Filed 3/23/17 (unmodified opn. attached)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
RICHARD C. COLYEAR, B270396
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS150539)
v.
ORDER MODIFYING OPINION
AND DENYING PETITION FOR
ROLLING HILLS COMMUNITY REHEARING
ASSOCIATION OF RANCHO PALOS
VERDES et al., [NO CHANGE IN JUDGMENT]
Defendants and Respondents.
THE COURT:
It is ordered that the opinion filed herein on February 28, 2017, be
modified as follows:
1. In the second section, under the heading “Factual and Procedural
History” and the subheading “A. Background,” the first sentence should be
deleted and replaced with the following language: Liu and Colyear are
both homeowners in the planned residential community of Rolling Hills,
located in the City of Rolling Hills.
2. In the same section, under the subheading “B. Liu’s Application
and Colyear’s Complaint,” in the paragraph that begins “As an adjoining
property owner” the following phrase should be deleted: , but did not
otherwise seek relief from Liu. So the sentence now reads: Colyear
alleged that Liu’s application “may implicate” trees on Colyear’s property.
The court has received and considered Appellant’s Petition for
Rehearing. The Petition for Rehearing is DENIED.
____________________________________________________________
EPSTEIN, P.J. MANELLA, J. COLLINS, J.
2
Filed 2/28/17 (unmodified version)
CERTIFIED FOR PUBLICATION
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FOUR
RICHARD C. COLYEAR, B270396
Plaintiff and Appellant, (Los Angeles County
Super. Ct. No. BS150539)
v.
ROLLING HILLS COMMUNITY
ASSOCIATION OF RANCHO PALOS
VERDES et al.,
Defendants and Respondents.
APPEAL from a judgment of the Superior Court of
Los Angeles County, Robert Leslie Hess, Judge. Affirmed.
Law Offices of Michael D. Berk, Michael D. Berk; Greines,
Martin, Stein & Richland, Kent Richland and Jonathan H.
Eisenman for Petitioner and Appellant.
Hanson Bridgett, Christopher David Jensen; Alice Liu
Jensen for Defendant and Respondent Yu Ping Liu.
INTRODUCTION
Defendant homeowner Yu Ping Liu submitted an
application to his homeowners association, defendant Rolling
Hills Community Association of Rancho Palos Verdes (HOA),
seeking to invoke the HOA’s dispute resolution process against a
neighbor who refused to trim trees blocking Liu’s view. Plaintiff
Richard Colyear, another neighbor and HOA member, sued Liu
and the HOA, alleging that two of the offending trees were
actually on his property, that the relevant tree-trimming
covenant did not encumber his property, and therefore that Liu
and the HOA were wrongfully clouding his title by seeking to
apply such an encumbrance. Liu filed a special motion to strike
the claims alleged against him under Code of Civil Procedure
section 425.16, the anti-SLAPP statute.1 The trial court granted
the motion and Colyear now appeals.
We conclude Liu has made a prima facie showing that
Colyear’s complaint arises from Liu’s statements made in
connection with an issue of public interest, and therefore Liu’s
statements are protected under section 425.16, subdivision (e)(4)
(section 425.16(e)(4)). In addition, Colyear cannot show a
probability of success on the merits of his claims against Liu,
particularly because Liu dismissed his application shortly after
the lawsuit was filed and has never sought to invoke the HOA’s
tree-trimming process against Colyear. We therefore affirm.
1SLAPP is an acronym for Strategic Lawsuit Against
Public Participation. All further statutory references are to the
Code of Civil Procedure unless stated otherwise.
2
FACTUAL AND PROCEDURAL HISTORY
A. Background
Liu and Colyear are both homeowners in Rancho Palos
Verdes, a planned residential community in the city of Rolling
Hills. The property immediately north of Liu’s property is owned
by Richard and Kathleen Krauthamer. Colyear’s property is
directly east of the Krauthamer’s property, and kitty-corner to
Liu’s property. Liu, Colyear, and the Krauthamers are all
members of the HOA.
Each home within the community is subject to a
declaration of covenants, conditions, and restrictions (CC&Rs).
The original declaration recorded in 1936, Declaration 150, set
forth the specific property to be included in the community,
conferred authority on the HOA to (among other things)
“interpret and enforce” the CC&Rs, and detailed a number of
CC&Rs applicable to the specified lots. As relevant here, in
article I, section 11, Declaration 150 conferred upon the HOA
“the right at any time to enter on or upon any part” of a property
subject to that declaration “for the purpose of cutting back trees
or other plantings which, in the opinion of the [HOA], is
warranted to maintain and improve the view of, and protect,
adjoining property.”
