18-CIV-02526 SUE SMITH VS. PATRICIA NELSON DOYLE, ET AL.

SUE SMITH PATRICIA NELSON DOYLE
VERNON C. GOINS JOSE A. MONTALVO

DEFENDANTS’ SPECIAL MOTION TO STRIKE (ANTI-SLAPP) TENTATIVE RULING:

Defendants’ special Anti-SLAPP motion to strike is DENIED.

Defendants’ Objection No. 1 is sustained for lack of personal knowledge. (However, Defendants admit that the statements were made.) Defendants’ Objection No. 2 is sustained as hearsay.

The Court’s task in ruling on an anti-SLAPP motion is a two-step process:

1. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘in furtherance of the right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute.

2. If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim.

(Code of Civ. Proc. § 425.16, subd. (b)(1).) In other words, “the moving defendant’s burden is to show the challenged cause of action ‘arises’ from protected activity. Once [but only if] it is demonstrated the cause of action arises from the exercise of the defendant’s free expression or petition rights, then the burden shifts to the plaintiff to show a probability of prevailing in the litigation.” (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal. App. 4th 204, 211.)

A. The Complaint Does not Arise from Protected Activity.

Defendants’ motion argues that the alleged statements on which Plaintiff bases her complaint were protected activity because they were made in a place open to the public or a public forum in connection with an issue of public interest. (Code of Civ. Proc. § 425.16, subd. (e)(3); see Moving P&A at 3:6 – 4:21). Defendants’ argument lacks merit.

1. The Statements Were not in a Public Forum or Place Open to the Public.

A homeowners’ association meeting is a “public place” or “public forum” under the anti-SLAPP statute. (Damon v. Ocean Hills Journalism Club (2000) 85 Cal. App. 4th 468.) Defendants argue that The Links meeting where the statements occurred is “analogous” to an HOA meeting and therefore also constitutes a public forum or public place. The evidence does not support this conclusion. Courts hold that HOA meetings are “public forums” under the SLAPP statute because of the “quasi-governmental” nature of an HOA. (Damon, supra, at 475.) Further, HOAs are subject to legislative enactments dictating how they must be run. (Id.; see generally Civ. Code §§ 4000 – 6150.) In contrast, Defendants offer no showing that The Links is subject to the same types of requirements and responsibilities as an HOA.

To the contrary, “a nonprofit charitable organization’s board of directors meeting is akin to a private company’s sexual harassment grievance protocol, which has been held not to be an official proceeding authorized under law.” (Donovan v. Dan Murphy Found. (2012) 204 Cal. App. 4th 1500, 1508.) Defendants concede that The Links is a nonprofit charitable voluntary organization. (Decl. Alton ¶ 3.) Unlike an HOA, in which membership is mandatory for all residents in the planned development, there is no apparent requirement that anyone join The Links, which according to Defendants is “voluntary.” Further, if membership in The Links is private or restricted (e.g., by invitation only), then the organization is even less like an HOA, in which membership is automatic. Under Defendant Alton’s brief description of The Links, the organization bears no hallmarks of a “quasigovernmental” entity under the Damon case.

The evidence supports a finding that meeting of The Links board or its members is not a public place or public forum under the anti-SLAPP statute.

2. The Alleged Statements Did not Concern a Matter of Public Interest.

The alleged statements at the center of this action are that Plaintiff “lied and cheated on her report, regarding her 48 hours of community service” and that she “had not performed the hours for which she was seeking credit.” (Complaint ¶ 9.) The purpose of the statement was to justify revoking Plaintiff’s membership in The Links for her failure to satisfy the requirement of 48 hours’ community service. (Id.) Whether Plaintiff should be a member of The Links is not a matter of public interest. Defendants offer no evidence that anyone outside the Peninsula Chapter of The Links is interested in whether Plaintiff is a member of the Links.

One court has held that removal of a director from a board of directors of a nonprofit foundation is not “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.” (See Donovan v. Dan Murphy Found. (2012) 204 Cal. App. 4th 1500, 1508-09 [no evidence of public interest in governance of nonprofit foundation].)

“Public interest” also depends on the number of persons interested or affected by the speech at issue. A matter of public interest should be something of concern to a “substantial number of people. Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest.” (Weinberg v. Feisel (2003) 110 Cal. App. 4th 1122, 1132; Rivero v. American Federation of State, County and Municipal Employees, AFL–CIO (2003) 105 Cal.App.4th 913 [statements concerning plaintiff’s supervision of eight custodians not public issue].)

Defendants argue that the statements about Plaintiff is a public issue because The Links has 288 chapters across the country and 15,000 members. But the statements at issue pertained to Plaintiff’s membership only in the Peninsula Chapter, which has only 23 members. (Decl. Alton ¶ 4.) The only persons interested in Plaintiff’s membership are the other 22 members of the Chapter. Defendants offer no evidence suggesting that Plaintiff’s membership in the Peninsula Chapter is of any interest to the 15,000 members across the country, who belong to other Chapters.

3. Conclusion

Since the statements at issue did not occur in a public forum or public place and do not concern a matter of public interest, they do not constitute protected activity under the anti-SLAPP statute. Since Defendants have failed to establish the first prong of a special motion to strike, the motion is denied without the necessity of discussing the second prong of an Anit-SLAPP motion.