Statements Made in HOA Recall Election Campaign are Subject to Anti-SLAPP Protection

A Strategic Lawsuit Against Public Participation or “SLAPP” is a civil lawsuit brought to either prevent or punish another person for exercising their First Amendment right to petition the government or to speak about public issues. The primary purposes of these lawsuits is to use the courts to obtain economic or other coercive leverage over the defendants unrelated to the merits of the underling claims. In 1992, California enacted Code of Civil Procedure section 425.16, the anti-SLAPP statute, as a response to these types of lawsuits. Prior to the enactment of Section 425.16, the defendants would spend years in litigation and be out of pocket thousands of dollars in attorney’s fees before their First Amendment rights were vindicated. With the protection of Section 425.16 in place, a defendant can now very quickly get a ruling on the merits of the case, get the case dismissed and get all of his attorney’s fees paid for. A defendant who believes he has been named in a SLAPP lawsuit may file a special motion to strike which, if granted, results in a dismissal of the case and immediate right of appeal.

In Glassner v. Smith (May 4, 2015, A140876), the First Appellate District found that a slander, libel and false light invasion of privacy lawsuit was subject to California’s anti-SLAPP law and should be stricken.  In an unpublished decision authored by Associate Justice Kathleen M. Banke, the court found that a person involved in a Homeowners Association (“HOA”) election campaign is a limited purpose public figure:

“We have no trouble concluding Glassner, who sought out election to and retention on the HOA board, was a public figure, limited to the context of his suitability for HOA.  All of the alleged defamatory statements were made in the context of challenging Glassner’s fitness for the office he had just won.  While the dispute may have arisen partly from petty spite, the composition of the HOA’s board and the decisions it makes are of critical importance to the hundreds of HOA members and other residents of Pointe Marin, for whom the HOA plays the unique role of a “second municipal government.”

The court went on to hold that because all of the statements alleged to be defamatory were true in substance, the lawsuit should be stricken under California’s anti-SLAPP law.  Although this case is unpublished and not citable in California courts, there are lessons to be gleaned from this case:  If you file a lawsuit based on actions arising from the governance of a HOA, it is likely the defendants will file an anti-SLAPP motion in response.  A plaintiff in such a case must be prepared to meet such a motion with evidence to support every element of his claim.  Absent such evidence, the anti-SLAPP motion will likely be granted and the plaintiff will likely be ordered to pay the defendants’ attorney’s fees.  An attorney experienced in anti-SLAPP procedure and the First Amendment can guide a potential plaintiff about the potential pitfalls of filing a lawsuit in this context.

Jeffrey Lewis and the other attorneys at Broedlow Lewis LLP are experienced trial and appellate attorneys who can advise you about the specifics of your anti-SLAPP issue or appeal.  Each case is different and you should consult a lawyer rather than relying on this post as legal advice for your situation.  If you are contemplating filing or responding to lawsuit or appeal with potential anti-SLAPP issues, consider hiring a certified appellate specialist as your lawyer or co-counsel.  Don’t wing it, win it.

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