Case Number: KC066870    Hearing Date: August 28, 2014    Dept: J

Re: Cathrine C. Bell v. Countrywood Park I Community Association, etc. (KC066870)

MOTION TO STRIKE PLAINTIFF’S COMPLAINT PURSUANT TO CCP § 425.16

Moving Party: Defendant Countrywood Park I Community Association

Respondent: Plaintiff Cathrine C. Bell

POS: Moving OK; Opposing served by regular mail contrary to CCP § 1005(c); Reply OK

Plaintiff, the owner of a condominium within Countrywood Park I Community Association, alleges that she was repeatedly fined by Defendant for “unapproved construction” on her patio cover despite her patio cover being in the same condition it had been in prior to her taking possession of the condominium, and that despite the fact that Plaintiff’s counsel and Defendant’s counsel were able to settle the matter and the board recognized that Plaintiff’s patio cover has never been in violation, Defendant refused to remove the previous six years of fines relating to the patio cover. The Complaint, filed on 5/8/14, asserts causes of action for:

1. Intentional Infliction of Emotional Distress
2. Negligent Infliction of Emotional Distress
3. Abuse of Process

The Case Management Conference is set for 8/28/14.

Defendant Countrywood Park I Community Association (“Defendant”) now moves pursuant to CCP § 425.16 for an order striking the Complaint as a SLAPP action and requests that it recover from Plaintiff its attorneys’ fees and costs incurred in defending this action. The motion is made on the grounds that the Complaint arises from Defendant’s acts in furtherance of their constitutionally-protected rights of petition and speech and that Plaintiff cannot establish a probability of prevailing on her claims.

In ruling on a defendant’s special motion to strike, the trial court uses a “summary-judgment-like procedure at an early stage of the litigation.” (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 192.) This is a two-step process. First, the defendant must show that the act or acts of which the plaintiff complains were taken “in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue.” (CCP §425.16(b)(1).) Second, if the defendant carries that burden, the burden shifts to the plaintiff to demonstrate a probability of prevailing on the claim. (CCP §425.16(b)(3).) The defendant has the burden on the first issue and the plaintiff on the second. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928.)

PROTECTED ACTIVITY:

The anti-SLAPP statute applies to causes of action “arising from any 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.” (CCP § 425.16(b)(1) (brackets added).)

An anti-SLAPP motion challenges a cause of action, rather than individual allegations or theories supporting the cause of action. (See CCP § 425.16(b)(1).) Thus, when a single cause of action alleges both acts protected under the statute and nonprotected acts, the entire cause of action may be stricken under § 425.16. Plaintiffs “cannot frustrate the purposes of the SLAPP statute through a pleading tactic of combining allegations of protected and non-protected activity under the label of one ‘cause of action.’ ” (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 308; Cho v. Chang (2013) 219 Cal.App.4th 521, 527.)

The anti-SLAPP statute does not apply, however, to a mixed cause of action when the protected activities are “merely incidental” or “collateral” to the unprotected conduct. (Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP (2005) 133 Cal.App.4th 658, 672–673.) In making that determination, the court focuses on “the allegedly wrongful and injury-producing conduct that provides the foundation for the claims.” (Castleman v. Sagaser (2013) 216 Cal.App.4th 481, 490–491.)

General Allegations in the Complaint:

In this matter, Plaintiff (an owner of condominium) alleges that she was wrongfully fined by Defendant (the HOA) for “unapproved construction” on her patio cover, despite her patio cover being in the same condition it had been in prior to her taking possession of the condominium, and that Defendant refused to remove the fines even after its counsel informed her counsel that the patio cover was not in violation and to submit a new architectural application to the board. (Complaint ¶¶ 10, 13.) Plaintiff also alleges that Defendant filed a lawsuit against Plaintiff alleging Plaintiff was in violation of various CC&Rs and that she had failed to pay assessments and obtained a default judgment against her despite knowing that Plaintiff’s patio cover was not in violation of the CC&Rs. (Id. ¶¶ 11-14.) Plaintiff alleges that Defendant assessed fines against her for almost seven years because she had missed some monthly payments and Defendants had an issue with Plaintiff related to her dogs. (Id. ¶ 14.)

First and Second Causes of Action:

The first cause of action for intentional infliction of emotional distress (“IIED”) incorporates the general allegations above and alleges: “Defendants engaged in actions that are so extreme and outrageous… in that Defendants fined, intimidated, and harassed Plaintiff over a period of seven years for an alleged violation that Defendants only recently admitted was never a violation in the first place. Plaintiff had also been fined for allegedly not having her dogs on a leash, even through it was not her dog and she received fines even after the dog in question had died. (Complaint ¶ 16.)

The second cause of action for negligent infliction of emotional distress (“IIED”) also incorporates the general allegations and allege: “Defendants, as the association that managed and maintained the community of homes where Plaintiff’s home is located, owed a duty to Plaintiff to protect her rights and interests as set forth in the CC&Rs and owed a duty to Plaintiff to refrain from unwarranted and unjustified harassment… Defendants breached these duties by harassing and fining Plaintiff over a period of almost seven years for alleged violations that Defendants later admitted were never violations in the first place.” (Complaint ¶¶ 24-25.)

The gravamen of Plaintiff’s IIED and NIED causes of action actions is based on Defendant’s act of wrongfully assessing fines for over seven years for violations that Defendant later admitted were never violations in the first place. However, such actions, i.e., assessing fines on a member pursuant to the CC&Rs, is not a protected activity under CCP § 425.16.

