Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of San Diego County, No. GIC877518, Joan M. Lewis, Judge.
O'ROURKE, J.
Appellant Meadows Del Mar Homeowners Association (Association) appeals from an order denying its special motion to strike the cross-complaint of respondent Darnell & Scrivner Architecture, Inc. brought under Code of Civil Procedure section 425.16, the "anti-SLAPP statute." Respondent, an architectural firm, was sued by its client for breach of contract and negligence in part for allegedly failing to adhere to Association covenants, conditions and restrictions (CC&Rs) and architectural design guidelines. It thereafter cross-complained against Association, alleging it suffered damages in the form of additional re-design costs, potential business and lost profits due to Association's negligence in revoking approval of respondent's architectural plans, issuing a stop work order, and asking the City of San Diego to reexamine the plans.
All statutory references are to the Code of Civil Procedure unless otherwise indicated. "SLAPP is an acronym for 'strategic lawsuits against public participation.' " (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1.)
Association contends the trial court erred in denying its motion to strike respondent's cross-complaint because it is based on Association's communicative conduct in undertaking design review obligations mandated by its CC&Rs and Civil Code section 1378, and the causes of action are thus based on statements or writings made in connection with an official proceeding authorized by law and involve communications on an issue of public interest (§ 425.16, subds. (e)(2), (e)(4).) It maintains permitting the lawsuit to proceed will undermine the ability of homeowners associations to fulfill their quasi-governmental obligations. Association also argues respondent did not demonstrate a reasonable probability of prevailing on the merits of its claims.
We conclude Association has not shown the acts underlying respondent's cross-complaint involve protected petitioning activity within the meaning of section 425.16. Accordingly, we affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
Russell and Alison Levine are owners of real property within a development governed by Association, a nonprofit mutual benefit corporation. In December 2006, they sued respondent for breach of contract and negligence in connection with an architectural service and fee agreement relating to respondent's design of their custom single family home. The Levines alleged respondent was negligent and breached the terms of the contract by delaying performance, failing to supervise and manage out-sourced structural engineering and other services, and failing to adhere to Association CC&Rs and architectural design guidelines.
Respondent thereafter filed a cross-complaint against Association including causes of action for negligence, apportionment, equitable indemnity and declaratory relief. Respondent alleged that in December 2004, Association's architectural review committee approved the architectural plans for the Levines' residence, but Association thereafter began communicating with one of the Levines' neighbors who felt her privacy was being compromised by the construction. Respondent alleged that despite the prior approval, Association "contradicted and improperly repealed" its prior approval and requested numerous additional design changes to the plans based on the neighbor's complaints. Respondent alleged that in July 2005, Association notified it that the Levines' residence exceeded the square footage limitation contained within its design guidelines and, seven months after approving the plans and acting in bad faith, ordered respondent to cease further work on the home. Respondent further alleged it was forced to spend significant amounts of time and money to demonstrate that its design conformed to Association's CC&Rs and the Building Code, yet Association continued to enforce its stop work order and did not reapprove the plans until more than a year later in July 2006. According to respondent, Association "inappropriately singled out" and "unfairly scrutinized" its design and construction services due to the neighbor's complaints while other projects in the development were allowed to proceed without such scrutiny, and Association improperly asked the City of San Diego to re-examine the previously approved plans based on the complaints, without good cause.
Respondent also named in its cross-complaint the structural engineer, who is not a party to this appeal.
The Association CC&Rs, recorded in 1999, contain an article entitled "Architectural Control" requiring that owners submit to Association plans and specifications conforming to Association's architectural guidelines and obtain Association approval before constructing residences or making additions and improvements such as fences or landscaping.
In its negligence cause of action, respondent alleged Association owed it a duty to use the ordinary skill and care that a reasonably prudent homeowners association would have used throughout the design approval process and a duty to avoid reasonably foreseeable injury; that by breaching its duty, Association caused delays in design and construction, forced respondent to expend time responding to Association and building department requests for additional design changes, and forced it to expend significant unwarranted additional costs associated with redesigns and changes. Respondent incorporated all of these allegations in its other causes of action for apportionment and contribution, equitable indemnity and declaratory relief.
