RICHARD C. COLYEAR, Plaintiff and Appellant, v. ROLLING HILLS COMMUNITY ASSOCIATION OF RANCHO PALOS VERDES et al., Defendants and Respondents.
No. B270396
Second Dist., Div. Four.
Feb. 28, 2017.
March 23, 2017
119-137
COUNSEL
Law Offices of Michael D. Berk, Michael D. Berk; Greines, Martin, Stein & Richland, Kent Richland and Jonathan H. Eisenman for Petitioner and Appellant.
Hanson Bridgett, Christopher David Jensen; and Alice Liu Jensen for Defendant and Respondent Yu Ping Liu.
COLLINS, J.—
INTRODUCTION
Defendant homeowner Yu Ping Liu submitted an application to his homeowners association, defendant Rolling Hills Community Association of Rancho Palos Verdes (HOA), seeking to invoke the HOA‘s dispute resolution process against a neighbor who refused to trim trees blocking Liu‘s view. Plaintiff Richard C. Colyear, another neighbor and HOA member, sued Liu and the HOA, alleging that two of the offending trees were actually on his property, that the relevant tree-trimming covenant did not encumber his property, and therefore that Liu and the HOA were wrongfully clouding his
We conclude Liu has made a prima facie showing that Colyear‘s complaint arises from Liu‘s statements made in connection with an issue of public interest, and therefore Liu‘s statements are protected under
FACTUAL AND PROCEDURAL HISTORY
A. Background
Liu and Colyear are both homeowners in the planned residential community of Rolling Hills, located in the City of Rolling Hills. The property immediately north of Liu‘s property is owned by Richard and Kathleen Krauthamer. Colyear‘s property is directly east of the Krauthamer‘s property, and kitty-corner to Liu‘s property. Liu, Colyear, and the Krauthamers are all members of the HOA.
Each home within the community is subject to a declaration of covenants, conditions, and restrictions (CC&Rs). The original declaration recorded in 1936, declaration 150 (Declaration 150), set forth the specific property to be included in the community, conferred authority on the HOA to (among other things) “interpret and enforce” the CC&Rs, and detailed a number of CC&Rs applicable to the specified lots. As relevant here, in article I, section 11, Declaration 150 conferred upon the HOA “the right at any time to enter on or upon any part” of a property subject to that declaration “for the purpose of cutting back trees or other plantings which, in the opinion of the [HOA], is warranted to maintain and improve the view of, and protect, adjoining property.”
As the community expanded, the HOA entered into new declarations covering the additional properties; those declarations contained provisions that were similar, but not identical, to Declaration 150. Declaration 150-M, recorded in 1944, added the property including the lots now owned by Liu,
The HOA is governed by a board of directors. Starting in 1997, the board adopted resolutions to “establish procedures for its members to utilize the authority of the [HOA] to correct view impairments created by trees or other plantings.” The board adopted the most recent version, resolution 220 (Resolution 220), in 2012. Resolution 220 quoted the tree-trimming provision in article I, section 11 of Declaration 150 and stated that it “applies to some, if not all, properties in the City of Rolling Hills.” Resolution 220 further made the following findings: “WHEREAS, the [HOA] has held public meetings, circulated drafts of policy alternatives, and received numerous written and oral communications from its members; [[] WHEREAS, Rolling Hills enjoys both beautiful views and an abundance of mature trees, and values both . . . ; [[] WHEREAS, the [HOA] wishes to adopt both guidelines and establish procedures for its members to utilize the authority of the [HOA] to correct view impairments, which cannot be resolved between the parties; [WHEREAS, the Deed Restrictions give the [HOA] ‘. . . the authority to exercise such powers of control, interpretation, construction, consent, decision, determination and/or enforcement of covenants . . . as far as may legally be done.‘” Based on these and other findings, Resolution 220 established guidelines for processing “all view impairment applications” submitted to the HOA, including submission of an application by the homeowner requesting tree removal, payment by the applicant of an administrative fee and agreement to pay the entire cost of tree trimming or removal, notice sent by the HOA to the affected owner and contiguous property owners, a decision and report by a View Committee, and a process by which to appeal that decision to the board. Resolution 220 also noted that the “City of Rolling Hills Ordinance Chapter 17.26 provides a procedure for abatement of view impairment; so [HOA] members have another alternative for view restoration.”
