Chemers v. Quail Hill
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CHEMERS v. QUAIL HILL COMMUNITY ASSOCIATION
Fourth Appellate District Division Three
(November 15, 2018) UNPUBLISHED DECISION

FYBEL, J.

COUNSEL
Law Offices of Michael Welch and Michael Welch for Plaintiff and Appellant. Gordon Rees Scully Mansukhani, Charles V. Berwanger and Mark S. Posard for Defendants and Respondents.
 

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INTRODUCTION

In this dispute involving feuding members of a homeowners association, plaintiff Evan Chemers appeals from the judgment entered after the trial court granted defendants Quail Hill Community Association (Quail Hill), Neema Aghamohammadi, Albert Ng, Himansha Surti, Bob Dougherty, and Joe Craciun's (collectively, the moving defendants) anti-SLAPP motion as to six of Chemers's eight causes of action. As to the claims alleged against Quail Hill and Craciun for breach of contract, violation of Civil Code section 5850 et seq., and for two counts of declaratory relief, based on the analytical framework set out by the California Supreme Court in Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057 (Park), we conclude the trial court erred by granting the anti-SLAPP motion. None of those four causes of action arose out of protected activity—whether speech or petitioning activity—within the meaning of Code of Civil Procedure section 425.16. (All further statutory references are to the Code of Civil Procedure unless otherwise specified.)

"SLAPP is an acronym for 'strategic lawsuit against public participation.'" (Jarrow Formulas, Inc. v. La Marche (2003) 31 Cal.4th 728, 732, fn. 1.)

We also conclude the trial court's ruling granting the anti-SLAPP motion as to the causes of action for breach of fiduciary duty and negligence should stand. Chemers has not challenged the trial court's determination that those two claims arose out of protected activity within the meaning of section 425.16; we therefore do not address that issue in this appeal. Because Chemers failed to carry his burden of demonstrating a probability of prevailing on those claims, the trial court properly granted the anti-SLAPP motion as to those claims as to the moving defendants. Because those two claims are the only claims alleged against Aghamohammadi, Ng, Surti, and Dougherty, we will direct the trial court to enter judgment in their favor.

Therefore, we direct the trial court to vacate its order ruling on the anti-SLAPP motion and enter a new order granting the anti-SLAPP motion as to the fifth and sixth causes of action, and denying that motion as to the first, second, third, fourth, seventh, and eighth causes of action.

FACTS

This section summarizes the allegations contained in the complaint that relate to the causes of action at issue in this appeal. We provide them for background information and not for their truth.

Quail Hill is the community association of an upscale planned unit development located in Irvine, California, which is governed by recorded covenants, conditions, and restrictions. Chemers owns a house within the Quail Hill community which he purchased in 2004. He has served several terms as a member of Quail Hill's board of directors (the board) since 2010, and served one term as president of the board. In September 2015, Surti was appointed to the board due to a vacant seat created by a board member's resignation. Before Surti had been appointed, Chemers argued the board should allow homeowners to submit candidate statements and appoint a new member at a special meeting. Chemers's argument was rejected and Surti was appointed by the board.

Tensions developed between Chemers and the board, and in particular between Chemers and Surti. In September 2015, Surti made negative statements referencing Chemers's performance as a board member in an e-mail to the board. In October 2015, Surti published a post on a social media site available to Quail Hill homeowners blaming Chemers for blocking repairs to the community's roads.

At the November 10, 2015 board meeting, Chemers and Surti "exchanged words." On December 2, 2015, in general session, the board ratified the existence of an executive committee, which had been previously formed in a special executive session, for the purpose of investigating the alleged breach of fiduciary duties of "three board members." On December 8, 2015, Chemers received a cease and desist notice from Quail Hill's counsel "which contained allegations that Chemers was disruptive" and that he had made disparaging and offensive statements against members of Quail Hill at the November 10 meeting. Chemers asserts that the attorney did not send a similar letter to Surti.

