Opinion
F083740
03-18-2024
BEAR VALLEY SPRINGS CONDOMINIUM ASSOCIATION, Plaintiff and Respondent, v. SHAWNA PINA, Defendant and Appellant.
Dake, Braun & Monje and Craig N. Braun for Defendant and Appellant. Braun Gosling and Douglas A. Gosling for Plaintiff and Respondent.
NOT TO BE PUBLISHED
APPEAL from a judgment of the Superior Court of Kern County. No. BCV-21-101749 Bernard C. Barmann, Jr., Judge.
Dake, Braun & Monje and Craig N. Braun for Defendant and Appellant.
Braun Gosling and Douglas A. Gosling for Plaintiff and Respondent.
OPINION
MEEHAN, J.
INTRODUCTION
Plaintiff and respondent Bear Valley Springs Condominium Association (BVSCA) filed suit against defendant and appellant Shawna Pina after she contacted BVSCA's insurer and indicated BVSCA was negligently maintaining her condominium roof, which BVSCA alleges caused its insurer to sever its relationship with BVSCA by electing not to renew the insurance policy with BVSCA. BVSCA pursues claims for intentional interference with economic relationship and negligence. Pina filed a special motion to strike the complaint under the anti-SLAPP (strategic lawsuit against public participation) statute (Code Civ. Proc., § 425.16), which the trial court denied.
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
On appeal, Pina argues the trial court erred by failing to find her statements to the insurer were protected activity under section 425.16, subdivision (e)(4) (section 425.16(e)(4)), as conduct in furtherance of her constitutional right to free speech in connection with a public issue or an issue of public interest. For the reasons discussed post, we conclude Pina did not meet her burden of showing that her private statements to BVSCA's insurer are protected activity under section 425.16(e)(4). We therefore affirm the trial court's order.
FACTUAL SUMMARY
Bear Valley Springs is a small community of condominiums comprising approximately 69 units. BVSCA is the governing body and is responsible for, among other things, maintaining, servicing, and repairing/replacing the roofs of the units in the community.
Pina purchased her condo in the community in January 2020; the roof over her individual condo extends over and is shared by one neighboring unit. Near the end of 2020, Pina noticed what she believed to be deterioration of her roof, and she contacted BVSCA's board president (Steve Roberts). According to Pina's declaration, Roberts delivered to Pina an inspection report from 4 Seasons Roofing, dated December 14, 2020. The findings in that report stated the "[s]outh facing upper and lower shingle has 90% granular loss causing fiberglass on shingles to show. Multiple staples penetrating shingle [sic] breaking the water barrier. Exposed staples on all flashings on roof. No attic ventilation to vent attic moisture and heat. Upper and lower north facing roof 50% granular loss on shingles. Multiple staples penetrating shingles. Roof to wall flashing installed incorrectly. There is no channel for water. End wall metal doesn't overlap roof to wall metal. Few shingle [sic] delaminating." The report recommended "to replace the roof within 1-2 years to prevent plywood and insulation damage, which will add to the replacement cost."
Pina reviewed this report and responded to Roberts via email on December 15, 2020, that she read the report as indicating "there is no water protection, things were installed improperly and multiple staples penetrating the shingles breaking the water barrier. This is going to cause damage to the plywood, to my insulation, to my attic ... all thing[s] you as the board will be responsible for for [sic] putting this off...So you are already on notice that I am going to have leaks."
The next day, on December 16, 2020, Pina emailed BVSCA's board secretary (Mindi Pugh) and requested copies of BVSCA's October and November 2020 financial statements. Pugh indicated the request would be forwarded to the board's treasurer. On December 17, 2020, the treasurer responded the financials were with the accountants and would be shared with whomever would like them when they were returned to the treasurer.
On December 18, 2020, Pina emailed a letter to BVSCA's board asking it to repair her roof and water damage to her property's fascia board. Pina included several roofing reports/inspections with her emailed letter, including an inspection report related to her neighbor's unit (with whom Pina shared a roof) dated September 20, 2019; a second inspection of Pina's unit dated January 15, 2020; a third roof report Pina solicited on December 15, 2020; and the December 14, 2020, report Stevens had obtained. The September 20, 2019, report stated the roof "shingles are long past their useful service life and extensive deterioration is evident. Roof replacement at the earliest opportunity is recommended." The inspection report dated January 15, 2020, indicated the roof surface had "extensive surface granulation failure. Many of the shingles have eroded and cracked. We recommend further evaluation and repair or replacement, as necessary." Finally, the report obtained by Pina and dated December 15, 2020, indicated the "[r]oof has no life left and its [sic] recommended to replace. Also fascia boards need to be replace[d] at rotted areas."
Pina did not receive an immediate response to her December 18, 2020, email, so Pina sent another email on December 29, 2020, asking for a response to her request. A few hours later, Pugh responded that much of BVSCA's board was not available during the holidays, the "roofing issue has been on the front burner for over two years," and BVSCA was aware of Pina's roof problems as mentioned at a prior general meeting and would keep her "issues in mind" as they continued into the new year. A few hours after this, Pina responded to Pugh that she would "be contacting the association insurance to let them know my concerns and provide them with my documentation."
On December 30, 2020, Pina called Tony Menke at Cline Agency Insurance Brokers, BVSCA's broker, and advised him of her concerns regarding her roof and possible property damage; she also forwarded the roof inspection reports along with a copy of her December 29, 2020, email to BVSCA's board. Menke forwarded the information Pina communicated to Aspen as a claim. On January 11, 2021, Pina received a voicemail message from Angel Hernandez, an employee of Allied American Adjusting Company (Allied)-the claims administrator for BVSCA's insurance carrier, Aspen, which referred to an insurance claim Pina had lodged through Menke. Pina returned the call advising him she had not filed a claim and that her home had not suffered any damage; she did advise him of her concerns regarding the condition of her unit's roof and BVSCA's refusal to repair roofs in the development. Hernandez informed Pina that because she was not making a claim, he would close his file.
On January 22, 2021, Aspen (through Hernandez at Allied) notified BVSCA that Pina had contacted Aspen and made representations and claims that BVSCA was in breach of its duties and obligations. Aspen's letter to BVSCA indicated that Pina alleged "the association is being negligent in maintenance of the roof," but that there was no damage to Pina's property at this time. In March 2021, Aspen informed BVSCA that the existing policy in effect from March 2020 to March 2021 would not be renewed.
In a subsequent letter to the community, BVSCA's board indicated it was searching for different insurance and the costs were going to be substantially greater than they had been with Aspen. "Our Insurance Broker sent applications out to all of our preferred and nonpreferred carriers. None were willing to quote the risk because of the proximity to a high b[r]ush hazard zone. So Bear Valley Springs Condominiums are now being classified as a 'high brush hazard zone[.]' Only ONE INSURANCE Company would provide us with a quote. Again, unfortunately it is not good news. Our premium from 2020-2021 was $13,324. The quote for 2021-2022 is $52,899. This is an increase of 397%. Such an increase cannot be borne by our current monthly assessment. As of May 1, 2021, our monthly assessment will be increased by the sum of $50 to cover the additional $39,584 insurance premium."
At a March 2021 board meeting, the meeting minutes reflect the following in relevant part: "Steve told the 'story' of our Insurance cancelation, and the new policy expense. Our new policy came in at $53,000. The policy last year was $18,000. He also mentioned how all of California fire areas are under cancelation or huge price increases. Our Policy will expire on 3/28/21. The Broker has agreed to let us verbally commit, and then send in the first payment of $15,230.00 by overnight on this coming Monday."
BVSCA filed suit against Pina in July 2021, alleging two claims: intentional interference with economic relationship and negligence. The complaint alleges that as a result of Pina's unauthorized contact with Aspen and her statements to Aspen that BVSCA was in breach of its duties under the policy, Pina proximately caused Aspen to not renew its insurance agreement with BVSCA, severing the business relationship.