As the community expanded, the HOA entered into new
declarations covering the additional properties; those
declarations contained provisions that were similar, but not
identical, to Declaration 150. Declaration 150-M, recorded in
1944, added the property including the lots now owned by Liu,
Colyear, and the Krauthamers. Liu does not dispute that these
three lots are burdened by Declaration 150-M, rather than by
Declaration 150, and that 150-M does not contain a provision
3
similar to that in Declaration 150 regarding tree trimming.2
According to Colyear, Declaration 150 applies to approximately
84 lots, Declaration 150-M applies to approximately 14 lots, and
other declarations cover an additional 657 lots. Ultimately, the
community subject to HOA jurisdiction grew to encompass the
same boundaries as the city of Rolling Hills. (See Russell v. Palos
Verdes Properties (1963) 218 Cal.App.2d 754, 758, disapproved of
on another ground by Citizens for Covenant Compliance v.
Anderson (1995) 12 Cal.4th 345.)
The HOA is governed by a board of directors. Starting in
1997, the board adopted resolutions to “establish procedures for
its members to utilize the authority of the [HOA] to correct view
impairments created by trees or other plantings.” The board
adopted the most recent version, Resolution 220, in 2012.
Resolution 220 quoted the tree-trimming provision in article I,
section 11 of Declaration 150 and stated that it “applies to some,
if not all, properties in the City of Rolling Hills.” Resolution 220
further made the following findings: “WHEREAS, the [HOA] has
held public meetings, circulated drafts of policy alternatives, and
received numerous written and oral communications from its
members; [¶] WHEREAS, Rolling Hills enjoys both beautiful
views and an abundance of mature trees, and values both . . . ;
[¶] WHEREAS, the [HOA] wishes to adopt both guidelines and
establish procedures for its members to utilize the authority of
the [HOA] to correct view impairments, which cannot be resolved
between the parties; [¶] WHEREAS, the Deed Restrictions give
the [HOA] ‘. . . the authority to exercise such powers of control,
2Whether other, more general language in Declaration 150-
M could be applied to confer the same authority, as Liu seems to
suggest, is not at issue in this appeal.
4
interpretation, construction, consent, decision, determination . . .
and/or enforcement of covenants . . . as far as may legally be
done.’” Based on these and other findings, Resolution 220
established guidelines for processing “all view impairment
applications” submitted to the HOA, including submission of an
application by the homeowner requesting tree removal, payment
by the applicant of an administrative fee and agreement to pay
the entire cost of tree trimming or removal, notice sent by the
HOA to the affected owner and contiguous property owners, a
decision and report by a View Committee, and a process by which
to appeal that decision to the board. Resolution 220 also noted
that the “City of Rolling Hills Ordinance Chapter 17.26 provides
a procedure for abatement of view impairment; so [HOA]
members have another alternative for view restoration.”
As early as 2002, Colyear began to inquire of the board
(based on the predecessor to Resolution 220) whether it was the
HOA’s position that the tree-trimming provision was enforceable
against his lot. At the time, he was told it was not, and he would
“have to use the City’s Ordinance” to settle any view disputes.
B. Liu’s Application and Colyear’s Complaint
In January 2015, in accordance with the process outlined in
Resolution 220, Liu filed an “Application for Assistance to
Restore View” with the HOA, identifying the Krauthamer
property as the location of the obstructing trees or shrubs. In a
statement attached to the application, Liu explained that the
view from his residence was obstructed by several trees and
hedges on the south side of the Krauthamers’ property. He said
he had attempted to resolve the issue by speaking to Richard
Krauthamer starting in late 2012, and by contacting the HOA’s
city manager in June 2013 and requesting that she informally
5
mediate the dispute. As a result, according to Liu, Krauthamer
agreed to trim his trees but never did so. Liu also attached to his
application several photographs of the offending trees and
hedges. The application does not reference Colyear or Colyear’s
property.
As an adjoining property owner, Colyear received notice of
Liu’s application shortly after it was submitted. Colyear then
filed the instant action on March 4, 2015, seeking writ relief and
naming Liu, the HOA, its board, and individual board members
as respondents. Colyear alleged that Liu’s application “may
implicate” trees on Colyear’s property, but did not otherwise seek
relief from Liu.
