COUNTRY SIDE VILLA HOMEOWNERS ASSN v. IVIE
(2011) 193 Cal.App.4th 1110
Law Offices of Edward Nemetz and Edward Nemetz for Plaintiff and Appellant.
Pratt & Associates, Sharon Glenn Pratt and Rosalia Burgueño Tapia for Defendant and Respondent. [193 Cal.App.4th 1112]
Plaintiff and appellant, Country Side Villas Homeowners' Association
(Country Side) appeals the trial court's order granting defendant and
respondent Susan Ivie's special motion to strike pursuant to Code of
Civil Procedure section 425.16. fn. 1
On appeal, Country Side asserts the trial court erred in granting the
motion, because it was not brought within 60 days of the filing of the
complaint, as required by section 425.16, subdivision (f). In addition,
Country Side asserts the motion should not have been granted because Ms.
Ivie cannot establish that the causes of action arise from protected
activity, and Country Side can show a probability of success on the
STATEMENT OF THE FACTS AND CASE
Appellant Country Side is a homeowners' association of the Country Side
Villas, and is governed by a five person board of directors. Respondent
Ms. Ivie is a homeowner in the Country Side Villas, making her a member
of the homeowners' association.
This case arises over a dispute between appellant Country Side, a
homeowners' association, and some of its members, including respondent
Ms. Ivie. [193 Cal.App.4th 1113] At issue between the parties is
the question of whether individual homeowners, rather than Country Side,
are responsible for repair and replacement of balconies and shingle
siding on their units. Following an election of new members to Country
Side's board in November 2007, Country Side hired a new manager and new
legal counsel. The new counsel advised Country Side of its view that the
association was responsible for the maintenance and repair of balconies
and shingle siding, rather than the individual homeowners. This view
was inconsistent with Country Side's previous practices.
Ms. Ivie objected to Country Side's new interpretation of the
maintenance requirements, primarily because not all units contained
balconies, and Country Side had not funded reserves to pay these
expenses. In addition, Ms. Ivie believed that since one of the new board
members owned a unit in need of siding repair, the decision to require
Country Side to bear the expense was self-serving.
Ms. Ivie openly objected to Country Side's new interpretation of the
maintenance requirements, and encouraged other members of the
association to do the same. She advocated through a signature petition
circulated among other homeowners that the new board be recalled.
Based on her concern about the ability of Country Side to pay for the
maintenance of individual units, Ms. Ivie requested copies of the
association's income and expense reports from its manager. Ms. Ivie made
this request three times, and received no response. One month later,
Ms. Ivie received a letter from Country Side's counsel stating that the
financial documents were confidential, and she could only receive a copy
of them if she signed a confidentiality agreement. Ms. Ivie refused to
sign the confidentiality agreement, and never received the requested
financial documents. Country Side's counsel threatened to sue Ms. Ivie
if she continued to request the documents and refused to sign the
On July 30, 2008, Ms. Ivie sent a "Request for Resolution" to Country
Side's board seeking alternative dispute resolution on the issue of
inspection of the financial documents, and the maintenance dispute. The
parties participated in mediation on October 14, 2008.
On October 15, 2008, Country Side filed a complaint against Ms. Ivie,
and other residents. The first through the fourth causes of action are
the only claims related to Ms. Ivie, and seek declaratory relief as to
the interpretation of Country Side's governing documents. The first
cause of action sought an interpretation of the governing section
related to exterior maintenance of the homes. The second cause of action
sought an interpretation of the governing section related to amending
the maintenance obligations of Country Side and [193 Cal.App.4th 1114]
the homeowners. The third cause of action sought declaratory relief as
to whether repairs should be made now, or delayed until the governing
documents related to maintenance could be amended. The fourth cause of
action sought a judicial determination as to the results of a recall
election of Country Side's board of directors.
On November 13, 2008, Ms. Ivie answered the complaint.
On December 11, 2008, the remaining defendants demurred to the sixth
through the eighth causes of action on the ground that Country Side
failed to comply with the procedural requirements of Civil Code sections
1369.510, et seq.
