Summary by Pejman D. Kharrazian, Esq.:

Management company and the owner of the management company, who also served as the community manager for a 28-unit senior mobile home community (hereinafter “Plaintiffs”), sued Kashay who is a resident and owner of the mobile home community for defamation. The Plaintiffs’ defamation claim was based on the following: (1) Kashay raised her concerns to other members about Plaintiffs’ handing of the association’s finances, their handling of a recent board election, and the Plaintiff manager’s general mistreatment of other members; (2) Kashay filed a criminal complaint with the Sheriff’s Department alleging the Plaintiff manager committed elder abuse; and (3) Kashay also filed a complaint against Plaintiff management company with the Better Business Bureau (“BBB”) claiming the management company violated its contract with the association. In response to Plaintiffs’ defamation lawsuit, Kashay filed an anti-SLAPP motion. While the trial court denied Kashay’s anti-SLAPP motion, on appeal the appellate court found that Kashay’s criminal complaint, complaint to the BBB, and statements made to the community related to Plaintiffs’ handling of the association’s finances and recent board election were protected activity under the anti-SLAPP statute. The appellate court remanded the matter to the trial court for the trial court to consider whether Plaintiffs could demonstrate that their claims are meritorious such that they would likely prevail at trial.

TAKEAWAY: Homeowner criticisms of board members, the association’s management company, or the association’s manager related to association business or other association matters may be protected activity under the anti-SLAPP statute. Consequently, if a complaint is based on a defendant’s protected activity, the plaintiff may need to overcome a defendant’s anti-SLAPP motion before the lawsuit can move forward.
Additionally, it is extremely important to have all of the evidence needed to prove each element of defamation before filing a defamation lawsuit. It is also important to confirm that any witnesses are able and willing to testify in support of your defamation claim.

***End Summary***

2022 Cal. App. Unpub. LEXIS 1970; 2022 WL 951238.

No. D078302.

Court of Appeals of California, Fourth District, Division One.

Lynna Kashay, in pro. per., for Defendant and Appellant.

Lowell Robert Fuselier, in pro. per., for Plaintiffs and Respondents.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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.

DO, J.

INTRODUCTION

Lowell Robert Fuselier, a California licensed attorney and real estate broker, owns and runs Ambassador Real Estate, Inc. (Ambassador), a property and homeowner association management service company. In July 2019, Osborne Mobile Home Park (Osborne Park), through its homeowner’s association (HOA), hired Ambassador to manage the HOA. Osborne Park is a senior community of 28 units with residents 55 years or older. Soon after Ambassador was hired, Lynna Kashay, a resident, raised concerns about the company’s management of the HOA, including its handling of the election of the HOA Board of Directors and Fuselier’s mistreatment of the members. Those concerns prompted Kashay to report Fuselier for elder abuse to the San Diego County Sheriff’s Department and to file a business complaint with the Better Business Bureau (BBB).

As a result, Ambassador and Fuselier (together, Plaintiffs) sued Kashay for defamation. As alleged in their complaint, the alleged defamatory statements arose from Kashay: (1) making a “criminal complaint against F[uselier] for [e]lder [a]buse to the San Diego Sheriff”; (2) filing “a business complaint against A[mbassador]” to the BBB; and (3) making various, vague statements “publicly” about Plaintiffs’ performance of their professional duties in managing the HOA.^[1]

Kashay filed a special motion to strike the complaint as a strategic lawsuit against public participation (SLAPP) (Code Civ. Proc., § 425.16),^[2] asserting that Plaintiffs filed the defamation action to chill her and other members of Osborne Park in “their attempt to speak out” against Plaintiffs’ mismanagement of the HOA. The trial court denied the anti-SLAPP motion, finding that Kashay failed to establish the alleged defamatory statements arose from any protected activity. We conclude that was error and we reverse.

FACTUAL AND PROCEDURAL BACKGROUND

I.

Relevant Facts

Osborne Park is a senior mobile home community of 28 separate units, located in Vista, California. Osborne Park was incorporated as a California non-profit mutual benefit corporation in 1987. Osborne Park, Inc. (OPI) is the corporate entity for Osborne Park. In 2018, OPI filed a “Statement by Common Interest Development Association” with the Secretary of State of California, in which it declared that it was a common interest development (CID) under the Davis-Stirling Common Interest Development Act (Davis-Stirling Act) (Civ. Code, § 4000 et seq.).^[3]

The OPI articles of incorporation stated that its purpose “is to provide its members with space for mobile homes and community facilities on a non-profit basis.” The articles also stated that “any adult person” approved by the Board of Directors shall be eligible for membership, but that “at least eighty percent (80%)” of the heads of household must be 55 years of age or older, and that “no one under 45 may reside in [Osborne] Park.” (All capitalizations omitted.) According to Kashay, Osborne Park provides housing for low-income seniors, many of whom are primarily homebound due to illness or disability.

In July 2019, OPI hired Ambassador to manage the HOA. They entered into an “HOA Management Retainer Agreement” (the Agreement) for Ambassador to serve as the HOA’s “exclusive managing agent as that term is defined in California Civil Code section 4158.”^[4] Civil Code section 4158 is part of the Davis-Stirling Act and defines “`managing agent'” as “a person who, for compensation or in expectation of compensation, exercises control over the assets of a common interest development.” (Civ. Code, § 4158, subd. (a).) The Agreement provided that Ambassador “shall utilize its experience, professional skills and knowledge to assist the [HOA]’s Board and its committees in accordance with generally accepted industry standards in the area of Common Interest Development Management.” Among other responsibilities, Ambassador was to help the HOA’s Board of Directors in “accurately maintain[ing]” HOA records to comply with the Davis-Stirling Act.

In the summer of 2019, Kashay became a resident at Osborne Park.^[5] Approximately six months later, in December 2019, Kashay was nominated to the HOA Board of Directors along with four other residents—Bill Bouma, John Fageol, Steve Guidry, and Sharon Payne. As reflected in the minutes of the December 10, 2019 board meeting, the nominees assumed their board positions without “the expense of an election” because “there were only nominations equal to the number of vacant positions.” Kashay “offered to be President” and Payne “offered to be Treasurer, but there was no motion or vote taken by the board to appoint the officers.”

Conflict quickly followed. According to Fuselier, Kashay “concluded that she was the President of [the] Osborne HOA over the objection of other board members.” She “immediately began issuing instructions to A[mbassador] regarding the finances of the [Osborne Park] HOA” but “A[mbassador] refused to follow [her] instructions.” When Fuselier “refused to support Kashay’s contention that she was appointed president,” Kashay “began a slanderous campaign” attacking Fuselier’s and Ambassador’s competency, “made a criminal complaint against F[uselier] for [e]lder [a]buse,” and filed a business complaint against Ambassador with the BBB.

On December 30, 2019, Fuselier sent an email to Kashay. He told Kashay: “You have 24 hours to withdraw your complaint to the BBB. If you do not, you will be named as a defendant in a suit for slander per se that I will file with the Superior Court this week. [¶] Also, if I hear that you spoke my name or the name Ambassador for any reason to anyone, I will file the action in the Superior Court.” (Italics added.) Three days later, on January 2, 2020, Fuselier and Ambassador filed this lawsuit against Kashay for defamation.

II.

The Defamation Lawsuit

In their complaint, Ambassador and Fuselier alleged their “business reputation for providing professional and ethical services to the public is critical to its success in the market place.” Further, “[k]eeping a client requires A[mbassador] to maintain a positive and trusting relationship with the HOA Board and the individual homeowners in an HOA.”

Plaintiffs alleged the Osborne Park HOA hired Ambassador to be its manager in July 2019. They attached to the complaint a copy of the Agreement for Ambassador to provide “HOA management” for Osborne Park. In December 2019, “[i]n accordance with California [l]aw and Osborne’s CC&R’s, A[mbassador] prepared election materials for the election of the Board of Directors,” but the election became unnecessary because “there were only nominations equal to the number of vacancies.” Plaintiffs also attached to the complaint a copy of the minutes of the December 10, 2019 board meeting, which showed Bouma, Fageol, Guidry, Payne and Kashay were nominated to the Board of Directors.

Plaintiffs alleged Kashay “nominated herself” for a position on the Board. “At the December 20, 2019 meeting, a disagreement arose about who should be president.” Kashay had “offered to be president . . . [but] no motion was made, and no vote was taken by the Board on the matter as required for the appointment of an officer pursuant to Osborne’s CC&R’s.” Plaintiffs also alleged that “Osborne’s CC&R’s require[ed] a minimum of six (6) months residency in the HOA in order to be eligible to hold a Board position” and Kashay’s “residency [was] less than 6 months at the drafting of [the] complaint.”

Plaintiffs alleged Kashay “nevertheless concluded that she was the President of [the] Osborne HOA over the objection of other board members.” She “immediately began issuing instructions to A[mbassador] regarding the finances of the HOA” but Ambassador refused to follow her instructions. Kashay then “attempted to intimidate board members into accepting her as the President” and, when they refused, Kashay “began a slanderous campaign to convince homeowners [to] force the Board to cancel A[mbassador]’s contract.”

“As part of that effort, K[ashay] made a criminal complaint against F[uselier] for [e]lder [a]buse to the San Diego Sheriff,” and “openly and publicly accused F[uselier] of the crime of [e]lder [a]buse.” Kashay then “made a second report to the San Diego Sheriff of a suspicious person harassing elderly people” while Fuselier was conducting business at the park. Law enforcement responded and Kashay identified Fuselier “as that `dangerous person.'”

Plaintiffs alleged Kashay “filed a business complaint against A[mbassador] and falsely stated in that complaint: Bob F[uselier], A[mbassador] Property Management, violating Osborne Park’s Contract. When these issues were brought to his attention, he slandered, smeared, called names, threatened, harassed, bullied and intimidated. He’s also taking advantage of the elderly and disabled.” (Italics omitted.)

Plaintiffs further alleged, “[i]ncluded but not limited to the following summary, K[ashay] has falsely and publicly stated that A[mbassador] and F[uselier] have committed crimes; breached fiduciary duties while performing their professional duties; committed gross negligence in the performance of their professional duties; breached their Contract while performing their duties; conduct[ed] management duties contrary to the Davis Sterling [sic] Act et seq.; conducted a fraudulent election; [committed] incompetence in performing management duties; improperly handled HOA funds; and [committed] the crime of [e]lder [a]buse in performing their management duties.”

Plaintiffs alleged Kashay’s statements were false, she knew them to be false and they were malicious because she made them with the intent to cause Plaintiffs injury and damage. Asserting a single cause of action for defamation, both libel and slander, Plaintiffs sought compensatory damages in an amount “exceeding $50,000” and an additional $100,000 in punitive damages.

III.

The Anti-SLAPP Motion

A. Kashay’s Anti-SLAPP Motion

As a self-represented litigant, Kashay filed a special motion to strike the complaint pursuant to section 425.16. Kashay asserted Plaintiffs filed the complaint “as an attempt to chill [hers and] an entire senior community’s First Amendment Right of free speech and their attempt to speak out regarding the way they are being treated by Plaintiff[s], improper elections, violations of [the HOA’s] Bylaws/CCRs, violations of [the] Davis-Stirling Law, and other laws.” She asserted the defamation cause of action arose from activities protected under section 425.16,^[6] and identified the following three specific categories of protected speech.

First, Kashay asserted her statements criticizing Plaintiffs’ performance as the HOA manager were protected speech. She explained that “[t]here [wa]s an ongoing controversy of holding official, proper, defensible, and lawful elections of [the Osborne Park HOA] Board” that began “on or before September 10, 2019.” At some point, Kashay “was informed” by homeowners “of election irregularities,” including that “some members were not given nomination forms,” “election rules were not disseminated,” and “write-in candidates were not allowed.” So she “began communicating about the elections being improper, asking for new elections, and documenting” Plaintiffs’ alleged mishandling of the elections.

Relying on this court’s decision in Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468 (Damon), she argued the Osborne Park HOA was a “quasi-governmental entity” with “legislative, judicial, and executive duties,” and that Plaintiffs’ performance and failure to hold proper elections were “topics of public interest” that directly impacted “a narrow and definable portion of the public, namely all [28 Osborne Park members].” Thus, she contended, her statements criticizing Plaintiffs in their performance as HOA manager, specifically regarding unlawful elections, were protected speech under section 425.16, subdivisions (e)(1) through (e)(4), and were further protected as pre-litigation communication.

Second, Kashay asserted any reports to law enforcement were protected speech. She explained that she “learned from multiple” homeowners that Payne, who was appointed to the board and was a signatory on the HOA bank accounts, had a stroke in the past and is 80 years old. She asserted that “many” homeowners became “alarmed” when Payne allegedly “moved” HOA money into a new bank account with Ambassador, and the HOA “may have lost control and/or ownership of its Reserve Account funds.” On December 17, 2019, Payne told Kashay “that she was `confused’ as to why she moved . . . [HOA] money to new bank accounts, . . . that she was directed to do so by [Fuselier], and . . . that she didn’t want to be on the . . . Board but was `forced'” by Fuselier.