Pina filed an anti-SLAPP motion under section 425.16 seeking to strike the complaint. She claimed her contact with Aspen was protected activity under the catchall provision of the statute, section 425.16(e)(4)-i.e., her statements to Aspen were a matter of public interest to the community. Pina argued the issue of roof repair of the condominium units had been an ongoing issue of interest to the homeowners, and extended to BVSCA's related insurance policies. She argued whether there was or would be insurance coverage constitutes an issue of public interest for those members of the homeowners association who would be directly affected by whether coverage would be available for roof damage or damage caused by roof failure. Further, Pina argued, BVSCA could not show the complaint was both legally sufficient and supported by a prima facie showing of facts to sustain a favorable judgment if credited. The only evidence relevant to the policy was BVSCA's meeting minutes, which seemed to indicate the policy was not renewed because the units were located in a high brush hazard zone- not because Pina had contacted Aspen in January 2021.
Along with the anti-SLAPP motion, Pina submitted a declaration with supporting documents, including her email correspondence with BVSCA board members, various roofing reports and BVSCA board meeting minutes.
In opposition, BVSCA argued the act of filing a claim with Aspen and purporting to admit liability on behalf of BVSCA is not protected activity under the statute. BVSCA maintained neither its insurance coverage and policy nor Pina's personal roof concerns were matters of public interest. Moreover, BVSCA noted, filing a false insurance claim is a violation of Penal Code section 550 and, thus, cannot constitute protected activity under the statute. In support of the opposition, BVSCA's president submitted a declaration and supporting documents, including correspondence from Aspen to BVSCA regarding Pina's contact with Aspen. BVSCA also objected to paragraphs 3 through 15 of Pina's declaration on various grounds.
In reply, Pina argued she never made a claim for payment of loss or injury, thus her contact with Aspen was not a claim and not a violation of Penal Code section 550. Pina maintained her contact with Aspen regarding the roof was an issue of public interest-the roofs of the condominium units had been an issue for over two years, as reflected by Pugh in an email to Pina, and this was an issue in which all homeowners in the association would be interested.
The motion was heard on November 1, 2021. The trial court issued a tentative ruling denying the motion, and a subsequent written order denying the motion was issued on November 18, 2021. The trial court sustained BVSCA's objections to paragraphs 3 through 9 and 12 through 15 of Pina's declaration, and overruled BVSCA's objections to paragraphs 10 and 11. Pina appealed.
DISCUSSION
I. Legal Principles
A. Anti-SLAPP Motions
Section 425.16 provides an expedited procedure for dismissing lawsuits filed primarily to inhibit the valid exercise of the constitutionally protected rights of speech or petition. (Id., subd. (a).) Subdivision (b)(1) of section 425.16 provides as follows: "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."
This provision creates a two-step inquiry for resolving anti-SLAPP motions. (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) "First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Ibid.) Under the second step, the plaintiff must demonstrate (1) the pleading is legally sufficient and (2) the claim alleged is supported by sufficient evidence to make a prima facie showing of facts that would sustain a favorable judgment. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.)
More specifically, at the first step, the defendant's "burden is to identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute. A 'claim may be struck only if the speech or petition activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.' [Citation.] To determine whether a claim arises from protected activity, courts must 'consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.' [Citation.] Courts then must evaluate whether the defendant has shown any of these actions fall within one or more of the four categories of '"act[s]"' protected by the anti-SLAPP statute." (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 (Wilson).)
B. Definitions
The first step in the anti-SLAPP analysis addresses whether the moving party has carried its burden of showing that the challenged "cause of action" is one "arising from" an activity "in furtherance of the person's right of petition or free speech"-i.e., a protected activity. (§ 425.16, subd. (b)(1).)
1. Protected Activity
A list of protected activity is set forth in subdivision (e) of section 425.16, which states as follows:
"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, or (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 purpose of these statutory categories is to "provide objective guidelines that lend themselves to adjudication on pretrial motion." (City of Montebello v. Vasquez (2016) 1 Cal.5th 409, 422.)
2. Cause of Action
The next statutory term of significance to the first step of the anti-SLAPP analysis is "cause of action." (§ 425.16, subd. (b)(1).) What constitutes a "cause of action" subject to being struck under the anti-SLAPP statute has been widely litigated. Our Supreme Court has addressed the problem of "a so-called 'mixed cause of action' that combines allegations of activity protected by the statute with allegations of unprotected activity." (Baral, supra, 1 Cal.5th at p. 381.) The court concluded the Legislature used the term "'cause of action'" to target "only claims that are based on the conduct protected by the statute" and, thus, courts should not be concerned with how a complaint is framed or how the primary right theory might define a cause of action. (Id. at p. 382.) Consequently, "an anti-SLAPP motion may challenge any claim for relief founded on allegations of protected activity, [but] it does not reach claims based on unprotected activity." (Ibid., italics added.)
Stated differently, an anti-SLAPP motion need not challenge an entire cause of action as pleaded in the complaint. (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1010 (Bonni).) Accordingly, "courts should analyze each claim for relief-each act or set of acts supplying a basis for relief, of which there may be several in a single pleaded cause of action-to determine whether the acts are protected ._" (Ibid.) This inquiry requires courts to "consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1063 (Park).)
3. Arising From
The statutory term "arising from" also plays a role in the first step of the anti-SLAPP analysis. (§ 425.16, subd. (b)(1).) "A claim arises from protected activity when that activity underlies or forms the basis for the claim." (Park, supra, 2 Cal.5th at p. 1062, italics added; accord, Bonni, supra, 11 Cal.5th at p. 1009.) Thus, a defendant can satisfy the "arising from" element of the statute by demonstrating that the defendant's conduct by which plaintiff claims to have been injured falls within one of the categories of subdivision (e) of section 425.16. (Park, supra, at p. 1063.)
C. Standard of Review
Our review of a trial court's ruling on an anti-SLAPP motion, including any issues of statutory interpretation presented on appeal, is de novo. (Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1250 (Geiser).)
Under this standard of review, appellate courts "exercise independent judgment in determining whether, based on [the court's] review of the record, the challenged claims arise from protected activity." (Park, supra, 2 Cal.5th at p. 1067.) An appellate court must "consider the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2).) Neither trial nor appellate courts weigh credibility or compare the weight of the evidence. ( Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) "Rather, the court's responsibility is to accept as true the evidence favorable to the plaintiff [citation] and evaluate the defendant's evidence only to determine if it has defeated that submitted by the plaintiff as a matter of law." (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.)
II. Analysis A. Illegality
As an initial matter, BVSCA maintains Pina's statements to Aspen amounted to filing a false insurance claim in violation of Penal Code section 550. To the extent BVSCA is claiming Pina's statements to Aspen were not protected activity under the anti-SLAPP statute because they constituted conduct that is illegal as a matter of law, such an assertion fails.
Due to the important interests the anti-SLAPP statute seeks to protect, the Legislature commands that it be construed broadly. (§ 425.16, subd. (a); Flickinger v. Finwall (2022) 85 Cal.App.5th 822, 832.) Yet, "not all speech or petition activity is protected by section 425.16." (Flatley v. Mauro (2006) 39 Cal.4th 299, 313.) As relevant here, section 425.16 does not protect speech or petition activity that is illegal as a matter of law. (Flatley v. Mauro, supra, at p. 320.) This exception applies only in "narrow circumstance[s]" where "either the defendant concedes the illegality of its conduct or the illegality is conclusively shown by the evidence ._" (Id. at p. 316.)
Penal Code section 550, subdivision (a)(1), states that it is unlawful to "Knowingly present or cause to be presented any false or fraudulent claim for the payment of a loss or injury, including payment of a loss or injury under a contract of insurance." Pina argues she never made a claim for loss, and she clarified with Hernandez she had not done so-she did not knowingly present any type of claim, let alone a false or fraudulent one. Thus, Pina does not concede her statements to Aspen were illegal under Penal Code section 550.