On December 31, 2008, Ms. Ivie filed a cross-complaint against Country
Side for damages and declaratory relief. In the cross-complaint, Ms.
Ivie sought a declaration from the court that Country Side needed to
hold a new recall election of the board of directors due to
improprieties in the first recall election.
On February 12, 2009, Ms. Ivie filed an anti-SLAPP motion to strike the
first through fourth causes of action for declaratory relief.
On February 19, 2009, the trial court sustained the demurrer of the
co-defendants as to the sixth through eighth causes of action with leave
to amend on the ground that the procedural requirements of Civil Code,
section 1369.560 were not met.
On February 25, 2009, Country Side filed an amended complaint, complying
with the requirements of Civil Code, section 1369.560. Specifically,
the amended complaint included a certification that alternative dispute
resolution had been attempted.
On April 7, 2009, the court denied Ms. Ivie's anti-SLAPP motion as
untimely, because it was not filed within 60 days of service of the
On April 24, 2009, Ms. Ivie filed another anti-SLAPP motion as to the amended complaint, which was filed on February 25, 2009.
On June 10, 2009, the court granted Ms. Ivie's anti-SLAPP motion,
finding that Country Side's filing of an amendment to the complaint
amounted to a substantive amendment. Therefore, the new filing qualified
as a first amended complaint, which started a new 60-day period for
filing an anti-SLAPP [193 Cal.App.4th 1115] motion. In addition,
the court found that Ms. Ivie satisfied her burden of showing that "the
challenged cause of action is one arising from protected activity."
Country Side filed a timely notice of appeal.
Country Side asserts the trial court erred in granting Ms. Ivie's anti-SLAPP motion, based on the timeliness of the motion, as well as the
Timeliness of the Motion
Country Side argues the trial court erred in granting the motion in this
case, because it was not filed within the 60 day period as required by
Section 425.16, subdivision (f) provides that the motion "may be filed
within 60 days of the service of the complaint or, in the court's
discretion, at any later time upon terms it deems proper," and states
that the word " 'complaint' includes 'cross-complaint' and 'petition' "
(§ 425.16, subd. (h)). Ms. Ivie's motion was filed six months after the
case commenced; however, it was filed within 60 days of the filing of
the first amended complaint. Country Side asserts the amendment to the
complaint was not substantive, and therefore, it does not qualify as a
"first amended complaint." According to Country Side, the operative
complaint in the instant case is the original complaint, filed October
15, 2008. Therefore, the motion filed April 24, 2009, could not be filed
without leave of the court, because it was more than 60 days after
service of the original complaint.
Here, Country Side made the same argument in the trial court, asserting
Ms. Ivie's motion was untimely because the amendment to the complaint
was not substantive. The trial court rejected this argument, stating:
"Defendants' demurrer to the sixth through eighth causes of action [is
sustained] with leave to amend for failure to allege that Plaintiff
filed a certificate of compliance as required by Civil Code section
1369.560. This deficiency addressed by the demurrer was a failure to
make allegations of substance rather than mere form, such as a substitution of a date, or case number. (See Cohen v. Super. Ct. (Southern Pacific Co.)(1966) 244 Cal.App.2d 650,
656-657.) Therefore, since the demurrer to the complaint destroys the
prior pleading, the February 25, 2009 amendment to the complaint is
treated as the first amended complaint. (See Stoiber v. Honeychuck (1980) 101 Cal.App.3d 903, 931)." (Italics added.) [193 Cal.App.4th 1116]
We find the amendment here to be substantive, making the new filing a
first amended complaint. The addition of the verification that Country
Side complied with the provisions of Civil Code, section 1369.560, and
participated in alternative dispute resolution in this action is an
amendment of substance, not a clerical correction. Therefore, the trial
court was correct in finding Ms. Ivie's motion as to the first amended
complaint was timely.
Merits of the Motion
Country Side asserts the motion was incorrectly granted here, because
the causes of action seek "pure" declaratory relief, rather than
injunctive relief. In addition, the causes of action did not assert
liability on the part of Ms. Ivie, nor did they seek damages from her.
