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Sherrill M. Silk v. Phillip Feldman

August 14, 2012

SHERRILL M. SILK, PLAINTIFF AND RESPONDENT,
v.
PHILLIP FELDMAN, DEFENDANT AND APPELLANT.



(Super. Ct. No. 56-2010- 00382899-CU-DF-VTA) (Ventura County) Henry J. Walsh, Judge

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

CERTIFIED FOR PUBLICATION

Not all speech is free. Here, speech can be costly.

This is an appeal from the denial of a special motion to dismiss a complaint for libel and defamation. The motion was brought pursuant to Code of Civil Procedure section 425.16, the strategic lawsuit against public participation (anti-SLAPP) statute.*fn1 We affirm.

FACTS

The Malibu Bay Club is a 136-unit residential beachfront development in Ventura County. The development consists of 36 townhomes and 100 condominiums. All owners are members of a corporation homeowners association, the Malibu Bay Club ("the Club"). Some residents are also members of a separate homeowners association, the Malibu Bay Owners Association (MBOA)

Sherrill Silk and Philip Feldman are owners and residents. Silk was on the Club's board of directors from 1996 until 2000. Feldman has been a director since 2009.

In 1998, Montgomery Knox, the son of the Club's developer, brought a quiet title action against the Club, its individual members and the MBOA, to establish his ownership to 36 parking spaces on the Club's premises. In 1999, the trial court ruled Knox owned the parking spaces along with the right to use a portion of the Club's common area known as the "sandbox." The ruling prompted the Club and Knox to resolve the remaining issues through mediation. This resulted in a settlement in Knox's favor in 1999.

Beginning in 1999, Knox offered the parking spaces for sale to the general public and members of the Club for $25,000 per space. When Silk purchased six parking spaces in December 2003, the price for the six spaces was $114,000 or $19,000 each. The purchase included an assignment of Knox's rights to maintain the parking spaces, the right to gate entry cards and the right to require the Club to enforce its parking rules.

In response to requests for gate cards from people who own parking spaces, the Club's board of directors sent an undated letter to its members. The letter stated that Silk was "legal liaison" in the Knox settlement negotiations and that she purchased six parking spaces in consideration of $10.

On February 2, 2009, Silk's attorney wrote the board demanding a retraction and threatening legal action. On March 7, 2009, the board sent a letter to its members. The letter stated that two other directors were with Silk on the committee that oversaw the Knox litigation, and that Silk purchased her six parking places for $114,000.

On June 2, 2009, Feldman wrote to the Club members on his law office letterhead to encourage the members to vote for him for the Club board. The letter stated that Silk was also running for the board. Feldman accused her of overseeing the Knox lawsuit so she could obtain parking spaces for her personal use.

On August 16, 2010, Feldman sent another letter to Club members. The letter was headed "Phil's historical take on Malibu Bay Club, past, present, and future." The letter spoke of a derivative action against the Club. The letter also stated in part: "As you know, Board Members, like any elected representatives, owe allegiance and loyalty to the people who elect them. They may not self-serve or 'feather their own nest[.]' Attorney Sher[r]ill Silk was on the Board and without the knowledge of the lawyers who settled the Knox matter, she and president Don Desfor cut secret deals to purchase nine parking spaces for themselves with manufactured rights to use our beach along with each space. They never revealed what they did and never apologized. Successive 'friendly' Boards kept their secret for a decade."

On October 5, 2010, Silk filed the instant complaint for defamation and libel per se. The complaint was based on the above-quoted paragraph from Feldman's letter of August 16, 2010.

Feldman moved to dismiss under the anti-SLAPP statute. Feldman's motion claimed his publication is protected under section 425.16, subdivision (e)(2) as a statement made in connection with an issue under consideration by a judicial body; subdivision (e)(3) as a statement made in a public forum in connection with an issue of public interest; and subdivision (e)(4) other conduct in furtherance of the right of free speech.

In opposition to the motion, Silk disputed that Feldman's statement qualified as an exercise of the rights of petition or free speech under section 425.16, subdivision (e). Silk also submitted declarations in support of her claim ...


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