Defendant, in reply, contends that homeowner association matters fall within the anti-SLAPP statute. However, “[n]ot every mundane communication between a homeowners association and homeowners gives rise to a freedom of speech issue.” (Turner v. Vista Pointe Ridge Homeowners Ass’n (2009) 180 Cal.App.4th 676, 679.) Further, the cases cited by Defendant do not concern fine assessments, but conduct in furtherance of free speech rights. (See e.g., Damon v. Ocean Hills (2000) 85 Cal.App.4th 468 – A former manager of a homeowners association brought a defamation action against several of the association members, two members of the association’s board of directors, and a private homeowners association club that published a newsletter; Ruiz v. harbor View (2005) 134 Cal.App.4th 1456 – Applicant for a building permit brought libel cause of action against association that denied application, based on two allegedly libelous letters written to applicant by association’s attorney; Healy v. Tusany Hills (2006) 137 Cal.App.4th 1 – Homeowners association filed action against homeowner for denying association access through her property for weed abatement, and homeowner cross-complained for defamation in letter association sent to homeowners concerning the dispute.)

Thus, Defendant’s motion to strike the first and second causes of action pursuant to CCP § 425.16 is denied.

Third Cause of Action:

The third cause of action for abuse of process also incorporates the general allegations and alleges: “Defendants, knowing that Plaintiff’s patio cover was not in violation of the CC&Rs, proceeded with the lawsuit and obtained a judgment against Plaintiff and have attempted to garnish Plaintiff’s wage on three separate occasions… In filing a lawsuit and obtaining a default judgment against Plaintiff for a violation that never existed, Defendants used the court’s authority for an ulterior purpose and perpetuate an injustice.” (Complaint ¶¶ 30-31.)

The gravamen of the third cause of action is based on Defendant’s petitioning activity, i.e., the legal action filed to collect delinquent assessments and fines. Thus, the third cause of action fall within the scope of CCP § 425.16.

Plaintiff, in opposition, contends that a lawsuit against a member of an HOA for non-payment of fines relating to patio cover is not a “public issue” within the meaning of CCP § 425.16(b)(1). However, the anti-SLAPP statute protects all petition-related activity before a governmental body whether or not the statements involve a public issue: “[A]ll that matters is that the First Amendment activity take place in an official proceeding or be made in connection with an issue being reviewed by an official proceeding.” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1116 (disapproving earlier cases contra).) Filing a lawsuit is an act in furtherance of the constitutional right of petition, regardless of whether it has merit. (See, e.g., Navellier v. Sletten (2002) 29 Cal.4th 82, 90, Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1188; Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087–1088.)

PROBABILITY OF SUCCESS:

Plaintiff thus has the burden of proof to establish a probability that the plaintiff will prevail on whatever claims are asserted against the defendant. (CCP § 425.16(b).) The plaintiff must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment. (Premier Med. Mgmt. Systems, Inc. v. California Ins. Guar. Ass’n (2006) 136 Cal.App.4th 4464, 476.) The burden is on plaintiff to produce evidence that would be admissible at trial—i.e., to proffer a prima facie showing of facts supporting a judgment in plaintiff’s favor. (Chavez v. Mendoza (2001) 94 Cal.App.4th 1083, 1087.)

A cause of action for abuse of process requires the following elements: (1) the ulterior motive or purpose of the defendant in using the process, and (2) willful act in an unauthorized use of the process. (Rusheen v. Cohen (2006) 37 Cal. 4th 1048, 1057.)

Plaintiff represents that Defendant filed a lawsuit against Plaintiff to collect dues and fines relating to Plaintiff’s patio cover; Plaintiff was only fined on the patio covers after she had missed a few of her HOA payments; and that Plaintiff was never notified of any violations in the previous six years that she had owned that condo, despite the fact that the patio cover had not been changed in the time that she had lived there. (Opposition, Bell Decl. ¶ 4-5.)

Plaintiff, however, fails to demonstrate that Defendant misused a “process.” The “process” misused must be something other than a summons and complaint: “[T]he mere filing or maintenance [continued prosecution] of a lawsuit—even for an improper purpose—is not a proper basis for an abuse of process action.” (Oren Royal Oaks Venture v. Greenberg, Bernhard, Weiss & Karma, Inc. (1986) 42 Cal.3d 1157, 1169 (brackets added); JSJ Ltd. Partnership v. Mehrban (2012) 205 Cal.App.4th 1512, 1523.)

Plaintiff also fails to demonstrate that Defendant had an ulterior motive or purpose. Plaintiff concedes that she had missed assessment payments. Further, the lawsuit was filed on or about September 28, 2009 (Complaint ¶ 29), well before November 14, 2013, when Plaintiff’s attorney received a call from Defendant’s attorney informing them that the patio cover was not in violation (Id. ¶ 13).

Moreover, Plaintiff’s claim for abuse of process is barred by the litigation privilege. (See CC § 47; Rohde v. Wolf (2007) 154 Cal.App.4th 28, 37–38.) The litigation privilege under CC § 47 is an “absolute” privilege, and it bars all tort causes of action except a claim of malicious prosecution. (Flatley v. Mauro (2006) 39 Cal.4th 299, 322.)

Plaintiff fails to demonstrate that she will be able to prevail on her claim for abuse of process. Thus, Defendant’s motion to strike the third cause of action pursuant to CCP § 425.16 is granted.