Opinion
D038034.
7-21-2003
JEAN-PAUL GOYET et al., Plaintiffs and Appellants, v. BEVERLY DEAN et al., Defendants and Respondents.
ORDER MODIFYING OPINION AND DENYING REHEARING AND DENYING REQUEST TO CERTIFY OPINION FOR PUBLICATION
[NO CHANGE IN JUDGMENT]
THE COURT:
It is ordered that the opinion filed herein on June 26, 2003, be modified as follows:
1. On pages 1 and 2, the first two paragraphs of the opinion are deleted and replaced with the following:
Jean-Paul (JP) and Victoria Goyet brought an action for defamation, invasion of privacy, intentional infliction of emotional distress, breach of contract, private nuisance and other claims against other residents of their condominium complex (defendants Beverley Dean, Joseph Proulx, Margaret Jackson, Lisa and Peter Williamson, Yancey Newell Tarrant, Charles Finlay and Charles Scott), the property managers for the complex (defendants Frank Salas (individually and doing business as Mega Management Enterprises) and Denise Benham-Hill (collectively the Mega Management defendants)) and others. The Goyets appeal from judgments entered in favor of the defendants after the trial court granted special motions to strike their complaint under Code of Civil Procedure section 425.16 (commonly known as the anti-SLAPP statute) by defendants Dean, Jackson, Proulx, Tarrant and the Williamsons (the SLAPP defendants) and granted summary judgment in favor of defendants Finlay, Scott and the Mega Management defendants (the summary judgment defendants). They also appeal from orders awarding the defendants attorney fees in the action. (All further statutory references are to the Code of Civil Procedure unless otherwise specified.)
As to the SLAPP defendants, the Goyets contend (1) those defendants waived their right to bring such motions by not asserting section 425.16 as a defense in their answers and by their delay in bringing the motions; (2) those defendants did not meet their burden to show that section 425.16 applies to their complaint; (3) they established a probability of success on the merits of their claims; and (4) the trial court erred in granting those defendants request for attorney fees incurred on matters not related to the special motions to strike or, alternatively, in awarding fees attributable to the non-contract causes of action.
2. On page 4, second sentence of the first full paragraph, delete "(collectively with Benham-Hill and Salas, the Mega Management defendants)" so the sentence reads:
The Promontory was managed by Benham-Hill on behalf of Mega Management Enterprises.
3. On page 32, third full paragraph, line 3, add the word "tort" after "applies equally to all" so the line reads as follows:
common interest privilege applies equally to all tort claims based on the protected
4. On page 33, line 2, the words "for breach of contract or" is to be inserted between the words "liable" and "as" so that the line reads:
to establish that Jackson and Dean are liable for breach of contract or as coconspirators for the statements made by
5. On page 43, the first full sentence, after the words "More importantly," add the words "as to the motions by Scott and Finlay," so the sentence reads:
More importantly, as to the motions by Scott and Finlay, the Goyets did not make a good faith showing by affidavit that a continuance was needed to obtain facts essential to justify opposition.
6. On page 47, the last sentence, beginning "Finally, the Goyets" is deleted and the following sentence is inserted in its place:
Finally, because the statements are of such a nature that they could be found to have a "natural tendency to injure," JP is not required to establish special damages to avoid summary judgment on his defamation claim.
7. On page 52, third full paragraph, after the first sentence ending "those defendants," add the following sentence:
The issue of Scotts and Finlays entitlement to recover attorney fees is reserved for determination by the trial court after the Goyets remaining claims against those defendants are resolved.
8. On page 53, the third sentence of the Disposition is modified to add "Proulx" as a party entitled to recover costs on appeal, so the sentence reads:
The Mega Management defendants, Jackson, Dean and Proulx are entitled to recover their appellate costs from the Goyets.
The petitions for rehearing are denied.
Appellants request to certify the opinion for publication is denied.
There is no change in the judgment.