Healy v. Tuscany Hills Landscape and Recreation Corporation

39 Cal.Rptr.3d 547 (2006)

Summary by Mary M. Howell, Esq.:

Facts

After association sued a homeowner in connection with her refusal to allow association access to her lot in order to maintain adjacent common areas, association’s attorney sent letter to all homeowners indicating that the expense of litigation was attributable to the homeowner’s refusal to allow access. In response to this letter, the homeowner sued the association for defamation. Association responded with an anti-SLAPP motion.

Held

For association. The anti-SLAPP statute protects against liability based on statements in a legislative or judicial proceeding, whether or not those statements concern a matter of public interest. The statute operates by allowing a defendant to make a motion to strike the complaint. The defendant does so by showing the court that the statements are those protected by the anti-SLAPP statute; in response, the plaintiff must then show a substantial likelihood of prevailing at trial.

In this case, the attorney’s statements concerned an ongoing lawsuit brought by the association against the homeowner. Since these are amongst the types of statements protected by the anti-SLAPP statute, it fell to homeowner to demonstrate that she would likely succeed if her suit were permitted to proceed. However, in the instant case, since the statements which formed the basis of the alleged defamation were “privileged” (made by an attorney in the context of litigation), the homeowner was not likely to prevail at trial, and granting the motion to strike was proper.

*** End Summary ***

Healy v. Tuscany Hills

39 Cal.Rptr.3d 547 (2006)

548*548 Neuland, Nordberg, Andrews & Whitney, Daniel A. Nordberg, Rancho Santa Margarita, Cynthia M. Hererra, and Kumar Raja for Cross-defendant and Appellant.

Kahdeman, Nickel & Frost and Richard J. Kahdeman, Westlake Village, for Cross-complainant and Respondent.

OPINION

McKINSTER, Acting P.J.

Plaintiff and cross-defendant Tuscany Hills Landscape & Recreational Corporation appeals from an order denying its special motion to strike a cause of action for defamation asserted by defendant and cross-complainant Gloria Healy. The trial court denied the motion based on its conclusion that Healy had demonstrated a reasonable probability that she would prevail on the defamation cause of action. We conclude that the allegedly defamatory publication comes within the scope of the litigation privilege and that there is therefore no possibility that Healy could prevail on her cause of action.

FACTUAL AND PROCEDURAL BACKGROUND

Tuscany Hills Landscape & Recreational Corporation (hereafter Tuscany Hills or the association) is the homeowners association for a Lake Elsinore development known as Tuscany Hills. Gloria Healy is the owner of a property within the development, 6 Villa Scencero. Tuscany Hills filed a complaint, and ultimately a first amended complaint, alleging that Healy wrongfully denied the association access through her property to an adjacent slope over which the association has maintenance obligations, specifically weed abatement to reduce fire hazard. The first amended complaint sought injunctive and declaratory relief.

Following an unsuccessful motion to strike the first amended complaint, Healy filed a general denial and a cross-complaint. Her cross-complaint alleged, as its first cause of action, that the association defamed her when its attorneys sent a letter to residents of Tuscany Hills referring to the access issue. As pertinent, the letter stated as follows: “Dear Affected Tuscany Hills Member: [¶] Please be advised that the law firm of Peters & Freedman, L.L.P., represents [Tuscany Hills] . . . in the above referenced matter, which involves a lawsuit. A copy of the disclosure letter is enclosed for your reference. [¶] The purpose of this letter is to inform you that the Association’s landscapers, Stay Green, will be performing city and county mandated weed abatement. . . . [¶] The Association is performing this weed abatement at an additional cost to the Association, primarily because of ingress and egress through the gate at the end of Villa Scencero is being prohibited by the owner of 6 Villa Scencero. Please note, normal weed abatement is a standard part of the landscape maintenance contract expense. However, where ingress and egress is changed and more difficult, a cost is charged. This cost has a direct impact on operating expenses and assessments.”

Healy alleged that the letter is false insofar as it states that her prohibition of ingress and egress through the gate at the end of Villa Scencero resulted in increased cost to the members of the association for weed abatement because it gave the false impression that there were no other areas where ingress and egress for weed abatement 549*549 purposes exist or, that if they do exist, they provide more difficult and therefore more costly access. She alleged that the statements were understood by the recipients to mean that additional costs were being imposed as a result of her decision to prohibit ingress and egress through the gate at the end of Villa Scencero. She alleged that she suffered loss of reputation, shame, mortification and hurt feelings, to her general damage in the amount of $250,000. She also sought punitive damages.

Tuscany Hills filed a special motion to strike the defamation cause of action. It asserted, among other things, that the litigation privilege stated in Civil Code section 47, subdivision (b), afforded it a complete defense to the defamation cause of action because the letter sent by its attorney was in connection with the lawsuit it had filed against Healy.

The court denied the motion, finding a reasonable probability that Healy would prevail on the defamation cause of action. Tuscany Hills filed a timely notice of appeal.

DISCUSSION

Code of Civil Procedure section 425.16^[1] provides a procedure for a defendant to challenge a suit or cause of action as a so-called SLAPP (strategic lawsuit against public participation) suit, i.e., non-meritorious litigation meant to chill the valid exercise of the right of free speech or the right to petition for redress. To prevail on an anti-SLAPP motion, the defendant must make a prima facie showing that the plaintiff’s suit arises from an act in furtherance of the defendant’s right of petition or free speech. If this burden is met, the plaintiff must establish a reasonable probability that he or she will prevail on the merits. These determinations are legal questions which we review de novo. (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 474, 102 Cal.Rptr.2d 205, and cases cited therein.)

Section 425.16 applies when the challenged cause of action arises from “any act . . . in furtherance of the person’s right of petition or free speech under the United States or California Constitution in connection with a public issue . . . .” (§ 425.16, subd. (b)(1).) The statute defines acts in furtherance of the constitutional right to petition to include “any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body . . . .” (§ 425.16, subd. (e)(2).) This includes statements or writings made in connection with litigation in the civil courts. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115, 81 Cal. Rptr.2d 471, 969 P.2d 564 (Briggs).) The statute does not require any showing that the matter being litigated concerns a matter of public interest. (Id. at pp. 1117-1118, 1123, 81 Cal.Rptr.2d 471, 969 P.2d 564.) Thus, an action for defamation falls within the anti-SLAPP statute if the allegedly defamatory statement was made in connection with litigation. (Id. at pp. 1109, 1123, 81 Cal.Rptr.2d 471, 969 P.2d 564.) In addition, statements which come within the protection of the litigation privilege of Civil Code section 47, subdivision (b), are equally entitled to the benefits of section 425.16. (Briggs, at p. 1115, 81 Cal.Rptr.2d 471, 969 P.2d 564.) Civil Code section 47, subdivision (b), provides that a publication is privileged if it is made “in” any judicial proceeding. (Civ.Code, § 47, subd. (b)(2).)

550*550 Both section 425.16 and Civil Code section 47 are construed broadly, to protect the right of litigants to “the utmost freedom of access to the courts without the fear of being harassed subsequently by derivative tort actions.” (Rubin v. Green (1993) 4 Cal.4th 1187, 1193, 17 Cal.Rptr.2d 828, 847 P.2d 1044; see § 425.16, subd. (a);Briggs, supra, 19 Cal.4th at p. 1119, 81 Cal.Rptr.2d 471, 969 P.2d 564.) Thus, it has been established for well over a century that a communication is absolutely immune from any tort liability if it has “`some relation'” to judicial proceedings. (Rubin v. Green, supra, 4 Cal.4th at p. 1193, 17 Cal.Rptr.2d 828, 847 P.2d 1044.)

The allegedly defamatory statements in the letter unquestionably come within the litigation privilege. The letter expressly refers to the litigation arising from Healy’s prohibition on ingress and egress for weed abatement purposes and refers to an enclosed disclosure letter. (The record on appeal does not include the disclosure letter.) Because one purpose of the letter was to inform members of the association of pending litigation involving the association, the letter is unquestionably “in connection with” judicial proceedings (§ 425.16, subd. (e)(2)) and bears “`some relation'” to judicial proceedings. (Rubin v. Green, supra, 4 Cal.4th at p. 1193, 17 Cal.Rptr.2d 828, 847 P.2d 1044; see Civ.Code, § 47, subd. (b)(2).)

Because Tuscany Hills met its burden of making a prima facie showing that the letter came within the litigation privilege, the burden shifted to Healy to demonstrate the existence of facts which would, if proved at trial, support a judgment in her favor. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821, 123 Cal. Rptr.2d 19, 50 P.3d 733.) She asserted that she could prevail because the association would not be able to show that her refusal to allow access through her property resulted in any increased weed abatement cost. Even if this is factually correct, however, it is irrelevant because the statements in the letter are absolutely privileged, even if they were defamatory. (Rubin v. Green, supra, 4 Cal.4th at pp. 1193-1194, 17 Cal.Rptr.2d 828, 847 P.2d 1044.)

DISPOSITION

The order denying the special motion to strike is reversed. Tuscany Hills is awarded its costs on appeal.

We concur: RICHLI and KING, JJ.

[1] All further statutory references will be to the Code of Civil Procedure unless otherwise indicated.

Keywords: Anti-SLAPP Motions

Coronado v. Cobblestone Village Community Rentals

163 Cal.App.4th 831 (2008)

835*835 Oren & Oren, Inc., and Charles D. Oren for Plaintiff and Appellant.

Prindle, Decker & Amaro and Jack C. Nick for Defendants and Respondents.

Summary by Mary M Howell, Esq.

Disabled tenant sued when apartment owners refused to construct an access ramp to his unit, claiming violation of the Unruh Civil Rights Act (Civil Code §§51 and 52) and the Disabled Persons Act (Civil Code §§54-55.2)   The court ruled against tenant on both theories.  The court ruled that an Unruh Act violation required intent [a ruling later reversed by Munson v. Del Taco, Inc. (2009) 46 Cal.4th 661)]   As to the Disabled Persons Act, the court held the Act did not impose a duty on a housing provider to modify dwellings to facilitate access by a disabled person, unless the barrier to access violates some other statutory provision.  In this regard, residential housing was held not to be subject to such other statutes (Health & Safety Code §4450 relating to public buildings, and the ADA.)

**End Summary**

OPINION

KANE, J.

Plaintiff Joseph Coronado, a disabled man who is wheelchair-bound, decided to rent a particular apartment at Cobblestone Village, a multi-unit complex owned and operated by defendants Cobblestone Village Community Rentals, L.P. and Equity Residential Properties Management Corporation.^[1] A barrier to wheelchair access existed on the path outside the apartment. Specifically, the concrete sidewalk leading from plaintiff’s apartment to the parking area ended in a raised curb with no access ramp for wheelchairs. Plaintiff was subsequently injured when his wheelchair toppled over while his wife tried to maneuver it off of the raised curb. Plaintiff sued defendants for violation of the Unruh Civil Rights Act (Civ. Code, § 51)^[2] and the Disabled Persons Act (§ 54 et seq.). After plaintiff’s case was presented at 836*836 trial, the trial court ruled that the above causes of action would not go to the jury because the statutory provisions were inapplicable to private residential apartments. Plaintiff appeals from that nonsuit order. We will affirm the judgment.

FACTUAL AND PROCEDURAL BACKGROUND

Cobblestone Village is an apartment complex located in the City of Fresno along both sides of Fruit Avenue. It was constructed in 1982 to 1983 using exclusively private funds. No substantial structural modifications or additions that would require a building permit have occurred since the original construction. The complex is owned and/or managed by defendants.

The leasing office for Cobblestone Village is open to the general public and a wheelchair access ramp is provided at that location.^[3] The apartments and common areas around the apartments are reserved for use by tenants and guests of tenants only, although other persons might enter the complex since defendants’ employees do not patrol the grounds. Vehicles are able to enter the apartment complex by means of a private driveway that connects with Fruit Avenue and winds through the interior of the complex.

Plaintiff is a quadriplegic. He has some use of his arms and can push his manual wheelchair to some extent, but a certain balance must always be maintained because he lacks upper torso control. He is able to get up a curb ramp in his wheelchair, but with no ramp a raised curb is an access barrier.

Cobblestone Village has apartment units that are fully accessible to disabled persons; however, such units were already rented at the time plaintiff and his wife, Krystal Coronado, were looking for an apartment. Plaintiff and his wife were shown apartment number 117 (the apartment) by one of the defendants’ leasing agents. The apartment was not designed for disability access, but the interior was adequate for plaintiff’s needs. There is a concrete path or sidewalk leading from the front door of the apartment to a common use parking area. This path or sidewalk ends at a raised curb next to plaintiff’s assigned parking spot. When plaintiff observed the raised curb at the time he was first shown the apartment, he informed defendants’ leasing agent that a wheelchair ramp would be needed. The agent indicated he would have to check with management, but he did not think it would be a problem.

837*837 At the time plaintiff and his wife moved into the apartment in October of 2002,^[4] a temporary wooden ramp had been placed in the parking lot at the location of the raised curb at the end of the path leading to the apartment. The wooden ramp was placed there at the instruction of defendants’ apartment manager. It was constructed out of plywood and two-by-fours by defendants’ maintenance employee, who also repaired or replaced it on at least one occasion.

Plaintiff asserted at trial that defendants made numerous promises to put in a concrete wheelchair ramp at the curb. Plaintiff, his wife and a paralegal testified that assurances were given by several of defendants’ employees that a concrete ramp would in fact be built at defendants’ expense. Plaintiff and his wife also testified that they were ready and willing at all times to pay the expense themselves of putting in the concrete ramp, and made this fact known to defendants.

Defendants’ leasing agents who dealt with plaintiff and his wife denied ever promising a permanent concrete ramp. Linda Kelley, the apartment manager, testified that she told plaintiff and his wife that they had the option of putting in a permanent ramp at their own expense. According to Ms. Kelley, plaintiff and/or his wife never came forward and said “`Yes[, we] want to put a ramp in.'” Eventually the wooden ramp, which was put in as a temporary convenience only, had to be removed. Thus, defendants’ position was that plaintiff simply failed to take advantage of the option of putting in a concrete ramp at plaintiff’s expense.

In spring of 2003, for reasons that are not entirely clear,^[5] the wooden ramp was removed by defendant Equity Residential Properties Management Corporation. On June 18, 2003, plaintiff’s wife was helping plaintiff get down the curb to the parking area in his wheelchair. In the process, the wheelchair tipped over and plaintiff and his wife were injured.

Plaintiff’s complaint was filed on February 17, 2005. A first amended complaint set forth the following causes of action: (1) premises liability, (2) constructive eviction, (3) violation of the Unruh Civil Rights Act (§51), (4) violation of the Disabled Persons Act (§ 54.1), and (5) injunctive relief under the Disabled Persons Act (§ 55.1).

