Ruiz v. Harbor View Community Association

37 Cal.Rptr.3d 133 (2005)

Summary by Mary M. Howell, Esq.:

Facts

After an association’s attorney sent letters to a homeowner concerning his behavior at board meetings after the association denied the homeowner’s architectural application, the homeowner sued association for defamation. The letters concerned the homeowner’s behavior at board meetings. In response to the complaint, association filed an anti-SLAPP motion, urging that the action for libel could not succeed because the letters were “privileged” by law.

Held

For association. In an anti-SLAPP motion, the moving party must show first that the communications are in furtherance of protected speech. In response, the plaintiff must show that he is likely to succeed on the merits of the case (in other words, that his action for libel is likely to succeed if it goes to trial.) In this case, the court found that the statements were one of the types of statements the anti-SLAPP statute was designed to protect, that is, statements made in connection with an issue of public interest. Even though the letters were private (sent by the association’s attorney to the homeowner), they concerned an issue of ongoing controversy, viz, the association’s treatment of the homeowner’s architectural application. The court then ruled that the homeowner had failed in response to show that he was likely to succeed on the merits of his case. One of the letters was only sent to the homeowner himself (and therefore lacked one of the requirements for defamation, that is, that the statement be “published” to a third party.) The other statement was held to be “mere hyperbole” and therefore, not defamation.

*** End Summary ***

Ruiz v. Harbor View Community Ass’n.

37 Cal.Rptr.3d 133 (2005)

OPINION

FYBEL, J.

INTRODUCTION

Defendant Harbor View Community Association (HVCA) appeals from the trial court’s denial of HVCA’s special motion to strike the libel cause of action pursuant to Code of Civil Procedure section 425.16 (all further code references are to the Code of Civil Procedure unless otherwise indicated). Section 425.16, commonly referred to as the anti-SLAPP statute,^[1] 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 or California Constitution in connection with a public issue.” (§ 425.16, subd. (b)(1).)

The complaint, filed by Christopher P. Ruiz (Ruiz) and Theresa Keane-Ruiz (collectively Plaintiffs), alleges nine causes of action stemming from the denial by HVCA’s architectural committee of Plaintiffs’ conceptual plans to rebuild their house, which lies within the development subject to the HVCA. In the libel cause of action,Ruiz alone alleges two letters written by HVCA’s attorney defamed him. The trial court denied HVCA’s anti-SLAPP motion to strike the libel cause of action on the ground the letters did not come within the definition of an “`act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue'” under section 425.16, subdivision (e).

We hold the two letters were protected speech under subdivision (e)(4) of section 425.16. Ruiz failed to meet his burden of proving the second letter was defamatory and either letter had been published. Ruiz requested relief from the stay imposed by section 425.16, subdivision (g) to conduct discovery on the issue of publication, but the trial court’s ruling on the anti-SLAPP motion made such discovery unnecessary. In light of our conclusions that both letters were protected under the anti-SLAPP statute and the second letter was not defamatory, we reverse and remand with directions for the trial court to reconsider Ruiz’s request for discovery on the issue only of publication of the first letter.

FACTS

In August 2001, Plaintiffs purchased a house on Port Margate Street in Newport Beach. They intended to raze the existing house on the site and to construct a new house.

Plaintiffs’ house was on one of over 523 lots in a development governed by HVCA,137*137 a nonprofit mutual benefit corporation. HVCA was formed in 1968 to provide “community services and recreational facilities for the general use, benefit and welfare of the owners … of residential lots situated within” that development. Among its purposes was “[t]o examine and approve plans and specifications for dwelling houses and other structures and improvements to be erected within … [the development] or the modification, and/or alteration thereon and/or additions thereto.” HVCA’s board of directors (the Board) is vested with the exercise of its corporate powers and with control over HVCA’s business and affairs.

Plaintiffs’ house was, as were the others in the Harbor View development, subject to a declaration of covenants, conditions and restrictions (CC & R’s) recorded on September 30, 1968 and thereafter amended several times. The CC & R’s established architectural controls over the development enforced by an architectural committee appointed by the Board. Under the CC & R’s, “[n]o building, fence, wall or other structure shall be commenced, erected or maintained …, nor shall any exterior addition to or change or alteration therein, including exterior colors, trim, windows, roofing, patio covers and antennas, be made until the plans and specifications showing the nature, kind, shape, height, materials and location of the same shall have been submitted to and approved in writing as to harmony of external design and location in relation to surrounding structures and topography by the Architectural Committee.”

HVCA promulgated architectural committee guidelines “to provide a procedural and substantive basis for homeowner applicants to construct improvements within the community in a manner which is compatible and in harmony with the existing external design of homes in the community.” The guidelines’ purposes are “to maintain the existing architectural character of this community” and “to attain a continuity of design, which will help maintain appearance and enhance the overall value of all properties.” The guidelines require, among other things, the total square footage of all structures on a lot to not exceed 67 percent of the proposed flat pad area of the lot.

In February 2003, Plaintiffs submitted to the architectural committee conceptual plans to erect a new house on their lot. The committee reviewed the plans on March 19 and recommended denying them. Plaintiffs learned of the denial in a March 25, 2003 letter from Jill Schwalbe of Villageway Management, Inc. (Villageway), the property manager for HVCA. By means of the letter, the architectural committee requested that Plaintiffs submit revised plans and identified 13 recommended modifications, including reduction of house size. The house Plaintiffs had designed for the lot exceeded the maximum square footage permitted by the architectural guidelines by at least 900 square feet.

The March 25 letter requested Plaintiffs to provide information to Villageway and directed them to contact Villageway with any questions or concerns. In response,Ruiz had several telephone conversations with Schwalbe. Ruiz did not believe Schwalbe provided a meaningful explanation for the committee’s denial of Plaintiffs’ plans. According to the complaint, Schwalbe told Ruiz the architectural committee would approve Plaintiffs’ plans if Plaintiffs could establish that other houses in the development had similar designs, features, or materials, but the committee “would not compromise regarding any issue relating to the square footage limitation or the manner of its computation.”

Ruiz attended the next architectural committee meeting to “gain insight into 138*138 the Committee’s reasons for denying my architectural plans.” He asked the committee why it rejected his plans and asked how he could bring the plans within the committee’s standards. One committee member asked Ruiz if he was an attorney.Ruiz responded by asking whether being an attorney would be held against him. No one responded. According to Ruiz, the same committee member said if Ruiz did not agree with the committee’s decision, he could sell his house or sue his architect.Ruiz was asked to put all of his questions to the committee in writing. Ruiz contends he tried to attend subsequent architectural committee meetings, but was told the meetings were open only to those with business before the committee because “homeowners … prefer the privacy of these closed meetings.”

Ruiz attended the Board’s meeting on June 11, 2003 to discuss the rejection of his architectural plans. The Board also told Ruiz to put any questions in writing and advised him the Board intended to enforce the architectural standards as written in the guidelines.

Ruiz prepared a 12-page letter to the architectural committee and the Board dated July 2, 2003 regarding the denial of the plans and expressing “the hope that an understanding and an agreement can be reached.” The letter asserted the architectural committee’s decisions “were largely arbitrary and capricious, based not upon an objective set of established criteria but upon subjective sensibilities of the committee members” and the committee “applied the same subjective preferences as a basis for rejecting many of the items contained in our application.” The letter claimed the architectural committee had engaged in activity which was “inequitable, unreasonable and improper” by failing to consistently apply the 67 percent restriction of the guidelines; asserted the Board had changed the architectural guidelines without notice to the homeowners; and expressed “grave concerns that these actions taken by the architectural committee and board of directors may expose the association to serious liability and potential damages.”

The July 2 letter requested, “[i]n a good faith effort to establish a dialogue,” that the architectural committee respond to 12 requests for information, including production of the homeowner membership log. Plaintiffs made additional requests for information from the Board in a letter dated July 7, 2003.

HVCA’s attorney, Martin Lee, responded to Ruiz in a letter dated July 11, 2003 (the July 11 letter). The second paragraph of the July 11 letter, which Ruiz claims was libelous, stated in full: “Initially, let me tell you how reprehensible I find it that you, as an attorney and a member of the State Bar of California, while attempting to conceal your superior legal knowledge and education as an attorney, undertook to negotiate, monitor, observe, harangue, cajole and intimidate laypersons (the directorship and Architectural Committee of the Harbor View Community Association) who you knew had no knowledge of your superior skill and knowledge as an attorney and member of the State Bar. Your only apparent defense to this reprehensible conduct is recited by you in your letter of July 2, 2003 to the effect that, when asked by the laypersons involved if you were an attorney, you refused to directly answer the query and asked `if being a lawyer would be held against’ you. Such conduct by a member of the Bar is simply unconscionable. State law requires an attorney to be truthful — and this is especially the case when he or she is dealing with laypersons (cf. Business and Professions Code § 6068). As officers of the Court, attorneys have a 139*139 duty to deal honestly and fairly with others (Gionis v. Superior Court [1988] 202 [Cal.App.]3d 786, 248 CR 741). You have egregiously violated these duties.” The July 11 letter then responded to various assertions Ruiz made in the July 2 letter.