On December 27, 2015, Chemers sent out a newsletter via e-mail "addressing certain board decisions" in order to keep the homeowners informed. Surti continued to post negative comments about Chemers. Chemers believed that the moving defendants, including Surti, created a website that criticized Chemers in a number of respects.

In March 2016, "a petition was presented with an alleged 125 signatures demanding that a special meeting of members be called for the purpose of amending the bylaws to establish term limits for directors." The person who presented the petition did not provide proof of any signatures and did not leave copies of the signatures with the corporate secretary. The action proposed by the petition was not on the agenda for the March 24, 2016 meeting.

Also in March 2016, the board sent out a letter to homeowners stating that Chemers's December 27, 2015 newsletter was inaccurate, and implying that the executive committee had been formed for the sole purpose of investigating Chemers's conduct and "potential claims arising therefrom." On March 18, 2016, Chemers sent out another newsletter to homeowners, and on March 30, 2016, Chemers invoked his inspection rights "as a board member" by sending an e-mail to Steve Feistel, the manager of Quail Hill's property management company, requesting to inspect particular categories of records of Quail Hill.

In April 2016, the board sent a letter to homeowners accusing Chemers of publishing misinformation and personally attacking Surti in his March 18, 2016 newsletter. Chemers sent another newsletter on April 24, 2016, entitled "The Truth About the 'Correction Notice,'" in response to the board's March 2016 letter. Chemers's counsel served the board with a demand for alternative dispute resolution and requested formal mediation to resolve the issues involving the board's refusal to allow him to exercise inspection rights, Quail Hill's publication of a document suggesting Chemers had been disciplined by Quail Hill and otherwise discussing confidential matters, and Quail Hill's "improper use of money and resources for the benefit of one director, and to the detriment of another."

In May 2016, the board accepted Chemers's alternative dispute resolution request and added in its response a "Notice of Opportunity for Hearing, or, in the Alternative ADR Offer Regarding Chemers' Conduct," as the board asserted it was considering taking disciplinary action with regard to Chemers. On June 8, Chemers's counsel sent a response to the board's attorney "asserting that Chemers did not wish to attend a hearing, but instead preferred to have all issues addressed through ADR."

In June 2016, the board began to take affirmative steps to remove Chemers from the board by proposing a resolution to create an executive committee consisting of all board members except for Chemers; the executive committee was given all authority of the board "except with respect to eight select matters."

In July 2016, the board proposed a resolution to declare Chemers's board seat vacant on the ground he did not meet the member-residency requirement when in fact Chemers contended he satisfied the residency requirement at that time.

Chemers was removed from the board with one year of his term remaining. He was not afforded an opportunity to present any evidence of residency, address the board, or have his legal counsel present at the July 11, 2016 board meeting. The board appointed defendant Craciun as Chemers's successor on the board.

Chemers was thereafter informed by the board's counsel that mediation was no longer necessary given that Chemers was no longer on the board.

PROCEDURAL HISTORY

In October 2016, Chemers filed a complaint, which was amended to name Craciun as Doe defendant No. 1, and contained claims for (1) breach of governing documents against Quail Hill and Craciun (first cause of action); (2) violation of Civil Code section 4900 et seq. against Quail Hill and Craciun (second cause of action); (3) violation of Civil Code section 5850 et seq. against Quail Hill and Craciun (third cause of action); (4) violation of Corporations Code section 8330 against Quail Hill and Craciun (fourth cause of action); (5) breach of fiduciary duty against the moving defendants (fifth cause of action); (6) negligence against the moving defendants (sixth cause of action); (7) declaratory relief regarding application of the residency requirement to Chemers against Quail Hill and Craciun (seventh cause of action); and (8) declaratory relief regarding the validity of the bylaws term limit amendment against Quail Hill and Craciun (eighth cause of action).

