Opinion
NOT TO BE PUBLISHED
Appeal from a judgment of the Superior Court of Orange County, Gregory H. Lewis, Judge., Super. Ct. No. 06CC05487.
Swedelson & Gottlieb, David C. Swedelson and Joan E. Lewis-Heard for Plaintiff, Cross-defendant and Appellant.
William S. Hulsey for Defendant, Cross-complainant and Respondent.
IKOLA, J.
Plaintiff Palmia Master Association (the Association) appeals from an order denying its anti-SLAPP motion to strike a cross-complaint filed by defendant Helene Rufran. The Association contends the cross-complaint arose out of its disciplinary hearing against Rufran, which it claims is protected free speech or petitioning activity. While the cross-complaint does arise from the disciplinary hearing, the hearing is not protected activity. It does not fall within any of the categories of protected activity specified by the anti-SLAPP statute. (Code Civ. Proc., § 425.16.) It is not an “official proceeding authorized by law” and does not involve an “issue of public interest.” (§ 425.16, subd. (e).) Thus, the court correctly denied the motion. We affirm.
“SLAPP is an acronym for ‘strategic lawsuit against public participation.’” (Jarrow Formulas, Inc. v. La Marche (2003) 31 Cal.4th 728, 732, fn. 1.)
All further statutory references are to the Code of Civil Procedure unless otherwise stated.
FACTS
The Association is the homeowners association for Palmia, a senior citizen housing development in Mission Viejo. It is governed by a declaration of covenants, conditions, and restrictions (CC&R’s). Rufran owns a home in Palmia and is a member of the Association.
The Association filed a complaint, alleging Rufran tutored children in her home. It asserted the tutoring violated the CC&R’s and regulations barring nuisances, interfering with members’ right to quiet enjoyment of their homes, and using a home for nonresidential purposes. The Association further alleged it had conducted a disciplinary hearing, at which its board voted to fine Rufran $100 per day for the violations. It sought an injunction barring Rufran from tutoring children and directing her to pay the fine. It also sought declaratory relief.
Rufran filed a cross-complaint, alleging the Association had “commenced an invidious program of harassment” against her. Rufran asserted she is a retired teacher who tutored a few preschoolers and grade school-aged children for free, as she had done without complaint for 16 years. She alleged the Association began leveling false accusations against her and her students based on anonymous, unsubstantiated complaints. Rufran further alleged the Association sent letters falsely accusing her and her students of violating the “‘basic security of this Association,’” engaging in “criminal conduct” and “‘terrorist acts’” by playing pranks, intimidating and disrupting the other residents, and creating a nuisance.
The alleged pranks included putting mud on a neighbor’s car and leaving a rat on a neighbor’s porch.
The cross-complaint also addressed the Association’s “Star Chamber” disciplinary hearing. Rufran alleged the Association refused to mediate the dispute; failed to provide her with any written charges; offered no evidence against her, instead relying upon anonymous complaints; denied her the right to present evidence or witnesses in her favor, cross-examine any witnesses against her, or have a court reporter transcribe the hearing; expelled her and her counsel from the hearing; made baseless findings that she really lives someplace else and travels to Palmia to teach the children of 25 different families; imposed an unreasonable fine; provided no appellate review; and violated provisions of the Davis-Stirling Act governing homeowners association disciplinary hearings. (Civ. Code, § 1363, subd. (h).)
Rufran asserted three causes of action in the cross-complaint. First, in a cause of action styled “Injunctive Relief,” she sought to enjoin the Association from assessing the $100 per day fine or interfering with her tutoring. Second, defendant sought a declaration that her tutoring was consistent with a residential use of her home and not a nuisance. Third, defendant sought damages for intentional infliction of emotional distress, based on the Association’s harassing letters, “Star Chamber” disciplinary hearing, absurd findings, and unreasonable fine.
The Association filed an anti-SLAPP motion to strike the cross-complaint. The court denied the motion. It found the injunctive relief and declaratory relief causes of action “are based primarily on attacks on the procedures used by the Association in reaching its decision, not anything related to the Associations’ [sic] right of free speech and/or petition.” It did not reach whether the emotional distress cause of action arose from protected free speech activity.
DISCUSSION
The order denying the Association’s anti-SLAPP motion to strike the cross-complaint is directly appealable. (§ 425.16, subd. (i).) It is subject to our independent review. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)
We asked the parties to brief whether we have jurisdiction to hear this appeal. Rufran contends the cross-complaint falls within an exception to the general rule of immediate appealability for causes of action “brought solely in the public interest . . . .” (See § 425.17, subds. (b), (e).) The exception to immediate appealability applies only when the court denies an anti-SLAPP “on the grounds” the challenged pleading was brought solely in the public interest. (Ibid., italics added.) The court did not deny the Association’s anti-SLAPP motion on this ground, so the order is immediately appealable.
