Dump Flatley; Learn Park!

Golden Eagle Land Inv. v. Ranch Santa Fe Assoc., No. D069872 (D4d1 Jan. 18, 2018)

Some real estate developers on tony part of San Diego County are angry that the homeowners association that controls the area trashed their project in communications with the County’s planners, urging them not to grant a lot size variance. So they sued on a bunch of theories. The trial court granted the Association’s anti-SLAPP motion on every theory except a claim under the Davis-Stirling Act, which contains open meeting requirements applicable to HOAs. Both parties appealed.

The Court starts with the open meeting claim. Civil Code § 4900, et seq., obliges HOAs to conduct open meetings along similar lines that apply to governments under the Brown Act. The relevant provisions contain notice, agenda, and minutes requirements, and strictly limit closed executive sessions. The gist of Developers’ theory is that their project was inadequately noticed for discussion at one of the Association’s meetings, and that the Association’s board voted to state its objections to the County after conducting a meeting that was inadequately noticed. 

The Court of Appeal reverses, finding that this claim too arose from protected activity. It focuses largely on the nature of the Association’s communications to the county, finding that they were “other conduct in furtherance” related to an issue of public concern under Code of Civil Procedure § 425.16(e)(4). 

But I’m not sure that’s right. The essence of an open meeting claim is that the board failed to give adequate notice and conducted unnoticed business. See Civ. Code §§ 4910, 4920, 4930. The lack of notice means the meeting was improper, and thus any official act resulting from the meeting should be voidable. See Civ. Code § 4955(a). But the fact that the voidable official decision is followed by an announcement of that decision through a communicative act should not mean that the cause of action is “based on” that subsequent communication. That’s the whole point of the Supreme Court’s decision in Park: “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.” Of course, Park isn’t cited in this opinion, and from what I can tell, not in the briefs either. 

Now, the Developer didn’t help itself, not only by failing to make a Park argument, but also because it didn’t just ask the court to void the acts at the meeting and for a statutory penalty. That is the authorized relief on this type of claim. See Civ. Code § 4955 (relief consists of declaratory and injunctive relief, restitution, attorneys’ fees, and civil penalties of $500 per act). But instead, the Developer asked for a large amount of damages, on the theory that the meeting wasn’t properly noticed, which led to an improper meeting, which led to a vote to criticize the Developer’s plan, which led to the communication with the county, which led to the rejection of the project, which led to lots of damages. Framed that way, it’s not all that surprising that the Court looked at the communication as the core of the injury causing activity on the claim.

The Developer also really didn’t help itself by making the most useless argument in all of anti-SLAPP litigation—that the activity was illegal as a matter of law under Flately v. Mauro and thus can’t be “protected activity.” 

I know I say this over and over again, but I suppose the four people who actually read this blog maybe haven’t told their friends yet. Everyone needs to stop making Flatley arguments. The standard is so high—the defendant needs to basically admit that the activity is criminal—that they never work. So please. Stop. Save your Flately points for prong two, where they really belong.

And as to prong two, on the merits, the particular plaintiff that brought the open meeting claim didn’t actually own property in the Association’s jurisdiction. So it didn’t have standing to sue. Moreover, its complaints about the inadequacy of the notice expected a level of specificity about agenda items that isn’t really required. So the Developer couldn’t show a probability of prevailing. So this is reversed.

The remainder of the claims—for which the trial court granted the motion—have a similar Park problems. They all appear to be directed to the allegedly inappropriate nature of the Association’s decision. Some of them might be closer calls than others, but given Plaintiff’s damages theory, the Court again largely focuses again on the letter to the county, a clearly communicative act, and affirms on that basis.

Reversed in part, affirmed in part, and remanded for calculation of attorney’s fees.