Judge: Andrew E. Cooper, Case: 23CHCV00154, Date: 2024-11-15 Tentative Ruling

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Case Number: 23CHCV00154    Hearing Date: November 15, 2024    Dept: F51

ANTI-SLAPP MOTION TO STRIKE

Motion Filed: 2/24/23

MOVING PARTY: Defendant Suvany Cowie (“Defendant”)

RESPONDING PARTY: Plaintiff West Creek and West Hills Community Association, a California non-profit mutual benefit corporation (“Plaintiff”)

NOTICE: OK 

RELIEF REQUESTED: An order striking the entire complaint, or in the alternative, an order striking various allegations contained therein. Plaintiff also seeks to recover attorney fees and costs in the total amount of $23,024.20.

TENTATIVE RULING: The motion is denied.

REQUEST FOR JUDICIAL NOTICE: Defendant’s request for judicial notice is granted.

EVIDENTIARY OBJECTIONS: Defendant’s evidentiary objection Nos. 1–3, 5, 28–34, 45–46, 71–76, 78–80, 82, 85, 89–92, 94–100, 102–113, 133–134, 136, 154–157, 159–162, 165, 177, 183–184, 186–194, 196–197, 199–200, and 202–205 are overruled.

Defendant’s evidentiary objection Nos. 4, 47, 69–70, 77, 81, 83–84, 86, 93, 101, 158, 166, 170, 178, 198, and 201 are sustained.

BACKGROUND

This is an action brought by Plaintiff, a homeowners’ association, against Defendant, a former member of Plaintiff’s board of directors, alleging that Defendant engaged “in certain acts and omissions in violation of the Governing Documents and California law to the detriment of the Association, its Community and its members.” (Compl. ¶¶ 10, 15.) Plaintiff alleges that despite a settlement agreement entered into by the parties on 12/3/21, “Defendants violated the Settlement Agreement on multiple occasions, as described below, and refused to abide by the terms and conditions to which she had agreed.” (Id. at ¶ 19.)

“Defendants’ collective violative conduct includes, without limitation, the following:

·         Breach of Code of Conduct (Exh. B.);

·         Disruption of Board meetings;

·         Preventing Board executive session meetings from being conducted in a reasonable time period;

·         Impairing the Board’s ability to conduct Association business

·         Disrespecting management staff;

·         Refusing to leave physical location of Board meeting after showing up ill and having to be escorted from the meeting location, thus delaying meeting and interfering with Association management company business;

·         Interfering with Association landscaping vendor, including by following workers around Community to harass and/or disparage and continuing to harass, intimidate and/or bully them through the internet;

·         Sending at least 7 email communications to management in violation of Sections 2.3, 2.2.1, 2.2.2 and 2.2.3 of the Settlement Agreement between May 2022 and July 2022;

·         Using social media to target and harass specific owners, Association Board members and/or Association Committee members;

·         Making false statements about Board decisions;

·         Making false accusations about Board members;

·         Providing misinformation and/or misleading to homeowners in the Community to improperly influence elections;

·         Using the auspice of the Association to become embroiled in and to interfere with personal of Board members, Committee members and Association members to cause them harm;

·         Refusal to voluntarily recuse herself from Board decisions in which she was an interested party and/or maintained a conflict of interest;

·         Potential sharing of confidential information with persons outside of the Board; [and]

·         Otherwise causing the Association to become susceptible to exposure for legal claims by other persons.” (Id. at ¶ 25.)

Plaintiff alleges that “the aforesaid acts by Defendant far exceed reasonable criticism, disagreement or expression of viewpoint and, instead, have arisen to unprotected forms of speech designed to disparage, harass, intimidate, bully, vex, annoy and cause distress to the Association, its Board members, Committee members and homeowner members.” (Id. at ¶ 26.)

On 1/20/23, Plaintiff filed its complaint against Defendant, alleging the following causes of action: (1) Breach of Contract; (2) Specific Performance; (3) Breach of Contract; (4) Specific Performance; (5) Breach of Fiduciary Duty; (6) Breach of CC&Rs; (7) Negligence; (8) Nuisance; (9) Declaratory Relief; and (10) Interference with Contractual Relations.

