Case Number: EC068466 Hearing Date: August 24, 2018 Dept: A

Quality Control Restoration v Sahakian

SPECIAL MOTION TO STRIKE COMPLAINT (ANTI-SLAPP)

Calendar: 11

Case No: EC068466

Hearing Date: 8/24/18

Action Filed: 4/28/18

Trial Date: None

MP: Defendant Vatchie Sahakian

RP: Plaintiff Quality Control Restoration (QCS)

ALLEGATIONS OF THE COMPLAINT

Plaintiff Quality Control Restoration dba Quality Control Services (QCS) alleges that it is a repair and damage restoration service operating out of La Verne, California. Defendant Vatchie Sahakian is alleged to be a resident of Cordova Park Villas, a condominium complex located at 330 Cordova Street in Pasadena (“CPV”). Plaintiff alleges that over the years, it was hired by CPV’s homeowner’s association to complete numerous repairs and that it was given a key to access each unit as necessary.

In May 2017, Plaintiff was hired to perform repairs on various units, including Defendant’s unit, but Defendant refused to provide Plaintiff with a key for access and elected to remain in the unit to grant access as needed. Plaintiff alleges that Defendant restricted access such that Plaintiff’s time to complete repairs was prolonged. Plaintiff alleges that this disagreement led to Defendant’s “campaign” to disparage and defame Plaintiff, including by way of sending a letter to CPV residents regarding Plaintiff’s allegedly poor work performance. (Compl., ¶9.) Plaintiff alleges that these statements were inaccurate, misleading, and inflammatory.

The complaint, filed April 24, 2018, alleges causes of action for: (1) slander per se; and (2) libel per se.

RELIEF REQUESTED:

Defendant Vatchie Sahakian moves to strike the complaint pursuant to the anti-SLAPP statute (CCP § 425.16).

DISCUSSION:

Legal Standard

CCP §425.16 permits the Court to strike causes of action arising from an act in furtherance of the defendant’s right of free speech or petition, unless the plaintiff establishes that there is a probability that the plaintiff will prevail on the claim.

The defendant bears the initial burden of showing that the claims fall within the class of suits subject to a motion to strike under CCP §425.16, i.e., that plaintiff’s claim is based on an act of defendant in furtherance of his right to free speech. (Fox Searchlight Pictures, Inc. v. Paladino (2001) 89 Cal.App.4th 294, 304.) Under CCP §425.16(b)(2), the Court may consider the pleadings and supporting affidavits in making its determination. A defendant meets his initial burden by demonstrating that the act underlying the plaintiff’s case fits one of the categories identified in section 425.16(e). (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) Subdivision (e) defines the protected acts as the following:

any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law;

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;

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

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.

If the defendant meets this initial burden, the plaintiff then has the burden of demonstrating a probability of prevailing on the claim. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 741.) The plaintiff satisfies this burden by demonstrating that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited. (Id.) Under CCP §4 25.16(b)(2), a plaintiff may use affidavits to meet the plaintiff’s burden.

The evidentiary showing by the plaintiff must be made by competent and admissible evidence. (Morrow v. Los Angeles Unified Sch. Dist. (2007) 149 Cal.App.4th 1424, 1444; Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1497-98 [proof cannot be made by declaration based on information and belief]; Tuchscher Dev. Enters., Inc. v. San Diego Unified Port Dist. (2003) 106 Cal.App.4th 1219, 1236-38 [documents submitted without proper foundation could not be considered in determining plaintiff’s probability of prevailing on its claim].)

Prong 1 – Defendant’s Initial Burden

Defendant argues that his actions are protected under CCP §425.16(e)(4), which states that a protected activity includes “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.”

Defendant provides his declaration in support of his motion. He states that he is a resident of CPV at Unit 330 and that at some point between June 26, 2018 and July 7, 2018, he prepared an email to his fellow CPV homeowners. The writing is attached as Exhibit A to his declaration. The relevant portion of the letter states:

In recent years, QCS has been almost exclusively contracted for all repairs, yet their service has not always been adequate. For example, sometimes units have incurred damages during and because of these repairs, and these damages have not been addressed. Additionally, these repairs are done at a very slow pace – often at great inconvenience to owners/tenants and sometimes leading to more repair and costs for the HOA. In some cases, the work has even been substandard and/or did not address the problem at hand. Some of us have noticed waste in material and supplies. In one instance, an owner independently obtained bids on the exact same repairs: the estimate QCS gave was almost two times costlier than that of two other reputable companies, and QCS asked for thrice the time to complete the work.

(Sahakian Decl., Ex. A at p.1.) The letter is addressed to the homeowners of the CPV complex, seeks to inform neighbors of Defendant’s concerns, and seeks their help in collecting and documenting other issues in order to draft a letter to the HOA Board.

In order to constitute protected speech, Defendant must show that his statement involved a public issue or an issue of public interest. For the purposes of the SLAPP statute, “public interest” has been “broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity.” (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479.) Matters of public interest include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals. (Id.)

Here, the CPV condominium complex may qualify as a community that is situated in a similar manner to that of a governmental entity. Plaintiff argues that in opposition that CPV only has 134 units and is not sufficient to be categorized as a large association. (Opp. at p.4.) However, for many Californians, the homeowners association functions as a second municipal government. (Damon, supra, 85 Cal.App.4th at 479.)

