Filed 7/30/20 De Groot v. Essex House Marina Del Rey Homeowners Assn. CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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

SECOND APPELLATE DISTRICT

DIVISION THREE

SUSAN DE GROOT et al.,

Plaintiffs and Respondents,

v.

ESSEX HOUSE MARINA DEL REY HOMEOWNERS ASSOCIATION,

Defendant and Appellant.

B291986

(Los Angeles County

Super. Ct. No. BC692570)

APPEAL from an order of the Superior Court of Los Angeles County, Gregory Wilson Alarcon, Judge. Affirmed as modified.

Adams Stirling, Ronald M. St. Marie; Weston, Garrou & Mooney and Jerome H. Mooney for Defendant and Appellant.

Law Offices of Andrew Delahunt, Andrew Delahunt; Law Offices of Michael D. Grahn, Michael D. Grahn and Christian Kernkamp for Plaintiffs and Respondents.

Essex House Marina Del Rey Homeowners Association (the Association) appeals from the trial court’s order denying its special motion to strike the first amended complaint brought by residents Susan De Groot and Rudolph Charles Martinez (collectively plaintiffs). Our independent review compels the conclusion that with the exception of four specific claims, the complaint does not arise out of protected speech or petitioning activity. As for those four specific claims, plaintiffs have not demonstrated a likelihood of prevailing on two of them. Accordingly, we order that those two claims be stricken from the complaint and otherwise affirm the order denying the Association’s anti-SLAPP motion.

BACKGROUND

I. The dispute and plaintiffs’ complaint

De Groot’s mother owned units 201 and 301 in Essex House Marina Del Rey (the building). De Groot and Martinez lived in unit 201.

Plaintiffs noticed that water was leaking from cast iron drainage pipes into the bedroom into the walls of unit 301. Water intrusion damaged the building causing termites, rat infestation, and mold, posing a dangerous condition and a health and safety issue in the building. Over the years, plaintiffs repeatedly requested that the Association repair the leaks, as the covenants, conditions, and restrictions (CC&Rs) required the Association to do. However, although the Association conducted some remodeling, it neither removed black mold from inside the bedrooms of units 201 and 301, nor addressed the problems De Groot complained about, such as water intrusion, rat infestation, and termite damage in unit 301 and in the entire building.

After De Groot’s mother died in 2011, plaintiffs moved upstairs to unit 301 where they continued to encounter the same problems. Plaintiffs again asked the Association to address the problems, but while units owned by the Association’s board members were renovated, the Association did not repair the damage to unit 301. One board member told plaintiffs to take care of the problems in their unit themselves. Believing they were authorized, plaintiffs began removing mold and rat droppings.

Around the same time, plaintiffs noticed what appeared to be a concerted effort by the Association’s board to drive them out of the building. The Association singled out and punished plaintiffs for myriad reasons. The Association fined plaintiffs for the work they undertook to repair unit 301, claiming it was unauthorized, even though the CC&Rs provided otherwise and some other homeowners in the building had completed similar work on their units. The Association imposed outrageous, hefty, and arbitrary fines and assessments for other purported violations of the CC&Rs, including the storage of tricycles in plaintiffs’ assigned parking spots and growing medical marijuana. The Association president John Weston called law enforcement on multiple occasions to raid plaintiffs’ home and arrest Martinez.

In 2016, the Association amended the CC&Rs to include provisions that plaintiffs believe specifically targeted them, and to make it easier for the Association to impose liens, fines, and assessments, including attorney fees, on them.

De Groot suffers from increased stress and depression, worries that her home will be taken from her, has trouble sleeping, believes that the Association is spying on her, and fears that the building may collapse.

Based on the Association’s abusive conduct and concerned that the building continued to suffer health and safety problems, plaintiffs filed their complaint for damages, and injunctive and declaratory relief. Cast in 10 causes of action, the first amended complaint asks for a declaration of the Association’s duties, and seeks damages for defendants’ breach of the CC&Rs, and of the implied covenant of good faith and fair dealing, breach of fiduciary duty, negligence, intentional infliction of emotional distress, nuisance, and violation of Civil Code section 4775 concerning maintenance and repair of a common interest development.