As a result, Kashay asserted that “[s]ome” homeowners reported “suspicions” of elder abuse to “the [p]olice.” When the police arrived on December 19, 2019, “multiple” homeowners “informed” the police “about the circumstances that they were aware of and the police looked into the matter.” Kashay pointed out that the San Diego County District Attorney’s public website encourages “`[a]nyone who has even the slightest suspicion that an elder or dependent adult is a potential victim of abuse’ “to report their concerns, and argued such reports are protected under section 425.16, subdivision (e)(1) and (e)(2). She further asserted that “[a]ll communications leading up to calling the [p]olice, with the [p]olice, and about what happened with the [p]olice” are protected activities under section 425.16, subdivision (e)(3) and (e)(4) as they, too, pertained to matters of public interest concerning a definable portion of the public.

Third, Kashay asserted her filing of the BBB complaint was protected activity. She explained that she “started a BBB reconciliation/arbitration process” regarding Plaintiffs and their “potentially unlawful activities” on December 28, 2019. She asserted that the topics addressed in the complaint were, similarly, of public interest and that “[o]nline reviews of service providers are a matter of public concern, because of the community interest in staying informed about the quality of services rendered by businesses.” She stated that she “attempted to write [an] opinion that was true and accurate regarding the services of Ambassador.” But on December 30, 2019, Fuselier sent an email to Kashay threatening to sue her for slander if she did not withdraw the BBB complaint. She attached the email as an exhibit to the motion to strike. Kashay stated that she withdrew the BBB complaint on January 2, 2020 “in response to threats [by Fuselier] of being sued if it was published.”

Kashay asserted the BBB “provides a platform and reconciliation/arbitration process to address disputes before involving the courts” and the process is substantially similar to pre-litigation communications. Thus, she argued her communications with the BBB were protected activity under section 425.16, subdivisions (e)(1) through (e)(4), as well as the pre-litigation privilege.

Although Kashay did not file a separate declaration in support of her motion to strike, Kashay personally signed the motion since she was acting in pro. per. She also attached a number of exhibits to the motion, which she asserted substantiated her claims. Among those already described, the exhibits include multiple petitions for a special meeting regarding a new election submitted by other HOA members, surveys of several HOA members regarding the allegedly improper elections, and a January 26, 2020 email from Fuselier suggesting the HOA Board of Directors not respond to the petitions. The email’s subject line was “Official Park Business[/]4th Petition for Special Meeting About Elections” and in it Fuselier told the directors, “I suggest that you do not respond to her improper demands.” Kashay also submitted a redacted bank statement for an account named “Osborne Park . . . Reserve Account,” which showed Ambassador was also named on the account.

To substantiate her claim that Fuselier was engaging in “threatening or inflaming” conduct, Kashay submitted a copy of a letter written by Fuselier on Ambassador’s letterhead, dated January 16, 2020, to another member of the HOA Board of Directors. In the letter, Fuselier told the director: “I have not done anything inappropriate, illegal, or unethical. Please stop shouting in my face and accusing me of things that I have not done. . . . [¶] Kashay is not a member of the board of directors . . . [s]he does not have a winning hand, and you should not bet on her. [¶] . . . [¶] If it is not going to be possible for us to work together, then it is a rainy day, and it will be hard for us to play ball. Just like you, I stand my ground when people try to push me around. My preference is that we both win by working together, but if we have to be at odds, so be it. Know this for sure, I am not going anywhere.”

Kashay also submitted a letter dated October 31, 2019 that was sent to Elaine Johnson, another Osborne Park member. The letter was written by an attorney named Joseph A. Lara of the Business Law Group PC, which appears to be Fuselier’s law firm. In it, Lara stated he represented Ambassador and Fuselier and accused Johnson of “[d]efamatory [s]tatements” against Ambassador and Fuselier, including public statements that she was “going to get Ambassador fired as the HOA manager,” and demanded she “cease and desist [her] slander of both.”^[7] (Boldface omitted.)

B. Plaintiffs’ Opposition to the Anti-SLAPP Motion

Fuselier, representing himself and Ambassador, filed an opposition to the anti-SLAPP motion. Plaintiffs argued the motion to strike failed for seven reasons: (1) the alleged defamatory statements were not a matter of public interest, as they advanced Kashay’s personal agenda to be president of the HOA Board of Directors; (2) the alleged defamatory statements were not made in a public forum because Osborne Park was not a CID under the Davis-Stirling Act; (3) Kashay was not a member of the HOA and therefore did not have standing to complain; (4) the alleged defamation was “[k]nowingly [f]alse and [m]aliciously [m]ade”; (5) the motion to strike was not supported by a sworn declaration; (6) the litigation privilege does not apply; and (7) Plaintiffs had a high probability of success on the merits.

In support of their opposition, Plaintiffs filed declarations from Fuselier, Payne, Fageol, and attorney Lara. The record indicates that Fuselier “prepare[d]” both the Payne and Fageol declarations himself.^[8] Payne’s declaration stated: “I am not incompetent,” “I am not confused,” “I am not afraid,” “I am not powerless,” and “I am not controlled by Ambassador or Fuselier.” Both the Payne and Fageol declarations stated that the HOA Board of Directors removed Kashay from the board after concluding she “had not been a resident of Osborne for 6 months at the time that the new board was constituted.”

Lara averred that after researching Osborne Park’s history between February 17 to February 24, 2020, he determined Osborne Park was incorporated as a non-profit mutual benefit corporation on February 3, 1987 and, in his opinion, Osborne Park “does not meet the [Davis-Stirling Act’s] requirements for it to be considered a CID” because “there has never been CC&Rs recorded” nor has a “`final map or parcel map'” been recorded regarding the property.

In his own declaration, Fuselier provided additional details regarding the dispute that arose from the election of the HOA Board of Directors and the alleged defamation. Specifically as to the BBB complaint, Fuselier averred that Kashay “filed a defamatory complaint with the [BBB]” and “submitted an untrue review to the BBB accusing Ambassador of despicable behavior.” He disputed “K[ashay]’s claim that she withdrew the complaint” as “false.” Elsewhere, he averred that Kashay made the defamatory statements “publicly” to the BBB. He further asserted that Kashay also committed defamation by “republishing” defamatory statements made by “The San Diego Minute Men and its president, Jeff Schwilk,” whom Fuselier had represented in a federal lawsuit, regarding a legal dispute with Fuselier’s prior law firm over funds held in a trust account. Fuselier also asserted that Osborne Park “has no CC&Rs” and is not a CID.

Plaintiffs also filed evidentiary objections to Kashay’s special motion to strike, including multiple objections to nearly every statement made in the motion and to every exhibit submitted in support of the motion.

C. Kashay’s Responsive Declaration and Motion in Limine

Approximately nine days after Plaintiffs filed their opposition, Kashay filed her own declaration in support of the special motion to strike. Kashay averred that she did own a home in Osborne Park, and that she was in good standing. She further declared that Osborne Park “has had and does have ongoing controversies, that predate [her], regarding . . . having proper and lawful elections” and whether Ambassador should continue managing the HOA. She re-asserted the defamation lawsuit was a clear attempt to prevent her, and other Osborne Park members, from speaking up about these abuses. As with the original motion, Plaintiffs filed extensive evidentiary objections to Kashay’s declaration.

Kashay also filed a “Motion in Limine” before the original hearing date on her special motion to strike, in which she raised evidentiary objections to the declarations of Lara, Payne and Fageol. She attached several exhibits to the motion in limine, which she argued demonstrated the falsity of several assertions in Plaintiffs’ declarations.

Addressing Lara’s and Fuselier’s declarations averring that Osborne Park was not a CID under the Davis-Stirling Act, Kashay submitted a copy of the “Statement by Common Interest Development Association” that OPI filed with the Secretary of State in December 2018, declaring it to be a CID under the Davis-Stirling Act. She also submitted a copy of the “Statement of Information” filed with the Secretary of State certifying that Osborne Park was a CID under the Davis-Stirling Act. Fuselier himself signed the document on December 31, 2019, and it was subsequently filed with the Secretary of State on March 16, 2020, after Fuselier submitted his sworn declaration stating Osborne Park was not a CID. In response to Lara’s declaration that no final map or parcel map had been recorded for Osborne Park, Kashay submitted a copy of what appears to be a parcel map for Osborne Park with a stamp from the San Diego County Assessor’s Office stating it was prepared for purposes of assessment. The “recorder’s certificate” is dated June 1981.

In addition, Kashay attached a number of emails between Fuselier and various Osborne Park owners. In one, Fuselier stated, “[t]he Association is governed first by the Civil Code — Davis Sterling [sic] Act.” In another, dated December 13, 2019, Fuselier confirmed his understanding that Kashay was president of the HOA Board of Directors and provided her with a hyperlink to the Davis-Stirling Act so she could “familiarize [her]self with [her] responsibilities and obligations as president.” In a subsequent email dated January 27, 2020, Fuselier told Kashay the petitions she had submitted for a special meeting had been reviewed by legal counsel and were not actionable as they were not for a proper purpose.

In the motion in limine, Kashay alerted the trial court that Plaintiffs had sued three other Osborne Park members, and had threatened to sue a fourth. She concluded by stating, “[t]here are only 19 people living at Osborne Park and most of these individuals are sickly, disabled, and/or housebound. There are only a handful of active people at [Osborne Park] and Plaintiff is suing all of us.”

Plaintiffs objected to the motion in limine as an unauthorized sur-reply. In addition, they asserted the motion and the exhibits contained hearsay, and that the exhibits were not authenticated as required by Evidence Code section 1400.

D. The Trial Court’s First Tentative Ruling

On July 8, 2020, Judge Earl Maas issued a tentative ruling denying Kashay’s special motion to strike. The trial court focused exclusively on the communications regarding the allegedly improper elections and Ambassador’s performance as manager of the HOA. The court found Kashay had not proven that “a proceeding before a homeowner’s association is an `official proceeding authorized by law’ within the meaning of [section 425.16] subdivisions (e)(1) or (e)(2).” As to subdivision (e)(3), the court found Kashay “failed to establish that the alleged defamatory statements were made in a public forum.” The court stated, unlike Damon, “[t]he alleged defamatory statements [at issue here] were not made in a board meeting or an official newsletter. [Kashay] has failed to cite any authority that the e-mails and statements were made in a public forum.”<sup>[9]</sup> As to subdivision (e)(4), the court found the statements were not made in connection with an issue of public interest because they did not impact “`a broad segment of society.'” The court distinguished the present case from Damon once again, based on the fact that there were approximately 3,000 members in the HOA at issue in Damon. As a final matter, the court awarded Plaintiffs—who were represented by Fuselier in pro. per.—$12,000 in attorney fees for time spent preparing their opposition.

Kashay asked for a continuance at the July 10, 2020 hearing, due to a family emergency. The court granted the motion and continued the matter to September 11. The court also granted Kashay leave to file additional papers related to her motion, on or before August 28, and likewise permitted plaintiffs to file a reply, no later than September 4.

Kashay filed a brief opposition to the trial court’s tentative ruling on July 20, 2020. On August 28, she filed a supplemental brief. The brief was supported by her own declaration and she stated twice, at the outset and conclusion of the brief, “I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. [¶] All the content of the Motion to Strike is included herein, including any and all attachments and exhibits, under penalty of perjury.” Kashay pointed out that the complaint alleged defamation based on the reports of elder abuse to law enforcement and the BBB complaint. She asked the court to, at a minimum, strike those allegations.

On September 8, 2020, Kashay filed a second supplemental brief. Kashay alleged Plaintiffs were continuing the pattern of intimidation and threats of lawsuits against her and other members of Osborne Park. She included a declaration, under penalty of perjury, and a number of exhibits. The first exhibit is an email from Fuselier to Bouma, a member of the HOA Board of Directors, and although it is undated, the content indicates the email was at least sent after Judge Maas issued the court’s tentative ruling. Fuselier began the email with, “Bill I am so tire[d] of your stupidity,” and continued with the following statements, in part: “Ambassador is the property manager because Judge Stern of the Superior Court put me in charge of Osborne to protect the other owners. You never had the authority to fire Ambassador. Only the Board of Directors for Osborne can fire me, and that is not you and your band of crazies.” Fuselier attached Judge Maas’s tentative ruling on the motion to strike to the email, and told Bouma:

“The things you and your group have said about me are actionable in court. That is where Kashay is now. She lost her motion to stop my case, and the judge sanctioned her $12,000 for her meritless motion. His ruling is attached. . . . She will pay a lot more for slandering me and Ambassador after the trial. So will anyone else that damages my reputation as a professional, ethical and honest businessman in the community.” (Italics added.)

The other exhibits include a number of other emails and letters from Fuselier to various Osborne Park members, similarly calling them “ignorant” and a “band of crazies” and threatening, “I am currently dealing with Kashay in Superior Court, and I will deal with the others in due time.”

E. The Trial Court’s Order Denying the Motion

On September 9, 2020, Judge Maas recused himself based on “familiarity . . . with one of the parties.”