838*838 On the eighth day of trial and shortly before it would be time to instruct the jury, the trial court ruled on its own motion that the Unruh Civil Rights Act and the Disabled Persons Act were inapplicable in the circumstances of this case and therefore the statutory causes of action would not go to the jury.^[6] As explained by the trial court from the bench, even though the defendants’ leasing office was a public accommodation (and hence subject to the disability access provisions), that fact did not convert the entirety of the apartment complex—including residential areas—into a public accommodation for purposes of the relevant statutes. The minute order stated as follows: “The Court determines, given the law, the research the Court has conducted and the authorities that have been provided for the Court’s consideration … it does not appear, given the law, nor does there appear to be any facts that would cause an interpretation of the law that would cause or allow the plaintiff’s causes of action under any of the disabled persons statutes or discriminatory behavior statutes to go to the jury…. [A]nd so, I do not intend to give instructions that pertain to those statutes, [¶]… [¶] The Court advises the parties a determination has been made that the corporate entity or partnership of Cobblestone Village is a business, they maintain a business office on the premises and the office is located on the opposite side of the street from the plaintiff’s unit in a different section of the apartment complex. The business office is a public accommodation, but the private apartments are not public accommodations within the meaning of any of the statutes cited.”

After the conclusion of the trial, the jury returned a defense verdict on the premises liability and constructive eviction causes of action. Judgment in favor of defendants was entered on July 13, 2007. Plaintiff timely appealed from the trial court’s order of dismissal or nonsuit of the causes of action under the Unruh Civil Rights Act and the Disabled Persons Act.

839*839 DISCUSSION

I. Standard of Review

Plaintiff appeals from the equivalent of a “nonsuit” order entered after the presentation of plaintiff’s evidence. (Code Civ. Proc., § 581c.) Thus, we review whether the trial court was correct in concluding that the evidence, when viewed most favorably toward plaintiff’s case, afforded no basis for a cause of action under either the Unruh Civil Rights Act or Disabled Persons Act as a matter of law. (See Pinero v. Specialty Restaurants Corp. (2005) 130 Cal.App.4th 635, 639 [30 Cal.Rptr.3d 348].) “We will not sustain the judgment `”unless interpreting the evidence most favorably to plaintiff’s case and most strongly against the defendant and resolving all presumptions, inferences and doubts in favor of the plaintiff a judgment for the defendant is required as a matter of law.”` [Citation.]” (Nally v. Grace Community Church (1988) 47 Cal.3d 278, 291 [253 Cal.Rptr. 97, 763 P.2d 948].)

The substance of plaintiff’s appeal is that the trial court erred because defendants had a statutory duty to install a wheelchair ramp at the location of the raised curb so that plaintiff would have access on the only path of travel between the apartment and the parking area (and beyond). The interpretation and application of statutes present a question of law that we review de novo. (Sutco Construction Co. v. Modesto High School Dist. (1989) 208 Cal.App.3d 1220, 1228 [256 Cal.Rptr. 671]; 9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 317, p. 355.) Similarly, the issue of whether a statutory scheme such as the Unruh Civil Rights Act is applicable in a particular context is a question of law that is reviewed de novo. (Warfield v. Peninsula Golf & Country Club (1995) 10 Cal.4th 594, 607, fn. 7 [42 Cal.Rptr.2d 50, 896 P.2d 776][question of whether private club was business enterprise under statute was one of law].)

(1)We consider questions of statutory interpretation in accordance with well-established principles of statutory construction. “[C]ourts must begin with the language of a given statute as the purest expression of legislative intent.” (Gunther v. Lin (2006) 144 Cal.App.4th 223, 233 [50 Cal.Rptr.3d 317].) Our task is “to ascertain the Legislature’s intent so as to effectuate the purpose of the law. [Citation.] Toward this end we must accord a reasonable and commonsense interpretation consistent with the Legislature’s purpose. [Citation.]” (Donald v. Cafe Royale, Inc. (1990) 218 Cal.App.3d 168, 176-177 [266 Cal.Rptr. 804].) “Moreover, `every statute should be construed with reference to the whole system of law of which it is a part, so that all may be harmonized and have effect.’ [Citation.] Statutes relating to the same subject matter are to be read together insofar as reasonably possible. [Citation.]” (Donald v. Sacramento Valley Bank (1989) 209 Cal.App.3d 1183, 1190 [260 Cal.Rptr. 49].)

840*840 II. Causes of Action Based on Structural Barrier Under Unruh Civil Rights Act and Disabled Persons Act

As noted, plaintiff contends that the existence of the particular structural barrier (i.e., lack of a curb ramp) on the pathway outside the apartment denied his right to full and equal access to a public accommodation, which was therefore actionable under the Unruh Civil Rights Act and the Disabled Persons Act. Defendants counter that the trial court properly granted nonsuit because the barrier did not constitute a violation of any structural access standard applicable to residential facilities. We now address these respective arguments by considering the statutes in question.

A. Unruh Civil Rights Act

(2)Section 51, also known as the Unruh Civil Rights Act, provides in part: “All persons within the jurisdiction of this state are free and equal, and no matter what their sex, race, color, religion, ancestry, national origin, disability … are entitled to the full and equal accommodations, advantages, facilities, privileges, or services in all business establishments of every kind whatsoever.” (§51, subd. (b), italics added.) This section “shall not be construed to confer any right or privilege on a person that is conditioned or limited by law or that is applicable alike” to all persons. (§51, subd. (c).) (3)Section 52, subdivision (a), authorizes recovery of damages to persons denied the rights that are protected under section 51. However, a plaintiff seeking to establish a cause of action for damages under the Unruh Civil Rights Act “must plead and prove intentional discrimination in public accommodations in violation of the terms of the Act.” (Harris v. Capital Growth Investors XIV (1991) 52 Cal.3d 1142, 1175 [278 Cal.Rptr. 614, 805 P.2d 873], italics added; see Hankins v. El Torito Restaurants, Inc. (1998) 63 Cal.App.4th 510, 518 [74 Cal.Rptr.2d 684] [damages under § 52 require intentional violation of § 51]; Gunther v. Lin, supra, 144 Cal.App.4th at pp. 247, 257 [same].)^[7]

(4)The provisions of the Unruh Civil Rights Act, “in light of its broad application to `all business establishments,’ have been held to apply with full force to the business of renting housing accommodations.” (Marina Point, Ltd. v. Wolfson (1982) 30 Cal.3d 721, 731 [180 Cal.Rptr. 496, 640 P.2d 115].) Thus, the residential apartment complex in Marina Point correctly conceded that “like other business establishments that deal with the public, its freedom or authority to exclude `customers,’ i.e., prospective tenants, from the goods and services it offers, i.e., rental units, is limited by the provisions of the 841*841 Unruh Civil Rights Act.” (Ibid., fn. omitted; see O’Connor v.Village Green Owners Assn. (1983) 33 Cal.3d 790, 794-796 [191 Cal.Rptr. 320, 662 P.2d 427] [private condominium association was a “business establishment” covered by the Unruh Civil Rights Act].) It is clear from Marina Point and O’Connor that section 51 is fully applicable to defendants’ apartment complex business in the present case, i.e., Cobblestone Village. The question then is not whether section 51 applies to the business enterprise of renting apartments (it does), but whether a cause of action for violation of section 51 may be established in this case under plaintiff’s evidence presented at trial.

(5)We therefore consider whether section 51 may have been violated by the existence of the structural barrier (i.e., no curb ramp)—a theory that depends on a conclusion that defendants were required to make a structural modification to the property. Subdivision (d) of section 51 states: “Nothing in this section shall be construed to require any construction, alteration, repair, structural or otherwise, or modification of any sort whatsoever, beyond that construction, alteration, repair, or modification that is otherwise required by other provisions of law, to any new or existing establishment, facility, building, improvement, or any other structure….” (Italics added.) Subdivision (f) of section 51 further declares that “A violation of the right of any individual under the Americans with Disabilities Act of 1990 (Public Law 101-336) shall also constitute a violation of this section.” Thus, on the question of whether a particular structural modification (such as a wheelchair ramp) is required in a given context, section 51 by its own terms looks to other provisions of law.

It follows from the above discussion that a cause of action in which a plaintiff seeks damages for disability discrimination under section 51 based on a structural or architectural barrier requires a showing that the barrier existed due to an intentional violation of an applicable law relating to disability access standards. (See Gunther v. Lin, supra, 144 Cal.App.4th at p. 247 [§51 violation may be founded on structural and architectural barriers that are intentional violation of the Americans with Disabilities Act (ADA)].) Plaintiff contends that defendants were required to construct a wheelchair ramp in the present case under the following provisions of law: (1) Government Code section 4450 et seq. and Health and Safety Code section 19955 et seq., and (2) the ADA. We will shortly turn our attention to these statutory schemes to determine if plaintiff is correct. At this point, we emphasize that plaintiff’s cause of action under section 51 premised on the existence of a structural barrier depends on whether the lack of a wheelchair ramp at the subject curb constituted an intentional violation of one of these other provisions of law relating to disability access.

842*842 B. Disabled Persons Act

In 1968, the Legislature enacted sections 54, 54.1 and 54.3 as one of two statutory schemes that were specifically designed to prevent discrimination against the physically disabled. (People ex rel. Deukmejian v. CHE, Inc. (1983) 150 Cal.App.3d 123, 131-134 [197 Cal.Rptr. 484].) The other statutory scheme, which we address later, consisted of Government Code section 4450 et seq. and Health and Safety Code section 19955 et seq. (People ex rel. Deukmejian v. CHE, Inc., supra, at pp. 131-134.)

Sections 54 through 55.2 are now commonly referred to as the Disabled Persons Act and are “intended to secure to disabled persons the `same right as the general public to the full and free use’ of facilities open to the public. [Citation.]” (Urhausen v. Longs Drug Stores California, Inc. (2007) 155 Cal.App.4th 254, 261 [65 Cal.Rptr.3d 838].) As originally enacted, violation of sections 54 or 54.1 constituted a misdemeanor as stated in former section 54.3, and enforcement was by government prosecution. (Marsh v. Edwards Theatres Circuit, Inc. (1976) 64 Cal.App.3d 881, 887 [134 Cal.Rptr. 844] (Marsh).) In 1974, section 55 was added to give individuals aggrieved by violation of sections 54 or 54.1 a right to obtain injunctive relief; and in 1976, section 54.3 was amended to allow such individuals a right to maintain a civil cause of action for damages. (Donald v. Cafe Royale, Inc., supra, 218 Cal.App.3d at p. 179[summarizing statutory history].) These additional enforcement methods were included by the Legislature to “guarantee compliance with equal access requirements” and to help remove “impediments to the physically handicappeds’ interaction in community life….” (Ibid.)

The Disabled Persons Act (§§ 54-55.2) differs from the Unruh Civil Rights Act (§§ 51, 52) in at least two respects: (1) there is no intent element under the Disabled Persons Act (Donald v. Cafe Royale, Inc., supra, 218 Cal.App.3d at p. 177), but intentional discrimination is a required element for recovery of damages under the Unruh Civil Rights Act; and (2) each act provides for a distinct measure of statutory penalties (cf. §§ 52 & 54.3; Gunther v. Lin, supra, 144 Cal.App.4th at p. 257). Due to these significant differences, a plaintiff must elect between seeking damages under sections 52 or 54.3. (§ 54.3, subd. (c); Gunther v. Lin, supra, 144 Cal.App.4th at p. 257.)^[8]

Section 54, subdivision (a), declares that “Individuals with disabilities have the same right as the general public to the full and free use of the streets, highways, sidewalks, walkways, public buildings, medical facilities, including hospitals, clinics, and physicians’ offices, public facilities, and other 843*843 public places.” Section 54.1, subdivision (a)(1), states in similar fashion that “Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to accommodations, advantages, facilities,… privileges of all common carriers, airplanes, motor vehicles, railroad trains, motorbuses, streetcars, boats, or any other public conveyances or modes of transportation …, telephone facilities, adoption agencies, private schools, hotels, lodging places, places of public accommodation, amusement, or resort, and other places to which the general public is invited, subject only to the conditions and limitations established by law … and applicable alike to all persons.” Both sections 54 and 54.1 were amended in 1996 to add a provision declaring that “A violation of the right of an individual under the [ADA] also constitutes a violation of this section….”(§§ 54, subd. (c), 54.1, subd. (d); see Stats. 1996, ch. 498, §§ 1, 1.5, p. 2950.)

Subdivision (b)(1) of section 54.1 includes a specific provision relating to housing accommodations that declares as follows: “Individuals with disabilities shall be entitled to full and equal access, as other members of the general public, to all housing accommodations offered for rent, lease, or compensation in this state, subject to the conditions and limitations established by law, or state or federal regulation, and applicable alike to all persons.” “`Housing accommodations’ means any real property, or portion thereof, that is used or occupied, or is intended, arranged, or designed to be used or occupied, as the home, residence, or sleeping place of one or more human beings, but shall not include any accommodations included within subdivision (a) or any single-family residence the occupants of which rent, lease, or furnish for compensation not more than one room therein.” (§ 54.1, subd. (b)(2).)

(6)In addition to declaring that the protections of the Disabled Persons Act apply to housing accommodations, subdivision (b) of section 54.1 affirmatively requires that those who rent, lease or otherwise provide such housing do the following: (1) make reasonable accommodations in rules, policies, practices, or services, when necessary to afford individuals with a disability equal opportunity to use and enjoy the premises (§ 54.1, subd. (b)(3)(B)), and (2) permit a disabled tenant to make reasonable modifications at his or her own expense to the rented premises when necessary to afford that tenant full use and enjoyment of the rented premises, which modifications may be conditioned on the tenant entering into a written agreement to restore the interior of the premises to the original condition (§54.1, subd. (b)(3)(A)).^[9]Finally, it is provided that “Nothing in this subdivision shall require any person renting, leasing, or providing for compensation real property to modify his or her property in any way or provide a 844*844 higher degree of care for an individual with a disability than for an individual who is not disabled.” (§ 54.1, subd. (b)(4), italics added.) The latter section clarifies that subdivision (b) does not by itself mandate the owner or operator of the real property to make any structural modifications, which is consistent with the interpretation that the courts have generally given the Disabled Persons Act, as we discuss below.

