What is SLAPP?

It stands for Strategic Lawsuits Against Public Participation. The legislature enacted the anti-SLAPP statute in 1992 in response to large land developers filing a lawsuit against environmental activists or a neighborhood association intended to chill the defendants’ continued political or legal opposition to the developer’s plans. SLAPP suits were intended to deplete the defendants’ energy and drain his or her resources. The legislature sought to prevent SLAPPs by ending them early and without great cost to the SLAPP target. In Code of Civil Procedure §425.16, the legislature stated:

There has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for redress of grievances. The legislature finds and declares that it is in the public interest to encourage continued participation in matters of public significance, and this participation should not be chilled through abuse of the judicial process.

This means that if you sue someone, and he or she claims that the lawsuit is an effort to “chill” their exercise of constitutional rights of freedom of speech, the person can bring a special motion to have the lawsuit dismissed. They will win unless the court determines that there is a probability that the association will win. Thus, any litigation effort designed to chill the exercise of protected speech or petitioning activity in connection with a public issue is subject to a special motion to strike by the defendant SLAPP target.

How does a SLAPP suit work?

It starts with a plaintiff suing a target SLAPP defendant. The defendant then brings a SLAPP motion; the defendant has the burden of showing that the challenged acts “arise from” acts in furtherance of his or her constitutional speech or petitioning rights in connection with a public issue. The focus is on the defendant’s actions. If this is proven, then the burden of proof shifts to the plaintiff to demonstrate a “probability” of prevailing. The court then must balance the SLAPP defendant’s rights against the plaintiff’s rights. If the defendant SLAPP target wins, he or she is awarded attorney fees.

How do SLAPPs relate to HOAs?

Recent court decisions have dealt with SLAPPs in the following contexts:

  • A homeowner at an annual meeting to elect directors accused the president (who was running again) of stealing from the HOA treasury;
  • A lawsuit over disclosure of a registered sex offender’s residence;
  • Rent stabilization or rent control;
  • Comments in a newsletter;
  • A letter to homeowners from a board explaining litigation;
  • Collection and targeting a homeowner;
  • Denial by a board of a homeowner’s request to remodel a home and letters from the HOA’s attorney;
  • A dispute over architectural guidelines and letters to explain them.

These cases usually involve a defamation claim; so before an examination of the cases is done, a definition of defamation will be examined. Defamation has been defined as a statement (either made orally or in written form) to someone other than the plaintiff (i.e. a group at an HOA board meeting), who understood that the statements were about the plaintiff; that because of the facts and circumstances known to the listener/reader of the statement(s), they intended to injure the plaintiff in his or her occupation or to expose him or her to hatred, contempt, ridicule, or shame, or to discourage others from associating or dealing with him or her; that the statement was false and that the plaintiff suffered harm as a result of the statement.

Let’s examine some cases to show how this works

Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468

FACTS: Damon, a former manager of a 3000 member HOA, sued for defamation against several HOA members, 2 members of the board of directors and a private journalism club that published a newsletter of the HOA.

COMPLAINT: Various homeowner members were displeased with Damon’s management style, employee relations (there were 60 HOA employees), maintenance activities and contractor selection. Disgruntled homeowners expressed their views in articles, editorials and letters to the editor in the Village Voice (the HOA newsletter). The Court described the dispute as a “war zone with verbal salvos being lobbed back and forth” reflecting feelings of “hate and discontent.” Statements were made in open board meetings and in the HOA newsletter that were critical of Damon.

COURT RULING: The two factions where the alleged defamatory statements were made—at Board meetings and in the newsletter—were open to the public and constituted “public forums.” Because the statements concerned the manner in which a large residential community would be governed, they concerned issues of public interest.

Board meetings were a public forum defined as a place that is open to the public where information is freely exchanged. The board meetings were televised and open to all interested parties. The board meeting served a similar function similar to that of a governmental body. A homeowner association board is in effect a quasi-governmental entity paralleling in almost every case the powers, duties and responsibilities of a municipal government.

The newsletter was also a public forum as its purpose was to communicate items of interest and/or concern to residents.

The fundamental purpose underlying the anti-SLAPP statute was to protect against lawsuits brought primarily to chill the valid exercise of constitutional rights.

The defendant must prove the statements were made in a public forum and were of public interest. The Court granted the anti-SLAPP motion and stated “the defamation action certainly had the potential for punishing the defendants for exercising their First Amendment rights, thus serving to “chill” the exercise of their rights and to deter them from speaking freely on topics of public importance.”

LESSON: Comments made in board meetings and in a newsletter to an HOA of 3000 will be SLAPPed if a defamation lawsuit is initiated. Be careful.

