Opinion
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County No. BC412333, David A. Minning, Judge.
Rohde & Victoroff and Stephen F. Rohde for Plaintiffs and Appellants.
Procter, Slaughter & Reagan, Barry J. Reagan, and Gabriele M. Lashly for Defendants and Respondents Park Wilshire Homeowners Association and Jehuda Limor.
Burgee & Abramoff and John G. Burgee for Defendant and Respondent Murray Allen Morguelan.
SUZUKAWA, J.
In this housing discrimination action, plaintiffs Mary Rivera Radell and her adult daughter Nicole Radell, who are of Puerto Rican ancestry, sued their condominium association, defendant Park Wilshire Homeowners Association (Association), and fellow condominium owners, defendants Murray Allen Morguelan and Jehuda Limor, for disparate treatment on the basis of sex, race, ancestry, and national origin in violation of the California Fair Employment and Housing Act (FEHA) (Gov. Code, § 12900 et seq.) and federal Fair Housing Act of 1968 as amended by the Fair Housing Amendments Act of 1988 (FHA) (42 U.S.C. § 3601 et seq.). The Radells allege that defendants committed a series of discriminatory acts intended to diminish the presence of Puerto Rican women in their upscale condominium building, which resulted in Mary’s forced resignation from the Association’s board of directors (board) and Nicole’s constructive eviction from her home.
Because the Radells share the same last name, for the sake of clarity and convenience we will sometimes refer to them by first name with no disrespect intended.
Defendants filed special motions to strike the complaint under Code of Civil Procedure section 425.16, the anti-SLAPP statute. The trial court granted the motions on the grounds that (1) the action arose from protected speech activities in connection with a public issue or issue of public interest (§ 425.16, subd. (e)(4)), and (2) the Radells failed to demonstrate a reasonable probability that they will prevail on their claims (§ 425.16, subd. (b)(1)).
SLAPP is the acronym for Strategic Litigation Against Public Participation. All further statutory references are to the Code of Civil Procedure.
Section 425.16, subdivision (e)(4) provides: “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:... (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.”
The Radells contend on appeal that although their housing discrimination complaint involves protected speech activities, their action did not arise from those activities for purposes of section 425.16. We agree. We conclude that defendants did not satisfy their initial burden of demonstrating that the principal thrust or gravamen of the complaint was activity protected by the anti-SLAPP statute. We therefore reverse the order.
Because we reverse the order under the first prong of the statute, we need not reach the Radells’ other contention that they demonstrated a probability of prevailing on the merits of their complaint.
BACKGROUND
I. Factual Allegations
The Radells belong to a protected class of “female[s] of Puerto Rican national heritage, ancestry, and race.” They live in the Park Wilshire, a “156-unit upscale condominium building” (the building) on Wilshire Boulevard in Los Angeles. The building is operated and managed by the Association.
According to the complaint, the Radells were allegedly targeted by defendants for disparate and discriminatory treatment because they are “Hispanic females.” In January 2008, defendants set in motion a conspiracy to harass and discriminate against the Radells by publishing a false allegation that Nicole was occupying the Radells’ maid’s unit in violation of the Association’s Covenants, Conditions and Restrictions (CC&R’s). In furtherance of the conspiracy, defendants denied the Radells a confidential disciplinary hearing on the alleged CC&R violation. Instead of resolving the dispute according to the governing rules of the Association, defendants published the false allegation to the entire Association and demanded that Nicole vacate the maid’s unit and that Mary resign from the board.
The complaint attributed the unlawful conspiracy to defendant Morguelan, who “was motivated by his intent to diminish the presence of Hispanic women of Puerto Rican national origin in his expensive condo association, ” and defendant Limor, who owns multiple units and is a “‘managing agent[]’ with authority to discipline, fine, and control the actions of” the other homeowners. Morguelan and Limor were allegedly assisted in carrying out their unlawful conspiracy by building manager Julian Mayer, board member Claude Arnall, and other board members.
Throughout this litigation, the Radells have maintained that Nicole, as a cotrustee and beneficiary of the David and Mary Radell Family Trust that holds title to the Radells’ condominium and its appurtenant maid’s unit, is an owner of both units and, as an owner, is entitled to occupy the maid’s unit. The Radells also asserted that nothing in the CC&R’s prohibits an owner from occupying her own maid’s unit and, in any event, such a prohibition would be unlawful and unenforceable.
Mary and her husband David Radell have lived in the building since 1999, when they purchased their condominium, unit 1508, through the David and Mary Radell Family Trust (the trust). Mary and David are the trust’s grantors and cotrustees. Their children, Nicole and Coleman, are the trust’s cotrustees and named beneficiaries.
