Groth v. Park III Condominimum Homeowners etc. CA4/1 ( 2023 )

Filed 2/10/23 Groth v. Park III Condominimum Homeowners etc. CA4/1
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
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COURT OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION ONE
STATE OF CALIFORNIA
JAKOB GROTH et al., D079501
Cross-complainants and
Respondents,
(Super. Ct. No. 37-2021-
v. 00001534-CU-CO-CTL)
PARK III CONDOMINIMUM
HOMEOWNERS ASSOCIATION, INC.,
et al.,
Cross-defendants and Appellants.
APPEAL from an order of the Superior Court of San Diego County,
Gregory W. Pollack, Judge. Affirmed.
Murphy, Pearson, Bradley & Feeney, Jeff C. Hsu, and Patrick A.
Gillespie, for Cross-defendant and Appellant Park III Condominium
Homeowners Association, Inc.
Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Garth N. Ward, and
Daniel R. Velladao, for Cross-defendant and Appellant Cheryl Snook.
No appearance for Respondents.
In January 2021, Park III Homeowners Association (Park III) sued
Gordon Dunn, Jakob Groth, and Groth’s spouse Ali Aschoff for breach of the
common interest community’s governing documents and nuisance, seeking
declaratory relief. Groth, Aschoff, and their resident Michael Kirton filed a
cross-complaint, against Cheryl Snook and Park III alleging causes of action
for violations of the federal Fair Housing Act (FHA), the California Fair
Employment and Housing Act (FEHA), and the California Unruh Civil Rights
Act, for defamation, and for intentional infliction of emotional distress (IIED).
Snook and Park III filed separate anti-SLAPP motions, special motions to
strike (Civ. Proc. Code,1 § 425.16).2 The court denied the motions. Snook
and Park III appealed.
Snook and Park III contend that Groth, Aschoff, and Kirton (the cross-
complainants) failed to establish a reasonable probability of prevailing on the
merits. We disagree and affirm the order.
FACTUAL AND PROCEDURAL BACKGROUND
The Underlying Events
In January 2015, vandalism began occurring in public spaces around
the community. This eventually included a series of written and spray-
1 Undesignated statutory references are to the Code of Civil Procedure.
2 Section 425.16 is commonly referred to as the anti-SLAPP statute
because a special motion thereunder seeks to strike a “ ‘[s]trategic lawsuit
against public participation,’ ” or SLAPP. (Wilson v. Cable News Network,
Inc. (2019) 7 cal.5th 871, 882, fn. 1 (Wilson).)
2
painted statements that targeted Snook by name,3 which Snook reported to
police. In Snook’s statements to police, she accused Dunn, Groth, and Kirton
of causing the damage.
In 2018, Snook filed complaints with the Department of Fair
Employment and Housing (DFEH) against Park III, Groth, and Dunn,
alleging sexual harassment based on the vandalism; she named Groth and
Dunn as the vandals.
On April 20, 2019, April 29, 2019, and January 18, 2020, letters were
disseminated throughout the community and posted to social media. The
letters included Snook’s name on the signature line. Some also had a
signature. They contained disparaging and offensive comments about people
of color and people of foreign descent. Snook denied authoring the offending
letters. She reported them to the police, her representative on city council,
and the United States Postal Service.
On May 23, 2019, the Park III board unanimously decided “not to take
enforcement” against Snook regarding the April 2019 letters because it
determined that “there was concrete evidence that [Snook] did not prepare or
post the notice or letter.”
Around July 24, 2020, Snook filed a petition for a temporary
restraining order (TRO) against Kirton.
3 The vandals spray-painted statements, including “Cheryl Snook wer’e
[sic] gonna rape you,” Cheryl Snook we’re waiting for you cunt,” “Cheryl
Snook wer’e [sic] waiting for you to get raped,” “Cheryl Snook get out you
twat,” “Snook leave,” “Cheryl Snook get the fuck out of here twat,” “Snook
leave you cunt,” “Listen u cunt Cheryl Snook must go,” “Leave Snook twat,”
“Snook get out,” “Merry xmas Cheryl Snook racist cunt [with a crudely drawn
penis below it],” “Cheryl a racist Steve Graham is a pedophile,” “Cheryl
Snook get out now you racist biiyatch,” “Snook is a racist bitch.”
3
In September 2020, an attorney for Park III sent a cease-and-desist
letter to Groth and Aschoff alleging that Kirton had interfered with Park III’s
enforcement of its rules and regulations.
Complaint
On January 13, 2021, Park III sued Groth, Aschoff, and Dunn for
breach of governing documents and nuisance, seeking declaratory relief.
Cross-complaint
On January 29, 2021, Groth, Aschoff, and Kirton filed a cross-complaint
against Park III and Snook. The cross-complaint explained that Groth is of
Polish descent, and Kirton is African-American.4
It alleged eight causes of action: (1) violation of the FHA, (2) violation
of FEHA, (3) violation of Unruh Civil Rights Act (against Park III only), (4)
defamation, (5) breach of quiet enjoyment, (6) private nuisance, (7) IIED, and
(8) negligence.5 It also alleged that all cross-defendants were the agents,
servants, employees, and joint venturers of each of the other cross-
defendants, and at all times they acted within the course and scope of that
agency, employment and joint venture, knowingly accepting and ratifying the
acts and omissions of each of the other cross-defendants.