Liu withdrew his application to the HOA on April 14, 2015.
As a result, the HOA never issued any decision on the
application. Following the withdrawal, the HOA had no pending
applications involving either Liu or Colyear’s property.
In August 2015, the trial court sustained the demurrers
filed by all defendants, and granted leave to amend. Colyear filed
an amended pleading, including a petition for writ of traditional
mandate and prohibition against the HOA and its board, and a
verified complaint “for Declaratory Relief, Injunctive Relief, To
Quiet Title, and for Damages” against all defendants (FAC). The
FAC sought a declaration, among other things, that Colyear’s lot
was not subject to the tree-trimming covenant in Declaration 150
and that such covenant could not be enforced against his lot or
other lots not encumbered by that declaration, and that
Resolution 220 was void to the extent it purported to enforce such
tree-trimming covenants in this manner. Colyear further alleged
that some of the offending trees designated by Liu on the photos
attached to his application were on Colyear’s lot, thus Liu “sought
6
to apply the Liu Application to cut back trees and plantings on
Colyear’s lot.” Moreover, although Liu had withdrawn his
application, Colyear alleged that Liu “expressly refused to
acknowledge and agree” that he would not in the future “seek to
enforce the Trees and Plantings Covenant against Colyear’s lot.”
The FAC also sought to quiet title “to Colyear’s lot against
adverse claims” by defendants “in that each claims that Colyear’s
lot is covered by the Trees and Plantings Covenant in
Declaration150, although Colyear’s lot is not covered by the Trees
and Plantings Covenant, and seeks, or claims the right to seek, to
enforce the Trees and Plantings Covenant against Colyear’s lot.”
In addition, the FAC sought injunctive relief barring defendants
from seeking to enforce the relevant covenant against Colyear’s
lot or any other lots not encumbered by Declaration 150, as well
as compensatory and punitive damages from the HOA and the
board for alleged fraud and breaches of fiduciary duties.
C. Liu’s Anti-SLAPP Motion
Liu filed a special motion to strike the FAC pursuant to
section 425.16, arguing that his view impairment application was
protected under section 425.16(e)(4), as it constituted a written
statement made in connection with an issue of public interest.3
Further, he asserted Colyear could not establish a probability of
success on his claims based on standing, mootness, and ripeness
grounds.
3 Liu’s motion also stated in passing that his conduct should
be protected under section 425.16(e)(2) as a statement “made in
connection with an issue under consideration or review” by an
“official proceeding authorized by law,” but offered no other
argument or citation on this point.
7
Colyear opposed the motion to strike, arguing that Liu’s
application to the HOA involved a private matter and thus was
not protected conduct and that Colyear’s lawsuit did not arise out
of the application, but rather from the “underlying controversy”
regarding the proper application of Declaration 150. In his
accompanying declaration, Colyear stated he had “confirmed”
that two of the trees identified in Liu’s application were located
on Colyear’s lot. Specifically, Colyear declared, “I [have] carefully
reviewed the photograph or photographs attached to the Liu
Application . . . which . . . has arrows added to it to point to trees
that Liu requested to be cut. . . . I also walked my lot and the
Krauthamers’ lot in the area where both lots meet the Liu
property. Based on those observations, I now know for a fact that
the trees and plantings that Liu claims in the Liu Application
should be cut include two trees on my lot.”4 Colyear also declared
his belief that “the Board’s acceptance of the Liu Application and
initiation of proceedings for enforcement of the Trees and
Plantings Covenant on behalf of Liu . . . clouds and encumbers
the title to the Krauthamers’ lot and to my lot, as well as such
other lots and decreases the utility and market value of those
lots.” The Krauthamers both submitted declarations stating they
“believed” one or two of the trees at issue was on Colyear’s lot.
Colyear attached numerous exhibits in support of his
opposition, including Declarations 150 and 150-M, Resolution 220
4The trial court subsequently granted Liu’s objections to
multiple paragraphs in Colyear’s declaration, including these
statements regarding the placement of two trees. During oral
argument, the court noted Colyear’s declaration provided no
foundation for how Colyear “knew where the boundary line” lay
between his and the Krauthamers’ property and that Colyear’s
statements were conclusory.