The Radells argue that under article 2.2.b of the CC&R’s, an owner is entitled to occupy the maid’s unit that is appurtenant to his or her condominium.
When confronted with the false allegation that Nicole was occupying the maid’s unit illegally, the Radells requested that the board comply with the governing rules by conducting a confidential disciplinary hearing concerning Nicole’s ownership status and right to occupy the maid’s unit. In an act of good faith, Nicole temporarily vacated the maid’s unit pending the hearing. Mary, however, did not resign from the board.
When Mary did not resign, the board met without her knowledge and initiated a recall election that was abruptly canceled after over 60 votes were cast. Despite the Radells’ request for a legal opinion on Nicole’s ownership rights, the board never resolved that issue, which it left open for further consideration.
In April 2008, Mary resigned from the board after coming to the conclusion that the board would retaliate against Nicole if she did not resign. Mary reached this conclusion when the board began debating whether Nicole’s access to the Association’s common areas should be revoked on the theory that she posed a threat to the building’s safety and security.
In April 2009, the Radells sued the Association, Morguelan, and Limor for housing discrimination in violation of the FEHA and FHA under a theory of disparate treatment on the basis of sex, national heritage, ancestry, and race.
II. The Special Motions to Strike
In response to the Radells’ complaint, defendants filed special motions to strike the complaint under the anti-SLAPP statute. Because we will resolve this appeal under the first prong of the statute—whether the action arose from protected speech activities in connection with a public issue or issue of public interest—we will tailor our discussion accordingly.
The Association and Limor argued in their motion that the complaint was filed primarily to chill their constitutional right of free speech. They asserted that in order to deflect attention from Nicole’s wrongful occupancy of the maid’s unit, the Radells filed this action “to chill any discussion of plaintiffs’ blatant violation of the CC&Rs.” Defendants denied impinging on Nicole’s use of the maid’s unit. They claimed that “[i]n reality, defendants’ statements and conduct were limited to issues and discussions related to Maria Radell’s service on the Board and the gym incident. What transpired during and after the meetings is ‘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.’ Code Civ. Proc. § 425.16(e). Hence, they arise out of protected political speech.”
Morguelan similarly argued that the complaint did not arise from a dispute regarding the “governing documents, ” but from a question that he had posed at a homeowner’s meeting, which “is clearly an exercise of First Amendment rights.” Morguelan argued that any additional conduct attributed to him “would also constitute statements made concerning matters of public interest affecting the Park Wilshire homeowners.”
A. The Radells’ Opposition
In opposition to the special motions to strike, the Radells argued that the gravamen of the complaint was defendants’ discriminatory conduct in violation of state and federal law, and that the anti-SLAPP statute does not apply to discriminatory conduct. (Citing Department of Fair Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 154 Cal.App.4th 1273 (1105 Alta Loma Road) [because the gravamen of the plaintiff’s action was the landlord’s alleged discrimination against a disabled tenant, the anti-SLAPP statute did not apply].)
The Radells explained that “[t]he gravamen of this case is that defendants conspired and engaged in a pattern and practice of prejudiced disparate actions to deny housing rights to two Puerto Rican Women. It was not defendants[’] protected speech but their discriminatory actions and disparate treatment that harmed plaintiffs. Repeated pressure by disparate treatment was brought against plaintiffs to force them under duress for Nicole to abandon her residential use of her own property, and for Maria Radell to forsake her homeowner right to serve as an elected representative on the board of the [Association]. Defendants’ actions were obviously coordinated to harass plaintiff[s] and to intimidate them into lessening their civil rights.... Plaintiffs have never disputed or objected to the rights of petitioners to petition for recall, but plaintiffs have disputed the unilateral cancellation of that recall, when it did not succeed in defendants’ goal of intimidating Maria into resignation. [¶] It is plaintiffs who endured the recall, and it is defendants who obstructed and finally improperly cancelled the recall after votes had been cast. The accusations of defendants that Nicole Radell was in violation of the CC&R’s and that Maria Radell knew it and sat silently by are legally an[d] factually false accusations: Legally, the CC&R’s permit owners to [use] their maid’s units as housing accommodations for themselves and for maids, etc. as if the unit is inside their condominium units; Factually Maria Radell believed that her family could use their maid’s unit as a housing accommodation for themselves, so long as it was not rented to any third party and her silence at a board meeting was thus not inculpating.”
B. The Allegations and Evidence Before the Trial Court
The allegations and evidence before the trial court concerning the special motions to strike included the following.
The alleged conspiracy to raise a false allegation concerning Nicole’s occupancy of the maid’s unit was set in motion at a January 22, 2008 board meeting. During a question and answer session, defendants successfully created the false impression that only maids or domestic servants may live in the maid’s units, and that the occupancy by any other person constitutes a violation of the CC&R’s.