The cross-complaint further alleged that in 2017 Snook falsely accused
Groth of writing profane statements in common areas.6 It alleged that in
4 The cross-complaint is silent about Aschoff’s race or national origin.
5 The cross-complainants voluntarily dismissed the fifth, sixth, and
eighth causes of action against Snook.
6 The cross-complaint alleged that Snook accused Groth of writing
“CHERYL SNOOK LOVES ANAL,” “CHERYL SNOOK LOVES SUCKING
COCK,” and “SNOOK’S A BITCH.”
4
2018 Snook falsely accused Groth of spray painting obscene and harassing
statements targeting Snook.7 It also alleged that, in September 2020, Park
III falsely accused Groth and Aschoff’s tenant Kirton of harassing Park III
board member, Alla Rabinovich.
The cross-complaint alleged that Snook, on behalf of Park III as its
president, created and disseminated three letters to Park III community
residents, on April 20, 2019, April 29, 2019, and January 18, 2020. The April
20 letter “ma[de] derogatory statements about Hispanics and Blacks”
indicating “that there was a need to limit people of color living in the Park III
community.” The April 29 letter “target[ed] African-American and Hispanic
residents stating that African-American and Hispanic residents were
responsible for serious crime in the area including but not limited to graffiti,
attempted break-ins and vehicle damage.” The January 18, 2020 letter
stated, “that problems at the Park III community were being caused by
people of color and those of foreign descent.” The letter also said Groth was
being monitored, “falsely accused [Groth] of attempting to break into
[Snook’s] residence at Christmas time in 2017,” and “falsely accused [Kirton]
of being responsible for vehicle damage to a Park III’s Board member’s
vehicle.”
The cross-complaint alleged that in December 2018, Snook filed a
complaint with the DFEH falsely claiming she was subjected to a threat of
7 The cross-complaint alleged Snook attributed the following graffitied
statements to Groth: “CHERYL SNOOK LOVES JUICY BLACK COCK” on
an end wall, “CHERYL SNOOK IS GOING TO DIE” on a dumpster, and
“CHERYL SNOOK WE ARE GONNA ASS RAPE YOU” on an end wall,
“CHERYL SNOOK WE ARE WAITING FOR YOU CUNT” on a dumpster,
“CHERYL SNOOK WE ARE WAITING FOR YOU TO GET RAPED” on an
end wall, “CHERYL SNOOK GET THE FUCK OUT OF HERE TWAT,”
“CHERYL SNOOK GET OUT YOU TWAT,” and “SNOOK LEAVE.”
5
violence by Groth due to her sex, and it stated that she sought a TRO against
Kirton in July 2020. It further alleged that in September 2020, a law firm
sent Groth and Aschoff a cease-and-desist letter that accused Kirton of
interfering with the enforcement of Park III rules and regulations, including
threatening Snook by shouting, “Black lives matter.” The cross-complaint
stated that the cease-and-desist letter was incomplete because it omitted that
Snook called Kirton the “N”-word.
As to the FHA, FEHA, and Unruh Civil Rights Act causes of action, the
cross-complaint alleged Snook and Park III created and disseminated letters
to the Park III community, which stated that people of color and of foreign
descent needed to leave the community and were responsible for graffiti,
attempted break-ins, and vehicle damage in the community. They also
alleged that Snook and Park III “participated in the selective enforcement of
Park III’s Declaration of Covenants, Conditions and Restrictions [(CC&R’s)]
and the rules and regulations of the Park III community specifically
targeting [c]ross-[c]omplainants on the basis of their national origin/race,”
and that Snook and Park III’s harassment was designed to intimidate the
cross-complainants. The cross-complaint alleged that Snook and Park III’s
conduct interfered with the use or enjoyment of their residence, and that the
discriminatory conduct has caused them to become “mentally upset,
distressed, and aggravated.”
It explained that “the creation and dissemination of baseless and
unwarranted letters attacking [the cross-complainants’] character and
national origin/race” was “intentional, extreme, outrageous,” and “done with
the intent to cause emotional distress,” and that the cross-complainants
suffered “severe emotional distress, shock and highly unpleasant emotions.”
6
The Anti-SLAPP Motions
Snook and Park III filed separate anti-SLAPP motions.
Snook argued in her anti-SLAPP motion that all her conduct arose out
of protected activity because the communications regarded incidents within
the community and were directly connected to reports to police or regarded
enforcement of an HOA governing document. She also argued the cross-
complaint arose out of speech connected to a public matter protected by
section 425.16, subdivision (e)(4). Finally, she argued that her DFEH and
civil harassment complaints were privileged under Civil Code section 47,
subdivision (b).