Association moved to strike the cross-complaint's causes of action against it under section 425.16. Asserting that courts have treated community associations like "mini-governments" and should be held to governmental standards for some purposes, Association argued its architectural committee and related design review process qualified as an "official proceeding authorized by law" within the meaning of section 425.16, subdivision (e)(2). Association also argued that because the communication and activity alleged in the cross-complaint concerned issues of Association management and architectural control pursuant to its governing documents, the causes of action involved "public issues" within the meaning of subdivision (e)(4) of section 425.16.
In opposition, respondent argued Association's negligent or unreasonable performance of its design review duties lacked the requisite fundamental constitutional free speech considerations contemplated by section 425.16, and it asked the trial court to declare Association's motion frivolous, justifying an award of reasonable attorney fees and costs in its favor. According to respondent, its causes of action arose not from any First Amendment communications in need of protection, but from Association's negligence in its duties to review architectural plans, and there was no danger of chilling such rights by allowing its cross-complaint to proceed. It argued any allegations of protected activity were incidental to the cross-complaint; that it did not bring suit based on any of Association's written or oral communications, but rather "based on the manner in which the entire architectural review process was conducted" i.e., the gravamen of its suit was injury resulting from the negligent exercise of the Association's duties under its authority to approve architectural plans.
Respondent submitted the declaration of one of its principals, Brian Darnell, who averred that after Association revoked its approval and issued its cease work order, he explained to it why respondent's square footage calculations were correct and in conformity with the Association's design guidelines, but the Association would not change its "hard-line" position, and the Association unfairly singled out the Levines' project for further scrutiny based only on the neighbor's complaints. Darnell stated, "I explained that the literal interpretation of the definition of 'habitable floor space,' as set forth in both the International Code Council ('ICC') and the California Building Code ('CBC'), further justified [respondent's] square footage calculation of the Plaintiffs' residence. This completely nullified the [Association's] claim that the Plaintiffs' residence exceeded the maximum allowable habitable floor area of 6,000 square feet pursuant to The Meadows Del Mar Design Guideline No. 5.3.1."
The trial court denied Association's motion, concluding without analysis that it had not met its burden of establishing respondent's cross-complaint arose from Association's right of petition or free speech. Association appeals.
DISCUSSION
I. Legal Principles of Section 425.16 Special Motions to Strike
The Legislature enacted section 425.16 to deter lawsuits " brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (§ 425.16, subd. (a).) "Because these meritless lawsuits seek to deplete 'the defendant's energy' and drain 'his or her resources' [citation], the Legislature sought ' "to prevent SLAPPs by ending them early and without great cost to the SLAPP target." ' " (Flatley v. Mauro (2006) 39 Cal.4th 299, 312.) To achieve the goal of encouraging participation in matters of public significance, the statute must be construed broadly. (§ 425.16, subd. (a); Kibler v. Northern Inyo County Local Hosp. Dist. (2006) 39 Cal.4th 192, 195 (Kibler).)
A court engages in a two-step process to determine whether an action is subject to a section 425.16 special motion to strike. (Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier); Taus v. Loftus (2007) 40 Cal.4th 683, 712.) "First, the court decides whether the defendant [or cross-defendant] has made a threshold showing that the challenged cause of action is one arising from protected activity. [Citation.] 'A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e)[.]' [Citation.] If the court finds that such a showing has been made, it must then determine whether the plaintiff has demonstrated a probability of prevailing on the claim." (Navellier, at p. 88.) The cause of action must satisfy both prongs to be stricken under the statute. (Id. at p. 89.)
As to the first step of the section 425.16 analysis, a cause of action is subject to a special motion to strike if the cause of action is one "arising from any act . . . in furtherance" of the defendant's "right of petition or free speech under the United States or California Constitution in connection with a public issue . . . ." (§ 425. 16, subd. (b)(1).) Subdivision (e) of section 425.16 sets out four categories of activities that are "in furtherance of" a defendant's free speech or petition rights; relevant here are those acts set forth in subdivision (e)(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" and subdivision (e)(4): "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." (§ 425.16, subd. (e).)
The other two categories are: "any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law" and "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 . . . ." (§ 425.16, subds. (e)(1), (e)(3).)
