Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. CGC-08-483062.
RUVOLO, P. J.
I.
INTRODUCTION
After a dispute between condominium unit owners resulted in litigation, David Driver and Emily Rallapalli (collectively Driver) brought a cross-complaint against Eren Hussein (Hussein) alleging, among other causes of action, claims for defamation and breach of fiduciary duty. According to Driver, these causes of action were based on Hussein’s “decision in mid-2008 to post vitriolic, defamatory statements about Driver/Rallapalli on his real estate broker’s website and to delay and obstruct legitimate homeowner association business.” Hussein brought a special motion to strike these causes of action pursuant to Code of Civil Procedure section 425.16. The court denied the motion, and Hussein has appealed. We affirm.
All statutory references are to the Code of Civil Procedure. Section 425.16 provides, “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).) Section 425.16 is commonly referred to as the anti-SLAPP statute, SLAPP being an acronym for “strategic lawsuit against public participation.” (See Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1. (Briggs).)
II.
FACTS AND PROCEDURAL HISTORY
During all times relevant to this lawsuit, the parties owned two adjoining units of a three-unit condominium project located at 1570-1572-1574 Waller Street in San Francisco, California. Hussein resided in the unit at 1574 Waller Street, which was situated on the top floor; and Driver resided at 1572 Waller Street, the unit situated below Hussein’s.
During the course of their ownership, disputes arose between Driver and Hussein regarding numerous issues, including ownership of a parking space, building care and maintenance, and noise transmission. These topics were the subject of numerous communications between Hussein and Driver and were also the subject of discussion and votes that occurred at the meetings of the 1570 Waller Street Homeowners’ Association (Homeowners’ Association).
The Homeowners’ Association was operated as a nonprofit mutual benefit corporation. Hussein was a director on the Homeowners’ Association board from March 2006 until December 2008. During the time Hussein owned 1574 Waller Street, the Homeowners’ Association had between three and five other members, besides Hussein.
Hussein eventually sold 1574 Waller Street to Gary and Janice Grote (the Grotes) in early to mid-December 2008. However, Hussein believed that the ongoing disputes with Driver, especially with regard to whether or not a prospective purchaser would have exclusive use of a parking space, “resulted in the diminution in the value of the 1574 Waller [Street] [c]ondominium at precisely the time it was being marketed for sale, and discouraged prospective buyers....” Hussein and the Grotes eventually brought a lawsuit against Driver. The second amended complaint, filed on May 28, 2009, alleged causes of action for slander of title, intentional interference with contractual relations, intentional and negligent interference with prospective economic advantage, trespass to real property, and quiet title.
In response, Driver filed a cross-complaint on June 19, 2009, alleging causes of action for defamation, breach of fiduciary duty, nuisance, and indemnity and contribution. While the cross-complaint alleges numerous causes of action, only two were the subject of Hussein’s anti-SLAPP motion––the causes of action alleged solely against him for defamation, and for breach of fiduciary duty.
The defamation cause of action arose out of the dissemination of numerous documents that Hussein caused to be published on his real estate broker’s website in connection with the sale of his unit. By way of background, on June 23, 2008, Driver visited the website of Hussein’s real estate agent, Meredith Martin, of Paragon Real Estate Group. The homepage of Martin’s website contained a listing for Hussein’s unit. The listing for 1574 Waller Street contained a link to another webpage on Martin’s site. The link was titled “See more>” and led to a more detailed description of 1574 Waller Street.
The webpage with the detailed description for 1574 Waller Street included this statement: “Short Sale, Subject to Lender approval, Legal disputes within HOA reason for discounted sales price.... See below for further details.” At the bottom of the webpage was a link which said: “For overview of disputes and nature of H[OA] preview last link titled 1570 Waller Legal Dispute (1949 KB).” (Original underscoring.) The underlined text contained a link to a website called yousendit.com.
The webpage on yousendit.com contained a list of four files and a button to download each file. The documents available for download contained extensive information and documentation on the numerous topics of disagreement between Hussein and Driver, totaling approximately 333 pages, including correspondence between Hussein and Driver, and correspondence between Hussein and his attorney. Also included was a copy of a confidential mediation brief, which was not a public record, with exhibits prepared by Hussein’s legal counsel. This brief was used in conjunction with a mediation which occurred between Hussein and Driver in 2006 in an attempt to resolve certain of their disputes related to the building. In Driver’s defamation cause of action it was alleged that “[m]any of these documents contained false and defamatory statements” about Driver, including that he: (1) “engaged in a pattern of extortion, ” (2) “engaged in fraudulent behavior, ” (3) “verbally assaulted, violated and bullied” Hussein, and (4) “ceaselessly threatened people in or around the building with lawsuits.”