8
and its predecessors, and Liu’s application. He also attached his
correspondence to the board in 2002, as well as letters from
several other homeowners on the same issue. In a letter dated
September 4, 2002, addressed to the board and the attorney for
the HOA, homeowner Philip Belleville referenced his
presentation made at a prior hearing “on the proposed Resolution
concerning trees and view,” and then reiterated his position that
the proposed resolution should not purport to apply to all
properties, including those not encumbered with a tree-trimming
provision in the applicable CC&Rs. Belleville noted that, while
he does “not have a view to protect,” he was nevertheless “vitally
interested” in the issue, including the potential for exposure to
expensive litigation against the HOA resulting in increased fees
to the members and because “[i]t is very disturbing that the
proposed Resolution exceeds the norms for such provisions of
similar communities.” Belleville sent another letter in late 2005
objecting to proposed changes in Resolution 181 (a predecessor to
220), noting that the prior resolution had been adopted “after
numerous hearings and public participation” and again objecting
to language that could “wrongly cloud the property rights of the
Members involved” and “lead to more costly and alienating
litigation.” Another homeowner wrote a similar letter in 2015.
The trial court granted Liu’s motion. First, the court found
Liu had met his burden to establish his conduct was protected
under section 425.16(e)(4) because “the issue of view” was one of
“general concern” to the homeowners in the community. Liu was
“attempting to invoke the view covenants in his particular favor,
but they are view covenants that impact, if not all, then a
significant number of the people in this community association.”
The trial court further found that Colyear’s lawsuit arose out of
9
Liu’s protected conduct, noting that Liu’s application was the
reason Colyear filed this action. Finally, the court found that
Colyear had not carried his burden to show probability of success
on the merits, particularly following the dismissal of Liu’s
application.
Colyear timely appealed the granting of the motion to
strike.
DISCUSSION
I. Section 425.16 and Standard of Review
“A SLAPP is a civil lawsuit that is aimed at preventing
citizens from exercising their political rights or punishing those
who have done so. ‘“While SLAPP suits masquerade as ordinary
lawsuits such as defamation and interference with prospective
economic advantage, they are generally meritless suits brought
primarily to chill the exercise of free speech or petition rights by
the threat of severe economic sanctions against the defendant,
and not to vindicate a legally cognizable right.”’ [Citations.]”
(Simpson Strong–Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21
(Simpson ).)
The Legislature has declared that “it is in the public
interest to encourage continued participation in matters of public
significance, and . . . this participation should not be chilled
through abuse of the judicial process.” (§ 425.16, subd. (a).) To
this end, the Legislature enacted section 425.16, subdivision
(b)(1), which authorizes the filing of a special motion to strike for
“[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.” [T]he Legislature
expressly provided that the anti-SLAPP statute ‘shall be
10
construed broadly.’ (§ 425.16, subd. (a).)” (Simpson, supra, 49
Cal.4th at p. 21.)
Analysis of a motion to strike pursuant to section 425.16
involves a two-step process. (Simpson, supra, 49 Cal.4th at p.
21.) “First, the defendant must make a prima facie showing that
the plaintiff’s ‘cause of action . . . aris[es] from’ an act by the
defendant ‘in furtherance of the [defendant’s] right of petition or
free speech . . . in connection with a public issue.’ (§ 425.16, subd.
(b)(1).) If a defendant meets this threshold showing, the cause of
action shall be stricken unless the plaintiff can establish ‘a
probability that the plaintiff will prevail on the claim.’ [Ibid.]”
(Simpson, supra, 49 Cal.4th at p. 21, fn. omitted.) “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 be stricken under
the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)
We review a trial court’s decision on a special motion to
strike de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) In
engaging in the two-step process, we consider “the pleadings, and
supporting and opposing affidavits stating the facts upon which
the liability or defense is based.” (§ 425.16, subd. (b)(2).)
“However, we neither ‘weigh credibility [nor] compare the weight
of the evidence. Rather, [we] 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.’ [Citation.]” (Soukup v. Law
Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3
(Soukup).)
11
II. Liu’s Claims Arise From Protected Activity
Under the first prong of a motion to strike under section
425.16, the moving party has the burden of showing that the
cause of action arises from an act in furtherance of the right of
free speech or petition—i.e., that it arises from a protected
activity. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) Thus, the
moving party must establish both (1) that its act constituted
protected activity; and (2) the opposing party’s cause of action
arose from that protected activity. Colyear challenges Liu’s
showing on both of these steps, so we examine each in turn.
A. Protected Activity
First, we must determine whether Liu’s speech was in fact
protected conduct. To meet this burden, Liu must demonstrate
that his statements fit one of the four categories of conduct set
forth in section 425.16, subdivision (e): “(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.”