On 2/24/23, Defendant filed the instant special anti-SLAPP motion to strike. On 10/30/24, Plaintiff filed its opposition. On 11/5/24, Defendant filed her reply.

ANALYSIS

A special motion to strike strategic lawsuits against public participation (“SLAPP” actions) provides a procedural remedy to dismiss at an early stage nonmeritorious litigation meant to chill the valid exercise of the constitutional rights to petition or engage in free speech. (Code Civ. Proc. § 425.16; Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 642; Dziubla v. Piazza (2020) 59 Cal.App.5th 140, 148.) The anti-SLAPP statute is intended to “encourage continued participation in matters of public significance;” therefore, it is to be “construed broadly.”¿ (Code Civ. Proc. § 425.16, subd. (a).)¿

The anti-SLAPP statute sets forth a two-step procedure for determining whether a cause of action is a SLAPP action.¿(Code Civ. Proc. § 425.16, subd. (b); Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009.) First, the court must determine whether the defendant has made a prima facie showing that the defendant’s acts of which plaintiff complains were taken in furtherance of the defendant’s constitutional rights of petition or free speech in connection with a public issue.¿(Code Civ. Proc. § 425.16, subd. (b)(1).) If the court finds that the defendant has met its threshold burden, the burden then shifts to the plaintiff to show that there is a probability that the plaintiff will prevail on the claim.¿(Ibid.; Governor Gray Davis Com. v. American Taxpayers Alliance (2002) 102 Cal.App.4th 449, 456.)

Under the statute, an “‘act in furtherance of a person’s right of petition or free speech’ 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.” (Code Civ. Proc. § 425.16, subd. (e).)

A.    Protected Speech Activity

1.      Speech Activities at Issue

A defendant has the initial burden to show that a plaintiff’s cause of action arises from the defendant’s protected activity as defined by the anti-SLAPP statute. (Code Civ. Proc. § 425.16, subd. (b)(1).) “In deciding whether the initial ‘arising from’ requirement is met, a court considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)

Here, Plaintiff’s causes of action against Defendant arise out of Plaintiff’s conduct in violating the 12/3/21 settlement agreement and the 2/5/21 Code of Conduct agreement between the parties, as alleged in paragraphs 25 and 26 of the complaint. Defendant attaches Plaintiff’s prelitigation demand letters, which detail the conduct complained of as including: Defendant being disrespectful to third-party property management employees, conducting herself unprofessionally and adversarially, refusing to leave the management offices after complaining about experiencing illness symptoms, harassing third-party landscaping employees, violating the settlement agreement’s communications protocols, filing frivolous insurance claims, and disparaging the Board on Facebook. (Ex. 10 to Decl. of Suvany Cowie.)

Here, Defendant argues that “it is clear that Paragraphs 25 and 26 are the central pillars of the Complaint, and if Paragraphs 25 and 26 fall, so does the entire Complaint.” (Def.’s Mot. 11:26–28.) Defendant argues that the allegedly wrongful conduct “is premised upon Moving Party’s speech/criticism in Meetings;” “Moving Party’s request of documents and expression of concern about matters of community concern;” “Moving Party’s attendance at a Board Meeting;” and “Moving Party’s social media posts and statements at Board Meetings.” (Id. at 12:9–15:14.)

2.      Protected Speech

Defendant maintains that “speaking at meetings [is] protected” activity. (Id. at 12:17, citing Cabrera v. Alam (2011) 197 Cal.App.4th 1077, 1087 [“Homeowners association board meetings constitute a public forum within the meaning of the anti-SLAPP statute because they serve a function similar to that of a governmental body. As our Supreme Court has recognized, owners of planned development units comprise a little democratic subsociety.” [internal quotations omitted.]].) Defendant also maintains that her social media posts are protected activities. (Id. at 14:16–17, citing Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 476 [finding that the HOA newsletter circulated to Association members and local businesses was a “public forum” for purposes of the anti-SLAPP statute.].)