Ruiz responded to the July 11 letter in a letter dated July 30, 2003. The July 30 letter denied the accusation that Ruiz had breached his ethical duties, accused the Board of “embark[ing] upon a course of action which only seems to make litigation inevitable,” requested the Board to provide copies of various documents and records, and asked the Board to review the architectural committee’s decision regarding Plaintiffs’ plans. Lee and Ruiz continued to trade sharply worded correspondence for the next several months, culminating in an October 15, 2003 letter (the October 15 letter) from Lee.

Ruiz claims the following portions of the October 15 letter were libelous: “I have been advised that you attend every single meeting of the Board of Directors and sit there taking what appear to be copious notes of ostensibly everything being said by everyone. While you have a right under Civil Code § 1363.05 to attend directors’ meetings, you seem to be the only member of the Harbor View Community Association who has ever so fully availed himself of this `right[.’] [¶] Contrary to what you further say in your letter, the Board of Directors has spent the better part of the past six months answering you questions (most of which are set forth in extremely verbose written correspondence). The directors of the Harbor View Community Association are all unpaid volunteer homeowners. You are not the only member of the Harbor View Community Association and your endless queries (most of which appear completely frivolous) are becoming more and more like the Shakespearian `pound of flesh’ that you feel you are entitled to as revenge for the ostensible temerity of the association’s Architectural Committee in not approving your architectural plans. [¶] When your architectural application was rejected, the Architectural Committee informed you specifically and in writing why it was being denied (principally because the proposed home exceeded the maximum square footage allowed). Since that time, you have made absolutely no attempt to resubmit modified plans that make the proposed home compliant with the existing architectural guidelines. Instead, you have devoted an inordinate amount of time harassing the Harbor View Community Association directorship with cockamamy [sic] document inspection requests and virtually stalking and staring down the directors at their regularly scheduled meetings. For you to infer that somehow the Harbor View Community Association has been unfair to you is like the tea kettle calling the coffee pot black.” (Fn. omitted.)

PROCEEDINGS IN THE TRIAL COURT

Plaintiffs filed this lawsuit in July 2004. Their complaint alleges nine causes of action against HVCA and seeks, among other things, a declaration that the denial of their conceptual plans was “improper, unequitable [sic], unreasonable, arbitrary and in bad faith” and that HVCA is barred or estopped from enforcing the architectural guidelines. The sixth cause of action, brought only by Ruiz, seeks damages for libel and alleges the July 11 letter and the October 15 letter are libelous on their face.

On September 2, 2004, HVCA filed its anti-SLAPP motion.^[2] Although directed 140*140 particularly to the sixth cause of action, the motion moved to strike all “such causes of action pleaded against defendant arising out of acts by defendant in furtherance of its right of petition or free speech … in connection with a public issue.” After filing opposition, Ruiz applied ex parte for relief from the discovery stay imposed by section 425.16, subdivision (g) to conduct discovery related to his libel cause of action. The record does not include a ruling on the application.

On December 10, 2004, the trial court denied the anti-SLAPP motion on the ground HVCA “failed to meet its burden of making a prima facie showing that the two letters which form the basis for plaintiffs’ [sic] libel claim are covered by CCP [section] 425.16.” HVCA timely appealed.

ANALYSIS

I. Statutory Framework

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 or California Constitution in connection with a public issue.” (§ 425.16, subd. (b)(1).) “The Legislature enacted the anti-SLAPP statute to protect defendants, including corporate defendants, from interference with the valid exercise of their constitutional rights, particularly the right of freedom of speech and the right to petition the government for the redress of grievances.” (Schoendorf v. U.D. Registry, Inc. (2002) 97 Cal.App.4th 227, 235, 118 Cal.Rptr.2d 313.)

In analyzing a section 425.16 motion, the court engages 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.” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67, 124 Cal.Rptr.2d 507, 52 P.3d 685.) The moving defendant meets this burden by showing the act underlying the plaintiff’s cause of action comes within section 425.16, subdivision (b)(1). (Equilon Enterprises v. Consumer Cause, Inc., supra, at p. 67, 124 Cal.Rptr.2d 507, 52 P.3d 685.) If the defendant meets this initial burden, the burden then shifts and the plaintiff must show a probability of prevailing on the claim. (Ibid.) The plaintiff must demonstrate the complaint is both legally sufficient and is supported by a prima facie showing of facts sufficient to sustain a favorable judgment if the evidence submitted by the plaintiff is given credit. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89, 124 Cal.Rptr.2d 530, 52 P.3d 703.)

We review de novo whether section 425.16 protects the subject speech and whether Ruiz demonstrated a probability he would prevail on his libel cause of action. (Nagel v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 44, 134 Cal.Rptr.2d 420.)

II. Did the July 11 Letter and the October 15 Letter Constitute Acts in Furtherance of HVCA’s Right of Petition or Free Speech in Connection with a Public Issue?

A defendant can meet his or her burden by demonstrating the acts underlying 141*141 the plaintiff’s cause of action fit within one of the categories of 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.) Section 425.16, subdivision (e) defines an act in furtherance of the defendant’s right of petition or free speech in connection with a public issue to include: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; (4) or any other conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest.”

The July 11 letter and the October 15 letter, we conclude, fall within section 425.16, subdivision (e)(4),^[3] which encompasses conduct in furtherance of the exercise of the constitutional right of petition or free speech in connection with an issue of public interest.^[4] In Averill v. Superior Court (1996) 42 Cal.App.4th 1170, 1175, 50 Cal.Rptr.2d 62, a panel of this court concluded the anti-SLAPP statute protects private conversations regarding a public issue. Averill was decided before the Legislature added subdivision (e)(4) to section 425.16, but “lends support to the supposition that subdivision (e)(4) is intended to cover private communications on public issues.” (Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 897, fn. 4, 17 Cal.Rptr.3d 497.) “Section 425.16, therefore, governs even private communications, so long as they concern a public issue.” (Id. at p. 897, 17 Cal.Rptr.3d 497; see also Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1546, 33 Cal.Rptr.3d 145 [“subdivision (e)(4) applies to private communications concerning issues of public interest”].)

Private letters, such as the July 11 letter and the October 15 letter, are similar to private conversations and should be afforded the same protection. Do the July 11 letter and the October 15 letter concern a public issue or an issue of public interest?

Public interest within the meaning of the anti-SLAPP statute has been broadly defined to include, in addition to government matters, “`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.'” (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 142*142 107, 115, 1 Cal.Rptr.3d 501 (Du Charme).) In that case, the court held a statement posted on a labor union’s local Web site stating the local’s business manager had been removed for financial mismanagement did not come within section 425.16, subdivision (e)(2) because the statement was not made in connection with an issue under consideration, the business manager having already been removed. (Du Charme, supra, 110 Cal.App.4th at pp. 118-119, 1 Cal.Rptr.3d 501.) The Web site statement did not come within section 425.16, subdivision (e)(3) or (4), the court held, because the statement was not made in connection with a public issue or an issue of public interest. (DuCharme, supra, at p. 119, 1 Cal.Rptr.3d 501.)

In concluding the Web site statement did not fall within section 425.16, subdivision (e)(3) or (4), the court in Du Charme held “that in order to satisfy the public issue/issue of public interest requirement of section 425.16, subdivision (e)(3) and (4) of the anti-SLAPP statute, in cases where the issue is not of interest to the public at large, but rather to a limited, but definable portion of the public (a private group, organization, or community), the constitutionally protected activity must, at a minimum, occur in the context of an ongoing controversy, dispute or discussion, such that it warrants protection by a statute that embodies the public policy of encouraging participation in matters of public significance.” (Du Charme, supra, 110 Cal.App.4th at p. 119, 1 Cal.Rptr.3d 501.) The Du Charme court did not determine “what limitations there might be on the size and/or nature of a particular group, organization, or community, in order for it to come within the rule we enunciate today.” (Ibid.)

We agree with the analysis of Du Charme and find it applicable here. When the July 11 letter and the October 15 letter were written, Plaintiffs and HVCA were involved in ongoing disputes over approval of Plaintiffs’ conceptual plans, the application of HVCA’s architectural guidelines, and Plaintiffs’ demands for information and documents. Those disputes were of interest to a definable portion of the public, namely, the members of HVCA, because they would be affected by the outcome of those disputes and would have a stake in HVCA governance. Ruiz’s conduct at HVCA board meetings and interaction with board members affected HVCA governance and therefore would also be of interest to community members. The residents of over 523 lots were part of HVCA, a large enough group to come within the requirements of Du Charme. The July 11 letter and the October 15 letter were written in the context of the disputes between Plaintiffs and HVCA, were part of the ongoing discussion over those disputes, and “contributed to the public debate” on the issues presented by those disputes. (Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 898, 17 Cal.Rptr.3d 497.)

Ruiz argues there was no issue under consideration by the Board when the July 11 letter and the October 15 letter were written because Plaintiffs’ conceptual plans were denied in March 2003. In denying the plans, the architectural committee asked Plaintiffs to submit new plans addressing the committee’s concerns. The controversy over the plans continued for months, and evolved into a controversy over HVCA governance, as Ruiz challenged the architectural committee’s decisions, accused the committee of arbitrarily enforcing the architectural guidelines, asked HVCA to address various issues, and requested information and documents from the Board. Ruiz’s July 2, 2003 letter expressed a desire to “commence a dialogue” with the Board; the July 11 letter and the October 15 letter were written by HVCA’s attorney acting on behalf of 143*143 HVCA and/or the Board and were part of the requested dialogue.

Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 102 Cal.Rptr.2d 205 (Damon) supports our conclusion the July 11 letter and the October 15 letter concerned matters of public interest. In Damon, several members of a homeowners association wrote letters published in the association newsletter and made statements at association board meetings criticizing the association’s manager. (Id.at pp. 471-472, 102 Cal.Rptr.2d 205.) The Court of Appeal held the statements fell within section 425.16, subdivision (e)(3) because they were made in public forums (the newsletter and the board meetings) and in connection with an issue of public interest.^[5] (Damon, supra, 85 Cal.App.4th at pp. 474-475, 102 Cal.Rptr.2d 205.) The statements concerned the issues whether the association should switch to a professional management company and the manager’s competence to manage the association. (Id. at p. 479, 102 Cal.Rptr.2d 205.) Those issues were of public interest to association members because they concerned “the very manner in which this group of more than 3,000 individuals would be governed — an inherently political question of vital importance to each individual and to the community as a whole.” (Ibid.)

Granted, the connection between the statements and the public interest in this case is more attenuated than in Damon. Here, Plaintiffs’ requests for information and documents, and Ruiz’s conduct at board meetings, could be seen as private disputes between Plaintiffs and the Board, or as an effort “`to gather ammunition for another round of [private] controversy'” (Weinberg v. Feisel, supra, 110 Cal.App.4th at pp. 1132-1133, 2 Cal.Rptr.3d 385). But those activities are related to and arise out of the architectural committee’s denial of Plaintiffs’ conceptual plans, and concern the issue whether the architectural guidelines had been evenhandedly enforced, a matter of concern to HVCA members. The focus and primary purpose of the letters concerned HVCA governance and enforcement of its architectural guidelines, issues of concern to the many HVCA members.

The July 11 letter and the October 15 letter are neither tactful nor productive. The writer would have been wise to heed Anthony Trollope’s advice “that no angry letter be posted till four-and-twenty hours will have elapsed since it was written.” (Trollope, The Bertrams (1859) vol. 3, ch. 18.) But affording the July 11 letter and the October 15 letter anti-SLAPP protection furthers the statute’s policy of encouraging public participation in matters of public interest. Accordingly, the trial court erred in concluding HVCA failed to meet its burden of establishing the allegedly defamatory letters came within section 425.16, subdivision (e). We turn then to the issue whetherRuiz met his burden 144*144 of establishing a probability of prevailing on the libel cause of action.

III. Did Ruiz Show a Probability of Prevailing on the Libel Cause of Action?

Ruiz, to meet his burden of showing a probability of prevailing on the libel cause of action, had to “make a prima facie showing of facts that would, if proven, support a judgment in [his] favor.” (Nagel v. Twin Laboratories, Inc., supra, 109 Cal.App.4th 39, 45, 134 Cal.Rptr.2d 420.)

A. Ruiz Met His Burden of Making a Prima Facie Showing the July 11 Letter Was Libelous, but the October 15 Letter Was Nonactionable Hyperbole, Epithet, and Metaphor.

Libel is a “false and unprivileged publication by writing, printing, … or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” (Civ.Code, § 45.) “The sine qua non of recovery for defamation … is the existence of falsehood.” (Letter Carriers v. Austin (1974) 418 U.S. 264, 283, 94 S.Ct. 2770, 41 L.Ed.2d 745.) A statement is libel on its face if it “is defamatory of the plaintiff without the necessity of explanatory matter, such as an inducement, innuendo or other extrinsic fact.” (Civ.Code, § 45a.)

Ruiz alleged the July 11 letter and the October 15 letter are libelous on their face. He argues: (1) the July 11 letter falsely accused him of behaving unconscionably, violating his ethical obligations as an attorney, and bullying and deceiving the board members; and (2) the October 15 letter falsely accused him of committing the crime of stalking. HVCA counters that the letters express nonactionable opinions, hyperbole, and metaphor.

Franklin v. Dynamic Details, Inc. (2004) 116 Cal.App.4th 375, 10 Cal.Rptr.3d 429 (Franklin) lays out the analysis for determining whether the July 11 letter and the October 15 letter are libelous on their face. In resolving that issue, “the question is not strictly whether the published statement is fact or opinion … [r]ather, the dispositive question is whether a reasonable fact finder could conclude the published statement declares or implies a provably false assertion of fact.” (Id. at p. 385, 10 Cal.Rptr.3d 429.) “[S]atirical, hyperbolic, imaginative, or figurative statements are protected because `the context and tenor of the statements negate the impression that the author seriously is maintaining an assertion of actual fact.'” (Ibid.) “Whether a statement declares or implies a provably false assertion of fact is a question of law for the court to decide [citations], unless the statement is susceptible of both an innocent and a libelous meaning, in which case the jury must decide how the statement was understood.” (Ibid.)

An opinion or legal conclusion is actionable only “`if it could reasonably be understood as declaring or implying actual facts capable of being proved true or false.'” (Franklin, supra, 116 Cal.App.4th at p. 386, 10 Cal.Rptr.3d 429.) Thus, an opinion based on implied, undisclosed facts is actionable if the speaker has no factual basis for the opinion. (Id. at pp. 386-387, 10 Cal.Rptr.3d 429.) An opinion is not actionable if it discloses all the statements of fact on which the opinion is based and those statements are true. (Id. at p. 387, 10 Cal.Rptr.3d 429.) An opinion is actionable if it discloses all the statements of fact on which the opinion is based and those statements are false. (Ibid.) In determining whether a statement is actionable145*145 opinion, we examine the totality of the circumstances, starting with the language of the allegedly defamatory statement itself. (Id. at p. 385, 10 Cal.Rptr.3d 429.)

The July 11 letter expressed the opinions that Ruiz was “reprehensible,” engaged in “unconscionable” conduct, bullied laypersons, and “egregiously violated” his statutory duty as an attorney to be truthful. The factual bases expressed in the letter for those opinions were (1) Ruiz “attempt[ed] to conceal” his “superior legal knowledge and education” from the Board and architectural committee, (2) Ruizknew the Board and architectural committee did not know he was an attorney, and (3) when asked by a member of the architectural committee whether he was a lawyer, Ruiz responded by asking “`if being a lawyer would be held against'” him.

Ruiz met his burden under the anti-SLAPP statute of presenting a prima facie case that the factual assertions supporting the opinions were demonstrably false. His July 2, 2003 letter and his declaration submitted in opposition to the anti-SLAPP motion support a prima facie conclusion he did not conceal he was an attorney. The letter stated: “You may recall, that I was specifically asked to put in writing our concerns and requests after Mr. Green asked if I was a lawyer. While I did not understand what my profession has to do with approval of our plans, I asked if being a lawyer would be held against me. No one answered that question. However, I was told the reason the committee suspected that I was an attorney was based upon representations made by the association’s manager Jill Schwalbe. She stated that during two prior conversations I had with her I repeated verbatim her comments.”Ruiz stated in his declaration submitted in opposition to the motion to strike that during his conversations with Schwalbe, HVCA’s property manager, “Ms. Schwalbe learned that I was an attorney.” In a declaration submitted in support of an ex parte application for relief from the discovery stay, Ruiz stated he disclosed to Schwalbe that he was an attorney.

The statements that Ruiz acted unconscionably and in violation of his ethical duties as a lawyer are not mere hyperbole, epithet, or “subjective expressions of disapproval, devoid of any factual content.” (Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1404, 88 Cal.Rptr.2d 843.) This becomes clear when the statements are viewed in context. The statements contend Ruiz violated a specific code section based upon identified conduct. The July 11 letter was written by an attorney in “legal verbiage,” including citations to authority, giving the letter’s opinion greater weight to the reader (cf. Franklin, supra, 116 Cal.App.4th at p. 389, 10 Cal.Rptr.3d 429) — if the letter were, in fact, published.

In contrast, however, the allegedly libelous portions of the October 15 letter are just the kind of rhetorical hyperbole, epithets, and figurative statements that are nonactionable. The October 15 letter states Ruiz was seeking a “Shakespearian `pound of flesh,'” making “cockamam[ie]” document inspection requests, and “virtually stalking and staring down the directors at their regularly scheduled meetings.” The term “virtually stalking” cannot fairly be interpreted as an accusation of a crime but, taken in context, was a metaphor used to describe Ruiz’s conduct at the board meetings. (See Franklin, supra, 116 Cal.App.4th at p. 389, 10 Cal.Rptr.3d 429 [statements that plaintiff “`stole'” and “`plagiarized'” data “appear in context as rhetorical hyperbole”]; see also Letter Carriers v. Austin, supra, 418 U.S. at pp. 283-284, 94 S.Ct. 2770 [“`traitor[s]'” understood to mean that plaintiffs’ actions were reprehensible, not that plaintiffs had committed treason]; 146*146 Greenbelt Coop. Pub. Assn. v. Bresler (1970) 398 U.S. 6, 13-14, 90 S.Ct. 1537, 26 L.Ed.2d 6 [“`blackmail'” a vigorous epithet used to describe unreasonable negotiations]; Rosenaur v. Scherer(2001) 88 Cal.App.4th 260, 278-279, 105 Cal.Rptr.2d 674 [calling plaintiff “thief” and “liar” during political campaign was hyperbole].)