Liu asserts his conduct is protected under subdivision (e)(2)
as a statement made in connection with an “official proceeding
authorized by law,” or, alternatively, under subdivision (e)(4) as a
statement made in connection with “an issue of public interest.”
12
We agree that Liu’s conduct here is protected by section
425.16(e)(4); thus, we need not reach the issue of whether the
HOA process is an “official proceeding” under subdivision (e)(2).
Colyear argues that Liu’s application involved a private
tree-trimming dispute between two neighbors and therefore does
not qualify as a matter of “public interest.” “Section 425.16 does
not define ‘an issue of public interest.’ Nevertheless, the statute
requires the issue to include attributes that make it one of public,
rather than merely private, interest. [Citation.] A few guiding
principles can be gleaned from decisional authorities. For
example, ‘public interest’ is not mere curiosity. Further, the
matter should be something of concern to a substantial number of
people. Accordingly, a matter of concern to the speaker and a
relatively small, specific audience is not a matter of public
interest. Additionally, there should be a degree of closeness
between the challenged statements and the asserted public
interest. The assertion of a broad and amorphous public interest
that can be connected to the specific dispute is not sufficient.
[Citation.] One cannot focus on society’s general interest in the
subject matter of the dispute instead of the specific speech or
conduct upon which the complaint is based.” (Grenier v. Taylor
(2015) 234 Cal.App.4th 471, 481 (Grenier).) Cases that have
found an issue of public interest have done so where “the subject
statements either concerned a person or entity in the public eye
[citations], conduct that could directly affect a large number of
people beyond the direct participants [citations] or a topic of
widespread, public interest [citation].” (Rivero v. American
Federation of State, County and Municipal Employees, AFL–CIO
(2003) 105 Cal.App.4th 913, 924 (Rivero).)
13
Within these parameters, “‘public interest’ within the
meaning of the anti-SLAPP statute has been broadly defined to
include, in addition to government matters, ‘“private conduct that
impacts a broad segment of society and/or that affects a
community in a manner similar to that of a governmental
entity.”’ (Du Charme v. International Brotherhood of Electrical
Workers (2003) 110 Cal.App.4th 107, 115.)” (Ruiz v. Harbor View
Community Assn. (2005) 134 Cal.App.4th 1456, 1468 (Ruiz).)
“[I]n 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, supra, 110 Cal.App.4th at p. 119; see also Grenier,
supra, 234 Cal.App.4th at p. 482.)
Applying these principles, several courts have found
protected conduct in the context of disputes within a homeowners
association. In Ruiz, for example, a homeowner sued his
homeowners association alleging letters written by association
counsel defamed him. (Ruiz, supra, 134 Cal.App.4th at p. 1463-
1465.) The letters concerned a dispute over the association’s
rejection of Ruiz’s building plans, and Ruiz’s complaints that the
association was not applying its architectural guidelines
evenhandedly. (Ibid.) The court concluded the letters fell within
section 425.16(e)(4), noting, (a) the letters were written during an
ongoing dispute between Ruiz and the association over denial of
Ruiz’s plans and the application of the association’s architectural
guidelines, and (b) the dispute was of interest to a definable
14
portion of the public, i.e., residents of 523 lots, because they
“would be affected by the outcome of these disputes and would
have a stake in [association] governance.” (Id. at pp. 1467-1469.)
Moreover, the attorney’s letters “were part of the ongoing
discussion over those disputes and ‘contribute[d] to the public
debate’ on the issues presented by those disputes. [Citation.]”
(Id. at p. 1469.)
Similarly, in Country Side Villas Homeowners Assn. v. Ivie
(2011) 193 Cal.App.4th 1110, 1113, the homeowner raised
objections with her homeowners association over a change in
practices regarding whether individual homeowners or the
association had responsibility to pay for maintaining balconies
and siding on individual units. The association filed suit against
Ivie, seeking declaratory relief in interpreting the association’s
governing documents regarding maintenance obligations. (Ibid.)