II. The Association’s special motion to strike

The Association specially moved to strike plaintiffs’ first amended complaint pursuant to Code of Civil Procedure section 425.16, commonly known as the anti-SLAPP statute, on the basis that the complaint arises from the Association’s constitutionally protected speech and petitioning activity in connection with a public issue or an issue of public interest under subdivisions (e)(3) and (e)(4), its letters, conduct, votes, and decisions made at board meetings. The Association argued that these activities involved protected speech made in connection with a public issue, namely enforcement of the CC&Rs against plaintiffs and making repairs that affect the entire building, which are matters of ongoing concern to all homeowners under the statute.

Attached to the Association’s anti-SLAPP motion was Weston’s declaration that explained the Association’s multiple attempts to discuss with plaintiffs their violation of the CC&Rs by growing and selling marijuana from unit 301 and by renovating that unit without permission. When plaintiffs and the Association failed to come to an agreement, the Association expended legal fees to negotiate a settlement that required plaintiffs to comply with the CC&Rs to avoid the imposition of fines. Still, plaintiffs flouted the CC&Rs and so the parties went to mediation in October 2017. The Association issued a letter demanding plaintiffs cease and desist shutting off the building’s water, engaging in unauthorized work, throwing construction materials in common-area trash receptacles, parking in guest spaces, using their assigned parking spaces as a workshop, and enlarging their marijuana operation. The Association repeatedly offered to participate in internal or alternative dispute resolution, but plaintiffs refused.

III. The ruling denying the anti-SLAPP motion

The trial court denied the Association’s special motion to strike. The court took judicial notice of certain documents submitted by the Association, and ruled on the Association’s evidentiary objections. After deciding to consider the Association’s moving papers, despite their tardiness, the court disregarded that portion of the Association’s points and authorities that exceeded the 15-page limit. (Cal. Rules of Court, rule 3.1113(d).) The court then analyzed the allegations in each of plaintiffs’ 10 causes of action and determined that plaintiffs’ complaint arose from a dispute between plaintiffs and the Association only, and not from protected activity, and that there was no evidence that the dispute between the Association and plaintiffs arose in the context of a wider controversy involving the other homeowners. The Association timely appealed.

DISCUSSION

I. Section 425.16 and the standard of review
II.
The anti-SLAPP statute allows for early dismissal of unmeritorious claims that were filed to interfere with a valid exercise of the constitutional rights of free speech and petition. (Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 315.)

Evaluation of an anti-SLAPP motion involves two prongs: First, the court determines whether the moving defendant has made “a threshold showing that the challenged . . . action arises from protected activity” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056), i.e., activity in furtherance of the rights of petition or free speech (§ 425.16, subd. (e)). The second prong is reached if the threshold showing is made. Then, the burden shifts to the plaintiff to “ ‘demonstrate[ ] a probability of prevailing on the claim.’ ” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 819–820.) “ ‘Only a cause of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.’ ” (C.W. Howe Partners Inc. v. Mooradian (2019) 43 Cal.App.5th 688, 698.)

We review de novo an order granting or denying a special motion to strike. (Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at p. 820.) We consider the “pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (§ 425.16, subd. (b)(2).) We broadly construe the anti-SLAPP statute. (§ 425.16, subd. (a).) We neither weigh credibility nor compare the weight of the evidence. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)

II. Protected activity

When evaluating the moving party’s threshold showing, courts answer two questions: “(1) what conduct does the challenged cause of action ‘arise[ ] from’; and (2) is that conduct ‘protected activity’ under the anti-SLAPP statute?” (Mission Beverage Co. v. Pabst Brewing Co., LLC (2017) 15 Cal.App.5th 686, 698; Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062–1063 (Park).)

A. Arises from
B.
Analysis of the first question focuses on the substance of the lawsuit; we disregard the claim’s labels. (Aguilar v. Goldstein (2012) 207 Cal.App.4th 1152, 1160.) “A cause of action ‘arises from’ protected activity when the ‘cause of action itself’ is ‘based on’ protected activity.” (Mission Beverage Co. v. Pabst Brewing Co., LLC, supra, 15 Cal.App.5th at p. 698.) “We consider ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ ” (Zhang v. Jenevein (2019) 31 Cal.App.5th 585, 592–593.) Incidental or collateral allegations, and “[a]llegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 394 (Baral).) The decisive question is not what the defendant’s motive was for the act, but “ ‘whether the plaintiff’s cause of action itself was based on an act in furtherance of the defendant’s right of petition or free speech.’ ” (Crossroads Investors, L.P. v. Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757, 776.) The point is that protected activity must supply elements of the challenged claim. (Park, supra, 2 Cal.5th at p. 1063.)

