probability of prevailing on their negligence, private nuisance, and trespass causes of action.

DISPOSITION

The order is affirmed. The Sandersons are awarded their costs on appeal.

O’LEARY, P. J.

WE CONCUR:

ARONSON, J.

FYBEL, J.