After hearing argument on September 18, 2020, Judge Jacqueline M. Stern, now presiding, denied the anti-SLAPP motion. In the written order, the court noted that it “could disregard all pleadings [Kashay] filed after July 20, 2020, as unauthorized sur-replies.” However, despite what the trial court characterized as Kashay’s “blatant disregard for the court’s orders,” the court stated that it had exercised its discretion to consider all of the various supplemental materials submitted by both sides. The court did not, however, rule on any of the myriad evidentiary objections raised by Plaintiffs.

With respect to the merits, the trial court’s written order provides largely the same analysis, using verbatim much of the same language, as the previous tentative order issued by Judge Maas on July 8, 2020. However, unlike the previous tentative ruling, Judge Stern denied Plaintiffs’ request for attorney’s fees. First, the court found “[t]he motion was not frivolous in that it mostly involved statements criticizing the handling of a homeowner’s association election.” And second, Fuselier represented himself and was not entitled to an attorney fee award, as a matter of law. Kashay timely appealed.

DISCUSSION

I.

Relevant Legal Principles

Section 425.16, the anti-SLAPP statute, provides a mechanism to protect defendants from meritless lawsuits that chill their exercise of constitutional rights to speech and petition. (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 883-884; Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral); § 425.16, subd. (a).) The statute provides in pertinent part: “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.” (§ 425.16, subd. (b)(1).) The statute creates a summary-judgment-like procedure that allows for early dismissal of actions deemed to be strategic lawsuits against public participation, or SLAPP suits. (Baral, at p. 384, fn. 5; see Navellier v. Sletten (2002) 29 Cal.4th 82, 85.)

As the California Supreme Court recently explained, in Baral, a single cause of action may include multiple claims. In the context of a motion to strike pursuant to section 425.16, “courts may rule on plaintiffs’ specific claims of protected activity,” even if those claims are mixed, in a single cause of action, with other claims arising out of activity that is not protected by the statute. (Baral, supra, 1 Cal.5th at p. 393; accord Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009-1011 (Bonni) [confirming “courts should analyze each claim for relief—each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action—to determine whether the acts are protected”].)

Our high court then summarized the showings and findings required by section 425.16: “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.)

On appeal, we independently review a trial court’s order denying a special motion to strike pursuant to section 425.16. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 (Soukup).) Like the trial court, “[w]e consider `the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based.’ [Citation.] However, we neither `weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant’s evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law.'” (Ibid.)

As this court recently explained in Medical Marijuana, Inc. v. ProjectCBD.com (2020) 46 Cal.App.5th 869 (Medical Marijuana), “`the issues in an anti-SLAPP motion are framed by the pleadings.’ [Citations.] Thus, the act or acts underlying a claim for purposes of an anti-SLAPP statute is determined from the plaintiffs’ allegations. [Citation.] Because the issues to be determined in an anti-SLAPP motion are framed by the pleadings, we will not `insert into a pleading claims for relief based on allegations of activities that plaintiffs simply have not identified. . . . It is not our role to engage in what would amount to a redrafting of [a] complaint in order to read that document as alleging conduct that supports a claim that has not in fact been specifically alleged, and then assess whether the pleading that we have essentially drafted could survive the anti-SLAPP motion directed at it.'” (Id. at p. 883.)

The complaint at issue pleads a single cause of action for defamation. Defamation occurs either through libel or slander. (Civ. Code, § 44.) “`The elements of a defamation claim are (1) a publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to injure or causes special damage.'” (John Doe 2 v. Superior Court (2016) 1 Cal.App.5th 1300, 1312.) Libel is defamation based on a publication in writing or other fixed, visible representation (Civ. Code, § 45; see Medical Marijuana, supra, 46 Cal.App.5th at p. 884), while slander is based on an oral utterance (Civ. Code, § 46).

Both libel and slander have special pleading requirements. Because defamation “is not committed unless the defamatory matter is `published’ or communicated to a third person[,] . . . publication must be pleaded.” (5 Witkin Cal. Procedure (5th ed. 2008) Pleading, § 740, p. 160.) Further, “`[t]he general rule is that the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint.'” (Medical Marijuana, supra, 46 Cal.App.5th at p. 884, quoting Kahn v. Bower (1991) 232 Cal.App.3d 1599, 1612, fn. 5.) The pleading requirements for slander are less strict, but even when pleading slander, “the substance of the defamatory statement” must be alleged. (Okun v. Superior Court (1981) 29 Cal.3d 442, 458 (Okun).) No matter the theory of defamation, the complaint must be alleged with sufficient certainty to “`acquaint [the] defendant with what he must defend against.'” (Medical Marijuana, at p. 894, quoting Albertini v. Schaefer (1979) 97 Cal.App.3d 822, 832-833; see also Okun, at p. 458 [discussing pleading requirements for slander; stating the complaint must “give[ ] notice of the issues sufficient to enable preparation of a defense”].)

II.

Kashay Met Her Initial Burden of Establishing the Defamation Claims

Arise Out of Protected Activity

Kashay asserts, as she did in the trial court, that the complaint alleged three categories of defamatory statements: (1) communications to law enforcement reporting elder abuse; (2) communications with the BBB in connection with a consumer complaint; and (3) communications criticizing Plaintiffs’ performance as the HOA manager, including the refusal to hold lawful elections.

Relying on Baral, Kashay contends the trial court erred by failing to address the allegations related to the first two categories. We agree. (See Bonni, supra, 11 Cal.5th at pp. 1009-1011 [“courts should analyze each claim for relief—each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action—to determine whether the acts are protected”]; Baral, supra, 1 Cal.5th at p. 393 [“courts may rule on plaintiffs’ specific claims [within a cause of action] of protected activity”].) For reasons that are not apparent, the court focused solely on Kashay’s communications regarding Plaintiffs’ management of the HOA, and did not address the reports of elder abuse to law enforcement or the BBB complaint.

Kashay also asserts the trial court erred by concluding her communications criticizing Plaintiffs’ performance as the HOA manager were not protected speech because the communications did not occur in a public forum and did not pertain to issues of public interest. We agree with this contention as well. On our independent review, we conclude that Kashay has met her initial burden of establishing that all three categories of communications underlying Plaintiffs’ defamation claim fall within protected speech under section 425.16, subdivisions (e)(1), (e)(2), (e)(3), and (e)(4).

A. Communications to Law Enforcement

First, Plaintiffs alleged Kashay “made a criminal complaint against F[uselier] for [e]lder [a]buse to the San Diego Sheriff,” and “made a second report to the San Diego Sheriff of a suspicious person harassing elderly people in Osborne [Park],” whom she later identified as Fuselier. Reports of criminal activity to law enforcement are generally protected activity under section 425.16, subdivisions (e)(1) and (e)(2), as communications made in connection with an official proceeding authorized by law, so long as the reports are not admittedly false. (See Chabak v. Monroy (2007) 154 Cal.App.4th 1502, 1512 [complaints about abuse to investigative authorities arise from the right to petition the government and are protected]; but see Lefebvre v. Lefebvre (2011) 199 Cal.App.4th 696, 705 (Lefebvre) [uncontested allegation of false criminal report made for purpose of gaining litigation advantage not protected].) Plaintiffs do not contend otherwise.

Rather, in summary fashion, Plaintiffs assert that “Kashay knows her claim that Fuselier is committing elder abuse by forcing Member Payne to remain a board member is false.” As an initial matter, the allegations in the complaint are not specific to Payne. Plaintiffs alleged Kashay reported to law enforcement that Fuselier was “harassing elderly people.” Further, Plaintiffs provide no evidence that Kashay knows her claim to be false or, more importantly, that she knew it to be false when she made the report. They assert in their response brief, based on their declarations, that “[b]oth F[a]ge[o]l and Payne deny being helpless fools.” However, it is apparent from the record that it was Fuselier himself that prepared the declarations signed by Payne and Fageol. Beyond those declarations, Plaintiffs rely solely on Fuselier’s own conclusory self-serving declaration. While we accept the evidence presented by plaintiff as true under the relevant standard of review (Soukup, supra, 39 Cal.4th at p. 269, fn. 3), we may disregard “declarations that lack foundation or personal knowledge, or that are argumentative, speculative . . . or conclusory” (Gilbert v. Sikes (2007) 147 Cal.App.4th 13, 26 (Gilbert)).

Moreover, Kashay disputes that the reports were false. She contends that several Osborne Park residents had concerns over Plaintiffs’ conduct, including but not limited to Plaintiffs’ control over Payne, and that several residents made good faith complaints regarding elder abuse, which the authorities investigated. An admission that a report to law enforcement was false may render the report unlawful, thereby removing it from the protection of the anti-SLAPP statute, but the mere allegation that the report was false is not sufficient. (See Lefebvre, supra, 199 Cal.App.4th at p. 705 [admittedly false police report not protected]; Kenne v. Stennis (2014) 230 Cal.App.4th 953, 966-967 [finding an allegation that report was false insufficient to remove anti-SLAPP protection].) Where, as here, the defendant denies that the report was false, and there is no conclusive evidence to the contrary, it remains protected activity under section 425.16, subdivisions (e)(1) and (e)(2). (Kenne, at pp. 966-967.)

We therefore conclude that Kashay has met her burden of establishing the defamation claims related to Kashay’s reports of elder abuse arise from protected activity under section 425.16, subdivisions (e)(1) and (e)(2).

B. The BBB Complaint

Second, Plaintiffs alleged Kashay “publicly” filed a “business complaint” to the BBB against Ambassador in which she falsely stated: “Bob F[uselier], A[mbassador] Property Management, violating Osborne Park’s Contract. When these issues were brought to his attention, he slandered, smeared, called names, threatened, harassed, bullied and intimidated. He’s also taking advantage of the elderly and disabled.” (Italics omitted.) We note that this is the only allegedly defamatory language identified with any specificity in the complaint. (See Medical Marijuana, supra, 46 Cal.App.5th at p. 884 [“`The general rule is that the words constituting an alleged libel must be specifically identified, if not pleaded verbatim, in the complaint.'”]; Okun, supra, 29 Cal.3d at p. 458 [“the substance of the defamatory statement” must be alleged].) However, as with the reports of elder abuse to law enforcement, the trial court failed to consider whether these specific statements arose from protected activity. We conclude that they do.

Postings to consumer-oriented websites, such as Yelp or, as here, the BBB, that implicate matters of public concern that can affect other consumers—such as the business practices of a service provider—are generally considered to be protected activity under section 425.16, subdivision (e)(3). (See Chaker v. Mateo (2012) 209 Cal.App.4th 1138, 1142, 1147 (Chaker) [finding statements made on website “where members of the public may comment on the reliability and honesty of various providers of goods and services” to be protected]; Wong v. Jing (2010) 189 Cal.App.4th 1354, 1359, 1366-1367 [finding statements on Yelp criticizing dental services to be protected]); Willbanks v. Wolk (2004) 121 Cal.App.4th 883, 889-890, 894-901 [finding statements published on a consumer watchdog website concerning ethical practices of investment broker to be protected].)

“The Better Business Bureau identifies its mission as advancing trust in the marketplace by offering objective and unbiased information about business to consumers.” (Makaeff v. Trump Univ., LLC (9th Cir. 2013) 715 F.3d 254, 263 (Makaeff) [applying California law], fn. omitted.) In Makaeff, the Court of Appeals for the Ninth Circuit concluded that an individual’s statements about a business dispute to the BBB addressed issues of public interest, because “even if made in the context of a request that [the BBB] intercede in [a defendant’s private] dispute with [the subject business], [such statements] are not so easily separated from `information . . . provided to aid consumers.'” (Id. at p. 263.)

Here, Plaintiffs—in their complaint and their filings in opposition to the special motion to strike—consistently alleged that Kashay “filed a defamatory complaint with the [BBB]” and “submitted an untrue review to the BBB accusing Ambassador of despicable behavior.” In his own declaration, Fuselier specifically averred that Kashay made the defamatory statements “publicly” to the BBB.^[10] The content of the BBB complaint, as Plaintiffs have alleged, included statements that “F[uselier], A[mbassador] Property Management, violat[ed] Osborne Park’s Contract” and “[w]hen these issues were brought to [Fuselier’s] attention, he slandered, smeared, called names, threatened, harassed, bullied and intimidated. He’s also taking advantage of the elderly and disabled.” (Italics omitted.) Thus, by Plaintiffs’ own account, the BBB complaint alerted other potential consumers that might otherwise contract with Ambassador of a concern regarding Ambassador’s and Fuselier’s business practices. Accordingly, we conclude the BBB complaint qualifies as protected speech under section 425.16, subdivision (e)(3). (See Chaker, supra, 209 Cal.App.4th at pp. 1142, 1147; Makaeff, supra, 715 F.3d at p. 263.) Again, Plaintiffs do not contend otherwise.