Park III argued in its anti-SLAPP motion that the communications
concerned an issue of public interest, the governance of the Park III
community. Park III also contended that its conduct was protected activity
under section 425.16, subdivision (e)(2) because it “sent notices to [c]ross-
[c]omplainants[ ] for legitimate, non-discriminatory violations of the
Association’s Governing Documents including maintaining multiple security
cameras on their patio in violation of Section II(K) of the Rules as well as the
CC&R’s for altering or affixing devices to common areas. . . . These policies
and procedures are the same for all Association members and demonstrate
that the violation notices were not discriminatory, arbitrary, or
capricious. . . . Further, the violation notices were not issued based upon
[c]ross-[c]omplainants’ race.”
Park III also argued that Snook’s DFEH complaint, her request for a
TRO against Kirton, and the HOA’s cease-and-desist letter were privileged
under Civil Code section 47 and so constituted protected activity.
As to the second prong of the anti-SLAPP statute, Snook and Park III
contended that the HOA directors acted in good faith and within the scope of
7
their duties to investigate and prevent further fraudulent letters from being
distributed; thus, their decisions were shielded from liability because of
judicial deference given to HOA boards (see Lamden v. La Jolla Shores
Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249, 265 (Lamden)) and
because of the business judgment rule (Corp. Code, § 7231).
Park III further argued that because Snook’s DFEH complaint,
statements made in connection with her request for TRO and the cease-and-
desist letter were privileged, the cross-complainants could not demonstrate a
probability of prevailing on claims based on that conduct. It also contended
that the cross-complainants could not demonstrate that the HOA had acted
in an outrageous manner or that its conduct was with the intent to cause
emotional distress.
Park III attached declarations to their moving papers. In one, Michelle
Steinbock, a Pernicano Realty & Management (Pernicano) employee,
affirmed that the HOA did not enforce the CC&R’s against the cross-
complainants arbitrarily or based upon race or national origin. She stated
that Park III’s detailed procedures were followed for each of the cross-
complainants’ violations. HOA board member Rabinovich asserted the same
information in her declaration. In Snook’s declaration, she asserted that she
had never selectively enforced the HOA’s governing documents, and
specifically that she had never enforced them based on race or national
origin.
In their opposition to Park III’s motion, the cross-complainants
challenged whether the statements at issue constituted “public interest.”
They also submitted declarations by Groth and Kirton and filed a request for
judicial notice of declarations by Derek Edwards, Catie Contreras, and
Rebekah Mainor, which had been filed in a related matter, Mainor v. Park III
8
Condominium et al., San Diego Superior Court case No. 37-2020-0002875-
CU-CR-CTL. Edwards’s declaration stated that he had observed Snook
selectively enforcing the CC&R’s and distributing letters to the community by
placing them on vehicles and posting them in the laundry room. Contreras,
who had been employed as community manager, also stated that Snook
directed her to selectively enforce the community’s CC&R’s.
Snook and Park III filed objections to the cross-complainants’ request
for judicial notice and other evidence.
Anti-SLAPP Order
The court found that the first prong of the anti-SLAPP statute was met
because “Snook’s statements and enforcement activities concern issues
relating to crime in the 272-member homeowner’s association
community . . . .” It also found that Snook’s reports to police, filing of a
DFEH complaint, and her request for a civil harassment restraining order
were likewise protected activities.
Addressing the second prong, the court found the evidence was
sufficient to satisfy the cross-complainants’ burden. The court acknowledged
the parties offered contradictory evidence, but it noted it was “duty bound to
accept as true in ruling on Snook’s anti-SLAPP motion” the evidence offered
by the cross-complainants. It also concluded that because the cross-
complainants alleged Snook engaged in willful misconduct, the qualified
immunity offered by section 425.15 was not available to Snook. It explained
that statements contained in a DFEH complaint are protected by the
litigation privilege (Civ. Code, § 47, subd. (b)), but the protection did not
extend to defamatory statements contained in the notices disseminated to the
various homeowners or “Snook’s use of a racial epithet with Kirton, whom
she called the “ ‘N-word.’ ” Although the court acknowledged that Snook
9
denied authoring the disparaging notices, because there was conflicting
evidence that the court was required to accept as true, the cross-
complainants met their burden. The court denied the anti-SLAPP motions.
Snook and Park III timely appealed.
DISCUSSION
I. Anti-SLAPP Law and Standard of Review
“[T]he anti-SLAPP statute is designed to protect defendants from
meritless lawsuits that might chill the exercise of their rights to speak and
petition on matters of public concern. [Citations.] To that end, the statute
authorizes a special motion to strike a claim ‘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.’ ” (Wilson, supra, 7 Cal.5th at pp. 883-884.)