(7)Historically, sections 54 and 54.1 have been construed to mean that “all physically handicapped are entitled to the same right as the able-bodied to full and free use of public facilities and places,” requiring operators of such public facilities and accommodations to “`open [their] doors on an equal basis to all that can avail themselves of the facilities without violation of other valid laws and regulations.'” (People ex rel. Deukmejian v. CHE, Inc., supra, 150 Cal.App.3d at p. 133, quotingMarsh, supra, 64 Cal.App.3d at p. 892.) It has been held that these provisions do not, by themselves, require that a business owner structurally modify his or her facilities. (Marsh, supra, at pp. 886, 891 [§ 54.1 “does not require affirmative action by way of modifying existing structures”].) As the Marsh court concluded following an analysis of the legislative history, “the operator of a business of a type enumerated in Civil Code section 54.1 is not required by the force of that section alone to modify its facilities to allow for their use by handicapped persons.” (Marsh, supra, at p. 892; seeHankins v. El Torito Restaurants, Inc., supra, 63 Cal.App.4th at p. 522[acknowledging Marsh rule “that a structural impediment to access does not violate Civil Code section 54.1 unless the impediment also violates a structural access standard”].)

We know of no reason to depart from the analysis in Marsh on this issue. In fact, there are at least two sound reasons to follow it. First, it is clear that the Legislature adopted a distinct statutory scheme in 1968-1969 (i.e., Gov. Code, § 4450 et seq. and Health & Saf. Code, § 19955 et seq.) to address the separate matter of building access standards and structural modifications. (See, e.g., People ex rel. Deukmejian v. CHE, Inc., supra, 150 Cal.App.3d at pp. 131-134 [structural access standards, applicable to new construction or modification of existing facilities, were enacted to “give meaning” to §§ 54 & 54.1]; Donald v. Sacramento Valley Bank, supra, 209 Cal.App.3d at pp. 1190-1192 [same].) This fact strongly indicates sections 54 and 54.1 were not themselves intended to require business owners to modify the structure of their premises, as other statutes were adopted for that purpose. Second, the Legislature specifically responded to one aspect of the holding in Marsh (i.e., that there was no private cause of action for damages) by amending section 54.3 to authorize a private cause of action for specified damages (Stats. 1976, ch. 971, § 2, p. 2270; Stats. 1976, ch. 972, § 2.5, p. 2274; and Stats. 1977, ch. 881, § 3, p. 2651), but left fully intact Marsh’s fundamental interpretation of the statutory scheme that a structural barrier does not violate sections 54 or 54.1 unless it also violates a separate structural access standard. (See 845*845 Gunther v. Lin, supra, 144 Cal.App.4th at p. 236 [legislative acquiescence in prior judicial construction of statutory language creates inference that Legislature agreed with that construction].)

(8)We conclude that in order to state a cause of action for violation of sections 54 or 54.1 based on a structural or architectural barrier, the existence of the barrier must be in violation of a separate provision of law relating to structural access standards. This means that, as was true in our analysis of section 51, we must look to otherprovisions of law before we can determine whether a cause of action on this theory was sufficiently supported by the evidence.

We now proceed to consider those other laws.

C. Government Code Section 4450 et seq. and Health and Safety Code Section 19955 et seq.

As noted, Government Code section 4450 et seq. and Health and Safety Code section 19955 et seq. were enacted in 1968 and 1969 respectively as means of providing structural access standards in regard to public buildings and facilities. The scope and purpose of these provisions have been aptly summarized as follows: “To give meaning to the public accommodation law prohibiting discrimination against the handicapped, the Legislature enacted Government Code section 4450 et seq. providing for the establishment of standards for buildings constructed with public funds designed to insure accessibility by the handicapped. A year later, the Legislature expanded these requirements to facilities constructed with private funds ([Health & Saf. Code, ]§ 19955 et seq.) and, with certain limited exceptions, required conformance with the same standards set forth within Government Code section 4450 et seq. The underlying legislative intent of these statutory schemes is to require affirmative conduct so as to guarantee access to the physically handicapped upon construction of new facilities or with the repair and alteration of existing facilities. [Citation.]” (People ex rel. Deukmejian v. CHE, Inc., supra, 150 Cal.App.3d at p. 133.) That is, disability access standards were first implemented with respect to public buildings or facilities constructed with public funds (Gov. Code, §§ 4450-4458), and were later expanded to include public buildings or facilities constructed with private funds (Health & Saf. Code, §§ 19955-19959; Donald v. Sacramento Valley Bank, supra, 209 Cal.App.3d at p. 1191).

Since Cobblestone Village was constructed with private funds, plaintiff’s contention is that Health and Safety Code section 19955 et seq. required the construction of a curb ramp at the location where the incident occurred. Defendants respond that the walkway outside plaintiff’s apartment is not a 846*846 public facility, and therefore Health and Safety Code section 19955 is inapplicable. As explained below, we conclude defendants are correct.

(9)Health and Safety Code section 19955, subdivision (a), explains that the purpose of part 5.5 of division 13 of the code (including sections 19955-19959.5) is “to insure that public accommodations or facilities constructed in this state with private funds adhere to the provisions of Chapter 7 (commencing with Section 4450) of Division 5 of Title 1 of the Government Code.” The same section defines the term “`public accommodation or facilities'” as follows: “a building, structure, facility, complex, or improved area which is used by the general public and shall include auditoriums, hospitals, theaters, restaurants, hotels, motels, stadiums, and convention centers.” (Health & Saf. Code, § 19955, subd. (a), italics added.) Similarly, Health and Safety Code section 19956.5, which relates to public curbs and sidewalks constructed with private funds, states that it applies to “Any curb or sidewalk intended for public use….” (Italics added.)

In the present case, there was no evidence to suggest that the cement walkway outside plaintiff’s apartment was an area used by the general public or that it was intended for use by the general public. The relevant testimony on this issue indicated that although the general public was invited to the leasing office, only tenants and guests of tenants were supposed to be in residential areas and common areas around the residential areas. Additionally, there was no evidence to indicate that the private lane or driveway going through the interior of defendants’ complex, as a means of vehicular access, was intended for use by the general public. Thus, the curb located on the walkway outside plaintiff’s apartment was not a public facility or public sidewalk to which the provisions of Health and Safety Code sections 19955 and 19956.5 would apply.

This determination is in accord with a well-reasoned 1982 Attorney General Opinion concluding that a mobilehome park recreational building is not a public accommodation or facility within the meaning of the above statutes. (65 Ops.Cal.Atty.Gen. 72, 75 (Jan. 26, 1982).) As explained by that opinion: “Undoubtedly that facility is open to a more general class than the residents of the park, for surely it is available to their families and invited guests. Use by the expanded group of persons in our view, however, does not reach the use `by the general public’ spoken of in [Health and Safety Code] section 19955. There are stillmeaningful restrictions on who may use the facilities, which considerably narrows their amenability to user from being generally available to the public—as is the case with an auditorium, hospital, theater, restaurant, hotel, motel, stadium or convention center—to being available to a select and definable few. Furthermore, unlike those facilities, the purpose for whose creation is based upon their being made continuously available to the 847*847 general public and whose economic viability cannot survive without their being so available, the recreation center at a mobilehome park is neither so created nor dependent. Rather, it is a secondary appendage to another unit, the park itself which, like it, neither contemplates nor needs accessibility of continuous use by the general public for its sustenance. Thus, we do not believe the fact that a recreational building in a mobilehome park might well be used by the residents’ families, friends, and invited guests makes it `a building … or facility used by the general public’ or a `public facility or accommodation’ within the meaning of [Health and Safety Code] section 19955.”

Of further interest in our present case, the same Attorney General opinion rejected an argument that the presence of a commercial office within the mobilehome park converted all structures or areas in the park into a commercial establishment within the meaning of Health and Safety Code section 19955.5. “The main office of the park might be considered engaging in a commercial activity, but surely the individual mobilehomes cannot be so considered, nor do we believe the recreation building itself can be so considered…. Thus, while the office of the mobilehome park would be covered by [Health and Safety Code] section 19955.5, since commercial activity is performed within it, that does not extend to the park’s recreation building and it would not be covered by the section’s mandate.” (65 Ops.Cal.Atty.Gen., supra, at p. 76.)

(10)In granting the nonsuit order in the present case, the trial court explained that even though defendants’ leasing office was a public accommodation (and hence subject to the structural access standards), that fact would not convert the entirety of the apartment complex—including residential areas—into a public accommodation for purposes of the relevant statutes. We concur with the trial court’s analysis on this point—which is also suggested in the above referenced Attorney General opinion. In a multi-use complex such as this, where there is a commercial office open to the general public but also residential and common areas that are not open to the general public, it is appropriate to consider the particular area in question when attempting to determine the applicability of statutes that provide for structural access standards. We conclude that these statutory provisions did not require defendants to install a curb ramp at the location where plaintiff fell.

D. Americans with Disabilities Act

(11)Plaintiff claims that removal of the structural barrier in this case was required by the ADA. As noted previously, the California Legislature has declared that a violation of the ADA constitutes a violation of the Unruh Civil 848*848 Rights Act and the Disabled Persons Act.^[10] 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).) The ADA defines discrimination in a place of public accommodation to include “a failure to remove architectural barriers … in existing facilities … where such removal is readily achievable….” (42 U.S.C. § 12182(b)(2)(A)(iv).) The term “readily achievable” means “easily accomplishable and able to be carried out without much difficulty or expense.” (42 U.S.C. § 12181(9).)

“Thus, under the ADA, the duty to remove such barriers from public accommodations now extends beyond initial construction and significant alterations of existing structures. `A public accommodation shall remove architectural barriers in existing facilities, … where such removal is readily achievable, i.e., easily accomplishable and able to be carried out without much difficulty or expense.’ [Citation.]” (Madden v. Del Taco, Inc. (2007) 150 Cal.App.4th 294, 302 [58 Cal.Rptr.3d 313] (Madden).) In Madden, the Court of Appeal held that a restaurant was required to remove a structural barrier (i.e., a cement trash container blocking an accessible route of travel to an entrance) based on the requirement in the ADA to remove barriers where such removal is readily achievable. (Madden, supra, at pp. 302-303.)^[11] This was so even though the restaurant was otherwise in compliance with structural access standards and had not engaged in any triggering alterations.^[12] (Madden, supra, at p. 302.)

849*849 Plaintiff contends that Madden directly applies here because the installation of a curb ramp, as a means of removal of a structural barrier to access, was readily achievable in this case, especially when the evidence that plaintiff was willing to pay for the installation is considered. Defendants argue that Madden is inapplicable because it involved a place of public accommodation as defined under the ADA, while the instant case did not. We agree with defendants’ position.

Section 12181 of the ADA defines the term “public accommodation” in terms of “12 extensive categories, which the legislative history indicates `should be construed liberally’ to afford people with disabilities `equal access’ to the wide variety of establishments available to the nondisabled.” (PGA Tour, Inc. v. Martin (2001) 532 U.S. 661, 676-677 [149 L.Ed.2d 904, 121 S.Ct. 1879], fns. omitted.) Section 12181(7) of the ADA states:

“The following private entities are considered public accommodations for purposes of this subchapter, if the operations of such entities affect commerce—

“(A) an inn, hotel, motel, or other place of lodging, except for an establishment located within a building that contains not more than five rooms for rent or hire and that is actually occupied by the proprietor of such establishment as the residence of such proprietor;

“(B) a restaurant, bar, or other establishment serving food or drink;

“(C) a motion picture house, theater, concert hall, stadium, or other place of exhibition or entertainment;

“(D) an auditorium, convention center, lecture hall, or other place of public gathering;

“(E) a bakery, grocery store, clothing store, hardware store, shopping center, or other sales or rental establishment;

“(F) a laundromat, dry-cleaner, bank, barber shop, beauty shop, travel service, shoe repair service, funeral parlor, gas station, office of an accountant or lawyer, pharmacy, insurance office, professional office of a health care provider, hospital, or other service establishment;

“(G) a terminal, depot, or other station used for specified public transportation;

“(H) a museum, library, gallery, or other place of public display or collection;

850*850 “(I) a park, zoo, amusement park, or other place of recreation;

“(J) a nursery, elementary, secondary, undergraduate, or postgraduate private school, or other place of education;

“(K) a day care center, senior citizen center, homeless shelter, food bank, adoption agency, or other social service center establishment; and

“(L) a gymnasium, health spa, bowling alley, golf course, or other place of exercise or recreation.” (42 U.S.C. § 12181(7).)

(12)Plaintiff argues the category “inn, hotel, motel, or other place of lodging” (42 U.S.C. § 12181(7)(A)) should be interpreted to include a residential apartment complex. Even when liberally construed, the wording cannot reasonably stretch that far. The described category of “inn, hotel, motel, or other place of lodging” obviously entails places that provide only short-term or transient lodging, not places of residence. This is confirmed by congressional legislative history that explicitly states only nonresidential facilities were intended to be covered by the ADA. (H.R.Rep. 101-485 (II), 2d Sess., p. 303 (1990), reprinted in 1990 U.S. Code Cong. & Admin. News, p. 383.) Finally, federal courts addressing the issue have consistently held that the ADA does not apply to residential facilities such as apartments or condominiums. (Regents of Mercers. College v. Rep. Franklin Ins. (3d Cir. 2006) 458 F.3d 159, 165-166, fn. 8 [“residential facilities such as apartments and condominiums are not transient lodging and, therefore, not subject to ADA compliance”]; Lancaster v. Phillips Investments, LLC (M.D.Ala. 2007) 482 F.Supp.2d 1362, 1367; Indep. Housing Services v. Fillmore Ctr. (N.D.Cal. 1993) 840 F.Supp. 1328, 1344, fn. 14;Mabson v. Ass’n of Apt. Owners of Maui Kamaole (D.Hawaii, August 13, 2007, Civ. No. 06-00235DAE-LEK) 2007 U.S.Dist. Lexis 59260 at *30; Phibbs v. Am. Prop. Mgmt. (D.Utah, Mar. 19, 2008, No. 2:02CV00260DB) 2008 U.S.Dist. Lexis 21879 at *6-*8.) We concur with the reasoning and conclusions expressed in these cases.

We hold that the portions of Cobblestone Village that are a residential apartment complex are not a public accommodation under the ADA, and therefore are not subject to compliance with the ADA or federal regulations implementing the ADA. Consequently, defendants were not required by the ADA to install a curb ramp at the location outside plaintiff’s apartment.