Further, BVSCA has not conclusively established Pina's statements directed to Aspen in January 2021 amounted to a knowing presentation of a false or fraudulent claim for the payment of a loss or injury in violation of Penal Code section 550. Indeed, Pina contacted Aspen a second time to clarify that she had not suffered any loss or injury and was thus not presenting a claim for payment, and Aspen informed BVSCA the claim file had been closed because Pina was not making a damage claim. As such, it has not been conclusively established that Pina's statements to Aspen constituted a knowing presentation of a false insurance claim.
We turn next to consider whether Pina's statement to Aspen that BVSCA was negligent in roof maintenance is protected speech under the statute.
B. Step One: Protected Activity Under the Catchall Provision
Pina claims her statements to Aspen about BVSCA's negligence are entitled to protection under the anti-SLAPP statute's catchall provision, which extends to "any ... conduct in furtherance of the exercise of the constitutional right . . . of free speech in connection with a public issue or an issue of public interest." (§ 425.16(e)(4).)
Whether challenged conduct falls within the ambit of section 425.16(e)(4) is analyzed in two steps. (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 149150 (FilmOn).) First, courts must ask what public issue or issues the challenged activity implicates and, second, courts look to the "'functional relationship'" between the challenged activity and the "'public conversation'" about the issue and ask whether the activity "'"contribute[s]"'" to public discussion of the issue. (Geiser, supra, 13 Cal.5th at p. 1249, quoting FilmOn, supra, at pp. 149-150.)
The conduct from which both of BVSCA's claims arise is Pina's statements directed to Aspen that BVSCA was in breach of its obligations under the insurance agreement-i.e., by negligently maintaining her roof. The question is whether that speech was made in connection with a public issue or issue of public interest under FilmOn's two-pronged inquiry.
1. The Public Issue/Interest Requirement
Turning to the first prong, the statute does not define the terms "public issue" or "issue of public interest." To determine whether the challenged conduct or speech is a public issue or one of public interest, "courts look to certain specific considerations such as whether the subject of the speech or activity 'was a person or entity in the public eye' or 'could affect large numbers of people beyond the direct participants' [citation]; and whether the activity 'occur[red] in the context of an ongoing controversy, dispute or discussion' [citation], or 'affect[ed] a community in a manner similar to that of a governmental entity' [citation]." (FilmOn, supra, 7 Cal.5th at pp. 145-146.) In cases "where the issue is not of interest to the public at large, but rather 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 v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 119, fn. omitted (Du Charme).)
Thus, statements made in connection with the management of a private homeowners' association have been deemed public issues where they concerned issues of critical importance to a large segment of the local population. (See Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479-480 ["Given the size of [BVSCA] community, the nature of the challenged statements as involving fundamental choices regarding future management and leadership of [BVSCA], and our Legislature's mandate that homeowner association boards be treated similar to governmental entities, the alleged defamatory comments involved 'public issues' within the meaning of the anti-SLAPP statute."]; see also Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1468-1469 (Ruiz) [private communications between association and homeowners regarding dispute over approval of building plans was an issue of public interest to the 523 homeowners in the community].)
Whether speech is "about" a public issue or an issue of public interest is not the relevant inquiry. (Geiser, supra, 13 Cal.5th at pp. 1249-1250.) Rather, the "first step is satisfied so long as the challenged speech or conduct, considered in light of its context, may reasonably be understood to implicate a public issue, even if it also implicates a private dispute. Only when an expressive activity, viewed in context, cannot reasonably be understood as implicating a public issue does" a special motion to strike under section 425.16 fail at the first step of the FilmOn analysis. (Geiser, supra, 13 Cal.5th at pp. 1253-1254.)
Our high court has observed "[i]t is FilmOn's second step, not its first, that usually plays the more prominent role in screening anti-SLAPP motions because caselaw 'demonstrate[s] that virtually always, defendants succeed in drawing a line-however tenuous-connecting their speech to an abstract issue of public interest.'" (Geiser, supra, 13 Cal.5th at p. 1250.) Virtually always does not mean always, however, and the first step serves an important function as it "operates as a lens that focuses the analysis at the second step. In other words, to assess whether the challenged activity contributes to discussion of a public issue, we must identify some public issue that the challenged activity purports to address." (Ibid.)
According to her declaration, Pina began making demands to BVSCA board around December 15, 2020, that her condo's roof be repaired or replaced. When she did not receive what she considered an adequate response, Pina called Menke on December 30, 2020, and informed him that BVSCA was negligently maintaining the roof of her unit. Pina maintains BVSCA's maintenance of homeowners' roofs is an issue of public interest in the community. Based on BVSCA's secretary's email on December 29, 2020, the roof issue had been "on the front burner for over two years," thus it was an ongoing discussion.
In a general sense, each of the homeowners in the association would have a financial stake, and thus an interest, in how and when homeowners' association fees are spent on maintaining individual homeowners' roofs, whether a certain roofing issue might require priority over another such that an individual request for roof maintenance might be of interest to other homeowners, and/or whether the homeowners' association was undertaking timely maintenance of a particular homeowner's roof. Pina's statements directed to Aspen that BVSCA was negligently failing to perform roof maintenance, particularly of her unit, would implicate each of these issues and would be of interest to the broader homeowner community. There was also some indication in the December 29, 2020, email from BVSCA's secretary to Pina that the issue of roof maintenance had been "on the front burner" for two years, suggesting the homeowners and BVSCA had been discussing the issue of roof maintenance for some time. In this context, although Pina's statements appear to relate to BVSCA's allegedly negligent maintenance of the roof of her own condominium unit, whether and when the association's funds were spent on that roof would be an issue of interest to all the homeowners within the association. (Geiser, supra, 13 Cal.5th at p. 1252 [context in which statements are made is relevant at FilmOn's first step].)
Neither party addresses whether the small size of the Bear Valley Springs condominium community precludes it from being a definable portion of the public. (See Du Charme, supra, 110 Cal.App.4th at p. 119 [declining to consider "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" that private conduct impacting a definable portion of the public may be an issue of public interest]; see also Ruiz, supra, 134 Cal.App.4th at pp. 1468-1469 ["The residents of over 523 lots were part of HVCA, a large enough group to come within the requirements of Du Charme."].) Nevertheless, even assuming the small size of the community does not disqualify Pina's statements directed to Aspen as implicating an issue of public interest at FilmOn's first step, the second functional-relationship inquiry is not satisfied.
2. Statements Did Not Contribute to Public Discussion of the Issue
The knottier question is FilmOn's second inquiry under the catchall provision, which requires consideration of whether the challenged statements "'in some manner ... contribute[d] to the public debate'" or "public conversation" on the issue. (FilmOn, supra, 7 Cal.5th at pp. 150, 154.) "What it means" to contribute to public discussion "will perhaps differ based on the state of public discourse at a given time, and the topic of contention. But ultimately, our inquiry does not turn on a normative evaluation of the substance of the speech. We are not concerned with the social utility of the speech at issue, or the degree to which it propelled the conversation in any particular direction; rather, we examine whether a defendant-through public or private speech or conduct- participated in, or furthered, the discourse that makes an issue one of public interest." (Id. at pp. 150-151.)
To conduct this inquiry, a court must "'consider the particular context of the speech, including the speaker's identity; the "purpose" of the speech; the nature of the audience and the intended audience; and the "timing" and "location" of the communication.'" (Bishop v. The Bishop's School (2022) 86 Cal.App.5th 893, 906, quoting Murray v. Tran (2020) 55 Cal.App.5th 10, 30 &citing FilmOn, supra, 7 Cal.5th at pp. 140, 143-144, 154.) While "no single element is dispositive" (FilmOn, supra, at p. 153), to determine whether a defendant's speech is entitled to protection under the anti-SLAPP statute, the defendant's burden becomes "heavier" (Wilson, supra, 7 Cal.5th at p. 903) when the speech occurs in private. It is difficult for a defendant to show that a statement "contributes to or furthers the public conversation" (FilmOn, supra, at p. 154) when the statement was never intended for, and never reached, a wide audience.