Plaintiff argues in opposition that “the Complaint is not premised on her many social media (Facebook) posts devoted to criticizing members of Plaintiff’s community, but rather on enforcing valid contracts between Plaintiff and Defendant (settlement agreement, code of conduct and CC&Rs) and to stop her interference with Plaintiff’s contractual and business relations.” (Pl.’s Opp. 1:10–13.) “This lawsuit seeks remedy for an abusive pattern of conduct that has weakened the fabric of Plaintiff’s community.” (Id. at 2:8–9.)

Plaintiff contends that “Defendant glosses over the mutual settlement between the parties, whereby she agreed to follow Plaintiff’s CC&Rs and governing documents, comply with established Board procedures, and consent to a mutually acceptable communication protocol that respects her free speech rights while preserving the Board’s legal obligation to manage business operations for the benefit of nearly 2,000 homeowners.” (Id. at 1:17–21.) Plaintiff further asserts that “the Association never prohibited Defendant from posting on social media, nor is Plaintiff seeking such relief now.” (Id. at 4:17–18.)

Here, while the Court agrees with Defendant that homeowners’ association meetings are public forums, it also notes that it is incorrect to “imply anything touching upon a homeowners association is per se a public issue.” (Dubac v. Itkoff (2024) 101 Cal.App.5th 540, 551.) “The ultimate question is whether a statement ‘furthered public discussion of the public issues it implicated.’” (Id. at 549.) Here, Plaintiff argues that Defendant’s conduct is not protected speech because “for those relevant allegations that may relate to speech by Defendant, her violations were not made publicly, in furtherance of public interest or in response to a specific public event.” (Id. at 5:21–22.)

In Dubac, the Court of Appeal held that statements and emails exchanged by neighbors in a housing complex comprising of six units did not contribute to public discussion of public issues, and thus, were not protected under the anti-SLAPP statute. (101 Cal.App.5th 540.) In doing so, the Dubac court found that “five factors generally tend to make a statement implicate a public interest: (1) The statement concerns a person or entity in the public eye; (2) the statement concerns conduct that could directly affect a large number of people beyond the direct participants; (3) the statement concerns a topic of widespread public interest; (4) the issue is of concern to a substantial number of people; or (5) the issue has been the subject of extensive media coverage.” (Id. at 548–549.) “Important contextual factors include the (1) identity and number of speakers, (2) the audience, (3) the location of the communication, and (4) the purpose and timing of the communication.” (Id. at 550.) After applying the five factors, above, the Dubac court concluded that “the record offers no objective basis for saying anyone outside the building had any ‘public’ interest in this poisoned relationship between neighbors. A matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest.” (Id. at 554–555.)

Here, Plaintiff argues that “utilizing the factors in Dubac, none of Defendant’s conduct toward Board members, owners and vendors concerns a person in public eye, her statements could not directly affect a large number of people besides the direct participants, her statements did not concern a topic of widespread public interest, the issues she raised were not of concern to a substantial number of people and her issues were not the subject of any media coverage.” (Pl.’s Opp. 6:2–6.) Instead, “Defendant’s statements concern the personal lives of Board members and owners, their employment and schools, and other aspects that are not of general significance to the Association or matters of public interest for the community.” (Id. at 6:9–11.)

The Court disagrees and finds that Dubac is distinguishable on the facts because the speech at issue concerned private emails communicated between a handful of neighbors, largely concerning a neighbor’s alleged mistreatment of another neighbor’s daughter. (101 Cal.App.5th at 554.) Here, the Court notes the undisputed fact that the common interest development governed by Plaintiff consists of nearly 2,000 homes. Furthermore, as Defendant argues, Plaintiff’s prelitigation letters concede that Defendant has made “numerous representations … in the public eye concerning the election and other Association matters.” (Ex. 17 to Cowie Decl. [emphasis added]; see also Ex. 12 to Cowie Decl. [“while you complain in emails that you are upset things other Board members say in meetings, you are doing the same exact thing outside of meetings - but in a public way and in writing.” [emphasis added]].)

The Court also notes that “statements made in connection with elections to the board of directors constitute a public issue in that such elections affect all members of the homeowners association and concern a fundamental political matter—the qualifications of a candidate to run for office.” (Cabrera, 197 Cal.App.4th at 1089 [internal quotations omitted].) To this extent, the Court finds that Defendant’s social media posts concerning Board elections and boardmembers’ conduct are considered protected speech activity under the anti-SLAPP statute.