The record contains conflicting dates for the meeting. For the sake of convenience, we will use the January 22 date in this opinion.
In furtherance of the conspiracy, Morguelan inquired at the meeting if he could purchase a maid’s unit and rent it to his nephew. There were no maid’s units available for sale at the time, and Morguelan admitted that he had posed the question for a friend who was concerned that a maid’s unit was being used in violation of the CC&R’s.
In response to Morguelan’s question, Mayer replied that such use would violate the rental restrictions contained in article 2.2.d of the CC&R’s. Mayer read the provision out loud at the meeting: “The Owner of a Maid’s Unit may utilize the Maid’s Unit for the purpose of providing accommodations for such Owner’s domestic servants, nannies, maids, chauffeurs or butlers, or for storage. No Owner may rent or provide use of his or her Maid’s Unit to any other person.”
Arnall then inquired if any of the maid’s units were currently occupied by someone other than a maid or domestic servant. When Mayer replied, “‘not to my knowledge, ’” Mary remained silent and did not disclose that Nicole, who was not a maid, was living in the Radells’ maid’s unit.
On January 24, 2008, Morguelan sent the board a letter requesting Mary’s resignation based on her silence at the January 22 meeting. The letter stated: “Due to an unfortunate circumstance, witnessed by the homeowners on Tuesday evening, I would request that Maria Radell resign from the Board. A direct question was asked to the board and Julian Mayer, Whether or not anyone was residing in any maid’s unit other than the Maids, etc. Julian replied not to my knowledge and Maria Radell remained Silent. By doing so she compromised the integrity of the board by Knowingly not responding in the affirmative and for that reason, she should Resign voluntarily. The Radells are in violation of the CC&R’s. If Maria Radell does not resign voluntarily, than [sic] a special election will be Called. [¶] Sincerely, [¶] Murray Morguelan....”
Mary Radell is sometimes referred to in the record as Maria Radell.
On January 26, 2008, the entire Association received an anonymous letter stating that Nicole was occupying the maid’s unit in violation of the CC&R’s and that because Mary had compromised the integrity of the board by remaining silent at the January 22 board meeting, she must resign or face a recall election. The letter stated: “During the open question and answer session at Tuesday evening’s Homeowner Association meeting, a direct question was asked to the Board and our General Manager, Julian Mayer — whether or not anyone was residing in any maid[’]s unit in the building other than maids or household help. Julian replied ‘not to my knowledge’ and Maria Radell, a board member, remained silent despite her daughter occupying their maid’s unit which is in violation of the CC&Rs. Thus, she compromised the integrity of the Board by knowingly not responding in the affirmative and for that reason she must resign. The quality of our Board is diminished by her behavior and the Board’s actions will always be in question. We need to take immediate action. If Maria Radell does not resign voluntarily, a special election will be held to recall her. [¶] Sincerely, [¶] Homeowners present at the meeting, January 22, 2008.”
On January 26, 2008, the board held a special meeting to consider the allegations against Mary. Mary requested that the board take no action until she returned from a two-week vacation abroad. Mary also requested that the board obtain a legal opinion on the propriety of Nicole’s occupancy of the maid’s unit. According to the minutes, the board decided that upon Mary’s return, she would be allowed to present evidence, including a legal opinion, on the propriety of Nicole’s use of the maid’s unit. According to Mary, she “was assured that the Board would authorize an independent legal opinion regarding usage of maid’s units, and that no board action would be taken until after I returned from a two week trip. I confirmed this in my email to Vice President James Khodabakhsh, ” who replied that “no action will be taken until your return.”
On January 29, 2008, while Mary was out of the country, the board held an “unnoticed illegal board Meeting... at Director Altman’s hospital bedside.... The three Board members in bad faith breached their January 26, 2008 agreements that Maria had relied on and officially requested Maria Radell’s resignation.” In a letter dated January 29, the board requested that Nicole vacate the maid’s unit and that Mary resign from the board within three days.
In response to the January 29 letter, the Radells’ attorney objected that the board had breached its promise to take no action during Mary’s absence.
On February 19, 2008, the board secretly convened without Mary’s knowledge to select a replacement for Altman, who had resigned from the board. When the board convened later that day for Mary’s confidential disciplinary hearing, Arnall was present as the board’s new president. Mary objected to Arnall’s secret appointment and sought to have him excluded from her confidential hearing. Mary refused to resign from the board and was removed from her position as secretary. The board did not resolve the ownership issue.
