Presidio Community Assn. v. Dulgerian
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PRESIDIO COMMUNITY ASSN. v. DULGERIAN
(2017) Unpublished Decision
 

Appeal from an order of the Superior Court of Orange County, Andrew P. Banks, Judge.  Affirmed.

Attorney(s) appearing for the Case
Enterprise Counsel Group, James S. Azadian, Cory L. Webster, Eric G. Salbert and David Boyadzhyan for Defendants and Appellants.

Berding & Weil, Paul W. Windust and Chloe L. Apter for Plaintiff and Respondent.

INTRODUCTION

Greg Dulgerian and Melanie Belger appeal from an order denying their anti-SLAPP motion against their homeowners association, Presidio Community Association (Presidio).  Belger and Greg Dulgerian, along with his wife, Brigette (who is not a party), opposed a project to replace grass in certain areas under Presidio’s control with drought-resistant plants.  After Brigette Dulgerian and Belger ran the landscaping contractors doing the replacement off their properties, Presidio sued Greg Dulgerian and Belger for breach of governing documents, declaratory relief, and nuisance.

Greg Dulgerian and Belger moved to dismiss the complaint under the anti-SLAPP statute, Code of Civil Procedure section 425.16.[1]  The court denied their motion because the conduct forming the basis of Presidio’s complaint did not implicate their free speech rights.  

We affirm.  Presidio’s complaint is based on appellants’ interference with the grass replacement project.  The primary relief sought is injunctive, to prevent appellants from getting in the landscapers’ way.  No free speech rights are implicated in any of the three causes of action alleged against Greg Dulgerian or Belger.

FACTS

In early 2015, Presidio decided to replace grass with drought-resistant plantings in the common areas and in the areas under the association’s control.  One reason for this decision was to qualify for rebates from the local water district.  Another was the potential for lowering Presidio’s water bills during the drought. 

Brigette Dulgerian and Belger protested against the replacement project to the association board and management through e-mails, letters, and appearances at board meetings.  Both Brigette Dulgerian and Belger ordered the landscape contractors off their property.  Ms. Belger threatened to call the police if the contractors did not leave.  Presidio completed the grass replacement project for all the homes except the Dulgerians’ and Belger’s. 

Presidio sued Greg Dulgerian and Belger for breach of the association’s governing documents, for declaratory relief, and for injunctive relief for nuisance, based on the defendants’ obstruction of the landscape contractors’ efforts to replace grass with drought-resistant plantings.  Presidio alleged that the plantings were slated for “nonprivate yard areas,” essentially residential front yards under association control, not private property.  Each defendant had ordered the contractors off the nonprivate yard areas when they attempted to put in the new plants.  The primary relief requested was an injunction preventing defendants from interfering with the landscapers. 

Defendants moved to dismiss Presidio’s complaint under the anti-SLAPP statute, section 425.16.  They asserted that Presidio was suing them for protected speech, i.e., the protests they had made to the association board and e-mails to the management objecting to the grass replacement project.  As evidence, they offered copies of e-mails, letters, and declarations from Brigette Dulgerian and Belger.[2] 

Sixteen court days before the hearing on Presidio’s anti-SLAPP motion, defendants submitted supplemental declarations from Belger, Greg Dulgerian, and defendants’ counsel.  Counsel’s declaration dealt only with scheduling the hearing. 

The trial court denied the anti-SLAPP motion, stating that the conduct alleged in the Presidio complaint was non-protected conduct and that defendants had failed to show it arose from their protests regarding the grass replacement project.  The trial court declined to consider the supplemental declarations. 

DISCUSSION

The California Legislature enacted the anti-SLAPP statute to counteract “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).)  A court may order a cause of action “arising from any act” “in furtherance” of the “right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue” to be stricken by means of this special motion.  (§ 425.16, subd. (b)(1).)  We review the order granting or denying an anti-SLAPP motion de novo.  (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)

We use a two-part test to evaluate an anti-SLAPP motion.  First, we determine whether the complaint or cause of action is “one arising from protected activity.”  (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.)  As the Supreme Court has emphasized, “[T]he critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.”  (Id. at p. 89.)  If the defendant satisfies the first part of the test, the burden shifts to the plaintiff to demonstrate a probability of prevailing.  (Id. at p. 88.)  Although the plaintiff does not have to prove its case at this juncture, it must present a prima facie case that could sustain a judgment if its evidence is believed.  (Id. at pp. 88-89.) 

Appellants assert that Presidio’s complaint arises from two kinds of protected activity:  a statement made in a place open to the public or a public forum in connection with an issue of public interest (§ 425.26, subd. (e)(3)) and conduct in furtherance of the right of free speech in connection with a public issue or an issue of public interest.  (§ 425.16, subd. (e)(4).) 

I.          Protected Activity

Appellants base their appeal on their protests to the Presidio board and management regarding the grass replacement project.  They assert their anti-SLAPP motion should have been granted because they were exercising their free speech rights in objecting to the project at board meetings and in e-mails and letters. 

“A claim arises from protected activity when that activity underlies or forms the basis for the claim.  [Citations.]  Critically, ‘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.’  [Citations.]  ‘[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute.’  [Citations.]  ‘The only means specified in section 425.16 by which a moving defendant can satisfy the [‘arising from’] requirement is to demonstrate that the defendant’s conduct by which plaintiff claims to have been injured falls within one of the four categories described in subdivision (e) … .’  [Citation.]  In short, in ruling on an anti-SLAPP motion, courts should consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.”  (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1063 (Park).)