Ruiz v. Harbor View Community Association (2005) 134 Cal.App.4th 1456

FACTS: A homeowner sued his association (523 lots) for libel stemming from denial of his plans to rebuild his house. Ruiz claimed that two letters written by the HOA’s attorney were libelous. This is an excerpt from the alleged libelous letter:

Initially, let me tell you how reprehensible I find it that you, as an attorney, and a member of the State Bar of California, while attempting to conceal your superior legal knowledge and education as an attorney, undertook to negotiate, monitor, observe, harangue, cajole and intimidate laypersons (the directorship and Architectural Committee of the Harbor View Community Association) who you knew had no knowledge of your superior skill and knowledge as an attorney and member of the State Bar. Your only apparent defense to this reprehensible conduct is recited by you in your letter of July 2, 2003 to the effect that, when asked by the laypersons involved if you were an attorney, you refused to directly answer the query and asked if being a lawyer would be held against you. Such conduct by a member of the Bar is simply unconscionable. State law requires an attorney to be truthful – and this is especially the case when he or she is dealing with laypersons (Business and Professions Code §6068). As officers of the Court, attorney have a duty to deal honestly and fairly with others (Gionis v. Superior Court [1998] 202 [Cal.App.]3d 786 9248 Cal.Rptr. 741]). You have egregiously violated these duties.”

In another letter from the attorney, Ruiz claims this was libelous.

“I have been advised that you attend every single meeting of the Board of Directors and sit there taking what appear to be copious notes of ostensibly everything being said by everyone. While you have a right under Civil Code §1363.05 [§4925 in the new Davis-Stirling Act] to attend directors’ meetings, you seem to be the only member of the Harbor View Community Association who has ever so fully availed himself of this right.

Contrary to what you further say in your letter, the Board of Directors has spent the better part of the past six months answering your questions (most of which are set forth in extremely verbose written correspondence). The directors of the Harbor View Community Association are all unpaid volunteer homeowners. You are not the only member of the Harbor View Community Association and your endless queries (most of which appear completely frivolous) are becoming more and more like the Shakespearian ‘pound of flesh’ that you feel you are entitled to as revenge for the ostensible temerity of the association’s Architectural Committee in not approving your architectural plans.

When your architectural application was rejected, the Architectural Committee informed you specifically and in writing why it was being denied (principally because the proposed home exceeded the maximum square footage allowed). Since that time, you have made absolutely no attempt to resubmit modified plans that make the proposed home compliant with the existing architectural guidelines. Instead, you have devoted an inordinate amount of time harassing the Harbor View Community Association directorship with cockamamie document inspection requests and virtually stalking and staring down the directors at their regularly scheduled meetings. For you to infer that somehow the Harbor View Community Association has been unfair to you is like the tea kettle calling the coffee pot black.”

LAWSUIT: Ruiz filed a libel lawsuit against the HOA and a declaration that the denial of his plans was improper and unreasonable and arbitrary. The HOA brought a SLAPP motion claiming that the letter constituted acts in furtherance of the HOA’s right of petition or free speech in connection with a public issue.

COURT RULING: The Court ruled that the letters were in furtherance of the exercise of the constitutional right of petition or free speech in connection with an issue of public interest. The Court based its reasoning on another case that held that the anti-SLAPP statute protects private communications regarding public issues. Public interest was defined as private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity.

The burden then shifted to Ruiz to prove that the letters were libelous. He could not prove that the first letter had been published (to someone other than him, a requirement for libel) and the second letter was not libelous because the statements were hyperbole, epithet or subjective expressions of disapproval, devoid of any factual content. The letter was not actionable.

The SLAPP motion was granted.

LESSON: Actions by a HOA and its attorney are protected. This was a case of despicable conduct and bullying by Ruiz and the Court did not allow this to happen.

Turner v. Vista Pointe Homeowners Association (2009) 180 Cal.App.4th 676

FACTS: A homeowner remodeled his/her house and obtained approval to increase the height. However, during the remodel, he increased the height beyond what was approved, without seeking further HOA approval. A neighbor complained.

LAWSUIT: The homeowner filed suit against the HOA alleging that it was unfair, it did not enforce its architectural guidelines consistently, and for unfair business practices. The HOA filed a SLAPP motion stating that the HOA’s conduct was in furtherance of the exercise of the constitutional right of free speech and thus was protected.

COURT RULING: The Court heavily relied on the Damon case (discussed above) finding that a “public interest” in the height of houses within the development existed. The activities of the HOA were not protected as it could not show the enforcement activity was in furtherance of the right of free speech; therefore, the HOA’s SLAPP motion was denied.

LESSON: The HOA tried to turn the tables on the homeowner and defend the homeowner’s lawsuit with a SLAPP motion. A defense to a homeowner’s lawsuit cannot be based on a SLAPP motion. While this ruling may be restricted to the facts of this case, it does give a warning to HOAs: SLAPP motions cannot be used to justify enforcement actions.

Recommendations

  1. Listen to homeowner complaints.
  2. Be careful about what is said, both in orally and in writing;
  3. Stick to the facts, do not become emotional, as when tempers flare, comments are made that can be damaging to all involved;
  4. Maintain civility at meeting and hearings. If disgruntled homeowners are causing problems, seek compliance and resolution by citing violations of the CC&R’s to hinder or stop unruly or disruptive behavior.
  5. Think about passing and enforcing a CODE OF CONDUCT for homeowners to abide by when dealing with the board and property manager.

By Tom Fier, Esq.