The Court finds that Defendant has met her initial burden to show that Plaintiff’s action partially arises from Defendant’s protected activity.

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B.     Probability of Plaintiff Prevailing

The second step of the inquiry requires the plaintiff to demonstrate that its claims have at least “minimal merit.” (Bonni, 11 Cal.5th at 1009.) At this stage, 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. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 891; Navellier, 29 Cal.4th at 88–89.) The court does not weigh credibility or the comparative strength of the evidence offered by the parties. (Overstock.com, Inc. v. Gradient Analytics, Inc. (2007) 151 Cal.App.4th 688, 699–700.)

1.      Breach of Contract

Plaintiff’s first and third causes of action allege Breach of Contract against Defendant. To state a cause of action for breach of contract, a plaintiff must be able to establish “(1) the existence of the contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.)

Here, Plaintiff argues that despite agreeing to certain communications protocols, “Cowie breached the Settlement and COC when she, among other violations, ‘continued to disrupt meetings and the Board’s ability to conduct business.’” (Pl.’s Opp. 7:26–27, citing Decl. of Torrance Flynn ¶¶ 29–35.) Defendant argues in reply that “any contracts which stifle her free speech rights are void against public policy.” (Def.’s Reply 11:19, citing Civ. Code §§ 3513; 4515, subd. (b); 5105.) The Court notes that this argument is raised for the first time in reply, and therefore declines to address it. (Campos v. Anderson (1997) 57 Cal.App.4th 784, 794, fn.3 [“Points raised in the reply brief for the first time will not be considered, unless good reason is shown for failure to present them before. To withhold a point until the closing brief deprives the respondent of the opportunity to answer it or requires the effort and delay of an additional brief by permission.”].)

Based on the foregoing, the Court finds that Plaintiff has sufficiently made “a prima facie showing of facts to sustain a favorable judgment” on its contract claims and as such, has met its responsive evidentiary burden to show a probability that it may prevail on its Breach of Contract causes of action against Defendant. (Navellier, 29 Cal.4th at 89.)

2.      Specific Performance

Plaintiff’s first and third causes of action allege Specific Performance against Defendant. “Specific performance and injunctive relief are equitable remedies and not causes of action for injuries.” (Wong v. Jing (2010) 189 Cal.App.4th 1354, 1361, fn. 2.) Here, Plaintiff asserts that “in light of Defendant’s pattern of breaches and refusal to voluntarily comply, Plaintiff seeks a court order requiring Defendant to perform under the Settlement Agreement and COC.” (Pl.’s Opp. 8:25–27.) As the Court finds that Plaintiff has met its burden to make a prima facie showing of facts to, if credited, sustain a favorable judgment on its Breach of Contract causes of action, the Court likewise finds that Plaintiff has made a sufficient showing that its Specific Performance causes of action may prevail.

3.      Breach of Fiduciary Duty

Plaintiff’s fifth cause of action allege Breach of Fiduciary Duty against Defendant. “The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary duty, and damages.” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.) Here, Plaintiff argues that “as a Board member, Defendant owed fiduciary duties to the homeowners.” (Pl.’s Opp. 9:15, citing Raven’s Cove Townhomes, Inc. v. Knuppe Development Co. (1981) 114 Cal.App.3d 783, 799 [“the duty of undivided loyalty … applies when the board of directors of the Association considers maintenance and repair contracts, the operating budget, creation of reserve and operating accounts, etc.”].) Here, Plaintiff asserts that “Defendant’s breaches of those duties are abundant as Defendant has, for years, used her position of power to harm the Association and its owners and vendors.” (Pl.’s Opp. 9:16–17.)

Plaintiff’s arguments are based on the 12 declarations submitted in support of its opposition, on behalf of its present and past Board members, homeowners, committee members and vendors, attesting to Plaintiff’s alleged misconduct. Based on the foregoing, the Court finds that Plaintiff has sufficiently made “a prima facie showing of facts to sustain a favorable judgment” on its Breach of Fiduciary Duty cause of action and as such, has met its responsive evidentiary burden to show a probability that it may prevail on its fifth cause of action against Defendant. (Navellier, 29 Cal.4th at 89.)