(13)As was the case with the California discrimination statutes, the mere fact that there was a business office in the apartment complex does not change our conclusion. The legislative history of the ADA indicates it was not intended to apply to portions of a multi-use facility that are residential in character. The 1990 House Report relating to the ADA stated: “Only nonresidential facilities are covered by this title. For example, in a large hotel that 851*851 has a residential apartment wing, the residential wing would be covered under the Fair Housing Act … rather than by this title. The nonresidential accommodations in the rest of the hotel would be covered by this title.” (H.R.Rep. 101-485 (II), supra, at p. 303, reprinted in 1990 U.S. Code Cong. & Admin. News, p. 383.) Accordingly, the ADA should be reasonably construed and applied in accordance with this intent. This means that where there is a multi-use facility in which there is a commercial office open to the general public but also residential and common areas that are not open to the general public, it is appropriate to consider the particular area in question when attempting to determine the applicability of ADA structural access standards or other ADA requirements. (See also 28 C.F.R § 36, appen. B (2007) [indicating that in a mixed use facility the residential portion thereof would not be covered by ADA]; Indep. Housing Services v. Fillmore Ctr., supra, 840 F.Supp. at p. 1344 [ADA held inapplicable to residential portions of the larger facility].)

E. Summary of Conclusion Regarding Structural Barrier Causes of Action

(14)As explained herein above, a plaintiff seeking to establish a cause of action under the Unruh Civil Rights Act or the Disabled Persons Act based solely on the existence of a structural barrier must be able to show that the failure to remove the barrier constituted a violation of a structural access standard set forth in other provisions of law. In the instant case, none of the statutes that were referred to by plaintiff as the source of such structural access standards was applicable to the residential and common areas of the apartment complex. We have also observed that this result is not affected in this case by the fact that the apartment complex had a leasing office within the facility. Accordingly, no structural barrier cause of action was presented under the allegations and facts of this case as a matter of law and the trial court correctly kept such causes of action from the jury.

In reaching this conclusion regarding the scope of the various statutory schemes, we emphasize that our role is to construe and apply the legislation as it is. This court is not insensitive to the hardships suffered by individuals who have disabilities, but these are peculiarly legislative matters. As aptly stated by the court in Marsh, supra,64 Cal.App.3d at page 888: “The varied and distinctive nature of the numerous handicaps from which so many people suffer suggests … that the problem is one which the legislative branch of government is uniquely equipped to solve. It is in the legislative halls where the numerous factors involved can be weighed and where the needs can be properly balanced against the economic burdens which of necessity will have to be borne by the private sector of the economy in providing a proper and equitable solution to the problem.”

852*852 DISPOSITION

The judgment is affirmed. Costs are awarded to defendants.

Cornell, Acting P. J., and Hill, J., concurred.

[1] For simplicity, we refer to these entities jointly as defendants unless it seems helpful to the discussion to refer to one defendant separately.

[2] Unless otherwise indicated, all further statutory references are to the Civil Code.

[3] The leasing office is located on the other side of Fruit Avenue from plaintiff’s apartment. In addition to the leasing office, the swimming pool area and at least two of the apartment units had full disability access.

[4] Plaintiff and his wife began renting the apartment in late October of 2002 and moved out in August of 2003.

[5] There was some testimony to the effect that the ramp was removed because it did not appear to be safe or it was in poor condition. Other testimony reflects it may have been mistakenly thrown out because it appeared to be a skateboard ramp or a piece of wood that did not belong there.

[6] Plaintiff points out that the trial court failed to comply with standard procedures governing nonsuit motions (see Code Civ. Proc., § 581c). Although the trial court’s sua sponte order was unusual, no basis for reversal is shown. First, it is clear the trial court was acting to fulfill its judicial duty to ensure the jury was properly instructed on the law applicable to the case. Once the trial court concluded the disability access statutes were inapplicable in the context of this case, and hence claims based thereon could not as a matter of law go to the jury, it promptly informed the parties of its decision. Second, plaintiff made no objection below on grounds of procedural error or unfairness, and it is apparent the parties understood this was a legal issue that had to be resolved in the case. Third, since the instant appeal requires us to resolve the same legal issues as the trial court faced, and we agree that no cause of action existed under the statutes in question, it would be an idle act for us to reverse the case on procedural grounds simply to have the trial court enter a dismissal. (See § 3532.)

[7] In contrast, recovery under the Disabled Persons Act (§§ 54-55.2) does not require an intentional violation. (Donald v. Cafe Royale, Inc., supra, 218 Cal.App.3d at p. 177; Gunther v. Lin, supra, 144 Cal.App.4th at pp. 240-241.)

[8] Another difference is that the Unruh Civil Rights Act has an express provision authorizing punitive damages (§ 52, subd. (b)(1)), but the Disabled Persons Act does not.

[9] Plaintiff does not argue that this section is applicable to his claim that a curb ramp should have been installed. This is correct, since the curb is situated in a common area that is not part of plaintiff’s apartment.

[10] Of course, in the case of the Unruh Civil Rights Act, the violation must be an intentional discrimination or an intentional violation of a structural access standard, as previously discussed.

[11] Madden suggests that California building standards would now, like the ADA, require removal of architectural barriers in existing public accommodations that come within the scope of Government Code section 4450 and Health and Safety Code 19955 et seq. (Madden, supra, 150 Cal.App.4th at p. 302, fn. 3.)

[12] When a public accommodation that was constructed prior to the effective date of the ADA is altered or a part of it is altered, the ADA requires that the alterations be made such that “the altered portions of the facility are readily accessible to and usable by individuals with disabilities, including individuals who use wheelchairs.” (42 U.S.C. § 12183(a).) Similar provisions for applicability of access standards to post-construction alteration are set forth in Health and Safety Code section 19959 and Government Code section 4456 regarding buildings constructed prior to the effective dates thereof. These standards are applied to “new facilities or with the repair and alteration of existing facilities.” (People ex rel. Deukmejian v. CHE, Inc., supra, 150 Cal.App.3d at p. 133.) This is presumably what the Madden court meant by a “triggering alteration.” The concept of a triggering alteration is not at issue here because, as explained herein, the referenced statutes do not apply to the residential apartment complex or common areas thereof, and in any event there is no evidence of any significant alteration to Cobblestone Village.

Keywords: Civil Rights and Discrimination

Cason v. Glass Bottle Blowers Association

37 Cal.2d 134 (1951)

V. P. Lucas for Appellants.

J. Albert Woll, James A. Glenn, Herbert S. Thatcher and Charles P. Scully, Amici Curiae on behalf of Appellants.

George D. Higgins for Respondent.

GIBSON, C.J.

Summary by Mary M. Howell, Esq.:

Discharged member of union entitled to order directing union to provide him a full and fair hearing before revoking his union membership, after union did not allow him to hear or review the testimony of the primary witness against him.

**End Summary**

Defendants–a national labor union, an affiliated local, and certain union officials–appeal from a judgment which awarded plaintiff damages as against the national union and granted a peremptory writ of mandate directing plaintiff’s reinstatement to membership.

Plaintiff was president of a local union composed of employees of the Maywood Glass Company. Prior to May 6, 1945, plaintiff and a committee gave notice to the company that the local had voted not to work on Sundays, and the plant was not in operation on Sunday, May 6th. The men reported for work on Monday, May 7th, but they did not work until the following day because they found that their machines had been made ready and glass had been placed therein by nonunion workers. The company’s general manager telegraphed the national union, complaining that plaintiff had refused to allow the local’s upkeep men or operators to put the machines in order and had refused to permit the men to work on Sunday and Monday.

In voting not to work on Sundays, plaintiff and the local relied on a ruling made in 1944 by Maloney, the national president, 139*139 that under the contract between the employers and the national union it was “optional” with the locals whether the men would work on Sundays. So far as appears from the record, this construction of the contract remained in effect until May 11, 1945, at which time Maloney sent a telegram to the local union stating that the refusal to keep the plant in operation was a violation of the agreement with the employers and instructing the local to comply with the contract and keep the factory in operation seven days a week. The plant, however, was not in operation the next two Sundays, May 13th and 20th, and on the latter date Maloney sent plaintiff the following telegram: “I am informed by our national representatives that regardless of instructions contained in my telegram of May eleven the plant of the Maywood Glass Company is not in operation today Sunday stop I am holding you as president of Local one ninety responsible for this condition of affairs and by the authority vested in me as president do hereby suspend you from membership in our union the Glass Bottle Blowers Association of the United States and Canada.”

Four days later on May 24th Maloney sent plaintiff a second telegram reading: “My recent telegram suspending you from membership in our organization was primarily because you refused as president of Local 190 to permit our upkeep men to come in the factory on Sunday May 6 for the purpose of placing machines in condition to work the following Monday; a violation of section one of our wage contract. Second, because the Maywood Glass Company opened their machines with foremen you stopped the plant for twenty-four hours by not allowing the operators to work in violation of section thirteen of our wage contract.”

As a result of his suspension, plaintiff was discharged by his employer. Prior to commencement of the present suit, plaintiff brought an action against the national union, its president, and a local representative to enjoin them from enforcing the suspension order and to compel them to reinstate him to membership, and also to recover damages for loss of wages. The trial court in that case found that the suspension was wrongful and awarded plaintiff damages for loss of wages from the date of suspension to December 17, 1945, the date of trial, but denied an injunction on the ground that it was improper for the court to order immediate restoration and thereby interfere with the procedure prescribed by the union for review of the disciplinary order. No appeal was taken, and the judgment became final. 140*140

During the pendency of the action above referred to, the president’s order of suspension was approved by the executive board of the national union on March 2, 1946, and plaintiff then appealed to the national convention. In August, 1946, the matter was referred to the grievance committee of the convention, and plaintiff presented evidence and argued his case before it, but he was not allowed to confront or cross-examine his accusers or to rebut the evidence against him. The committee ruled against plaintiff, and its report was adopted and approved by the convention.

Thereafter, on December 17, 1947, plaintiff commenced the present action. The trial court found that he had been denied a fair hearing, and its judgment awarded him damages as against the union and granted a writ of mandate directing his reinstatement.

[1] It is clear that mandate is available in this state against an unincorporated association. (Von Arx v. San Francisco G. Verein, 113 Cal. 377 [45 P. 685]; Otto v. Journeyman Tailors’ etc. Union, 75 Cal. 308 [17 P. 217, 7 Am.St.Rep. 156];Smetherham v. Laundry Workers’ Union, 44 Cal.App.2d 131 [111 P.2d 948]; see, also, Dotson v. International Alliance etc. Employes, 34 Cal.2d 362 [210 P.2d 5];Elevator Operators etc. Union v. Newman, 30 Cal.2d 799 [186 P.2d 1]; Smith v. Kern County Medical Assn., 19 Cal.2d 263 [120 P.2d 874]; Levy v. Magnolia Lodge No. 29, I.O.O.F., 110 Cal. 297 [42 P. 887]; Dingwall v. Amalgamated Assn. of Street Ry. Emp., 4 Cal.App. 565 [88 P. 597].)

[2] The trial court did not err in refusing to quash service of summons or to dismiss the writ proceedings as to the local union and three individual defendants. The motions were not made until the close of the trial, and it is obvious that defendants’ general appearance was a waiver of service of summons and of any defects therein. (Code Civ. Proc. 406, 416; Harrington v. Superior Court, 194 Cal. 185 [228 P. 15].) [3] Moreover, the motion to dismiss the proceedings was based on the ground that the alternative writ was defective as to damages, and the defendants who made the motion could not have been injured because no damages were awarded against them.

The principal contentions made by defendants are as follows: (1) that the prior judgment is res judicata and bars any relief to plaintiff herein; (2) that the present action is barred by the statute of limitations; (3) that plaintiff received a fair hearing and was accorded every privilege to 141*141 which he was entitled under the constitution and by-laws of the national union; and (4) that certain damages were improperly allowed.

The prior judgment held that plaintiff’s suspension by the national president without notice and a hearing was wrongful and that plaintiff was entitled to damages resulting therefrom. The court, however, denied an injunction on the ground that reinstatement would constitute an interference with the functions of the union in considering plaintiff’s case. The correctness of this judgment is not before us, no appeal having been taken therefrom, but we must determine its scope.

[4] The judgment is clearly res judicata insofar as it held that plaintiff’s original suspension by the national president was wrongful and that he was entitled to damages resulting therefrom. [5] It is not res judicata, however, as to any matters which the court expressly refused to determine and which it directed should be litigated in another forum or in another action. (Stark v. Coker, 20 Cal.2d 839, 843 [129 P.2d 390]; Watson v. Poore, 18 Cal.2d 302, 309 [115 P.2d 478]; Rest., Judgments, 67.) As we have seen, the trial court there found that a further hearing properly lay within the union and that it was not warranted in interfering with those proceedings, and it concluded that an injunction or immediate restoration to membership was not necessary at that time to the granting of adequate relief. It is apparent, therefore, that the court left open and refused to determine the question of plaintiff’s right to ultimate reinstatement and that it contemplated that plaintiff would have a cause of action for damages or injunction in case of any wrongful denial of reinstatement. In view of the fact that the correctness of the prior judgment is not before us, we need not determine whether the trial court in that action was justified in limiting the issues to the propriety of the original suspension by the national president, and we likewise need not determine whether a union may properly provide for suspension of a member without a hearing, for a reasonable time, pending determination of the charges against him. [6] As noted above, however, it is clear that the prior judgment in effect determined that a wrongful refusal by the union to reinstate plaintiff would constitute a new and independent wrong giving rise to a new cause of action. Accordingly, the rule that a party cannot split his cause of action and obtain piecemeal recovery is inapplicable. 142*142

Defendants contend that the action is barred by section 340 of the Code of Civil Procedure, which provides a one-year period for tort actions for injury to a person by the wrongful act of another, or, in any event, by section 339 of that Code, which provides a two-year period for actions on contracts not in writing.

Plaintiff’s second amended complaint alleged that the suspension was wholly illegal and void as held in the prior action, that he had exhausted his remedies within the union, and that he had been denied reinstatement without being afforded a fair hearing or trial before the national convention. He prayed for a writ of mandate directing his reinstatement in the union and for damages. The trial court in effect found that the original action of the president was merely a suspension, and that the subsequent refusal to grant reinstatement constituted an expulsion. If wrongful, the denial of reinstatement gave rise to a new cause of action.

[7] The record shows that there was a closed shop contract between the national union and plaintiff’s employer, and plaintiff was entitled to sue in tort if the union wrongfully expelled him and at the same time refused to let him work because he was not a union member. (See James v. Marinship Corp., 25 Cal.2d 721 [155 P.2d 329, 160 A.L.R. 900]; Dotson v. International Alliance, etc. Employees, 34 Cal.2d 362 [210 P.2d 5].) [8] Plaintiff likewise had contract rights by reason of his membership in the union, and he was entitled to bring an action for breach of that contract if he was wrongfully expelled. (Lawson v. Hewell, 118 Cal. 613, 618-619, 621 [50 P. 763, 49 L.R.A. 400]; see De Mille v. American Fed. of Radio Artists, 31 Cal.2d 139, 146, 153-154 [187 P.2d 769, 175 A.L.R. 382]; Chaffee, The Internal Affairs of Associations not for Profit, 43 Harv.L.Rev. 993, 1001, 1007.) [9] Thus the trial court correctly determined that the action partook of the nature of both tort and contract. [10] The final decision of the union, denying reinstatement, occurred when the national convention approved the grievance committee’s report on August 5, 1946, and the complaint was filed on December 17, 1947, which was more than one year but less than two years thereafter. It follows, therefore, that plaintiff’s action is not barred insofar as it is based on contract because it was brought within the two-year period prescribed by section 339.

