Edwards v. Burkholder CA4/3 ( 2021 )

Filed 1/14/21 Edwards v. Burkholder CA4/3
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION THREE
GARY M. EDWARDS, as Trustee, etc.
et al.,
G058049
Plaintiffs and Respondents,
(Super. Ct. No. 30-2018-01025993)
v.
OPINION
RICHARD BURKHOLDER et al.,
Defendants and Appellants.
Appeal from an order of the Superior Court of Orange County, Robert J.
Moss, Judge. Affirmed. Request for judicial notice denied.
Veatch Carlson, Adam S. Levine, Serena L. Nervez, Richard F.
Dieffenbach; Lewis Brisbois Bisgaard & Smith, Ernest Slome and Jeffry A. Miller for
Defendants and Appellants.
Pistone Law Group, Thomas A. Pistone and Amy A. Mousavi for Plaintiffs
and Respondents.
* * *
This is an appeal from an order denying a special motion to strike under the
anti-SLAPP (strategic lawsuit against public participation) statute. (See Code Civ. Proc.,
§ 425.16 (§ 425.16).) The owners of a house in a planned community decided to
demolish their home and build a new one, but construction stalled due to disputes with
their homeowners association and next-door neighbors. The owners sued the association
and neighbors for interfering with their ability to make improvements to the property, and
the neighbors filed an anti-SLAPP motion, asserting the claims arose from their alleged
complaints to the association.
The trial court denied the anti-SLAPP motion, finding the challenged
claims did not arise from protected activity because the neighbors’ complaints to the
association were not made in connection with an issue of public interest. After reviewing
the record de novo, we conclude the court properly denied the anti-SLAPP motion, but on
different grounds than those provided in the court’s order. As we explain below, the
neighbors failed to meet their burden to identify any allegations of protected activity and
the claims for relief supported by them. (Baral v. Schnitt (2016) 1 Cal.5th 376, 396
(Baral) [“the moving defendant bears the burden of identifying all allegations of
protected activity, and the claims for relief supported by them”].) We therefore affirm.
FACTS
The following facts are taken from the complaint, declarations, and other
evidence submitted on the special motion to strike. (See § 425.16, subd. (b)(2).)
Harbor View Hills Homeowners Association (HOA) is a homeowners
association for a planned development in Corona Del Mar that contains approximately
449 homes. Richard and Anita Burkholder (Appellants) own a house in the development
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and are members of the HOA. They assert their property has a “valuable view” from the
master bedroom and its deck.
Gary and Naomi Edwards (Respondents) purchased the house next door to
Appellants in 2012. The following year, they applied to the HOA’s Architectural Review
Committee (ARC) for preliminary approval to demolish their property’s existing
structures and landscaping and build a new home and improvements. The ARC approved
the project in 2015 and authorized Respondents to proceed with construction.
Appellants signed off on the preliminary plans, but they refused to approve
amended plans to expand the project, asserting the new construction would obstruct their
views, which Appellants insisted were “original, intended and protected.” Respondents
countered that “cross views are not protected.” This led to a multi-year dispute between
Appellants and Respondents.
According to Appellants, they “complained repeatedly to the HOA and [the
ARC] that [Respondents’] project would block [their] protected view.” To the extent any
of those complaints were in writing, however, they are not in the record; nor does the
record include any other evidence or information about Appellants’ alleged complaints to
the HOA and the ARC.
As construction continued, Appellants assert Respondents did not comply
with the HOA’s governing documents. For example, it is alleged Respondents continued
construction beyond the allowed 18 months without reapplying for HOA approval,
installed solar panels without HOA approval, and began landscape and hardscape work
before distributing neighbor response forms. In 2017, the HOA applied for and obtained
a preliminary injunction barring Respondents from continuing with any construction or
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installation that had not been approved in writing by the HOA’s ARC.
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Appellants ask us to take judicial notice of the HOA’s complaint against
Respondents for injunctive and declaratory relief in that same case. We decline to do so.
