Judge Lisa K. Sepe-Wiesenfeld, Case Number: 23SMCV00122, Date: 2023-11-22 Tentative Ruling

Judge: Lisa K. Sepe-Wiesenfeld, Case: 23SMCV00122, Date: 2023-11-22 Tentative Ruling

Case Number: 23SMCV00122 Hearing Date: November 22, 2023 Dept: N

TENTATIVE RULING

Defendants Via Marina Tahiti Homeowners Association, Devon Britton, Jesse Hernandez, Mary Hewitt, and Michael Higgins’ Special Motion to Strike Portions of Plaintiff’s Second Amended Complaint Under Anti-SLAPP Statute [C.C.P. § 425.16] is GRANTED. Defendants Via Marina Tahiti Homeowners Association, Devon Britton, Jesse Hernandez, Mary Hewitt, and Michael Higgins’ Request for Attorney Fees and Costs is GRANTED in the amount of $3,960.00.

Defendants Via Marina Tahiti Homeowners Association, Devon Britton, Jesse Hernandez, Mary Hewitt, and Michael Higgins to give notice.

REASONING

Defendants Via Marina Tahiti Homeowners Association, Devon Britton, Jesse Hernandez, Mary Hewitt, and Michael Higgins (“Defendants”) move to strike portions of Plaintiff Lawrence Silver (“Plaintiff”)’s complaint, specifically the entirety of paragraph 14; the entirety of the first cause of action for violation of right to assembly and non-commercial speech, including paragraphs 21, 22, 23, and 24; and the portion of paragraph 34 within the fourth cause of action which states that “Defendants failed in their duty of care and loyalty when they threatened to censure Plaintiff for exercising his rights of assembly and noncommercial speech” (Compl. ¶ 34). Defendants argue these allegations arise from protected activity – specifically, the alleged act of censure constitutes protected activity because it allegedly occurred during an association meeting, and it pertains to a matter of public interest – and Plaintiff cannot demonstrate a likelihood of success on the merits because he has no free speech right to distribute board information, and no censure was actually made.

This motion first came on for hearing on October 12, 2023, and the Court ordered the parties to submit a joint brief regarding the appeal of the Court’s order denying Plaintiff’s request for a preliminary injunction, as the appeal is still pending. The parties provide legal authority stating that “an appeal from the denial of a preliminary injunction does not stay further trial court proceedings on the merits” (Varian Medical Systems, Inc. (2005) 35 Cal.4th 180, 191), and both parties wish that this motion move forward at this juncture. The Court finds it proper to consider the merits of this motion and rule accordingly.

Background

Plaintiff is a member of the Via Marina Tahiti Homeowners Association (“the HOA”) and a director on the HOA’s Board of Directors (“the board”). (Compl. ¶ 1.) Defendants Devon Britton, Jesse Hernandez, Mary Hewitt, and Michael Higgins are also directors on the board. (Compl. ¶¶ 3-6.) Plaintiff alleges that prior to the HOA meeting on October 12, 2022, Plaintiff received a Board packet which included a report about the HOA’s balconies, and Plaintiff forwarded the report to the former president of the HOA, who posted the report on a private Facebook page in use by members of the HOA. (Compl. ¶¶ 12-13.) The HOA’s counsel confronted Plaintiff about disclosing confidential information, and meetings have since been held without Plaintiff’s presence due to this disclosure. (Compl. ¶¶ 15-18.) Plaintiff contends the report was not designated as confidential, and he was not given notice that the board was discussing his actions or consulting with counsel for the HOA. (Compl. ¶¶ 12, 14.) Plaintiff alleges that counsel for the HOA advised Defendants Britton, Hernandez, Hewitt, and Higgins to determine that Plaintiff was a violator of confidentiality and to create an executive committee of the board to exclude Plaintiff where anything confidential would be discussed without Plaintiff’s participation. (Compl. ¶ 15.) Plaintiff alleges that Defendants are holding executive meetings without him, and topics include assessments on members. (Compl. ¶ 18.) Plaintiff believes the board will further continue to meet without him and withhold HOA information and documents from him unless enjoined from doing so. (Compl. ¶ 20.)

Based on these allegations, Plaintiff alleges claims for (1) violation of right to assembly and non-commercial speech, (2) violation of the California Common Interest Development Open Meeting Act, (3) violation of right to inspect, (4) breach of fiduciary duty, and (5) declaratory relief.

Legal Standard

The California legislature has authorized a special motion to strike that may be filed in lawsuits that seek to “chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a).) Code of Civil Procedure section 425.16, subdivision (b)(1), provides:

A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.