The trial court found that plaintiff had been denied the right to know the charges against him, to confront his 143*143 accusers, to cross-examine them and to refute their evidence, and it concluded that he had been wrongfully expelled. Defendants contend that the findings are not supported by the evidence and that the record shows that plaintiff was accorded a fair trial by the union. We must first determine what kind of hearing the law requires and in what circumstances the court will intervene in these matters.

[11] In cases of this type we must strive both to protect the rights of individual members and to avoid impairing the right of the union to govern itself. The courts will interfere with the decision of an association expelling one of its members if the rules of the association governing expulsion have not been observed or if the accused member has not been afforded those rudimentary rights which will give him a reasonable opportunity to defend against the charges made. (See Otto v. Journeyman Tailors’ etc. Union, 75 Cal. 308, 314 [17 P. 217, 7 Am.St.Rep. 156];Taboada v. Sociedad Espanola, 191 Cal. 187, 192 [215 P. 673, 27 A.L.R. 1508];McConville v. Milk W. D. Union, 106 Cal.App. 696, 697-698 [289 P. 852]; Brick Layers etc. Union v. Bowen, 183 N.Y.S. 855; Chaffee, The Internal Affairs of Associations not for Profit, 43 Harv.L.Rev. 993, 1014-1020.) [12] It is a fundamental principle of justice that no man may be condemned or prejudiced in his rights without an opportunity to make his defense, and this principle is applicable not only to courts but also to labor unions and similar organizations. (Taboada v. Sociedad Espanola, 191 Cal. 187, 191 [215 P. 673, 27 A.L.R. 1508]; Ellis v. American Federation of Labor, 48 Cal.App.2d 440, 443 [120 P.2d 79].) [13] It is, of course, true that the refined and technical practices which have developed in the courts cannot be imposed upon the deliberations of workingmen, and the form of procedure is ordinarily immaterial if the accused is accorded a fair trial. (See McConville v. Milk W. D. Union, 106 Cal.App. 696, 701 [289 P. 852]; 30 Columb.L.Rev. 847, 852; 4 Am.Jur. 471-472; 7 C.J.S. 61.) [14] The union’s procedure, however, must be such as will afford the accused member substantial justice, and the requirements of a fair trial will be imposed even though the rules of the union fail to provide therefor. (Taboada v. Sociedad Espanola, 191 Cal. 187, 192 [215 P. 673, 27 A.L.R. 1508]; Von Arx v. San Francisco G. Verein, 113 Cal. 377, 379 [45 P. 685]; Ellis v. American Federation of Labor, 48 Cal.App.2d 440, 443-444 [120 P.2d 79]; See Dangel and Shriber, Labor144*144 Unions [1941] 204-206; Martin, Law of Labor Unions [1910] 384-386.) [15] The authorities recognize that such a trial includes the right to notice of the charges, to confront and cross-examine the accusers, and to examine and refute the evidence. (Taboada v. Sociedad Espanola, 191 Cal. 187, 191 [215 P. 673, 27 A.L.R. 1508];Ellis v. American Federation of Labor, 48 Cal.App.2d 440, 443-444 [120 P.2d 79];Harmon v. Matthews, 27 N.Y.S.2d 656, 659; Brooks v. Engar, 259 App.Div. 333 [19 N.Y.S.2d 114]; see Bartone v. Di Pietro, 18 N.Y.S.2d 178; Dangel and Shriber, Labor Unions [1941] 204-206; 44 Ill.L.Rev. 631, 661-663, 673; Witner, Civil Liberties and the Trade Union, 50 Yale L.J. 621, 632-633; 41 Mich.L.Rev. 99, 101; 27 A.L.R. 1512.)

[16] In the present case, the telegrams of May 20 and 24, 1945, were sufficiently explicit to inform plaintiff of the nature of the charges contained therein. No other notice of those charges was necessary since the rules of the union did not require any formal written accusation.

At the national convention, as provided in the union’s constitution and in accordance with its rules and practices, the matter was referred to the grievance committee for hearing. The committee allowed plaintiff to appear and present evidence, but it did not permit him to hear the testimony of Minton, the new national president, who was the only witness against plaintiff. No record was kept of what Minton said, but there was testimony that he spoke for about 30 minutes and that he left papers and telegrams for consideration. The committee had also been given the national union’s file of the case, but plaintiff was not informed of its contents or afforded an opportunity to examine it. After some deliberation the committee concluded that the national president acted within his authority in suspending plaintiff.

When the report of the grievance committee was presented to the convention, the chairman refused to admit plaintiff on the ground that the union’s rules did not allow suspended members to appear before the convention. Other members, however, were permitted to speak in his behalf, and Minton argued in reply, asserting that plaintiff had been rightfully suspended. Thereafter the committee report was adopted and approved by the convention.

[17] The foregoing evidence is clearly sufficient to support the trial court’s conclusion that plaintiff was denied a fair hearing before the grievance committee. Although he was allowed to appear and testify, he was not permitted to confront 145*145 Minton, to hear his evidence or to refute it. Also, plaintiff was not given any opportunity to examine the file of the national union, which was considered by the committee, and it does not appear that he knew what was in the file or that it had been presented to the committee. We cannot tell, of course, if additional charges were contained in President Minton’s testimony before the grievance committee or in the file used by the committee, but this possibility is simply another aspect of plaintiff’s claim that he was denied the right to hear the evidence presented against him. Under the circumstances, it is apparent that he did not receive a fair trial within the meaning of the cases discussed above.

It may be that the deficiencies in the proceedings before the grievance committee would have been cured if plaintiff had received a hearing in the convention itself, but he was not allowed to appear before that body. [18] We do not, however, wish to imply that the union’s practice of denying suspended members the right to appear before the entire convention was unreasonable, since it would obviously be impracticable for that body to try charges against members. That function was properly assigned to the grievance committee, and a fair hearing by the committee would be sufficient to protect the rights of an accused member.

[19] Under certain circumstances, where the facts are not disputed, a labor union may discipline a member without affording him a trial. For example, in De Mille v. American Fed. of Radio Artists, 31 Cal.2d 139, 154-155 [187 P.2d 769, 175 A.L.R. 382], it was held that the enforcement of a by-law providing for automatic suspension of a member upon failure to pay an assessment did not contravene the requirements of due process. (See, also, Brown v. Lehman, 141 Pa.Super. 467 [15 A.2d 513, 516-517].) [20] The present case, however, does not fall within this rule, since plaintiff denied most, if not all, of the charges against him. He controverted the accusations made in the telegram of May 24, 1945, that he refused to permit the upkeep men to come into the factory on Sunday, May 6, and that he caused the shutdown which occurred when the company used foremen to prepare the machines. Further, he presented evidence tending to show that, prior to the telegram of May 11 directing the local union to keep the plant in operation on Sundays, the local had an optional right to refrain from working on Sundays. With respect to the charge in the telegram of May 20, plaintiff did not claim that he took 146*146 any affirmative steps toward keeping the plant in operation, but he did assert that he did not keep anyone from working at any time. In view of his denials it was clearly improper to refuse reinstatement without affording him a fair hearing. Moreover, the union rules did not provide for any fixed, automatic penalty for the offenses charged here, and plaintiff was entitled to a proper hearing so that he could present mitigating evidence and also refute or minimize any evidence against him which might indicate guilt of the charges or have a bearing on the punishment to be imposed.

[21] Defendants complain that the trial court erroneously admitted hearsay testimony as to statements made by William Gable, an officer of the national union, who was originally made a party defendant but who died before trial. In view of our conclusion that plaintiff was not afforded a fair hearing, we need not determine whether this testimony was properly admitted under an exception to the hearsay rule since it does not appear that any prejudice resulted to defendants.

Plaintiff was awarded damages for loss of wages from August 5, 1946, when the convention refused to reinstate him, to March 21, 1949, the date of the judgment, and for prospective loss of wages for one year thereafter. [22] Defendants contend that the recovery of damages in the prior action precludes an allowance in the present case, but, as we have seen, the prior judgment is not a bar to the enforcement of any rights arising from the union’s wrongful refusal to reinstate him.

[23] It is next asserted in effect that some of the findings regarding damages were based on the original suspension by the president rather than on the subsequent refusal to reinstate plaintiff, and defendants argue that the court was referring to the original suspension when it found that plaintiff’s damages were caused by the wrongful “expulsion.” There is no merit in this position. The findings make it clear that the trial court proceeded on the theory that plaintiff was not expelled until the union refused to reinstate him, which constituted a new and independent wrong, and that his damages were caused by this expulsion. The only other complaint with reference to damages is likewise without merit. It is stated, without citation of authority, that the judgment improperly provided that it should bear interest at seven per cent from the date of its entry because part of the allowance of damages was for future loss of wages. It is clear, 147*147 however, that the judgment for damages for breach of contract was a judgment for money which would normally carry interest at that rate from the date of its entry, and there was no error in incorporating an express provision to that effect. (See Const., art. XX, 22 [second section]; Deering’s Gen. Laws, 1944, Act 3757, 1; Walters v. Bank of America etc. Assn., 9 Cal.2d 46, 58 [69 P.2d 839]; Mulligan v. Wilson, 94 Cal.App.2d 286, 292 [210 P.2d 526]; McNabb v. McNabb, 47 Cal.App.2d 623, 627 [118 P.2d 869]; City of Los Angeles v. Aitken, 32 Cal.App.2d 524, 527 [90 P.2d 377].)

[24] The trial court properly refused to pass on the truth of the charges against plaintiff, but it nevertheless ordered issuance of a writ of mandate directing defendants to set aside the suspension and expulsion and to restore and reinstate plaintiff as a member of the union. This judgment is too broad since it appears that the imposition of such a penalty by the union after a fairly conducted hearing may be justified on the basis of the charges of insubordination. The matter should therefore be remanded to the union for further proceedings in accordance with the rules which we have discussed. (Cf. English v. City of Long Beach, 35 Cal.2d 155 [217 P.2d 22];Steen v. City of Los Angeles, 31 Cal.2d 542 [190 P.2d 937]; La Prade v. Department of Water & Power, 27 Cal.2d 47 [162 P.2d 13].)

[25] The judgment is modified by striking therefrom all of that paragraph relating to the issuance of a writ of mandate which commences with the words: “That the Clerk of this Court be and he is hereby directed,” and closes with the words: “and without any prejudice whatsoever,” and by inserting in lieu thereof the following: “That the Clerk of this Court is hereby directed to issue a peremptory writ of mandate commanding defendants to afford plaintiff a full and fair hearing or to reinstate him to membership in the Glass Bottle Blowers Association of the United States and Canada and in Local Union #190 thereof.” As so modified, the judgment is affirmed. Each side is to bear its costs upon this appeal.

Shenk, J., Edmonds, J., Carter, J., Traynor, J., Schauer, J., and Spence, J., concurred.

Keywords: Administrative Due Process

Cabrera v. Alam

197 Cal.App.4th 1077 (2011)

1081*1081 Barry A. Ross for Defendant and Appellant.

The Roberts Law Firm and Jeffrey T. Roberts for Plaintiff and Respondent.

Summary by Mary M. Howell, Esq.:

An anti-SLAPP motion to strike is proper in a case alleging defamation during an association annual meeting, and is properly granted when plaintiff cannot demonstrate a substantial likelihood of prevailing.

**End Summary**

OPINION

FYBEL, J.—

INTRODUCTION

Plaintiff Veronica Cabrera sued defendant Mohammed Alam for defamation, based on statements he made at a homeowners association’s annual meeting immediately before the membership’s election of the association’s board of directors. Defendant was running for reelection to the board of directors. Plaintiff, a past president of the board of directors, had actively campaigned against defendant and in favor of a competing slate of candidates. At the time that the allegedly defamatory statements were made, plaintiff was speaking on behalf of one of the candidates challenging defendant’s reelection, having been given that candidate’s “power of attorney” to represent him at the meeting. Plaintiff accused defendant of having mismanaged the association’s finances and stated the association was missing money. In response, defendant accused plaintiff of stealing money from the association and defrauding it.

1082*1082 The trial court denied defendant’s special motion to strike plaintiff’s defamation claim under Code of Civil Procedure section 425.16, commonly referred to as the anti-SLAPP (strategic lawsuit against public participation) statute (the anti-SLAPP motion).^[1] Defendant contends the trial court erroneously concluded he failed to meet his initial burden of showing the conduct underlying plaintiff’s defamation claim was protected activity within the meaning of the anti-SLAPP statute.

(1) We reverse and remand with directions to grant the anti-SLAPP motion. Defendant carried his burden of showing the defamation claim was based on protected activity under section 425.16, subdivision (e)(3). We hold defendant’s statements were protected activity because they were made in a public forum at a homeowners association’s annual meeting and concerned an issue of public interest, namely, the qualifications of a candidate for office in the association. Plaintiff failed to carry her burden of showing a probability of prevailing on the merits of the defamation claim. Having thrust herself into the controversy surrounding the election of the association’s board of directors, she became a limited purpose public figure who was required to show defendant made the allegedly defamatory statements with malice. Plaintiff failed to produce any evidence showing defendant made the statements knowing them to be false or recklessly disregarding their falsity.

BACKGROUND

Plaintiff’s complaint asserted claims for defamation (slander), intentional interference with contractual obligation, negligent interference with contractual obligation, and unfair business practices. According to plaintiff, the gravamen of her defamation claim is that defendant “stated to a room full of residents from Brookhurst Village, that Plaintiff had committed the crime of fraud on the Brookhurst Village Homeowners Association and stolen funds from the Association.”

Defendant filed the anti-SLAPP motion challenging the defamation cause of action. The anti-SLAPP motion was supported by defendant’s declaration which explains how plaintiff, a past president of the homeowners association’s board of directors, had been actively campaigning on behalf of a slate of candidates running for the Brookhurst Village Homeowners Association, Inc.’s (the association) board of directors. The association served Brookhurst Village Condominiums, a nonprofit, common interest development consisting of 228 condominiums.

