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Veronica Cabrera v. Mohammed Alam

July 27, 2011

VERONICA CABRERA, PLAINTIFF AND RESPONDENT,
v.
MOHAMMED ALAM, DEFENDANT AND APPELLANT.



Appeal from an order of the Superior Court of Orange County, Jamoa A. Moberly, Judge. (Super. Ct. No. 30-2010-00356179)

The opinion of the court was delivered by: Fybel, J.

CERTIFIED FOR PUBLICATION

OPINION

Reversed and remanded with directions.

INTRODUCTION

Plaintiff Veronica Cabrera sued defendant Mohammed Alam for defamation, based on statements he made at a homeowners association's annual meeting immediately before the membership's election of the association's board of directors. Defendant was running for re-election to the board of directors. Plaintiff, a past president of the board of directors, had actively campaigned against defendant and in favor of a competing slate of candidates. At the time that the allegedly defamatory statements were made, plaintiff was speaking on behalf of one of the candidates challenging defendant's re-election, having been given that candidate's "power of attorney" to represent him at the meeting. Plaintiff accused defendant of having mismanaged the association's finances and stated the association was missing money. In response, defendant accused plaintiff of stealing money from the association and defrauding it.

The trial court denied defendant's special motion to strike plaintiff's defamation claim under Code of Civil Procedure section 425.16, commonly referred to as the anti-SLAPP (strategic lawsuit against public participation) statute (the anti-SLAPP motion).*fn1 Defendant contends the trial court erroneously concluded he failed to meet his initial burden of showing the conduct underlying plaintiff's defamation claim was protected activity within the meaning of the anti-SLAPP statute.

We reverse and remand with directions to grant the anti-SLAPP motion. Defendant carried his burden of showing the defamation claim was based on protected activity under section 425.16, subdivision (e)(3). We hold defendant's statements were protected activity because they were made in a public forum at a homeowners association's annual meeting and concerned an issue of public interest, namely, the qualifications of a candidate for office in the association. Plaintiff failed to carry her burden of showing a probability of prevailing on the merits of the defamation claim. Having thrust herself into the controversy surrounding the election of the association's board of directors, she became a limited purpose public figure who was required to show defendant made the allegedly defamatory statements with malice. Plaintiff failed to produce any evidence showing defendant made the statements knowing them to be false or recklessly disregarding their falsity.

BACKGROUND

Plaintiff's complaint asserted claims for defamation (slander), intentional interference with contractual obligation, negligent interference with contractual obligation, and unfair business practices. According to plaintiff, the gravamen of her defamation claim is that defendant "stated to a room full of residents from Brookhurst Village, that Plaintiff had committed the crime of fraud on the Brookhurst Village Homeowners Association and stolen funds from the Association."

Defendant filed the anti-SLAPP motion challenging the defamation cause of action. The anti-SLAPP motion was supported by defendant's declaration which explains how plaintiff, a past president of the homeowners association's board of directors, had been actively campaigning on behalf of a slate of candidates running for the Brookhurst Village Homeowners Association, Inc.'s (the association) board of directors. The association served Brookhurst Village Condominiums, a nonprofit, common interest development consisting of 228 condominiums.

Beginning about two weeks before the association's annual meeting and board of directors' election scheduled for September 17, 2009, plaintiff began passing out flyers identifying five candidates she supported for election to the board of directors. Defendant's declaration stated plaintiff "apparently prepared the flyer because her name is mentioned after every candidate on the flyer." (Plaintiff does not dispute she prepared the flyer or was extensively involved in campaigning on behalf of that slate of candidates.) The copy of the flyer, which was attached to defendant's declaration and entitled "NEW ELECTIONS ON SEPTEMBER 17th!!! [¶] Support us for the up-coming year!", identified five candidates and includes a statement of support by plaintiff following each candidate. The flyer first identified Francisco Luna and stated, inter alia, "Veronica Cabrera, los apoya!/support this group!" Next, candidate Teofilo Ibarra was identified, followed by the statement, "'This is your home vote' Veronica Cabrera." After a statement attributed to candidate Jose Gutierrez, was the following: "'Make a difference and vote' Vero." Following a statement by candidate Maximino Gutierrez, the flyer stated, "'Para proteger tu inversion, vota[,'] Veronica Cabrera." Finally, after identifying candidate Diana Chacon, the flyer stated, "'Por igualdad y honestidad vota,' Vero."