As such, Country Side argues, the causes of action are not subject to an
" 'Review of an order granting or denying a motion to strike under section 425.16 is de novo.' " (Flatley v. Mauro (2006) 39 Cal.4th 299,
325.) "In deciding whether the 'arising from' requirement is met, a
court considers 'the pleadings, and supporting and opposing affidavits
stating the facts upon which the liability or defense is based.' (§
425.16, subd. (b).)" (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79.)
Section 425.16, subdivision (b)(1) provides: "A cause of action against a
person arising from any act of that person in furtherance of the
person's right of petition or free speech under the United States
Constitution or the California Constitution in connection with a public
issue shall be subject to a special motion to strike, unless the court
determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim."
 Thus, the statute " 'posits . . . a two-step process for determining
whether an action is a SLAPP. 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
that such a showing has been made, it must then determine whether the
plaintiff has demonstrated a probability of prevailing on the claim.'
[Citation.] '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.' " (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
278-279.) On the first step, the party filing the anti-SLAPP motion has
the burden of establishing that the plaintiff's claim arose from
protected activity. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) [193 Cal.App.4th 1117]
"[T]he statutory phrase 'cause of action . . . arising from' means
simply that 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.] In the anti-SLAPP context, the
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, supra, 29 Cal.4th at p. 78.)
On the second step, the party defending against the motion has the
burden to establish a probability of prevailing on the claim. (City of Cotati v. Cashman, supra,
29 Cal.4th at p. 78) A "court need not reach this second prong of the
analysis if the 'arising from protected activity' requirement is not
met." (Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 801.)
Claim Arising From Protected Activity
Ms. Ivie asserts the action here arises from protected activity under
the statute, because it is based on her complaints regarding Country
Side's actions in governing the homeowners' association. Country Side,
on the other hand, asserts that the causes of action for declaratory
relief arose from an actual controversy regarding the interpretation of
the association's governing documents, not Ms. Ivie's protected
Protected activity under the anti-SLAPP statute includes instances where
the action arises out of "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)(4).)
 Here, Ms. Ivie asserts her complaints about Country Side's board's
management of the association were a matter of public interest, because
Country Side's decisions impact a large number of people. In a case
similar to the one at bar, the court concluded that public comments
concerning the competence of a manager of a homeowner's association
involved speech connected with an issue of public interest within the
meaning of section 425.16. (Damon v. Ocean Journalism Club (2000) 85 Cal.App.4th 468,
479-480.) The court opined, "[t]he definition of 'public interest'
within the meaning of the anti-SLAPP statute has been broadly construed
to include not only governmental matters, but also 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. [Citations.] '
"[M]atters of public interest . . . include activities that involve
private persons and entities, especially when a large, powerful
organization may impact the lives of many individuals." ' [Citation.]" (Id. at p 479.) [193 Cal.App.4th 1118]
Here, like the Damon defendants, Ms. Ivie spoke out against the
members of her homeowners' association board and management, on matters
that affected all members of the association. Specifically, Ms. Ivie
complained about Country Side's new decision that the association, not
individual homeowners, was responsible for the maintenance expenses
associated with balcony and shingle siding repair. Country Side's new
position on this issue impacted all members of the association, whether
or not their homes had balconies or were in need to siding repair,
because the expenses would now be borne by all. Country Side's board was
in a position to impact the lives of many individuals through its
decision making process. Therefore, under the rationale of Damon, Ms. Ivie's conduct in criticizing Country Side's actions was a matter of public concern within the meaning of section 425.16.
Country Side's assertion that because it is seeking "pure declaratory"
relief arising out of an actual controversy about the interpretation of
the association's governing documents, the case is not subject to
anti-SLAPP protection is misplaced. While it is true Country Side seeks
declaratory relief regarding the interpretation of the association's
governing documents, it also seeks damages in the form of attorney fees
from Ms. Ivie.
In addition, the action in this case was filed after Country Side's
counsel threatened to sue Ms. Ivie if she continued to refuse to request
the financial documents and not sign the confidentiality agreement. Ms.