The board scheduled a March 12, 2008 meeting of the Association to determine whether Mary should be recalled from her position on the board. The board distributed recall ballots that could be returned by mail. In an effort to boost attendance at the March 12 meeting, Mary sought to post notices of the meeting in the common areas, but was not allowed to do so. Only days before the March 12 meeting, defendants “suddenly cancelled” the recall petition after “66 votes already had been cast” by mail. The Radells argue that the cancellation of the recall petition was “an improper nullification of the votes that had already been cast.”
On April 14, 2008, Arnall and Mayer called an executive session of the board to discuss a verbal altercation between Nicole and Morguelan that had occurred at the gym on April 12 (gym incident). In an email to the board concerning the gym incident, Mayer stated that “building safety and security has been compromised as you will also see because Ms. Radell has been given a security key fob for common area access. As she is a non-resident, this is against the Rules of the Association....”
After reading Mayer’s assertion that Nicole was a “non-resident” whose access to the common areas had compromised the building’s safety and security, Mary resigned from the board. Mary believed that unless she resigned, the board would retaliate against Nicole at the disciplinary hearing concerning the gym incident.
Prior to that hearing, Mary provided the Association’s attorney with the trust documents that would establish Nicole’s ownership status. In her letter to the Association’s attorney, Mary stated, “As you are the Attorney for the Association, I assume your word on this matter will satisfy the Board and should resolve the issue of Nicole’s ownership status. Following your inspection, I would respectfully request you to submit a signed legal opinion letter concerning my daughter’s ownership rights, in advance of the hearing on April 29th, so the Board will be fully informed of the facts. Kindly let me know if you think this will be a problem. [¶] As my daughter is an owner, the issue of my daughter’s residency in this building is entirely irrelevant to this hearing and does not impact her use of the common areas[, ]... though I will happily provide all the required legal documents to show that Unit 1508 continues to be her place of legal residence. [¶] Although the Board has never engaged in such onerous actions regarding anyone’s ownership in the past, they have continued to attack my daughter’s rights of ownership without ever requesting the documents to clearly resolve the issue. After all this time and all this harassment from the Board, you are finally asking for the information that would have been produced, had the board not denied me the hearing I had requested months ago to provide evidence in response to prejudiced unsubstantiated attacks on my family’s character, ownership and legal residency.”
On May 5, 2008, the Radells were informed of the board’s determination that although Nicole had violated the CC&R’s during the gym incident, no sanctions would be imposed. As to Nicole’s disputed status as an owner and resident of the building, the Radells were informed that “the board was unable to reach a decision on whether Nicole is or is not a bona fide owner of the unit and/or resident of the building. The evidence was inconclusive. However, in light [of] the other decisions explained above, it was felt the issue is moot at least for now. In the unlikely event future conduct by Nicole makes it relevant to consider the issue again, no waiver is intended by this letter and the evidence will be judged on such future date on its own merits.”
C. The Trial Court’s Ruling
With regard to the first prong of section 425.16, the trial court concluded that because the complaint arose from defendants’ protected speech activity, the complaint was subject to a special motion to strike.
The court stated in relevant part as follows: “[T]he principal thrust or gravamen of Plaintiff’s Complaint is that Defendants ‘conspired’ against Plaintiffs by asking ‘prearranged questions’ during an open session of a Board of Directors’ meeting regarding the acceptable use of the so-called ‘maid’s units’ that were available on the premises. [Record citation omitted.] When asked if anyone was residing in any maid’s unit other than maids or household help, Plaintiff Maria Radell remained silent, despite the fact that her daughter was staying in one [of] the maid’s units. This caused Defendant Morguelan to allegedly write letters to the Board and to the other homeowners, asking for Maria’s resignation from the Board or for her removal, on the ground that Plaintiffs were violating the CC&Rs by Nicole Radell’s occupation of a maid’s unit. [Record citation omitted.] Defendant Limor also allegedly demanded Maria’s resignation [record citation omitted], and a petition was sent to the Board, requesting a recall vote for Maria. [Record citation omitted.]
“Plaintiffs claim that all of this activity was a pretext to discriminate and to immediately demand Nicole’s abandonment of the maid’s unit and Maria’s resignation. [Record citation omitted.] Thus, there can be no doubt that Plaintiffs’ causes of action ‘arise from’ Defendants’ speech activity. Indeed, Plaintiffs even admit in their Opposition that this lawsuit ‘was triggered by defendants’ conduct whereby they unlawfully discriminated against Plaintiffs by a series of letters, threats, call for a membership recall vote, cancellation of the recall vote after the ballots had been received and shredding the ballots, and further accusations.’ [Record citation omitted.] All of these activities are clearly speech-related. It makes no difference that Plaintiffs have couched their causes of action as discrimination claims — as long as the gravamen of Plaintiffs’ claims arise from protected speech activity, the anti-SLAPP statute is triggered. That is exactly the case here.”