We independently review the order denying Association's section 425.16 motion. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3; Sycamore Ridge Apartments LLC v. Naumann (2007) 157 Cal.App.4th 1385, 1396.) We consider " 'the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based.' [Citation.] However, we neither 'weigh credibility [nor] compare the weight of the evidence. Rather, [we] accept as true the evidence favorable to the [cross-complainant] [citation] and evaluate the [cross-defendant's] evidence only to determine if it has defeated that submitted by the [cross-complainant] as a matter of law.' " (Soukup, at p. 269, fn. 3.)
II. Threshold Showing of Protected Activity
A. Section 425.16, Subdivision (e)(2) – Statement or Writing Made in Connection With an Issue Under Review in an Official Proceeding Authorized by Law
Association begins its argument on whether it met its threshold section 425.16 burden with the broad premise that homeowners associations are "akin to a quasi-governmental entity" and are increasingly required to perform "quasi-judicial" and "quasi-governmental" functions, justifying protection under section 425.16. Asserting it is required by Civil Code section 1378 to communicate certain decisions relating to architectural review and analogizing the circumstances to those in Kibler, supra, 39 Cal.4th 192, Association contends respondent's cross-complaint arises from Association's communicative conduct made while fulfilling its "statutorily mandated" architectural design review process, and thus the causes of action meet the "official proceeding" aspect of section 425.16, subdivision (e)(2).
We have recently observed that " 'the statutory phrase "cause of action . . . arising from" means simply that the defendant's act underlying the [cross-complainant's] cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] . . . [T]he critical point is whether the . . . cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech.' " (Freeman v. Schack (2007) 154 Cal.App.4th 719, 727, quoting City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78; see also Navellier, supra, 29 Cal.4th at p. 89.) "It is 'the principal thrust or gravamen of the [cross-complainant's] cause of action that determines whether the anti-SLAPP statute applies [citation], and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute.' " (Freeman, at p. 727, italics omitted.)
Here, respondent's causes of action are based on Association's revocation of its prior architectural design approval and subsequent order that respondent cease all further work on the Levines' residence, as well as its demands that respondent redesign the home, acts that respondent alleges were improper and discriminatory (a result of the Association unfairly "singl[ing] out" its client), causing it damage. The question is whether these underlying acts of the Association constitute oral or written communications "made in connection with an issue under review in an official proceeding authorized by law" by virtue of the fact that in undertaking its review, Association must act in accordance with Civil Code section 1378 of the Davis-Stirling Common Interest Development Act, which places certain requirements on homeowners associations whose governing documents, like Association's here (see footnote 3, ante), require association approval before an owner may make a physical change to the owner's separate interest or common area. (Civ. Code, § 1378, subd. (a).) Specifically, when a homeowners association subject to Civil Code section 1378 is faced with an owner's request to make such changes, the association "shall provide a fair, reasonable and expeditious procedure for making its decision" which procedure "shall be included in the association's governing documents" and "provide for prompt deadlines." (Civ. Code, § 1378, subd. (a)(1).) Under this provision, a homeowners association's "decision on a proposed change shall be made in good faith and may not be unreasonable, arbitrary, or capricious." (Civ. Code, § 1378, subd. (a)(2).) The section further provides that the homeowners association's decision must be in writing, and if it communicates disapproval, "shall include both an explanation of why the proposed change is disapproved and a description of the procedure for reconsideration of the decision by the board of directors." (Civ. Code, § 1378, subd. (a)(4).) Subdivisions (a)(1) and (a)(2) of the statute are declaratory of existing case law, particularly Ironwood Owners Ass'n IX v. Solomon (1986) 178 Cal.App.3d 766, 722. (See Cal. Law Revision Com. com., 8 West's Ann. Civ. Code (2007 ed.) foll. § 1378, p. 381.) Association characterizes a homeowners association's architectural review under these standards as a "quasi-governmental" function.