Although Hussein admits giving the mediation brief to his real estate agent who put it on her website and made it generally available to the public, the contents of the mediation brief were sealed by the trial court at Hussein’s request after the trial court ruled on the section 425.16 motion.
The breach of fiduciary duty claim relates to Hussein’s conduct in his capacity as a member and director of the Homeowners’ Association. It was specifically alleged Hussein failed “to conduct the affairs of the Association in good faith, in a manner believed to be in the best interests of the Association, and not [in Hussein’s] personal interest.” After detailing acts of purported self-interest, it was further alleged that Hussein “engaged in the above acts because of his dislike and ill-will toward [Driver], and because he was intending to sell his unit and did not want to incur any expense even if such expense would benefit the Association and owners, and also had no interest in whether or not the Association was functioning properly or the property was in good repair.”
On August 13, 2009, Hussein filed a motion to strike Driver’s causes of action for defamation and breach of fiduciary duty under the anti-SLAPP statute, on the grounds that these causes of action arose out of protected activity. On September 4, 2009, the trial court issued its order denying the motion, finding that Hussein “fail[ed] to make a prima facie showing of protected activity. This homeowners’ association is not a public forum. The website is not a public forum in that posted documents did not encourage a public exchange o[r] debate. There was no showing that the statements published were public interest statements.” This appeal followed.
III.
DISCUSSION
A. Overview of anti-SLAPP Statute
The purpose of the anti-SLAPP statute is to allow a trial 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.) To further the legislative goals of encouraging participation in matters of public significance and discouraging abuse of the judicial process, the statute provides that the anti-SLAPP provisions are to be broadly construed. (§ 425.16, subd. (a).)
In support of a special motion to strike, the moving defendant, in this case Hussein, must make a prima facie showing that the plaintiff’s suit is subject to section 425.16, i.e., that the challenged claims arise from an act or acts in furtherance of his right of petition or free speech. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 65 (Equilon Enterprises).) If the defendant makes such a showing, the burden shifts to the plaintiff, in this case Driver, to demonstrate, by admissible and competent evidence, a reasonable probability that he will prevail on the merits at trial. (§ 425.16, subd. (b)(1); DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 567-568 (DuPont).)
In reviewing an anti-SLAPP motion, a court must consider the pleadings and the evidence submitted by the parties (§ 425.16, subd. (b)(2)); the court cannot weigh the evidence, but instead must simply determine whether that evidence is sufficient to establish the respective party’s burden of proof. (Mattel, Inc. v. Luce, Forward, Hamilton & Scripps (2002) 99 Cal.App.4th 1179, 1188.) On appeal, we review the matter de novo. (Foothills Townhome Assn. v. Christiansen (1998) 65 Cal.App.4th 688, 695, disapproved on other grounds in Equilon Enterprises, supra, 29 Cal.4th at p. 58.)
In determining whether section 425.16 applies to Driver’s claims, the threshold question is whether Hussein met his burden of showing that at least some of the acts on which the defamation and breach of fiduciary duty claims are based were taken in furtherance of Hussein’s constitutional rights of petition or free speech in connection with a public issue. (DuPont, supra, 78 Cal.App.4th at p. 565.) To meet this statutory burden, Hussein must demonstrate that the defamation and breach of fiduciary duty causes of action alleged against him arise from any of the four categories of conduct identified in section 425.16. (Equilon Enterprises, supra, 29 Cal.4th at p. 66.) Although Hussein’s briefing leaves much to be desired, he seems to contend that the acts underlying Driver’s causes of action for defamation and breach of fiduciary duty fit into all four categories spelled out in section 425.16, subdivision (e). We proceed to consider each category.
B. Section 425.16, subdivisions (c)(1) and (c)(2): Official Proceeding
Any statement made “before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law” (§ 425.16, subd. (e)(1)) or “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” (id. at subd. (e)(2)) is subject to the anti-SLAPP statute. A defendant who invokes either subparagraph (1) or (2) of subdivision (e) of section 425.16 need not “ ‘separately demonstrate that the statement concerned an issue of public significance.’...” (Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 198, quoting Briggs, supra, 19 Cal.4th at p. 1123.)