The court found that Ivie’s complaints to the board were a matter
of public interest, because her statements concerned issues “that
affected all members of the association,” including whether all
members would have to pay for maintenance costs assumed by
the association. (Id. at p. 1118; see also Damon v. Ocean Hills
Journalism Club (2000) 85 Cal.App.4th 468, 479 [protecting
allegedly defamatory statements about the competence of a
manager of a homeowners association]; Lee v. Silveira (2016) 6
Cal.App.5th 527, 540 [protecting complaints by homeowners
association board members against other board members
regarding board’s decision-making process in approving a large
roofing project and a management company contract, as affecting
“a broad segment, if not all,” association members]; Grenier,
supra, 234 Cal.App.4th at p. 483 [defamatory statements
accusing church pastor of theft and misuse of church funds, and
15
of abuse, are of interest to the church’s 500 or more members,
and therefore are of “public interest”]; Ludwig v. Superior Court
(1995) 37 Cal.App.4th 8, 15 [concluding that development of a
mall, “with potential environmental effects such as increased
traffic and impaction on natural drainage, was clearly a matter of
public interest”].) By contrast, in Rivero, supra, 105 Cal.App.4th
at p. 924, the court rejected anti-SLAPP protection for complaints
in a union newsletter alleging a janitorial supervisor mistreated
his employees. The court held that the allegedly defamatory
statements were not a matter of public interest as they concerned
“the supervision of a staff of eight custodians by Rivero, an
individual who had previously received no public attention.”
(Ibid.)
Here, the record presents sufficient evidence to sustain
Liu’s burden that at the time he submitted his application, there
was an ongoing controversy, dispute, or discussion regarding the
applicability of tree-trimming covenants to lots not expressly
burdened by them, and the HOA’s authority to enforce such
covenants. While the evidence in the record is somewhat sparse,
it is sufficient to show that the issue was an ongoing topic of
debate between the board and homeowners, resulting in multiple
hearings, letters, and several changes to the board’s policy on the
matter starting as early as 2002 and continuing up to the current
dispute. In this context, Liu’s application sought to invoke the
HOA process at the center of that dispute, as he invoked the
process under Resolution 220 to request authority from the board
to trim trees on a neighbor’s property that admittedly was not
expressly burdened by Declaration 150. Indeed, this is the crux
of Colyear’s argument for injecting himself into this dispute—
that Liu’s conduct in submitting the application unleashed a
16
process unfair to Colyear and all other homeowners not subject to
a tree-trimming covenant and thereby clouded his title with an
improper encumbrance. As such, Colyear’s current suggestion
that Liu’s application involves nothing more than a private tree-
trimming dispute between two neighbors is unavailing.
Colyear does not dispute that the issue of the board’s
authority to apply tree-trimming covenants to all lots in the
community is a subject of interest to the entire membership of
the community, and therefore meets the definition of “public
interest” under section 425.16(e)(4). (See, e.g., Damon, supra, 85
Cal.App.4th at p. 479 [“Although the allegedly defamatory
statements were made in connection with the management of a
private homeowners association, they concerned issues of critical
importance to a large segment of our local population. ‘For many
Californians, the homeowners association functions as a second
municipal government. . . .’ [Citation.]”].) Instead, he argues
that the proper focus for this step in the anti-SLAPP inquiry
must be much narrower, and that here, Liu’s application only
directly involved two homeowners—Liu and the Krauthamers—
and was therefore a private dispute rather than an issue of public
interest. Colyear further asserts that to the extent his complaint
raised the broader issues of enforceability of the tree-trimming
covenant and HOA governance, his conduct cannot serve to
insulate Liu’s statements. We agree with the principle that we
must avoid looking to “society’s general interest in the subject
matter of the dispute instead of the specific speech or conduct
upon which the complaint is based.” (World Financial Group,
Inc. v. HBW Ins. & Financial Services, Inc. (2009) 172
Cal.App.4th 1561, 1570; see also Commonwealth Energy Corp. v.
Investor Data Exchange, Inc. (2003) 110 Cal.App.4th 26, 34
17
[cautioning against the “synecdoche theory of public issue in the
anti-SLAPP statute,” where “[t]he part [is considered]
synonymous with the greater whole”].)
However, we are not persuaded that Liu’s statement here
lacks the requisite degree of closeness with the asserted public
interest. As discussed, Liu’s application itself invoked the same
HOA processes that Colyear (and other community members)
sought to challenge. The cases rejecting anti-SLAPP protection
on this basis involve a much greater level of abstraction to a
“broad and amorphous public interest,” and are thus
distinguishable. (WFG, supra, 172 Cal.App.4th at p. 1570
[rejecting defendants’ attempt to tie their conduct—allegedly
reaching out to their former employer’s customers to promote a
competitor business—to broader issues of employee mobility and
competition]; see also, e.g., Consumer Justice Center v. Trimedica
International, Inc. (2003) 107 Cal.App.4th 595, 601 [“Trimedica’s
speech is not about herbal supplements in general. It is
commercial speech about the specific properties and efficacy of a
particular product.”]; Commonwealth, supra, 110 Cal.App.4th at
p. 34 [“hawking an investigatory service is not an economics
lecture on the importance of information for efficient markets”].)