The court in Ironwood held an association seeking to enforce CC&Rs with a mandatory injunction must show it has followed its standards and procedures before pursuing such a remedy, that the procedures were fair and reasonable, and its decision was made in good faith and was not arbitrary and capricious. (Ironwood, supra, 178 Cal.App.3d at p. 772.) " 'The criteria for testing the reasonableness of an exercise of such a power by the owners' association are (1) whether the reason for withholding approval is rationally related to the protection, preservation or proper operation of the property and the purposes of the Association as set forth in its governing instruments and (2) whether the power was exercised in a fair and nondiscriminatory manner.' " (Ibid., quoting Laguna Royale Owners Assn. v. Darger (1981) 119 Cal.App.3d 670, 683-684.)
We cannot characterize the requirements of Civil Code section 1378 as presenting an "official design review process" or transforming a homeowners association's design review into an "official proceeding"; they set forth a statutory framework for regulating a homeowners association's design review to ensure it is consistent with its governing documents, not unfair or discriminatory, and not exercised in an unreasonable, arbitrary or capricious manner. In this way, the matters involved here are governed by statute like court-ordered execution sales or the nonjudicial foreclosure process, which this court and our Division Two colleagues recently held do not constitute "official proceeding[s] authorized by law" within the meaning of section 425.16, subdivision (e)(2). (Garretson v. Post (2007) 156 Cal.App.4th 1508, 1520 [nonjudicial foreclosure proceedings]; Blackburn v. Brady (2004) 116 Cal.App.4th 670, 676-677 [court-ordered execution sales under Code of Civil Procedure sections 699.010 et seq.].) Like a nonjudicial foreclosure, homeowners association actions taken in connection with its design review authority do "not involve legislative, executive, or judicial proceedings." (E.g., Garretson v. Post, at p. 1520.) A cause of action based on such homeowners association actions "does not concern an issue under official review that required a determination to be based upon the exercise of [a homeowners association's] free speech or petition rights." (Ibid.)Rather, a homeowners association's conduct in reviewing architectural or other construction plans is a matter that, while subject to the statutory framework mentioned above, is governed by the homeowners association's own CC&Rs, with which it must act in conformity and in good faith. (See Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 368, fn. 1; see Villa De Las Palmas Homeowners Ass'n v. Terifaj (2004) 33 Cal.4th 73; Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642, 650-651.)
Association's assertions that we should treat it as a governmental entity in this context are not persuasive. In Cohen v. Kite Hill Community Assn., supra, 142 Cal.App.3d 642, on which Association relies, the court of appeal reviewing an order sustaining a homeowners association's demurrer held such an association owes fiduciary duties and duties of good to its individual members that can be violated if it acts arbitrarily or in violation of CC&Rs when it approves or disapproves planned improvements. (Id. at pp. 650-652.) Thus, the plaintiffs there were entitled to trial court review of the association's decision and their pleadings permitted a trial on that question. (Id. at p. 652.) The Cohen court's discussion of the parallels between a homeowners association and a municipality to support its imposition of fiduciary duty, which we perceive as dicta (9 Witkin, Cal. Procedure (4th ed. 1997) Appeal, § 945, p. 986), does not compel us to deem homeowners association actions quasi-judicial or quasi-governmental for purposes of section 425.16.
Nor are we persuaded that the circumstances are comparable to Kibler, supra, 39 Cal.4th 192, in which the California Supreme Court was faced with a section 425.16 motion attacking a physician's complaint based on statements made in connection with a medical peer review hearing. (Id. at pp. 194-195.) A homeowners association's design review is unlike the hospital peer review committee process, which Kibler held constituted an "official proceeding authorized by law" within section 425.16, subdivision (e)(2). (Garretson v. Post, supra, 156 Cal.App.4th at pp. 1520-1521.) A homeowners association's review of architectural or construction plans submitted by individual owners simply does not serve the same public interest as does hospital peer review, which, as Kibler emphasized, the California Legislature deems " 'essential to preserving the highest standards of medical practice' throughout California." (Kibler, supra, 39 Cal.4th at p. 199.) Kibler pointed out that the statutory provisions governing such peer review "set[] out a comprehensive scheme that incorporates the peer review process into the overall process for the licensure of California physicians" and thus the peer review procedure "plays a significant role in protecting the public against incompetent, impaired or negligent physicians." (Kibler, at p. 200.) Further, the court held an important attribute of hospital peer review supporting its "official proceeding" analysis was that a hospital's decisions resulting from peer review proceedings are subject to judicial review by administrative mandate: "Thus, the Legislature has accorded a hospital's peer review decisions a status comparable to that of quasi-judicial public agencies whose decisions likewise are reviewable by administrative mandate [Citations.] As such, hospital peer review proceedings constitute official proceedings authorized by law within the meaning of section 425.16, subdivision (e)(2)." (Kibler, at p. 200, italics added.)