4.      Breach of CC&Rs

Plaintiff’s sixth cause of action alleges Breach of CC&Rs against Defendant. The homeowners’ association of a common interest development has the power and duty to enforce the project restrictions (“CC&Rs”) and other governing documents. (Civ. Code §§ 5975, subd. (a); 5980.) Here, Article 8.2.4 of Plaintiff’s CC&Rs provides that “no noxious or offensive activity shall be carried on in any Lot or Condominium or any part of the Community, nor shall anything be done thereon which may be, or may become, an annoyance or nuisance to the neighborhood, or which shall in any way interfere with the quiet enjoyment of each of the Owners of such Owner’s respective Lot or Condominium or which shall in any way increase the rate of insurance.” (Ex. A to Compl., p. 44, ¶ 8.2.4.)

Plaintiff alleges that “from approximately January 2022 to the present, Defendants engaged in the conduct set forth in Paragraphs 19 through 26, in violation of Article 8, Section 8.2.4 and other provisions of the CC&Rs.” (Compl. ¶ 71.) Specifically, Plaintiff asserts that “many owners have been prevented from quietly enjoying their homes and community due to Defendant. Several homeowners declare that, because of Ms. Cowie, they avoid using the common area amenities in the Association and/or avoid areas of the community altogether …, avoid participating in social activities … and avoid participating in the Association altogether despite interest in doing so.” (Pl.’s Opp. 10:13–17, citing Decl. of Lisa Ely ¶¶ 7–15; Decl. of Vlad Beytelman ¶¶ 6–14, 17; Decl. of Jennifer Corrigan ¶¶ 10, 16–17; Decl. of Anthony Stafford ¶¶ 4–13; Decl. of Brian Bosshard ¶¶ 4–8.)

Based on the foregoing, the Court finds that Plaintiff has sufficiently made “a prima facie showing of facts to sustain a favorable judgment” on its Breach of CC&Rs cause of action and as such, has met its responsive evidentiary burden to show a probability that it may prevail on its sixth cause of action against Defendant. (Navellier, 29 Cal.4th at 89.)

5.      Negligence

Plaintiff’s seventh cause of action alleges Negligence against Defendant. To state a claim for negligence, a plaintiff must allege the elements of (1) “the existence of a legal duty of care,” (2) “breach of that duty,” and (3) “proximate cause resulting in an injury.” (McIntyre v. Colonies-Pacific, LLC (2014) 228 Cal.App.4th 664, 671.) Here, Plaintiff argues that Defendant negligently breached her duty of care to Plaintiff, as set forth under Corporations code section 309, subdivision (a), “by gaslighting several homeowners through false accusations in an effort to chill volunteerism and smear reputations.” (Pl.’s Opp. 12:5–6.) In support of its arguments, Plaintiff proffers those declarations from homeowners attesting that Defendant’s behavior and statements deterred them from participating in community leadership and social activities. (Ely Decl. ¶¶ 7–15; Beytelman Decl. ¶¶ 6–14, 17; Corrigan Decl. ¶¶ 10, 16–17; Stafford Decl. ¶¶ 4–13; Bosshard Decl. ¶¶ 4–8.)

Based on the foregoing, the Court finds that Plaintiff has sufficiently made “a prima facie showing of facts to sustain a favorable judgment” on its negligence claims and as such, has met its responsive evidentiary burden to show a probability that it may prevail on its seventh cause of action against Defendant. (Navellier, 29 Cal.4th at 89.)

6.      Nuisance

Plaintiff’s eighth cause of action alleges Nuisance against Defendant. To establish an action for private nuisance, (1) “the plaintiff must prove an interference with his use and enjoyment of his property”; (2) “the invasion of the plaintiff’s interest in the use and enjoyment of the land must be substantial, that is, that it causes the plaintiff to suffer substantial actual damage”; (3) “the interference with the protected interest must not only be substantial, but it must also be unreasonable, i.e., it must be of such a nature, duration, or amount as to constitute unreasonable interference with the use and enjoyment of the land.” (Mendez v. Rancho Valencia Resort Partners, LLC (2016) 3 Cal.App.5th 248, 262–263.)