B. The Litigation Privilege Does Not Protect the July 11 Letter.

HVCA argues the July 11 letter and the October 15 letter are protected by the litigation privilege of Civil Code section 47, subdivision (b). The privilege applies, however, only when the contemplated litigation is imminent; the privilege does not retroactively protect any and all communication preceding the litigation. (Edwards v. Centex Real Estate Corp. (1997) 53 Cal.App.4th 15, 35, 61 Cal.Rptr.2d 518.) As that case notes, “[i]n the present litigious society, there is always at least the potential for a lawsuit any time a dispute arises between individuals or entities.” (Id. at p. 33, 61 Cal.Rptr.2d 518.) The privilege only arises “at the point in time when litigation is no longer a mere possibility, but has instead ripened into a proposed proceeding that is actually contemplated in good faith and under serious consideration as a means of obtaining access to the courts for the purpose of resolving the dispute.” (Id. at p. 39, 61 Cal.Rptr.2d 518.)

The potential for litigation existed, of course, from the outset of the dispute between Plaintiffs and HVCA. But when the July 11 letter was written, litigation was not imminent, the dispute had not ripened into a proposed proceeding, and litigation had not been threatened. Ruiz’s July 2, 2003 letter obliquely asserted the Board’s actions exposed the Board to liability, but did not mention litigation. When the July 11 letter was written, neither Ruiz nor HVCA had written a demand letter. (See Knoell v. Petrovich (1999) 76 Cal.App.4th 164, 170-171, 90 Cal.Rptr.2d 162 [demand letter serving as condition precedent to litigation and all subsequent communications held privileged].) Ruiz had requested a “dialogue,” and the July 11 letter was a response to his request, not a threat that litigation was under serious consideration.

Our conclusion that the litigation privilege does not protect the July 11 letter is consistent with our conclusion that letter falls within section 425.16, subdivision (e)(4). Only subdivision (e), subparts (1) and (2) of section 425.16 are parallel to and co-extensive with the definition of privileged communication under Civil Code section 47, subdivision (b). (See Church of Scientology v. Wollersheim, supra, 42 Cal.App.4th at p. 650, 49 Cal.Rptr.2d 620.) The anti-SLAPP legislation covers a broader definition of communications than the litigation privilege. Thus, while a communication protected by the litigation privilege necessarily would fall within section 425.16, subdivision (e)(1) or (2) (see Briggs v. Eden Council for Hope & Opportunity, supra, (1999) 19 Cal.4th 1106, 1115, 81 Cal.Rptr.2d 471, 969 P.2d 564), the opposite is not true. A communication protected by the anti-SLAPP statute would not necessarily be protected by the litigation privilege. That is the case where, as here, the communication falls within section 425.16, subdivision (e)(4).

C. Ruiz Failed to Meet His Burden of Proving Publication, but Is Entitled to Discovery on the Issue as to the July 11 Letter.

A libel, to be actionable, must be published; i.e., communicated to a third person who understands its defamatory meaning. (5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 476.) Ruiz did not meet his burden of showing either 147*147 the July 11 letter or the October 15 letter was published. Publication of the letter to the board members would be privileged under Civil Code section 47, subdivision (c) because they would be interested in the letter. Ruiz argues the initials “rs” found at the end of the July 11 letter suggest a third person with those initials typed the letter. But Ruizdid not present evidence that a person with the initials “rs” typed the letter, or that the person who typed the letter would not be a “person interested” under Civil Code section 47, subdivision (c).

Ruiz requested discovery on the issue of publication. On October 27, 2004, after HVCA filed the special motion to strike, he applied ex parte for an order, or for an order shortening time in which to bring a noticed motion, for relief from the discovery stay in order to conduct discovery on the issue of publication. The record contains no order on the application. In ruling on the anti-SLAPP motion itself, the trial court did not have reason to reconsider Ruiz’s request for discovery because the court denied the motion under the first prong without reaching the issue of probability of success on the libel cause of action.

Under subdivision (g) of section 425.16, the trial court may, for good cause, lift the discovery stay to permit specified discovery limited to the issues raised in the special motion to strike. (Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1189-1190, 121 Cal.Rptr.2d 794.) Ruiz timely applied for discovery under subdivision (g) of section 425.16, and we will remand the case for the trial court to consider whether to permit discovery on the issue of publication of the July 11 letter only.

HVCA asserts, without citing authority, that Ruiz waived his right to challenge the denial of his request for discovery by failing to file his own notice of appeal from the denial of the anti-SLAPP motion, akin to a protective cross-appeal. In the case of a protective cross-appeal, the cross-appellant is appealing from a judgment, made appealable under section 904.1, subdivision (a), as protection in the event the appellate court reverses an order granting a new trial or judgment notwithstanding the verdict. (See Eisenberg et al., Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2004) ¶¶ 3:169 to 3:171.1, pp. 3-62 to 3-63 (rev.# 1, 2004).) Here, there was no adverse appealable order or judgment from which Ruiz could file a notice of appeal. His request for discovery can and should be considered along with all the issues raised by HVCA’s appeal from the order denying the anti-SLAPP motion.

DISPOSITION

Ruiz failed to meet his burden of proving a probability of succeeding on his libel claim: He failed to show the July 11 letter had been published and the October 15 letter was defamatory. The letters were protected under section 425.16, subdivision (e)(4). Thus, we reverse the order denying HVCA’s special motion to strike pursuant to section 425.16 and remand with the following directions.

148*148 Ruiz timely requested discovery on the issue of publication, and therefore we remand with directions for the trial court to reconsider Ruiz’s request for discovery, but only as to the July 11 letter. If the trial court denies Ruiz’s request for discovery, then it must grant HVCA’s anti-SLAPP motion. If the trial court permits Ruiz to conduct discovery as to publication of the July 11 letter, then the trial court may reconsider HVCA’s motion to strike that letter under the anti-SLAPP statute in light of discovery results.

Appellant to recover costs incurred on appeal.

WE CONCUR: SILLS, P.J., and BEDSWORTH, J.

[1] SLAPP is an acronym for strategic lawsuit against public participation. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1, 81 Cal.Rptr.2d 471, 969 P.2d 564.) An order granting or denying a special motion to strike is appealable pursuant to section 425.16, subdivision (j).

[2] The motion initially was set to be heard on October 29, 2004 as that was the earliest date provided by the court clerk. On September 7, the trial court (Judge Monroe) granted HVCA’s ex parte application to advance the hearing date to October 1. But on October 1, the trial court (Judge Banks) determined its calendar was too congested to hear the motion and ordered the matter continued to December 10, 2004, the court’s next available hearing date. The motion therefore was timely heard. (Code Civ. Proc., § 425.16, subd. (f).)

[3] Subparts (1) and (2) of section 425.16, subdivision (e), but not subparts (3) and (4), are co-extensive with the litigation privilege of Civil Code section 47, subdivision (b). (See Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 650, 49 Cal.Rptr.2d 620.) As explained below, the July 11 letter is not protected by the litigation privilege of Civil Code section 47, subdivision (b), and therefore does not fall within section 425.16, subdivision (e)(1) or (2).

[4] A defendant moving to strike a cause of action under section 425.16, subdivision (e)(1) or (2) need not separately demonstrate the statement concerned an issue of public significance because those subparts protect any written or oral statement made in the applicable setting. (Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th 1106, 1123, 81 Cal.Rptr.2d 471, 969 P.2d 564.) In contrast, subdivision (e)(4) of section 425.16 protects only conduct undertaken “in connection with a public issue or an issue of public interest.” (Code Civ. Proc., § 425.16, subd. (e)(4); see Briggs v. Eden Council for Hope & Opportunity, supra, at p. 1117, 81 Cal.Rptr.2d 471, 969 P.2d 564.)

[5] In Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1131, footnote 4, 2 Cal.Rptr.3d 385, the court criticized Damon’s holding the association newsletter was a public forum within the meaning of subdivision (e)(3) of section 425.16. We cite Damon as support only for our conclusion the July 11 letter and the October 15 letter concerned matters of public interest within the meaning of subdivision (e)(4) of section 425.16, which does not require the statements be made in a public forum. Weinberg v. Feisel concluded private communications about private matters do enjoy anti-SLAPP protection and did not address whether private communications about public matters fall within subdivision (e)(4) of section 425.16. (Weinberg v. Feisel, supra, 110 Cal.App.4th at p. 1132, 2 Cal.Rptr.3d 385.) The court that decided Weinberg v. Feisel held in Terry v. Davis Community Church, supra, 131 Cal.App.4th at page 1546, 33 Cal.Rptr.3d 145, subdivision (e)(4) applies to private communications concerning public issues.

Keywords: Anti-SLAPP Motions, Defamation

Palm Springs Tennis Club v. Rangel

86 Cal.Rptr.2d 73 (1999)

Summary by Mary M. Howell, Esq.:

Facts

The association sued two homeowners who allegedly defamed one of the directors running for election. The statements included excerpts from board minutes which allegedly indicated one of the directors had, in the past, “attempted to assault” a homeowner, and that the director “repeatedly raised his voice and insulted” another homeowner. The minutes did not contain the referenced statements. The homeowners “demurred” (sought to have the complaint dismissed) on the basis that the association had no right to bring a defamation action on behalf of individual directors.