1083*1083 Beginning about two weeks before the association’s annual meeting and board of directors election scheduled for September 17, 2009, plaintiff began passing out flyers identifying five candidates she supported for election to the board of directors. Defendant’s declaration stated plaintiff “apparently prepared the flyer because her name is mentioned after every candidate on the flyer.” (Plaintiff does not dispute she prepared the flyer or was extensively involved in campaigning on behalf of that slate of candidates.) The copy of the flyer, which was attached to defendant’s declaration and entitled “NEW ELECTIONS ON SEPTEMBER 17th!!! [¶] Support us for the up-coming year!,” identified five candidates and includes a statement of support by plaintiff following each candidate. The flyer first identified Francisco Luna and stated, inter alia, “Veronica Cabrera, los apoya!/support this group!” Next, candidate Teofilo Ibarra was identified, followed by the statement, “`This is your home vote’ VeronicaCabrera.” After a statement attributed to candidate Jose Gutierrez was the following: “`Make a difference and vote’ Vero.” Following a statement by candidate Maximino Gutierrez, the flyer stated, “`Para proteger tu inversion, vota[,’] Veronica Cabrera.” Finally, after identifying candidate Diana Chacon, the flyer stated, “`Por igualdad y honestidad vota,’ Vero.”

On September 17, 2009, about 30 to 45 minutes before the association’s annual meeting and election of the board of directors, plaintiff “was milling about and talking with the people who were gathering for the meeting.” She continued to campaign for certain candidates and also to campaign specifically against defendant, who was a current member of the association’s board of directors and was seeking to be reelected that night.

The property manager of Brookhurst Village Condominiums called the meeting to order at 7:00 p.m. and stated that because there was going to be an election, only homeowners could attend. Because plaintiff had sold her condominium a few months earlier, the property manager asked her to leave.^[2] Plaintiff “stood up and said she has a right to be at the meeting because one of the homeowners had given her a `power of attorney.'” Plaintiff stated she had been given power of attorney to represent candidate Teofilo Ibarra at the meeting and election that night. After the property manager explained that plaintiff could not represent Ibarra at the meeting because he was also present, Ibarra said he would leave so that plaintiff could stay.

1084*1084 According to the minutes of the meeting, plaintiff “started talking to the public saying that the Board Members were not doing their job right and that it was time for a change, she also thank[ed] the homeowners for their support.” Plaintiff stated defendant was a “dictator” who had not taken care of the association’s money and had not properly handled the finances. Plaintiff also said that the association was “missing funds.” There is no evidence that plaintiff’s statements about defendant were true. Defendant asserted in his declaration in support of the anti-SLAPP motion: “[Plaintiff]’s accusations were lies.” In the opposition, plaintiff did not produce any evidence or argument challenging defendant’s statement.

Defendant stated he felt he had to defend himself. He further stated: “I stood up and asked her a question. I asked her what happened to the $100 rebate check from Staples that the Association was supposed to get when it purchased a fax machine about a year earlier, when she was President of the Association’s board of directors.” Defendant explained: “I knew that she signed the Association check that was used to purchase that fax machine. She also filled out the paperwork for the $100 rebate. On that paperwork, she put her home address, not the Association’s address. I explained all that to the room. [Plaintiff]’s response to my question was: `Viva la Revolucion!'”

In his declaration, defendant further explained he “researched the financial records for the Association” and had “not seen anything that indicates $100 was deposited into the Association’s account around the time the rebate for the fax machine would have arrived.” He stated, “[t]he records indicate the Association did not receive the $100 rebate” and plaintiff “apparently took the $100 rebate for herself.” Defendant further stated he asked plaintiff about the rebate “because it was important information for the homeowners to know before they voted. [Plaintiff] was campaigning on behalf of her friends. The homeowners needed to know how credible [plaintiff] was and how unreliable her recommendations were. It also was important because she was accusing me of financial malfeasance, when in fact she was guilty of exactly that.” He asserted, “I did not make statements about [plaintiff] out of malice or an evil intent. I wanted to tell the homeowners the truth, and that is what I did.”

Plaintiff opposed the anti-SLAPP motion and supported her opposition with her own declaration and that of Reyna Martinez.^[3] Martinez’s declaration stated that she had attended the September 17, 2009 meeting, and that “[d]uring the meeting [defendant], a then current board member and candidate for reelection, took the floor and I heard him state that [plaintiff] had stolen money from the association. I also heard him say that [plaintiff] had 1085*1085 committed fraud against the association.” Martinez also declared she had “attended the entire meeting and during that time [defendant] never gave any information or details to the members present to support his accusations of fraud and theft against [plaintiff].”

Plaintiff’s declaration stated that on September 17, 2009, she was not a resident, a member of the association, a member of the association’s board of directors, or a candidate for election to the association’s board of directors. In her declaration, plaintiff asserted: “I have never stolen funds from, nor defrauded, the Brookhurst Village Condominiums” and “have never been investigated, questioned, criminally charged, tried and/or convicted for any theft or fraud involving any conduct involving Brookhurst Village.”

The trial court denied the anti-SLAPP motion. The court’s minute order stated: “Defendant failed to meet his initial burden of proving that the alleged defamatory statement arose out of protected activity as defined in [section] 425.16[, subdivision ](e). Although the alleged defamatory statement was made in a public forum ([the association’s] meeting to elect the board of directors), defendant failed to show that the alleged defamatory statement was made in connection with an issue of public interest. [Section] 425.16[, subdivision ](e)(3). Defendant concedes that he made the alleged statement in order to defend himself. The plaintiff was no longer a resident of the [association] nor was she up for election to the board.”

Defendant appealed.

DISCUSSION

I.

SECTION 425.16 AND STANDARD OF REVIEW

(2) Section 425.16 provides for a special motion to strike “[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.” (§ 425.16, subd. (b)(1).) “Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken 1086*1086 `in furtherance of the [defendant]’s right of petition or free speech under the United States or California Constitution in connection with a public issue,’ as defined in the statute. [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers `the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.'” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 [124 Cal.Rptr.2d 507, 52 P.3d 685].) “`The defendant has the burden on the first issue, the threshold issue; the plaintiff has the burden on the second issue.'” (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928 [116 Cal.Rptr.2d 187].) To establish a probability of prevailing on a claim, “`the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.”‘” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89 [124 Cal.Rptr.2d 530, 52 P.3d 703].)

We independently review the trial court’s order denying the anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326 [46 Cal.Rptr.3d 606, 139 P.3d 2].) “`We 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.” [Citation.]’ [Citation.]” (Id. at p. 326.) We further observe that the anti-SLAPP statute is to be broadly construed. (§ 425.16, subd. (a).)

II.

DEFENDANT MET HIS BURDEN OF DEMONSTRATING THE STATEMENTS UNDERLYING PLAINTIFF’S DEFAMATION CLAIM AROSE FROM PROTECTED ACTIVITY UNDER SECTION 425.16, SUBDIVISION (e)(3).

(3) A defendant can meet the burden of making a threshold showing that a cause of action is one arising from protected activity by demonstrating the act underlying the plaintiff’s cause of action falls within one of the four categories identified in section 425.16, subdivision (e). (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 [124 Cal.Rptr.2d 519, 52 P.3d 695].) The third category identified in section 425.16, subdivision (e)(3) involves statements or writings made “in a place open to the public or a public forum,” and that concern a matter of public interest. (See Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1117-1118 [81 Cal.Rptr.2d 471, 969 P.2d 564].)

1087*1087 A.

Defendant Established the Statements Underlying Plaintiff’s Defamation Claim Were Made in a Public Forum Within the Meaning of the Anti-SLAPP Statute.

(4) “A `public forum’ is traditionally defined as a place that is open to the public where information is freely exchanged.” (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 475 [102 Cal.Rptr.2d 205] (Damon).) Homeowners association board meetings constitute a public forum within the meaning of the anti-SLAPP statute because they “serve[] a function similar to that of a governmental body. As our Supreme Court has recognized, owners of planned development units `”comprise a little democratic subsociety ….”‘ [Citations.] In 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.”‘ [Citation.] A homeowners association board is in effect `a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government.’ [Citation.]” (Damon, supra, at p. 475.)

Furthermore, “[b]ecause of a homeowners association 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. [Citations.] These provisions parallel California’s open meeting laws regulating government officials, agencies and boards. [Citation.] Both statutory schemes mandate open governance meetings, with notice, agenda and minutes requirements, and strictly limit closed executive sessions. [Citation.]” (Damon, supra,85 Cal.App.4th at p. 475.)

In Damon, supra, 85 Cal.App.4th at page 475, the appellate court concluded the homeowners association board of directors meetings met the statutory definition of a public forum. The appellate court explained that while serving “a function similar to that of a governmental body,” the board of directors in Damon “played a critical role in making and enforcing rules affecting the daily lives of [the homeowners association community’s] residents. Those rules were promulgated at Board meetings, which were televised, open to all Association members, and served as a place for open discussion among directors and members. Approximately 3,000 residents were affected by the policies adopted at Board meetings. On this record, the Board meetings were `public forums.'” (Ibid.)

1088*1088 The association here, as the homeowners association in Damon, necessarily functions similar to a governmental body; the association’s board of directors is significant in the promulgation and enforcement of rules which affect the daily lives of Brookhurst Village Condominiums’s residents. True, the association was smaller than the homeowners association discussed in Damon and perhaps technologically less sophisticated as it held its meetings in a clubhouse, and its meetings were most likely untelevised. Nevertheless, the impact the association and its leadership had on all the residents of Brookhurst Village Condominiums was not any less significant. Furthermore, the allegedly defamatory statements, here, were made at the association’s annual meeting at which directors were to be elected. The meeting was open to all homeowners and authorized representatives of homeowners, who would have to abide by the results of the election. The decisions of elected directors would affect all members of the association. On this record, the association’s September 17, 2009 annual meeting and election of board of directors constituted a public forum within the meaning of section 425.16, subdivision (e)(3).

B.

The Allegedly Defamatory Statements Concerned an Issue of Public Interest Within the Meaning of Section 425.16, Subdivision (e)(3).

(5) Defendant has also demonstrated the allegedly defamatory statements concerned an issue of public interest because they were connected to his qualification for reelection to the association’s board of directors. “The definition of `public interest’ within the meaning of the anti-SLAPP statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity. [Citations.] `”[M]atters of public interest … include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals.”‘ [Citation.]” (Damon, supra, 85 Cal.App.4th at p. 479.)

In Damon, supra, 85 Cal.App.4th at pages 479-480, the appellate court stated: “Although 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 ….’ [Citation.] Given the size of the 1089*1089 [homeowners association] community, the nature of the challenged statements as involving fundamental choices regarding future management and leadership of the Association, and our Legislature’s mandate that homeowner association boards be treated similar to governmental entities, the alleged defamatory comments involved `public issues’ within the meaning of the anti-SLAPP statute.” (See Country Side Villas Homeowners Assn. v. Ivie (2011) 193 Cal.App.4th 1110, 1117 [123 Cal.Rptr.3d 251] [homeowner’s complaints about homeowners association’s actions were a matter of public interest within the meaning of § 425.16].)^[4]

(6) In particular, statements made in connection with elections to the board of directors constitute a public issue in that such elections affect all members of the homeowners association and “concern[] a fundamental political matter—the qualifications of a candidate to run for office.” (Damon, supra, 85 Cal.App.4th at p. 479.) “`The 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.; Macias v. Hartwell (1997) 55 Cal.App.4th 669, 673 [64 Cal.Rptr.2d 222] (Macias) [“Where, as here, a candidate speaks out on issues relevant to the office or the qualifications of an opponent, the speech activity is protected by the First Amendment.”].)

We apply the governing standard of review discussed ante, and accept as true the evidence favorable to plaintiff. We therefore assume, for purposes of our analysis, that defendant stated plaintiff had stolen money from the association and defrauded the association, and did not specifically explain at that time the basis for those alleged statements. To determine whether the alleged statements concerned a public interest, we must consider the context in which they were made.

Defendant produced evidence, unchallenged by plaintiff, showing that the alleged statements were made directly in response to plaintiff’s statements that defendant was not taking care of the association’s money or properly handling its finances and that the association was missing funds. Defendant’s 1090*1090 alleged statements that plaintiff had stolen money from the association and defrauded it were responsive to plaintiff’s accusations against him.

Defendant’s statements challenged the credibility of plaintiff who at that time was serving as the authorized representative of Ibarra, one of defendant’s opponents in the election that was to be held that night. Plaintiff claimed to have “power of attorney” for Ibarra, and Ibarra left the meeting to enable plaintiff to act as his official representative. Challenging plaintiff’s credibility in this context served to communicate to the association’s members to use caution before relying on plaintiff’s vouching in Ibarra’s favor and other candidates’ favor and her accusations against defendant.

Citing Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107 [1 Cal.Rptr.3d 501] (Du Charme), plaintiff argues the trial court correctly found the allegedly defamatory statements “were unconnected to any ongoing controversy, debate or discussion,” as they “pertained to [plaintiff]’s alleged past conduct while on the Board.” In Du Charme, a union trustee posted a statement on the union’s Web site that the plaintiff had been removed from office for financial mismanagement. (Id. at p. 118.) The appellate court commented that although the statement “was presumably of interest to the membership (else why post it at all?)” it was “unconnected to any discussion, debate or controversy. [The plaintiff]’s termination was a fait accompli; its propriety was no longer at issue. Members of the local were not being urged to take any position on the matter. In fact, no action on their part was called for or contemplated. To grant protection to mere informational statements, in this context, would in no way further the statute’s purpose of encouraging participation in matters of public significance [citation].” (Ibid.)

The Du Charme court distinguished that case from Damon, supra, 85 Cal.App.4th 468 and Macias, supra, 55 Cal.App.4th 669, stating: “As previously noted, the allegedly defamatory statements in both cases were made not only in connection with an issue of interest to the members of the particular community, but also in the context of an ongoing controversy, debate or discussion within that community—a decision about future association governance in the former, an election of officers in the latter. The statements in Macias were designed to persuade union members to vote against a particular candidate for union office. In Damon, the statements were calculated to persuade members of the homeowners association to change its method of governance. Thus protection of the statements at issue in Damon 1091*1091and Macias serves the anti-SLAPP statute’s purpose of encouraging participation in an ongoing controversy, debate or discussion.” (Du Charme, supra, 110 Cal.App.4th at p. 118.)

This case is distinguishable from Du Charme because defendant’s allegedly defamatory statements, though referring to plaintiff’s supposed misconduct as past president, were connected to an ongoing controversy and debate. The statements were made directly in response to plaintiff’s charges of financial mismanagement by defendant and in the context of plaintiff’s and defendant’s public debate at the annual homeowners election meeting. Plaintiff and defendant both sought votes in support of their respective positions. This debate constitutes classic protected activity within the anti-SLAPP statute.

