FLIER, J.
Respondents Andrew and Tarzana Shayne filed an action against appellant Sunset Mesa Property Owners Association, Inc. (Association), by way of a fifth amended complaint. The Association moved to dismiss the action under Code of Civil Procedure section 425.16
The original complaint was filed on December 28, 2004; the fifth amended complaint, which is the operative pleading, was filed in October 2008. The identities of the plaintiffs and defendants have changed over time. Only respondent Andrew Shayne as a plaintiff and the Association as a defendant have remained the same throughout.
This case has been before us before in an appeal involving the fourth amended complaint. In Farwell v. Sunset Mesa Property Owners Assn., Inc. (2008) 163 Cal.App.4th 1545, we dismissed an appeal taken by the plaintiffs because the purported appeal was taken from a nonappealable order. We held that under the death knell doctrine only an order denying class certification is an appealable order and the order from which the appeal was taken was not such an order. (Id. at pp. 1547, 1552.)
In ruling on a SLAPP motion, the court must 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 Constitution or the California Constitution in connection with a public issue." (§ 425.16, subd. (b)(1).)
"[I]t is the principal thrust or gravamen of the plaintiff's cause of action that determines whether the anti-SLAPP statute applies [citation], and when the allegations referring to arguably protected activity are only incidental to a cause of action based essentially on nonprotected activity, collateral allusions to protected activity should not subject the cause of action to the anti-SLAPP statute." (Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188.)
In order to determine the principal thrust of the four causes of action propounded by respondents, we turn to the allegations of the complaint.
Sunset Mesa, located in southern Malibu, is composed of nine tracts on a hilltop bordered by a steep cliff overlooking the Pacific Coast Highway, the beach and the ocean. Respondents own and reside on one of the lots in a tract (No. 26458, referred to hereafter as Tract) composed of 99 lots. Respondents' property is at the cliff's edge and, according to the complaint,
The complaint alleges that the Tract is "controlled" by a "Declaration of Establishment of Covenants, Conditions and Restrictions" (CC&R's). The CC&R's for the Tract were recorded in or about April 1962. The complaint alleges that the CC&R's "do not connect the Tract with any other Tract in the vicinity in any way whatsoever."
The CC&R's provide that they shall be effective until January 1, 1992, after which date they are renewed automatically for successive 10-year periods unless an instrument signed by a majority of the owners of the lots has been recorded agreeing to change the CC&R's in whole or in part.
The CC&R's vested considerable authority over construction in the Tract in a committee of three specified individuals. This was done in paragraph (f) of the CC&R's; we will refer to this committee therefore as the "para. (f) Committee." In the event of a resignation by one of the three members, the remaining two had the right to elect a successor. But this procedure was not followed. In November 1965, all three individuals named in the CC&R's resigned and named five new individuals to serve on the para. (f) Committee. The complaint alleges that there is no provision in the CC&R's authorizing the addition of two members to the para. (f) Committee; this is correct.
Ambiguities surround the creation and function of an "Architectural Committee" under the CC&R's. The CC&R's make passing reference to an Architectural Committee in the provision limiting construction to single-family houses; the Architectural Committee is given the power to make exceptions to this rule. There is no connection made in the CC&R's between the Architectural Committee and the para. (f) Committee. That is, it is uncertain whether these are two separate committees or whether there is only one committee with two names.
In 1966, the five individuals who had been named to the para. (f) Committee in 1965 resigned and appointed in their place the "ARCHITECTURAL COMMITTEE OF THE SUNSET MESA PROPERTY OWNERS ASSOCIATION." The same five individuals were listed as the members of the Association's Architectural Committee. The complaint alleges that the substitution of the Association's Architectural Committee for the five para. (f) Committee members was "improper, unlawful and of no effect."
The complaint alleges that the Association was formed on December 18, 1963, and that the CC&R's make no mention of the Association, which is correct. According to the complaint, the Association does not own any property and has no authority to "assess, tax or lien." The complaint alleges that the assumption of "power and authority" by the Association's Architectural Committee "is void and illegitimate and has no force or effect against Plaintiffs."
The complaint alleges that in 1982 a document signed by officers of the Association, recorded on July 22, 1982, confirmed the delegation of the powers of the CC&R's para. (f) Committee to the Association's Architectural Committee. The complaint alleges that this action was void in that (1) there was no vote that authorized this transfer of power, and (2) the CC&R's could not be amended prior to 1992.
The complaint alleges that in 2000 respondent Andrew Shayne became embroiled in a controversy with a neighbor when a home that Shayne had just built obstructed a portion of the neighbor's view of the ocean. Ultimately, the neighbor lost a lawsuit in which the neighbor claimed to have a right to an unobstructed view. "The neighbor then approached The Association and its Board of Directors, all but one of whom owned homes on the inside of the [M]esa (as did the suing neighbor), to amend the CC&Rs to effectively take away the property rights of Plaintiffs and the other [M]esa edge homeowners prohibiting them from ever changing the roof line of their homes in favor of the view of the inside [M]esa homeowners." (Original italics.)