B. Liu‘s Application and Colyear‘s Complaint
In January 2015, in accordance with the process outlined in Resolution 220, Liu filed an “Application for Assistance to Restore View” with the HOA, identifying the Krauthamer property as the location of the obstructing trees or shrubs. In a statement attached to the application, Liu explained that the view from his residence was obstructed by several trees and hedges on the south side of the Krauthamers’ property. He said he had attempted to resolve the issue by speaking to Richard Krauthamer starting in late 2012, and by contacting the HOA‘s city manager in June 2013 and requesting that she informally mediate the dispute. As a result, according to Liu, Krauthamer agreed to trim his trees but never did so. Liu also attached to his application several photographs of the offending trees and hedges. The application does not reference Colyear or Colyear‘s property.
As an adjoining property owner, Colyear received notice of Liu‘s application shortly after it was submitted. Colyear then filed the instant action on March 4, 2015, seeking writ relief and naming Liu, the HOA, its board, and individual board members as respondents. Colyear alleged that Liu‘s application “may implicate” trees on Colyear‘s property.
Liu withdrew his application to the HOA on April 14, 2015. As a result, the HOA never issued any decision on the application. Following the withdrawal, the HOA had no pending applications involving either Liu or Colyear‘s property.
In August 2015, the trial court sustained the demurrers filed by all defendants, and granted leave to amend. Colyear filed an amended pleading, including a petition for writ of traditional mandate and prohibition against the HOA and its board, and a verified complaint “for Declaratory Relief, Injunctive Relief, To Quiet Title, and for Damages” against all defendants (FAC). The FAC sought a declaration, among other things, that Colyear‘s lot was not subject to the tree-trimming covenant in Declaration 150 and that such covenant could not be enforced against his lot or other lots not encumbered by that declaration, and that Resolution 220 was void to the extent it purported to enforce such tree-trimming covenants in this manner. Colyear further alleged that some of the offending trees designated by Liu on
The FAC also sought to quiet title “to Colyear‘s lot against adverse claims” by defendants “in that each claims that Colyear‘s lot is covered by the Trees and Plantings Covenant in Declaration 150, although Colyear‘s lot is not covered by the Trees and Plantings Covenant, and seeks, or claims the right to seek, to enforce the Trees and Plantings Covenant against Colyear‘s lot.” In addition, the FAC sought injunctive relief barring defendants from seeking to enforce the relevant covenant against Colyear‘s lot or any other lots not encumbered by Declaration 150, as well as compensatory and punitive damages from the HOA and the board for alleged fraud and breaches of fiduciary duties.
C. Liu‘s Anti-SLAPP Motion
Liu filed a special motion to strike the FAC pursuant to
Colyear opposed the motion to strike, arguing that Liu‘s application to the HOA involved a private matter and thus was not protected conduct and that Colyear‘s lawsuit did not arise out of the application, but rather from the “underlying controversy” regarding the proper application of Declaration 150. In his accompanying declaration, Colyear stated he had “confirmed” that two of the trees identified in Liu‘s application were located on Colyear‘s lot. Specifically, Colyear declared, “I [have] carefully reviewed the photograph or photographs attached to the Liu Application . . . which has arrows added to it to point to trees that Liu requested to be cut. . . . I also walked my lot and the Krauthamers’ lot in the area where both lots meet the Liu property. Based on those observations, I now know for a fact that the trees and plantings that Liu claims in the Liu Application should be cut include two
Colyear attached numerous exhibits in support of his opposition, including Declarations 150 and 150-M, Resolution 220 and its predecessors, and Liu‘s application. He also attached his correspondence to the board in 2002, as well as letters from several other homeowners on the same issue. In a letter dated September 4, 2002, addressed to the board and the attorney for the HOA, homeowner Philip Belleville referenced his presentation made at a prior hearing “on the proposed Resolution concerning trees and view,” and then reiterated his position that the proposed resolution should not purport to apply to all properties, including those not encumbered with a tree-trimming provision in the applicable CC&Rs. Belleville noted that, while he does “not have a view to protect,” he was nevertheless “vitally interested” in the issue, including the potential for exposure to expensive litigation against the HOA resulting in increased fees to the members and because “[i]t is very disturbing that the proposed Resolution exceeds the norms for such provisions of similar communities.” Belleville sent another letter in late 2005 objecting to proposed changes in Resolution 181 (a predecessor to 220), noting that the prior resolution had been adopted “after numerous hearings and public participation” and again objecting to language that could “wrongly cloud the property rights of the Members involved” and “lead to more costly and alienating litigation.” Another homeowner wrote a similar letter in 2015.
The trial court granted Liu‘s motion. First, the court found Liu had met his burden to establish his conduct was protected under
DISCUSSION
I. Section 425.16 and Standard of Review
“A SLAPP is a civil lawsuit that is aimed at preventing citizens from exercising their political rights or punishing those who have done so. ’ “While SLAPP suits masquerade as ordinary lawsuits such as defamation and interference with prospective economic advantage, they are generally meritless suits brought primarily to chill the exercise of free speech or petition rights by the threat of severe economic sanctions against the defendant, and not to vindicate a legally cognizable right.” ’ [Citations.]” (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21 (Simpson).)