C. Protected activity
D.
Analysis of the second part of the moving party’s threshold showing, namely whether activity is protected under the anti-SLAPP statute, turns not on First Amendment law, but rather on the statutory definitions in section 425.16, subdivision (e). (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 422.) Section 425.16, subdivision (e) defines four categories of protected activity. This appeal focuses on two of the four statutory definitions. Specifically, the Association argues that plaintiffs’ claims arise from activity protected under section 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,” and (e)(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.”

III. Application

A. The anti-SLAPP statute does not apply to the causes of action for breach of the CC&Rs (1st & 3rd), declaratory relief (5th), breach of fiduciary duty (6th), negligence (7th), nuisance (9th), and violation of Civil Code section 4775 (10th)
B.
Both subdivisions (e)(3) and (e)(4) of section 425.16 contain the requirement that the defendant’s constitutionally-protected speech or petitioning activity be made in connection with “ ‘an issue of public interest.’ ” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123.) As it did below, the Association relies on a series of cases involving anti-SLAPP motions brought in lawsuits between a homeowner association (HOA) and homeowners, which hold that for a dispute involving an HOA to constitute an “issue of public interest” under subdivisions (e)(3) and (e)(4) of section 425.16, there must be “an ongoing controversy, dispute or discussion” affecting a substantial portion of a community, not simply the plaintiff and defendant. (See, e.g., Colyear v. Rolling Hills Community Assn. of Rancho Palos Verdes (2017) 9 Cal.App.5th 119, 131–133 [dispute involved all development property subject to covenants]; Lee v. Silveira (2016) 6 Cal.App.5th 527, 540 [dispute affected most or all HOA members]; Country Side Villas Homeowners Assn. v. Ivie (2011) 193 Cal.App.4th 1110, 1118 [dispute affected all HOA members]; Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1468 [dispute involved 523 lots in development]; Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 [dispute over HOA manager’s style affecting 3,000 residents].) However, we do not reach the public interest portion of the definition because we conclude that the lawsuit does not arise from protected speech or petitioning activity in the first place, irrespective of whether the challenged conduct was connected to an issue of interest to all of the residents.

A fair reading of the first amended complaint shows that, with the exception of certain parts of the second, fourth, and eighth causes of action, plaintiffs’ claims do not target speech or petitioning activity by the Association. The complaint alleges that the Association failed to conduct repairs, i.e., that it did not act. The first, third, sixth, and seventh causes of action allege that the Association breached the CC&Rs, and its fiduciary duty and duty of care to plaintiffs by failing to maintain the building and to make repairs, modifications, and improvements, and by failing to respond to plaintiffs’ requests for repairs. The fifth cause of action for declaratory relief asks for a determination of the Association’s obligation to respond to plaintiffs’ concerns and to conduct inspections and repairs. Plaintiffs allege in the ninth and tenth causes of action that the Association’s “fail[ure] to adequately repair and maintain the Building” constituted a nuisance, and violated the Association’s Civil Code section 4775 common-area maintenance obligations. These allegations of failure to act arise from activity similar to conduct that was deemed to be nonprotected in Aguilar v. Goldstein, supra, 207 Cal.App.4th at p. 1161 (allegations of failure to give information not subject to § 425.16), and PrediWave Corp. v. Simpson Thacher & Bartlett LLP (2009) 179 Cal.App.4th 1204, 1226–1227 (allegations of failure to investigate or give information not subject to § 425.16).

The Association points to other activity alleged in the complaint, namely, imposing fines and fees on plaintiffs; enforcing the CC&Rs; and demanding that plaintiffs cease conducting repairs, storing their tricycles, and growing and selling marijuana. The Association contends that these activities involve speech and petitioning protected by the anti-SLAPP statute because they are the result of its interpretation of the CC&Rs, votes, and decisions made at its board’s meetings, mediation, and notices and letters sent by it and its counsel to enforce the board’s disciplinary decisions. The contention fails for two reasons.