We observe that the first, third, seventh, and eighth causes of action were alleged against Quail Hill and "Doe defendants," and that the complaint was amended to name Craciun as Doe defendant No. 1. Therefore, each of these four causes of action is technically alleged against Craciun as well as Quail Hill, even though the allegations of the complaint show Craciun became a director (by replacing Chemers) after all of the alleged conduct underlying those claims had already occurred. In our Discussion section post, we refer to these claims as alleged against Quail Hill only.

The complaint named Amy Wang Liao, another member of Quail Hill's board, as a defendant against whom the fifth and sixth causes of action were also alleged. Liao was not a moving party with regard to the anti-SLAPP motion and is not a party in this appeal.

The moving defendants filed the anti-SLAPP motion seeking an order striking the complaint and the eight causes of action within it. The trial court granted the anti-SLAPP motion as to the first, third, fifth, sixth, seventh, and eighth causes of action, and denied the motion as to the second and fourth causes of action. Judgment of dismissal with prejudice was entered on behalf of all the moving defendants as to the first, third, fifth, sixth, seventh, and eighth causes of action. Chemers appealed.

Inexplicably, the judgment was entered in favor of Liao on those causes of action even though Liao was not one of the moving defendants. As set forth in the disposition post, we reverse the judgment that was entered in favor of all defendants. Even if we were to conclude the trial court's ruling on the anti-SLAPP motion was entirely correct, which we do not for the reasons explained in this opinion, judgment should not have been entered in favor of Quail Hill and Craciun because the second and fourth causes of action remained pending against them after the denial of the anti-SLAPP motion with regard to those claims.

DISCUSSION
I.
SECTION 425.16 AND THE APPLICABLE STANDARD OF REVIEW

Section 425.16 provides for a special motion to strike "[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." (Id., subd. (b)(1).) "Section 425.16, subdivision (b)(1) requires the court to engage in a two-step process. First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken 'in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. [Citation.] 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.) "'The defendant has the burden on the first issue, the threshold issue; the plaintiff has the burden on the second issue.'" (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928.) To establish a probability of prevailing on a claim, "'the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited."'" (Navellier v. Sletten (2002) 29 Cal.4th 82, 88-89.)

We review the trial court's order denying the anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) "'We consider "the pleadings, and supporting and opposing affidavits . . . upon which the liability or defense is based." [Citation.] 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."'" (Id. at p. 326.) The anti-SLAPP statute is to be broadly construed. (§ 425.16, subd. (a).)

II.
FIRST PRONG—PROTECTED ACTIVITY

In the first step of resolving an anti-SLAPP motion, "the defendant must establish that the challenged claim arises from activity protected by section 425.16." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384-385.) In section 425.16, subdivision (e), the Legislature defined such protected acts to include: "(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."

"Homeowners association board meetings constitute a public forum within the meaning of the anti-SLAPP statute because they 'serve[] a function similar to that of a governmental body. As our Supreme Court has recognized, owners of planned development units "'comprise a little democratic subsociety . . . .'" [Citations.] In exchange for the benefits of common ownership, the residents elect a[] legislative/executive board and delegate powers to this board. This delegation concerns not only activities conducted in the common areas, but also extends to life within "'the confines of the home itself.'" [Citation.] A homeowners association board is in effect "a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government."'" (Cabrera v. Alam (2011) 197 Cal.App.4th 1077, 1087.)

In Park, supra, 2 Cal.5th 1057, the California Supreme Court clarified the nexus between the "Claims an Anti-SLAPP Motion Challenges and Protected Activity" as follows: "Anti-SLAPP motions may target claims 'arising from any act of [the defendant] in furtherance of the [defendant's] right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue . . . .' [Citation.] In turn, the Legislature has defined such protected acts in furtherance of speech and petition rights to include a specified range of statements, writings, and conduct in connection with official proceedings and matters of public interest. [Citation.] We consider here the relationship a defendant must show between a plaintiff's claim and the sorts of speech on public matters the Legislature intended to protect. [¶] 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.' [Citation.] '[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.] Instead, the focus is on determining what 'the defendant's activity [is] that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.' [Citation.] '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." (Id. at pp. 1062-1063, fn. omitted.)

