Damon v. Ocean Hills Journalism Club

• Decision Date: 13 December 2000
• Docket Number: No. D034890.,D034890.
• Court: California Court of Appeals Court of Appeals
• Parties: Dennis E. DAMON, Plaintiff and Appellant, v. OCEAN HILLS JOURNALISM CLUB, et al., Defendants and Respondents.

102 Cal.Rptr.2d 205

85 Cal.App.4th 468

Dennis E. DAMON, Plaintiff and Appellant, v. OCEAN HILLS JOURNALISM CLUB, et al., Defendants and Respondents.

No. D034890.

Court of Appeal, Fourth District, Division 1.

December 13, 2000.

Certified for Partial Publication.¹

Laturno & Graves, David W. Graves and G. Ehrich Lenz, San Diego, for Plaintiff and Appellant.

Bragg, Short, Serota & Kuluva, Newport Beach, William P. Harris, III, San Diego, Lori D. Serota, Newport Beach, and Henry Nicholls, for Defendants and Respondents Ron Terry and Barney Feldman.

Gray, Cary, Ware & Freidenrich, Guylyn R. Cummins, Marcelle E. Mihaila and Joann F. Peters, San Diego, for Defendants and Respondents Ocean Hills Journalism

Club, Estate of Jack Hess, Rosmarie Treher, Sherry Marsh, Art Rosenberg, Estate of James J. Nihan, and Joe Grant.

HALLER, J.

Dennis E. Damon, a former manager of a homeowners association, brought a defamation complaint against several of the association members, two Board of Directors members, and a private homeowners association club.² The trial court granted defendants' motion to strike the complaint under California's anti-SLAPP statute. (Code Civ. Proc., § 425.16.) Damon appeals.

In the published portion of this decision, we hold the trial court properly determined the anti-SLAPP statute applied because the evidence showed the alleged defamatory statements were made "in a place open to the public or in a public forum" and concerned "an issue of public interest" within the meaning of Code of Civil Procedure section 425.16, subdivision (e)(3). In the unpublished portion of the opinion, we conclude Damon failed to satisfy his burden to show a probability he would prevail on his claims at trial, and failed to show the trial court erred in refusing to grant him relief from the statutory discovery stay.

FACTS

Leisure Village at Ocean Hills is a planned development residential community for seniors, consisting of 1,633 homes, a golf course and many other recreational facilities. The residents are members of the Ocean Hills Country Club Homeowners Association (Association), which is governed by a seven-member elected Board of Directors (Board). The Board's duties include managing all aspects of the Association, including security, maintenance, and the selection and removal of officers and employees. The Association's annual budget generally exceeds $3 million.

In 1994 through 1996, a professional company managed the Association under the Board's direction. In February 1996, the Board terminated these services and chose to become self-managed. The Board hired Damon, a retired United States Marine Corps officer, as its general manager. Damon had previously served as the Association's general manager under the direction of various professional management companies. Thereafter, Damon managed the Association's day-to-day operations under the Board's direction and supervised the approximately 60 Association employees.

By late 1996, many homeowners were displeased with Damon's management style and wanted to return to professional management. The homeowners were concerned about Damon's handling of numerous aspects of the Association, including the security department, employee relations, maintenance activities, and contractor selection. These homeowners began to express their views in articles, editorials, and letters to the editor in the Village Voice newsletter, which was published by a private homeowners club (Journalism Club) and was circulated to Association members and local businesses. The homeowners criticized Damon's competency to manage the Association and urged residents to replace Damon with a professional management company. The Village Voice was one of two newsletters for Ocean Hills residents; the other newsletter was the Board's official publication.

In March 1997, several Journalism Club members met with the Association's security department employees (many of whom were also Ocean Hills residents), who complained about Damon's management policies. When Damon learned of the meeting, he reminded the employees they were required to follow grievance procedures outlined in the personnel manual, rather than directing their complaints to Association members.

The 1996/1997 Board supported Damon's continued service. But in August 1997, the Association held the annual Board member elections, and the residents elected several new directors who wanted to return to professional management, including respondents Terry and Feldman. Terry and Feldman thereafter made comments during Board meetings that were critical of Damon's performance as general manager, and questioned Damon's competency and veracity. Additionally, Terry, who was the Board member responsible for overseeing the security department, authored memoranda discussing problems with Damon's management of that department and criticizing Damon's overall performance.