DISCUSSION
I. Standard of Review
In deciding a special motion to strike, the trial court must engage in a two-step process. “First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant’s burden is to demonstrate that the act or acts of which the plaintiff complains were taken ‘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, ’ as defined in the statute. [Citation.] If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’” (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon).) We review the trial court’s ruling independently under the de novo standard of review. (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 929.)
In order for the anti-SLAPP statute to apply, “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.] In the anti-SLAPP context, the 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 (City of Cotati).) “[I]t is the principal thrust or gravamen of the plaintiff’s cause of action that determines whether the anti-SLAPP statute applies.” (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.)
“As courts applying the anti-SLAPP statute have recognized, the ‘arising from’ requirement is not always easily met.” (Equilon, supra, 29 Cal.4th at p. 66.) “[T]he mere fact an action was filed after protected activity took place does not mean it arose from that activity.” (Ibid.) Similarly, the arising from requirement is not necessarily met simply because the cause of action was arguably triggered by protected activity. (City of Cotati, supra, 29 Cal.4th at p. 78.)
II. Housing Discrimination Is Not a Protected Activity
Under the FHA, it is unlawful to “make unavailable or deny[] a dwelling to any person because of race, color, religion, sex, familial status, or national origin, ” and to “discriminate against any person in the terms, conditions, or privileges of sale or rental of a dwelling, or in the provision of services or facilities in connection therewith, because of race, color, religion, sex, familial status, or national origin.” (42 U.S.C. § 3604(a), (b).)
Similarly, under the FEHA, it is unlawful “[f]or the owner of any housing accommodation to discriminate against or harass any person because of the race, color, religion, sex, sexual orientation, marital status, national origin, ancestry, familial status, source of income, or disability of that person.” (Gov. Code, § 12955, subd. (a).) The protections afforded by the FEHA are even greater than under the FHA. (See Auburn Woods I Homeowners Assn. v. Fair Employment & Housing Com. (2004) 121 Cal.App.4th 1578, 1591 (Auburn Woods) [upheld the Department of Fair Employment and Housing’s administrative ruling that a homeowners association had violated the FEHA by denying the request of homeowners with mental disabilities to keep a pet dog as a reasonable accommodation for their disabilities].)
“‘Discrimination’... includes any other denial or withholding of housing accommodations....” (Gov. Code, § 12927, subd. (c)(1).) “‘Housing accommodation’ means any building, structure, or portion thereof that is occupied as, or intended for occupancy as, a residence by one or more families....” (Id. at § 12927, subd. (d).) “‘Owner’ includes the lessee, sublessee, assignee, managing agent, real estate broker or salesperson, or any person having any legal or equitable right of ownership or possession or the right to rent or lease housing accommodations, and includes the state and any of its political subdivisions and any agency thereof.” (Id. at § 12927, subd. (e).)
Disability discrimination under the FEHA includes the “refusal to make reasonable accommodations in rules, policies, practices, or services when these accommodations may be necessary to afford a disabled person equal opportunity to use and enjoy a dwelling.” (Gov. Code, § 12927, subd. (c)(1).) In Auburn Woods, supra, 121 Cal.App.4th 1578, a married couple who suffered from mental disabilities asked their homeowners association for permission to keep a dog in their condominium as a reasonable accommodation for their disabilities. After the homeowners association denied their request to keep the dog, the homeowners filed an administrative complaint with the DFEH. The homeowners prevailed at the administrative level, lost in superior court, but ultimately won on appeal.
A. In Resolving Housing Discrimination Cases, Courts Often Look to Employment Discrimination Cases
The complaint alleges that defendants “conspired” to violate the FEHA and FHA by denying the Radells the “lawful use of residential property and shared common areas, by weaving a web of coordinated actions.” It states that defendants “engaged in a pattern or practice of discrimination through disparate treatment on the basis of race, ancestry and national origin, ” by “willfully and negligently” denying them the “use of their maid’s unit... because of their race, national origin, sex, and ancestry.”
When evaluating a housing discrimination claim under the FEHA, courts often look to “cases of employment discrimination.” (Auburn Woods, supra, 121 Cal.App.4th at p. 1591.) In the employment discrimination context, disparate treatment “occurs ‘when the employer “treats some people less favorably than others because of their race, color, ... or national origin.” (Teamsters v. United States (1977) 431 U.S. 324, 335 336, fn. 15.)’ (Heard v. Lockheed Missiles & Space Co. [(1996)] 44 Cal.App.4th [1735, ] 1748 (Heard).)” (Frank v. County of Los Angeles (2007) 149 Cal.App.4th 805, 822 (Frank).)