Accordingly, section 425.16 posits a two-step process for determining whether an action is a strategic lawsuit against public participation (SLAPP). First, the Court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. (See Code Civ. Proc., § 425.16, subd. (b)(1).) “A defendant meets this burden by demonstrating that the act underlying the plaintiff’s cause fits one of the categories spelled out in [section 425.16,] subdivision (e).” (Braun v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1043.) Those categories include “(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).) If defendant makes a threshold showing that the challenged cause of action is one arising from protected activity, the burden shifts to the plaintiff to establish a likelihood of prevailing on the complaint. (See Code Civ. Proc., § 425.16, subd. (b)(1).)

First Prong: Claims Arising from Protected Activity

To invoke Code of Civil Procedure section 425.16, a defendant need only demonstrate that a suit arises from the defendant’s exercise of free speech or petition rights. (See Code Civ. Proc., § 425.16, subd. (b); City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (City of Cotati).) This is determined by “the gravamen or principal thrust of the action.” (See In re Episcopal Church Cases (2009) 45 Cal.4th 467, 477.) “In the anti-SLAPP context, the critical point is 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.” (City of Cotati, supra, 29 Cal.4th at p. 78.) “In making its determination, the court shall consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (Code Civ. Proc., § 425.16, subd. (b)(2).)

Defendants move to strike paragraph 14, Plaintiff’s first cause of action, and a portion of his fourth cause of action. Specifically, Defendants take issue with the following language from Plaintiff’s complaint:

At an executive meeting held on October 12, 2022, Plaintiff was confronted with the surprise appearance of HOA counsel who claimed that the other four (4) directors alerted her to the “fact” that Plaintiff had disclosed “highly confidential” information to people outside of the Board and that this act was a violation of the confidentiality requirements of the HOA. Prior to this meeting, Plaintiff was given no notice that the other Board members were discussing any of his actions that they were consulting with counsel for the HOA – this issue also did not appear on the

notice of the meeting.

(Compl. ¶ 14.) Plaintiff alleges in his first cause of action that Civil Code section 4515 directs that the governing documents of a common interest development shall not prohibit a member from distributing information about issues of concern to members and residents without prior permission, and Defendants’ attempt to censure Plaintiff for distributing the report is a violation of Plaintiff’s rights of assembly and noncommercial speech. (Compl. ¶¶ 21-24.) Plaintiff also alleges in paragraph 34 in his fourth cause of action that Defendants failed in their duty of care and loyalty to Plaintiff when they threatened to censure him for exercising his rights of assembly and noncommercial speech. (Compl. ¶ 34.)

These allegations make clear that Plaintiff’s first cause of action, as well as the allegations in paragraphs 14 and 34, arise out of Defendants’ conduct at an HOA board meeting. In paragraph 14, Plaintiff takes issue with a purported censure or threatened censure when Plaintiff was confronted by the HOA’s counsel. Defendants argue that such conduct fits the categories set forth in Code of Civil Procedure section 425.16, subdivisions (e)(3) and (e)(4), because the conduct at issue is “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.”

As to whether the conduct occurred in a “public forum” pursuant to Code of Civil Procedure section 425.16, subdivision (e)(3), a “‘public forum’ is traditionally defined as a place that is open to the public where information is freely exchanged,” and “board meetings of a homeowners association constitute[] a public forum within the meaning of the anti-SLAPP statute because they serve a function similar to that of a governmental body.” (Lee v. Silveira (2016) 6 Cal.App.5th 527, 539, brackets and quotation marks omitted.) “The definition of ‘public interest’ within the meaning of the anti-SLAPP statute 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.” (Id. at p. 540.)

Here, Plaintiff is attempting to hold Defendants liable for conduct that occurred during a board meeting, specifically the censure or threats to censure at the October 12, 2022, board meeting, which is a public forum under the anti-SLAPP statute. Insofar as Defendants took issue with Plaintiff’s alleged dissemination of what the board considered to be confidential information, the dispute between Plaintiff and Defendants constitutes a matter of public interest under the anti-SLAPP statute because the board was allegedly censuring a board member for disclosing information. Plaintiff argues that his claims are unrelated to Defendants’ right of petition or free speech because he takes issue with Defendants’ conduct in purportedly retaliating against him by forming a committee without Plaintiff, but his complaint makes clear that he takes issue, at least in part, with Defendants’ purported censure. Defendants are not seeking to strike the entirety of Plaintiff’s complaint, including those related to forming a committee without Plaintiff; rather, Defendants argue that the claims relating to censuring Plaintiff are within the purview of the anti-SLAPP statute, and the Court agrees. It is clear that Plaintiff takes issue with Defendants’ conduct and statements made in a public forum, the HOA board meeting, in connection with an issue of public interest, the alleged censure of Plaintiff. Thus, Defendants have made a threshold showing that the challenged claims in paragraphs 14 and 34, and Plaintiff’s first cause of action, are claims arising from protected activity. The Court advances its analysis to the second prong to determine whether Plaintiff can succeed on his claims.