Park, supra, 2 Cal.5th 1057 was decided three days after the hearing on the anti-SLAPP motion in this case. The trial court did not analyze this case under Park. --------

The Supreme Court in Park, supra, 2 Cal.5th 1057, cautioned: "As many Courts of Appeal have correctly understood, to read the 'arising from' requirement differently, as applying to speech leading to an action or evidencing an illicit motive, would, for a range of publicly beneficial claims, have significant impacts the Legislature likely never intended. Government decisions are frequently 'arrived at after discussion and a vote at a public meeting.' [Citation.] Failing to distinguish between the challenged decisions and the speech that leads to them or thereafter expresses them 'would chill the resort to legitimate judicial oversight over potential abuses of legislative and administrative power.'" (Id. at p. 1067, italics added.) The California Supreme Court, applying these principles to the employment discrimination claim before it, further stated: "Similar problems would arise for attempts to enforce the state's antidiscrimination public policy. 'Any employer that initiates an investigation of an employee, whether for lawful or unlawful motives, would be at liberty to claim that its conduct was protected and thereby shift the burden of proof to the employee, who, without the benefit of discovery and with the threat of attorney fees looming, would be obligated to demonstrate the likelihood of prevailing on the merits.' [Citation.] Conflating, in the anti-SLAPP analysis, discriminatory decisions and speech involved in reaching those decisions or evidencing discriminatory animus could render the anti-SLAPP statute 'fatal for most harassment, discrimination, and retaliation actions against public employers.'" (Ibid, italics added.)

Chemers argues the trial court erred by concluding his first cause of action for breach of Quail Hill's bylaws, his third cause of action for violation of Civil Code section 5850 et seq., and his seventh and eighth causes of action, each seeking declaratory relief, arose out of protected activity. Applying the analytical framework set forth in Park, supra, 2 Cal.5th 1057, we agree with Chemers.

A.
First Cause of Action—Breach of Quail Hill's Bylaws.

The first cause of action is for breach of contract. "[T]he elements of a cause of action for breach of contract are (1) the existence of the contract, (2) plaintiff's performance or excuse for nonperformance, (3) defendant's breach, and (4) the resulting damages to the plaintiff." (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) In the complaint, Chemers alleged Quail Hill breached various provisions of Quail Hills's bylaws by (1) refusing Chemers's request, in his capacity as a director, to inspect the association's books and records; (2) surreptitiously creating an executive committee among board members, sans Chemers, and giving that committee all board authority to investigate Chemers's alleged wrongful conduct without providing notice required by the bylaws; (3) publicly reprimanding Chemers in two separate publications under the "guise of 'correction notices'" without providing notice or a hearing regarding disciplinary action as required by the bylaws; (4) investigating Chemers's residency status through the executive committee unbeknownst to Chemers and without following the bylaws' procedures; and (6) determining that Chemers was no longer eligible to serve as a director and that his seat was thereby vacant, without notice or a hearing.

The breach element of the claim is based on allegations Quail Hill failed to provide Chemers access to Quail Hill's records and to provide Chemers notice and a hearing as provided for in the bylaws. No protected speech or petitioning activity forms the basis of the claim. This claim for simple breach of contract is therefore distinguishable from a claim for violation of constitutional due process. Although the allegations supporting Chemers's breach of contract claim include the board's issuing correction notices, the liability is not premised on the board's speech in itself, but on the board's failure to provide Chemers notice and a hearing before taking disciplinary action against him, whether in the form of correction notices, or otherwise, that they were required to provide by contract. (See Park, supra, 2 Cal.5th at p. 1064 [in determining whether a claim arises out of protected activity we are to "respect the distinction between activities that form the basis for a claim and those that merely lead to the liability-creating activity or provide evidentiary support for the claim"].) As the breach of contract claim is based on Quail Hill's failure to fulfill provisions of the bylaws by affording Chemers access to documents and rights to notice and a hearing before certain board actions were taken, and not based on protected activity, the trial court erred by granting the anti-SLAPP motion on this claim.