Held

For homeowners. If language written about a corporate director cannot be interpreted as saying anything about the way the director performs his or her duties, the corporation has no right to bring an action for defamation. The statements in question, while critical of the directors who were running for re-election, did not pertain to the way in which the association was governed. Accordingly, the association had no cause of action for defamation.

*** End Summary ***

Palm Springs Tennis Club v. Rangel

86 Cal.Rptr.2d 73 (1999)

75*75 Best, Best & Krieger, LLP, and Douglas S. Phillips, Rancho Mirage, for Plaintiff and Appellant.

Vorzimer, Masserman & Ecoff, PC, Andrew W. Vorzimer, Beverly Hills, Charles David Trejo and Brandon T. Nichols for Defendant and Respondent Delia Rangel.

Byron G. Cornelius, Palm Springs, for Defendant and Respondent Morris Fisher.

OPINION

RAMIREZ, P.J.

Plaintiff Palm Springs Tennis Club (hereinafter PSTC) appeals from a judgment entered after the defendants’ demurrers to the second amended complaint were sustained without leave to amend. PSTC complained that statements defendants published about Warren Low, its president and chairman of the board, were libelous of PSTC. The trial court determined the second amended complaint failed to state a cause of action for libel. We agree and affirm.

FACTS AND PROCEDURAL HISTORY

On April 16, 1997, PSTC filed a complaint for libel against defendant Delia Rangel (hereinafter Rangel). On June 25, 1997, PSTC filed a first amended complaint for libel subjoining Morris Fisher (hereinafter Fisher) as an additional defendant. The defendants’ demurrers to the first amended complaint were sustained with leave to amend.

PSTC’s second amended complaint, filed on October 9, 1997, alleges: PSTC is a nonprofit corporation which, through its board of directors, operates a time-share resort known as the Palm Springs Tennis Club for the mutual benefit of its owners and members. Warren Low was and is the president, a member of the board, and the chairman of the board of PSTC, in addition to owning a time-share interest in PSTC. In January 1997 defendants published two documents attached as exhibits to the second amended complaint,^[1] which contain the allegedly false statements, “Below are some items from PSTC Board Meeting Minutes. Please read and determine if you want to re-elect … Low…. [¶] … [¶] Mar. 11, 1995, Low attempts to assault Mrs. Rangel. He repeatedly raises his voice and insults Dr. Gan, the only female Board Member.” (Italics omitted; underscoring in original.) The minutes from March 11, 1995, do not reference any such assault, voice raising or insults. The statements are libelous on their face and expose PSTC to hatred, contempt, ridicule and obloquy. The statements reflect poorly on PSTC and its board because they accuse the president and chairman of the board, while acting in his capacity as such, of attempting to commit an assault, which is a crime, during a board meeting. The statements concern the manner of performance of the president of the PSTC of the duties and responsibilities of that office, relate to the president in his official capacity as president and director of PSTC and relate directly to the trade and business of PSTC. The statements were seen by numerous PSTC owners in connection with a February 22, 1997, board of directors election. The statements have a deleterious effect on PSTC’s ability to attract qualified board members, have cast doubt on the credibility and effectiveness of board members 76*76 and have reduced the resale value of time-share ownership by creating a negative perception in the minds of potential buyers, thereby having a natural tendency to disadvantageously affect PSTC in its business and to affect its credit and property.

Rangel responded by filing both a demurrer and a motion to strike. Fisher joined in both motions. The demurrers were based upon the failure of the complaint to state a cause of action because PSTC lacks standing to sue on the facts alleged and because no “colloquium” was alleged which would make the statements defamatory as to PSTC. On December 15, 1997, the court sustained the demurrers without leave to amend and thereafter determined the motions to strike to be moot. The judgment dismissing the second amended complaint was filed on December 29,1997.

DISCUSSION

On appeal from a judgment dismissing an action after sustaining a demurrer without leave to amend, we give the complaint a reasonable interpretation, and treat the demurrer as admitting all material facts properly pleaded, but do not assume the truth of contentions, deductions or conclusions of law. A trial court errs in sustaining a demurrer when the plaintiff has stated a cause of action under any possible legal theory, and abuses its discretion in sustaining a demurrer without leave to amend if the plaintiff shows there is a reasonable possibility any defect identified by the defendant can be cured by amendment. (Aubry v. Tri-City Hospital Dist. (1992) 2 Cal.4th 962, 966-967, 9 Cal.Rptr.2d 92, 831 P.2d 317.)

The question in the instant case is whether the allegedly defamatory statement could reasonably be interpreted as having been made against the corporate plaintiff, PSTC. In other words, do statements in a campaign flyer relating to the election of members to the PSTC Board of Directors, that “Low attempted] to assault Mrs. Rangel” and “repeatedly raise[d] his voice and insult[ed] Dr. Gan, the only female Board Member,” (emphasis omitted) expose PSTC to hatred, contempt, ridicule, or obloquy, or cause it to be shunned or avoided, or have a tendency to injure it in its business?^[2]

Libel is recognized as either being per se (on its face), or per quod (literally meaning, “whereby”), and each requires a different standard of pleading. If no reasonable reader of a publication could impute to a statement therein a meaning which tended to harm the reputation of the plaintiff in any of the respects enumerated in Civil Code section 45,^[3] then there is no libel at all. (Barnes-Hind, Inc. v. Superior Court (1986) 181 Cal. App.3d 377, 386, 226 Cal.Rptr. 354.) If a defamatory meaning appears from the language itself without the necessity of explanation or the pleading of extrinsic facts, there is libel per se. (MacLeod v. Tribune Publishing Co. (1959) 52 Cal.2d 536, 549, 343 P.2d 36.) If, however, the defamatory meaning would appear only to readers who might be able to recognize it through some knowledge of specific facts and/or circumstances, not discernible from the face of the publication, and which are not matters of common knowledge rationally attributable to all reasonable persons, then the libel cannot be libel per se but 77*77 will be libel per quod. (Barnes-Hind, Inc. v. Superior Court, supra, 181 Cal. App.3d 377, 387, 226 Cal.Rptr. 354.) Whether a statement can reasonably be given any defamatory interpretation is a legal question that we must resolve by determining the sense or meaning of the statements, under all the circumstances attending the publication, according to the natural and popular construction which would be ascribed to them by the average reader. (MacLeod v. Tribune Publishing Co., supra, 52 Cal.2d 536, 546-547, 343 P.2d 36.)

We recognize that corporate entities, such as PSTC, may bring actions for defamation. (Vegod Corp. v. American Broadcasting Companies, Inc. (1979) 25 Cal.3d 763, 770, 160 Cal.Rptr. 97, 603 P.2d 14.) Nonetheless, if language written about a corporate officer cannot be interpreted as saying anything about the way that officer performs his or her duties and responsibilities as an officer of the corporation, so as to have a natural tendency to affect the corporation disadvantageously in its business, the corporation has no right of action. Stated another way, words written about a corporate officer give no right of action to the corporation unless spoken or written in direct relation to the trade or business of the corporation. (Washburn v. Wright (1968) 261 Cal.App.2d 789, 793-794, 68 Cal.Rptr. 224.)

On their face, the allegedly libelous statements obviously do not directly relate to the trade or business of PSTC. The statements, buried in campaign literature regarding the election of members to PSTC’s board of directors, are written not about the board as a whole or its ability to function adequately. Rather, the statements are written about Warren Low, urging that he should not be re-elected, but should be replaced by a better candidate. The statements are made about Low in his capacity as a candidate for the board and do not involve PSTC as a corporation at all, the allegations in the complaint notwithstanding. Further, the specific statements complained of do not implicate any relationship between PSTC and Low at the time the bad acts were allegedly committed. Given their context, we cannot envision how any reasonable reader could ascribe from these statements any direct relationship to PSTC’s trade or business.

The worst that can be inferred about PSTC from the statements is that a person who behaved in an unruly manner at one of its board meetings had, at some point or points in time, been elected by the member-owners to serve on the board of directors. However, on their face, the statements were made in an election flyer urging that unruly man’s ouster because of his past behavior, not any conduct of PSTC’s. The suggestion is the publisher of the statement believes the memberowners made a poor choice in the last election. The above inference is patently not defamatory of PSTC. Its allegations to the contrary are not sufficient to withstand demurrer when they contradict the unambiguous meaning of the flyer attached as an exhibit and incorporated into the complaint as the basis for the libel claim. (Hill v. City of Santa Barbara (1961) 196 Cal.App.2d 580, 586, 16 Cal.Rptr. 686.)

Having determined that the average reader could not understand these allegedly libelous statements to have been made in direct relation to the trade or business of PSTC on their face, we conclude that plaintiff has not pled a case of libel per se and must agree with the trial court that under the circumstances, PSTC cannot do so.

We now decide whether PSTC has stated a cause of action for libel per quod. In pleading a case of libel per quod the plaintiff cannot assume that the court has access to the reader’s special knowledge of extrinsic facts but must specially plead and prove those facts.^[4] (Barnes-Hind, 78*78 Inc. v. Superior Court, supra, 181 Cal.App.3d 377, 387, 226 Cal.Rptr. 354; see also Martin v. Sutter (1922) 60 Cal. App. 8, 13, 212 P. 60 [to establish a case for libel per quod, plaintiff must prove that the publisher of the words intended they should be understood as imputing wrongdoing or wrong conduct to plaintiff and that the words were understood in that fashion by those who read them].)