Kibler observed that the Legislature's grant to individual hospitals of primary responsibility for monitoring the professional conduct of California licensed physicians meant that peer review committees oversaw " 'matters of public significance' " (§ 425.16, subd. (a)), adopting amicus arguments for extending section 425.16 to the peer review context: "[M]embership on a hospital's peer review committee is voluntary and unpaid, and many physicians are reluctant to join peer review committees so as to avoid sitting in judgment of their peers. To hold, as plaintiff Kibler would have us do, that hospital peer review proceedings are not 'official proceeding[s] authorized by law' within the meaning of section 425.16, subdivision (e)(2), would further discourage participation in peer review by allowing disciplined physicians to file harassing lawsuits against hospitals and their peer review committee members rather than seeking judicial review of the committee's decision by the available means of a petition for administrative mandate." (Kibler, supra, 39 Cal.4th at p. 201.)
The Kibler court reached this conclusion even though section 425.16, subdivision (e)(2) does not contain any "issue of public interest" limitation, and thus a defendant moving to strike a cause of action under that provision need not separately demonstrate the statement concerned an issue of public significance. (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1123; Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 802-803.)
Citing Ruiz v. Harbor View Community Ass'n (2005) 134 Cal.App.4th 1456 (Ruiz), Association argues in its reply brief that homeowners association architectural review actions indeed present matters of public significance and, like peer review proceedings, are subject to administrative mandamus as evidenced by Delta Dental Plan v. Banasky (1994) 27 Cal.App.4th 1598. We disagree. As we explain below, Ruiz does not broadly hold that any homeowners association matter involving architectural review is a matter of public significance. As for applicability of administrative mandamus under section 1094.5, Delta Dental contains no persuasive analysis on the question. "[A] case does not stand for a proposition neither discussed nor analyzed . . . ." (DCM Partners v. Smith (1991) 228 Cal.App.3d 729, 739, citation omitted.) Its reference to Ironwood, supra, 178 Cal.App.3d 766 is to support the limited proposition that the right to fair procedure with regard to membership actions in a private organization is not limited to matters of exclusion or expulsion. (Delta Dental, at p. 1607.) We decline to extend Delta or interpret its reference as a holding that homeowners association design review actions are subject to administrative mandamus.
Section 1094.5 provides in part: "(a) Where the writ is issued for the purpose of inquiring into the validity of any final administrative order or decision made as the result of a proceeding in which by law a hearing is required to be given, evidence is required to be taken, and discretion in the determination of facts is vested in the inferior tribunal, corporation, board, or officer, the case shall be heard by the court sitting without a jury. All or part of the record of the proceedings before the inferior tribunal, corporation, board, or officer may be filed with the petition, may be filed with the respondent's points and authorities, or may be ordered to be filed by the court . . . . [¶] (b) The inquiry in such a case shall extend to the questions whether the respondent has proceeded without, or in excess of jurisdiction; whether there was a fair trial; and whether there was any prejudicial abuse of discretion. Abuse of discretion is established if the respondent has not proceeded in the manner required by law, the order or decision is not supported by the findings, or the findings are not supported by the evidence."
Further, it is a basic principle that administrative mandamus is only available if a formal evidentiary hearing is required by statute or an organization's internal rules and regulations. (Pomona College v. Superior Court (1996) 45 Cal.App.4th 1716, 1727, fn. 10; Gupta v. Stanford University (2004) 124 Cal.App.4th 407, 411; Royal Convalescent Hospital, Inc. v. State Board of Control (1979) 99 Cal.App.3d 788, 792-793 [administrative mandamus directed to formal adjudicatory proceedings at which evidence is taken and not informal administrative actions].) And administrative mandamus does not lie if there is an adequate remedy at law. (Royal Convalescent, at p. 793.) Association has not demonstrated either of these requirements.
In sum, Association has not met its burden to show respondent's causes of action are based on statements or writings made in connection with an official proceeding authorized by law under section 425.16, subdivision (e)(2).