Rather, Plaintiffs summarily state that Kashay’s desired resolution was termination of Ambassador’s contract with the HOA, and that Kashay “knows” she is not a party to that contract. But they provide no legal authority to explain why that matters to the determination of whether an otherwise legitimate consumer complaint to the BBB on a matter of public interest is protected speech under section 425.16. Moreover, to make the assertion, Plaintiffs rely primarily on conclusory statements in Fuselier’s declaration, which we may disregard, as factual support.^[11] (See Gilbert, supra, 147 Cal.App.4th at p. 26 [court may disregard “declarations that lack foundation or personal knowledge, or that are argumentative, speculative . . . or conclusory”].)

Further still, as an Osborne Park resident, Kashay had an interest in the management of the HOA, even if she was not a party to the HOA management contract itself. As was stated in Makaeff, an individual’s statements about a business dispute to the BBB addressed issues of public interest “even if made in the context of a request that it intercede in [a private] dispute with [the subject business],” because such statements “are not so easily separated from `information . . . provided to aid consumers.'” (Makaeff, supra, 715 F.3d at p. 263.) So too are Kashay’s statements to the BBB, even if (as Plaintiffs assert) her complaints involved her private dispute with Plaintiffs’ contract with the HOA. Kashay’s individual statements about a business dispute with Ambassador to the BBB are protected speech under section 425.16, subdivision (e)(3) because they are not so easily separated from the aim of providing information to aid other consumers at large.

Thus, we conclude that Kashay has met her burden of establishing the defamation claims related to the BBB complaint arise from protected activity under section 425.16, subdivision (e)(3).

C. Communications Criticizing Plaintiffs’ Management of the HOA

Third, Plaintiffs alleged, that: “Included but not limited to the following summary, K[ashay] has falsely and publicly stated that A[mbassador] and F[uselier] have committed crimes; breached fiduciary duties while performing their professional duties; committed gross negligence in the performance of their professional duties; breached their Contract while performing their duties; conduct[ed] management duties contrary to the Davis Sterling [sic] Act et seq.; conducted a fraudulent election; [are] incompeten[t] in performing management duties; improperly handled HOA funds; and [committed] the crime of [e]lder [a]buse in performing their management duties.” These “summary” allegations are too vague. As noted, we must determine “the act or acts underlying a claim for purposes of an anti-SLAPP statute . . . from the plaintiffs’ allegations,” (Medical Marijuana, supra, 46 Cal.App.5th at p. 883), but deciphering those claims are challenging when, as here, they are impermissibly vague. Taking what we can from these vague allegations, we conclude Kashay has met her burden of establishing that the alleged communications arise from protected activity as well.

As she did in the trial court, Kashay relies primarily on this court’s decision in Damon and asserts the communications criticizing Plaintiffs’ performance as the HOA manager were protected speech under section 425.16, subdivision (e)(3). In Damon, we concluded alleged defamatory statements made at an HOA board meeting and in a newsletter published by a group of residents concerning the manner in which a large residential community would be governed fell within the protection of section 425.16, subdivision (e)(3). (Damon, supra, 85 Cal.App.4th at pp. 474-475.) In reaching that conclusion, we considered both whether the statements were made in a public forum and whether they related to an issue of public interest. (Ibid.)

We observed, “[a]s our Supreme Court has recognized, [that] owners of planned development units `”comprise a little democratic subsociety[.]”‘” (Damon, supra, 85 Cal.App.4th at p. 475, quoting Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 374.) Further, “[i]n exchange for the benefits of common ownership, the residents elect a[ ] legislative/executive board and delegate powers to this board. This delegation concerns not only activities conducted in the common areas, but also extends to life within `”the confines of the home itself.”‘” (Damon, at p. 475, quoting Nahrstedt, at p. 373.) An HOA board “is in effect `a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government.’ [Citation.] [¶] Because of [an HOA] board’s broad powers and the number of individuals potentially affected by a board’s actions, the Legislature has mandated that boards hold open meetings and allow the members to speak publicly at the meetings. (Civ. Code, §§ 1363.05, 1363, 1350-1376.)” (Damon, at p. 475.) We thus concluded an HOA board meeting is a “`public forum[ ]'” within the meaning of section 425.16, subdivision (e)(3). (Ibid.)

Turning to the public issue requirement, we explained, “[t]he 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.” (Damon, supra, 85 Cal.App.4th at p. 479, cited with approval in FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 145-146 (FilmOn.com).) The alleged defamatory statements in Damon “concerned (1) the decision whether to continue to be self-governed or to switch to a professional management company; and/or (2) [plaintiff’s] competency to manage the [HOA].” (Damon, at p. 479.) We observed “the statements were made in connection with the Board elections and recall campaigns,” and noted that “`[t]he right to speak on political matters is the quintessential subject of our constitutional protections of the right of free speech. “Public discussion about the qualifications of those who hold or who wish to hold positions of public trust presents the strongest possible case for applications of the safeguards afforded by the First Amendment.”‘” (Ibid.) Thus, “[a]lthough the allegedly defamatory statements were made in connection with the management of a private homeowners association, they concerned issues of critical importance to a large segment of our local population. `For many Californians, the homeowners association functions as a second municipal government[.]'” (Ibid.)

Although the HOA at issue in Damon included a much larger number of residents, other courts have applied these same principles to smaller communities. For example, the court in Cabrera v. Alam (2011) 197 Cal.App.4th 1077 applied the reasoning in Damon to conclude the annual “untelevised” meeting and election of board of directors of a significantly smaller and less technologically sophisticated HOA likewise fell within the protection of section 425.16, subdivision (e)(3). (Id. at pp. 1087-1092.) “[T]he impact the association and its leadership had on all the residents . . . was not any less significant.” (Id. at p. 1088.) Of relevance here, relying on Damon, the Cabrera court viewed 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 [HOA] and `concern[ ] a fundamental political matter—the qualifications of a candidate to run for office.'” (Id. at p. 1089.)

Thus, as other courts have explained, communications may concern a matter of public interest, and fall under the protection of section 425.16, subdivision (e)(3), “`in cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community), [but,] the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.'” (Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1468 (Ruiz), first italics added, quoting Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 119.) Such communications are also protected under section 425.16, subdivision (e)(4). (Ruiz, at pp. 1467-1470 [private letters from community association’s attorney concerned a dispute about governance of the association, a topic of interest to the members of the association, a definable portion of the public]; see FilmOn, supra, 7 Cal.5th at pp. 148, 152 [holding that “context matters” under the catchall provision of subdivision (e)(4), requiring consideration of the “audience, speaker, and purpose” of assertedly protected speech].)

Here, the dispute related to a definable portion of the public—the elderly residents of Osborne Park. (See Ruiz, supra, 134 Cal.App.4th at p. 1468.) Further, it is apparent from the complaint and the record before us that the alleged defamatory statements here arose from and were made in connection with disputes concerning Plaintiffs’ competency to manage the HOA, the HOA board elections, and the petitions to hold a special meeting regarding those elections. These are the precise types of concerns that we found to be matters of public interest in Damon. (See Damon, supra, 85 Cal.App.4th at p. 479.) Further, like the community in Damon, the members of Osborne Park delegated matters that affected their daily lives to the HOA Board, which, in turn, served both a legislative and executive function. (Id. at p. 475.) Thus, as we concluded in Damon, Kashay’s right to speak on such matters, on behalf of herself and others living under the governance of Plaintiffs’ management and the HOA Board of Directors at Osborne Park, is a “quintessential subject of our constitutional protections of the right of free speech.” (Id. at p. 479.)

Moreover, as in Ruiz, the record also establishes that there was an ongoing dispute regarding Plaintiffs’ conduct and interaction with the HOA Board of Directors, which affected the governance of the entire low-income senior community and “therefore would also be of interest to community members,” as well as the public at large. (Ruiz, supra, 134 Cal.App.4th at p. 1468.) Kashay’s comments, at a minimum, “`contribute[d] to the public debate'” on issues related to those ongoing disputes and the inherent political issues regarding the HOA board elections and the overall governance of the HOA. (Id. at pp. 1468-1469.) Stated differently, Kashay’s statements were not just tangentially related to these topics, but rather they “furthered[ ] the discourse” on matters of critical importance to the Osborne Park community. (See FilmOn, supra, 7 Cal.5th at p. 151.) For those reasons, we independently conclude that Kashay met her initial burden of proving her communications criticizing Plaintiffs’ performance as HOA manager fell within the protection of section 425.16, subdivisions (e)(3) and (e)(4).

Plaintiffs assert, as they did in the trial court, that the communications were not made in a public forum and did not concern a matter of public interest, primarily because, as they contend, Osborne Park is a not a CID under the Davis-Stirling Act. We are not persuaded, for several reasons. First, Plaintiffs alleged in the complaint that Kashay made the allegedly defamatory statements regarding the HOA board elections and Ambassador’s management “publicly.” (Italics added.) But they now contend that Kashay actually made private statements to other Osborne Park members, orally and in personal letters and emails. They rely, at least in part, on additional allegations presented in the declarations submitted in opposition to Kashay’s special motion to strike and which attempt to expand on the vague allegations in the complaint.

Our review is delimited by the complaint itself, and not the additional allegations presented in declarations submitted only after Kashay filed her special motion to strike. (Medical Marijuana, supra, 46 Cal.App.5th at p. 883.) Kashay is not required to prove that these additional, allegedly private statements were made in a public forum when the complaint itself alleged defamation based only on vague categories of things Kashay has allegedly “falsely and publicly” stated. (See id., at pp. 898-899 [explaining the “procedural quagmire” that would result from allowing a SLAPP plaintiff to amend the complaint after the court finds the defendant has met their burden on the first prong].) Instead, we consider only the allegedly public statements that form the basis of Plaintiffs’ claims in the complaint.

Second, there is no real dispute that at the time Kashay made the allegedly defamatory statements, all parties believed that Osborne Park was a CID under the Davis-Stirling Act. Indeed, Plaintiffs attached to the complaint a copy of the “HOA Management Retainer Agreement” between the HOA Board of Directors and Ambassador, which clearly stated the board hired Ambassador “as its exclusive managing agent as that term is defined in California Civil Code section 4158 [of the Davis-Stirling Act].” Consistent with that understanding, Osborne Park filed a “Statement by Common Interest Development Association” in 2018, declaring that it was a CID with 28 separate interests.

It was only in February 2020—after both the complaint and Kashay’s special motion to strike were filed—that Lara researched whether Osborne Park was actually a CID under the Davis-Stirling Act. And contrary to Lara’s and Fuselier’s declarations in opposition to the special motion to strike, Fuselier himself signed a “Statement of Information” certifying to the Secretary of State that Osborne Park was a CID under the Davis-Stirling Act. Although he signed the document on December 31, 2019, it was filed with the Secretary of State on March 16, 2020, after Fuselier and Lara submitted sworn declarations stating Osborne Park was not a CID.

Plaintiffs further contend that Osborne Park is not a CID because it does not have recorded CC&Rs, but, again, the complaint itself alleged Osborne Park was governed by CC&Rs, in at least three different places. Thus, to accept Plaintiffs’ argument, we would have to ignore that the complaint explicitly alleged the statements were made “publicly,” that the complaint alleged Osborne Park did have CC&Rs, and that the HOA management contract attached to the complaint expressly called Osborne Park a CID under the Davis-Stirling Act. We see no reason to do so.

Regardless, it is not apparent that the analysis in Damon, or the cases that followed Damon, is limited to CIDs under the Davis-Stirling Act. Plaintiffs provide no authority suggesting it does. We noted in Damon that the Davis-Stirling Act requires HOA boards to hold open meetings, in the context of determining that the meetings were, therefore, a public forum. (Damon, supra, 85 Cal.App.4th at p. 475.) The remainder of our analysis, however, focused on the role of HOAs more generally, without any further reference to CIDs or the Davis-Stirling Act. As we explained, “[a] homeowner’s association board is in effect `a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government,'” and the private conduct of an HOA may be an issue of “`public interest'” insofar as it impacts the HOA community in a manner similar to that of a governmental entity. (Id. at pp. 475, 479, italics added.) Here, again, there was no real dispute that Osborne Park was governed by an HOA at the time Kashay made the allegedly defamatory statements. Indeed, although our review is de novo, we note that even the trial court described the alleged defamatory statements as primarily “criticizing the handling of a homeowner’s association election.”

In sum, we conclude Kashay has met her burden to establish Plaintiffs’ claims arise from protected activity under section 425.16, subdivision (e), with respect to all three categories of defamatory statements alleged in the complaint.

III.

We Decline to Make an Independent Determination of Plaintiffs’ Demonstration on the Second Prong

Because the trial court concluded Kashay had not met her initial burden to establish that the challenged cause of action arose from protected activity, it did not reach the second step of the anti-SLAPP analysis of whether Plaintiffs demonstrated a probability of prevailing on the merits or, as the Court in Baral put it, whether the claim is “legally sufficient and factually substantiated.” (Baral, supra, 1 Cal.5th at p. 396.) Plaintiffs assert, as they did in the trial court, that they have “a [h]igh [p]robability” of success on the merits.