On September 17, 2009, about 30 to 45 minutes before the association's annual meeting and election of the board of directors, plaintiff "was milling about and talking with the people who were gathering for the meeting." She continued to campaign for certain candidates and also to campaign specifically against defendant, who was a current member of the association's board of directors and was seeking to be reelected that night.

The property manager of Brookhurst Village Condominiums called the meeting to order at 7:00 p.m. and stated that because there was going to be an election, only homeowners could attend. Because plaintiff had sold her condominium a few months earlier, the property manager asked her to leave.*fn2 Plaintiff "stood up and said she has a right to be at the meeting because one of the homeowners had given her a 'power of attorney.'" Plaintiff stated she had been given power of attorney to represent candidate Teofilo Ibarra at the meeting and election that night. After the property manager explained that plaintiff could not represent Ibarra at the meeting because he was also present, Ibarra said he would leave so that plaintiff could stay.

According to the minutes of the meeting, plaintiff "started talking to the public saying that the Board Members were not doing their job right and that it was time for a change, she also thank[ed] the homeowners for their support." Plaintiff stated defendant was a "dictator" who had not taken care of the association's money and had not properly handled the finances. Plaintiff also said that the association was "missing funds." There is no evidence that plaintiff's statements about defendant were true. Defendant asserted in his declaration in support of the anti-SLAPP motion: "[Plaintiff]'s accusations were lies." In the opposition, plaintiff did not produce any evidence or argument challenging defendant's statement.

Defendant stated he felt he had to defend himself. He further stated: "I stood up and asked her a question. I asked her what happened to the $100 rebate check from Staples that the Association was supposed to get when it purchased a fax machine about a year earlier, when she was President of the Association's board of directors." Defendant explained: "I knew that she signed the Association check that was used to purchase that fax machine. She also filled out the paperwork for the $100 rebate. On that paperwork, she put her home address, not the Association's address. I explained all that to the room. [Plaintiff]'s response to my question was: 'Viva la Revolucion!'"

In his declaration, defendant further explained he "researched the financial records for the Association" and had "not seen anything that indicates $100 was deposited into the Association's account around the time the rebate for the fax machine would have arrived." He stated, "[t]he records indicate the Association did not receive the $100 rebate" and plaintiff "apparently took the $100 rebate for herself." Defendant further stated he asked plaintiff about the rebate "because it was important information for the homeowners to know before they voted. [Plaintiff] was campaigning on behalf of her friends. The homeowners needed to know how credible [plaintiff] was and how unreliable her recommendations were. It also was important because she was accusing me of financial malfeasance, when in fact she was guilty of exactly that." He asserted, "I did not make statements about [plaintiff] out of malice or an evil intent. I wanted to tell the homeowners the truth, and that is what I did."

Plaintiff opposed the anti-SLAPP motion and supported her opposition with her own declaration and that of Reyna Martinez.*fn3 Martinez's declaration stated that she had attended the September 17, 2009 meeting, and that "[d]uring the meeting [defendant], a then current board member and candidate for re-election, took the floor and I heard him state that [plaintiff] had stolen money from the association. I also heard him say that [plaintiff] had committed fraud against the association." Martinez also declared she had "attended the entire meeting and during that time [defendant] never gave any information or details to the members present to support his accusations of fraud and theft against [plaintiff]."

Plaintiff's declaration stated that on September 17, 2009, she was not a resident, a member of the association, a member of the association's board of directors, or a candidate for election to the association's board of directors. In her declaration, plaintiff asserted: "I have never stolen funds from, nor defrauded, the Brookhurst Village Condominiums" and "have never been investigated, questioned, criminally ...


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