Although Appellants’ anti-SLAPP motion included the HOA’s injunction against
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Attorneys for the HOA’s Board of Directors later sent a letter to all HOA
members clarifying the HOA’s policy on protecting owners’ views. Enclosed was a
document entitled “HVHS View Protection Clarification,” which stated, among other
things, that “[c]ross-property [v]iews are entitled to protection. A view of any point of
interest listed in Article VII of the CC&Rs is protected, even if the view of the point(s) of
interest is across another homeowner’s lot.” Although the document did not mention
Respondents’ project, it implicitly rejected Respondents’ position that “[c]ross-property
views are not protected.”
The following year, Respondents filed the instant action against the HOA,
Appellants, and Zachary Sham, who served as the HOA’s consulting architect and whom
Appellants had hired to remodel their home, for interfering with Respondents’ ability to
make improvements to their property, for failing to disclose Sham’s conflict of interest,
and for causing Respondents to sustain roughly $1 million in damages. In their operative
First Amended Complaint, Respondents asserted a claim against the HOA for breach of
fiduciary duty based on the failure to disclose Sham’s conflict of interest; a claim against
the HOA and Sham for negligence based on that same failure to disclose; a claim against
Sham for concealment of material facts; claims against the HOA, Sham, and Appellants
for aiding and abetting the HOA’s breach of fiduciary duty and for enforcement of the
HOA’s governing documents; a claim against Appellants and Sham for nuisance; and a
claim against Appellants for intentional interference with contractual relations.
Appellants filed an anti-SLAPP motion seeking to strike the four causes of
action against them and the complaint as a whole. They argued the complaint arises from
Respondents, it did not include the HOA’s complaint against Respondents for injunctive
and declaratory relief in that same case. Absent unusual circumstances, we do not take
judicial notice of evidence in support of an anti-SLAPP motion that was not presented to
the trial court. (Jenni Rivera Enterprises, LLC v. Latin World Entertainment Holdings,
Inc. (2019) 36 Cal.App.5th 766, 775, fn. 4.)
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conduct in furtherance of the exercise of their constitutional rights of petition and free
speech in connection with an issue of public interest—namely, their complaints to the
HOA Board and the ARC that Respondents’ project would block their view. They
further argued their HOA complaints were a matter of interest to all homeowners in the
development, any one of whom might be affected by a lawsuit allowing another owner to
obstruct his view, and that in defending their own interests, they benefitted the entire
community of homeowners.
The trial court denied the anti-SLAPP motion, finding Appellants had “not
shown that [Respondents’] claims against them are based on activity protected under
CCP 425.16(e).” The court explained its thinking: “While it appears that [Respondents’]
claims against [Appellants] are based, at least in part, on [Appellants’] complaints to the
HOA, and thus are made ‘in connection with’ a public forum, [Appellants] have failed to
show that their complaints to the HOA board and/or the ARC were made ‘in connection
with an issue of public interest.’ Rather, the ‘controversy’ here involves only
[Respondents’] construction, and [Appellants’] complaints that the construction would
interfere with their personal views.”
The trial court then reached this conclusion: “[Appellants] contend that
their statements to the HOA Board and ARC constitute a matter of public interest to all
members of the HOA, i.e. the right to protected views. [Citation.] This argument fails.
[Appellants] fail to explain how the actions of the HOA Board and/or the ARC as to the
dispute between [Appellants] and [Respondents], could or would affect any other
homeowner’s right to their protected views. Rather, it appears that [Appellants] want the
court to assume that their complaints regarding ‘view protection,’ somehow have some
precedential value for all homeowners.”
Appellants appeal the order denying their anti-SLAPP motion.
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DISCUSSION
The Legislature enacted the anti-SLAPP statute in 1992 in response to “a
disturbing increase in lawsuits brought primarily to chill the valid exercise of the
constitutional rights of freedom of speech and petition for the redress of grievances.”
(§ 425.16, subd. (a).) Such lawsuits “are commonly known as SLAPP suits (strategic
lawsuits against public participation)—litigation of a harassing nature, brought to
challenge the exercise of protected free speech [or petition] rights.” (Fahlen v. Sutter
Central Valley Hospitals (2014) 58 Cal.4th 655, 665, fn. 3.)