B.
Third Cause of Action—Violation of Civil Code Section 5850 et seq.

Chemers's third cause of action alleged against Quail Hill is for violation of section 5850 et seq. of the Civil Code. Civil Code section 5855 provides: "(a) When the board is to meet to consider or impose discipline upon a member . . . the board shall notify the member in writing, by either personal delivery or individual delivery pursuant to Section 4040, at least 10 days prior to the meeting. [¶] (b) The notification shall contain, at a minimum, the date, time, and place of the meeting, the nature of the alleged violation for which a member may be disciplined . . . and a statement that the member has a right to attend and may address the board at the meeting. The board shall meet in executive session if requested by the member. [¶] (c) If the board imposes discipline on a member . . . the board shall provide the member a written notification of the decision, by either personal delivery or individual delivery pursuant to Section 4040, within 15 days following the action. [¶] (d) A disciplinary action or the imposition of a monetary charge for damage to the common area shall not be effective against a member unless the board fulfills the requirements of this section." (Italics added.)

In his third cause of action, Chemers alleged Quail Hill violated Civil Code section 5850 et seq. "by not giving proper notice of disciplinary action against CHEMERS. Defendants' disciplinary measures against CHEMERS [that occurred] without proper notice or hearing include, but are not limited to, the following conduct: [¶] a. The creation of the Executive Committee in November/December 2015 to investigate CHEMERS' alleged conduct, which effectively created a de facto disciplinary committee to take action against Chemers; [¶] b. Publicly reprimanding CHEMERS in two separate publications by the board on March 25, 2016, and April 11, 2016 under the guise of 'correction notices'; [¶] c. The creation of an Executive Committee in June 2016 consisting of all members of the board except for CHEMERS, and giving the Executive Committee all the powers of the board; [¶] d. Investigating CHEMERS' residency status unbeknownst to CHEMERS; and [¶] e. Removing CHEMERS from the board improperly on the grounds that he purportedly did not satisfy the 'residency' requirement." Chemers further alleged in the complaint that, as a result of Quail Hill's failure to provide him the notice and hearing required by statute, "[p]ursuant to California Civil Code section 5850(d), the removal of CHEMERS from the board is ineffective, as the board did not fulfill the notice requirements prior to taking disciplinary action against CHEMERS."

Like Chemers's first cause of action for breach of Quail Hill's bylaws, liability on his third cause of action for violation of Civil Code section 5850 et seq. is premised on Quail Hill's failure to provide notice and a hearing before taking certain actions, and not on the taking of those certain actions themselves. The third cause of action therefore does not arise out of protected activity; the trial court erred by granting the anti-SLAPP motion as to this cause of action.

C.
Seventh Cause of Action—Seeking a Declaration the Board Wrongfully Removed

Chemers as a Director.

Section 1060 provides: "Any person interested under a . . . contract, or who desires a declaration of his or her rights or duties with respect to another, . . . may, in cases of actual controversy relating to the legal rights and duties of the respective parties, bring an original action or cross-complaint in the superior court for a declaration of his or her rights and duties in the premises, including a determination of any question of construction or validity arising under the instrument or contract. He or she may ask for a declaration of rights or duties, either alone or with other relief; and the court may make a binding declaration of these rights or duties, whether or not further relief is or could be claimed at the time. The declaration may be either affirmative or negative in form and effect, and the declaration shall have the force of a final judgment. The declaration may be had before there has been any breach of the obligation in respect to which said declaration is sought."