Hussein appears to assume that whether a statement is a protected activity under section 425.16, subdivisions (e)(1) and (e)(2) is determined by ascertaining whether the statement is protected by the litigation privilege of Civil Code section 47, subdivision (b). That assumption is not correct. The scope of protection afforded to litigation-related communications under section 425.16 and Civil Code section 47, subdivision (b) are not identical. (Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467, 1479.) Indeed, our Supreme Court has recognized that the two statutes “are substantively different statutes that serve quite different purposes....” (Flatley v. Mauro (2006) 39 Cal.4th 299, 322.)
Although his argument is bereft of analysis or supporting case law, Hussein seems to contend that section 425.16, subdivisions (e)(1) and (e)(2) applies because Driver’s defamation cause of action references the website posting of Hussein’s mediation brief and according to Hussein “attempts to impose liability on Hussein simply for pursuing his legal rights in a dispute resolution forum.” However, section 425.16 “does not accord anti-SLAPP protection to suits arising from any act having any connection, however remote, with an official proceeding. The statements or writings in question must occur in connection with ‘an issue under consideration or review’ in the proceeding.” (Paul v. Friedman (2002) 95 Cal.App.4th 853, 866.)
Hussein has not shown that the allegedly defamatory statements contained in documents posted on his real estate agent’s website fall within section 425.16, subdivisions (e)(1) or (e)(2) because there is no indication that any of these allegedly defamatory statements were made in preparation for or in connection with any official proceeding. Even if the mediation brief were protectable, the posting of it on the website had nothing whatsoever to do with that mediation which took place more than two years earlier. Therefore, Hussein does not suggest that any of the posted statements concern issues that were currently under review by any judicial body or other official proceeding authorized by law.
More fundamentally, no authority identifies mediation as an “official proceeding authorized by law” for purposes of section 425.16, subdivisions (e)(1) and (e)(2). In fact, case law suggests otherwise. As explained by the court in Century21 Chamberlain & Associates v. Haberman (2009) 173 Cal.App.4th 1, “[a]rbitration does not fall into the first two categories of protected activity. These protect statements made in ‘a... judicial proceeding, or any other official proceeding authorized by law’ [citation] or ‘in connection with an issue under consideration or review by a... judicial body, or any other official proceeding authorized by law.’ [Citation.] [¶] Arbitration is not a judicial proceeding––it is an alternative thereto.” (Id. at p. 8.) “ ‘[A]rbitration agreements... represent an agreement to avoid the judicial forum altogether.’ [Citation.]” (Ibid.) We agree with Century 21’s reasoning and conclude that mediation, like arbitration, does not fall within the first two categories of protected activities because mediation “ ‘is a private, contractual proceeding....’ [Citation.]” (Garretson v. Post (2007) 156 Cal.App.4th 1508, 1520.)
With respect to the breach of fiduciary duty cause of action, Hussein contends that the Homeowners’ Association activities are official proceedings, and that statements made in the conduct of the business of a homeowners association are considered statements made in an official proceeding and protected under section 425.16, subdivisions (e)(1) and (e)(2). Because Hussein has not provided any evidence to establish that Homeowners’ Association meetings were anything other than private meetings open only to members of their private association, the Homeowners’ Association was undoubtedly a private entity, not a governmental agency or quasi-judicial body, and thus its proceedings are not “official proceeding[s] authorized by law” within the purview of the first two clauses of section 425.16, subdivisions (e)(1) or (e)(2).
C. Section 425.16, subdivisions (e)(3) and (e)(4): Statements Regarding an Issue of Public Interest
Hussein also contends the statements posted on his broker’s website are protected speech because they concern issues of public interest-namely to provide information “to the consuming public to allow them to decide whether they should purchase the condominium at 1574 Waller.” Consequently, he asserts the statements fall within section 425.16, subdivision (e)(3), which protects statements “made in... a public forum in connection with an issue of public interest.” He further asserts that the statements also fall within section 425.16, subdivision (e)(4), which protects statements made “in furtherance of... the constitutional right of free speech in connection with a public issue or an issue of public interest.”