“Litigation of an anti-SLAPP motion involves a two-step process. First,
‘the moving defendant bears the burden of establishing that the challenged
allegations or claims “aris[e] from” protected activity in which the defendant
has engaged.’ [Citation.] Second, for each claim that does arise from
protected activity, the plaintiff must show the claim has ‘at least “minimal
merit.” ’ [Citation.] If the plaintiff cannot make this showing, the court will
strike the claim.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995,
1009.) “But the plaintiff’s second-step burden is a limited one. The plaintiff
need not prove her case to the court [citation]; the bar sits lower, at a
demonstration of ‘minimal merit’ [citation]. At this stage, ‘ “[t]he court does
not weigh evidence or resolve conflicting factual claims. Its inquiry is limited
to whether the plaintiff has stated a legally sufficient claim and made a
prima facie factual showing sufficient to sustain a favorable judgment. It
accepts the plaintiff’s evidence as true, and evaluates the defendant’s
10
showing only to determine if it defeats the plaintiff’s claim as a matter of
law.” ’ ” (Wilson, supra, 7 Cal.5th at p. 891.)
On appeal, we examine without deference an order granting or denying
an anti-SLAPP motion to strike. (Flatley v. Mauro (2006) 39 Cal.4th 299,
325.) We accept the cross-complainants’ evidence as true. (Sweetwater Union
High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940
(Sweetwater).) We neither weigh credibility nor compare the weight of the
evidence. (Flatley, at p. 326.) In doing so, we conduct “ ‘an independent
review of the entire record.’ ” (Roche v. Hyde (2020) 51 Cal.App.5th 757, 787.)
We exercise our discretion to examine all of the evidence the parties
presented to determine if prima facie evidence supports the plaintiffs’
contentions. (§ 425.16, subd. (b)(2).)
II. Applicable Law Regarding Causes of Action
The court concluded Snook and Park III met their burden under the
first prong of the anti-SLAPP statute. The cross-complainants did not file an
appeal challenging this conclusion or file a respondents’ brief. Thus, we need
not discuss this prong. We focus our analysis on the second prong and
consider whether the cross-complainants demonstrated minimal merit.
A. Applicable Law Regarding the FHA Claim
Federal law prohibits discrimination in the sale or rental of a dwelling
to a person based on the person’s race, color, or national origin, among other
protected classes. (42 U.S.C. § 3604(a).) It also prohibits discriminating
against any person in the terms, conditions, or privileges of sale or rental of a
dwelling because of race, color, or national origin. (Id., § 3604(b).) Further, it
is “unlawful to coerce, intimidate, threaten, or interfere with any person in
the exercise or enjoyment of, or on account of his having exercised or enjoyed,
or on account of his having aided or encouraged any other person in the
11
exercise or enjoyment of, any right granted or protected by section 803, 804,
805, or 806 [3603, 3604, 3605, or 3606]” of this title. (Id., § 3617.)
A plaintiff can raise an FHA claim under either a disparate-impact or a
disparate-treatment theory of liability. (See Wright v. National Archives &
Records Service (4th Cir. 1979) 609 F.2d 702, 711.) Under the disparate-
impact theory, the plaintiff must also demonstrate a causal connection
between the defendant’s policy and the statistical disparity. (Tex. Dept. of
Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc. (2015) 576 U.S. 519,
524.) Under a disparate-treatment theory of liability, a “ ‘plaintiff must
establish that the defendant had a discriminatory intent or motive.’ ” (Ibid.)
A plaintiff is not required to elect the applicable theory at the pretrial, trial,
or appellate stages of litigation. (Wright, at p. 711.)
B. Applicable Law Regarding the FEHA Claim
California’s FEHA prohibits the owner of any housing accommodation
to discriminate against or harass any person based on race, color, or national
origin, among other protected classes. (Gov. Code, § 12955, subd. (a).) It also
prohibits owners of housing accommodations from harassing, evicting, or
otherwise discriminating against a person in the rental of housing
accommodations when the owner’s dominant purpose is retaliation against a
person who has opposed unlawful discriminatory or harassing practices. (Id.,
subd. (f).) The law further prohibits any person from aiding, abetting,
inciting, compelling, or coercing such discrimination or harassment. (Id.,
subd. (g).)
“Because of the similarity between state and federal employment
discrimination laws, California courts look to pertinent federal precedent
when applying our own statutes.” (Guz v. Bechtel National Inc. (2000) 24
Cal.4th 317, 354 (Guz).) In analyzing FEHA discrimination claims, including
12
national origin discrimination, “California courts have long used the three-
stage burden-shifting test established by the United States Supreme Court in
McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.” (Arnold v. Dignity
Health (2020) 53 Cal.App.5th 412, 424; see Reid v. Google, Inc. (2010) 50
Cal.4th 512, 520, fn. 2; Guz, at p. 354.)
“This so-called McDonnell Douglas test reflects the principle that direct
evidence of intentional discrimination is rare, and that such claims must
usually be proved circumstantially. Thus, by successive steps of increasingly
narrow focus, the test allows discrimination to be inferred from facts that
create a reasonable likelihood of bias and are not satisfactorily explained.”
(Guz, supra, 24 Cal.4th at p. 354.)
“At trial, the McDonnell Douglas test places on the plaintiff the initial
burden to establish a prima facie case of discrimination. This step is
designed to eliminate at the outset the most patently meritless claims, as
where the plaintiff is not a member of the protected class . . . . While the
plaintiff’s prima facie burden is ‘not onerous’ [citation], he [or she] must at
least show ‘ “actions taken by the [defendant] from which one can infer, if
such actions remain unexplained, that it is more likely than not that such
actions were ‘based on a [prohibited] discriminatory criterion . . . .’