Under the applicable standard of review, we have discretion to reach the second step and make an independent determination as to whether Plaintiffs have established a probability of prevailing. (See Collier v. Harris (2015) 240 Cal.App.4th 41, 58.) However, we decline to exercise that discretion here, because doing so would require us to consider the evidence, and the numerous evidentiary objections that have not been addressed by the trial court in the first instance.^[12] (See ibid. [noting the majority of appellate courts have declined to reach the second prong where “contested evidentiary issues existed or simply because it was appropriate for the trial court to decide the issue first”]; Baral, supra, 1 Cal.5th at p. 393 [court may strike one claim of many within a single cause of action and allegations supporting the stricken claim are eliminated from the complaint].)

Accordingly, we remand the matter to the trial court with instructions to consider whether Plaintiffs have demonstrated that each challenged claim based on protected activity is legally sufficient and factually substantiated.

IV.

Kashay Has Not Established That She Did Not Receive a Fair Hearing

Kashay asserts that she did not receive a fair hearing by an impartial judge in the trial court. She contends Judge Stern issued the order denying her special motion to strike just days after Judge Maas recused himself for familiarity with a party,^[13] and that Judge Stern’s order was substantially similar to the previous tentative decision issued by Judge Maas. Kashay does not adequately develop the argument or provide any legal authority to support her position. (See Los Angeles Unified School Dist. v. Torres Construction Corp. (2020) 57 Cal.App.5th 480, 498 [“`We may and do “disregard conclusory arguments that are not supported by pertinent legal authority or fail to disclose the reasoning by which the appellant reached the conclusions he wants us to adopt.”‘”].) But the mere fact that Judge Stern’s order is substantially similar to the previous tentative order issued by Judge Maas is not sufficient to demonstrate that Kashay did not receive a fair hearing. The transcripts from the hearing are not included in the record on appeal, and Kashay presents no other evidence of bias or impartiality. Regardless, having reviewed the issues independently under the applicable de novo standard of review, we reverse the trial court’s ruling on prong one for the reasons already stated.

V.

Attorney Fees

As a final matter, Plaintiffs assert Kashay’s special motion to strike was frivolous and requests that this court award attorney fees in an amount to be determined by the trial court. We reject that request, for three reasons. First, Plaintiffs did not file a cross-appeal from the order denying their request for attorney fees in the superior court, and do not provide any authority indicating it is appropriate for this court to award attorney fees in the first instance. Second, as the trial court noted, to the extent he is representing himself, Fuselier is not entitled to an attorney fee award as a matter of law. (See Witte v. Kaufman (2006) 141 Cal.App.4th 1201, 1211.) Third, we have independently concluded Kashay met her burden as to the first prong, and agree with the trial court’s finding that Kashay’s special motion to strike was not frivolous. (See Cabral v. Martins (2009) 177 Cal.App.4th 471, 491 [abuse of discretion standard of review applies in the context of fee awards under the anti-SLAPP statutes].)

DISPOSITION

The order denying Kashay’s special motion to strike the complaint is reversed and the matter is remanded for further proceedings consistent with this opinion. Kashay shall recover her costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1) & (2).)

HALLER, Acting P. J. and AARON, J., concurs.

[1] The original verified complaint was not designated for inclusion in the Clerk’s Transcript on appeal. In the interests of justice and in order to resolve the appeal, we obtained a copy from the superior court and, on our own motion, augment the record to include it. (Cal. Rules of Court, rule 8.155(a)(1)(A); see also State Comp. Ins. Fund v. WallDesign Inc. (2011) 199 Cal.App.4th 1525, 1528, fn. 1 [“We have frequently used our discretionary authority under California Rules of Court, rule 8.155 to augment the appellate record with documents contained in the trial court record that were omitted by the parties, through mistake or neglect, in order to assist us in reviewing appeals on their merits.”].)

[2] All further unspecified statutory references are to the Code of Civil Procedure.

[3] As we will discuss in more detail, the Davis-Stirling Act governs the creation and operation of CIDs, which are defined to include condominium projects, planned developments and stock cooperatives. (Civ. Code, § 4000 et seq.)

[4] The Agreement expressly referred to “the Osborne Mobile Home Park Homeowner’s Association” as the party to the Agreement, but also provided that the HOA is “a California Mutual Benefit, Non-Profit Corporation.” The Agreement was also signed by the president of the “OPI board.” It appears the terms OPI (the official name of the corporate entity) and Osborne Mobile Home Park Homeowner’s Association (the HOA) were used interchangeably. Further, Plaintiffs alleged that it was the “Board of Directors for Osborne Park HOA” that hired Ambassador. We shall refer to the relevant entity as the Osborne Park HOA or the HOA.

[5] Kashay claimed she bought a home in Osborne Park but Plaintiffs contend there is no record of the sale or of Kashay applying for HOA membership. Kashay was a resident and was appointed to the Board of Directors, nonetheless.

[6] Section 425.16, subdivision (e) sets forth the following four categories of protected activity: “(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.”

[7] It seems that Fuselier also sued Johnson for defamation. Johnson’s attorney, Conrad Joyner, filed a declaration on October 28, 2020 to “set the record” straight regarding his interaction with Fuselier concerning Johnson’s deposition. According to Joyner, when he tried to persuade Fuselier to drop the defamation case against his client, “Fuselier’s demeanor changed from polite and pleasant to angry” and “shouted out . . . `I will break their f—ing knees !'” (Boldface omitted.)

[8] Fuselier submitted a “Time sheet” in support of his request for attorney fees, in which he indicated his time billed for preparing the Payne and Fageol declarations.

[9] We note that the complaint does not include any allegations regarding e-mails and the order provides no further detail as to the “e-mails and statements” it found were not made in a public forum.

[10] While there is some indication that Kashay may have eventually withdrawn the BBB complaint in response to Fuselier’s threatening email, it remains that the complaint was at least initially made to the BBB as part of the ongoing dispute regarding Plaintiffs’ management of the Osborne Park HOA. Moreover, Plaintiffs disputed Kashay’s claim that she withdrew the complaint as “false.” Plaintiffs instead continued to assert that Kashay did not withdraw her complaint and “published” her claims to the BBB.

[11] Plaintiffs also cite to “Exhibits 15, 16” but do not provide record citations or identify what pleading, if any, to which those Exhibits are attached. It would appear these exhibits were the subject of Plaintiffs’ motion to augment, filed on February 8, 2021. In particular, Exhibit 15, described by Plaintiffs as Kashay’s BBB complaint, is a printout of page “2/2” of an internet webpage titled “BBB Complaint Case ID #14044872.” Its contents are consistent with the parties’ descriptions of the BBB complaint. On February 25, 2021, this court denied the motion to augment without prejudice because Plaintiffs failed to establish the exhibits were filed or lodged with the trial court when it ruled on the appealed-from order. In their respondents’ brief, Plaintiffs confirm they tried to lodge the exhibits in the trial court, but the lodgment was rejected.

[12] We note, however, that we have some serious concerns as to whether the vague, unlimited allegations set forth in paragraph 32 of Plaintiff’s original verified complaint are sufficient to meet the heightened pleading standards for defamation. (See Medical Marijuana, 46 Cal.App.5th at p. 894; Okun, supra, 29 Cal.3d at p. 458.)

[13] Kashay contends Fuselier is that party but the record before us does not establish which party Judge Maas was referencing in his recusal order.

CHERYL THURSTON, Plaintiff and Respondent, v. MIDVALE CORPORATION, Defendant and Appellant.

If your community association operates a business that is open to the public, e.g., a restaurant, bar, or golf course, then that business is a place of public accommodation under the Americans with Disabilities Act and cannot discriminate against anyone on the basis of an individual’s disability. If your community association has a website for that business, the website must also be accessible to individuals with disabilities. For example, the website must be capable of allowing a visually impaired person to use a screen reader. For more information on creating and maintaining websites accessible to individuals with disabilities, please visit the World Wide Web Consortium at www.w3.org.

***End Summary***

No. B291631.
Court of Appeals of California, Second District, Division Eight.

Filed September 3, 2019.
APPEAL from a judgment of the Superior Court of Los Angeles County, Super. Ct. No. BC663214, Samantha Jessner, Judge. Affirmed.

Gordon Rees Scully Mansukhani, Roger M. Mansukhani, Jon C. Yonemitsu, Kara A. Ritter; Greines, Martin, Stein & Richland, Marc J. Poster and Alison M. Turner, for Defendant and Appellant.

Fred J. Hiestand for The Civil Justice Association of California as Amicus Curiae on behalf of Defendant and Appellant.

Pacific Trial Attorneys, Scott J. Ferrell, David W. Reid, Victoria C. Knowles, and Richard H. Hikida, for Plaintiff and Respondent.

CERTIFIED FOR PUBLICATION
STRATTON, J.

Cheryl Thurston is blind and uses screen reader software (a screen reader) to access the Internet and read website content. She filed this lawsuit after she could not access appellant’s restaurant website, www.whisperloungela.com, with her screen reader. Her complaint alleged appellant violated the Unruh Civil Rights Act (Civ. Code, § 51 et seq.) by violating the federal American with Disabilities Act of 1990 (ADA) (42 U.S.C. § 12101 et seq.).

This appeal asks us to decide whether Title III of the ADA applies to this website, requiring appellant Midvale Corporation to render its restaurant website accessible to blind individuals such as Thurston. Accessibility would require Midvale to redesign its website so it can be read aloud by screen reader software. Appellant asks us to adopt the 20-year-old minority position of the United States Court of Appeals for the Third Circuit that the ADA applies to physical barriers to physical places only and to reverse the trial court’s imposition of an injunction and statutory damages and grant of summary judgment in favor of Thurston. We decline to do so.

Appellant raises three other contentions. First, it argues that even if the ADA applies to websites, summary judgment must be reversed because the statutory damages award and the injunction violate its right to due process. Appellant next contends summary judgment must be reversed because there is a triable issue of fact as to whether providing a telephone number and email address is an acceptable alternative to a website accessible by screen readers. Finally, appellant contends the injunction must be dissolved because it is overbroad and uncertain and Thurston lacked standing to claim prospective relief. The claims invoking due process, standing, and overbreadth are claims appellant made in its own unsuccessful cross-motion for summary judgment. We agree with the trial court on all issues and affirm the judgment.

BACKGROUND

The facts are straightforward. Thurston is blind and uses screen reader software to access the Internet. Among other functions, a screen reader vocalizes invisible code (alternative text) embedded beneath graphics on the website and describes the content of the webpage. In her complaint, Thurston identified significant barriers when she tried to use appellant’s website for its restaurant, The Whisper Lounge: with her software she could not read the menu or make reservations. In addition, the graphics were either inadequately labelled or not labelled at all, so her screen reader could not discern what information the graphics purported to present. Thurston stated this unsuccessful encounter caused her difficulty, discomfort, and embarrassment. The website, however, did list a telephone number for The Whisper Lounge. Thurston was unaware the website listed a telephone number. Nonetheless, she stated that using the telephone number as an alternative would not have provided her with the same privacy and independence that a fully accessible website offered or that the non-accessible website offered a sighted person. The website’s reservation system was accessible 24 hours per day every day to sighted individuals, but reserving a table by calling the restaurant could only be done during the restaurant’s operating hours.

Thurston filed a complaint against the owner of The Whisper Lounge, Midvale Corporation, alleging that the inaccessible website violated the Unruh Act (Civ. Code, § 51 et seq.) which mandates “full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (Civ. Code, § 51, subd. (a).) The Unruh Civil Rights Act also provides that a “violation of the federal American with Disabilities Act of 1990 [(ADA)] shall also constitute a violation of this section.” (Civ. Code, § 51, subd. (f).) It was under subdivision (f) that Thurston brought her lawsuit.

The trial court granted summary judgment in Thurston’s favor. The court found Title III of the ADA applied to the website: “The court finds a plain reading of the statute, as well as the Department of Justice’s treatment of websites under the ADA, indicate that Defendant’s website falls within the category of `services, . . . privileges, advantages, or accommodations of’ a restaurant, which is a place of public accommodation under the ADA. (42 U.S.C. §§ 12181(7)(B); 42 U.S.C. § 12182(a).)”

The trial court found Thurston had proven the website was inaccessible to blind users: “Plaintiff has provided evidence that she encountered barriers to Defendant’s website which have prevented her from using its features. (Thurston Decl., ¶¶ 3-7.) Specifically, Thurston contends she visited the website on February 20, 2017, and four to five times thereafter, (Thurston Decl. ¶ 3.) she was unable to read the menu because it was `offered in an unreadable graphic image’ and the link to the pdf version of the menu resulted in an error message. (Thurston Decl., ¶¶ 4-5.) Plaintiff also contends that she was unable to make a reservation or determine whether she could make an online reservation. (Thurston Decl., ¶ 6.)” The court further found: “Defendant fails to provide any evidence in Opposition to refute Plaintiff’s showing that the website was inaccessible to Plaintiff on February 20, 2017.”

