One of my colleagues from back in law school recently helped broaden anti-SLAPP rights for individuals serving on homeowners association (“HOA”) boards.
In Lee v. Silveira, a handful of HOA board members sued the majority of HOA board members for allegedly failing to follow proper bid procedures before voting to renew a management contract. The trial court denied the defendants’ anti-SLAPP motion, but the Court of Appeal for California’s Fourth District overturned this denial and held that California’s anti-SLAPP law protects HOA board members sued as individuals when the board members are elected to represent the interests of the HOA and the gravamen (or essence) of the lawsuit is how the defendants voted on matters of interest to the HOA.
As we know, Code of Civil Procedure § 425.16––California’s anti-SLAPP law––allows the court to quickly dismiss a lawsuit and order payment of attorney fees where the lawsuit arises from the defendant’s exercise of the right to free speech or petition, and the plaintiff cannot prove a likelihood of ultimately prevailing on the merits of the lawsuit.
This case is noteworthy because the Court of Appeal specifically distinguishes these facts from those of Talega Maintenance Corp. v. Standard Pacific Corp. In that case, the court upheld the denial of an anti-SLAPP motion of former HOA board members who were sued by the HOA as individuals alongside the developer in a construction defect lawsuit. The board members in that case were appointed to the board by the developer to protect the developer’s interests, and the HOA alleged that the former board members previously failed to disclose certain documents indicating the developer’s liability.
The Silveira court distinguished Talega for a few reasons: (1) the Talega defendants were appointed to the board by the developer to promote the developer’s interests, whereas the Silveira defendants were elected by the HOA members whom they were serving, in the community where they lived and shared membership; (2) the gravamen of Talega complaint was the defendants’ actions, as opposed to the Silveira defendants’ expressive activity of voting; and (3) the HOA sued the Talega defendants, while individual board members sued the Silveira defendants; (4) the vote in Talega was noncontroversial when taken, as opposed to the immediately controversial Silveira vote; and (5) the Talega lawsuit was incidental to the vote, whereas the Silveira lawsuit was a direct result of the vote.
Instead, the Silveira court applied its previous decision in Schwarzburd v. Kensington Police Protection & Community Services District Board. In Schwarzburd, individual members of a local board sued their fellow board members and the district itself. The individual defendants responded with an anti-SLAPP motion, and since the plaintiffs could have obtained relief simply by naming the district itself, it concluded that the board members were named as defendants in order to intrude upon their First Amendment rights.
The Silveira court applied this reasoning and found the plaintiffs’ decision to name the individual board members rather than the HOA itself was further evidence that the plaintiffs targeted the defendants’ expressive rights. It subsequently analyzed the underlying causes of action and concluded that the plaintiffs were not likely to succeed on the merits. Therefore, it reversed the trial court’s order, with instructions to grant each defendant’s anti-SLAPP motion.
(1) HOA board members who are elected by the members of the community they serve can now rest more comfortably knowing California’s anti-SLAPP law protects the expressive nature of their votes.
(2) Attorneys seeking to challenge an HOA decision should consider naming the HOA itself and steering clear of its board members.
(3) Anti-SLAPP exists to protect our rights to free speech and petition. This decision reinforces the principle that expressive conduct within the framework of a process aimed toward benefiting an identifiable community is more likely to be protected by anti-SLAPP.
Hat tip to Constance Trinh Ehrlich of Neuland, Whitney & Michael, APC for her victory in this case.