Accordingly, we conclude Liu has established he made a
statement in connection with an issue of public interest within
the meaning of section 425.16(e)(4).
B. Claim Arises From Protected Activity
We next turn to Colyear’s claim that, even if Liu’s
statement was protected, Colyear’s complaint did not arise out of
that statement. We disagree.
“Our Supreme Court has recognized the anti-SLAPP
statute should be broadly construed [citation] and that a plaintiff
18
cannot avoid operation of the anti-SLAPP statute by attempting,
through artifices of pleading, to characterize an action as a
garden variety tort or contract claim when in fact the claim is
predicated on protected speech or petitioning activity. [Citation.]
Accordingly, we disregard the labeling of the claim [citation] and
instead ‘examine the principal thrust or gravamen of a plaintiff’s
cause of action to determine whether the anti-SLAPP statute
applies’. . . . [Citation.]” (Hylton v. Frank E. Rogozienski, Inc.
(2009) 177 Cal.App.4th 1264, 1271-1272.) We assess the
principal thrust by identifying “[t]he allegedly wrongful and
injury-producing conduct . . . that provides the foundation for the
claim.” (Martinez v. Metabolife Internat., Inc. (2003) 113
Cal.App.4th 181, 189.) “If the core injury-producing conduct upon
which the plaintiff’s claim is premised does not rest on protected
speech or petitioning activity, collateral or incidental allusions to
protected activity will not trigger application of the anti-SLAPP
statute. [Citation.]” (Hylton, supra, 177 Cal.App.4th at p. 1272.)
“[T]he critical point is whether the plaintiff’s cause of action itself
was based on an act in furtherance of the defendant’s right of
petition or free speech.” (City of Cotati v. Cashman (2002) 29
Cal.4th 69, 78.) “In other words, ‘the defendant’s act underlying
the plaintiff’s cause of action must itself have been an act in
furtherance of the right of petition or free speech. [Citation.]’”
(Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton
LLP (2005) 133 Cal.App.4th 658, 670.)
Colyear argues that the dispute here arose from “the
question of the applicability of a tree-trimming covenant”;
conversely, he argues, “Liu’s application to enforce the covenant
against Colyear’s property was simply the trigger for Colyear’s
suit to resolve that question.” He further notes that the trial
19
court’s reliance on “but-for causation” in analyzing the issue was
therefore in error. To the extent the trial court focused on
whether Liu’s application caused Colyear to file a lawsuit, such
an analysis would provide an insufficient basis from which to find
that Liu had established the lawsuit arose out of his protected
conduct. Based on our independent review, however, we conclude
that Liu did make the requisite showing.
Liu’s application did not simply “trigger” Colyear’s lawsuit,
as Colyear claims. Rather, the gravamen of Colyear’s claims
against Liu was the allegation that by submitting an application
to the HOA concerning property unencumbered by Declaration
150, Liu invoked an invalid HOA process and clouded Colyear’s
title. As such, the only injury-producing conduct Colyear alleges
Liu committed was Liu’s petitioning act.
These circumstances are factually distinct from cases,
including those cited by Colyear, in which the defendant’s
protected speech was ancillary to the heart of the plaintiff’s
claims. In City of Cotati v. Cashman, supra, 29 Cal.4th at pp. 71,
72 for example, owners of mobilehome parks brought a
declaratory relief action against the city in federal court seeking
a judicial determination that the city's mobilehome park rent
control ordinance constituted an unconstitutional taking. In
response, the city sued the park owners in state court, also
requesting a declaration regarding the constitutionality and
enforceability of the rent control ordinance. (Id. at p. 72.) The
city conceded that its state lawsuit was triggered by the federal
action and was an attempt to “gain a more favorable forum” in
which to litigate the issue. (Id. at p. 73.) As the Supreme Court
explained, “the mere fact an action was filed after protected
activity took place does not mean it arose from that activity.” (Id.
