Vanderkallen v. Glen Ivy Recreational etc. CA4/2 (2020) · DecisionDepot
Vanderkallen v. Glen Ivy Recreational etc. CA4/2
California Court of Appeal Sep 30, 2020 No. E072622Unpublished
Filed 9/30/20 Vanderkallen v. Glen Ivy Recreational etc. CA4/2
NOT TO BE PUBLISHED IN OFFICIAL REPORTS California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
FOURTH APPELLATE DISTRICT
DIVISION TWO
SHERI VANDERKALLEN et al.,
Plaintiffs and Respondents, E072622
v. (Super.Ct.No. RIC1820767)
GLEN IVY RECREATIONAL VEHICLE OPINION PARK OWNERS ASSOCIATION,
Defendant and Appellant.
APPEAL from the Superior Court of Riverside County. L. Jackson Lucky IV,
Judge. Affirmed.
Angius & Terry, Cang N. Le, Dylan D. Grimes and Joshua D. Mendelsohn for
Defendant and Appellant.
Law Offices of Thomas N. Jacobson and Thomas N. Jacobson for Plaintiffs and
Respondents.
In a First Amended Complaint (FAC), Sheri Vanderkallen (Sheri), Daniel
Vanderkallen (Daniel), and Jonnie Little (Little) sued the Glen Ivy Recreational Vehicle
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Park Owners Association (the Association). The lawsuit involved three causes of action:
(1) breach of the Association’s governing documents and rules; (2) unfair competition
(Bus. & Prof. Code, § 17200); and (3) breach of the covenant of good faith and fair
dealing. The Association responded to the FAC with an anti-SLAPP motion. (Code Civ.
protections apply “to protect individuals weighing in on a public entity’s decision” so that
participation in matters of public interest is not chilled. However, the same is not true
“for the ultimate decision itself, and none of the core purposes the Legislature sought to
promote when enacting the anti-SLAPP statute are furthered by ignoring the distinction
between a government entity’s decisions and the individual speech or petitioning that
may contribute to them.” (Park v. Board of Trustees of California State University
(2017) 2 Cal.5th 1057, 1071 (Park), fn. omitted; Swanson v. County of Riverside (2019)
36 Cal.App.5th 361, 373.)
All three of plaintiffs’ causes of action are based upon the same activity. Plaintiffs
are challenging the Association’s ultimate decision to expel plaintiffs. Plaintiffs allege
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the Association’s CC&Rs, bylaws, and Rules and Regulations, do not include expulsion
as a remedy. Plaintiffs alleged the Association “has not complied with the governing
documents in its attempt to exclude Plaintiffs from the Association because it has not
followed the step up discipline set forth in the governing documents.” Plaintiffs are not
challenging statements made by the Association, and plaintiffs are not suing individual
members of the Board. Therefore, plaintiffs’ lawsuit does not arise from the
Association’s protected activity. (See Third Laguna Hills Mutual v. Joslin (2020) 49
Cal.App.5th 366, 374 [similar conclusion].)
The Association contends that Plaintiffs’ causes of action “fall within subdivision
(e)(3) as they arise from statements and notices in connection with the Association’s
decision at its board meetings, which meetings, although not entirely open to the public
or members, constitute a public forum under (e)(3).” As the Association’s argument
continues, it writes, “The actions that give rise to the Association’s potential liability are
its decisions to suspend and expel [plaintiffs] from the Project. . . . [Plaintiffs] claim the
Association did not have the authority under its governing documents to expel them.”
Section 425.16, subdivision (e)(3), provides protection for “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.” Plaintiffs are suing the Association for its decision to
expel plaintiffs when the Association allegedly lacks the authority to do so. The decision
to expel plaintiffs is distinct from statements or writings made in support or opposition to
that decision. Statements or writings would be protected, but plaintiffs are not suing due
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to statements or writings. Plaintiffs are suing due to the decision to expel them, and that
decision is not protected. (Park, supra, 2 Cal.5th at p. 1071.)
The Association contends the lawsuit arises from protected conduct and cites
section 425.16, subdivision (e)(4), to support that assertion. Section 425.16, subdivision
(e)(4), provides that protected activity includes “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.”
The Association’s argument focuses primarily on the public interest factor. The
factor on which we choose to focus is “the exercise of the constitutional right of petition
or the constitutional right of free speech.” (§ 425.16, subd. (e).) The Association asserts,
“The actions that give rise to the Association’s potential liability are its decision to
suspend and expel [Plaintiffs] from the [RV Park].” The Association reasons, “These
alleged actions and inactions directly stem from the Association’s decision making at its
board meetings.” The Association’s decision is not a protected activity. (Park, supra, 2
Cal.5th at p. 1071.) Therefore, we are not persuaded by the Association’s reliance on
section 425.16, subdivision (e)(4).