First, as opposed to the action of individual board members, a board’s collective action is not protected speech or petitioning merely because the challenged action or decision was taken by vote after discussion at a public meeting. (See San Ramon Valley Fire Protection Dist. v. Contra Costa County Employees’ Retirement Assn. (2004) 125 Cal.App.4th 343, 353; see also Schwarzburd v. Kensington Police Protection & Community Services Dist. Bd. (2014) 225 Cal.App.4th 1345, 1349–1355.) The reason is that the complaint is based on action taken by the entity, not speech or votes of the individuals. (San Ramon, at pp. 346–347.)

Our Supreme Court reached the same conclusion in Park, supra, 2 Cal.5th at page 1061, an action against the Board of Trustees of the California State University—but not against the individual trustees—for the board’s decision to deny the plaintiff professor tenure. The Park court highlighted the difference between the ultimate decision made by a board to deny tenure, and individual speech and petitioning that may have preceded, contributed to, or communicated, that decision. (Id. at pp. 1064, 1066, 1071.) The high court explained, “to deny protection to individuals weighing in on a public entity’s decision might chill participation from a range of voices desirous of offering input on a matter of public importance. But no similar concerns attach to denying protection for the ultimate decision itself, and none of the core purposes the Legislature sought to promote when enacting the anti-SLAPP statute are furthered by ignoring the distinction between a government entity’s decisions and the individual speech or petitioning that may contribute to them.” (Id. at p. 1071, italics added.)

Here, the Association’s alleged liability in the above-cited causes of action arises from its collective failure to make repairs, failure to apply the CC&Rs evenhandedly, and its ultimate decisions to amend the CC&Rs and to impose fees and fines on plaintiffs for violating those CC&Rs. The decisions of the Association form the core injury-producing conduct alleged there.

The authorities on which the Association relies are unavailing because unlike those cases, the complaint here contains no allegation challenging what individual members of the Association discussed in meetings or how the individual board members voted. (See Lee v. Silveira, supra, 6 Cal.App.5th at pp. 542–543 [protected activity challenged how HOA members voted]; Damon v. Ocean Hills Journalism Club, supra, 85 Cal.App.4th at p. 479 [lawsuit arose from letters and articles criticizing manner of member’s governance].) Nor does the complaint target what was said in meetings, notices, and letters. (See Ruiz v. Harbor View Community Assn., supra, 134 Cal.App.4th at p. 1467 [letters from HOA attorney alleged to be defamatory]; Country Side Villas Homeowners Assn. v. Ivie, supra, 193 Cal.App.4th at p. 1118 [complaint targeted statements made by homeowner at HOA meeting].) The complaint here does not allege that any particular statement was defamatory, and it does not target as injury-producing conduct any specific statement or petitioning activity, just the ultimate decisions and failure to act.

Second, the Association’s contention that the complaint arises out of its protected activity fails because the mere fact that its decisions were communicated by notices and letters does not mean that that speech is protected by the anti-SLAPP statute. As stated in Park, supra, 2 Cal.5th at page 1068, the “decision may have been communicated orally or in writing, but that communication does not convert [the] suit to one arising from such speech.” The letters and notices alleged in the complaint here merely communicated the Association’s decisions. They also provide context to the bitter dispute between the Association and plaintiffs over maintenance of the building and the Association’s decision to impose fines and fees on plaintiffs for violating the CC&Rs. As it is collateral to the causes of action, which are based on the ultimate decisions, the conduct the Association cites is not subject to section 425.16. (See Baral, supra, 1 Cal.App.5th at p. 394.)

C. The second, fourth, and eighth causes of action are mixed.
D.
A different analysis applies to the second and fourth causes of action for breach of the covenant of good faith and fair dealing implied in the CC&Rs, and the eighth cause of action for intentional infliction of emotional distress, all three of which causes of action are mixed. Mixed causes of action involve both the defendant’s constitutionally protected petitioning or free speech activities and nonprotected activities. (Baral, supra, 1 Cal.5th at p. 381.)