Nevertheless, “[n]ot every mundane communication between a homeowners association and a homeowner gives rise to a freedom of speech issue.” (Turner v. Vista Pointe Ridge Homeowners Ass’n (2009) 180 Cal.App.4th 676, 679.) Moreover, the Court notes that Defendant’s letter at issue was circulated amongst fellow residents and had not yet been presented to the CPV’s HOA, nor were the residents’ complaints about Plaintiff’s repair performance at issue before the HOA. Thus, this case is unlike the cases cited by Defendant in the moving papers: Colyear v. Rolling Hills Community Ass’n of Rancho Palos Verdes (2017) 9 Cal.App.5th 119; Ruiz v. Harbor View Community Ass’n (2005) 134 Cal.App.4th 1456; or Country Side Villas Homeowners Ass’n v. Ivie (2011) 193 Cal.App.4th 1110.

Colyear involved a dispute between homeowners and whether a tree on the plaintiff’s property obstructed the view for other residents. A homeowner, Liu, filed an “Application for Assistance to Restore View” with the HOA. The plaintiff received notice of as Liu’s application and alleged that it may implicate the trees on plaintiff’s property. The Court of Appeal found that the issue of view was one of general concern to the homeowners in the community and that one homeowner’s attempt to invoke the CC&Rs in his particular favor affected a significant number of people in his community association. The Court found that this was more than a private tree-trimming dispute and that this involve a matter of public interest because the evidence showed that at the time Liu submitted his application, there was an ongoing controversy, dispute, or discussion regarding the applicability of tree-trimming covenants and the HOA’s authority to enforce such covenants. This evidence included a showing that the issue was an ongoing topic of debate between the board and homeowners, which resulted in multiple hearings, letters, and several changes to the board’s policies. (Colyear, supra, 9 Cal.App.5th at 132-33.) Here, in contrast to the evidence presented in Colyear, Defendant has not presented any facts in support of his initial burden showing that there was an ongoing issue presented to the CPV HOA regarding Plaintiff’s repair performance or complaints thereto. Further, this action does not involve multiple hearings with the HOA or changes to board policies. This action is also distinguishable because in Colyear, Liu had submitted an application with the HOA that began the process of discourse with the HOA. In contrast, here, Defendant’s letter was in preparation of presenting a letter to HOA regarding a list of complaints.

Next, Ruiz involved a dispute between a homeowner who sued his HOA, alleging letters written by HOA’s counsel defamed him. The letters concerned a dispute over the HOA’s rejection of the homeowner’s building plans and his complaints that HOA was not applying its architectural guidelines evenhandedly. The Court of Appeal found that the letters were written during an ongoing dispute between the homeowner and the HOA’s denial of his plans and the application of the HOA’s architectural guidelines. (Ruiz, supra, 134 Cal.App.4th at 1469.) The Court of Appeal also found that the disputes were of interest to the residents of 523 lots because they would be affected by the outcome of those disputes and have a stake in HOA governance. Here, this case is distinguishable from Ruiz because—again—this action does not involve an ongoing matter with the HOA; rather, Defendant was seeking his neighbors’ aid in compiling a list of complaints in order to prepare a letter to HOA. Moreover, this action was initiated against Plaintiff Quality control Restoration, which is not a part of the CPV HOA, but a repair and restoration services company.

In Country Side Villas Homeowners Ass’n v. Ivie (2011) 193 Cal.App.4th 1110, the HOA sued a homeowners/residents seeking declaratory relief. In particular, the HOA interpreted its governing documents to state that it was responsible for maintenance requirements, while homeowners argued that individual homeowners were responsible. The homeowners objected to the HOA’s interpretation and the defendant circulated a petition among homeowners to have the new board recalled. (The homeowners argued, among other things, that the HOA’s interpretation was self-serving because one of the new board members owned a unit in need of repairs.) The Court of Appeal found that defendant/homeowner spoke against the members of the HOA board and management on matters that effected all members of the association, and that her criticism of the HOA’s actions were a matter of public concern because it affected all members of the association. Again, similar to the other cases cited by Defendant, Country Side Villas involved a matter between the HOA and homeowners. However, this matter involves a dispute between homeowners and Plaintiff (a company that performs repair and damage restoration). It does not involve any complaints made to the HOA or the HOA’s interpretation of governing documents, as Defendant’s letter had not been submitted to the HOA such that the CPV HOA was not yet involved with the matters at issue between Defendant, the homeowners, and Plaintiff.

The cases cited by Defendant in support of his motion were each in similar procedural postures, i.e., the homeowners were in active disputes with their respective HOAs. Even if this action involved the CPV HOA, this action does not pertain to “board elections, recall campaigns, or who should be the manager of the homeowners association.” (Turner, supra, 180 Cal.App.4th at 684 [finding challenged cause of action between HOA and homeowner did not arise from protective activity].) Nor is this a case involving an inherently political question of vital importance, such as the governance or election of board members in a HOA. (See Damon, supra, 85 Cal.App.4th at 479.)

Defendant’s arguments solely rely on the fact that the writing to fellow homeowners was made in an HOA community. Considering only this basis in support of the first prong, Defendant has not established his initial burden. The cases cited by Defendant are distinguishable as they involved actions between a homeowner and his or her HOA regarding an ongoing dispute that would potentially affect the fellow residents. Accordingly, Defendant has not established his initial burden showing that his speech in the letter circulated to the residents of CPV was a protected activity in furtherance of the right of petition or free speech as contemplated by section 425.16.

As Defendant has not established that the letter arises from protected activity as contemplated by section 425.16, the Court does not reach the anti-SLAPP statute’s secondary question whether Plaintiff established that there is a probability that it will prevail on its claims. (CCP §425.16(b)(1); City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80-81.)

RULING:

Deny Defendant’s special motion to strike.

Permit Plaintiff to seek attorney’s fees via a separately noticed motion.