There are no allegations in the complaint that the readers of this document had any special knowledge of facts from which they could discern comments made about Warren Low in campaign literature were defamatory of PSTC. There are no allegations how the readers would have known the publishers intended to impute Low’s wrongdoing to PSTC nor are there any allegations the readers had been provided with the board meeting minutes. The second amended complaint therefore fails to adequately state a cause of action for libel per quod. Accordingly, it follows, on the facts alleged, the ostensibly defamatory statements cannot be reasonably interpreted as having been made against the corporate plaintiff, PSTC, under any theory of libel. The demurrer to the second amended complaint was properly sustained.

Given the nature and context of the statements, absent some very strange circumstance, the only intent which can be imputed to the publishers is the intent to defeat Low’s re-election to the board. Hence, we cannot conceive of how PSTC might amend its complaint to state any cause of action for libel against defendants. However, we need not speculate on that point. While a plaintiff need not request leave to amend in order to preserve on appeal the issue of whether the court abused its discretion in sustaining a demurrer without leave to amend (Code Civ. Proc., § 472c), on appeal the plaintiff does bear the burden of proving there is a reasonable possibility the defect in the pleading can be cured by amendment. (Blank v. Kirwan(1985) 39 Cal.3d 311, 318, 216 Cal.Rptr. 718, 703 P.2d 58.) “`… Plaintiff must show in what manner he can amend his complaint and how that amendment will change the legal effect of his pleading….’ [Citation.]” (Goodman v. Kennedy (1976) 18 Cal.3d 335, 349, 134 Cal.Rptr. 375, 556 P.2d 737.) Having made no attempt to indicate how the complaint may have been amended to state a cause of action under any theory of libel (or any theory at all), PSTC has failed to establish that the trial court abused its discretion.

DISPOSITION

The judgment of dismissal is affirmed. Defendants to recover their costs on appeal.

RICHLI, J., and GAUT, J., concur.

[1] The exhibits are not attached to the second amended complaint in the clerk’s transcript. We therefore refer to the exhibits to the first amended complaint, and assume they are identical.

[2] We recognize that plaintiff also asserts PSTC was directly libeled by the campaign flyer because it makes direct and false claims about the records of the corporation, i.e. that the minutes contain information they do not. However, as with the statements regarding Low, as will be shown, infra, if the reader of the flyer has no knowledge of the actual contents of the minutes, the flyer cannot be interpreted as being libelous to PSTC.

[3] “Libel is a false and unprivileged publication by writing, printing, picture, effigy, or other fixed representation to the eye, which exposes any person to hatred, contempt, ridicule, or obloquy, or which causes him to be shunned or avoided, or which has a tendency to injure him in his occupation.” (Civ.Code, § 45.)

[4] PSTC, citing Semple v. Andrews (1938) 27 Cal.App.2d 228, 81 P.2d 203, asserts it need only allege that the libelous words were “spoken `of and concerning the plaintiff,'” which it has done. This would be true if the words charged were libelous in themselves. (Id. at p. 234, 81 P.2d 203.) However, this not being the case, PSTC bears a greater burden of pleading. (Barnes-Hind, Inc. v. Superior Court, supra, 181 Cal.App.3d 377, 387, 226 Cal.Rptr. 354.)

Keywords: Defamation

Damon v. Ocean Hills Journalism Club

85 Cal.App.4th 468

Summary by Mary M. Howell, Esq.:

Facts

An association manager sued an association club, which produced a newsletter critical of the manager’s performance, for defamation. The club responded by filing an “anti-SLAPP” motion. (“SLAPP” stands for “strategic lawsuit against public participation.” An anti-SLAPP motion asks the court to strike a complaint when that complaint is filed for the purpose of chilling the defendants’ constitutional rights.)

Held

For club. After noting that the association was comprised of more than 1600 homes, the court observed that to prevail on an anti-SLAPP motion, the manager had to demonstrate that the complaint was based on “an[] act in furtherance of the person’s right of petition [to the courts or legislature] or free speech… on a matter of public interest.” Further, the “free speech” must consist of writings or statements made “in a place open to the public or in a public forum….”

The court held that board meetings (at least for this large association) constitute a “public forum” for the purposes of the anti-SLAPP statute, as was the newsletter. The manager argued that the newsletter only represented the views of a minority of the members, but the court ruled that even such minority view publications were entitled to anti-SLAPP protection.

Further, the statements were a matter of “public interest” because the subject (whether to continue the manager’s tenure) was a matter which “concerned the very manner in which this group of more than 3000 individuals would be governed….”

NOTE

Anti-SLAPP motions are one of the most often-employed defenses in lawsuits arising from association disputes. While there are other grounds for bringing such a motion (see Ruiz v. Harbor View Community Ass’n.), the portion of the statute discussed in Damon is the more frequently encountered.

*** End Summary ***

Damon v. Ocean Hills Journalism Club

102 Cal.Rptr.2d 205 (2000)

85 Cal.App.4th 468

206*206 Laturno & Graves, David W. Graves and G. Ehrich Lenz, San Diego, for Plaintiff and Appellant.

Bragg, Short, Serota & Kuluva, Newport Beach, William P. Harris, III, San Diego, Lori D. Serota, Newport Beach, and Henry Nicholls, for Defendants and Respondents Ron Terry and Barney Feldman.

Gray, Cary, Ware & Freidenrich, Guylyn R. Cummins, Marcelle E. Mihaila and Joann F. Peters, San Diego, for Defendants and Respondents Ocean Hills Journalism Club, Estate of Jack Hess, Rosmarie Treher, Sherry Marsh, Art Rosenberg, Estate of James J. Nihan, and Joe Grant.

Certified for Partial Publication.^[1]

HALLER, J.

Dennis E. Damon, a former manager of a homeowners association, brought a defamation complaint against several of the association members, two Board of Directors 207*207 members, and a private homeowners association club.^[2] The trial court granted defendants’ motion to strike the complaint under California’s anti-SLAPP statute. (Code Civ. Proc., § 425.16.) Damon appeals.

In the published portion of this decision, we hold the trial court properly determined the anti-SLAPP statute applied because the evidence showed the alleged defamatory statements were made “in a place open to the public or in a public forum” and concerned “an issue of public interest” within the meaning of Code of Civil Procedure section 425.16, subdivision (e)(3). In the unpublished portion of the opinion, we conclude Damon failed to satisfy his burden to show a probability he would prevail on his claims at trial, and failed to show the trial court erred in refusing to grant him relief from the statutory discovery stay.

FACTS

Leisure Village at Ocean Hills is a planned development residential community for seniors, consisting of 1,633 homes, a golf course and many other recreational facilities. The residents are members of the Ocean Hills Country Club Homeowners Association (Association), which is governed by a seven-member elected Board of Directors (Board). The Board’s duties include managing all aspects of the Association, including security, maintenance, and the selection and removal of officers and employees. The Association’s annual budget generally exceeds $3 million.

In 1994 through 1996, a professional company managed the Association under the Board’s direction. In February 1996, the Board terminated these services and chose to become self-managed. The Board hired Damon, a retired United States Marine Corps officer, as its general manager. Damon had previously served as the Association’s general manager under the direction of various professional management companies. Thereafter, Damon managed the Association’s day-to-day operations under the Board’s direction and supervised the approximately 60 Association employees.

By late 1996, many homeowners were displeased with Damon’s management style and wanted to return to professional management. The homeowners were concerned about Damon’s handling of numerous aspects of the Association, including the security department, employee relations, maintenance activities, and contractor selection. These homeowners began to express their views in articles, editorials, and letters to the editor in the Village Voice newsletter, which was published by a private homeowners club (Journalism Club) and was circulated to Association members and local businesses. The homeowners criticized Damon’s competency to manage the Association and urged residents to replace Damon with a professional management company. The Village Voice was one of two newsletters for Ocean Hills residents; the other newsletter was the Board’s official publication.

In March 1997, several Journalism Club members met with the Association’s security department employees (many of whom were also Ocean Hills residents), who complained about Damon’s management policies. When Damon learned of the meeting, he reminded the employees they were required to follow grievance procedures outlined in the personnel manual, rather than directing their complaints to Association members.

The 1996/1997 Board supported Damon’s continued service. But in August 1997, the Association held the annual Board member elections, and the residents elected several new directors who wanted 208*208 to return to professional management, including respondents Terry and Feldman. Terry and Feldman thereafter made comments during Board meetings that were critical of Damon’s performance as general manager, and questioned Damon’s competency and veracity. Additionally, Terry, who was the Board member responsible for overseeing the security department, authored memoranda discussing problems with Damon’s management of that department and criticizing Damon’s overall performance.

By the end of 1997, the senior citizen residents of Ocean Hills were largely split into two camps: those who favored Damon’s continued service and those who wantedDamon terminated as general manager. One homeowner characterized the highly emotional atmosphere surrounding this dispute as a “war zone with verbal salvo[s] being lobbed back and forth,” reflecting feelings of “hate and discontent” among the homeowners. Most residents were aware that the Village Voice publisher fell into the camp supporting Damon’s termination.

