Epsten, APC

Dubac sued Itkoff and Diamond, claiming that they had sent defamatory emails accusing Dubac of various wrongdoings, including being a pathological liar, committing perjury, and causing problems within the association. These emails were shared with other members of the community, adding to the allegedly public nature of the conflict. In response, Itkoff and Diamond filed a motion to strike the lawsuit under California’s anti-SLAPP statute.

In analyzing the anti-SLAPP issue, the court evaluated whether the statements made by Itkoff and Diamond were part of a public issue or a matter of public interest. The trial court ruled that some statements were connected to a public issue and others were not. Thus, Dubac’s lawsuit continued.

On appeal, the court agreed that the majority of the statements made by Itkoff and Diamond did not meet the criteria for being protected speech under the anti-SLAPP statute. The court emphasized that while some statements involved matters of interest to the association, and therefore were public, not all personal disputes within a private organization rise to the level of public concern, particularly when the number of people affected in an intrabuilding dispute were “minute.”

TAKEAWAY:  Defamation claims can be very complex, particularly in the context of community association disputes. The anti-SLAPP statute has limitations when it comes to distinguishing between public and private matters.

The Morrises hosted a public multi-day Christmas festival to raise money for charity at their home in the association. They had previously hosted a similar festival at a prior home before purchasing in this community. The Morrises informed the board prior to purchase of their intent to host a similar large Christmas festival.

At the festival, they had 30 staffed volunteers and a very elaborate decorations display, including an estimated 200,000 Christmas lights and a live nativity scene. A reported 1,000 visitors attended the event.

After two years of hosting the Christmas festival with no enforcement taken by the association, the Morrises filed a lawsuit in federal court accusing their association of discriminating against them because of their Christian faith by discouraging them from purchasing a home in the community, interfering with their practice of faith by opposing the Christmas festival, and selectively enforcing the HOA’s rules, in violation of the Fair Housing Act (42 U.S.C. §§ 3601-3631). The association countersued against the Morrises asking the court to enjoin the Morrises from holding their Christmas program again.

A 2015 letter from the association became a key piece of evidence related to efforts made by the Morrises prior to purchasing their property, wherein the Morrises met proactively with the association’s board several times in January-February 2015 to discuss the plan for their Christmas event. The association responded in writing to the Morrises stating that the Christmas program would likely violate the HOA’s rules.  The association’s 2015 letter stated in relevant part, “some of our residents are non-Christians or of another faith and I don’t even want to think of the problems that could bring up…,” among other statements. There was also an earlier version of the draft letter exchanged via email between board members with more specific comments concerning the rights of atheists and non-Christians in the community.

The court found under Sections 3604(b) and (c) of the FHA, that there was no unlawful discrimination, seeing as how the association took no enforcement action against the Morrises and the Morrises could not point to a concrete adverse impact suffered because of the association’s conduct. Similarly, the court of appeal found that the association was not responsible for any neighbor-to-neighbor harassment that occurred against the Morrises.

However, the court found evidence of “coercion, intimidation, or interference” with a person’s rights protected by the Section 3617 of the FHA, in that the Morrises’ right to purchase and enjoy their home free from religious discrimination was affected by the board’s actions (in the form of the 2015 letter written by the board and other actions taken by the board). The court found there was sufficient evidence for the jury verdict concluding that the board interfered with the Morrises’ right to purchase and enjoy their home, at least in part, because of their religious expression, despite the evidence of significant nuisance activity at the Morris home.

TAKEAWAY:  Courts scrutinize how associations, as housing providers, handle discrimination claims. Be very careful in written communications that touch on any owner’s right to purchase and enjoy their home free from unlawful discrimination based on a protected class. Associations should also avoid meeting with prospective purchasers or providing an opinion as to the enforcement of governing documents with individuals who are not yet owners.