FilmOn itself involved private speech. There, the plaintiff (FilmOn), a web-based company providing access to television channels, movies and on-demand titles, filed suit against the defendant (DoubleVerify) after that company sent confidential reports to its clients categorizing some of FilmOn's website content as adult content and copyright infringement. (FilmOn, supra, 7 Cal.5th at pp. 141-142.) DoubleVerify sought to strike the complaint under the anti-SLAPP statute.
While DoubleVerify's report arguably related to issues of widespread public interest such as the presence of adult content on the internet and copyright-infringement content (FilmOn, supra, 7 Cal.5th at pp. 150, 152), our high court concluded it did not contribute to the public debate (id. at p. 153). Rather, the report had merely categorized FilmOn's content as falling into certain categories-it did not further the public conversation about any public issues. The court pointed out the report was not issued to the wider public (which might be interested in whether FilmOn hosted content unsuitable for children or engaged in copyright infringement), but was instead distributed to "a coterie of paying clients" who used the information for their business purposes alone. (Id. at p. 153.) The information never entered the public sphere, and the parties never intended it to. (Ibid.) Given this context, DoubleVerify's private report did not contribute to the public debate about any issue of public interest and was not protected activity under section 425.16(e)(4). (FilmOn, supra, at p. 154.)
Similarly, in Doe v. Ledor (2023) 97 Cal.App.5th 731, 735-736 (Ledor) private emails sent to college admissions officials about an admitted student's high school misdeeds during a student council election were held to be statements that did not contribute to or further the public conversation on any issue of public interest, and thus was not protected conduct under section 425.16(e)(4). The complaint alleged that after the plaintiff's relationship with his high school girlfriend (Sheikh) ended, friends of Sheikh disseminated information about the plaintiff to Dartmouth officials, causing Dartmouth to rescind its offer of admission to the plaintiff. (Ledor, supra, at p. 736.) Specifically, one of the defendants wrote an email to Dartmouth officials stating she had gone to high school with the plaintiff and the plaintiff had hacked into over 500 of his peers' emails to win an election to be the high school student body president. (Id. at p. 738.) The email's author indicated she sent the correspondence only so that admissions officials would be "'truly aware'" of whom they had admitted. (Ibid.) The email included links to articles about the election incident, and a follow-up email provided a link to a podcast about the election hack. (Id. at pp. 738-739.)
In considering an anti-SLAPP motion asserting the emails were protected activity under the catchall provision, the appellate court concluded that even if the emails implicated issues of public interest under FilmOn's first inquiry (such as the election hacking incident and the plaintiff's role in it as evidenced by media coverage of the event), they did not contribute to or further the conversation of those issues under the second inquiry: the speech at issue occurred in private emails; nothing indicated the college used the email statements for anything other than its private purposes; there was no evidence the defendant who sent the email intended them to reach the public sphere- the sender shared the information merely to provide an example of the plaintiff's lack of good character for Dartmouth's private purposes only; and there was no evidence the emails ever reached a wider public audience. (Ledor, supra, 97 Cal.App.5th at p. 747.)
Here, like FilmOn and Ledor, the speech that forms the basis of BVSCA's claims occurred in private communications by Pina directed to Aspen. Although Pina references BVSCA's allegation in its complaint that Pina made "unsupported allegations to the public in the past on multiple occasions that [BVSCA] was negligent in administering its duties as an association," BVSCA's claims do not arise from these public statements. Rather, this allegation is collateral or incidental to the causes of action-it merely provides context and, as such, it is not subject to protection under the anti-SLAPP statute. (Baral, supra, 1 Cal.5th at p. 394 ["Allegations of protected activity that merely provide context, without supporting a claim for recovery, cannot be stricken under the anti-SLAPP statute."].) It is, instead, Pina's communications directed to Aspen where she stated BVSCA was negligently maintaining her roof, which forms the basis of BVSCA's claims of intentional interference with economic relationship and negligence. These communications were made through private statements by Pina directed to Aspen through Menke and Hernandez.
As already noted, the private context of these statements "makes heavier" the defendant's "burden of showing that ... the alleged statements nevertheless contributed to discussion or resolution of a public issue for purposes of" the catchall provision. (Wilson, supra, 7 Cal.5th at p. 903.) In analyzing whether speech contributed to the public conversation, courts should consider, among other things, whether the statements "were private or widely broadcasted and received, and for what purpose." (FilmOn, supra, 7 Cal.5th at p. 146.)
Similar to FilmOn and Ledor, the record does not show Aspen used the communications from Pina for anything other than its private contractual purposes with BVSCA. Aspen is not a public agency or leadership group charged with oversight or authority over BVSCA such that Pina could reasonably expect her statements to Aspen would raise the issue of BVSCA's maintenance of her roof (or any other roofs in the association) with the other homeowners in the community. (FilmOn, supra, 7 Cal.5th at p. 146 [discussing cases where private communications to authorities or leaders (the audience) for purposes of investigation and oversight involved an expectation the communication would raise the issue in the public sphere]; Murray v. Tran, supra, 55 Cal.App.5th at pp. 31-35 [private statements about a dentist's professional abilities to certain other private individuals who had no authority or investigative role regarding the dentist were not meant to reach or further the public conversation or discussion of the dentist's standard of care].)
Moreover, nothing in the record indicates or establishes Pina intended her statements to reach other homeowners in the community. The record does not show Pina shared her communications directed to Aspen with anyone. Aspen (through its adjuster) reported Pina's statements to BVSCA as the insured under the policy with Aspen, but nothing in the record shows that Pina's statements that BVSCA was negligently maintaining her roof ever reached a wider audience than that. Pina's statements did not prompt the insurer to provide new information relevant to the dispute. Aspen's communication to BVSCA simply relayed Pina's assertion of negligent roof maintenance, and indicated the file had been closed because no claim had been made, no damage was reported and, thus, there was no liability under the policy. The communication provided no information about how Pina's statements might influence the coverage available in the event of roof-related damage, nor did it indicate how any potential future damage might be assessed. Additionally, there is no evidence BVSCA took any action with respect to the insurance carrier's notification.
Pina made clear to Aspen's adjustor she had no property damage to report, and she was not making a claim-it was merely to report that she felt BVSCA was negligent in maintaining her roof. From this context, the purpose of Pina's communications appears to be an attempt to force BVSCA to repair or replace Pina's roof immediately to avoid any possible issue with its insurer. This context also suggests the focus of Pina's statements was not the public interest, but rather were designed "'to gather ammunition for another round of [private] controversy'" regarding Pina's roof. (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132-1133 [for an issue to be one of public rather than a private interest, 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'"].)
Pina relies extensively on Ruiz, a pre-FilmOn case that also involved a dispute between homeowners and a homeowner association. There, two homeowners submitted to the governing homeowners' association (HVCA) a plan to erect a new house. (Ruiz, supra, 134 Cal.App.4th at p. 1462.) HVCA's architectural committee requested revisions to the plan, which included reduction of the house size as it exceeded the maximum square footage permitted by HVCA's guidelines. (Ibid.) After further discussions with the committee and then HVCA's board, the plaintiffs were directed to put questions in writing. (Id. at p. 1463.) In ensuing written correspondence between HVCA and one of the plaintiffs (Ruiz), HCVA's attorney wrote that Ruiz-himself a lawyer-had violated his ethical duties as an attorney in dealings with the association and its members (id. at pp. 1463-1464) and, in a second letter, HVCA's attorney accused Ruiz of, among other things, "'virtually stalking'" HVCA's directors (id. at p. 1465).
