The opinion of the court was delivered by: Hon. Dana M. Sabraw United States District Judge
(1) GRANTING IN PART AND DENYING IN PART DEFENDANT CHOTINER'S SPECIAL MOTION TO STRIKE,
(2) GRANTING IN PART AND DENYING IN PART DEFENDANT CHOTINER'S MOTION TO DISMISS AND/OR STRIKE,
(3) DENYING PLAINTIFF'S MOTION TO STRIKE
Pending before this Court are (1) Defendant Chotiner's special motion to strike the breach of contract and invasion of privacy claims in the First Amended Complaint ("FAC"), (2) Defendant Chotiner's motion to dismiss and/or strike portions of Plaintiff's FAC, and (3) Plaintiff's motion to strike portions of Defendants' answer and counterclaim. For the following reasons, Defendant Chotiner's special motion to strike is granted in part and denied in part, Defendant Chotiner's motion to dismiss and/or strike is granted in part and denied in part, and Plaintiff's motion to strike is denied.
Plaintiff and her husband purchased a home in the Rancho Dorado community in San Marcos, California in May 2001, where they have resided with their minor children since. (FAC ¶ 14.) Plaintiff alleges she suffers from various medical conditions, including Multiple Chemical Sensitivities, Mixed Connective Tissue Disease, Vasculitis, Polymyositis, Scleroderma, Lupus, Rheumatoid Arthritis, Thyroid Disease, and Asthma. (Id. at ¶ 15.) Plaintiff further alleges her medical conditions cause her immune system to react to exposure to various environmental chemicals or pesticides, insecticides, fungicides, fertilizers, and herbicides, making such materials dangerous to her health and potentially life threatening. (Id. at ¶¶ 15, 17.) Plaintiff has informed Defendants Rancho Dorado Homeowners Association and The Prescott Companies (collectively, the "HOA Defendants") of her special sensitivity to such materials and requested certain accommodations. (Id. at ¶ 18.) Despite this, Plaintiff alleges the HOA Defendants caused such materials to be applied to the common area around Plaintiff's property in 2008 and 2009, causing her bodily injury, damages, and severe emotional distress. (Id. at ¶¶ 19-20, 27-33, 36-38.)
Defendant Chotiner filed a special motion to strike the fifteenth and sixteenth claims for relief in Plaintiff's original Complaint pursuant to California Code of Civil Procedure § 425.16 on July 12, 2010 ("anti-SLAPP motion"). (Doc. 6.) On August 6, 2010, Plaintiff filed the FAC. (Doc. 18.) On August 12, 2010, the Court issued an Order construing Defendant Chotiner's anti-SLAPP motion as a motion to strike the breach of contract and violation of privacy claims from the FAC. (Doc. 22.) Defendent Chotiner subsequently filed a motion to dismiss and/or strike portions of the FAC. (Doc. 24.) The HOA Defendants filed an answer to the original Complaint and a counterclaim on July 23, 2010. (Docs. 11-12.) On August 12, 2010, Plaintiff filed a motion to strike portions of Defendants' answer and counterclaim. (Doc. 23.) An opposition and a reply were filed to each of the three motions. On September 13, 2010, the HOA Defendants filed an answer to the FAC. (Doc. 35.)
A. Defendant Chotiner's Anti-SLAPP Motion
Under California's anti-SLAPP statute, "[a] cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." Cal. Code Civ. P. § 425.16(b)(1). An "act in furtherance of a person's right of petition or free speech" includes: "(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law; (3) any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or (4) or any other 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." Id. at § 425.16(e).
The anti-SLAPP movant must first make a threshold showing that the claim for relief being challenged arises from protected activity under the anti-SLAPP statute. Newsham v. Lockheed Missiles & Space Co., 190 F.3d 963, 971 (9th Cir. 1999); Rusheen v. Cohen, 37 Cal.4th 1048, 1055-56 (2006). If the court determines that such a showing has been made, it then looks to whether the party opposing the motion has demonstrated a reasonable probability of prevailing on the claim. Newsham, 190 F.3d at 971. If the movant prevails on a special motion to strike, she or he is "entitled to recover his or her attorney's fees and costs." Cal. Code Civ. P. § 425.16(c)(1). Additionally, if the Court "finds that a special ...