While section 425.16 does not define the public interest showing that is required for speech claimed to fall within section 425.16, subdivisions (e)(3) and (e)(4), this issue has been the subject of many judicial decisions which have formulated multiple tests to determine whether a defendant’s activity is in connection with a public issue. The court in Hailstone v. Martinez (2008) 169 Cal.App.4th 728, has summarized the law as follows: To come within the protection of the anti-SLAPP statute, “the issue [has] to include attributes that make it one of public, rather than merely private, interest. [Citation.]... For example, ‘public interest’ is not mere curiosity. Further, the matter should be something of concern to a substantial number of people. Accordingly, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. Additionally, there should be a degree of closeness between the challenged statements and the asserted public interest. The assertion of a broad and amorphous public interest is not sufficient. Moreover, the focus of the speaker’s conduct should be the public interest, not a private controversy.... [¶]... [I]n each case where it was determined that a public issue existed, ‘the subject statements either concerned a person or entity in the public eye [citations], conduct that could directly affect a large number of people beyond the direct participants [citations] or a topic of widespread, public interest [citation].’ [Citation.]” (Id. at pp. 736-737.)
In claiming that the public interest component of section 425.16, subdivisions (e)(3) and (e)(4) is met, Hussein misplaces reliance on Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 (Damon). In Damon, a former manager of a homeowners association brought a defamation action against several association members, members of the board of directors, and a private homeowners’ club after they criticized his management of the association and urged his replacement by a professional management company. Affirming the trial court’s order granting defendants’ anti-SLAPP motion, Damon explained: “[E]ach of the alleged defamatory statements concerned (1) the decision whether to continue to be self-governed or to switch to a professional management company; and/or (2) [the plaintiff]’s competency to manage the Association. These statements pertained to issues of public interest within the Ocean Hills community. Indeed, they concerned the very manner in which the 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. [Citation.] Moreover, the statements were made in connection with the Board elections and recall campaigns.” (Id. at p. 479.) The court observed that “ ‘[t]he right to speak on political matters is the quintessential subject of our constitutional protections of the right of free speech.’...” (Ibid.)
A similar conclusion was reached in Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456 (Ruiz). There, a homeowner sued his homeowners association alleging letters written by its attorneys defamed him. The letters concerned a dispute over the association’s rejection of the homeowner’s building plans and the homeowner’s requests for documents and information. The court concluded the letters fell within the anti-SLAPP statute, noting, (a) the letters formed part of a debate concerning an ongoing dispute, and (b) the dispute was of interest to a definable portion of the public, i.e., residents of 523 lots, because they would be impacted by the outcome. (Id. at pp. 1468-1469.)
In contrast, an allegedly defamatory statement made on a website was held not to concern an issue of public interest in Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107 (Du Charme). There, a local union was placed in receivership, and the trustee posted a message on the union website that the business manager had been fired for financial mismanagement. The fired employee sued the union and trustee for defamation, and the defendants filed an anti-SLAPP motion. The Du Charme court considered the website a public forum, but nonetheless concluded defendants failed to make a prima facie showing the defendants made the statement in connection with a public issue or an issue of public interest. Recognizing that matters of interest to union members might not interest the general public, the court formulated the following rule: “[I]n order to satisfy the public issue/issue of public interest requirement of section 425.16, subdivisions (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.” (Id. at p. 119, fn. omitted.) The court noted that the single posting on the website regarding the assistant business manager’s termination concerned an isolated statement “unconnected to any discussion, debate or controversy” then existing, and observed: “[the manager’s] termination was a fait accompli; its propriety was no longer at issue. Members of the local were not being urged to take any position on the matter. In fact, no action on their part was called for or contemplated. To grant protection to mere informational statements, in this context, would in no way further the statute’s purpose of encouraging participation in matters of public significance [citation].” (Id. at p. 118, original italics.)