In Park, the plaintiff sued for discrimination after he was denied tenure.  The trial court denied the board’s anti-SLAPP motion.  The Court of Appeal reversed, but the Supreme Court reinstated the trial court’s denial, carefully distinguishing between a cause of action arising after speech from a cause of action arising because of speech.  “[A] claim is not subject to a motion to strike simply because it contests an action or decision that was arrived at following speech or petitioning activity, or that was thereafter communicated by means of speech or petitioning activity.  Rather, a claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.”  (Park, supra, 2 Cal.5th at pp. 1060-1061; see also Marlin v. Aimco Venezia, LLC (2007) 154 Cal.App.4th 154, 160.)                       

 Presidio’s complaint is not “based on” appellants’ protests about the grass replacement project to the board, any more than the complaint in Park was based on the negative remarks made about the plaintiff at tenure meetings.  (See Park, supra, 2 Cal.5th at p. 1068.)  Presidio’s complaint is based on appellants’ running the landscaping contractors off their nonprivate yard areas when the contractors tried to replace the grass with drought-resistant landscaping.  None of the causes of action in the complaint is based on speech.  As for conduct in furtherance of the right of free speech, appellants presented no evidence that preventing the contractors from completing their tasks played any role in furthering their free speech rights.

While appellants’ protests about the new landscaping may involve evidence of the circumstances surrounding the controversy, “that does not convert the statements themselves into the basis for liability.”  (Park, supra, 2 Cal.5th at p. 1068.)  Appellants are free to send e-mails to anyone they like and to protest at board meetings about the grass replacement project.  The injunctive relief requested does not impinge on their speech.  If granted, it would affect only their ability to obstruct the landscapers in their efforts to replace the grass.[3]  (See Gotterba v. Travolta (2014) 228 Cal.App.4th 35, 41-42 (Gotterba) [lawsuit based on validity of termination letters, not pre-litigation sabre-rattling].)

Appellants’ reliance on Country Side Villas Homeowners Assn. v. Ivie (2011) 193 Cal.App.4th 1110 (Country Side) does not assist them.  In Country Side, the homeowner protested a new interpretation of the association’s governing documents, advocated the recall of the association’s board, and refused to sign a confidentiality agreement as a condition of receiving financial reports, prompting a threat by the association’s counsel to sue her.  (Id. at p. 1113.)  The association did sue her, for declaratory relief regarding the interpretation of the association’s governing documents.  (Id. at pp. 113-114.)  The court held that the declaratory relief causes of action against her arose from her criticism of the board and from speaking out against it.  Accordingly, it was protected activity.  (Id. at p. 1118.)

By contrast, the basis of this lawsuit is not appellants’ protests and criticisms but rather their interference with the landscapers.  If appellants had never said anything to the board or the management but had simply ordered the landscapers to leave, the reason for the lawsuit would be unchanged.  (See Gotterba, supra, 228 Cal.App.4th at p. 42 [dispute over termination agreement would still exist if threats of litigation removed].

Because we have determined appellants failed to carry their burden to show protected activity, we do not address the second prong of the anti-SLAPP analysis – likelihood of prevailing.  (Talega Maintenance Corp. v. Standard Pacific Corp. (2014) 225 Cal.App.4th 722, 728,)

II.          Supplemental Declarations

Appellants also fault the trial court for refusing to consider evidence submitted in two supplemental declarations. 

Sixteen court days before the hearing, Greg Dulgerian and Belger filed and served supplemental declarations.  The court declined to consider them for several reasons.  The proof of service was defective and did not demonstrate personal knowledge of the fact of service.  Counsel had not requested permission to file late papers.  In addition, the court credited opposing counsel’s representation that the declarations had not been timely received, as evidenced by a statement in the opposition that Greg Dulgerian had submitted no supporting evidence. 

“A trial court has broad discretion under rule 3.1300(d) of the California Rules of Court to refuse to consider papers served and filed beyond the deadline without a prior court order finding good cause for late submission.”  (Bozzi v. Nordstrom, Inc. (2010) 186 Cal.App.4th 755, 765.)  We review the trial court’s decision for abuse of discretion.  (Ibid.)

The supplemental declarations were late.  Sixteen court days before the hearing is the minimum period for timely service of a motion of this type.  (See § 1005, subd. (a)(13), (b).)  The declarations were, however, electronically served.  Electronic service adds two court days to the service period (see § 1010.6, subd. (a)(4)), so the papers were two days late.  Adding the defects in the proof of service and the fact that opposing counsel did not receive them before the opposition was due, we cannot say the trial court abused its discretion in declining to consider the supplemental declarations.  Nor can we say they would have made a difference.

DISPOSITION

 The order denying appellants’ anti-SLAPP motion is affirmed.  Respondent is to recover its costs on appeal.                                                   

BEDSWORTH, ACTING P. J.

WE CONCUR:
ARONSON, J.
FYBEL, J.


[1]              All further statutory references are to the Code of Civil Procedure.

[2]              Appellants’ declarations differed somewhat from those submitted by Presidio in opposition to the motion in the vehemence with which the Brigette Dulgerian and Belger told the contractors to leave. 

[3]              Presidio also prayed for damages caused by the delay in concluding the grass replacement project and attorney fees and costs. 

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