The trial court rejected appellant’s claim that there was a triable issue whether its website provided appropriate auxiliary aids. The court noted appellant provided an email address and a phone number on its website. The court found “the provision of an email or phone number does not provide full and equal enjoyment of Defendant’s website (42 U.S.C. § 12182(a)), but rather imposes a burden on the visually impaired to wait for a response via email or call during business hours rather than have access via Defendant’s website as other sighted customers. Thus, the email and telephone options do not provide effective communication `in a timely manner’ nor do they protect the independence of the visually impaired. (28 C.F.R. § 36.303(c)(ii).)”

The trial court rejected appellant’s contention that it could not be compelled to redesign its website to conform to voluntary Web Content Accessibility Guidelines (WCAG) promulgated by the WorldWide Web Consortium, a nongovernmental consortium. It also rejected appellant’s characterization of the complaint as Thurston’s attempt to equate a violation of the voluntary guidelines with a violation of the law. “While Plaintiff addresses the WCAG guidelines, the Complaint does not seek to hold Defendant liable for violating their provisions. Rather, the Complaint merely references the WCAG guidelines . . ., but does not expressly seek to hold Defendant liable for violating these guidelines. Rather, the Complaint seeks to prevent Defendant from violating the Unruh [Civil Rights] Act . . . . Plaintiff has established that Defendant’s website was not accessible under the ADA. Defendant could have, but failed to, adduce evidence that its website was accessible within the standards imposed by the ADA on February 20, 2017 when Plaintiff accessed the website.”

The trial court granted Thurston’s motion for summary judgment, and denied appellant’s separately filed cross-motion for summary judgment as moot. The court noted that “Defendant’s constitutional arguments in its separate motion are not sufficient to demonstrate that it did not violate the ADA, and therefore we need not reach these issues.” The court also declined to apply the primary jurisdiction doctrine, which permits a court to dismiss a complaint pending resolution of an issue before an administrative agency with special competence. The court noted it was “`unknown when, if at all, the [Department of Justice (DOJ)] will issue regulatory standards addressing the ADA’s standards governing website access.'” The court further found “Plaintiff has established standing under the Unruh Act.”

DISCUSSION

In an appeal from a grant of summary judgment, we “independently examine the record in order to determine whether triable issues of fact exist to reinstate the action.” (Wiener v. Southcoast Childcare Centers, Inc. (2004) 32 Cal.4th 1138, 1142.) In performing our review, we view the evidence in the light most favorable to the losing party, and resolve any evidentiary doubts or ambiguities in its favor. (Ibid.)

“We will affirm an order granting summary judgment or summary adjudication if it is correct on any ground that the parties had an adequate opportunity to address in the trial court, regardless of the trial court’s stated reasons.” (Securitas Security Services USA, Inc. v. Superior Court (2011) 197 Cal.App.4th 115, 120.)

Legal issues are reviewed de novo. (Crocker National Bank v. City and County of San Francisco (1989) 49 Cal.3d 881, 888 [“Questions of law relate to the selection of a rule; their resolution is reviewed independently.”].) Similarly, constitutional issues are reviewed de novo. (State of Ohio v. Barron (1997) 52 Cal.App.4th 62, 67.)

We review the grant of a permanent injunction for abuse of discretion. (Horsford v. Board of Trustees of Cal. State University (2005) 132 Cal.App.4th 359, 390.)

I. Title III Applies to Appellant’s Website.

Title III of the ADA provides: “No individual shall be discriminated against on the basis of disability in the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of any place of public accommodation by any person who owns, leases (or leases to), or operates a place of public accommodation.” (42 U.S.C. § 12182(a).)

Discrimination includes “a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” (42 U.S.C. § 12182(b)(2)(A)(iii).) DOJ regulations require that a public accommodation “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” (28 C.F.R. § 36.303(c)(1).) “Auxiliary aids and services” includes “accessible electronic and information technology” and “other effective methods of making visually delivered materials available to individuals who are blind or have low vision.” (28 C.F.R. § 36.303(b)(2).) A screen reader is an auxiliary aid. (Ibid.)

It is undisputed that appellant’s physical location—the restaurant—is a place of public accommodation within the meaning of Title III. (42 U.S.C. § 12181(7)(B) [“a restaurant, bar, or other establishment serving food or drink” is a place of public accommodation].)

In the absence of a controlling United States Supreme Court or California Supreme Court opinion, we may “make an independent determination of federal law.” (Forsyth v. Jones (1997) 57 Cal.App.4th 776, 782-783.) Where the federal circuits are in conflict, the decisions of the Ninth Circuit are entitled to no greater weight than those of other circuits. (Ibid.)

Among the United States Circuit Courts of Appeals, there is essentially a three-way split whether websites qualify as places of public accommodation within the meaning of Title III. The Third Circuit has excluded websites from coverage, holding “[t]he plain meaning of Title III is that a public accommodation is a place” and “public accommodation” does not “refer to non-physical access.” (Ford v. Schering-Plough Corp. (3rd Cir. 1998) 145 F.3d 601, 612, 614 (Ford).)

The intermediate position holds that websites are covered by the ADA only if there is a nexus between the website and access to a physical place of public accommodation. (Robles v. Domino’s Pizza, LLC (9th Cir. 2019) 913 F.3d 898, 905-906 (Domino’s).) The nexus courts explain that discrimination occurring “offsite” violates the ADA if it prevents disabled individuals from enjoying services a defendant offers from a physical place of public accommodation. Variations on the theme of websites having a nexus to a physical space have been expressed by the Sixth and Eleventh Circuits. (Parker v. Metropolitan Life Ins. Co. (6th Cir. 1997) 121 F.3d 1006, 1011 & fn. 3; Rendon v. Valleycrest Productions, Ltd. (11th Cir. 2002) 294 F.3d 1279, 1284-1285 & fn. 8 (Rendon).) Thus, in Rendon, for example, potential contestants for the television show “Who Wants To Be A Millionaire?” applied to be selected for the show by using an automated call-in system. Deaf and mobility-impaired applicants could not use the call-in system. The Eleventh Circuit found the plaintiff had stated a valid claim that that the inaccessible call-in system deprived the disabled applicants from enjoying the privilege of being on the show, which was filmed at a studio located in New York City. (Rendon, at pp. 1280, 1286.) In Domino’s, the ADA applied to Domino’s website and app, which customers used to order pizza, a product sold at Domino’s physical restaurants. (Domino’s, at p. 905-906.)

The third and most expansive holdings are from the First, Second, and Seventh Circuits, which have found that a “place of public accommodation” need not be a physical space and a nexus to physical space is not required. (Carparts Distri. Ctr. v. Automotive Wholesaler’s (1st Cir. 1994) 37 F.3d 12, 19-20; Doe v. Mutual of Omaha Ins. Co. (7th Cir. 1999) 179 F.3d 557, 559 [place of public accommodation encompasses both physical and electronic space and applies to websites]; Pallozzi v. Allstate Life Ins. Co. (2d Cir. 1999) 198 F.3d 28, 32 [Title III was “meant to guarantee . . . more than mere physical access.”].)

We have found no controlling authority from the California Supreme Court. After oral argument in this case, the Court decided White v. Square, Inc. (August 12, 2019, S249248) ___ 5 Cal.5th ___ [2019 Cal. Lexis 5946] (White). White did not involve discrimination based on disability or a claim under the ADA; instead, it involved a plaintiff who attempted to use a website that excluded him because of his occupation. The website was not connected to a brick-and-mortar physical location. The question presented was whether plaintiff had standing to sue under the Unruh Civil Rights Act when he visited a website with the intent of using its services, encountered terms and conditions that allegedly denied him full and equal access to its services, and then left the website without entering into an agreement with the service providers. (White, supra, ___ 5 Cal.5th at p. ___ [2019 Cal. Lexis 5946, pp. *2-*3].) In finding standing, our Court held that “[i]n general, a person suffers discrimination under the Act when the person presents himself or herself to a business with an intent to use its services but encounters an exclusionary policy or practice that prevents him or her from using those services. We conclude that this rule applies to online businesses and that visiting a website with intent to use its services is, for purpose of standing, equivalent to presenting oneself for services at a brick-and-mortar store.” (Ibid.)

A. At a Minimum, Title III Covers a Website With a Nexus to a Physical Place of Public Accommodation.

Appellant urges us to adopt the position of the Third Circuit in Ford and hold that Title III applies only to physical places of accommodation and not to non-physical access to the goods or services of a place through off-site means such as websites. We decline to adopt what is clearly the minority position, and one which has failed to persuade any other federal court of appeal. We, too, find it unpersuasive.

The court in Ford, like other courts in the late 1990’s, was faced with a claim that Title III applied to the contents of an insurance policy because the policy was a good or service offered by a place of public accommodation (an insurance office). In this unusual context, the Third Circuit reached the narrow holding that “the provision of disability benefits by [the insurance company] to [plaintiff’s employer’s] employees does not qualify as a public accommodation.” (Ford, supra, 145 F.3d at p. 614.)[1]

To buttress this conclusion, the Third Circuit stated the definition of public accommodation was clear and unambiguous, and referred solely to a physical place. The court expressed its belief that even if the definition were ambiguous, the statute should be interpreted in a manner “`to avoid the giving of unintended breadth to the Acts of Congress.’ [Citation.]” (Ford, supra, 145 F.3d at p. 614.)

We agree with the numerous courts which have found the definition of public accommodation clear and unambiguous, and encompassing more than a physical place. Title III applies to “services . . . privileges, advantages, or accommodations of” a place of public accommodation. (42 U.S.C. §12182(a).) As the Ninth Circuit has pointed out, “`The statute applies to the services of a place of public accommodation, not services in a place of public accommodation. To limit the ADA to discrimination in the provision of services occurring on the premises of a public accommodation would contradict the plain language of the statute.’ [Citation.]” (Domino’s, supra, 913 F.3d at p. 905.)

Even if the Third Circuit’s different understanding of the phrase showed ambiguity, we would find unconvincing the court’s definition of “place of public accommodation.” The Third Circuit’s narrow construction of the phrase is unwarranted. The ADA is a remedial statute and as such should be construed broadly to implement its fundamental purpose of eliminating discrimination against individuals with disabilities. (Hason v. Medical Bd. of California (9th Cir. 2002) 279 F.3d 1172; see also Tcherepnin v. Knight (1967) 389 U.S. 332, 336 [recognizing the “familiar canon of statutory construction that remedial legislation should be construed broadly to effectuate its purposes”].) More specifically, the United States Supreme Court has explained the legislative history of the definition of public accommodation clearly indicates the term should be construed liberally. (PGA Tour, Inc. v. Martin (2001) 532 U.S. 661, 676-677.)[2]

Although much has changed between 1990 when Congress passed the ADA, and 1998 when the Third Circuit issued the Ford opinion, even more has changed between 1998 and 2019. “[W]eb-based services did not exist when the ADA was passed in 1990.” (National Ass’n of the Deaf v. Netflix, Inc. (D. Mass. 2012) 869 F.Supp.2d 196, 200.) The United States Supreme Court characterized the growth of the Internet from its inception through 1997 as “extraordinary.” (Reno v. American Civil Liberties Union (1997) 521 U.S. 844, 850.) In 2018, the U.S. Supreme Court again weighed in on the importance of the Internet, noting that its “prevalence and power have changed the dynamics of the national economy.” (South Dakota v. Wayfair, Inc. (2018) 138 S.Ct. 2080, 2097 [also noting that in 1992 less than 2 percent of Americans had Internet access but by 2018 about 89 percent had such access].)

As early as 2001, the Second Circuit noted, “Computer and Internet access have become virtually indispensable in the modern world of communications and information gathering.” (U. S. v. Peterson (2d Cir. 2001) 248 F.3d 79, 83.) By 2012, courts recognized “business is increasingly conducted online.” (National Ass’n of the Deaf v. Netflix, Inc., supra, 869 F.Supp.2d at p. 200.) The Internet today is ubiquitous. In 2019, for example, Domino’s website and app were “two of the primary (and heavily advertised) means of ordering Domino’s products.” (Domino’s, supra, 913 F.3d at p. 905.)

Congress has specifically noted in the ADA’s “findings of fact” that “individuals with disabilities continually encounter various forms of discrimination, including outright intentional exclusion, the discriminatory effects of architectural, transportation, and communication barriers,” the very sorts of discrimination the statute seeks to redress. (42 U.S.C. § 12101(a)(5); see Rendon, supra, 294 F.3d at p. 1286.) Congress intended that the ADA “keep pace with the rapidly changing technology of the times.” (See H.R.Rep. No. 101-485, 2d sess, p. 391 (1990).) “In a society in which business is increasingly conducted online, excluding businesses that sell services through the Internet from the ADA would `run afoul of the purposes of the ADA and would severely frustrate Congress’s intent that individuals with disabilities fully enjoy the goods, services, privileges and advantages, available indiscriminately to other members of the general public.'” (National Ass’n of the Deaf v. Netflix, Inc., supra, 869 F.Supp.2d at p. 200.) Excluding websites just because they are not built of brick and mortar runs counter to the purpose of the statute.