The Radells contend that because they are Hispanic females, they were targeted by defendants for less favorable treatment than other homeowners. They claim that in order to reduce the presence of Hispanic women in the building, defendants published false allegations against them and denied them an opportunity to refute the allegations at a confidential disciplinary hearing, in violation of the governing rules.
The Radells argue that in light of the shifting allocationsof the burden of proof in McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792 (McDonnell Douglas), they have stated a prima facie case of housing discrimination against defendants. They argue that under the McDonnell Douglas framework, they have demonstrated a prima facie case of housing discrimination “by showing that Nicole and Mary were both Hispanic women; that the procedures used to constructively evict Nicole were contrary to lawful and established policy and practice, because there was no prior disciplinary hearing to determine whether any violation existed and because Respondents were enforcing an illegal restrictive covenant. At the prima facie stage of this case, the Radells need not show evidence that discrimination was racially motivated, only that Respondents’ actions taken had the effect of discriminating against a member of a protected class. A departure from the sequence of normal procedures is itself evidence that gives rise to inferences of racially discriminatory motivations due to the nature and timing of Respondents’ actions.”
When we examine the Radells’ complaint in the context of the McDonnell Douglas evidentiary framework, it is clear that the gravamen of their complaint is defendants’ discriminatory conduct rather than defendants’ protected speech activities. Although the evidence that will be required at trial to prove the discriminatory conduct—the false accusations, the denial of a confidential disciplinary hearing, the secret board meetings, the canceled recall election—involves protected speech or petitioning activities, there is a clear “distinction between (1) speech or petitioning activity that serves solely as evidence in proving liability—which is not subject to the anti-SLAPP statute—and (2) speech or petitioning activity that is the basis of liability—to which the anti-SLAPP statute applies.” (Graffiti Protective Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th 1207, 1220.)
Morguelan contends that he is being sued for asking a question at a board meeting and expressing his opinion with respect to Mary’s position on the board and Nicole’s use of the maid’s unit, all protected activity. We disagree. As discussed, the Radells alleged that Morguelan conspired with the other defendants to deny them their rights as condominium owners through a pattern of discrimination and disparate treatment based on race. They averred that at the January 23, 2008 board meeting, he asked “a set of prearranged questions designed to set up the Plaintiffs, Maria Radell and Nicole Radell[, ] for a bogus claim that they were violating the ‘maid’s unit’ provisions of the HOA CC&R’s that was later used in four separate pieces of communications coordinated by the Defendants.” This ultimately led to the Association’s January 29 letter that sought Mary’s resignation from the board and Nicole’s removal from her unit. The Radells accused Morguelan of breaching the CC&R’s by inviting a non-board member to a confidential disciplinary hearing of the board to discuss the request for Mary’s resignation from the board. This allegedly resulted in a violation of Mary’s right to privacy and a denial of her rights as an owner in a common interest development. The Radells complain that Morguelan’s actions have played a role in denying them an opportunity to defend against the Association’s allegations. They assert that this constitutes “disparate treatment because all other homeowners accused of a CC&R violation have been afforded a disciplinary hearing, ” as required by the CC&R’s. The Radells further alleged that “Morguelan was motivated by his intent to diminish the presence of Hispanic women of Puerto Rican national origin in his expensive condo association.” We conclude that the gravamen of the Radells’ complaint against Morguelan is his discriminatory conduct.
For purposes of determining whether Morguelan’s conduct constitutes protected activity, we must accept as true the facts pled by the Radells. (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1267, fn. 2 [although defendant cited facts purporting to show the allegations of the complaint are false, “we accept as true for purposes of our analysis the facts averred by [the plaintiff]”].)
We express no opinion on whether the complaint is adequately pled to survive a demurrer.
Morguelan argues that the Radells presented no evidence to support their allegation of housing discrimination. Thus, he urges, the court was justified in striking their complaint. Again, we disagree. “These merits based arguments have no place in our threshold analysis of whether plaintiffs’ causes of action arise from protected activity.” (Freeman v. Schack (2007) 154 Cal.App.4th 719, 733.)