In support of the seventh cause of action, the complaint alleged: "The residency requirement and governing documents have not been enforced in a fair and non-arbitrary manner, as the board did not utilize its own prior-established criteria when applying and enforcing the residency requirement with respect to CHEMERS. The board arbitrarily applied the residency requirement to CHEMERS, as SURTI also did not meet the alleged qualifications of the residency requirement. No board action was taken to declare SURTI's seat vacant. Moreover, the board used the residency requirement against CHEMERS in a disciplinary manner without providing CHEMERS proper notice and hearing in violation of the Bylaws. Additionally, CHEMERS was improperly removed from the board and all committees, as CHEMERS was removed without majority delegate vote, and proper voting procedure was not followed upon appointing CHEMERS' successor." The complaint further states: "CHEMERS requests a declaration that the residency requirement is invalid as applied, that the board declaring CHEMERS' seat vacant amounted to a removal of CHEMERS from the board, and that CHEMERS' successor was improperly appointed. CHEMERS requests a mandatory injunction to restore his status as a board and committee member for the remainder of his term in place of his successor."

Chemers's seventh cause of action challenges the board's decision to remove Chemers from the board based on its conclusion he was unqualified due to application of the residency requirement. Chemers contends that decision runs afoul of Quail Hill's bylaws and seeks a judicial declaration determining the parties' respective rights on that issue in relation to those bylaws. Quail Hill's decision that Chemers was unqualified to serve as a director because he failed to satisfy the applicable residency requirement does not constitute protected speech. (Park, supra, 2 Cal.5th at p. 1064 ["'Acts of governance mandated by law, without more, are not exercises of free speech or petition'"].) The trial court erred by concluding the seventh cause of action arose out of protected activity and by granting the anti-SLAPP motion as to that claim.

D.
Eighth Cause of Action—Seeking a Declaration the Term Limit Amendment to Quail

Hill's Bylaws Is Ineffective.

Chemers's eighth cause of action for declaratory relief against Quail Hill is based on Chemers's allegations in the complaint that: "Defendants purportedly passed an amendment to the Bylaws establishing term limits for board members" and the "[a]ction was taken on the amendment without the item being placed on the meeting agenda" and without the board indicating to "members whether the amendment [was] to be interpreted retroactively." The complaint further alleged: "CHEMERS requests a declaration that the Bylaws amendment establishing term limits is ineffective. If the Court finds the Bylaws amendment to be effective, CHEMERS requests a declaration that the amendment does not apply to board members elected prior to the passing of the Bylaws amendment, as a finding to the contrary would be discriminatory to the prior-elected board members."

The eighth cause of action for declaratory relief does not arise out of protected activity for the same reasons the seventh cause of action for declaratory relief action does not arise out of protected activity. Chemers's claim seeks a judicial declaration regarding the validity of the board's decision with regard to the effectiveness of an amendment to the bylaws and does not arise out of protected activity. The trial court erred by granting the anti-SLAPP motion as to this claim.

E.
Quail Hill's Argument It Proved the Subject Claims Arise out of Protected Activity

Because They Were Based on Litigation-related Speech and Conduct is Without Merit.

Quail Hill argues the first, third, seventh, and eighth causes of action arise out of protected speech because they have a connection to litigation—whether to prepare for litigation, to attempt to avoid it, or to minimize the extent of it. Quail Hill does not apply the standard set forth in Park, supra, 2 Cal.5th 1057 in arguing that those claims arise out of protected activity and misapplies the litigation privilege of Civil Code section 47, subdivision (b) in making its argument. An argument could be made that virtually all, if not all, activities of a homeowners association arise to some degree with an eye on litigation, whether to pursue it, defend against it, or prevent it. All such activities then, the argument logically follows, would be insulated by the anti-SLAPP statute. The California Supreme Court cautioned against such a broad interpretation of the protected activity prong of the anti-SLAPP statute. In the context of any homeowner's dispute with a homeowners association, the homeowners association would be "'at liberty to claim that its conduct was protected and thereby shift the burden of proof'" to the homeowner, "'who, without the benefit of discovery and with the threat of attorney fees looming, would be obligated to demonstrate the likelihood of prevailing on the merits.'" (Park, supra, 2 Cal.5th at p. 1067.) Quail Hill's argument is without merit.

