Appeal from an order of the Superior Court of Orange County, David T. McEachen, Judge. Reversed. (Super. Ct. No. 07CC08828).
The opinion of the court was delivered by: Moore, Acting P. J.
CERTIFIED FOR PUBLICATION
Vista Pointe Ridge Homeowners Association (Association) brought a successful Code of Civil Procedure section 425.16 motion to strike the complaint of Jeffrey M. Turner and Nanette K. Turner.*fn1 The Turners appeal. They contend the trial court erred in construing all matters in connection with a homeowners association's application of architectural guidelines as matters to which section 425.16 applies. We agree. Not every mundane communication between a homeowners association and a homeowner gives rise to a freedom of speech issue. Section 425.16, subdivision (e)(4), at issue here, does not come into play unless the right of free speech or the right to petition is involved. The cause of action itself must be based on the speech or petitioning activity. If neither of those rights is at stake, section 425.16, subdivision (e)(4) is inapplicable, irrespective of whether the subject of the dispute may otherwise be a matter of public interest. We reverse.
The Turners, as trustees of their living trust, own residential real property in Aliso Viejo, California. The real property is subject to conditions, covenants and restrictions (CC&R's) that require homeowners to obtain the approval of the Association before constructing certain improvements on their property. The Turners obtained Association approval for an addition to their home and for substantial outdoor improvements, including a casita. The parties agree that the approval specified the casita could not exceed 10 feet six inches in height.
After undertaking construction, the Turners concluded that they would need to increase the height of the casita. According to their own admission, they increased the height by about a foot or a foot and a half without first obtaining a variance from the Association. As they further acknowledge, a neighbor complained about the height of the casita, and purportedly threatened to sue the Association because the casita constituted an unreasonable view obstruction. The Association was reluctant to grant the variance, and was concerned about the attorney fees it was incurring in addressing the compliance matter. The Turners say the Association at one point offered to grant the variance if they held the Association harmless against any claims by the neighbor in question and if they paid $15,000 in Association attorney fees. However, the Turners did not accept the offer, because they felt the variance should not be conditioned on the payment of money.
In addition to the dispute concerning the height of the casita, there were issues about whether a number of other improvements the Turners had constructed were approved by the Association or were in conformity with the Association's architectural guidelines. The Turners also complain that the Association ultimately levied a $23,732.48 reimbursement assessment in connection with the disputed matters. The record contains some evidence showing that the Association sought that amount in administrative costs and attorney fees incurred in what the Association deemed to be an enforcement matter. The Turners also say that the Association demanded they pay $150 to remove a tree from the common area, a matter they contend is not their responsibility. On that point, the record contains a copy of a letter indicating that the tree removal was a condition of approval of the Turners' landscape plans, although the reason for the condition is not apparent.
The Turners filed suit against the Association. They asserted seven causes of action: (1) breach of contract; (2) declaratory relief; (3) nuisance; (4) breach of the implied covenant of good faith and fair dealing; (5) violation of Civil Code section 1378, concerning homeowners association architectural review procedures; (6) violation of Business and Professions Code section 17200, pertaining to unfair business practices; and (7) breach of fiduciary duty.
The Association filed a section 425.16 motion to strike the Turners' complaint. In its motion, the Association argued that each cause of action was based on its activities arising out of the controversy pertaining to the Turners' architectural plans. It further argued that, based on Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468 (Damon) and Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456 (Ruiz), all of those activities constituted protected "conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest," within the meaning of section 425.16 subdivision (e)(4).
The court granted the Association's motion. It noted that each cause of action arose out of a dispute over the architectural guidelines and related to communications from the Association pertaining to purported noncompliance with those guidelines. It also observed that the dispute with the neighbor pertained to the same issues. The court held that, under Ruiz, supra, 134 Cal.App.4th 1456, the dispute, being one about architectural guidelines, was a public issue. It further held that the burden had shifted to the Turners to present evidence establishing a probability that they would prevail on their claims, and that they had not met their burden. This appeal ensued.
The Turners argue that, contrary to the court's apparent construction of Ruiz, supra, 134 Cal.App.4th 1456, section 425.16 does not apply to all homeowners association conduct in connection with design review matters. They also maintain that the communications from the Association in this particular matter were not protected activity under section 425.16. They explain, inter alia, that their causes of action did not challenge the Association's communicative conduct. Finally, the Turners assert that even if section 425.16 were applicable, they met their burden to show a probability of prevailing on their causes of action. The Association, on the other hand, maintains that its communications with the Turners constituted protected activities under section 425.16, inasmuch as they arose out of the ...