B. Other Courts Have Refused to Apply the Anti-SLAPP Statute to Housing Discrimination Complaints
In 1105 Alta Loma Road, supra, 154 Cal.App.4th 1273, Division Seven of this district refused to apply the anti-SLAPP statute to a complaint for housing discrimination. The Department of Fair Employment and Housing (DFEH) had filed the complaint on behalf of a tenant who suffered from a disability. The dispute arose when the landlord, in accordance with municipal rent control regulations, issued a notice of intention to remove the apartment building from the rental market. Upon receiving the notice, the tenant requested an extension of her tenancy on the ground that she suffered from a disability. After finding the tenant’s evidence insufficient to support an extension, the landlord filed an unlawful detainer action. The tenant filed a bankruptcy petition, which resulted in an automatic stay. Upon expiration of the stay, the landlord refiled the unlawful detainer action and secured a writ of possession that resulted in the tenant’s eviction.
The DFEH then sued the landlord for disability discrimination on behalf of the tenant. The landlord filed a special motion to strike the portions of the complaint that were based on protected communications made in connection with official proceedings and the unlawful detainer action. The trial court denied the motion on the ground that “the gravamen of the complaint was for disability discrimination.” (1105 Alta Loma Road, supra, 154 Cal.App.4th at p. 1281.) The appellate court affirmed, stating that the landlord had failed to meet its threshold burden of showing that the acts alleged in the complaint were in furtherance of its right of petition or free speech. (Id. at p. 1284.)
In reaching this decision, the appellate court distinguished between the landlord’s acts and communications in furtherance of the unlawful detainer action, which constituted protected petitioning or free speech activity, and the landlord’s alleged failure to accommodate the tenant’s disability, which was not a protected activity. (1105 Alta Loma Road, supra, 154 Cal.App.4th at pp. 1284-1285.) The court stated: “Contrary to Alta Loma’s argument, the communications and the actual eviction itself were not the acts attacked in DFEH's complaint. Instead, the allegations of wrongdoing in DFEH’s complaint arose from Alta Loma’s alleged acts of failing to accommodate Mangine’s disability. The letters, email and filing of unlawful detainer actions constituted DFEH’s evidence of Alta Loma’s alleged disability discrimination.” (Ibid.)
The court differentiated between using evidence of protected speech activity to prove a claim of disability discrimination, which does not trigger a violation of the anti-SLAPP statute, and filing a suit based on protected speech activity, which is a violation of the statute. The court pointed out that although the plaintiff would rely on evidence of protected speech activity to prove the disability discrimination action, filing the action did not violate the anti-SLAPP statute: “This suit might have been ‘triggered by’ Alta Loma’s filing, serving and processing the paperwork necessary to remove its residential units from the rental market in accordance with applicable laws. However, it is not true Alta Loma was sued because it filed these notices in the official municipal and state statutory removal process, or because it communicated with Mangine in connection with the process, or even because it filed the unlawful detainer actions against her.” (1105 Alta Loma Road, supra, 154 Cal.App.4th at pp. 1287-1288.)
In reaching this conclusion, the appellate court relied on Santa Monica Rent Control Bd. v. Pearl Street, LLC (2003) 109 Cal.App.4th 1308 (Pearl Street), in which Division Three of this district refused to apply the anti-SLAPP statute in a rent control action. In Pearl Street, a municipal rent control board (board) filed a complaint seeking a judicial determination of the maximum allowable rents that could be charged for the defendants’ rent-controlled units. In their special motion to strike the board’s complaint, the defendants asserted that the complaint was designed to chill the exercise of their right to raise rents. In reversing the trial court’s order granting the special motion to strike, the Pearl Street court stated, “A cause of action may be ‘triggered by protected activity’ without necessarily arising from such protected activity. [Citation.]” (Id. at p. 1318.) The defendants were not sued for filing rent increase applications; they were sued “to compel their compliance with the provisions of the rent control law.” (Ibid.) “Thus, while this suit may have been ‘triggered by’ defendants’ submission of such documents to the Board, it is not true that this suit is based on the filing of such papers. Rather, the suit is based on activity that preceded the filing of the papers. This suit is based on the Board’s claim that defendants are charging an illegal rent for units A and C. Not surprisingly, defendants have not presented any authority for the proposition that their conduct in charging illegal rent is an act in furtherance of their rights of petition or free speech. If we were to accept defendants’ argument, then they could preclude any judicial review of their violation of the rent control law, no matter how egregious, by simply filing a SLAPP motion in response to any Board complaint. We are confident that the Legislature intended no such application of this statute.” (Ibid.)
We applied the same distinction in Jespersen v. Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, in which we held that a claim for legal malpractice was not subject to a special motion to strike, and in Benasra v. Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4th 1179, in which we held that a claim for attorney breach of duty of loyalty was not subject to a special motion to strike. As we explained in Jespersen, “a moving defendant’s burden to show a ‘“cause of action... arising from”’ is not met simply by showing that the label of the lawsuit appears to involve the rights of free speech or petition; he or she must demonstrate that the substance of the plaintiff’s cause of action was an act in furtherance of the right of petition or free speech. ([City of Cotati, supra, 29 Cal.4th] at p. 78.)” (Jespersen, supra, 114 Cal.App.4th at p. 630.) “[T]he mere fact an action was filed after protected activity took place does not mean it arose from that activity.” (Equilon, supra, 29 Cal.4th at p. 66; City of Cotati, supra, 29 Cal.4th at p. 78.)