At about this same time, Damon wrote an article in the official Association newsletter discussing the advantages and disadvantages of self-management, and urging the residents to maintain their selfmanaged governance status. The article was contained in Damon’s regular monthly column that appeared in this newsletter.

In early 1998, some homeowners who supported Damon initiated a recall election to remove Terry and Feldman. The recall effort was unsuccessful; a majority of the homeowners supported Terry and Feldman. Damon thereafter notified the Association he did not intend to renew his contract. The Board declined his offer to continue his employment on a monthly basis until a replacement could be found. The homeowners later voted to return to professional management.

Damon then filed a defamation complaint against (1) the six Association members who had authored letters or articles published in the Village Voice criticizingDamon’s performance; (2) Board members Feldman and Terry; and (3) the Village Voice publisher (the Journalism Club).

Defendants successfully moved to strike Damon’s complaint under the anti-SLAPP statute, Code of Civil Procedure section 425.16 (section 425.16). The trial court found (1) Damon’s complaint was subject to the anti-SLAPP statute because it arose from defendants’ exercise of their free speech rights in connection with a public issue; and (2) Damon failed to show it was probable he would prevail on his claims because (a) he was a “limited-purpose” public figure who failed to demonstrate actual malice; and (b) the alleged defamatory statements were privileged and/or nonactionable opinions. Damon appeals.

DISCUSSION

In 1992, the Legislature enacted section 425.16 to provide a procedure for a court “to dismiss at an early stage nonmeritorious litigation meant to chill the valid exercise of the constitutional rights of freedom of speech and petition in connection with a public issue. [Citation.]” (Sipple v. Foundation for Nat. Progress (1999) 71 Cal. App.4th 226, 235, 83 Cal.Rptr.2d 677.) This type of nonmeritorious litigation is referred to under the acronym SLAPP, or strategic lawsuit against public participation. (Ibid.) In 1997, the Legislature added a provision to section 425.16 mandating that courts “broadly” construe the anti-SLAPP statute to further the legislative goals of encouraging participation in matters of public significance and discouraging abuse of the judicial process. (§ 425.16, subd. (a).)

When a plaintiff brings a SLAPP suit, the defendant may immediately move to strike the complaint under section 425.16. To prevail on this motion, the defendant must “make an initial prima facie showing that plaintiffs suit arises from an act in furtherance of defendant’s right of petition or free speech.” (Braun v. 209*209 Chronicle Publishing Co. (19987) 52 Cal. App.4th 1036, 1042-1043, 61 Cal.Rptr.2d 58.) If this burden is met, the plaintiff must establish a reasonable probability he or she will prevail on the merits. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 824-825, 33 Cal.Rptr.2d 446.) In determining whether each party has met its burden, the trial court must “consider the pleadings, and supporting and opposing affidavits . . . .” (§ 425.16, subd. (b)(2).) These determinations are legal questions, and we review the record de novo. (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548, 46 Cal.Rptr.2d 880.)

Under these standards, we examine the record to determine whether the court properly granted defendants’ motion to strike under section 425.16.

I. Damon’s Defamation Claims Come Within the Anti-SLAPP Statute

Section 425.16, subdivision (b)(1) states that the statute applies when the 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.. . .” (Italics added.) Section 425.16, subdivision (e) defines this italicized phrase as including four categories. The first two categories pertain to statements or writings made before, or in connection with, a “legislative, executive or judicial body, or any other official proceeding….” (§ 425.16, subd. (e)(1), (2).) The third category involves statements or writings made “in a place open to the public or in a public forum.” (§ 425.16, subd. (e)(3).) The fourth category includes “any other conduct in furtherance of free speech or petition rights. (§ 425.16, subd. (e)(4).) The latter two categories require a specific showing the action concerns a matter of public interest; the first two categories do not require this showing. (Briggs v. Eden Council For Hope & Opportunity (1999) 19 Cal.4th 1106, 1117-1118, 81 Cal.Rptr.2d 471, 969 P.2d 564.)

As explained below, we conclude the alleged defamatory statements identified inDamon’s complaint fall within the third statutory category: “any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest . . . .”^[3] (§ 425.16, subd. (e)(3).) The two locations where the alleged defamatory statements were made—at the Board meetings and in the Village Voice newsletter—were open to the public and constituted “public forums.” Additionally, because each of the allegedly defamatory statements concerned the manner in which a large residential community would be governed, they concerned “issue[s] of public interest.” (§ 425.16, subd. (e)(3).)

A. Public Forum

A “public forum” is traditionally defined as a place that is open to the public where information is freely exchanged. (See Clark v. Burleigh (1992) 4 Cal.4th 474, 482, 14 Cal.Rptr.2d 455, 841 P.2d 975.) The Board meetings fit into this definition. The Board meetings were televised and open to all interested parties, and the meetings served as a place where members could communicate their ideas. Further, the Board meetings served 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. . . .” (Nahrstedt v. Lakeside Village Condominium Assn.(1994) 8 Cal.4th 361, 374, 33 Cal.Rptr.2d 63, 878 P.2d 1275; see Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642, 651, 191 Cal. Rptr. 209.) In exchange for the benefits of common ownership, the residents elect an 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 210*210 within “the confines of the home itself.” (Nahrstedt v. Lakeside Village Condominium Assn., supra, 8 Cal.4th at p. 373, 33 Cal.Rptr.2d 63, 878 P.2d 1275) 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.” (Cohen v. Kite Hill Community Assn., supra, 142 Cal.App.3d at p. 651, 191 Cal.Rptr. 209.)

Because 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. (Civ.Code, §§ 1363.05, 1363; 1350-1376.) These provisions parallel California’s open meeting laws regulating government officials, agencies and boards. (Ralph M. Brown Act, Gov.Code, § 54950 et seq.) Both statutory schemes mandate open governance meetings, with notice, agenda and minutes requirements, and strictly limit closed executive sessions. (See, e.g., Civ.Code, § 1363.05, subd. (b).)

The Board here played a critical role in making and enforcing rules affecting the daily lives of Ocean Hills 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.” (See Foothills Townhome Assn. v. Christiansen(1998) 65 Cal.App.4th 688, 695-696, 76 Cal.Rptr.2d 516.)

The Village Voice newsletter was also a “public forum” within the meaning of section 425.16, subdivision (e)(3). Under its plain meaning, a public forum is not limited to a physical setting, but also includes other forms of public communication. (See American Heritage Dict. (New College ed.1981) p. 518.) The stated purpose of the Village Voice newsletter was to “communicate information of interest and/or concern to the residents.” The newsletter was distributed to the approximately 3,000 OceanHills residents and neighboring businesses. Further, although most of the articles and letters were critical of Damon’s management, the Village Voice publisher also solicited contrary opinions, printed at least two letters with different viewpoints, and included articles on many other Association-related topics (such as a series on proposed CC & R amendments).

Damon argues the Village Voice newsletter cannot be considered a “public forum” because it was essentially a mouthpiece for a small group of homeowners who generally would not permit contrary viewpoints to be published in the newsletter.

Even assuming the record supports this characterization, these facts do not take the publication outside of the anti-SLAPP statutory protection. First, numerous courts have broadly construed section 425.16, subdivision (e)(3)’s “public forum” requirement to include publications with a single viewpoint. (See Macias v. Hartwell(1997) 55 Cal.App.4th 669, 674, 64 Cal. Rptr.2d 222 [union campaign flyer is a “recognized public forum under the SLAPP statute”]; see also Metabolife Internal, Inc. v. Wornick (S.D.Cal.1999) 72 F.Supp.2d 1160, 1165 [“a widely disseminated television broadcast . . . is undoubtedly a public forum”]; Sipple v. Foundation For Nat. Progress, supra, 71 Cal. App.4th at p. 238, 83 Cal.Rptr.2d 677 [assuming that “Mother Jones” magazine is a public forum within the meaning of the anti-SLAPP statute]; Foothills Townhome Assn. v. Christiansen, supra, 65 Cal. App.4th at pp. 695-696, 76 Cal.Rptr.2d 516; Tate, California’s Anti SLAPP Legislation: A Summary of and, Commentary on its Operation and Scope (2000) 33 Loy. L.A. L.Rev. 801, 828-832; see also Averill v. Superior Court (1996) 42 Cal.App.4th 1170, 50 Cal.Rptr.2d 62.)

211*211 We agree with this approach. The Village Voice was a public forum in the sense that it was a vehicle for communicating a message about public matters to a large and interested community. All interested parties had full opportunity to read the articles in the newsletter. Although the Village Voice newsletter may not have offered a “balanced” view, the Association’s other newsletter—the Board’s official newsletter—was the place where Association members with differing viewpoints could express their opposing views. It is in this marketplace of ideas that the Village Voice served a very public communicative purpose promoting open discussion—a purpose analogous to a public forum. Given the mandate that we broadly construe the anti-SLAPP statute, a single publication does not lose its “public forum” character merely because it does not provide a balanced point of view.

This construction comports with the fundamental purpose underlying the anti-SLAPP statute, which seeks to protect against “lawsuits brought primarily to chill the valid exercise of constitutional rights” and “abuse of the judicial process….” (§ 425.16, subd. (a).) This purpose would not be served if we were to construe the statute to make section 425.16, subdivision (e)(3) inapplicable to all newspapers, magazines, and other public media merely because the publication is arguably “one-sided.” This is particularly true because section 425.16, subdivision (e)(3) requires not only that the statement be made in a public forum, but also that it concern an issue of public interest. Further, because section 425.16, subdivision (e)(4) includes conduct in furtherance of free speech rights, regardless whether that conduct occurs in a place where ideas are freely exchanged, it would be anomalous to interpret section 425.16, subdivision (e)(3) as imposing that requirement merely because the challenged speech is an oral or written statement.