According to the complaint, in 2004 the Association "engaged in a balloting process" to implement the foregoing suggestion. The matter was submitted to a vote of the owners and the Association reported that it was passed by a majority.
The entire balloting process that occurred in 2004 is alleged to be illegal and not authorized under the CC&R's. In addition, the complaint alleges in some detail a number of irregularities and fraudulent practices in connection with the votes that were taken. Although there was an agreement to the contrary between respondents and the Association, the results of the 2004 vote were recorded on May 2, 2005.
The amended CC&R's voted into effect in 2004 — or allegedly voted into effect — contain height limitations on all buildings, among other things, which appears to be the critical point for respondents. The complaint alleges that the Association has enforced and continues to threaten to enforce the CC&R's as amended in 2004. We will refer to these CC&R's as the Amended CC&R's.
The first cause of action is for declaratory relief. In substance, declarations are sought to the effect that the Association has no "power to assert architectural control over Plaintiffs' property" and that the Amended CC&R's are void and unenforceable.
The second cause of action is to quiet title and alleges that the Amended CC&R's are a cloud on respondents' title. The relief sought is to expunge the Amended CC&R's from the record of respondents' property as an invalid document.
The third cause of action is for slander of title by virtue of the Amended CC&R's.
The fourth cause of action for negligence is predicated on the Association's negligence in conducting a flawed election in 2004. The relief sought by way of the third and fourth causes of action are damages.
The trial court found that the gravamen of this action is not the Association's advocacy in support of amending the CC&R's but "the way in which [the Association] went about doing so." (Original italics.) The court found that the action is aimed primarily at the Amended CC&R's. The court concluded that the action is not subject to section 425.16, i.e., it is not a SLAPP action and that the Association's motion could be denied on this ground alone.
The court noted that it had overruled the Association's demurrer to the fifth amended complaint and that the complaint was legally sufficient.
The trial court did go on to examine whether respondents had demonstrated a probability of success and concluded that it was probable that respondents would succeed on the merits. The court addressed this second step out of an abundance of caution but we will not address this matter because it is not necessary in light of our own conclusion that this action is not subject to section 425.16.
"That a cause of action arguably may have been triggered by protected activity does not entail that it is one arising from such. . . . [¶] In short, the 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. [Citations.] `A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause fits one of the categories spelled out in section 425.16, subdivision (e) . . . .' [Citations.]" (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (Cotati).)
We set forth subdivision (e) of section 425.16 in the margin.
Respondents' action has two aspects to it. One is that the Association has arrogated to itself powers that under the original CC&R's were vested in what we have called the para. (f) Committee, i.e., the three individuals named in paragraph (f) of the CC&R's. The second aspect of respondents' action is to invalidate the Amended CC&R's. Neither aspect is protected activity for the purposes of section 425.16.
Conceptually, this case is analogous to Cotati and to City of Riverside v. Stansbury (2007) 155 Cal.App.4th 1582 (Riverside), which relies on Cotati.
Respondents' action seeks to set aside as illegal the Amended CC&R's and also seeks a declaration that the Association has unlawfully arrogated to itself powers that it does not have. In Cotati a municipality sought declaratory relief regarding the constitutionality of an ordinance (Cotati, supra, 29 Cal.4th at pp. 71-72); in Riverside, the municipality sought a declaration that a proposed initiative was invalid (Riverside, supra, 155 Cal.App.4th at p. 1585). That is, in all three actions (Cotati, Riverside and this action) the objective of the plaintiffs was (and is) a judicial declaration of rights about concrete actions taken by the defendants. That concrete action was an ordinance in Cotati; in Riverside, it was an initiative; and in this case the actions at issue are the Amended CC&R's and other actions undertaken by the Association, which we have detailed. In this case, events, not words, are at stake.
This is confirmed, in the first place, by the fact that each of the four causes of action is predicated on actions undertaken by the Association. The first cause of action involves the Amended CC&R's and the Association's allegedly unlawful assumption of control over the Sunset Mesa development. The second and third causes of action are predicated solely on the Amended CC&R's.
The fourth cause of action for negligence is also based on the Association's acts or, more accurately, on its failure to act. This cause of action identifies seven specific failings of the Association in administering the election that resulted in the Amended CC&R's. They are: (1) Failure to determine the legality of the Amended CC&R's and the Association's assumption of authority. (2) Failure to properly and fairly conduct the election. (3) Failure to confirm that the ballots were sent to actual owners. (4) Failure to insure that the ballots were not tampered with. (5) Failure to properly tabulate the ballots. (6) Failure to accurately report the election results. (7) Improperly recording the Amended CC&R's. Each of these omissions were failures to take appropriate action. None of them refer to speech, written or oral.
It is also telling that it is possible to describe respondents' action, as we have done, without a single mention of anything anybody said.
While conceivably respondents could have based their case on statements made on behalf of the Association, they did not do so. They based their case on actions undertaken by the Association, notably the recordation of the Amended CC&R's; accordingly, respondents' action does not arise from protected activity.