F.
Negligence and Breach of Fiduciary Duty Claims

Chemers alleged negligence and breach of fiduciary duty claims against the moving defendants. Chemers does not challenge the trial court's determination that his negligence and breach of fiduciary duty claims arose out of protected activity within the meaning of section 425.16 in either his appellate opening brief or reply brief. We therefore do not review that determination, and next consider whether the trial court erred by concluding Chemers failed to carry his burden of showing a probability of prevailing on those two claims (an issue Chemers does raise in his appellate briefs).

III.
SECOND PRONG—PROBABILITY OF PREVAILING

"At the second step, '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.' [Citation.] At this step, the plaintiff must establish the claims based on allegations of protected activity are legally sufficient and supported by a prima facie showing of facts which, if proved at trial, would support a judgment in the plaintiff's favor. [Citation.] To meet this burden, a plaintiff cannot rely on its own pleading, even if verified [citation], but must present admissible evidence." (Newport Harbor Offices & Marina, LLC v. Morris Cerullo World Evangelism (2018) 23 Cal.App.5th 28, 49.)

For the reasons we explain, the trial court did not err by concluding Chemers failed to show a probability of prevailing on his fifth and sixth causes of action for breach of fiduciary duty and negligence, respectively, alleged against the moving defendants.

A.
Fifth Cause of Action—Breach of Fiduciary Duty

The trial court concluded Chemers failed to demonstrate a probability of prevailing on his fifth cause of action for breach of fiduciary duty. "'The elements of a cause of action for breach of fiduciary duty are the existence of a fiduciary relationship, breach of fiduciary duty, and damages.'" (Knutson v. Foster (2018) 25 Cal.App.5th 1075, 1094.)

In its minute order ruling on the anti-SLAPP motion, the trial court initially observed: "California Courts recognize that a 'homeowners association has a fiduciary relationship with its members—at least with respect to dealing with the homeowner's unit,' recognizing that the 'relationship between the individual owners and the managing association of a common interest develop is complex.' [Citation.] Plaintiff provides sufficient evidence to show Quail Hill owed him a fiduciary duty. However, Plaintiff offers no legal authority to show the individual defendants owed him any fiduciary duty. As such, Plaintiff has not shown he has a probability of prevailing against the individual defendants." We agree with the trial court; in his appellate briefing, Chemers failed to provide any legal authority showing the individual defendants owed him a fiduciary duty. He therefore has failed to show a probability of prevailing on the merits of his claim as to the individual defendants.

As to the breach of fiduciary duty claim against Quail Hill, the trial court provided in its minute order a detailed analysis showing how Chemers failed to show a probability of prevailing on his claim, which Chemers does not dispute. We therefore quote that portion of the court's analysis as follows: "Plaintiff alleges Quail Hill breached its fiduciary duty by taking sides in a dispute between Plaintiff and other members of the Board. [Citation.] Plaintiff's evidence does not show Quail Hill took the other board members' side at Plaintiff's expense. Plaintiff contends he received a cease and desist letter after the 11/10/2015 verbal altercation at the board meeting. [Citation.] However, he provides no admissible evidence that Surti, the other member involved in the incident, did not receive a similar cease and desist letter." The trial court further stated: "Plaintiff offers no evidence to show that the creation of an Executive Committee on 12/12/2015 constituted a breach of Quail Hill's fiduciary duty, or that Quail Hill took sides. Instead, the committee was formed to investigate alleged breaches of fiduciary duty. There is no evidence to suggest the investigation was targeted at Plaintiff.

"Plaintiff also offers no evidence to show that the 3/25/2016 letter breached any fiduciary duty. The text of the 3/25/2016 letter does not support Plaintiff's contention. [Citation.] The purpose of the 3/25/2016 letter was to correct misstatements of fact and does not allege that the executive committee was created to investigate Chemers' breach of a fiduciary duty. [Citation.]