Similarly, the mere airing of a private conflict was held to fall outside of anti-SLAPP protection in Weinberg v. Feisel (2003)110 Cal.App.4th 1122 (Weinberg). The parties in that case were members of the 700-member National Token Collectors’ Association that sponsored token shows. (Id. at p. 1127.) The defendant believed that the plaintiff had stolen a token from him while at a token show, and began a campaign against the plaintiff that included letters to other collectors accusing plaintiff of the theft, and advertisements in a club newsletter describing the theft, although not naming the plaintiff as the thief. (Id. at p. 1128.) The court found that defendant could not create a public issue out of what was in essence a private campaign to discredit plaintiff in the eyes of a relatively small group of fellow collectors; and therefore, the complained of statements did not fall within the definition of protected speech found in section 425.16. To fall within the protection of the anti-SLAPP statute, the court held that “the focus of the speaker’s conduct should be the public interest rather than a mere effort ‘to gather ammunition for another round of [private] controversy....’ [Citation.]... A person cannot turn otherwise private information into a matter of public interest simply by communicating it to a large number of people. [Citations.]” (Weinberg, supra, at pp. 1132-1133.)
We believe this case has far more in common with Du Charme and Weinberg than with Damon and Ruiz. Here, the defamatory postings did not concern the public at large, but involved a limited, definable portion of the public-those individuals interested in purchasing Hussein’s condominium unit. The controversy that triggered the alleged defamatory statements affected an even smaller group of people, i.e., the three to five members of the Homeowners’ Association who resided in the three-unit condominium project at 1570-1574 Waller Street. Unlike the homeowner association in Damon, which involved the governance of 3, 000 people, or the 500-plus units affected by the design review debate in Ruiz, Hussein’s conduct did not “affect[ ] a community in a manner similar to that of a governmental entity [citations] [or involve] ‘ “... a large, powerful organization [that] may impact the lives of many individuals.” ’ [Citation.]” (Damon, supra, 85 Cal.App.4th at p. 479.)
Hussein insists his alleged misconduct arose from activity conducted in the public interest; specifically, “aiding in full disclosure to... the real estate buying public.” However, for statements to merit protection by the anti-SLAPP statute, “the focus of the speaker’s conduct should be the public interest rather than a mere effort ‘to gather ammunition for another round of [private] controversy....’ [Citation.]” (Weinberg, supra, 110 Cal.App.4th at pp. 1132-1133.) It has been held that a “seller’s duty of disclosure is limited to material facts; [and] once the essential facts are disclosed a seller is not under a duty to provide details that would merely serve to elaborate on the disclosed facts....” (Calemine v. Samuelson (2009) 171 Cal.App.4th 153, 161, citing Pagano v. Krohn (1997) 60 Cal.App.4th 1, 8-9.) Consequently, if the focus of Hussein’s statements were to respond to the public interest, he could have simply provided a summary of the issues that would be material to a prospective purchaser’s decision to own 1574 Waller Street, rather than the Internet posting of over 300 pages of documents, which, Driver contends, contained false and defamatory statements. Statements made in “a private campaign of vilification”––such as this––do not interest the public and are not protected. (Weinberg, supra, 110 Cal.App.4th at p. 1135.)
Moreover, the posted documents did not encourage any larger discussion or public debate of general consumer-related issues of interest to the general public. This is in contrast to the website given public interest protection in Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, that not only provided information about certain individuals who brokered life insurance policies but also provided consumer information about the industry in general, including educating consumers about the potential for fraud. (Id. at p. 899.) By contrast, the website at issue in this case simply reported an extremely contentious conflict between two homeowners, and there is no evidence that the public in general had any widespread interest in educating itself about the details of this conflict. Moreover, as in Du Charme and Weinberg, no action on the part of those who visited the real estate broker’s website and downloaded the documents was called for or contemplated, and granting anti-SLAPP protection in this situation “would in no way further the statute’s purpose of encouraging participation in matters of public significance [citation].” (See Du Charme, supra, 110 Cal.App.4th at p. 118, original italics.)
In sum, Hussein did not meet his threshold burden of establishing that the alleged misconduct forming the basis of Driver’s causes of action for defamation and breach of fiduciary duty came within any of the four categories described in section 425.16, subdivision (e). Indeed, Hussein has not demonstrated that his dispute with Driver was “anything other than a private dispute between private parties.” (Weinberg, supra, 110 Cal.App.4th at p. 1134.) Accordingly, we conclude Hussein has failed to meet his burden of showing Driver’s claims for defamation and breach of fiduciary duty arise out of an activity falling within the protection of the anti-SLAPP statute. Accordingly, we need not determine whether Driver has shown a probability of prevailing on the merits.
IV.
DISPOSITION
The order is affirmed. Driver is entitled to recover his costs on appeal.
We concur: SEPULVEDA, J., RIVERA, J.