Here, Plaintiff argues that “at a minimum, Ms. Cowie has engaged in nuisance conduct toward many different homeowners where she has actively prevented them from the quiet enjoyment of their homes and the community.” (Pl.’s Opp. 10:27–11:1.) “Several witnesses declare that Cowie has stifled community volunteerism. For the same reasons why Plaintiff demonstrates a probability of prevailing on the merits of the breach of CC&R claim relative to nuisance conduct, Plaintiff demonstrates a probability of prevailing on its nuisance claim under the Civil Code.” (Id. at 11:12–15.) The Court agrees.

Based on the foregoing, the Court finds that Plaintiff has sufficiently made “a prima facie showing of facts to sustain a favorable judgment” on its nuisance claims and as such, has met its responsive evidentiary burden to show a probability that it may prevail on its eighth cause of action against Defendant. (Navellier, 29 Cal.4th at 89.)

7.      Interference with Contractual Relations

Plaintiff’s tenth cause of action alleges Interference with Contractual Relations against Defendant. “The elements which a plaintiff must plead to state the cause of action for intentional interference with contractual relations are (1) a valid contract between plaintiff and a third party; (2) defendant’s knowledge of this contract; (3) defendant’s intentional acts designed to induce a breach or disruption of the contractual relationship; (4) actual breach or disruption of the contractual relationship; and (5) resulting damage.” (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126.)

Here, Plaintiff argues that Defendant interfered with Plaintiff’s contracts with both its third-party property management (“PMP”) and landscaping (“Marina”) companies. Plaintiff asserts that “on multiple occasions, Defendant disrupted the PMP office, where approximately 40 staff members work. … Defendant disrespected PMP staff members and created a stressful work environment. … Defendant’s disrespect for PMP, aside from violating the COC, jeopardized and continues to jeopardize Plaintiff’s contractual relationship.” (Pl.’s Opp. 13:25–14:2, citing Decl. of Brandon Grosh ¶¶ 4–21; Decl. of Kelly Rackers ¶¶ 4–29.) Plaintiff further contends that “Defendant created a stressful work environment for Marina when she followed and disparaged its employees as they tried to work.” (Id. at 14:4–5, citing Flynn Decl. ¶¶ 46–47; Decl. of Stacey Brenner ¶¶ 21–22, 24.)

Based on the foregoing, the Court finds that Plaintiff has sufficiently made “a prima facie showing of facts to sustain a favorable judgment” on its Interference with Contractual Relations cause of action and as such, has met its responsive evidentiary burden to show a probability that it may prevail on its tenth cause of action against Defendant. (Navellier, 29 Cal.4th at 89.)

8.      Declaratory Relief

Plaintiff’s ninth cause of action alleges Declaratory Relief against Defendant. “To qualify for declaratory relief, a party would have to demonstrate its action presented two essential elements: (1) a proper subject of declaratory relief, and (2) an actual controversy involving justiciable questions relating to the party’s rights or obligations.” (Jolley v. Chase Home Finance, LLC (2013) 213 Cal.App.4th 872, 909.) Here, Plaintiff asserts that “Plaintiff’s legal remedies pass scrutiny because the Association has shown it will prevail on the merits of other claims triggering injunctive and declaratory relief.” (Pl.’s Opp. 14:23–24.) The Court agrees.

Based on the foregoing, the Court finds that Plaintiff has sufficiently made “a prima facie showing of facts to sustain a favorable judgment” in the instant action. (Navellier, 29 Cal.4th at 89.) Accordingly, Defendant’s special anti-SLAPP motion to strike Plaintiff’s complaint is denied. The Court therefore finds that as Defendant has not prevailed on the instant motion, she is not entitled to recover attorney fees pursuant to Code of Civil Procedure section 425.16, subdivision (c). The Court likewise finds that the motion was not frivolously brought and therefore denies Plaintiff’s request to recover attorney fees for the same.

CONCLUSION

The motion is denied.