B. Section 425.16, Subdivision (e)(4) – Any Other Conduct in Furtherance of the Exercise of the Constitutional Rights of Petition or Free Speech in Connection With a Public Issue or an Issue of Public Interest
Association contends respondent's cross-complaint arises out of an issue of public interest even though it involves a private entity such as a homeowners association. Comparing the circumstances to those in Ruiz, supra, 134 Cal.App.4th 1456, Association argues that all of the alleged conduct occurred during the architectural review process for plans to construct a custom home within the Association, and concern issues of Association "management and architectural control pursuant to its governing documents and the mandates of Civil Code section 1378." Association maintains these are issues of great significance to members of a homeowners association who rely on their boards or architectural committees to fulfill their statutory obligations.
In Ruiz, our colleagues in Division Three addressed whether section 425.16 protected two allegedly defamatory letters written by an attorney for the Harbor View Community Association, a non-profit mutual benefit corporation, to one of the association members (Ruiz) who had submitted plans to erect a new house to Harbor View's architectural committee. (Ruiz, supra, 134 Cal.App.4th at pp. 1461-1462.)The plaintiffs' home was on one of 523 lots in the development. (Ruiz, at p. 1461.) After Harbor View rejected Ruiz's application, Ruiz attended board meetings in an effort to learn the reason for the architectural committee's rejection and followed up with letters asserting its decisions were largely arbitrary and capricious and inconsistent with certain restrictions contained within its guidelines. (Id. at p. 1463.) He also sought information and documents from Harbor View including production of the homeowner membership log. (Ibid.)Harbor View's attorney responded in letters accusing Ruiz, also an attorney, of violating his ethical duties to deal honestly and fairly with others, harassing and intimidating the association, and sending frivolous queries about the rejection without attempting to resubmit modified plans. (Id. at pp. 1463-1465.)
Reviewing Harbor View's motion to strike Ruiz's libel cause of action based on Harbor View's letters, the court of appeal decided whether the private letters concerned a public issue or an issue of public interest. (Ruiz, supra, 134 Cal.App.4th at p. 1467.) Relying on Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, the court held they did: "When [Harbor View's letters] were written, plaintiffs and [Harbor View] were involved in ongoing disputes over approval of Plaintiff's conceptual plans, the application of Harbor View'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 [Harbor View], because they would be affected by the outcome of those disputes and would have a stake in [Harbor View] governance. Ruiz's conduct at [Harbor View] board meetings and interaction with board members affected [Harbor View] governance and therefore would be of interest to community members." (Ruiz, at p. 1468.) The court observed that Harbor View encompassed residents living in over 523 lots, which it held was a large enough group to come within the requirements set out in Du Charme, a case involving statements posted on a labor union's local web site. Finally the court stated the letters were written in the context of the disputes between plaintiffs and Harbor View, were part of the ongoing discussion over those disputes, and " 'contributed to the public debate' " on the issues presented by those disputes. (Ruiz, at p. 1469, quoting Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 898.) The court found Ruiz's activities, which related to the denial of his conceptual plans, "concern the issue whether the architectural guidelines had been evenhandedly enforced, a matter of concern to [Harbor View] 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." (Ruiz, 134 Cal.App.4th at p. 1470, italics added.)
Du Charme held that in order to satisfy the section 425.16, subdivision (e)(4) public interest requirement in cases where the issue is not of interest to the public at large but only 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.) However, because the Du Charme court concluded the statements at issue there did not occur in such a context to warrant section 425.16's protection, it 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." (Du Charme, 110 Cal.App.4th at p. 119.)
Association argues Ruiz's reasoning is directly applicable here. Based on the substance of respondent's allegations, on which we are entitled to rely (§ 425.16, subd. (b)(2); Jesperson v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 629, 630), we are compelled to disagree. Concededly, the "issue of public interest" element should be construed broadly (§ 425.16, subd. (a)), and can encompass matters between private individuals and organizations. (Navellier, supra, 29 Cal.4th at p. 91.) This court held "[t]he definition of 'public interest' . . . 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 government entity." (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 (Damon).) In Damon, a case involving a homeowners association of over 3,000 individuals, we held that statements concerning (1) the decision of whether the homeowners association should continue to be self-governed or to switch to a professional management company and/or (2) the plaintiff's competency to manage the homeowners association, pertained to issues of public interest within that large community. (Ibid.) We reasoned those statements, made in connection with board elections and recall campaigns, "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.)