The Association's case on appeal is predicated on a complete distortion of respondents' complaint.
The Association begins its analysis of respondents' action with the fourth and last cause of action for negligence. As noted, the fourth cause of action alleges seven specific failings. The Association focuses on the second of these, which is "failing to properly and fairly conduct the election." The Association then refers to three passages from the introductory paragraphs of the complaint that state, in substance, that the Association improperly influenced the voters to vote for the Amended CC&R's. The Association adopts this approach in order to convert respondents' case into one that is aimed at the "advocacy" practiced by the Association.
There are four flaws in this approach.
First. The connection between the allegations that the Association improperly influenced the outcome of the election (set forth in the introductory paragraphs of the complaint, not in the fourth cause of action) and the allegation that the Association failed "to properly and fairly conduct the election" in the fourth cause of action is made by the Association, not respondents. While the connection made by the Association may not be unreasonable, respondents did not choose to make it.
Second. As is apparent from the other six alleged failings of the Association in connection with the election, respondents were precise in describing the failings and they chose not to include among them the charge that the Association improperly influenced the voters. This makes sense as advocacy cannot be classified as a negligent failure to act. In other words, the connection that the Association makes between allegations in the introductory part of the complaint and the fourth cause of action is illogical.
Third. The allegation that the Association failed "to properly and fairly conduct the election" refers to conduct, not speech.
Fourth. It is evident from the allegations of the fourth cause of action that respondents were taking aim at the Association's failure to act, not oral or written statements made by the Association.
It is clear that none of the four causes of action are directed at "advocacy." In all likelihood, this is at least in part due to the fact that it would be rather difficult to cobble together a cause of action about statements made by or on behalf of the Association. After all, it breaks no law to advocate for an amendment to the CC&R's.
This case is distinctly not a case about "[a]dvocacy by a homeowners association," as the Association claims. The case, as respondents have made it, is about the Amended CC&Rs and the Association's acts in unlawfully usurping powers over the Sunset Mesa development.
That respondents' counsel chose to be critical in the complaint about the Association's advocacy in the introductory paragraphs of the complaint, without claiming that that advocacy is actionable, is a reflection of the modern lawyer's habit of pleading evidentiary facts that reflect badly on the defendant. If counsel had stuck to pleading the ultimate facts that are germane to the four causes of action, there would have been no mention of the Association's efforts to persuade the owners to vote for the Amended CC&R's even in the introductory portions of the complaint. In any event, we agree with the trial court's observation that references to protected activity, which are incidental to the causes of action that have been brought, do not subject the action to section 425.16; the authorities so hold. (E.g., Martinez v. Metabolife Internat., Inc., supra, 113 Cal.App.4th 181, 188.)
The Association continues this approach when it comes to the cause of action for slander of title. That cause of action very simply and directly alleges that the recorded Amended CC&R's constitute a slander of title. But, instead of addressing the slander of title claim as it has been actually set forth in the complaint, the Association refers to the claim made in the introductory portion of the complaint that the Association broke its promise not to record the Amended CC&R's; the Association contends that it is this "statement" that constitutes a slander of title.
Like the earlier references to advocacy in connection with the fourth cause of action, this breach of promise forms no part of the cause of action for slander of title. In fact, it makes no sense to say that the broken promise about recording the Amended CC&R's is a slander of title. The broken promise is just that, a broken promise, but it says nothing about respondents' title. It is the Amended CC&R's that allegedly constitute a slander of title. And we do not agree that the recordation of the Amended CC&R's is "an act of protected speech," as the Association claims. Like initiating a nonjudicial foreclosure, this is private activity (Garretson v. Post (2007) 156 Cal.App.4th 1508, 1517), not speech.
The Association dismisses the causes of action for declaratory relief and quiet title as "largely derivative of the other two causes of action." It is actually the other way around. The gravamen of this action is found in the first two causes of action, which focus primarily on the Amended CC&R's and secondarily on the allegedly unlawful assumption of power by the Association.
The Association devotes a considerable part of its brief to the argument that respondents' complaint is not legally sufficient and that they therefore cannot show that it is probable that they will succeed on the merits.
We need not address this issue because respondents' action is not subject to section 425.16. The Association's contentions about the legal sufficiency of the complaint would have been germane only if section 425.16 applied to respondents' action. Apart from section 425.16, the legal sufficiency of the complaint is not before us.
Respondents have filed an appendix composed of the deposition of Simon Menkes, an accountant, and a copy of our slip opinion in Farwell v. Sunset Mesa Property Owners Assn., supra, 163 Cal.App.4th 1545. We see no purpose in either submission. Menkes worked on the 2004 election for the Association; in light of our disposition of this appeal, it is not material at this point how that election was conducted. And there is certainly no need to provide us with the slip opinion. The Association has moved to strike the respondents' appendix. That motion is granted as to the Menkes deposition; we take the Association at its word that it was not before the trial court.
The judgment (order) is affirmed. Respondents are to recover their costs on appeal.
We concur:
RUBIN, Acting P. J.
GRIMES, J.