Second Prong: Plaintiff’s Likelihood of Prevailing on the Merits

If the defendant makes a threshold showing that the challenged cause of action is one arising from protected activity, the burden shifts to the plaintiff to establish a likelihood of prevailing on the complaint. (See Code Civ. Proc., § 425.16, subd. (b)(1).) “In order to establish a probability of prevailing on the claim, a plaintiff responding to an anti-SLAPP motion must state and substantiate a legally sufficient claim.” (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821, superseded by statute on other grounds as noted in Hutton v. Hafif (2007) 150 Cal.App.4th 527, 547, citation, quotation marks, and brackets omitted.) To do so, “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 if the evidence submitted by the plaintiff is credited.” (Ibid., quotation marks omitted.) In considering whether a plaintiff’s claim has merit, “the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant,” and while “the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.” (Ibid., emphasis in original.)

Under Civil Code section 4515, subdivision (b)(5), the governing documents of a common interest development shall not prohibit a member from “[d]istributing or circulating, without prior permission, information about common interest development living, association elections, legislation, election to public office, or the initiative, referendum, or recall processes, or other issues of concern to members and residents at reasonable hours and in a reasonable manner,” and members shall also not be prohibited from using social media to discuss issues of concern to members and residents under Civil Code section 4515, subdivision (b)(6). Plaintiff argues that he is likely to succeed on his first cause of action because Defendants created an executive committee without him, and they sent him packets with everything marked confidential.

Notably, the first cause of action does not include either of these allegations. Plaintiff also fails to provide evidence of either in support of his motion. Plaintiff’s failure to provide evidence, including even his own declaration, precludes a finding that he is likely to prevail on his claims. Even if Plaintiff had provided evidence to support his arguments, Defendants provide the declaration of Defendant Devon Britton who states that the board had concerns about Plaintiff’s distribution of board information, and at the October 12, 2022, meeting, the HOA’s counsel advised Plaintiff that he was wrong to distribute the report and that he could not distribute board information to the membership that had not been reviewed by the board or otherwise. (Mot., Britton Decl. ¶ 7.) This does not constitute a “censure,” as it was merely an admonishment by the board and the HOA’s counsel. Further, Civil Code section 4935, subdivision (a), provides that “[t]he board may . . . meet solely in[] executive session to consider litigation, matters relating to the formation of contracts with third parties, member discipline, [or] personnel matters.” Insofar as Plaintiff contends this cause of action relates to the formation of an executive session without him, such conduct is permitted under Civil Code section 4935, and there is no basis to conclude that such conduct is barred by Civil Code section 4515.

The Court finds that Plaintiff has failed to show he is likely to prevail on the merits of his claims. Accordingly, Defendants Via Marina Tahiti Homeowners Association, Devon Britton, Jesse Hernandez, Mary Hewitt, and Michael Higgins’ Special Motion to Strike Portions of Plaintiff’s Second Amended Complaint Under Anti-SLAPP Statute [C.C.P. § 425.16] is GRANTED.

Attorney Fees and Costs

Defendants request an award of attorney fees and costs pursuant to Code of Civil Procedure section 425.16, subdivision (c), which provides that “a prevailing defendant on a special motion to strike shall be entitled to recover that defendant’s attorney’s fees and costs.” (See American Humane Association v. Los Angeles Times Communications (2001) 92 Cal.App.4th 1095, 1103 [“There are three ways the special motion to strike attorney fee issue can be raised. The successful defendant can: make a subsequent noticed motion as was envisioned by defendant in this case; seek an attorney fee and cost award at the same time as the special motion to strike is litigated as is often done; or as part of a cost memorandum”].)

The fee setting inquiry in California ordinarily “begins with the ‘lodestar’ [method], i.e., the number of hours reasonably expended multiplied by the reasonable hourly rate.” (Graciano v. Robinson Ford Sales, Inc. (2006) 144 Cal.App.4th 140, 154.) “[A] computation of time spent on a case and the reasonable value of that time is fundamental to a determination of an appropriate attorneys’ fee award.” (Margolin v. Reg’l Planning Comm’n (1982) 134 Cal.App.3d 999, 1004.) Defendants request an award of $3,962.00 for fees and costs relating to this motion, which consists of 12 hours spent preparing the motion, two-and-a-half hours reviewing and analyzing the opposition, three hours preparing the reply, and two hours preparing for an attending the hearing on the motion, at the rate of $200 per hour. The Court finds that this is a reasonable number of hours spent on the motion, and the work was done at a reasonable rate. Thus, the Court awards Defendants $3,900 in attorney fees, plus a filing fee of $60, for a total fees and costs award of $3,960.00.