C. This Housing Discrimination Action Does Not Arise From Protected Activity
As in Pearl Street and 1105 Alta Loma Road, defendants in this case are not being sued for the exercise of protected rights. Defendants are being sued for discriminating against the Radells on the basis of their sex, race, ancestry, and national origin in violation of the FEHA and FHA. There is no constitutional right to engage in such conduct.
Under the first prong of the anti-SLAPP statute, the critical issue is whether the Radells’ claims are based on acts in furtherance of defendants’ right of petition or free speech. (City of Cotati, supra, 29 Cal.4th at p. 78; Navellier v. Sletten (2002) 29 Cal.4th 82, 92 [the “anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning”].) We conclude that although the complaint might have been triggered by defendants’ protected activity, it is not based on such activity. The complaint is based on the Radells’ claim that defendants discriminated against them because they are Hispanic females, which is not a protected activity.
This case is analogous to 1105 Alta Loma Road, in which the plaintiff’s disability discrimination action “might have been ‘triggered by’ [the landlord’s] filing, serving and processing the paperwork necessary to remove its residential units from the rental market in accordance with applicable laws, ” but the landlord was not sued for engaging in protected activity. (154 Cal.App.4th at pp. 1287-1288.) Just as the defendant in 1105 Alta Loma Road had no right to engage in disability discrimination, the defendants in this action had no right to engage in sex or race-based discrimination. The gravamen of the complaint is that the Radells were targeted as members of a protected class for disparate acts intended to drive Mary off the board and Nicole out of her home. Because such conduct is not constitutionally protected, the Radells’ complaint does not arise from defendants’ protected free speech or petitioning activities.
Since defendants did not establish that their alleged actions were protected activities within the meaning of section 425.16, the trial court erred in granting their special motions to strike and in awarding them attorney fees and costs as the prevailing defendants.
The Radells seek attorney fees on appeal under subdivision (c)(1) of section 425.16, which applies “[i]f the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay.” The fact that the motions were granted is sufficient to show that the motions were not frivolous. The request for fees is therefore denied.
DISPOSITION
The order is reversed. The Radells shall recover their costs on appeal.
We concur: WILLHITE, Acting P.J.MANELLA, J.
Section 425.16, subdivision (b)(1) 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.”
In 2002, the Radells purchased a maid’s unit, unit 105, through the trust. Since that time, Nicole occupied the maid’s unit as her spare bedroom and sitting room, and also used its assigned parking space. From 2004 to 2008, Nicole tendered her personal checks to the Association for a portion of the trust’s homeowner’s dues, including the portion attributable to the maid’s unit and its parking space.
The first paragraph (article 2.2.a) states that the building has six maid’s units with assigned parking spaces. Each maid’s unit will be deemed appurtenant to the condominium to which it is assigned. Once a maid’s unit is assigned to a condominium, that condominium will enjoy the “exclusive right to use” the maid’s unit and its assigned parking space “for the purposes hereafter provided.”
The second paragraph (article 2.2.b) provides that a maid’s unit may either be sold with the condominium to which it is assigned, or separately conveyed to another condominium owner. Upon the sale of a condominium with an assigned maid’s unit, the maid’s unit and its assigned parking space will automatically pass with title to the condominium regardless of whether the maid’s unit is mentioned in the deed to the condominium. Although a maid’s unit does not convey any additional voting rights to the owner of the condominium to which it is assigned, “the rights, duties and liabilities of an Owner who has the exclusive right to the use of a Maid’s Unit shall be the same as if such Maid’s Unit were physically situated within, and being a part of, the Unit to which the Maid’s Unit is appurtenant.” The assessments and charges for a maid’s unit shall be made against the condominium to which it is assigned and its owner.
The third paragraph (article 2.2.c) prohibits the separate conveyance of the parking space assigned to each maid’s unit. The right to the exclusive use of that parking space shall automatically pass with title to the maid’s unit regardless of whether it is described in the deed or other instrument conveying the maid’s unit.
The final paragraph (article 2.2.d) provides: “The Owner of a Maid’s Unit may utilize the Maid’s Unit for the purpose of providing accommodations for such Owner’s domestic servants, nannies, maids, chauffeurs or butlers, or for storage. No Owner may rent or provide use of his or her Maid’s Unit to any other person.”