In sum, the allegedly defamatory statements, under the circumstances, pertained to an issue of public interest as to the Brookhurst Village Condominiums community, within the meaning of section 425.16, subdivision (e)(3). As defendant carried his burden of showing that the statements underlying the defamation claim came within section 425.16, subdivision (e)(3), the burden shifted to plaintiff to show a probability of prevailing on her claim.

III.

PLAINTIFF DID NOT DEMONSTRATE A PROBABILITY OF PREVAILING ON HER DEFAMATION CLAIM BECAUSE SHE FAILED TO PRODUCE EVIDENCE OF MALICE.

(7) Plaintiff sued defendant for defamation in the form of slander. Civil Code section 46 defines slander, in relevant part, as “a false and unprivileged publication, orally uttered … which: [¶] 1. Charges any person with crime, or with having been indicted, convicted, or punished for crime….”

(8) “When a defamation action is brought by a public figure, the plaintiff, in order to recover damages, must show that the defendant acted with actual malice in publishing the defamatory communication.” (Denney v. Lawrence (1994) 22 Cal.App.4th 927, 933 [27 Cal.Rptr.2d 556].) “A person may become a public figure in several different ways. Some persons have achieved such pervasive fame or notoriety that they become public figures for all purposes and in all contexts. [Citations.]” (Id. at p. 934.) A person may also become a “`limited’ purpose public figure[].” (Ibid.)

1092*1092 As explained post, plaintiff failed to carry her burden of demonstrating a probability of prevailing on her defamation claim because the evidence showed she was a limited purpose public figure at the time the allegedly defamatory statements were made and she failed to make any showing that the defamatory statements were made with malice.

A.

Plaintiff Was a Limited Purpose Public Figure at the Time the Allegedly Defamatory Statements Were Made.

In Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1577 [27 Cal.Rptr.3d 863],the appellate court explained: “The limited purpose public figure is an individual who voluntarily injects him or herself or is drawn into a specific public controversy, thereby becoming a public figure on a limited range of issues.” (See Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 253 [208 Cal.Rptr. 137, 690 P.2d 610].) Copp v. Paxton (1996) 45 Cal.App.4th 829, 845-846 [52 Cal.Rptr.2d 831], sets forth the elements that must be present in order to characterize a plaintiff as a limited purpose public figure. First, there must be a public controversy, which means the issue was debated publicly and had foreseeable and substantial ramifications for nonparticipants. (Id. at p. 845.) Second, the plaintiff must have undertaken some voluntary act through which he or she sought to influence resolution of the public issue. (Ibid.) In this regard, it is sufficient that the plaintiff “`attempts to thrust himself into the public eye.'” (Id. at pp. 845-846.) Finally, “`the alleged defamation must have been germane to the plaintiff’s participation in the controversy.'” (Id. at p. 846.)

Under the facts of this case, the analysis for determining a public issue within the meaning of section 425.16, subdivision (e)(3) and the analysis used to determine the public controversy element of the limited purpose public figure determination are very similar. The public controversy here was the contested board of directors election that was scheduled to occur shortly after the allegedly defamatory statements were made. Plaintiff’s active campaigning and conduct at the meeting demonstrated the public debate over who should be elected at that meeting. There is no dispute that the election results had foreseeable and substantial ramifications for all the homeowners of Brookhurst Village Condominiums—beyond those homeowners who attended the meeting or voted in the election.

The record is clear that plaintiff had actively campaigned in favor of a slate of candidates and against defendant. She prepared a flyer showing her support. She obtained a power of attorney from one of the candidates to appear as his representative at the meeting and continued to campaign during 1093*1093 the meeting. It is evident plaintiff engaged in voluntary acts through which she hoped to influence the outcome of the election.

Defendant’s allegedly defamatory statements that plaintiff stole money from the association and defrauded it were directly responsive to plaintiff’s accusation that defendant had mismanaged the association’s funds and the concomitant inference that he was responsible for the association’s missing funds. Thus, “the alleged defamation [was] germane to the plaintiff’s participation in the controversy.” (Ampex Corp. v. Cargle, supra, 128 Cal.App.4th at p. 1577.)

For all these reasons, the elements for a limited purpose public figure have been satisfied and plaintiff is a limited purpose public figure. Accordingly, plaintiff needed to demonstrate a probability of proving malice.

B.

Plaintiff Failed to Carry Her Burden of Showing a Probability of Prevailing on the Merits of Her Defamation Claim Because She Did Not Make a Prima Facie Showing of Malice.

(9) To establish malice, plaintiff was required to show that defendant made the allegedly defamatory statements with knowledge, or reckless disregard, of the falsity of the statements. (Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 718 [3 Cal.Rptr.3d 623, 74 P.3d 726] [“Traditionally, malice has included not only deliberate falsehoods but also false statements made without reasonable grounds to believe them true.”]; Sipple v. Foundation for Nat. Progress (1999) 71 Cal.App.4th 226, 246 [83 Cal.Rptr.2d 677].)

Plaintiff did not produce any evidence showing that defendant acted with malice. Defendant, on the other hand, explained in detail the basis for his belief plaintiff had pocketed a $100 rebate check that belonged to the association. In his declaration, defendant asserted that he knew plaintiff had signed the check purchasing a fax machine on behalf of the association, plaintiff completed the paperwork to receive a rebate in which she listed her home address, and the association never received the $100 rebate check. Plaintiff’s opposing evidence did not address the rebate check. She did not otherwise show that defendant made the alleged statements with knowledge or reckless disregard of their falsity. Consequently, the anti-SLAPP motion should have been granted.

1094*1094 DISPOSITION

The order of the trial court denying defendant’s anti-SLAPP motion is reversed. The matter is remanded, and the trial court is directed to enter a new order granting the motion. Defendant shall recover costs on appeal.

O’Leary, Acting P. J., and Moore, J., concurred.

[1] All further statutory references are to the Code of Civil Procedure unless otherwise specified.

[2] Plaintiff’s extensive involvement and intense interest in the outcome of the election might be explained by the complaint’s allegations that plaintiff is a real estate agent who has been “regularly involved in the buying and selling of units” in the Brookhurst Village Condominiums community.

[3] Plaintiff does not make any argument on appeal as to the evidentiary objections she asserted in opposing the anti-SLAPP motion.

[4] In the respondent’s brief, plaintiff cites Weinberg v. Feisel (2003) 110 Cal.App.4th 1122 [2 Cal.Rptr.3d 385], in support of her argument that the allegedly defamatory statements were not connected to a public issue within the meaning of section 425.16, subdivision (e)(3). Weinberg v. Feisel, supra, 110 Cal.App.4th at page 1126, is distinguishable from this case in that it involved alleged defamation in the context of a national token collectors association, not in the context of a homeowners association meeting and election. As discussed ante, the homeowners association is unique in how it “`functions as a second municipal government.'” (Damon, supra, 85 Cal.App.4th at p. 479.)

Keywords: Defamation

APPLEBAUM v. BOARD OF DIRECTORS (1980) 104 Cal.App.3d 648

Summary by Mary M. Howell, Esq.:

Administrative due process denied when the investigative, prosecutory and adjudicatory processes are permissibly combined.  When the decision to suspend privileges is made by substantially same persons who investigated and initiated the disciplinary proceeding, the subject of discipline is denied a fair hearing.

*** End Summary **

OPINION

REYNOSO, J.

A private hospital board (hereinafter Hospital) appeals from a judgment granting a doctor’s petition for a writ of administrative mandamus (Code Civ. Proc., § 1094.5) compelling restoration of his obstetrical staff privileges. The hospital asserts the vitality of the peer review concept. Its principal argument is that the trial court erred in its conclusion that the hospital procedures are impermissibly unfair. We affirm the judgment.

I

Plaintiff is a licensed physician and a board certified family practitioner. He began private practice in the South Lake Tahoe area in 1976, became an associate staff member at the hospital in May of that year, and was accepted as an active staff member a year later.

The hospital is a private, nonprofit institution with an open medical staff. In January of 1978, there were 14 general and family practitioners 651*651 on the staff. Five doctors, including plaintiff, had obstetrical privileges at the hospital. Two of the five, Drs. Furman and Hembrow, were board certified specialists in obstetrics; they were also associated in their practice. Two general practitioners and plaintiff had privileges for uncomplicated deliveries only; they were expected to consult with specialists in non-routine cases. There were also two pediatricians on the department staff.

A. Hospital Proceedings

The present controversy began when the head nurse and the night supervisor in obstetrics expressed concern about plaintiff’s delivery techniques to the hospital administrator and to Dr. Furman. Furman wrote to the hospital’s chief of staff transmitting the nurses’ complaints and requesting an investigation pursuant to the hospital’s bylaws. As grounds for his request, Furman listed incompetence in the performance of deliveries and care of the newborn, unauthorized use of experimental drugs, falsification of medical records, improper conduct of labor, and the performance of procedures exceeding granted privileges.

The matter was discussed at a meeting of the executive committee of the hospital on September 29, 1977. Both Furman, as chief of surgery, and Hembrow, as chief of obstetrics, were members of the committee. Furman refrained from voting on decisions concerning plaintiff’s privileges at all stages of hospital proceedings. An ad hoc committee, composed of the six physician members of the obstetrics department, including Furman and Hembrow, was appointed by the chief of staff to investigate the charges against plaintiff. Furman was asked to chair the committee but he declined to act in that capacity.

The ad hoc committee met on October 3. Dr. Furman presented his letter and those from the nurses. He also discussed eight patient records in which he found problems with plaintiff’s treatment. Drs. Auerback and McFarren, pediatricians, commented unfavorably on five patient records and Auerback expressed his feeling that plaintiff at times treated cases which were beyond his expertise as a family practitioner. Dr. Hembrow commented that he had seen plaintiff perform some procedures in a way he felt showed “gross inexperience in most instances.”

When plaintiff appeared before the committee, he objected to the charges in Furman’s letter as vague and to the failure of the bylaws to 652*652 allow him representation at the meeting. He also claimed the presence of Furman and Hembrow on the committee destroyed its impartiality because their feelings were adverse to him. Dr. Furman then led the committee’s questioning of plaintiff concerning his use of drugs not approved by the Federal Drug Administration, lack of consultation with other doctors on some problems and delivery of breech babies. Plaintiff told the committee that he used the non-FDA approved drugs only on two patients who had been placed on the medication previously by Sacramento obstetricians and on one patient after a telephone consultation with Sacramento Medical Center personnel. He also commented on the difficulties of obtaining consultations from Dr. Hembrow on patients receiving Medi-Cal benefits and on Dr. Furman’s criticism of his handling of case in which he had asked Furman to assist. Plaintiff had previously (Aug. 18, 1977) written a letter to the executive committee pointing out the lack of adequate consultation from obstetricians for Medi-Cal patients. At the conclusion of the meeting plaintiff indicated his willingness to follow more detailed guidelines for obstetrics and to undergo a trial period provided consultation was made available to him.

The ad hoc committee agreed plaintiff had shown evidence of poor medical judgment and incompetence in the performance of deliveries and care of the newborn in that he had used experimental drugs without proper authorization and mismanaged labor by excessive use of drugs and improper combinations of drugs. It found plaintiff performed contraindicated procedures, procedures in excess of his privileges for uncomplicated deliveries, and failed to obtain proper consultation. A majority of the ad hoc committee recommended to the executive committee that plaintiff’s obstetrical privileges be suspended after he had completed the care of patients presently at 32 weeks’ gestation and delivered them under the supervision of other physicians in the obstetrics department.

The ad hoc committee’s report was submitted to a meeting of the executive committee on November 22 after the members of the executive committee had been given time to review the transcript of the ad hoc committee hearing. Five of the members of the ad hoc committee (all but Dr. McFarren) attended the executive committee meeting; six other physicians and the hospital administrator were also present. The executive committee interviewed plaintiff and discussed possible recommendations limiting his staff privileges in obstetrics. It reconvened on November 29, and after further discussion decided that 653*653 plaintiff should perform all deliveries until January 1, 1978, with another member of the obstetrics staff and place the newborns under the supervision of the pediatrics service, and that after January 1, 1980, plaintiff’s obstetrical privileges would be suspended until he had completed further training satisfactory to the executive committee and served a probationary period in which he would transfer primary care of any nonroutine delivery to another member of the obstetrics staff.

On December 6, 1977, the hospital administrator wrote to plaintiff informing him of the executive committee’s recommendation and summarily suspending him in accordance with the terms of the recommendation. The letter included the executive committee’s findings that plaintiff had failed to obtain pediatric consultations in thirteen specified cases, failed to obtain obstetrical consultations in thirty-four cases, demonstrated incompetent techniques in delivery and resuscitation in two cases, used improper drugs inappropriately in three cases, exceeded his privileges by using a vacuum extractor in two cases, and used dangerous combinations of high doses of narcotics and narcotic antagonists in three cases. Patient record numbers were given for each of the charges. The executive committee later deferred the January 1 suspension until a recommendation from the medical staff appeal committee was received.

Plaintiff then requested review of the executive committee’s decision by a medical staff appeal committee pursuant to the hospital bylaws. Members of the appeal committee were three physicians not previously involved in the dispute. The committee held formal hearings on January 11 and January 28, 1978; it heard testimony from the hospital administrator, plaintiff, Dr. Furman, the two general practitioner members of the obstetrics staff, an expert for the hospital, and one for plaintiff.

On January 19, 1978, between the two appeal committee meetings, Dr. Furman wrote to plaintiff informing him he would no longer do consultations. Furman’s letter was presented to the appeal committee as an exhibit.

After the lunch break at the second meeting of the appeal committee, counsel for the hospital asked that the record reflect the composition of the executive committee had changed after the appeal committee was appointed and asked the two appeal committee members who were now also serving on the executive committee to indicate they would refrain 654*654 from taking part in the executive committee’s future consideration of plaintiff’s hospital privileges. The two members agreed. Counsel indicated the question of overlapping membership had been raised by plaintiff in an unsuccessful attempt to obtain a writ of mandate from the superior court the day before the second appeal committee meeting.

Counsel for plaintiff told the committee that one basis for the writ application was his concern that the members on the appeal committee may have been influenced by discussions about plaintiff at the January 24 meeting of the executive committee. Plaintiff had attempted to obtain a tape recording of the meeting but had not been able to do so. None of the committee members made any comment on this information and the hearing proceeded.

The appeal committee voted agreement with the recommendation that plaintiff’s obstetrical staff privileges be suspended and the executive committee ratified the decision on January 30, 1978.