The Anti-SLAPP Statute Protects Free Speech and Petitioning Activity
The anti-SLAPP statute “‘is designed to protect citizens in the exercise of their First Amendment constitutional rights of free speech and petition. It is California’s response to the problems created by meritless lawsuits brought to harass those who have exercised these rights.’” (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 273.) It 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 or California Constitution in connection with a public issue shall be subject to a special motion to strike.” (§ 425.16, subd. (b)(1).)
A party bringing an anti-SLAPP motion bears the initial burden of establishing the challenged cause of action “is based on [its] protected free speech or petitioning activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).) The moving party does so “‘by demonstrating that the act underlying the . . . cause fits one of the categories spelled out in section 425.16, subdivision (e).’” (Id. at p. 88.)
Section 425.16, subdivision (e) sets forth four categories of protected activity. “As used in this section, ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (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; (3) 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; (4) or 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).)
If the moving party meets its initial burden, the burden shifts to the opposing party to “establish[] that there is a probability that [it] will prevail on the claim.” (§ 425.16, subd. (b)(1).) To do so, the opposing party must show “‘“that the [cause of action] is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the [opposing party] is credited.”’” (Navellier, supra, 29 Cal.4th at p. 89.)
The Disciplinary Hearing from Which the Cross-Complaint Arises is not Protected Free Speech or Petitioning Activity
The Association failed to meet its initial burden of showing the cross-complaint arises from protected activity. It contends the cross-complaint arises from the disciplinary hearing at which it fined defendant. This much is true. The cross-complaint is permeated with allegations concerning the “Star Chamber” disciplinary hearing, the complaints which precipitated the hearing, and the Association’s letters warning Rufran about the hearing. In the cross-complaint, Rufran seeks an injunction barring the Association from fining her, a declaration her tutoring complies with the CC&R’s, and damages for emotional distress caused by the harassing disciplinary process. Thus, the cross-complaint “is based on” the disciplinary hearing and related communications. (Navellier, supra, 29 Cal.4th at p. 89.)
Even so, the disciplinary hearing is not protected free speech or petitioning activity. As noted ante, four categories of protected activity are “‘spelled out in section 425.16, subdivision (e).’” (Navellier, supra, 29 Cal.4th at p. 88.) The first two categories concern statements made before or in connection with “a legislative, executive, or judicial body, or any other official proceeding authorized by law.” (§ 425.16, subds. (e)(1), (2).) The next two categories concern statements made “in connection with an issue of public interest.” (§ 425.16, subds. (e)(3), (4).) The disciplinary hearing does not fit into any of these categories of protected activity.
The disciplinary hearing is not an “official proceeding authorized by law.” (§ 425.16, subds. (e)(1), (2).) To be sure, the disciplinary hearing is subject to notice provisions set forth in the Davis-Stirling Act. (Civ. Code, § 1363, subd. (h) [requiring homeowners associations to provide notice of disciplinary hearings and any disciplinary action].) But a proceeding is not necessarily an “official proceeding authorized by law” just because it is subject to some statute. Statutes govern stop notices (Civ. Code, § 3183 et seq.), but filing a stop notice is not an official proceeding subject to the anti-SLAPP statute. (A.F. Brown Electrical Contractor, Inc. v. Rhino Electric Supply, Inc. (2006) 137 Cal.App.4th 1118, 1128-1129.) Statutes govern court-ordered execution sales (§ 699.010 et seq.), but those sales also are not official proceedings. (Blackburn v. Brady (2004) 116 Cal.App.4th 670, 676-677.)
The Association does not contend it is a “legislative, executive, or judicial body.” (§ 425.16, subd. (e)(1), (2).)
The California Supreme Court has recently provided some guidance on this issue by holding hospital peer review constitutes an official proceeding. (Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192, 199-200 (Kibler).) Though the court did not set forth any bright-line rules for determining official proceedings, it relied primarily on two considerations. First, peer review is an essential component of the state’s medical licensing scheme. (Ibid.) The Business and Professions Code does not merely govern peer review, but “incorporates the peer review process into the overall process for the licensure of California physicians.” (Id. at p. 199.) Second, “[a] hospital’s decisions resulting from peer review proceedings are subject to judicial review by administrative mandate.” (Id. at p. 200.) “[T]he 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.” (Ibid.)