[Citation.] ” [Citation.]’ ” (Guz, supra, 24 Cal.4th at pp. 354-355.) “If, at
trial, the plaintiff establishes a prima facie case, a [rebuttable] presumption
of discrimination arises.” (Id. at p. 355.) The burden then shifts to the
defendant to show that its action was motivated by legitimate,
nondiscriminatory reasons. (Id. at pp. 355-356.) A reason is “ ‘legitimate’ ” if
it is “facially unrelated to prohibited bias, and which if true, would thus
preclude a finding of discrimination.” (Id. at p. 358.) If the defendant meets
this burden, the plaintiff then must show that the defendant’s reasons are
13
pretexts for discrimination, or produce other evidence of intentional
discrimination. (Id. at p. 356.)
C. Applicable Law Regarding Unruh Civil Rights Act
The purpose of Unruh Civil Rights Act is to “create and preserve ‘a
nondiscriminatory environment in California business establishments by
“banishing” or “eradicating” arbitrary, invidious discrimination by such
establishments.’ ” (White v. Square, Inc. (2019) 7 Cal.5th 1019, 1025 (White),
quoting Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 167; Civ.
Code, § 51.) “ ‘The Act stands as a bulwark protecting each person’s inherent
right to “full and equal” access to “all business establishments.” ’ ” (White, at
p. 1025.)
Civil Code section 51, subdivision (b), states: “All persons within the
jurisdiction of this state are free and equal, and no matter what their sex,
race, color, religion, ancestry, national origin, disability, medical
condition . . . are entitled to the full and equal accommodations, advantages,
facilities, privileges, or services in all business establishments of every kind
whatsoever.” Civil Code section 52, subdivision (a), provides: “Whoever
denies, aids or incites a denial, or makes any discrimination or distinction
contrary to Section 51 . . . is liable for each and every offense for the actual
damages, and any amount that may be determined by a jury.”
D. Applicable Law Regarding Defamation
“ ‘ “The elements of a defamation claim are (1) publication that is
(2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to
injure or causes special damage.” ’ ” (Laker v. Board of Trustees of California
State University (2019) 32 Cal.App.5th 745, 763.)
14
E. Applicable Law Regarding IIED
“The elements of the tort of intentional infliction of emotional distress
are: ‘ “(1) extreme and outrageous conduct by the defendant with the
intention of causing, or reckless disregard of the probability of causing,
emotional distress; (2) the plaintiff’s suffering severe or extreme emotional
distress; and (3) actual and proximate causation of the emotional distress by
the defendant’s outrageous conduct. . . .” ’ ” (Christensen v. Superior Court
(1991) 54 Cal.3d 868, 903.) “To be outrageous, the defendant’s conduct must
be either intentional or reckless, and it must be so extreme as to exceed all
bounds of decency in a civilized community.” (Spinks v. Equity Residential
Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1045 (Spinks).)
Whether conduct is outrageous is usually a question of fact. (Ibid.) Courts
have found that acts manifesting racial animus can constitute outrageous
conduct in some circumstances. (See, e.g., Agarwal v. Johnson (1979) 25
Cal.3d 932, 946-947 [racial slur], disapproved of on other grounds in White v.
Ultramar, Inc. (1991) 21 Cal.4th 563; Robinson v. Hewlett-Packard (1986) 183
Cal.App.3d 1108, 1128-1130 [same].)
III. Evidentiary Objections
Snook and Park III contend the cross-complainants cannot demonstrate
a probability of success because they have not stated a legally sufficient
claim. Snook and Park III make this claim by attacking the admissibility
and quality of the evidence.
A. Authorship of the Letters
Snook contends that she did not author the written communications
that were disseminated throughout the community. She explains that some
letters did not contain her signature and others contain a forged signature.
Park III contends Snook’s conduct of seeking help from the San Diego City
15
Council, the San Diego Mayor’s Office, and the United States Postal Office to
help identify the author of the letters was inconsistent with her actually
authoring them. Ultimately, Park III argues that “if the SDPD and USPS
have not been able to identify the culprit responsible for the Letters, there
are no facts or evidence which [ ] can be put forward by the Respondents to
overcome the presumption that the Association acted reasonably with respect
to their investigation and efforts to prevent further incidents.” In essence,
they contend evidentiary obstacles preclude consideration of the written
communications.
However, “[t]o strike a complaint for failure to meet evidentiary
obstacles that may be overcome at trial would not serve the SLAPP Act’s
protective purposes. Ultimately, the SLAPP Act was ‘intended to end
meritless SLAPP suits early without great cost to the target’ [citation], not to
abort potentially meritorious claims due to a lack of discovery.” (Sweetwater,
supra, 6 Cal.5th at p. 949.) Although a trial court may decline to consider
submitted evidence in response to an anti-SLAPP motion when the evidence
“cannot be admitted at trial, because it is categorically barred or undisputed
factual circumstances show inadmissibility” (ibid), neither condition applies
here. The letters are not categorically barred, and there are disputed facts
about whether Snook authored them. Snook and Park III’s “argument runs
ahead of itself and accordingly fails. . . . evidence may be considered at the
anti-SLAPP motion stage if it is reasonably possible the evidence set out in
supporting affidavits, declarations or their equivalent will be admissible at
trial.” (Id. at pp. 946-947.)