The plaintiffs sued HVCA for libel based on HVCA's attorney's letters, among other claims, and HVCA filed an anti-SLAPP motion targeted at the libel cause of action. The trial court denied the motion, but the appellate court reversed. (Ruiz, supra, 134 Cal.App.4th at pp. 1461, 1465, 1475-1476.) The appellate court concluded HVCA's attorney's statements about Ruiz were protected activity under the anti-SLAPP's catchall provision. (Ruiz, supra, at p. 1467.) The court explained the statements related to the plaintiffs' requests for documents and information and Ruiz's conduct at board meetings. (Id. at p. 1468.) These activities all arose out of the denial of the plaintiffs' building plans and concerned the issue of whether HVCA's architectural guidelines were being evenhandedly enforced-both of which were matters of concern to HVCA's members. (Id. at p. 1470 [the whole "focus and primary purpose" of the letters concerned HVCA's governance and the enforcement of the architectural guidelines].)
When compared with the statements and the context in which they were made here, Ruiz is distinguishable in critical respects. First, Ruiz is a pre-FilmOn case that did not expressly discuss or consider whether the challenged statements "'in some manner ... contribute[d] to the public debate'" or "public conversation" on the issue. (FilmOn, supra, 7 Cal.5th at pp. 150, 154.) Second, and more importantly, the context of the communications in Ruiz was markedly different than that presented here. Although the letters in Ruiz involved private statements outside a public forum, the attorney's letters to Ruiz were sent on behalf of HVCA. As such, they represented formal and official communications between HVCA and the plaintiffs regarding their dispute over HVCA's architectural committee's refusal to approve the building plans as originally submitted. (See Ruiz, supra, 134 Cal.App.4th at p. 1463 [indicating Ruiz was instructed to communicate requests to HVCA in writing, and attorney's letters to Ruiz were in response to Ruiz's subsequent written requests].) Moreover, the attorney's statements implicated how the public dispute was being pursued, managed and decided, and raised issues of consistent governance across the association regarding architectural requirements. (Id. at p. 1469 [attorney's letters "were written in the context of the disputes between [the] Plaintiffs and HVCA, were part of the ongoing discussion over those disputes, and 'contribute[d] to the public debate' on the issues presented by those disputes"].) In this context, the attorney's statements about Ruiz would contribute to public discussion at subsequent board meetings and within the community about issues of interest to a definable portion of the public.
In contrast, Pina's statements directed to Aspen were not communications to BVSCA that might be expected to be shared with the rest of the community or further discussions about association roof maintenance, nor were the communications part of the official dispute process between Pina and BVSCA like the attorney's letters in Ruiz. Pina's statements to Aspen were not designed to be shared with the rest of the homeowners in the community, and there is no evidence the communications ever reached a wider audience than BVSCA's broker, Aspen's adjuster and the BVSCA board. There are minutes from a March 2021 homeowners' association meeting indicating the "'story'" of the insurance "cancellation" (purportedly caused by Pina's contact with Aspen) was explained by BVSCA's president, but there is nothing indicating Pina's statements to Aspen were repeated or discussed at that meeting. Privately contacting BVSCA's insurer suggests Pina was attempting to eliminate any further discussion regarding her roof maintenance in the hopes BVSCA would simply capitulate to Pina's demands rather than risk disrupting its relationship with its insurer through any further discussion or dispute over the issue.
In sum, it is not enough under FilmOn's second step that the content of Pina's private statements implicates a public issue. (FilmOn, supra, 7 Cal.5th at p. 150 ["'it is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate'"].) Nor is it sufficient to identify a possibility that her private statements could conceivably have indirect consequences for an issue of public concern. (See Murray v. Tran, supra, 55 Cal.App.5th at p. 32, citing Wilson, supra, 7 Cal.5th at p. 903.) Rather, Pina's statements must "'in some manner ... contribute to the public debate'" or "public conversation" rather than simply relate to an issue of public concern. (FilmOn, supra, at p. 150.)
When examining the audience, speaker and purpose surrounding Pina's statements, the record does not establish a furtherance of the public discourse or dispute related to BVSCA's roof maintenance-no matter how broadly that issue of public concern is construed. Here, the circumstances indicate Pina's private statements were meant to pursue her own personal interests and were never intended to be shared with the relevant and interested public; in making the statements, the audience was increased by two additional people connected with Aspen who did not have any demonstrated power or control over BVSCA's discretionary maintenance decisions; the statements were never shared beyond the insurance broker, adjuster and BVSCA; the insurer (through the adjuster) reported to BVSCA only that it had closed its file because no claim or damage had been reported by Pina-it gave no hint how hypothetical roof-related damage might be evaluated in the future; and the record does not reflect BVSCA took any action as a result. Thus, while Pina's private statements implicated an issue of concern to the relevant public-i.e., BVSCA's roof maintenance, they did not further the public discourse or dispute related to it. As such, Pina has not carried her burden to show her statements that form the basis of BVSCA's claims come within the public interest catchall under section 425.16(e)(4).
In light of this conclusion, we do not reach the second prong of the anti-SLAPP analysis.
C. Evidentiary Issues
We have considered Pina's declaration and supporting documentation in reaching our conclusion that her statements to Aspen, the conduct from which BVSCA's claims arise, are not protected activity under section 425.16(e)(4). As such, even assuming the trial court abused its discretion in sustaining BVSCA's objections to Pina's declaration, any error was harmless. Even considering Pina's declaration in full, Pina's anti-SLAPP motion was properly denied. (See Geragos v. Abelyan (2023) 88 Cal.App.5th 1005, 1021 ["An erroneous evidentiary ruling requires reversal only if there is a reasonable probability that a result more favorable to the appealing party would have been reached in the absence of the error."].)
DISPOSITION
The trial court's order denying Pina's special motion to strike the complaint under the anti-SLAPP statute is affirmed. BVSCA is entitled to its costs on appeal. (Cal. Rules of Court, rule 8.278(a)(2).)
I CONCUR: LEVY, Acting P. J.
FRANSON, J., Concurring and Dissenting.
I respectfully dissent. Based on my independent review of the record, I conclude the claims of Bear Valley Springs Condominium Association (BVSCA) arise from activity protected by the anti-SLAPP statute's catchall provision, Code of Civil Procedure section 425.16, subdivision (e)(4). In my view, Pina's private communications with the insurance agent and the claims examiner constituted "private speech [that] .. .furthered[] the discourse that ma[de] an issue one of public interest" (FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133, 151 (FilmOn)) because those communications expanded the ongoing discourse about the BVSCA's maintenance of condominium roofs by adding new participants and raising issues about insurance coverage.
Subsequent undesignated statutory references are to the Code of Civil Procedure.
I concur in the majority's preliminary determinations that (1) appellate courts must exercise their independent judgment in determining whether the challenged claims arise from protected activity and (2) BVSCA has not conclusively established the illegality of Pina's speech. I also agree with the majority's conclusion that Pina's private communications satisfied the first step of the FilmOn analysis because they are "reasonably be understood to implicate a public issue, even [though] it also implicates a private dispute." (Geiser v. Kuhns (2022) 13 Cal.5th 1238, 1253 (Geiser).) Although I agree with that conclusion, I believe the majority's interpretation of the legal principles comprising FilmOn's first step and its interpretation of the record is too constricted. For example, the majority does not mention the "objective inquiry" asking whether "a reasonable inference can be drawn that the challenged activity implicates a public issue" (Geiser, supra, 13 Cal.5th at p. 1254) and then identify the inferences that can be reasonably drawn from the evidence describing Pina's challenged communications. Also, the majority does not define the term "implicates" and its approach implies it has interpreted the term and related statutory phrase "in connection with" narrowly rather than "broadly." (§ 425.16, subds. (a), (e)(4).) As explained below, my broader view of the public issues implicated by Pina's challenged communications is one of the reasons I conclude the record shows that Pina satisfied the second step of the FilmOn analysis.