The Legislature has declared that “it is in the public interest to encourage continued participation in matters of public significance, and . . . this participation should not be chilled through abuse of the judicial process.” (
Analysis of a motion to strike pursuant to
We review a trial court‘s decision on a special motion to strike de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325, 139 P.3d 2.) In engaging in the two-step process, we consider “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.” (
II. Liu‘s Claims Arise From Protected Activity
Under the first prong of a motion to strike under
A. Protected Activity
First, we must determine whether Liu‘s speech was in fact protected conduct. To meet this burden, Liu must demonstrate that his statements fit one of the four categories of conduct set forth in
Liu asserts his conduct is protected under
Colyear argues that Liu‘s application involved a private tree-trimming dispute between two neighbors and therefore does not qualify as a matter of
Within these parameters, ” ‘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 107, 115 . . . .)” (Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1468 (Ruiz).) “[I]n 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, italics omitted; see also Grenier, supra, 234 Cal.App.4th at p. 482.)
Applying these principles, several courts have found protected conduct in the context of disputes within a homeowners association. In Ruiz, for example, a homeowner sued his homeowners association, alleging letters written by association counsel defamed him. (Ruiz, supra, 134 Cal.App.4th at pp. 1463-1465.) The letters concerned a dispute over the association‘s rejection of Ruiz‘s building plans, and Ruiz‘s complaints that the association was not applying its architectural guidelines evenhandedly. (Ibid.) The court concluded the letters fell within
Similarly, in Country Side Villas Homeowners Assn. v. Ivie (2011) 193 Cal.App.4th 1110, 1113, the homeowner raised objections with her homeowners association over a change in practices regarding whether individual homeowners or the association had responsibility to pay for maintaining balconies and siding on individual units. The association filed suit against Ivie, seeking declaratory relief in interpreting the association‘s governing documents regarding maintenance obligations. (Ibid.) The court found that Ivie‘s complaints to the board were a matter of public interest, because her statements concerned issues “that affected all members of the association,” including whether all members would have to pay for maintenance costs assumed by the association. (Id. at p. 1118; see also Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 [protecting allegedly defamatory statements about the competence of a manager of a homeowners association]; Lee v. Silveira (2016) 6 Cal.App.5th 527, 540 [protecting complaints by homeowners association board members against other board members regarding board‘s decisionmaking process in approving a large roofing project and a management company contract, as affecting “a broad segment, if not all,” association members]; Grenier, supra, 234 Cal.App.4th at p. 483 [defamatory statements accusing church pastor of theft and misuse of church funds, and of abuse, are of interest to the church‘s 500 or more members, and therefore are of “public interest“]; Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 15 [concluding that development of a mall, “with potential environmental effects such as increased traffic and impaction on natural drainage, was clearly a matter of public interest“].) By contrast, in Rivero, supra, 105 Cal.App.4th at p. 924, the court rejected anti-SLAPP protection for complaints in a union newsletter alleging a janitorial supervisor mistreated his employees. The court held that the allegedly defamatory statements were not a matter of public interest as they concerned “the supervision of a staff of eight custodians by Rivero, an individual who had previously received no public attention.” (Ibid.)
Here, the record presents sufficient evidence to sustain Liu‘s burden that at the time he submitted his application, there was an ongoing controversy, dispute, or discussion regarding the applicability of tree-trimming covenants to lots not expressly burdened by them, and the HOA‘s authority to
Colyear does not dispute that the issue of the board‘s authority to apply tree-trimming covenants to all lots in the community is a subject of interest to the entire membership of the community, and therefore meets the definition of “public interest” under
However, we are not persuaded that Liu‘s statement here lacks the requisite degree of closeness with the asserted public interest. As discussed, Liu‘s application itself invoked the same HOA processes that Colyear (and other community members) sought to challenge. The cases rejecting anti-SLAPP
B. Claim Arises From Protected Activity
We next turn to Colyear‘s claim that, even if Liu‘s statement was protected, Colyear‘s complaint did not arise out of that statement. We disagree.