We recognize that two courts have more narrowly construed section 425.16, subdivision (e)(3)’s “public forum” requirement, but we are not persuaded this is the correct approach. (See Zhao v. Wong (1996) 48 Cal.App.4th 1114, 55 Cal.Rptr.2d 909, overruled on other grounds in Briggs v. Eden Council For Hope & Opportunity, supra, 19 Cal.4th at p. 1107, 81 Cal. Rptr.2d 471, 969 P.2d 564 (Zhao); Lafayette Morehouse, Inc. v. Chronicle Publishing Co. (1995) 37 Cal.App.4th 855, 863, 44 Cal.Rptr.2d 46, fn. 5 (Lafayette Morehouse).)

In Lafayette Morehouse, the plaintiff sued the publisher of the San Francisco Chronicle newspaper, alleging the newspaper printed defamatory articles. (Lafayette Morehouse, supra, 37 Cal.App.4th at p. 863, 44 Cal.Rptr.2d 46.) The court found the challenged statements fell within section 425.16, subdivision (e)(2) because they concerned a matter that was pending before a legislative body. (Id. at pp. 862-863, 44 Cal.Rptr.2d 46.) The court thus declined to reach the defendant publisher’s alternate argument that the newspaper constituted a “public forum” under section 425.16, subdivision (e)(3). (Id. at p. 863, fn. 5, 44 Cal.Rptr.2d 46.) In dicta, however, the court stated it found the publisher’s argument “dubious” because “[n]ewspaper editors or publishers customarily retain the final authority on what their newspapers will publish in letters to the editor, editorial pages, and even news articles, resulting at best in a controlled forum not an uninhibited `public forum.'” (Ibid.)

In Zhao, the plaintiff sued an individual for defamation based on the defendant’s statements made privately to a San Jose Mercury newspaper reporter. Not surprisingly, the court concluded that such “private” statements did not occur in a “public forum” within the meaning of section 425.16, subdivision (e)(3). (Zhao, supra,48 Cal.App.4th at p. 1131, 55 Cal. Rptr.2d 909.) Although further discussion on this matter was arguably unnecessary, the court went on to conclude that the San Jose Mercury newspaper (which published the statements) was also not a public forum.212*212 (Ibid.) Relying on Lafayette Morehouse’s dicta and expressly applying a “narrow definition” of the statutory phrase, the Zhao court reasoned that a public forum “refers typically to those places historically associated with First Amendment activities, such as streets, sidewalks, and parks,” and has been extended only to other public facilities open for certain limited purposes such as libraries and schools. (Id. at pp. 1126-1127, 55 Cal.Rptr.2d 909.) The court further relied on Lafayette Morehouse‘s statements that a private newspaper cannot as a matter of law constitute a public forum because the publisher has ultimate control over the newspaper’s message. (Id. at pp. 1126, 1131, 44 Cal.Rptr.2d 46.) Noting that the phrase “public forum” potentially triggers a more “elastic” definition, the Zhao court expressly declined to adopt this definition and instead adhered to the more “restricted” approach. (Id. at pp. 1125, 1127, 55 Cal.Rptr.2d 909.)

Both Zhao and Lafayette Morehouse predate the 1997 amendment requiring a broad interpretation of section 425.16. In adopting that amendment, the Legislature expressly intended to overrule Zhao‘s narrow view of the statute. (See Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1120, 81 Cal.Rptr.2d 471, 969 P.2d 564.) Moreover, as at least one commentator has noted, the Zhao andLafayette Morehouse court’s conclusions appear to be at odds with the definition of a “public forum” under the plain meaning of the phrase and under the California Constitution. (See Tate, California’s Anti SLAPP Legislation: A Summary of and Commentary on its Operation and Scope, supra, 33 Loy. L.A.L.Rev. at pp. 828-832.) Read in context of the entire statutory scheme, a “public forum” includes a communication vehicle that is widely distributed to the public and contains topics of public interest, regardless whether the message is “uninhibited” or “controlled.”

Because the Village Voice newsletter was a vehicle for open discussion of public issues and was widely distributed to all interested parties, it was a “public forum.”

B. Public Issue

In addition to the “public forum” requirement, defendants were also required to show the topics of the allegedly defamatory statements concerned “issue[s] of public interest.” (§ 425.16, subd. (e)(3).) The record shows defendants satisfied this element.

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. (See Macias v. Hartwell, supra, 55 Cal.App.4th at p. 674, 64 Cal.Rptr.2d 222; Church of Scientology v. Wollersheim(1996) 42 Cal.App.4th 628, 650-651, 49 Cal.Rptr.2d 620.) “`Matters of public interest . . . include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals.'” (Macias v. Hartwell, supra, 55 Cal. App.4th at p. 674, 64 Cal.Rptr.2d 222.) In Macias, the court found that campaign statements made during a union election constituted a “public” issue because the statements affected 10,000 union members and concerned a fundamental political matter—the qualifications of a candidate to run for office. (Id. at pp. 673-674, 64 Cal.Rptr.2d 222.)

As detailed below, each of the alleged defamatory statements concerned (1) the decision whether to continue to be selfgoverned or to switch to a professional management company; and/or (2) Damon’s competency to manage the Association. These statements pertained to issues of public interest within the Ocean Hillscommunity. Indeed, they concerned the very manner in which this group of more than 3,000 individuals would be governed—an 213*213 inherently political question of vital importance to each individual and to the community as a whole. (See Chantiles v. Lake Forest II Master Homeowners Assn. (1995) 37 Cal.App.4th 914, 922, 45 Cal. Rptr.2d 1.) Moreover, the statements were made in connection with the Board elections and recall campaigns. “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.'” (Matson v. Dvorak, supra, 40 Cal.App.4th at p. 548, 46 Cal.Rptr.2d 880; accord Conroy v. Spitzer (1999) 70 Cal.App.4th 1446, 1451, 83 Cal.Rptr.2d 443 [the defendant’s “statements obviously fell within the purview of section 425.16 because they addressed a matter of public concern—a candidate’s qualifications and conduct in office”].)

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. . . .” (Chantiles v. Lake Forest II Master Homeowners Assn., supra, 37 Cal.App.4th at p. 922, 45 Cal.Rptr.2d 1.) Given the size of the Ocean Hills 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. (§ 425.16, subd. (e)(3).)

We reject Damon’s alternate argument the case does not fall within section 425.16 because the “primary purpose” of his lawsuit was to “vindicate the damage done to his reputation” and not to “interfere with and burden the defendant’s exercise of his free speech rights. . . .” We find nothing in the statute requiring the court to engage in an inquiry as to the plaintiffs subjective motivations before it may determine the anti-SLAPP statute is applicable. (See Church of Scientology v. Wollersheim, supra, 42 Cal.App.4th at p. 648, 49 Cal.Rptr.2d 620 [rejecting plaintiff’s argument that “only a direct personal attack on the defendant would be subject to a motion to strike”].) The fact the Legislature expressed a concern in the statute’s preamble with lawsuits brought “primarily” to chill First Amendment rights does not mean that a court may add this concept as a separate requirement in the operative sections of the statute. (See Briggs v. Eden Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1118, 81 Cal. Rptr.2d 471, 969 P.2d 564.)

Damon’s reliance on Foothills Townhome Assn. v. Christiansen, supra, 65 Cal. App.4th 688, 76 Cal.Rptr.2d 516 is misplaced. Damon directs us to the court’s statement that “[w]hen considering a section 425.16 motion, a court must consider the actual objective of the suit and grant the motion if the true goal is to interfere with and burden the defendant’s exercise of his free speech and petition rights.” (Id. at p. 696, 76 Cal.Rptr.2d 516.) This statement must be viewed in the specific factual context in which the case arose, involving a homeowners association’s attempt to collect on an assessment from a homeowner. Because this form of action did not reflect an attempt to “chill” the homeowner’s free speech, the Foothills Townhomecourt found the anti-SLAPP statute inapplicable. (Ibid.) Here, the defamation action certainly had the potential for punishing the defendants for exercising their First Amendment rights, thus serving to “chill” the exercise of their rights and to deter them from speaking freely on topics of public importance.

214*214 II.-III^[*]

DISPOSITION

Judgment affirmed.

KREMER, P.J., and HUFFMAN, J., concur.

[1] Pursuant to California Rules of Court, rule 976.1, this opinion is certified for publication with the exception of Discussion section, parts II and III.

[2] The named defendant homeowner association members were Jack Hess, Rosemarie Treher, Sherry Marsh, Art Rosenberg, James Nihan, and Joe Grant. Nihan and Hess have since died, and their estates have been substituted. The defendant Board members were Ron Terry and Barney Feldman. The private club is the Ocean Hills Journalism Club.

[3] This conclusion renders it unnecessary for us to consider the issue of whether the alleged defamatory statements come under section 425.16, subdivision (e)(1) or (e)(2).

[*] See footnote 1, ante.

Keywords: Anti-SLAPP Motions