In FilmOn.com Inc. v. DoubleVerify Inc., supra, 7 Cal.5th 133, our Supreme Court stated it first asked "what 'public issue or [] issue of public interest' the speech in question implicates- a question we answer by looking at the content of the speech. (§ 425.16, subd. (e)(4).)" (FilmOn, supra, at p. 149.).
I. BACKGROUND
Pina purchased her condominium unit in January 2020. Pina received a 30-page inspection report from Patriot Inspection Services stating it inspected the unit on January 15, 2020. The report addressed various features of the unit, including its fascia, eaves, soffits, roofing, and attic. As to the roof's surface, the report stated there was extensive surface granulation failure and many shingles had eroded and cracked. The report recommended further evaluation and repair or replacement as necessary. Pina moved into her unit in February 2020.
The previous September, the neighbor with whom Pina shares a roof obtained a home inspection report from Built Right. The report addressed the surface of the roof by stating: "The shingles are long past their useful service life and extensive deterioration is evident. Roof replacement at the earliest opportunity is recommended. Damage to the roof structure may be discovered during the course of this work." The BVSCA's board was aware of the roof issue for at least nine months before the neighbor obtained the September 2019 inspection report.
On December 14, 2020, the BVSCA obtained a third inspection report when the president of the BVSCA's board, Steve Roberts, received an e-mail from 4 Seasons Roofing that included its report of an inspection of the units of Pina and her neighbor. The report included photographs labeled "EXTREME GRANULE LOSS" and "WATER DAMAGE." The report recommended replacing the roof within one to two years to prevent plywood and insulation damage and estimated the roof's life expectancy at no more than two years.
On December 15, 2020, Roberts provided the report to Pina and told her that BVSCA did not have sufficient funds to repair the roofs of the condominium units and he believed her roof had two years of life left. Later that morning, Pina sent Roberts an email stating she read the report of 4 Seasons Roofing as saying not to wait, there were current problems that were going to cause damage to the plywood and insulation in her attic, and BVSCA's board would be responsible for putting off the repairs. Roberts did not reply.
On December 16, 2020, Pina e-mailed Mindi Pugh (secretary of the BVSCA's board) a request for BVSCA's October and November financial statements. The same day, Pugh responded with an e-mail stating the request would be forwarded to Gayle Roberts (treasurer of the BVSCA's board). Gayle Roberts e-mailed Pina the next day stating the financials were still with the accountants and that when Gayle received the financials, she would "make copies for whomever would like them."
Pina prepared a letter to the BVSCA's board asking it to replace the roof on her and her neighbor's units. The letter stated Pina had spoken to Steve Roberts several times and he had refused to replace the roof, stating that the BVSCA did not have the money. The letter asserted that if the roof was not repaired, there would be extensive damage to the material under the roof and attached the three inspection reports. Also attached to the letter was a copy of provisions from the BVSCA's covenants, conditions, and restrictions that stated BVSCA shall maintain, repair and replace certain unit building structures, including the roofs and exterior walls.
On December 18, 2020, Pina e-mailed the letter and attachments to the BVSCA's board members. On December 29, 2020, Pina e-mailed Pugh stating she had not received a response and that her neighbor had sent a similar e-mail and had not received a response. Later that afternoon, Pugh responded with an e-mail stating: "Most of the Board [was] not available during the Holidays this year. The roofing issue has been on the front burner for over two years. I realize that you have not been here that long, but we are aware of your problem as we mentioned to you at the General Meeting. [¶] We will be keeping your issues in mind as we continue into 2021." Less than 40 minutes later, Pina sent a reply e-mail to Pugh stating: "Ok, then I will be contacting the association insurance to let them know my concerns and provide them with my documentation." Pina sent copies of the e-mail to the entire board.
The next day, December 30, 2020, Pina telephoned the Cline Agency Insurance Brokers, the BVSCA's insurance agent, and spoke with Tony Menke. Pina advised Menke "of [her] concerns about [her] roof and possible property damage." Menke requested the roof inspection report. Pina sent him an e-mail that included as attachments a copy of the December 29, 2020, e-mails and Pina's December 18, 2020, e-mail to the BVSCA's board members and its attachments, which included the three inspection reports, and the January 2020 inspection report for her own roof.
In reaction to Pina's communications, Menke submitted a document labeled "LIABILITY NOTICE OF OCCURRENCE / CLAIM" to Aspen Specialty Insurance Company (Aspen), the BVSCA's insurance carrier. The notice listed Steve Roberts as the insured's contact and described the occurrence by stating: "Unit owner alleges negligent maintenance of roof. Please see documents for details." Aspen referred the claim submitted by Menke to Allied American Adjusting Company, LLC (Allied American), Aspen's authorized claims administrator.
On January 11, 2021, Angel Hernandez, a claims examiner for Allied American, left Pina a voice mail message referring to an insurance claim lodged by her. Pina returned Hernandez's telephone call and informed him that she had not filed a claim and her unit had not suffered any damages. Pina also advised him of her concerns about the condition of her roof and the apparent refusal of BVSCA's board to repair the roofs in the development. Hernandez informed Pina that because she was not making a claim, he would close his file.
On January 22, 2021, Hernandez sent Steve Roberts a letter referring to a claim by Pina and stating the letter's purpose was to advise Roberts that there was no coverage available for the matter under the policy and also stating that, at the time, there was no damage to Pina's property.
On February 1, 2021, Hernandez sent Ryan Gesell and Steve Roberts an e-mail confirming he had closed his file because there was no claim of damage and no liability. The e-mail stated Pina had said (1) there was no damage to the property, (2) she had not reported a claim, and (3) she just wanted to put the agent on notice of the situation with the association about replacement of the roof.
On March 19, 2021, another homeowner in the development forwarded to Pina an e-mail from the BVSCA's board providing notice of an upcoming meeting on March 27, 2021, about insurance, which was set to expire on March 28, 2021. Pina was not among the homeowners receiving notice of the meeting. The original e-mail included a letter to the homeowners stating the development was now being classified as a high brush hazard zone and only one insurance company was providing a quote, which was $39,584 more than the prior year and totaled $52,899.
The minutes of the March 27, 2021, meeting stated that all board members and 11 other homeowners were present. The danger of fire, and other insurance issues were discussed. The "story" was told of the BVSCA insurance cancellation and the large increase in the annual premium for the new replacement policy. Pina did not attend the meeting and the minutes of the meeting do not mention issues related to roof maintenance.
In July 2021, BVSCA filed its complaint alleging Pina contacted Aspen or its agents and "made representations and claims that [BVSCA] was in breach of its duties and obligations per the Agreement," which was defined as the written agreement under which Aspen provided general liability insurance policy during the 12-month period ending March 28, 2021. The complaint alleged Pina's false representations to Aspen were made with the intent to harm BVSCA financially and to induce Aspen to sever its business relationship with BVSCA and further alleged the representations resulted in or contributed to Aspen's nonrenewal of BVSCA's insurance.
II. THE OTHER CATEGORIES OF PROTECTED ACTIVITY
To provide context for the discussion of FilmOn's two-step analysis used in determining whether speech or conduct falls within the anti-SLAPP statute's catchall provision (§ 425.16, subd. (e)(4)), I first will describe how the first three categories of protected activity (§ 425.16, subd. (e)(1)-(3)) apply to situations involving homeowner associations.
A. Association Meetings Are Authorized by Law, But Are Not Official
Subdivision (e)(1) and (e)(2) of section 425.16 define protected activity to include statements made before, or in connection with an issue under consideration by, a governmental body or "any other official proceeding authorized by law." The statutory phrase "authorized by law" leads to the part of the Civil Code known as the "Davis-Stirling Community Interest Development Act" (Civ. Code, § 4000). That part contains Civil Code sections 4000 through 6150 and governs the creation and operation of common interest developments such as the Bear Valley Springs condominium development. (Pinnacle Museum Tower Assn. v. Pinnacle Market Development (US), LLC (2012) 55 Cal.4th 223, 236.) A common interest development must be managed by an association, which may be a nonprofit corporation like BVSCA. (Civ. Code, §§ 4090 [association defined], 4800 [management of development].) Meetings of an association's board of directors are governed by the "Common Interest Development Open Meeting Act" (Civ. Code, § 4900 [short title]), which is contained in the Davis-Stirling Community Interest Development Act. (See Civ. Code, §§ 4900-4955; Cohen v. Kite Hill Community Assn. (1983) 142 Cal.App.3d 642, 651 [association's board, in effect, is a quasi-government entity with powers, duties and responsibility paralleling a municipal government].) Meetings of the association's members are governed by Civil Code section 5000.