“Our Supreme Court has recognized the anti-SLAPP statute should be broadly construed [citation] and that a plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a garden variety tort or contract claim when in fact the claim is predicated on protected speech or petitioning activity. [Citation.] Accordingly, we disregard the labeling of the claim [citation] and instead ‘examine the principal thrust or gravamen of a plaintiff‘s cause of action to determine whether the anti-SLAPP statute applies’ . . . . [Citation.]” (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1271-1272.) We assess the principal thrust by identifying “[t]he allegedly wrongful and injury-causing conduct . . . that provides the foundation for the claim.” (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 189.) “If the core injury-producing conduct upon which the plaintiff‘s claim is premised does not rest on protected speech or petitioning activity, collateral or incidental allusions to protected activity will not trigger application of the anti-SLAPP statute. [Citation.]” (Hylton, supra, 177 Cal.App.4th at p. 1272.) “[T]he critical point is whether the plaintiff‘s cause of action itself was based on an act in furtherance of the defendant‘s right of petition or free speech.” (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78, italics omitted.) “In other words, ‘the defendant‘s act underlying the plaintiff‘s cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.]’ ”
Colyear argues that the dispute here arose from “the question of the applicability of a tree-trimming covenant“; conversely, he argues, “Liu‘s application to enforce the covenant against Colyear‘s property was simply the trigger for Colyear‘s suit to resolve that question.” He further notes that the trial court‘s reliance on “but-for causation” in analyzing the issue was therefore in error. To the extent the trial court focused on whether Liu‘s application caused Colyear to file a lawsuit, such an analysis would provide an insufficient basis from which to find that Liu had established the lawsuit arose out of his protected conduct. Based on our independent review, however, we conclude that Liu did make the requisite showing.
Liu‘s application did not simply “trigger” Colyear‘s lawsuit, as Colyear claims. Rather, the gravamen of Colyear‘s claims against Liu was the allegation that by submitting an application to the HOA concerning property unencumbered by Declaration 150, Liu invoked an invalid HOA process and clouded Colyear‘s title. As such, the only injury-producing conduct Colyear alleges Liu committed was Liu‘s petitioning act.
These circumstances are factually distinct from cases, including those cited by Colyear, in which the defendant‘s protected speech was ancillary to the heart of the plaintiff‘s claims. In City of Cotati v. Cashman, supra, 29 Cal.4th at pp. 71, 72 for example, owners of mobilehome parks brought a declaratory relief action against the city in federal court seeking a judicial determination that the city‘s mobilehome park rent-control ordinance constituted an unconstitutional taking. In response, the city sued the park owners in state court, also requesting a declaration regarding the constitutionality and enforceability of the rent-control ordinance. (Id. at p. 72.) The city conceded that its state lawsuit was triggered by the federal action and was an attempt to “gain a more favorable forum” in which to litigate the issue. (Id. at p. 73Id. at pp. 76-77Id. at p. 80; see also, e.g., Talega Maintenance Corp. v. Standard Pacific Corp. (2014) 225 Cal.App.4th 722, 729 [homeowners association‘s claim against board members arose from “the act of spending money in violation of [the board members‘] fiduciary duties,” not from the vote that precipitated such expenditure]; McConnell v. Innovative Artists Talent and Literary Agency, Inc. (2009) 175 Cal.App.4th 169, 176-177 [talent
In sum, we conclude that Liu met his burden on the first prong of the anti-SLAPP motion to strike. We therefore turn to the second prong, i.e., whether Colyear met his burden to demonstrate a probability of prevailing on his claims against Liu.
III. Colyear Cannot Demonstrate a Probability of Prevailing Against Liu
Once a defendant satisfies the first prong of the anti-SLAPP analysis, “the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. The court, without resolving evidentiary conflicts, must determine whether the plaintiff‘s showing, if accepted by the trier of fact, would be sufficient to sustain a favorable judgment. If not, the claim is stricken.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.) “In making this assessment it is ‘the court‘s responsibility . . . to accept as true the evidence favorable to the plaintiff . . . .’ [Citation.] The plaintiff need only establish that his or her claim has ‘minimal merit’ [citation] to avoid being stricken as a SLAPP.” (Soukup, supra, 39 Cal.4th at p. 291.)
Colyear contends he has shown his likelihood of success on his quiet title claim against Liu with evidence that (1) he has title and (2) Liu made a claim adverse to that title by invoking the tree-trimming covenant against Colyear‘s property. However, the trial court found that Colyear‘s quiet title claim against Liu was mooted by the withdrawal of Liu‘s application. We agree. Assuming Liu‘s application implicated Colyear‘s property when filed, Liu withdrew his application before any action was taken, leaving no pending challenges against Colyear‘s property. Thus, at the time Colyear filed his FAC, there was no “adverse claim” by Liu against Colyear‘s property (
As such, we conclude that Colyear has not shown a probability of success on the merits of his quiet title claim.
DISPOSITION
The order granting Liu‘s motion to strike pursuant to
Epstein, P. J., and Manella, J., concurred.
A petition for a rehearing was denied March 23, 2017, and the opinion was modified to read as printed above. Appellant‘s petition for review by the Supreme Court was denied June 14, 2017, S241201.