We hold that including websites connected to a physical place of public accommodation is not only consistent with the plain language of Title III, but it is also consistent with Congress’s mandate that the ADA keep pace with changing technology to effectuate the intent of the statute. The trial court’s ruling that the ADA applies to appellant’s website is consistent with our holding.

Thurston urges us to go farther and hold that Title III can apply to websites independent of any connection between the website and a physical place, as the First, Second and Seventh Circuits have found. Here appellant’s website provides information and services connected to The Whisper Lounge, a specific restaurant and bar and a physical place to which the public has access. The website would be just a fictional page on the Internet if it provided menus and other information and services for a restaurant and bar that did not exist. Accordingly, we need not consider here the wholly hypothetical question whether Title III of the ADA governs a website unconnected to a physical place of public accommodation offering only purely Internet-based services or products.

B. The Undisputed Facts Show a Sufficient Nexus Between Appellant’s Website and Its Restaurant.

Appellant contends that even if the ADA applies to a website which has a nexus to a physical location, there is no sufficient nexus here because “a mere association with a public accommodation is not sufficient to establish a nexus between the Website and the restaurant in the circuits ascribing to this theory of public accommodation.” Instead, appellant argues the website must be so integrated with the physical place that the website is an extension of the services of the physical location.

In National Federation of the Blind v. Target Corp. (N.D. Cal. 2006) 452 F.Supp.2d 946, the district court found Target’s website was “heavily integrated with the brick-and-mortar stores and operates in many ways as a gateway to the stores” (id. at p. 955) and, through that website, customers could “refill a prescription or order photo prints for pick-up at a store, and print coupons to redeem at a store.” (Id. at p. 949.) Appellant views these website options as an extension of the services of the physical Target stores, and contends such an extension is required to establish a sufficient nexus. Appellant argues its website is not an extension of the services offered by its dine-in only restaurant because a customer “could not order a meal and have it delivered.”

Appellant has taken the quote about integration out of context.[3] Moreover, appellant has not shown that its website is less integrated than Target’s. Appellant is not a meal delivery service like Domino’s Pizza; it is a dine-in restaurant. We see no significant difference between ordering a refill of a prescription or prints of photos via Target’s website and studying the menu and making a reservation for a meal at appellant’s restaurant. In both cases, the customer is simply speeding up his experience at the physical location: his prescription or photos will be ready when he arrives at Target and his table will be ready when he arrives at the Whisper Lounge.

Appellant argues that “one could not even make a reservation on the Website without leaving it for the website of OpenTable.” The record does not establish the business relationship between appellant’s website and www.OpenTable.com. The only evidence of the relationship between OpenTable and appellant came from the deposition testimony of Christopher Baccus, Senior Vice President of Digital Marketing for appellant’s management company. Baccus was responsible for oversight and management of digital marketing, including the online presence of appellant and appellant’s website. He testified at one point that clicking the reservation button on appellant’s website “would open up the restaurant’s page on OpenTable.” This description does not support the sort of formal separation appellant implies on appeal, and nothing in Baccus’s statement shows that OpenTable could not or would not modify a restaurant’s page at the restaurant’s request. He testified only that the “page for OpenTable had already been established before I joined [appellant’s restaurant], and there have not been any changes that have needed to be made since I’ve been there.”

More importantly, appellant offers no legal support for its theory that it cannot be liable for ADA discrimination if it hires someone else to do the discrimination. In the trial court, appellant only cited to section 12182 generally to support this claim. We note a cursory reading of title 42 of the United States Code section 12182 suggests the opposite. Subsection (b)(1)(A)(i), entitled General Prohibition — Activities-Denial of Participation, provides “It shall be discriminatory to subject an individual or class of individuals on the basis of a disability or disabilities of such individual or class, directly, or through contractual, licensing, or other arrangements, to a denial of the opportunity of the individual or class to participate in or benefit from the goods, services, facilities, privileges, advantages, or accommodations of an entity.” (Italics added.)

Nevertheless, the Target opinion is not the last word on this issue in the Ninth Circuit. The Ninth Circuit has recently considered the application of the ADA to websites and apps and although it cites Target for the general proposition that the ADA is not limited to discrimination occurring on the premises of a place of public accommodation, it does not otherwise incorporate the reasoning of that case. (Domino’s, supra, 913 F.3d at p. 905.) The Ninth Circuit stated its nexus requirement very broadly: “We agree with the district court in this case—and the many other district courts that have confronted this issue in similar contexts—that the ADA applies to Domino’s website and app, which connect customers to the goods and services of Domino’s physical restaurants.” (Id. at pp. 905-906, fn. omitted [listing district court cases, including Target].) That is indisputedly the situation with appellant’s website and its restaurant: the website connects customers to the services of the restaurant.

II. Plaintiff’s and the Trial Court’s References to Nongovermental Guidelines Did Not Violate Appellant’s Due Process Rights.

The Department of Justice has not promulgated regulations specifying technical standards for ADA-compliant websites. However, the World Wide Web Consortium, a nongovernmental consortium, has published voluntary Web Content Accessibility Guidelines (WCAG) to assist interested parties in creating and maintaining websites accessible to individuals with disabilities. The version in effect when Thurston attempted to use appellant’s website was WCAG 2.0.

Appellant contends the trial court “equated” ADA compliance with WCAG 2.0 compliance; based its finding of liability on appellant’s non-compliance with WCAG 2.0; and issued an injunction mandating compliance with WCAG 2.0. Appellant argues these rulings violated its constitutional right to due process of law by denying it fair notice of conduct that is forbidden or required.

Appellant acknowledges the trial court expressly found “the Complaint does not seek to hold Defendant liable for violating [WCAG].” Appellant nevertheless contends the only reasonable inference from Thurston’s statements in her various pleadings is that the trial court determined appellant violated the ADA by violating the WCAG 2.0 guidelines. Appellant adds “Certainly, the injunction leaves no doubt that the trial court is enforcing those guidelines as if they were the law.”

The trial court did not conflate the WCAG 2.0 guidelines with the law. There was no violation of appellant’s due process rights.

A. The Trial Court Could and Did Disregard Surplus Comments Thurston Made About The WCAG 2.0 Guidelines.

Although Thurston frequently referred to the WCAG 2.0 guidelines, she always did so in connection with her inaccessibility claims. Appellant repeatedly omits key phrases of Thurston’s statements to make it appear otherwise. Appellant claims the complaint alleges “`[w]ithout [WCAG 2.0 compliance], a website will be inaccessible to a blind or visually-impaired person using a screen reader.’ (AA 18)” This statement is taken from the general factual allegations of the complaint; the unedited version reads: “Without these very basic components, a website will be inaccessible to a blind or visually-impaired person using a screen reader.” These basic “components” are technical elements of a website which permit the screen reader to work; the complaint alleges they are “recommend[ed]” by the WCAG 2.0 Guidelines.[4] Although Thurston attributes the inaccessibility of appellant’s website to its failure to incorporate these components, it is the inaccessibility of the website for which she is seeking redress.

Appellant similarly claims that in Thurston’s summary judgment motion she “asked the court to grant her motion because `Defendant’s website . . . violates the WCAG 2.0 Guidelines.” As the unedited statement shows, Thurston asked the court to “grant this Motion as Defendant’s website is inaccessible and violates the WCAG 2.0 Guidelines.” Thurston’s primary complaint is that the website is inaccessible.

Appellant’s summary of Thurston’s expert witness declaration also omits key facts. Appellant claims the expert witness listed purported violations of WCAG 2.0 as evidence of ADA violations. It would be more accurate to say the expert described accessibility issues with appellant’s website, and also stated the issues violated WCAG 2.0 guidelines. For example, the expert stated he “found instances of improperly labeled images. This is a violation of WCAG 2.0 1.1.1. Images that are . . . serving as links are not properly labeled with descriptive Alt text, making it impossible for a screen reader user to understand exactly what action the link will perform or to where the screen reader user will be lead.” Thus, the violation of the ADA is not the failure to follow a specific guideline, but the inaccessibility that results when a screen reader cannot access and understand an improperly labeled image.

At most, Thurston’s statements indicate she was seeking to hold appellant liable on two bases: the inaccessibility of the website and the failure to comply with WCAG 2.0 guidelines. The trial court clearly rejected liability based on non-compliance with the guidelines and premised liability on the website’s inaccessibility.

B. The Specification of WCAG 2.0 Guidelines in the Injunction Does Not Support or Show a Due Process Violation.

Appellant contends the injunction’s mandate to comply with WCAG 2.0 guidelines “implies that [appellant] should have known such compliance was legally required.” We think the more obvious implication is that the trial court determined appellant could not or would not redesign its website to comply with ADA standards without specific guidance, and so it selected what it believed to be a widely used technical standard to provide the needed guidance.

Relying on Fortyune v. City of Lomita (9th Cir. 2014) 766 F.3d 1098, appellant suggests the Ninth Circuit has “noted that due process constrains remedies that [maybe] imposed for lack of access, and cautioned that in crafting a remedy, a court must `consider carefully’ what level of accessibility the defendant should have known was legally required.” To the extent appellant relies on Fortyune to show due process prohibited the court from ordering it to comply with WCAG 2.0 guidelines, recent and more specific Ninth Circuit case law belies that reliance. In Domino’s, after reviewing the statute and DOJ pronouncements on the statute, the Ninth Circuit made clear that “at least since 1996, Domino’s has been on notice that its online offerings must effectively communicate with its disabled customers and facilitate `full and equal enjoyment’ of Domino’s goods and services.” (Domino’s, supra, 913 F.3d at p. 907.) The same can be said of appellant and The Whisper Lounge. A court “can order compliance with WCAG 2.0 as an equitable remedy if, after discovery, the website and app fail to satisfy the ADA.” (Ibid.)

III. Whether Appellant’s Alternate Means of Communication Would Be Effective Is Not a Triable Issue of Fact.

Appellant contends summary judgment must be reversed because there is a triable issue of fact whether appellant’s provision of a telephone number and email address on its website was a reasonable means of satisfying the “effective communications” mandate of the ADA. As stated above, DOJ regulations require that a public accommodation “furnish appropriate auxiliary aids and services where necessary to ensure effective communication with individuals with disabilities.” (28 C.F.R. § 36.303(c)(1).)

To create this claim, appellant parses together several different concepts. First, appellant decides any discrimination in this case should be evaluated under title 42 of the United States Code, section 12182 subdivision (b)(2)(A)(ii), which defines discrimination as “a failure to make reasonable modifications in policies, practices and procedures, when such modifications are necessary to afford such goods, services, facilities, privileges, advantages, or accommodations to individuals with disabilities . . . .” Appellant leans heavily on the use of the word “reasonable” in this section, arguing that “`[r]easonableness is generally a question of fact to be resolved by a jury.’ “It is not clear, however, that “policies, practices and procedures” were the problem here.

The more directly applicable provision is subdivision (b)(2)(A)(iii), which defines discrimination as “a failure to take such steps as may be necessary to ensure that no individual with a disability is excluded, denied services, segregated or otherwise treated differently than other individuals because of the absence of auxiliary aids and services, unless the entity can demonstrate that taking such steps would fundamentally alter the nature of the good, service, facility, privilege, advantage, or accommodation being offered or would result in an undue burden.” This is also the language upon which the trial court based its grant of summary judgment.[5] Even assuming there could be a triable issue of fact on whether an individual is treated differently within the meaning of that subdivision, there was no triable issue in this case. Thurston offered undisputed evidence she was treated differently than sighted users of the website due to the absence of an auxiliary aid or service which made the website readable by screen reader software. She could not “read” the menu or make reservations instantly and at any time like sighted users could. At best, she could only email the restaurant and obtain a reply when the restaurant was open, or call the restaurant during business hours.

Appellant argues it could comply with the ADA by providing any type of auxiliary aid or service that ensured effective communication and that there was a triable issue of fact concerning whether the telephone number and email address ensured effective communication. Appellant points to section 36.303(c)(1)(ii) of title 28 of the Code of Federal Regulation which states: “The type of auxiliary aid or service necessary to ensure effective communication will vary in accordance with the method of communication used by the individual; the nature, length, and complexity of the communication involved; and the context in which the communication is taking place. A public accommodation should consult with individuals with disabilities whenever possible to determine what type of auxiliary aid is needed to ensure effective communication, but the ultimate decision as to what measures to take rests with the public accommodation, provided that the method chosen results in effective communication. In order to be effective, auxiliary aids and services must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.”

Appellant focuses on the first part of title 28 Code of Federal Regulations section, which describes the individualized nature of the determination of what type of auxiliary aid is necessary to ensure effective communication. It argues that it “necessarily follows that, given this flexibility, a reasonableness standard must govern.” Appellant also focuses on the ability of the place of accommodation to select the type of auxiliary aid it provides. The last sentence of title 28 of the Code of Federal Regulation section 36.303(c)(1)(iii), however, makes it clear that all aids and services “must be provided in accessible formats, in a timely manner, and in such a way as to protect the privacy and independence of the individual with a disability.” It was the lack of these universal requirements upon which the trial court based summary judgment, finding “the email and telephone options do not provide effective communication `in a timely manner’ nor do they protect the independence of the visually impaired. (28 C.F.R. § 36.303(c)(ii).)”