When presented with a mixed cause of action, the analysis is as follows: at “the first step, the moving defendant bears the burden of identifying all allegations of protected activity, and the claims for relief supported by them. When relief is sought based on allegations of both protected and unprotected activity, the unprotected activity is disregarded at this stage. If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff’s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken. Allegations of protected activity supporting the stricken claim are eliminated from the complaint, unless they also support a distinct claim on which the plaintiff has shown a probability of prevailing.” (Baral, supra, 1 Cal.5th at p. 396.)

Although the special motion and briefs do not identify specific allegations of protected activity in these causes of action, other than the allegation that the Association harassed and intimidated De Groot, the Association did argue that all of its alleged conduct was protected. As our review is de novo, we consider the second, fourth, and eighth causes of action for protected claims, while disregarding the unprotected claims. The eighth cause of action alleges that the Association (1) “orchestrated false complaints against [p]laintiffs”; (2) “called for law enforcement” to raid plaintiffs’ home and had plaintiffs arrested; and (3) “intimidated and threatened [p]laintiffs” at board hearings, causing plaintiffs emotional distress. The second and fourth causes of action allege that the Association breached the implied covenant (4) “by harassing and intimidating De Groot.”

The first and second claims enumerated above about complaining to and calling law enforcement arise from protected activity. (See, e.g., Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1511 [report child abuse to police protected activity]; Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569–1570 [report of child abuse to police strikeable as protected activity].) We thus must determine whether plaintiffs carried their burden to show that these specific claims based on protected activity are legally sufficient and factually substantiated, i.e., whether plaintiffs’ showing, if accepted by the fact finder, would be sufficient to sustain a favorable judgment. (Baral, supra, 1 Cal.5th at p. 396.) We must determine whether plaintiffs’ evidence establishes “at least ‘minimal merit.’ ” (Park, supra, 2 Cal.5th at p. 1061.) If not, the claim is stricken. (Baral, at p. 396.)

De Groot declared that after she filed a lawsuit against the Association, “law enforcement raided our home and arrested [Martinez]. I believe this was the result of a false complaint filed by . . . Weston or other board members.” Martinez declared that Weston admitted he called the police to raid plaintiffs’ home and arrest Martinez, which Martinez believed was based on false information because he was legally authorized to cultivate marijuana. Martinez described a meeting in Weston’s law offices, where he “felt as if the board had already decided they wanted [plaintiffs] out.” After the meeting, a security guard followed Martinez outside. Then, board members, attorneys, and “intimidating security guards showed up [at a planned Association inspection of plaintiffs’ unit] as if [plaintiffs] were some kind of criminals.” Weston went to several of Martinez’s criminal hearings and unsuccessfully attempted to negotiate with Martinez’s attorney.

Martinez claimed that the police report indicated that no crime had been committed. Plaintiffs have therefore demonstrated prima facie that the reports to the police were knowingly false with the result that plaintiffs met their burden to show that the first and second enumerated claims were legally sufficient and substantiated. (See Siam v. Kizilbash, supra, 130 Cal.App.4th at pp. 1569–1570.)

As for the third and fourth enumerated claims of intimidating and threatening plaintiffs at board hearings, and harassing and intimidating De Groot, insofar as these claims are premised on statements made by particular board members, they could arise from protected activity. (See, e.g., Damon v. Ocean Hills Journalism Club, supra, 85 Cal.App.4th at p. 479; Country Side Villas Homeowners Assn. v. Ivie, supra, 193 Cal.App.4th at p. 1118.) Plaintiffs, however, have not submitted evidence about what was said at board meetings to intimidate them as alleged in the eighth cause of action, and De Groot’s declaration does not identify harassing and intimidating statements towards her as alleged in the second and fourth causes of action. Thus, plaintiffs have not carried their burden to show a probability of prevailing on the claims of threatening and intimidating De Groot or intimidating and threatening plaintiffs at hearings scheduled by the Association.

DISPOSITION

The order of June 21, 2018 denying the special motion to strike is modified to strike from the complaint the claims of “harassing and intimidating De Groot,” and that defendants “intimidated and threatened Plaintiffs at various hearings scheduled and organized by the Association and its Board.” As modified, the order is affirmed. The parties are to bear their own costs on appeal.

NOT TO BE PUBLISHED.

DHANIDINA, J.

We concur:

LAVIN, Acting P. J.

EGERTON, J.