20
at pp. 76–77.) Instead, because the “fundamental basis” for both
actions was the “same underlying controversy respecting [the
rent control] ordinance,” the city’s lawsuit “therefore was not one
arising from [the park owners'] federal suit” and “was not subject
to a special motion to strike.” (Id. at p. 80; see also, e.g., Talega
Maintenance Corporation v. Standard Pacific Corporation (2014)
225 Cal.App.4th 722, 729 [homeowners association’s claim
against board members arose from “the act of spending money in
violation of [the board members’] fiduciary duties,” not from the
vote that precipitated such expenditure]; McConnell v. Innovative
Artists Talent and Literary Agency, Inc. (2009) 175 Cal.App.4th
169, 176-177 [talent agents’ claims against former employer for
retaliation and wrongful termination were based on employer’s
course of conduct preventing the agents from performing their
work, not the letter that communicated the purported job
modifications]; Martinez, supra, 113 Cal.App.4th at p. 189
[holding that “the gravamen of Plaintiffs’ second cause of action,
alleging the Product was not merchantable because it contained
dangerous properties and ingredients that caused injury, is based
on the nature and effects of the Product itself, not the marketing
efforts undertaken by” the defendant].) Here, by contrast, Liu’s
protected conduct—his application to the HOA—served as the
foundation for Colyear’s claims against him.
In sum, we conclude that Liu met his burden on the first
prong of the anti-SLAPP motion to strike. We therefore turn to
the second prong, i.e., whether Colyear met his burden to
demonstrate a probability of prevailing on his claims against Liu.
21
III. Colyear Cannot Demonstrate a Probability of
Prevailing Against Liu
Once a defendant satisfies the first prong of the anti-
SLAPP analysis, “the burden shifts to the plaintiff to
demonstrate that each challenged claim based on protected
activity is legally sufficient and factually substantiated. The
court, without resolving evidentiary conflicts, must determine
whether the plaintiff’s showing, if accepted by the trier of fact,
would be sufficient to sustain a favorable judgment. If not, the
claim is stricken.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.)
“In making this assessment it is ‘the court’s responsibility . . . to
accept as true the evidence favorable to the plaintiff. . . .’
[Citation.] The plaintiff need only establish that his or her claim
has ‘minimal merit’ [citation] to avoid being stricken as a
SLAPP.” (Soukup, supra, 39 Cal.4th at p. 291.)
Colyear contends he has shown his likelihood of success on
his quiet title claim against Liu with evidence that: (1) he has
title; and (2) Liu made a claim adverse to that title by invoking
the tree-trimming covenant against Colyear’s property. However,
the trial court found that Colyear’s quiet title claim against Liu
was mooted by the withdrawal of Liu’s application. We agree.
Assuming Liu’s application implicated Colyear’s property when
filed, Liu withdrew his application before any action was taken,
leaving no pending challenges against Colyear’s property. Thus,
at the time Colyear filed his FAC, there was no “adverse claim”
by Liu against Colyear’s property (§§ 760.020 and 761.020
[elements to quiet title claim]), and no effective relief the court
could grant against Liu. (See, e.g., Giles v. Horn (2002) 100
Cal.App.4th 206, 227 [court “cannot render opinions ‘“. . . upon
moot questions or abstract propositions, or to declare principles
22
or rules of law which cannot affect the matter in issue in the case
before it”’”]; Wilson v. L. A. County Civil Service Com. (1952) 112
Cal.App.2d 450, 453 [“‘although a case may originally present an
existing controversy, if before decision it has, through act of the
parties or other cause, occurring after the commencement of the
action, lost that essential character, it becomes a moot case or
question which will not be considered by the court’”].)5 In light of
these findings, we need not reach the parties’ alternate
arguments regarding ripeness, standing, or the admissibility of
Colyear’s statements regarding ownership of the trees.
As such, we conclude that Colyear has not shown a
probability of success on the merits of his quiet title claim.
DISPOSITION
The order granting Liu’s motion to strike pursuant to
section 425.16 is affirmed. Liu is awarded his costs on appeal.
CERTIFIED FOR PUBLICATION
COLLINS, J.
We concur:
EPSTEIN, P. J. MANELLA, J.
5 Colyear argues that the trial court should have considered
his claim because Liu’s conduct was capable of repetition, yet
could continue to evade the courts’ review. Colyear has raised
this argument for the first time on appeal; it is therefore
forfeited. (See, e.g., Sanchez v. Truck Ins. Exchange (1994) 21
Cal.App.4th 1778, 1787.) We are not persuaded by Colyear’s
suggestion that we may review this issue as a “pure question of
law which is presented by undisputed facts.’ [Citation.]” (Ibid.)
23