Complaining about your HOA is a constitutionally protected activity
Tinnelly Law Group
Posted by Steven J. Tinnelly, Esq.
28 March 2011
A recently decided case underscores the fact that speaking out against
the action of a HOA’s Board of Directors, agents and/or management is a
constitutionally protected activity. In Country Side Villas Homeowners Association v. Susan Ivie, 193 Cal.App.4th 1110 (2011) (“Country Side“),
a homeowner (“Ms. Ivie”) was upset at the Association’s newly elected
Board and newly hired Attorney for their new interpretation of a
maintenance provision in the CC&Rs concerning balconies. Ms. Ivie
was concerned about the lack of funding for the new maintenance
obligation and also that the decision was being made by the Board for
self-serving reasons. The case ultimately went to trial where the
Association sought a judicial determination as to the interpretation of
the CC&Rs and also sought damages in the form of attorneys’ fees
from Ms. Ivie.
The most interesting aspect of the holding is that the appellate court
ultimately affirmed the trial court’s granting of Ms. Ivie’s anti-SLAPP
motion. “SLAPPs” (“Strategic Lawsuits against Public Participation”)
are civil complaints or counterclaims in which the alleged injury was
the result of petitioning or free speech activities protected by the
First Amendment of the US Constitution. California has an anti-SLAPP
statute (Civil Procedure Section 425.16) that provides for a special
motion to strike a complaint where the complaint arises from conduct
that falls within the rights of petition and free speech.
The decision in Country Side to grant Ms. Ivie’s anti-SLAPP motion was
based on the rationale that Ms. Ivie’s action–the petitioning of the
Association’s Board and the requests to inspect the Association’s
financial documents–arose from constitutionally protected activity.
Protected activity under Section 425.16 includes instances where the
action arises out of “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.” §425.16(e)(4).
Public comments concerning the competence of an HOA manager are
recognized under California case law as speech connected with an issue
of public interest within the meaning of Section 425.16. Damon v. Ocean
Journalism Club,(2000) 85 Cal.App.4th 468, 479-480. In ruling that Ms.
Ivie’s conduct in criticizing the Association’s action was similarly a
matter of public interest within the meaning of Section 425.16, the
court used the rationale from Damon that Section 425.16 “has been
broadly construed to include not only governmental matters, but also
private conduct that impacts a broad segment of society and/or that
affects a community in a manner similar to that of a governmental
entity.” Damon, at 429.
This case is an example of how HOAs can be seen as unique forms of
quasi-governmental entities. Most HOAs in California are organized as
various forms of private corporations. However, because HOAs often
carry out functions similar to those of a governmental or municipal
body, California law has treated them as such in certain limited
scenarios.
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