Based on the foregoing statutory provisions, a meeting of an association's board or its members qualifies as a "proceeding authorized by law." (§ 425.16, subd. (e)(1)-(2).) However, such meetings are not considered an "official proceeding" for purposes of the anti-SLAPP statute because, according to the first published decision on the issue, "nongovernmental proceedings must have a strong connection to governmental proceedings to qualify as 'official'" and "a homeowners association is not performing or assisting in the performance of the actual government's duties." (Talega Maintenance Corp. v. Standard Pacific Corp. (2014) 225 Cal.App.4th 722, 730, 732.) Under this interpretation of the statute, Pina's challenged speech does not qualify as a protected activity under subdivision (e)(1) or (e)(2) of section 425.16.
Whether Talega's interpretation of the term "official" is appropriate is a question I need not decide because I conclude that Pina's challenged communications fall within the anti-SLAPP statute's catchall provision.
B. Association Meetings Are a Public Forum
The third category of protected activity does not apply to Pina's private communications with Menke and Hernandez because the telephone conversations and the e-mail to Menke were not "made in a place open to the public or a public forum." (§ 425.16, subd. (e)(3).) In the context of litigation involving a homeowners association, the statutory term "public forum" is noteworthy because it has been interpreted to include a meeting of the association's board (Lee v. Silveira (2016) 6 Cal.App.5th 527, 539-540) and an annual meeting of the association's members (Cabrera v. Alum (2011) 197 Cal.App.4th 1077, 1087-1088). Also, where some homeowners formed a club that prepared and circulated a newsletter to association members and neighboring businesses, the newsletter qualified as a public forum. (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 478 [public forum includes forms of public communication such as the newsletter and is not limited to a physical setting]; see Silk v. Feldman (2012) 208 Cal.App.4th 547, 553 [court assumed defendant's letter to other members of a 136-unit development was a public forum].) The foregoing conclusions about what constitutes a public forum are compatible with our Supreme Court's view that" '[c]ondominium unit owners comprise a little democratic subsociety.'" (Nahrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361, 374.) In the context of this case, the concept of a public forum is relevant to defining the public discourse or conversation addressed in the second step of the FilmOn analysis.
III. STEP ONE: A PUBLIC ISSUE OR ISSUE OF PUBLIC INTEREST
The statute's catchall provision defines protected activity to include "conduct in furtherance of the exercise of ... the constitutional right to free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e)(4), italics added; see Ojjeh v. Brown (2019) 43 Cal.App.5th 1027, 1036.) Thus, "FilmOn's first step [in this catchall analysis] asks what issue or issues the challenged activity may reasonably be understood to implicate." (Geiser, supra, 13 Cal.5th at p. 1254.) The first step is satisfied if the challenged speech, considered in context, may be reasonably understood to implicate a public issue, even if it also implicates a private dispute. (Id. at p. 1253.) "FilmOn's first step calls for an objective inquiry" where the court takes the position of a reasonable, objective observer. (Id. at p. 1254.) The objective inquiry ends and the analysis proceeds to FilmOn's second step "[i]f a reasonable inference can be drawn that the challenged activity implicates a public issue." (Geiser, supra, at p. 1254.) The indefinite article "a" signals a general reference. (Pineda v. Bank of America, N.A. (2010) 50 Cal.4th 1389, 1398.) Thus, the phrase "a reasonable inference" should not be interpreted narrowly to mean (1) the only reasonable inference or (2) the most probable of all possible reasonable inferences. Accordingly, the inquiry into which inferences may be reasonably drawn from the challenged activity might identify several reasonable inferences pertaining to multiple public issues. The foregoing interpretation of the Supreme Court's formulation of FilmOn's first step implements the legislative directive that the anti-SLAPP statute "shall be construed broadly." (§ 425.16, subd. (a).)
The majority opinion suggests that 69-unit community constitutes a "definable portion of the public" as that phrase is used in Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 119.) That suggestion, in my view, is the proper legal conclusion to reach based on the record. Also, the conclusion is supported by the specific public forums where issues affecting the community can be addressed-namely, meetings of BVSCA's board and meetings of its members. (See Lee v. Silveira, supra, 6 Cal.App.5th at pp. 539-540; Cabrera v. Alum, supra, 197 Cal.App.4th at pp. 1087-1088).
In analyzing the public nature of the issues addressed in Pina's private telephone conversations with Menke and Hernandez, the majority narrowly interprets the evidence pertaining to those conversation as relating only to BVSCA's allegedly negligent maintenance of the roof of Pina's condominium. The majority then concludes that whether and when the association's funds were spent on that particular roof would be an issue of interest to all BVSCA's members, which satisfies the "public issue" or "issue of public interest" requirement of the catchall provision. (§ 425.16, subd. (e)(4).)
In conducting my independent review and undertaking the objective inquiry called for by FilmOn's first step, I interpret the record more broadly. Pina's declaration states that in her January 11, 2021, telephone call with Hernandez, she advised him of her "concerns regarding the condition of my property's roof and the [BVSCA] Board's apparent refusal to repair the roofs in the development." (Italics added.) Thus, her statement about the board's apparent refusal to repair was not limited to her roof; it encompassed by the more general subject of "the roofs in the development." Viewed in context, her declaration's description of her telephone call with Hernandez is credible because the insurance carrier would be interested learning about the board's maintenance of roofs throughout the development and it was reasonable for Pina to craft her statement to address the interest in the maintenance affecting roofs throughout the development. Therefore, I conclude Pina's communications did more than implicate the issue of roof maintenance throughout the development, her communication explicitly raised that issue. In other words, one need not reach the reasonable inference inquiry because a review of the actual content of the challenged speech shows the issue of roof maintenance in the development was raised by Pina.
Besides adopting a different interpretation of the record than the majority, I also believe the majority impliedly adopts a narrow interpretation of the term "implicates" in characterizing the issues implicated by Pina's challenged communications. The majority's description of the issue as whether and when the roof on Pina's unit is repaired implies that speech "implicates" an issue only if there is something more that an explicit mention of the issue in the challenged speech. I do not believe the Supreme Court used the term "implicates" in that sense when it phrased the first step of the FilmOn analysis. Ordinarily, the verb "implicate" means "involve" or "to imply." (Webster's New World Dict. (2d college ed. 1982) p. 705.) Here, Pina's statements involve not only the issues of whether and when the BVSCA's funds will be spent on the roof to her unit and the broader issue of roof maintenance and repair in the development, but also implicate the issues of (1) whether the BVSCA's board is fulfilling its responsibilities to maintain all roofs in the development and (2) whether future damage resulting from negligent maintenance would be covered by the BVCSA's insurance or borne by BVCSA and passed through to its members. It is objectively reasonable to infer that Pina's statement of the board's apparent refusal to repair the roofs in the development implicated whether the board was fulfilling its responsibility under section 7.2 of the BVSCA's covenants, conditions, and restrictions to maintain the roofs in the development and implicated whether there would be insurance coverage of damages resulting from the board's negligent failure to perform roof maintenance. The latter issue about insurance coverage is reasonably inferred because of the context in which Pina's challenged speech was made-that is, her statements were made to an insurance agent and to a claims examiner authorized by Aspen. This approach to the issues "implicated" is compatible with our Supreme Court's statement "that speech is rarely 'about' any single issue." (FilmOn, supra, 7 Cal.5th at p. 149.)