Although the issue of who wrote and disseminated the letters will be a
central factual question at trial, proof of their authorship is not required at
16
this stage of litigation. We express no opinion regarding the admissibility of
the declarations in a different context or at a different proceeding.
B. Judicial Notice of Declarations
In their opposition to the anti-SLAPP motions, the cross-complainants
requested judicial notice of three declarations submitted in related litigation.
Snook and Park III objected. The trial court overruled the objections,
distinguishing judicially-noticed documents from declarations signed under
penalty of perjury. It concluded the additional declarations were no different
in type or substance than the declarations submitted directly in the pending
proceeding and admitted the evidence. In the minute order, the court
referenced Derek Edwards’s declaration,8 explaining that it provided
evidence “regarding prior instances of selective enforcement and distribution
of letters by Snook.”
On appeal, Park III repeats its objection to the evidence contained
within the request for judicial notice, arguing that the court could take
judicial notice of the declarations’ existence but not of the truth of the
matters asserted therein.9 Quoting Fremont Indemnity Co. v. Fremont
General Corp. (2007) 148 Cal.App.4th 97, 113, Park III argues that the
truthfulness and proper interpretation of a document for which judicial notice
is granted is disputable.
In the context of an anti-SLAPP motion where the court was
considering evidentiary claims to evaluate the probability of success on the
8 The minute order appears to mistake the name Derek Johnson for
Derek Edwards. There is no declaration by Derek Johnson; however, the
declaration by Derek Edwards addresses the substance identified by the
court’s minute order.
9 Snook does not challenge this evidence in her opening brief.
17
merits, its decision to consider a declaration signed under penalty of perjury
was not erroneous. We observe that rather than provide such evidence
through judicial notice, the cross-complainants could have simply submitted
the evidence directly in connection with their oppositions to the anti-SLAPP
motions, and that may have been preferrable. However, we decline to
disregard the contents of the declarations here based on the notion that form
should govern over substance in this situation.
Separately, Park III argues that because the cross-complainants did
not explicitly reference Contreras’s or Mainor’s declarations in their written
opposition, those statements offer no evidence to demonstrate a probability of
prevailing. While we do not believe the evidence contained in those
declarations is necessary, we note that the statements in those declarations
do support the cross-complainants’ claims. Contreras’s declaration states
that when she was the community manager, Snook accompanied her on
inspections of the community, and Snook selectively chose which residents to
send notice of violations. This supports the cross-complainants’ claim that
the HOA engaged in selective enforcement practices.
Mainor’s declaration likewise recounts selective enforcement of
CC&R’s. Mainor, an African-American female who rented a unit in the
community, identified incidents in which she received notice of violating the
CC&R’s where there had been no violations. She also explained that a board
member had surveillance cameras monitoring her home, but when she
installed cameras on her patio umbrella after receiving permission from the
unit’s owner, the HOA board issued a notice of violation for her cameras.
These statements, if accepted as true, support the cross-complainants’
allegations regarding race-based, selective enforcement of the CC&R’s.
18
On appeal, Snook does not repeat her objection to the court’s
consideration of the judicially noticed declarations or otherwise directly
challenge them. Instead, she contends that the statements contained within
the declarations do not provide evidence of selective enforcement due to racial
animus. As we have detailed, we disagree.
C. Evidence Code Section 1101
Snook and Park III contend Kirton’s declaration constitutes
inadmissible character evidence. Park III makes the same challenge to
Edwards’s declaration.
Evidence Code section 1101, subdivision (b) provides: “Nothing in this
section prohibits the admission of evidence that a person committed a crime,
civil wrong, or other act when relevant to prove some fact[, ] (such as motive,
opportunity, intent, preparation, plan, knowledge, identity, absence of
mistake or accident . . . ).” Under that statute, and in the FEHA context,
California Courts of Appeal have allowed admission of so-called “me-too”
evidence to show intent or motive for the purpose of casting doubt on a
defendant’s stated reason for an adverse action against the plaintiff.
(Pantoja v. Anton (2011) 198 Cal.App.4th 87, 92 [defining “ ‘me-too’ ” evidence
as that tending to show a defendant’s alleged discrimination in the form of
harassing activity against individuals other than the plaintiff, outside
plaintiff’s presence]; accord Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th
855, 871 [“California courts have held so-called ‘me-too’ evidence, that is,
evidence of gender bias against employees other than the plaintiff, may be
admissible evidence in discrimination and harassment cases”].)
Kirton’s declaration serves a similar purpose. He explains that the
letter blaming Blacks and Hispanics for serious crime was signed by Snook.
He notes that a second letter directly accused him of causing vehicle damage
19
and stated that people of color were problem residents. He describes Snook’s
conduct in photographing a vehicle of another African-American resident,
followed by her harshly telling him “I am gonna get you next” and calling him
the “N” word. Taken together, these statements imply that Snook targeted
African-American residents.