(Accord Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1396 [employee grievance procedure established by the Regents of the University of California is an official proceeding because the Regents “is a constitutional entity having quasi-judicial powers”].)
Neither of the California Supreme Court’s two considerations have much weight here. Unlike peer review, homeowners association disciplinary hearings are not an integral part of any statutory scheme by which the state satisfies its own compelling interest. Whatever interest the state has in enforcing homeowners association CC&R’s is satisfied entirely by making CC&R’s equitable servitudes enforceable by the association or any of its members. (Civ. Code, § 1354.) And the Association offers no authority suggesting disciplinary hearings are subject to judicial review by administrative mandate. The Business and Professions Code expressly provides that hospital peer review decisions are reviewable by administrative mandate (Bus. & Prof. Code, § 809.8); the Davis-Stirling Act does not similarly so provide. While a homeowners association may be a “‘quasi-governmental’” entity in a colloquial sense (Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642, 651), no court has held they have “quasi-judicial” power in the technical sense required to render their decisions reviewable by administrative mandate. (See Kibler, supra, 39 Cal.4th at p. 200; see also § 1094.5.)
The disciplinary hearing also did not involve “an issue of public interest.” (§ 425.16, subds. (e)(1), (2).) “The statute does not provide a definition for ‘an issue of public interest,’ and it is doubtful an all-encompassing definition could be provided. However, the statute requires that there be some attributes of the issue which make it one of public, rather than merely private, interest.” (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132 (Weinberg).) An issue of public interest “‘may . . . include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals.’” (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 115 (Du Charme).) Even so, “a matter of public interest should be something of concern to a substantial number of people. [Citation.] Thus, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest.” (Weinberg, supra, 110 Cal.App.4th at p. 1132.) Also, “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 . . . .’” (Id. at pp. 1132-1133.)
We assume without deciding the disciplinary hearing is a “place open to the public or a public forum” (§ 425.16, subd. (e)(3)), although we note Civil Code section 1363, subdivision (h) requires the board to meet in executive session for a disciplinary hearing if requested by the member being disciplined.
The disciplinary hearing was a private controversy between the Association and Rufran. Putting aside the parties’ heated rhetoric, the Association disciplined Rufran for tutoring some preschoolers and grade schoolers who were allegedly noisy and disrespectful. This dispute does not interest the public at large. The dispute may not have even interested the Association’s membership as a whole. The disciplinary hearing addressed complaints made by only some of Rufran’s neighbors. It did not resolve any broad issues affecting other members. And although Rufran assailed the Association’s disciplinary process in her cross-complaint, she did not seek any relief that would reform the disciplinary process to benefit other members. She merely sought to continue tutoring her students without interference or being fined. Whether Rufran may do so greatly interests herself, her students, and her complaining neighbors. It does not interest “the public” in any meaningful sense. (See Weinberg, supra, 110 Cal.App.4th at pp. 1134-1136 [whether the plaintiff stole the defendant’s collectible coin is a private controversy]; see also Du Charme, supra,110 Cal.App.4th at pp. 118-119 [why labor union official was fired is not an issue of public interest].)
(See also Dyer v. Childress (2007) 147 Cal.App.4th 1273, 1280-1281 [whether the movie Reality Bites defamed plaintiff is not an issue of public interest]; Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924 [whether janitorial supervisor committed misconduct is not an issue of public interest].)
The Association misplaces its reliance upon cases involving the fundamental governance of homeowners associations. In Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, statements made at a homeowners association board meeting and in the association newsletter involved “issues of public interest” because “they 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.” (Id. at p.479.) In Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, letters from the homeowners association’s lawyer to a member involved issues of public interest because they were part of an ongoing dispute whether the homeowners association was evenhandedly enforcing its architectural guidelines. (Id. at pp.1468, 1470.) No such fundamental governance issues are raised by Rufran’s tutoring or the disciplinary hearing. Rufran does not challenge the Association’s right to hold a disciplinary hearing or seek to reform its disciplinary procedures. Damon v. Ocean Hills Journalism Club, supra, 85 Cal.App.4th 468 and Ruiz v. Harbor View Community Assn., supra, 134 Cal.App.4th 1456 do not support the proposition that a homeowners association’s every action is necessarily so weighty as to constitute an issue of public interest.
In sum, the cross-complaint does not arise out of protected activity because the disciplinary hearing is not an official proceeding authorized by law and did not involve an issue of public interest. The court correctly denied the anti-SLAPP motion.
DISPOSITION
The judgment is affirmed. Rufran shall recover her costs on appeal.
WE CONCUR: RYLAARSDAM, ACTING P. J., MOORE, J.