The Association relies upon Ruiz v. Harbor View Community Association (2005)
134 Cal.App.4th 1456. In Ruiz, the plaintiffs brought “nine causes of action stemming
from the denial by [the homeowners’ association] architectural committee of [the
p]laintiffs’ conceptual plans to rebuild their house . . . . In the libel cause of action, [one
of the plaintiffs] allege[d] two letters written by [the homeowners’ association’s] attorney
defamed him. The trial court denied [the homeowners’ association’s] anti-SLAPP
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motion to strike the libel cause of action on the ground the letters” were not a protected
activity. The appellate court held that “the two letters were protected speech under
subdivision (e)(4) of section 425.16.” (Id. at p. 1461.)
We are not persuaded by the Association’s reliance on Ruiz because the focus of
the anti-SLAPP motion in Ruiz were letters, i.e., writings. The focus of the Ruiz anti-
SLAPP motion was not the ultimate decision to deny the plaintiff’s architectural plans.
Thus, Ruiz is distinguishable from the instant case because plaintiffs are suing due to the
Association’s ultimate decision to expel them.
The Association also relies upon Lee v. Silveira (2016) 6 Cal.App.5th 527. In Lee,
three members of the board of a homeowners’ association (HOA) sued six other members
of the board, but not the HOA itself, for declaratory relief “following a board vote of six-
to-three to renew an [HOA] managerial contract—in which plaintiffs voted against such
renewal.” The six defendants brought an anti-SLAPP motion arguing the complaint was
based upon their decisions and statements at board meetings. The trial court denied the
motion reasoning that the three plaintiffs were seeking only a declaration of what was
required under the HOA’s governing documents. (Id. at pp. 530-531.)
The appellate court “conclude[d] it is significant” that the defendants in the case
were individual board members and not the HOA. (Lee, supra, 6 Cal.App.5th at p. 542.)
The appellate court held that “an individual board member’s vote on a ‘public issue’
implicates his or her right to free speech under section 425.16.” (Id. at p. 545.) The
appellate court reversed the trial court’s order. (Id. at pp. 549-550.)
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In the instant case, plaintiffs are not suing individual members of the board on the
basis of their individual votes. Rather, plaintiffs are suing the Association for its ultimate
decision to expel plaintiffs. Because plaintiffs are not suing individual board members,
we are not persuaded by the Association’s reliance on Lee.
The Association contends “that part of [Plaintiffs’] intent in filing this action was
to chill the Association’s ability to effectuate its decision at its board meetings by seeking
to preemptively prohibit the Association from filing its unlawful detainer action.” “ ‘The
subjective intent of a party in filing a complaint is irrelevant in determining whether it
falls within the ambit of section 425.16. “There simply is ‘nothing in the statute
requiring the court to engage in an inquiry as to the plaintiff’s subjective motivations
before it may determine [whether] the anti-SLAPP statute is applicable.’ ” ’ ” (Trapp v.
Naiman (2013) 218 Cal.App.4th 113, 120.) Because Plaintiffs’ intent is not relevant to
the anti-SLAPP analysis, we find the Association’s assertion to be unpersuasive.
The Association contends that a Notice to Vacate is “a prerequisite to the unlawful
detainer” and “[e]ach of [Plaintiffs’] causes of action incorporate an allegation that the
Association’s Notice to Vacate was defective.” In Marlin v. Aimco Venezia, LLC
(Marlin), the appellate court wrote, “Even if we assume filing and serving the Ellis Act
notice and the notice to vacate constituted protected petitioning or free speech activity
‘the 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.’ Rather,
the critical question in a SLAPP motion ‘is whether the cause of action is based on the
defendant’s protected free speech or petitioning activity.’ [¶] Defendants have fallen
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victim to the logical fallacy post hoc ergo propter hoc—because the notices preceded
plaintiffs’ complaint the notices must have caused plaintiffs’ complaint. The filing and
service of the notices may have triggered plaintiffs’ complaint and the notices may be
evidence in support of plaintiffs’ complaint, but they were not the cause of plaintiffs’
complaint. Clearly, the cause of plaintiffs’ complaint was defendants’ allegedly wrongful
reliance on the Ellis Act as their authority for terminating plaintiffs’ tenancy.
Terminating a tenancy or removing a property from the rental market are not activities
taken in furtherance of the constitutional rights of petition or free speech.” (Id. At pp.
160-161, fns. omitted.)