"Plaintiff's contention that Quail Hill's 5/11/2016 letter breached a fiduciary duty is again without merit. The purpose of the letter was to address statements made by Plaintiff. [Citation.] As such, Plaintiff's contention that he was not provided with due process because he was not given an opportunity to be heard is without merit. Plaintiff offers no evidence to show that the letter was sent in bad faith or was an arbitrary action. Furthermore, Plaintiff contends he was denied equal access because he couldn't use Quail Hill's website or Facebook page to respond to the letter but Plaintiff offers no evidence to show any member was allowed access to post on Quail Hill's website or Facebook page.

"Plaintiff also contends that the creation of an Executive Committee on 6/29/2016 was a breach of fiduciary duty, but provides insufficient admissible evidence to support this contention. Plaintiff does not show that the CC&Rs or any governing documents prohibit the creation of such an Executive Committee.

"Plaintiff also contends the declaration that his seat was vacant because he did not meet the residency requirement was a breach of fiduciary duty. However, as discussed above, Plaintiff has not shown such action was improper. Plaintiff also does not provide any evidence to show he resided within the community at the time he was removed. Plaintiff also provide no admissible evidence to show that Surti no longer resided within the community at the time plaintiff was removed.

"Plaintiff further contends that the decision to remove him from all committees was a breach of fiduciary duty. However, Plaintiff offers no evidence to show that this was done in bad faith or arbitrarily. Plaintiff offers no evidence to show that his removal from any committees constituted a breach of any fiduciary duty. Please note this was not alleged as a breach of fiduciary duty in Plaintiff's complaint.

"For the reasons above, Plaintiff has not provide sufficient admissible evidence to show he is likely to prevail on this cause of action."

In his appellate briefs, Chemers does not challenge the trial court's reasoning set forth in the minute order quoted ante. Instead, Chemers argues Quail Hill breached its fiduciary duty to him by removing him for not satisfying the residency requirement without proper notice or opportunity to present contrary evidence. Chemers has failed to show the bylaws required that he be given notice and the opportunity to present contrary evidence in such an instance or that the procedures by which he was removed from the board and replaced with a successor director constituted a breach of a fiduciary duty Quail Hill owed to Chemers. The trial court properly granted the anti-SLAPP motion as to this claim.

B.
Sixth Cause of Action—Negligence

As to the sixth cause of action alleged against the moving defendants, the trial court ruled: "'The elements of a negligence cause of action are: (a) a legal duty to use due care; (b) a breach of such legal duty; and (c) the breach as the proximate or legal cause of the resulting injury.' [Citation.] Plaintiff's opposition addresses his fifth and sixth causes of action for breach of fiduciary duty and negligence together. Plaintiff offers no evidence that Quail Hill owes him any legal duty other than that already addressed above in regards to his claim for breach of fiduciary duty. Plaintiff offers no evidence to show that the individual defendants owe him any duty to exercise due care. For the same reasons set forth above, Plaintiff has not shown a probability of prevailing on the merits of this cause of action."

In his appellate opening brief, Chemers similarly argues that the same evidence supporting his claim for breach of fiduciary duty supports his claim for negligence. For the same reasons we concluded Chemers failed to show a probability of prevailing on his breach of fiduciary duty claim, he failed to show a probability of prevailing on his negligence claim. The anti-SLAPP motion was properly granted as to the negligence claim as well.

DISPOSITION

The judgment is reversed. We direct the court to vacate its order ruling on the anti-SLAPP motion and enter a new order granting the anti-SLAPP motion as to the fifth and sixth causes of action and denying the motion as the first, second, third, fourth, seventh, and eighth causes of action. The court shall enter judgment of dismissal as to defendants Aghamohammadi, Ng, Surti, and Dougherty. In the interests of justice, no party shall recover costs on appeal.

FYBEL, J. WE CONCUR: O'LEARY, P. J. MOORE, J.

Adams Stirling PLC