I further conclude that the foregoing issues are issues of interest to a definable portion of the public-namely, the members of the BVSCA. Thus, Pina has satisfied the first step of the FilmOn analysis and demonstrated her challenged communications with Menke and Hernandez implicated multiple issues of public interest.
IV. STEP TWO: CONNECTION BETWEEN PINA'S SPEECH AND THE PUBLIC DISCOURSE
In FilmOn, the Supreme Court described the second step of the analysis under the catchall provision in various ways. For example, the court stated that under the second step, "we ask what functional relationship exists between the speech and the public conversation about some matter of public interest." (FilmOn, supra, 7 Cal.5th at pp. 149-150.) The court also stated that "the catchall provision demands 'some degree of closeness' between the challenged statements and the asserted public interest." (Id. at p. 150.) The court agreed with the principle "that 'it is not enough that the statement refer to a subject of widespread public interest; the statement must in some manner itself contribute to the public debate.'" (Ibid.) It explained that the meaning of the phrase" 'contribute to the public debate'" could vary from context to context "based on the state of public discourse at a given time, and the topic of contention." (Id. at pp. 150151.)
The court also stated the second step of the FilmOn's analysis "examine[s] whether a defendant-through public or private speech or conduct-participated in, or furthered, the discourse that makes an issue one of public interest." (FilmOn, supra, 7 Cal.5th at p. 151.) Thus, for activity to be protected under the catchall provision, it can be either speech or conduct and either public or private. Also, the activity can either participate in the discourse or further the discourse.
I interpret the term "discourse" to be the equivalent of the "public conversation" and "public debate" used elsewhere in FilmOn.
A. The Challenged Activity is Private Speech
The challenged activity in this case occurred in Pina's telephone call with Hernandez, her telephone call with Menke, and her subsequent e-mail to Menke. Thus, the challenged activity is speech, not conduct, and that speech was private, not public.
Pina's private speech was not itself part of the public debate or conversation but was part of one-to-one communications. Therefore, I assume for purposes of this appeal that her private speech did not participate in a public discourse. As a result, I will examine the alternative to participation and consider whether that speech "furthered[] the discourse that makes an issue one of public interest." (FilmOn, supra, 7 Cal.5th at p. 151.)
B. Furthering a Public Discourse
Before examining the connection (i.e., functional relationship) between Pina's private speech and the ongoing public discourse-that is, whether the speech furthered that discourse-a brief description of the discourse is warranted. In December 2020, the secretary of the BVSCA board stated the roofing issue had been on the front burner for over two years, which predates Pina's purchase of a unit by over a year. The secretary also stated the roofing issue or problem had been mentioned to Pina at a general meeting of unspecified date and that Pina's issues would be kept in mind into 2021. Thus, the secretary's statements establish that (1) BVSCA's board had been aware of the roofing issue and (2) the discussion of the roofing issue had reached a public forum (i.e., the general meeting) before Pina contacted the insurance agent and the claims examiner. Thus, I interpret the record as showing that, at the time of Pina's challenged speech, there was an existing public discourse of issues relating to roof maintenance within the development and, because the issues had not been resolved, the discussion of those issues would continue into the future. The length and ongoing nature of the discourse provides part of the context of evaluating the connection or relationship between Pina's private speech and the public discourse. (FilmOn, supra, 7 Cal.5th at pp. 150-151 [the state of public discourse at a given time affects what it means to contribute to the public debate].)
With that background, I next consider whether Pina's private speech "furthered" the public discourse. The verb "further" is defined to mean "to give aid to; promote" and it is a synonym for advance. (Webster's New World Dict. (2d college ed. 1982) p. 567.) The word "furtherance" means "helping forward; advancement; promotion." (Ibid.) In accordance with these definitions and definitions in other dictionaries, case law recognizes that furtherance means helping to advance, assist. (Tamkin v. CBS Broad., Inc. (2011) 193 Cal.App.4th 133, 143; Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 166; see Musero v. Creative Artists Agency, LLC (2021) 72 Cal.App. 5th 802, 816 [under the catchall provision, steps taken to advance constitutionally protected expression are" 'conduct in furtherance of'" the exercise of the right of free speech].) Consequently, I conclude the term "furthered" as used in FilmOn's second step describes a connection that is broader than that prescribed by the term "participated in." Thus, private speech itself need not be part of a publicly held discussion for it to further the discourse about a public issue.
As described below, I conclude Pina's private speech furthered the discourse of BVSCA's on-going roof related issues by (1) expanding the audience, which in turn expanded the participants in the discourse, and (2) expanding the points being considered in the discourse to include whether the BVSCA's insurance would cover damage resulting from negligent roof maintenance or, alternatively, whether the members of the BVSCA ultimately would bear financial responsibility for such damage.
After Pina provided information to Menke, the insurance agent, about roof maintenance at the development, he provided information to Aspen, the insurance carrier, and Aspen provided the information to its authorized claims adjustor. Thus, the audience was expanded and, more significantly, the new audience members were not passive listeners. Hernandez became a participant in the discussion when he communicated with both sides of the debate. Hernandez spoke with Pina and sent an e-mail to Steve Roberts. The fact that Hernandez's communications did not propel the discourse in a direction favorable to Pina does not mean Pina's private speech failed to further the discourse. (FilmOn, supra, 7 Cal.5th at p. 151 [the degree to which the challenged speech propelled the conversation in any particular direction is not a concern in FilmOn's second analytical step].) After Hernandez's communications, both sides had a somewhat better idea about how the insurance carrier would approach the roof maintenance issues, even though the carrier did not explicitly state how a future claim for damage caused by negligent maintenance of a roof would be handled. In particular, Pina learned that the insurance carrier was not going to be an ally supporting her position that roof maintenance within the development should not be delayed.
The contextual factors considered when applying FilmOn's second step include the nature of the audience, the intended audience, and the purpose of the speech. FilmOn, supra, 7 Cal.5th at pp. 140, 143-144.) Here, the intended audience for Pina's private speech about roof maintenance and insurance indirectly included BVSCA's board, the ultimate decision maker on the issue of roof maintenance. Before Pina contacted Menke, she e-mailed the board's secretary, with copies to the rest of the board, stating that she would be making that contact. Thus, I infer that Pina's purpose was to obtain an ally in her private dispute by getting the insurance agent and carrier involved in the broader question about coverage for damage from negligent roof maintenance, regardless of whether that damage was to her unit or occurred elsewhere in the development.
Based on the foregoing, I disagree with the majority's statement that nothing in the record indicates or establishes Pina intended her statements to the insurance agent or claims examiner to reach the other homeowners in the community. First, the statement appears to imply that Pina's private speech "furthers" a discourse only if the contents of that speech are repeated in public. This implication of how a discourse is "furthered" is unduly narrow because a discourse can be advanced by the reaction of new audience members (the insurance agent or claims examiner) to the private speech. Here, repeating Pina's comments would have less impact on the public discourse than the reaction of the new audience because the BVSCA board (the decision maker) already was aware of both Pina's position and the fact that she was going to contact the insurance agent. Thus, in the context presented, it was the reaction of the insurance agent and carrier that would advance the debate. Second, I believe a discourse can be furthered even if Hernandez's communications were not made in a public forum, like a general meeting of the BVSCA's board or a letter sent to each member of the development. In my view, an ongoing discourse on an issue of public interest can be furthered by communications that are not made in a public forum but are made to a person who will decide the controversy. Here, Hernandez's e-mail to the board's president was to a member of the decision making body and, thus, furthered the discourse by providing information to a member of that body.
Consequently, I disagree with the majority's conclusion that Pina's private speech did not further or contribute to the discussion. To summarize, based on my independent review of the record, I conclude Pina has demonstrated that her private speech qualifies as activity protected by the anti-SLAPP's catchall provision, section 425.16, subdivision (e)(4).