Ivie did refuse to sign the agreement, and continued to speak out
against Country Side. In response, Country Side filed suit against her
seeking declaratory relief and attorney fees.
It is clear from the evidence that the action in this case arose from
Ms. Ivie's exercise of her right of free speech in criticizing the
speaking out against the action of Country Side's board. Since Ms. Ivie
met her burden of showing that the challenged cause of action is one
arising from protected activity, we must now consider whether Country
Side has demonstrated a probability of prevailing on the claim.
Probability of Prevailing on the Claim
 In order to state a claim for declaratory relief, there must be an
"actual controversy" relating to the legal rights and duties of the
parties. (§ 1060.) The four claims asserted against Ms. Ivie in the
first amended complaint are for declaratory relief related to the
interpretation of Country Side's governing documents and the results of
the recall election.
Specifically, the first cause of action seeks an interpretation of the
governing section related to exterior maintenance of the homes. The
second cause of [193 Cal.App.4th 1119] action seeks an
interpretation of the governing section related to amending the
maintenance obligations of Country Side and the homeowners. The third
cause of action seeks declaratory relief as to whether repairs should be
made now, or delayed until the governing documents related to
maintenance could be amended. Finally, the fourth cause of action seeks a
judicial determination as to the results of a recall election of
Country Side's board of directors.
The declaratory relief asserted in this case is not properly brought
against Ms. Ivie. As an individual member of the association, and not a
member of Country Side's board or management, Ms. Ivie has no authority
to enforce any declaratory relief regarding an interpretation of the
association's governing documents or the results of the recall election
that the court might grant in this case. The fact that Country Side's
governing documents address the maintenance responsibilities of the
association and the homeowners, and Ms. Ivie criticized those documents
does not make Ms. Ivie an appropriate defendant for this declaratory
relief action; nor does the fact that Ms. Ivie criticized the procedures
employed by Country Side in its recall election of the association's
 A case that is very similar to the one at bar, and which addresses
the issue of appropriate parties in a declaratory relief action is Pinnacle Holdings, Inc. v. Harold Simon (1995) 31 Cal.App.4th 1430. In Pinnacle,
four tenants of a mobilehome park protested the park owner's proposal
for a rental increase. As a result of their protest, the tenants were
named as defendants in the park owner's action for declaratory relief.
The Pinnacle plaintiff, like Country Side in the present case,
asserted declaratory relief was necessary to determine the rights and
obligations of the parties, because an actual controversy existed
between them. The trial court disagreed, and granted the tenants'
demurrer without leave to amend on the ground that they were not proper
parties to the declaratory relief action, and the court of appeal
affirmed. The court rejected Pinnacle's argument that an actual
controversy existed between itself and the tenant defendants because the
tenants were real parties in interest. The court stated: " 'The
fundamental basis of declaratory relief is the existence of an actual,
present controversy over a proper subject.' [Citation.]." (Id. at
p. 1437.) The court further found that Pinnacle had requested no relief
from the tenants, nor could the tenants grant any relief. (Ibid.) As a result, the court found the tenants were not proper defendants for the declaratory relief action. (Ibid.)
Here, like Pinnacle, Country Side requests no relief from Ms. Ivie
regarding the interpretation of the association's governing documents or
the recall election; nor can Ms. Ivie provide any relief as an
individual member of the association. The fact that Country Side's
governing documents address the [193 Cal.App.4th 1120]
maintenance responsibilities of the association and the homeowners, and
Ms. Ivie criticized those documents does not make Ms. Ivie an
appropriate defendant for this declaratory relief action; nor does the
fact that Ms. Ivie criticized the procedures employed by Country Side in
its recall election of the association's board.
 Because the declaratory relief action in this case is not properly
asserted against Ms. Ivie, there is no probability that Country Side
will prevail on the merits. Therefore, the anti-SLAPP motion was
properly granted in this case.
The judgment is affirmed.
Premo, J., and Elia, J., concurred.
FN 1. All further unspecified statutory references are to the Code of Civil Procedure.