We note that the cross-complainants’ burden is limited; they do not
need to prove their case to the court. They merely need to demonstrate there
is “minimal merit” to their claims. (Wilson, supra, 7 Cal.5th at pp. 890-891.)
At this stage, we do not weigh evidence or resolve conflicts; we simply
consider whether the cross-complainant has stated a legally sufficient claim
and made a prima facie factual showing. We evaluate Snook and Park III’s
showing “ ‘ “only to determine if it defeats the plaintiff’s claim as a matter of
law.” ’ [Citation.]” (Id. at p. 891.) We do not opine whether the challenged
declarations would be admissible in a different context. We simply conclude
that in this anti-SLAPP context, the Evidence Code section 1101 challenges
do not defeat the cross-complainants’ allegations as a matter of law.
D. Litigation Privilege
Snook and Park III contend that statements Snook made in connection
with her DFEH complaint and her request for a TRO are protected by Civil
Code section 47, subdivision (b), the litigation privilege. Snook also contends
that her communications to police are protected by the litigation privilege.
Park III further contends that the cease-and-desist letter sent by an attorney
on behalf of the HOA board falls within the litigation privilege, and that
Groth’s allegations concerning Snook’s statements fall within that privilege.
The Supreme Court has interpreted the litigation privilege to prevent
any secondary suit raised solely from communications related to any
proceeding authorized by law. (Rubin v. Green (1993) 4 Cal.4th 1187, 1196-
20
1198.) The privilege applies to statements, communications, court filings,
and other communications outside the confines of a proceeding when
“required or permitted by law in the course of a judicial proceeding to achieve
the objects of the litigation.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.)
The litigation privilege appears to bar allegations that rely on the civil
harassment complaint, the DFEH complaint, and the cease-and-desist letter.
We do not direct those allegations be stricken because they may provide
evidentiary value for the remaining claims. However, we express no opinion
regarding whether this evidence would be admissible or survive a litigation
challenge in a future proceeding or different context.
IV. Substantive Claims
The gravamen of Snook’s and Park III’s arguments on appeal is that
the cross-complainants do not offer sufficient evidence to meet their prima
facie burden. In addition to challenging the admissibility of the cross-
complainants’ evidence, Snook and Park III also challenge the substance of
the evidence.
A. FHA, FEHA, and Unruh Civil Rights Act Causes of Action
Snook contends her decisions to enforce the HOA rules and regulations
falls within the business judgment rule and the doctrine of judicial deference.
She and Park III argue that the citations issued to cross-complainants were
based on observable violations of the CC&R’s.
They also challenge the substance of the declarations. They contend
that the declarations do not describe activity by Snook to support the claim
that she authored the offending letters, that Groth’s declaration is self-
serving and speculative, and that Edwards’s, Contreras’s, and Mainor’s
declarations fail to prove there was selective enforcement of the CC&R’s
based on unlawful bias.
21
The business judgment rule protects directors from personal liability
when they make decisions that result in damage or loss to another as long as
those decisions were made in good faith, consistent with the inquiry an
ordinary, prudent person would make, believed to be in the best interest of
the HOA. (See Corp. Code, § 7231, subd. (a).) Moreover, the rule applying
judicial deference to homeowner associations requires the decisions to
represent good faith efforts to further the purpose of the common interest
development, to be consistent with the community’s governing documents,
and to comply with public policy. (Watts v. Oak Shores Community Assn.
(2015) 235 Cal.App.4th 466, 473, discussing Lamden, supra, 21 Cal.4th at
p. 265; see Fountain Valley Chateau Blanc Homeowner’s Assn. v. Department
of Veterans Affairs (1998) 67 Cal.App.4th 743, 754-755.) These defenses do
not create blanket immunity for all decisions or actions of homeowners
associations.
Moreover, as we explained ante, we may consider inferences as well as
direct evidence to determine whether there is prima facie evidence of the
cross-complainants’ claims. “[T]he proper inquiry in the context of an anti-
SLAPP motion ‘is whether the plaintiff proffers sufficient evidence for such
an inference.’ ” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811,
822; followed in Jenni Rivera Enterprises, LLC v. Latin World Entertainment
Holdings, Inc. (2019) 36 Cal.App.5th 766, 781.) Indeed, “ ‘to satisfy due
process, the burden placed on the plaintiff must be compatible with the early
stage at which the motion is brought and heard [citation] and the limited
opportunity to conduct discovery . . . .’ ” (Hardin v. PDX, Inc. (2014) 227
Cal.App.4th 159, 166; see Integrated Healthcare Holdings, Inc. v. Fitzgibbons
(2006) 140 Cal.App.4th 515, 530 [“We are inclined to allow the plaintiff in a
[special motion to strike] a certain degree of leeway in establishing a
22
probability of prevailing on its claims due to ‘the early stage at which the
motion is brought and heard [citation] and the limited opportunity to conduct
discovery’ ”].)