B. Superior Court Proceedings

Plaintiff filed his writ petition in superior court on February 1, 1978, contending that the hospital proceedings violated due process of law because both the ad hoc committee and the appeal committee were prejudiced against him, the former by the presence of the complaining physician and the latter by disparaging remarks about his character and personality made at the January 24 executive committee meeting in the presence of two of the three appeal committee members. In a declaration attached to the petition, plaintiff asserted Drs. Furman and Hembrow had shown increasing reluctance to consult on Medi-Cal patients before October of 1977. He claimed 40 percent of his income was derived from obstetrical practice and a substantial portion of his obstetrical patients were Medi-Cal patients. He also claimed disparaging and untrue remarks about him had been made during a discussion of his case at the executive committee meeting on January 24 in the presence of two appeal committee members while the appeal committee hearings were in recess and that before the appeal committee began deliberations counsel for the hospital had informed his counsel that an adverse decision would be served on plaintiff within two days.

The court issued an alternative writ on February 7, 1978. The parties later stipulated that plaintiff had exhausted his administrative remedies, 655*655 the appeal committee decision had been accepted by all relevant hospital authorities, and all proceedings following the appeal committee hearings were fair and provided adequate due process.

The hospital’s answer to plaintiff’s petition denied the allegations of unfairness in any of the proceedings and admitted only that the appeal committee members were “sometimes present” at the January 24 executive committee meeting.

A hearing was held in superior court on April 13, 1978. Counsel for plaintiff argued that the evidence was insufficient to support suspension of obstetrical privileges, and that due process had been violated in the hospital proceedings. On the other hand, counsel for the hospital argued that the record would support an independent judgment that the privileges were properly suspended and plaintiff’s rights to fair procedure had been protected at all stages of the proceedings.

On August 24, 1978, the court issued a memorandum decision in which it concluded: (1) independent review of the record showed the main areas of contention about plaintiff’s obstetrical procedures revolved around professional differences, (2) the guidelines under which plaintiff made the questioned decisions defined very broadly the complications requiring consultations, (3) due process was initially violated by the presence of Dr. Furman on the ad hoc committee, and (4) further due process violations occurred when appeal committee members heard disparaging comments about plaintiff. The court also found the testimony at the ad hoc and appeal committee proceedings did not establish malpractice by plaintiff but did demonstrate that he was not capable of dealing with all the complications of delivery, had difficulty obtaining proper consultations and failed to keep adequate records of treatment and consultation. The court speculated that the lack of complete records resulted in some of the ad hoc committee’s adverse findings and that petitioner would voluntarily further his education through continued training.

The hospital requested findings of fact and conclusions of law which it later contested at a hearing on October 23, 1978. Judgment for plaintiff was entered on October 24, 1978, and the final findings were filed November 17, 1978. The findings of fact reflected the opinions of the court given in the memorandum decision. The court reached three legal conclusions: (1) Dr. Furman’s role in the ad hoc committee proceedings 656*656 violated due process of law, (2) due process was again violated when appeal committee members heard disparaging comments about plaintiff at the executive committee meeting, and (3) independent review of the record showed the evidence was insufficient to support the hospital’s action.

The hospital then moved for a new trial, contending the proceedings met applicable standards of due process, the use of plaintiff’s declaration to support the factual finding that prejudicial derogatory remarks were made was improper, and the evidence was insufficient to support the court’s conclusion. A 1978 amendment of the Code of Civil Procedure section 1094.5, subdivision (d) to provide for a substantial evidence standard of review for claims of abuse of discretion by private hospital boards was called to the court’s attention by a letter from the hospital on January 17, 1979, after the new trial motion was heard and submitted.

The new trial motion was denied on January 26, 1979. The court concluded the statute was not retroactive and had no effect in the present case. It also noted that it considered Dr. Furman’s participation in the initiation, investigation and initial adjudication of the charges against plaintiff a violation of minimal guarantees of due process. The hospital then appealed.

II

A. Fairness Lacking in Hospital Procedure

We first consider the trial court’s conclusion that the hospital proceedings were impermissibly tainted by the role of plaintiff’s accuser, Dr. Furman, in the adjudicatory process. The issue appears to be a novel one in this setting. (1) Although California courts have long recognized a common law right to fair procedure protecting individuals from arbitrary exclusion or expulsion from private organizations which control important economic interests (James v. Marinship Corp. (1944) 25 Cal.2d 721 [155 P.2d 329, 160 A.L.R. 900]; Pinsker v. Pacific Coast Society of Orthodontists (1974) 12 Cal.3d 541 [116 Cal. Rptr. 245, 526 P.2d 253]; Westlake Community Hosp. v. Superior Court (1976) 17 Cal.3d 465 [131 Cal. Rptr. 90, 551 P.2d 410]), review of private hospital staff decisions has only recently been accomplished via administrative mandamus proceedings. (Anton v. San Antonio Community Hosp. (1977) 19 Cal.3d 802 [140 Cal. Rptr. 442, 567 P.2d 1162].) 657*657Since the actions of a private institution are not necessarily those of the state, the controlling concept in such cases is fair procedure and not due process. Fair procedure rights apply when the organization involved is one affected with a public interest, such as a private hospital. (See Sloss & Becker, The Organization Affected With A Public Interest and Its Members – Justice Tobriner’s Contribution to Evolving Common Law Doctrine (1977) 29 Hastings L.J. 99.)

The distinction between fair procedure and due process rights appears to be one of origin and not of the extent of protection afforded an individual; the essence of both rights is fairness. Adequate notice of charges and a reasonable opportunity to respond are basic to both sets of rights. (Ezekial v. Winkley (1977) 20 Cal.3d 267 [142 Cal. Rptr. 418, 572 P.2d 32]; People v. Ramirez (1979) 25 Cal.3d 260 [158 Cal. Rptr. 316, 599 P.2d 622].)

Specific requirements for procedural due process vary depending upon the situation under consideration and the interests involved. (People v. Ramirez, supra, at p. 264;Mathews v. Eldridge (1976) 424 U.S. 319, 335 [47 L.Ed.2d 18, 33, 96 S.Ct. 893].) Where due process requires an administrative hearing, an individual has the right to a tribunal “which meets at least currently prevailing standards of impartiality.” (Wong Yang Sung v. McGrath (1950) 339 U.S. 33, 50 [94 L.Ed. 616, 628, 70 S.Ct. 445].) Biased decision makers are constitutionally impermissible and even the probability of unfairness is to be avoided. (Withrow v. Larkin (1975) 421 U.S. 35, 47 [43 L.Ed.2d 712, 723, 95 S.Ct. 1456]; In re Murchison (1955) 349 U.S. 133, 136 [99 L.Ed. 942, 946, 75 S.Ct. 623].) The factor most often considered destructive of administrativeboard impartiality is bias arising from pecuniary interests of board members. (SeeAmerican Motors Sales Corp. v. New Motor Vehicle Bd. (1977) 69 Cal. App.3d 983 [138 Cal. Rptr. 594], and cases cited therein.) Personal embroilment in the dispute will also void the administrative decision (Mennig v. City Council (1978) 86 Cal. App.3d 341 [150 Cal. Rptr. 207]), although neither prior knowledge of the factual background which bears on a decision nor prehearing expressions of opinions on the result disqualifies an administrative body from acting on a matter before it. (City of Fairfield v. Superior Court (1975) 14 Cal.3d 768, 782 [122 Cal. Rptr. 543, 537 P.2d 375].)

Due process questions are raised when the administrative agency’s initial view of the facts based on evidence derived fron nonadversarial 658*658 processes as a practical or legal matter forecloses fair and effective consideration of the merits at an adversary hearing leading to the ultimate decision. (Withrow v. Larkin, supra, 421 U.S. at p. 58 [43 L.Ed.2d at p. 730].) This is exactly the claim that plaintiff made to the trial court and the basis for the judgment below. We see no impediment to an analysis of the situation using the precedents established under the due process concept. Our Supreme Court has declined to fix rigid procedures for the protection of fair procedure rights (Ezekial v. Winkley, supra, 20 Cal.3d at p. 278), but it is inconceivable to us that such rights would not include impartiality of the adjudicators.

Before proceeding along these lines, however, we pause to note another apparently unique feature of this case. The hospital’s action did not completely eliminate plaintiff’s staff privileges or remove him from staff membership. There is no indication in the record that his use of hospital facilities other than those in the obstetrical department was affected by the investigation and adjudication. Since plaintiff testified that about 40 percent of his income was derived from his obstetrical practice, his interest in obstetrical privileges was substantial and we do not find that a partial exclusion of this magnitude merits any less procedural protection than revocation of full staff membership. Neither party argues otherwise.

Plaintiff’s position before the trial court is a familiar one in the context of administrative law. Without using the term, he contended the ad hoc committee proceedings constituted an impermissible combination of investigatory, prosecutional and adjudicatory functions in that body.

The combination of functions argument often arises in the context of professional licensing revocation cases when an administrative board adjudicates competence issues after its agents have instigated and investigated charges against a licensee. Since the situation before us is in many ways analogous to a license revocation, we will examine the precedents in that area. The federal position on the issue is that due process is not violated by the combination of investigative and adjudicative functions unless the facts of a case show foreclosure of fairness as a practical or legal matter. (Withrow v. Larkin, supra, 421 U.S. 35.) Most states, including California, have taken the same approach to combination of functions argument. (See Davis, Case Commentary: Withrow v. Larkin and the “Separation of Functions” Concept in State Administrative Proceedings (1975) 27 Admin.L.Rev. 407; Winning v. 659*659 Board of Dental Examiners (1931) 114 Cal. App. 658 [300 P. 866]; Griggs v. Board of Trustees (1964) 61 Cal.2d 93 [37 Cal. Rptr. 194, 389 P.2d 722]. But see Abrams v.Jones (1922) 35 Idaho 532 [207 P. 724]; State v. Kelly (1960) 145 W. Va. 70 [112 S.E.2d 641].)

California law requires that disciplinary hearings of designated state agencies be conducted by administrative law judges from the state Office of Administrative Hearings. (Gov. Code, § 11502.) The administrative law judge prepares and submits a proposed decision for the agency’s consideration. (Gov. Code, § 11517, subd. (c).) Although the agency need not adopt the decision, it is required to review the record of the hearing before arriving at a different conclusion. (Ibid.) These statutory requirements reflect legislative concern with due process and fair hearings in administrative proceedings. (Clarkson, Practice Before California Licensing Agencies (1956) 44 Cal.L.Rev. 197.) Legislation in at least two other states (Maine and Missouri) goes further and makes the findings of hearing officers binding on the agency unless the agency succeeds in a later court proceeding. (See Sandberg et al., Fair Treatment For the Licensed Professional: The Missouri Administrative Hearing Commission (1972) 37 Mo.L.Rev. 410; Sawyer, The Quest For Justice In Maine Administrative Procedure: The Administrative Code in Application and Theory(1966) 18 Me.L.Rev. 218.)

In the case before us, of course, there was no administrative law judge or other third party involved in the factual determinations which resulted in revocation of plaintiff’s obstetrical privileges. The investigation was not conducted by state employees insulated from the adjudicatory body by layers of public bureaucracy; it was done by a group which included the instigator of the charges, had overlapping membership in the body (executive committee) which reviewed both the initial and final decisions and to which the majority of the formal adjudicators later belonged. (2) The question before us is whether this situation, completely apart from any question of actual bias on the part of any of the physicians involved and from the merits of the charges, presents a violation of fair procedure rights to an impartial tribunal by virtue of a practical probability of unfairness. We hold that it does.

As a practical matter and without in any way impugning their good faith, the general practitioner and pediatric specialist members of the ad hoc committee were in an extremely difficult position. The charges were brought by one of the two specialists on whom they were accustomed 660*660 and, indeed, required to rely for obstetrical expertise and with whom they were in frequent and intimate professional contact. His associate supported the charges and the committee was thus presented with a solid front of the only special expertise available to it. To presume impartiality of the ad hoc committee in such circumstances goes beyond what can reasonably be expected of human beings in this professional setting. In this situation a realistic appraisal of psychological tendencies and human weakness compels the conclusion that the risk of prejudgment or bias was too high to maintain the guarantee of fair procedure. (SeeWithrow v. Larkin, supra, 421 U.S. 35.)

We recognize that the ad hoc committee’s function under the hospital bylaws was nominally investigatory, not adjudicative. Nevertheless, the chances of a contradictory conclusion by another body within the hospital were virtually nil. The bylaws mandated review of the ad hoc committee’s decision by the executive committee, an apparently twelve-member body upon which five members of the ad hoc committee sat. Having made an adverse decision, the five could hardly be expected not to support it before the executive committee. The appeal committee, later also connected to the executive committee, was composed of doctors from other departments within the hospital. Although the appeal committee did hear testimony from an obstetrical specialist in plaintiff’s defense, half of the hospital’s obstetrics department and another specialist testified adversely. To some extent, at least, the same psychological factors which impugned the impartiality of the ad hoc committee were at work on the appeal committee members. At the very least, they would be tempted to consider extraneous matters, such as the personal collegial preferences of the obstetrics department members, in addition to the merits of the charges. We paraphrase Justice Taft’s remarks in Tumey v. Ohio (1927) 273 U.S. 510, 532 [71 L.Ed. 749, 758, 47 S.Ct. 437, 50 A.L.R. 1243]: Every procedure which would offer a possible temptation to the average man as a judge which might lead him not to hold the balance nice, clear and true between the accused and accuser denies the former due process of law. The procedure at issue here, given the circumstances in which it was accomplished, violated this standard of fairness. The fatal flaw in the proceedings before us was the lack of impartiality in the fact-finding process.

B. Trial Court Reinstatement Order Proper

(3) Since we affirm the judgment on the basis of fair procedure defects in the administrative process, we need address only one more of 661*661 the hospital’s arguments. The hospital claims the order of reinstatement somehow usurped its discretion to determine whether plaintiff should retain his obstetrical privileges and a proper order would have been a remand for additional proceedings. There is no merit in this contention; fair hearings are not a matter of discretion but are required by law. Reinstatement pending a proper administrative hearing does not preclude exercise of the hospital’s legally vested discretion to exclude from its facilities physicians it properly concludes do not meet its standards. (Hackethal v. Loma Linda Community Hospital Corp. (1979) 91 Cal. App.3d 59, 67 [153 Cal. Rptr. 783].) The trial court properly restored the status quo.

The judgment is affirmed.

Evans, Acting P.J., and Blease, J., concurred.

A petition for a rehearing was denied May 15, 1980, and the opinion was modified to read as printed above. Appellant’s petition for a hearing by the Supreme Court was denied June 25, 1980. Richardson, J., was of the opinion that the petition should be granted.

Keywords: Administrative Due Process