Here, we are not faced with such allegations. As a threshold matter, in its moving papers Association did not give any indication of its size; nothing in the record shows how many individuals are Association members. Respondent points out that the CC&Rs suggest the Association contains 22 lots, well below the 523 lots at issue in Ruiz. From that number of lots, we could reasonably conclude that Association's members do not come close to numbering in the thousands, as in Damon. Association does not seek to provide additional information in its reply brief; it argues that a homeowners association "does not have to [have] a large population, when . . . the conduct affects the community in a manner similar to that of a governmental entity." It asks us to hold as a "clear rule that when a homeowners association is conducting a function similar to a governmental entity[,] the number of members should not matter."
We decline to hold that a cause of action based on homeowners association design review decisions, as here, necessarily concerns a matter of public interest. Such a holding would have to be premised on the notion that a homeowners association must be treated as a governmental entity, a position we have rejected above. We believe it a better rule in the context of this case that "a matter of public interest should be something of concern to a substantial number of people." (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132; Terry v. Davis Community Church (2005) 131 Cal.App.4th 1534, 1547; Wilbanks v. Wolk, supra, 121 Cal.App.4th at p. 898 [most "commonly articulated definitions of 'statements made in connection with a public issue' focus on whether (1) the subject of the statement or activity precipitating the claim was a person or entity in the public eye; (2) the statement or activity precipitating the claim involved conduct that could affect large numbers of people beyond the direct participants; and (3) whether the statement or activity precipitating the claim involved a topic of widespread public interest"].) Association has not made such a showing; it has not shown its communications were intended for, or even exposed to, a "large and interested community" of members as was the publication at issue in Damon, supra, 85 Cal.App.4th at pages 476 to 477.
Nor has Association shown the controversy would even be of interest to all of its members, even assuming it could be characterized as a large community. Respondent's cross-complaint alleges, and Darnell's declaration shows, that the controversy that was the subject of the homeowners association action was whether or not the square footage of respondent's proposed single family residence fell within Association design guidelines, not some broad question of Association management or governance, which we held in Damon could constitute an issue of public interest. (Damon, supra, 85 Cal.App.4th at p. 475.) Thus, even if we were to ignore Association's failure to demonstrate it was made up of a large group of individuals, it has not shown the issues to be of concern to all or a substantial number of its members. In this way, Association's showing under section 425.16, subdivision (e)(2) fails.
For the foregoing reasons, Association did not establish a prima facie case under section 425.16, and we therefore do not need to decide whether respondent has demonstrated a likelihood of prevailing on the merits.
III. Appellate Attorney Fees
Respondent argues it should be allowed to recover its attorney fees and costs in responding to this appeal because Association's arguments are "founded on rhetoric and distortion, not on fact and law."
As relevant, section 425.16, subdivision (c) provides: "If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney's fees to a plaintiff prevailing on the motion, pursuant to Section 128.5." (§ 425.16, subd. (c).) " 'A statute authorizing an attorney fee award at the trial court level includes appellate attorney fees unless the statute specifically provides otherwise.' " (Wanland v. Law Offices of Mastagi, Holstedt and Chiurazzi (2006) 141 Cal.App.4th 15, 21, quoting Evans v. Unkow (1995) 38 Cal.App.4th 1490, 1499-1500.) A determination of frivolousness requires a finding the motion is "totally and completely without merit" [citation], that is, ' any reasonable attorney would agree such motion is totally devoid of merit.' " (Foundation for Taxpayer & Consumer Rights v. Garamendi (2005) 132 Cal.App.4th 1375, 1388.)
Though we have rejected its arguments, the record does not show Association's appeal to be utterly devoid of merit. Thus we deny respondent's request for attorney fees under section 425.16, subdivision (c).
DISPOSITION
The order is affirmed. Respondent shall recover its costs on appeal.
WE CONCUR: BENKE, Acting P. J., HUFFMAN, J.