The anti-SLAPP statute authorizes a special motion to strike meritless
claims early in the litigation if the claims “aris[e] 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.” (§ 425.16,
subd. (b)(1).) Anti-SLAPP motions are “‘intended to resolve quickly and relatively
inexpensively meritless lawsuits that threaten free speech on matters of public interest.’”
(Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 619.)
When evaluating a special motion to strike, the trial court must engage in a
two-step analysis. “First, the court decides whether the defendant has made a threshold
showing that the challenged cause of action is one arising from protected activity. . . . If
the court finds such a showing has been made, it then determines whether the plaintiff has
demonstrated a probability of prevailing on the claim.” (Equilon Enterprises v.
Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) “Only a cause of action that satisfies
both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or
petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under
the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
We review a trial court’s order denying an anti-SLAPP motion de novo.
(Flatley v. Mauro (2006) 39 Cal.4th 299, 325 (Flatley).) The statute requires us to
“consider the pleadings, and supporting and opposing affidavits stating the facts upon
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which the liability or defense is based.” (§ 425.16, subd. (b)(2).) We therefore consider
not only Respondents’ complaint, but also the declarations filed in support of and in
opposition to the anti-SLAPP motion. We do not weigh the credibility of that evidence,
and we “‘“accept as true the evidence favorable to the plaintiff[s].”’” (Flatley, supra, at
p. 326.)
Turning to step one of the anti-SLAPP analysis, we must first decide
whether Appellants made a threshold showing that Respondents’ claims arose from an act
in furtherance of Appellants’ right of petition or free speech in connection with a public
issue. (§ 425.16, subd. (b)(1)). That is, did Appellants establish the complaint arises
from protected activity? “At the first step, the moving defendant bears the burden of
identifying all allegations of protected activity, and the claims for relief supported by
them.” (Baral, supra, 1 Cal.5th at p. 396.)
As is relevant here, the anti-SLAPP statute defines protected activity to
include: “(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.”
(§ 425.16, subd. (e), italics added.)
The parties devoted most of their briefing to debating whether Appellants’
complaints to the HOA about Respondents’ construction were “in connection with a
public issue” or “an issue of public interest”—an understandable approach given the trial
court’s ruling. However, we are concerned with a more preliminary issue: have
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Appellants identified any allegations in the complaint arising from protected activity?
2
After oral argument, we requested and received supplemental briefing from
the parties on this issue.
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As the moving parties, Appellants were required to “identify[ ] all
allegations of protected activity, and the claims for relief supported by them.” (Baral,
supra, 1 Cal.5th at p. 396.) After reviewing the record de novo, we conclude they failed
to meet this burden.
In their anti-SLAPP motion, Appellants generically asserted “the
underlying purpose of this lawsuit is to penalize them because they complained
repeatedly to the HOA and its architectural committee that [Respondents’] project would
block their protected view.” However, the record does not specifically identify those
alleged complaints, and we cannot discern whether they were in writing, when or how
they were made, or what any complaint contained. Further, Appellants’ motion did not
identify any allegation in the complaint referring to those complaints.
Because they did not identify allegations of protected activity, we conclude
Appellants have not carried their burden under the first prong of the anti-SLAPP analysis.
(See Baral, supra, 1 Cal.5th at p. 396 [“the moving defendant bears the burden of
identifying all allegations of protected activity, and the claims for relief supported by
them”].) We therefore do not reach the issue of whether Appellants’ alleged complaints
to the HOA concerned a public issue or a matter of public interest, nor do we address
prong two of the anti-SLAPP analysis (Respondents’ likelihood of prevailing on their
claims). We express no view on the merits of Respondents’ claims or of Appellants’
defenses.
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DISPOSITION
The order denying Appellants’ anti-SLAPP motion is affirmed.
Respondents shall recover their costs on appeal. (Cal. Rules of Court, rule 8.278(a)(1).)
GOETHALS, J.
WE CONCUR:
BEDSWORTH, ACTING P. J.
FYBEL, J.
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