Thurston proposed as an undisputed material fact: “Defendant’s telephone number does not provide the same privacy and independence that a fully accessible website offers, not the same hours. (Thurston Decl., [¶] 8).” Appellant disputed the fact by arguing Thurston’s declaration lacked foundation, and there was no evidence that the telephone number “would not be answered or otherwise responded to. [¶] There is also no evidence plaintiff would be required to disclose her disability via phone or email, and she has no foundation for claiming the same as she failed to take advantage of these options available to her.”

Appellant cited the Baccus deposition and Thurston’s deposition to support this argument. Baccus was asked about the telephone number: “[D]oes that just go to the restaurant itself?” He replied: “Yes. There is only, I believe, one phone number for the restaurant.” The restaurant was not open 24 hours a day; this testimony is sufficient to establish that plaintiff could not obtain information from the restaurant 24 hours a day. Similarly, Baccus testified the email address on the website went to the restaurant manager; the manager could not physically be available 24 hours a day. Appellant did not offer any evidence refuting Thurston’s statement that the use of a telephone number or email would deprive her of independence. The use of either required her to depend upon another person’s convenience to obtain information. Thus, there was no triable issue of fact whether appellant’s alternatives were timely or whether they protected Thurston’s independence.

IV. Plaintiff Has Standing to Obtain an Injunction.

For the first time on appeal, appellant contends Thurston lacked standing to “claim” prospective relief because she failed to show she would be harmed in the future if the injunction were not granted.[6] Appellant has forfeited this claim by failing to support it with appropriate legal citations or argument. To demonstrate error, an appellant “must supply the reviewing court with some cogent argument supported by legal analysis and citation to the record.” (City of Santa Maria v. Adam (2012) 211 Cal.App.4th 266, 286-287.) “We are not obliged to make other arguments for [appellant].” (Opdyk v. California Horse Racing Bd. (1995) 34 Cal.App.4th 1826, 1830-1831, fn. 4; In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 830.) Assuming the claim were not forfeited and assuming a showing of future harm is required, there is sufficient evidence to show that plaintiff would suffer such harm.

Appellant argues, without citation to relevant California authority, that standing requirements for injunctions are uniform under California law and require a prospect of future injury. Appellant does not acknowledge or distinguish the substantial body of law to the contrary. Code of Civil Procedure section 367, for example, expressly provides that an action must “be prosecuted in the name of the real party in interest, except as otherwise provided by statute.” “`Standing requirements will vary from statute to statute based upon the intent of the Legislature and the purpose for which the particular statute was enacted.’ (Midpeninsula Citizens for Fair Housing v. Westwood Investors (1990) 221 Cal.App.3d 1377, 1385, 1387, 1389-1390, 1393 [271 Cal.Rptr. 99] [in a suit under a now modified unfair competition statute, injury was not required, because the then- existing version of the statute expressly gave standing to `the general public’ to sue for relief].)” (Blumhorst v. Jewish Family Services of Los Angeles (2005) 126 Cal.App.4th 993, 1000-1001.)

Appellant has not cited any cases discussing the requirements for an injunction under the Unruh Civil Rights Act and suggests no such case exists. If that is true, appellant makes no argument for what those requirements should be: appellant does not discuss the language, legislative intent or purpose of the Unruh Civil Rights Act or Civil Code section 52, which authorizes “any person aggrieved” to seek an injunction. Appellant does not address our Supreme Court’s consistent holding that “`the Act must be construed liberally in order to carry out its purpose'” or the fact that “[i]n light of its broad preventative and remedial purposes, courts have recognized that `[s]tanding under the Unruh Civil Rights Act is broad.'” (White, supra, ___ Cal.5th ___, at p. ___ [2019 Cal. Lexis 5946, p. *7].) Appellant’s only reference to section 52 takes a short phrase out of context. Appellant argues that “preventative relief cannot be `deemed necessary’ to ensure [Thurston] is afforded a right of access” to the restaurant. In fact, the language of section 52, subdivision (c)(3) authorizes a complainant to seek preventative relief “as the complainant deems necessary to ensure the full enjoyment of the rights described in this section.”[7] Thus, appellant has failed to demonstrate error. (City of Santa Maria v. Adam, supra, 211 Cal.App.4th at pp. 286-287; Opdyk v. California Horse Racing Bd., supra, 34 Cal.App.4th at p. 1830, fn. 4; In re Marriage of Falcone & Fyke, supra, 164 Cal.App.4th at p. 830.)

In its reply brief, appellant shifts its emphasis and acknowledges that Thurston has alleged sufficient future harm in her complaint by stating “`Plaintiff continues to be deterred on a regular basis from accessing Defendant’s website.’ “Appellant concedes Thurston has “`standing to seek an injunction,’ “but appellant claims, “not to obtain one, because plaintiff has not demonstrated, and cannot in light of the affirmative evidence of lack of interest, `a likelihood [s]he will be harmed in the future if the injunction is not granted.'” (Italics omitted.)

Assuming for the sake of argument that an injunction under the Unruh Civil Rights Act required some evidence Thurston intended to visit the website in the future, appellant did not claim there was insufficient evidence of such an intent during summary judgment proceedings and did not offer any affirmative evidence of a lack of interest.

The record citation appellant provides on appeal is not evidence of a lack of interest, and moreover was not identified in opposition to Thurston’s motion for summary judgment. The citation is to an undesignated portion of Thurston’s deposition, where appellant’s counsel asks Thurston if “someone” in her group “express[ed] an interest in going to The Whisper Lounge for the holiday luncheon?” Thurston replied, “No. I just happened to go through my list and just places I may write down and just see what’s out there.” This does not in any way equate to a lack of interest on Thurston’s part. To the contrary, it shows she was interested in the restaurant.

In contrast, the trial court found Thurston’s declaration in support of her summary judgment motion showed she tried to access the website numerous times and repeatedly encountered barriers. Her attempts began before and continued after her lawsuit was filed. The last attempt shown by the record was a few days before Thurston’s deposition in this matter. Thurston’s statements that she visited the website periodically even after the lawsuit began and always encountered barriers to access track the allegation of her complaint that she “continues to be deterred on a regular basis from accessing Defendant’s website.” (See FPI Development, Inc. v. Nakashima (1991) 231 Cal.App.3d 367, 382 [“the pleadings may be read together with the factual showings in the summary judgment proceeding for purposes of discerning what is in issue” and “the factual submissions of the parties must track” the allegations of the complaint].) Thus, appellant’s claim that Thurston lacks standing fails factually as well as legally.

V. The Injunction Is Not Overbroad or Uncertain.

Appellant argues the injunction goes “further than absolutely necessary” to provide plaintiff relief because it mandates compliance with WCAG 2.0 guidelines whether they have anything to do with the particular barriers appellant encountered. Appellant also contends given the nature of the guidelines, it is impossible to determine what exactly constitutes compliance.

Appellant has not cited authority for the proposition that it is required to fix only those barriers which Thurston actually encountered. Appellant made a variation of this argument in its own motion for summary judgment, which the trial court properly rejected. (See Chapman v. Pier 1 Imports (U.S.) Inc. (9th Cir. 2011) 631 F.3d 939, 944.) As a practical matter, the first barrier encountered by a user may prevent the user from being able to navigate further and encountering additional barriers. Appellant’s theory would require a user to bring a lawsuit for the first barrier encountered, then once that barrier was removed, bring another lawsuit for the next barrier encountered and so on. There is no reason in law or logic to adopt such a theory.

Appellant also argues his expert might not agree with plaintiff’s expert as to whether the website meets the WCAG 2.0 guidelines. Appellant has not cited authority for the novel legal proposition that an injunction is overbroad or vague if in the future the parties involved might disagree about whether the enjoined party has fully complied with the injunction.

Further, although appellant complains generally that a compliance determination will require expert testimony, appellant does not explain how the need for experts is a bar to an injunction. An expert would be necessary not just for the compliance determination but for the compliance itself. Trial courts routinely assess expert testimony.

Ultimately what appellant argues is that the trial court should have applied the doctrine of primary jurisdiction and dismissed or stayed the case until the Department of Justice issues technical regulations. (See Clark v. Time Warner Cable (9th Cir. 2008) 523 F.3d 1110, 1114 [discussing primary jurisdiction doctrine].) The trial court rejected this claim and we do as well. We agree with Domino’s, the Ninth Circuit’s recent rejection of the application of the doctrine to a lawsuit involving a website and app alleged to be inaccessible under the ADA. The Ninth Circuit explained: “Our precedent is clear: `[E]ven when agency expertise would be helpful, a court should not invoke primary jurisdiction when the agency is aware of but has expressed no interest in the subject matter of the litigation. Similarly, primary jurisdiction is not required when a referral to the agency would significantly postpone a ruling that a court is otherwise competent to make.’ [Citation.] Both circumstances are present here. [¶] First, DOJ is aware of the issue—it issued the ANPRM [Advanced Notice of Proposed Rulemaking] in 2010 [citation] and withdrew it in 2017 [citation]. Second, DOJ’s withdrawal means that the potential for undue delay is not just likely but inevitable.” (Domino’s, supra, 913 F.3d at p. 910.) Application of the primary jurisdiction doctrine “would `needlessly delay the resolution of’ [plaintiff’s] claims and undercut efficiency, `the “deciding factor” in whether to invoke primary jurisdiction.'” (Ibid.) The Ninth Circuit found resolution of website accessibility issues “well within the court’s competence” and noted out that “if the court requires specialized or technical knowledge . . . the parties can submit expert testimony.” (Id. at p. 911.)

Similarly, we find the trial court’s injunction mandating compliance with WCAG 2.0 efficient and well within the court’s competence to administer. The injunction is neither overbroad, uncertain, nor unconstitutional.

DISPOSITION

The judgment is affirmed. Respondent to recover costs on appeal.

GRIMES, Acting P. J. and WILEY, J., concurs.

[1] As then-Judge Alito observed in his concurring opinion, the issue of whether Title III covered anything more than physical access had divided the circuits, and it might have been better to “reserve judgment until we are confronted with a case in which the unique considerations of insurance plans are not at stake.” (Ford, supra, 145 F.3d at p. 615.)

[2] (PGA Tour, Inc. v. Martin, supra, 532 U.S. at p. 677, fn. 25, citing S.Rep. No. 101-116, p. 59 (1989); H.R.Rep. No. 101-485, pt. 2, p. 100 (1990).)

[3] The court made this statement as part of distinguishing Stoutenborough v. National Football League, Inc. (6th Cir. 1995) 59 F.3d 580. The full quote is “Unlike in Stoutenborough, where there `service’ was offered by a separate party leasing the public space, the challenged service here is heavily integrated with the brick-and-mortar stores and operates in many ways as a gateway to the stores.” (National Federation of the Blind v. Target Corp., supra, 452 F.Supp.2d at pp. 954-955.)

[4] For example, one component described in the complaint is alternative text, invisible code that describes a graphical image and enables the screen reader to vocalize the description of the picture a sighted viewer would see. Thurston’s screen reader was unable to provide her with a vocal description of the graphics on appellant’s website and Thurston attributed this failure to the lack of alternative text in the website.

[5] The trial court attributed the language to 28 C.F.R. § 36.303(a), not the statute. The language is found in both.

[6] The record does not indicate appellant ever argued Thurston had failed to show a likelihood of future harm. As an affirmative defense appellant asserted Thurston lacked standing because she did not have a legitimate intent to access its website other than to pursue litigation and lacked standing to visit any areas of the website she did not personally visit prior to filing her complaint. Appellant then moved for summary judgment on the ground plaintiff lacked standing because she did not show she was denied any right on the basis of her disability. The trial court rejected that argument and found Thurston had established standing. The California Supreme Court has now made clear that a person who visit a website with the intent to use its services and encounters conditions that exclude the person from full and equal access to its services has standing under the Unruh Civil Rights Act “with no further requirement that the person enter into an agreement or transaction with the business.” (White, supra, ___ 5 Cal.5th at p. ___ [2019 Cal. Lexis 5946, p. *22].)

[7] Civil Code section 52, subdivision (c), provides in full: “Whenever there is reasonable cause to believe that any person or group of persons is engaged in conduct of resistance to the full enjoyment of any of the rights described in this section, and that conduct is of that nature and is intended to deny the full exercise of those rights, the Attorney General, any district attorney or city attorney, or any person aggrieved by the conduct may bring a civil action in the appropriate court by filing with it a complaint. The complaint shall contain the following: [¶] (1) The signature of the officer, or, in his or her absence, the individual acting on behalf of the officer, or the signature of the person aggrieved. [¶] (2) The facts pertaining to the conduct. [¶] (3) A request for preventive relief, including an application for a permanent or temporary injunction, restraining order, or other order against the person or persons responsible for the conduct, as the complainant deems necessary to ensure the full enjoyment of the rights described in this section.”