Monday, December 26, 2016

The Other Lee v. Silveira Is a SLAPP

Lee v. Silveira, No. D068835 (D4d1, Dec. 8, 2016)

When I first skimmed the opinion in this case, I thought it was another bad opinion along the lines of Nunez, applying the anti-SLAPP statute to a declaratory relief case just because the evidence of a live legal controversy existed consisted of protected speech. But I was mistaken.

The case is a dispute with an HOA–a somewhat fertile ground for anti-SLAPP issues. Plaintiffs wanted a declaration that the HOA wasn’t allowed to do certain things under its organizing documents. If they had sued the HOA for that relief, there should be no question that the anti-SLAPP statute is not implicated. 

But instead of suing the HOA, Plaintiffs—three members of the HOA board—sued the other six board members in their individual capacities, attacking votes in favor of projects that allegedly were contrary to the HOA charter. That changes things materially, based on two points. 

First, the legislative scheme that governs HOAs is similar to open meetings law, and the case law generally analogizes HOAs to local governments in several respects. So if a statement made before a city council would be subject to protection under § 425.16(e)(1) or (2) as a statement in or in connection with a government proceeding, if made to an HOA, the same statement is generally protected under § 425.16(e)(3) as a public forum statement, so long as it is of interest to enough people to count as a public issue.

And second, lately the law has treated individual legislators’ acts of voting as “written or oral statement or writings” covered by the anti-SLAPP law. The Supreme Court recently came down that way in the Vasquez case. So if we’re going to analogize speaking to an HOA to speaking to a city counsel, it probably makes sense to apply the same analogy to voting. 

The court here basically lands on these points, relying on Vasquez and making the (e)(1)/(2) public vs. (e)(3) private analogy in a footnote.


Weirdly, there was another case with the same name decided by the Fifth District back in June. But there doesnt seem to be any relation.

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