The declarations recount instances of selective enforcement of
violations generally, enforcement of violations against African-American
residents, negative interactions with African-American residents that
included the use of a racial slur, and letters that targeted residents of color
and those of foreign descent attributable to Snook on behalf of the HOA. We
conclude that, considered together, the declarations allow a trier of fact to
draw sufficient inferences to support the cross-complainants’ claims. (See
Issa v. Applegate (2019) 31 Cal.App.5th 689, 702 [“[t]he ‘burden of
establishing a probability of prevailing is not high’ ”]; Whitehall v. County of
San Bernardino (2017) 17 Cal.App.5th 352, 363-364, [same].)
Moreover, the cross-complainants’ claims of racial animus and willful
misconduct are not compatible with the good faith requirement of the
business judgment rule and the doctrine of judicial deference. Although
Snook and Park III contend that they acted reasonably and in good faith,
citing to their efforts to determine who authored and disseminated the
communications, the cross-complainants’ evidence contradicts those claims.
Snook and Park III have not shown that application of these doctrines would,
as a matter of law, defeat the cross-complaint claims. At most, they create
factual disputes for a trier of fact to resolve.
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B. Defamation Cause of Action
Snook contends that the cross-complainants cannot show a probability
of success on the defamation claim because the allegations giving rise to it
are absolutely privileged.
Although Snook appears to concede that at least one of the letters is a
publication that could give rise to a defamation cause of action, she maintains
that there is not sufficient evidence that she authored the letters, so any
defamatory statements cannot properly be attributed to her. This argument
does not overcome the evidence offered by the cross-complainants.
We observe that not all the communications were raised in the context
of litigation or other official proceedings, and as we explained ante, the issue
of authorship is a factual one. We cannot say, as a matter of law, that Snook
did not author the offending and non-litigation-oriented communications.
The superior court explained in its minute order, and we agree, that “[w]hile
Snook vehemently denies having [authored the communications], permissible
inferences from the cross-complainants’ proffered evidence, i.e., the content of
the notices [ ] themselves; the purported signature of Snook on the notices;
the photos of Snook on the notices; cross-complainants’ denial of authorship
of the notices; Kirton’s claim that Snook called him a ‘N-word[ ]’; and[ ] the
declaration of Derek [Edwards] regarding prior instances of selective
enforcement and distribution of letters by Snook, considered collectively, are
sufficient to satisfy cross-complainants’ minimal Prong II burden of
establishing probability of prevailing on their defamation claim.”
Park III separately contends that the cross-complainants cannot meet
the requirements of a defamation cause of action because there is no evidence
Snook’s statements, including those made during her verbal confrontation
with Kirton, were made on behalf of the HOA. We disagree.
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Under the doctrine of respondeat superior, Snook’s acts are imputed
legally to Park III. (See Civ. Code, § 2330.) Snook was the president of the
board of directors of the HOA when the alleged conduct occurred. The April
20, 2019 communication identifies her as a resident and also as the board’s
president. The April 23, 2019 mailed letter to Mainor states that it is the
author’s “fiduciary duty as board president to protect our community from
residents like you and your son,” indicating it was written on behalf of the
board. The January 18, 2020 mailed correspondence states that Snook is the
board president who has been working hard to create a nice community, and
it references the other board members as her “team.” Below her signature is
her title (president) and “Park III Board of Directors.” Moreover, the cross-
complaint alleges that she acted as an agent of Park III and that Park III
knowingly accepted and ratified her conduct. Park III points to no evidence
that contradicts these allegations.
Park III points out that it is a named respondent in Snook’s DFEH
complaint as a reason that Snook’s comments cannot be attributed to
Park III. However, the content of that complaint addresses only some of the
conduct upon which the cross-complainants base their defamation cause of
action. Her complaint that the HOA board’s inaction resulted in continued
harassment is not necessarily inconsistent with the defamation allegations
based on other conduct undertaken on behalf of the HOA board.
C. IIED Cause of Action
Snook contends there is no evidence that she engaged in extreme and
outrageous conduct because she did not draft the letters or engage in any
other conduct that intimates racial animus. Park III adds that even
25
assuming Snook authored the communications, this is not evidence of
extreme and outrageous conduct.
As we detailed ante, the issue of authorship is one of fact. The cross-
complainants have introduced evidence that Snook authored the letters, and
we must accept that evidence as true at this stage. (Wilson, supra, 7 Cal.5th
at pp. 891-892.) Whether the conduct rises to the level of extreme and
outrageous conduct is, similarly, usually a determination made by the trier of
fact. (Spinks, supra, 171 Cal.App.4th at p. 1045.)
V. Park III’s Request for Attorney Fees and Costs
Because we conclude that the court properly denied the anti-SLAPP
motions, Park III is not a “prevailing defendant.” (Civ. Proc. Code, § 425.16,
subd. (c).) Thus, Park III is not entitled to attorney fees or costs.
DISPOSITION
The order is affirmed. Snook and Park III to bear their own costs on
appeal.
HUFFMAN, Acting P. J.
WE CONCUR:
IRION, J.
BUCHANAN, J.
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