Plaintiffs’ lawsuit arises from the Association’s decision to expel them from the
RV Park. For example, in the FAC, Plaintiffs alleged, “There is no provision in the
CC&Rs or bylaws for expulsion.” As another example, in the FAC, plaintiffs alleged,
“[The Association] has not complied with the governing documents in its attempt to
exclude Plaintiffs.” The Notice to Vacate is a consequence of the Association’s decision
to expel plaintiffs, but the Notice is not the basis for Plaintiffs’ lawsuit. Plaintiffs are not
suing the Association solely because the Association served a Notice to Vacate.
Accordingly, we are not persuaded that the trial court erred.
C. PROBABILITY OF PREVAILING
The Association contends Plaintiffs failed to demonstrate a probability of
prevailing on their lawsuit. Because the Association did not meet its burden on the first
prong of the anti-SLAPP analysis, we need not proceed with analyzing the second prong.
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(Third Laguna Hills Mutual v. Joslin, supra, 49 Cal.App.5th at pp. 374-375.)
Accordingly, we do not address the merits of this contention.
D. JUDICIAL NOTICE
The Association requests this court take judicial notice of three civil harassment
restraining orders. The Association contends judicial notice is proper because the
restraining orders are court records. (Evid. Code, § 452, subd. (d)(1).)
“A party requesting judicial notice of material under Evidence Code sections 452
or 453 must provide the court and each party with a copy of the material.” (Cal. Rules of
Court, rule 3.1306(c).) Typically, a civil harassment restraining order is delivered to
local law enforcement so that it may be entered into the California Law Enforcement
Telecommunications System (CLETS). (§ 527.6, subd. (r).) If the harassment case
involves a minor, then “[t]he court may order the information specified in paragraph (1)
be kept confidential.” (§ 527.6, subd. (v).) The “information specified in paragraph (1)”
includes but is not limited to, “the minor’s name, address, and the circumstances
surrounding the protective order with respect to that minor.” (§ 527.6. subd. (v)(1)&(2).)
The Association did not provide this court with copies of the restraining orders
because, the Association asserts, “the documents are unavailable for public view due to
being confidential civil restraining orders.” The Association does not cite any law to
support its position that civil harassment restraining orders are generally confidential or
that the entirety of a civil harassment restraining order is typically sealed. The
Association does not provide a declaration reflecting the trial court ordered the three
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restraining orders sealed. The Association does not provide copies of the relevant
dockets to indicate the restraining orders were sealed.
We deny the Association’s request for judicial notice because (1) the Association
has provided nothing to support its assertion that the restraining orders are confidential;
and (2) the Association has not provided copies of the restraining orders with the request
for judicial notice. (Cal. Rules of Court, rule 3.1306(c).)
E. FRIVOLOUS MOTION
Plaintiffs assert, “This is a frivolous motion.” Plaintiffs further assert, “The
frivolous nature of this motion is demonstrated by the persistence in moving forward with
this motion following the judgment for Plaintiffs in the Unlawful Detainer Action and the
self-serving vendetta pursued by the Board of Directors against Plaintiffs because of an
event occurring 10 years previously.”
“If the court finds that a special motion to strike is frivolous or is solely intended
to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a
plaintiff prevailing on the motion, pursuant to Section 128.5.” (§ 425.16, subd. (c)(1).)
In this record, we do not see a finding pertaining to the frivolity of the anti-SLAPP
motion. Thus, it is unclear if Plaintiffs are asking this court to find the appeal is frivolous
or if they are discussing a ruling that was not made. Because Plaintiffs’ argument lacks
clarity, we conclude it has been forfeited. (Pizarro v. Reynoso (2017) 10 Cal.App.5th
172, 179.)
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DISPOSITION
The order is affirmed. Respondents are awarded their costs on appeal. (Cal. Rules
of Court, rule 8.278(a)(1).)
NOT TO BE PUBLISHED IN OFFICIAL REPORTS
MILLER J.
We concur:
RAMIREZ P. J.
McKINSTER J.
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AI Brief
AI-generated · verify before citing
Holding. The court held that the Association's decision to expel the plaintiffs from the RV park did not constitute protected activity under the anti-SLAPP statute, as the lawsuit challenged the Association's governing authority rather than specific acts of speech or petitioning.
Issues
Whether the Association's decision to expel members from an RV park constitutes protected activity under Code of Civil Procedure section 425.16.
Whether the plaintiffs' lawsuit arises from protected petitioning or free speech activity or from the Association's internal governance decisions.
Disposition. Affirmed
Quotations verified verbatim against the opinion
“Acts of governance mandated by law, without more, are not exercises of free speech or petition.”
“The decision to expel plaintiffs is distinct from statements or writings made in support or opposition to that decision.”
“Plaintiffs are suing the Association for its ultimate decision to expel plaintiffs.”