By the end of 1997, the senior citizen residents of Ocean Hills were largely split into two camps: those who favored Damon's continued service and those who wanted Damon terminated as general manager. One homeowner characterized the highly emotional atmosphere surrounding this dispute as a "war zone with verbal salvo[s] being lobbed back and forth," reflecting feelings of "hate and discontent" among the homeowners. Most residents were aware that the Village Voice publisher fell into the camp supporting Damon's termination.

At about this same time, Damon wrote an article in the official Association newsletter discussing the advantages and disadvantages of self-management, and urging the residents to maintain their selfmanaged governance status. The article was contained in Damon's regular monthly column that appeared in this newsletter.

In early 1998, some homeowners who supported Damon initiated a recall election to remove Terry and Feldman. The recall effort was unsuccessful; a majority of the homeowners supported Terry and Feldman. Damon thereafter notified the Association he did not intend to renew his contract. The Board declined his offer to continue his employment on a monthly basis until a replacement could be found. The homeowners later voted to return to professional management.

Damon then filed a defamation complaint against (1) the six Association members who had authored letters or articles published in the Village Voice criticizing Damon's performance; (2) Board members Feldman and Terry; and (3) the Village Voice publisher (the Journalism Club).

Defendants successfully moved to strike Damon's complaint under the anti-SLAPP statute, Code of Civil Procedure section 425.16 (section 425.16). The trial court found (1) Damon's complaint was subject to the anti-SLAPP statute because it arose from defendants' exercise of their free speech rights in connection with a public issue; and (2) Damon failed to show it was probable he would prevail on his claims because (a) he was a "limited-purpose" public figure who failed to demonstrate actual malice; and (b) the alleged defamatory statements were privileged and/or nonactionable opinions. Damon appeals.

DISCUSSION

In 1992, the Legislature enacted section 425.16 to provide a procedure for a court "to dismiss at an early stage nonmeritorious litigation meant to chill the valid exercise of the constitutional rights of freedom of speech and petition in connection with a public issue. [Citation.]" (Sipple v. Foundation for Nat. Progress (1999) 71 Cal. App.4th 226, 235, 83 Cal.Rptr.2d 677.) This type of nonmeritorious litigation is referred to under the acronym SLAPP, or strategic lawsuit against public participation. (Ibid.) In 1997, the Legislature added a provision to section 425.16 mandating that courts "broadly" construe the anti-SLAPP statute to further the legislative goals of encouraging participation in matters of public significance and discouraging abuse of the judicial process. (§ 425.16, subd. (a).)

When a plaintiff brings a SLAPP suit, the defendant may immediately move to strike the complaint under section 425.16. To prevail on this motion, the defendant must "make an initial prima facie showing that plaintiffs suit arises from an act in furtherance of defendant's right of petition or free speech." (Braun v Chronicle Publishing Co. (19987) 52 Cal. App.4th 1036, 1042-1043, 61 Cal.Rptr.2d 58.) If this burden is met, the plaintiff must establish a reasonable probability he or she will prevail on the merits. (Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 824-825, 33 Cal.Rptr.2d 446.) In determining whether each party has met its burden, the trial court must "consider the pleadings, and supporting and opposing affidavits . . . ." (§ 425.16, subd. (b)(2).) These determinations are legal questions, and we review the record de novo. (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548, 46 Cal.Rptr.2d 880.)

Under these standards, we examine the record to determine whether the court properly granted defendants' motion to strike under section 425.16.

I. Damon's Defamation Claims Come Within the Anti-SLAPP Statute

Section 425.16, subdivision (b)(1) states that the statute applies when the cause of action arises from "any act . . . in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue.. . ." (Italics added.) Section 425.16, subdivision (e) defines this italicized phrase as including four categories. The first two categories pertain to statements or writings made before, or in connection with, a "legislative, executive or judicial body, or any other official proceeding . . . ." (§ 425.16, subd. (e)(1), (2).) The third category involves statements or writings made "in a place open to the public or in a public forum." (§ 425.16, subd. (e)(3).) The fourth category includes "any other conduct in furtherance of free speech or petition rights. (§ 425.16, subd. (e)(4).) The latter two categories require a specific showing the action concerns a...