Hauser v. Nelson
Filed 11/15/13 Hauser v. Nelson CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
PHIL HAUSER,
Plaintiff and Appellant,
v.
BEATRICE NELSON,
Defendant and Respondent.
D062611
(Super.
Ct. No. 37-2012-00053288-CU-DF-NC)
APPEAL from an order of the Superior
Court of
Maas III, Judge. Affirmed.
Phil Hauser, in pro. per., for
Plaintiff and Appellant.
No appearance for Defendant and
Respondent.
Plaintiff and appellant Phil Hauser,
appearing in propria persona as he did in the trial court, appeals the order
granting under Code of Civil Procedure section 425.16
the anti-SLAPP motion of 89-year-old defendant and respondent Beatrice Nelson
strike his verified complaint asserting two defamation claims against
Nelson. The court ruled Nelson satisfied
her burden under subdivision (b)(1) of section 425.16 to make a prima facie
showing her speech that gave rise to Hauser's claims was protected under
subdivision (e)(3) of section 425.16 as a written or oral statement made in a
public forum in connection with an issue of public interest. The court also ruled Hauser could not satisfy
his burden under subdivision (b)(1) of section 425.16 to establish a
probability of success on his claims.
As we explain, we independently conclude the trial court properly
granted Nelson's anti-SLAPP motion.
FACTUAL AND PROCEDURAL BACKGROUND
At all times relevant, Hauser and
Nelson were residents of a seniors-only mobilehome community known as San Luis
Rey Homes (SLRH) located in Oceanside, California. Hauser alleges that in February and again in
March 2012, Nelson published statements to SLRH owners/members, the board of
governors of SLRH (board) and the San Diego County District Attorney's Office generally
questioning the propriety of the board's use of funds to pay Hauser and others
in connection with a project headed up by Hauser to upgrade SLRH's aging
utility infrastructure (revitalization project).
Hauser sued Nelson in May 2012 for
defamation as a result of what Hauser maintains was Nelson's "negativity
campaign" against the revitalization project, which he notes has "severely
handicapped" SLRH's ability to obtain grant funds for the project, and as
a result of comments Nelson published about Hauser and his role and involvement
in that project.
Nelson moved under section 425.16 to strike Hauser's complaint,
contending her speech was constitutionally protected under subdivision (e)(3)
of that statute as it involved statements concerning the "'manner in which
a large residential community would be governed'" and, as such, were matters
of "'public interest.'"
Specifically, Nelson contended she was sued by Hauser because Nelson had
been the "person most persistently vocal in . . . questioning . . .
the Board's policies, decisions and expenditures" in connection with the
revitalization project, which the board estimated could cost $9.2 million.
The trial court granted Nelson's anti-SLAPP motion, ruling as follows:
"Construing the statute broadly, Defendant has satisfied her
burden of showing that her speech that gave rise to the Plaintiff's complaint
is protected by CCP § 425.16(e) as a written or oral statement made in a place
open to the public or a public forum in connection with an issue of public
interest.
"The Board meetings and the Minutes from such constitute a public
forum. (Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468,
475.) The Court is not persuaded that
the forum in Damon is distinguishable
from this case because of the factors argued by Plaintiff including, but not
limited to, the size of the community and the value of the property.
"The subject of the speech is public interest. Most of the statements alleged in the
complaint concern Defendant's opinion about (i) the Board's failure to abide by
the Bylaws, (ii) Plaintiff being paid by the Board for his position as
Treasurer and as a consultant for the Project, and (iii) the Board not
requiring Plaintiff to account for his time.
Plaintiff's employment and the Revitalization Project[] itself are
subject to the Bylaws of SLRH and affect financial obligations of all owners as
shareholders of San Luis Rey Homes, Inc.
Therefore, the subject of most of the statements alleged by Plaintiff to
be defamatory concerns a public interest because all owners of SLRH have an
interest in the Project.
"Lastly, the statement concerning financial elder[] abuse would
also be an issue of public interest because it concerns alleged financial
manipulation of the entire group.
"Based on the foregoing, Defendant has made a prima facie showing
that the speech at issue in the complaint is written or oral statements made in
a public forum in connection with an issue of public interest. As such, the burden shifts to Plaintiff to
establish a 'probability' that plaintiff will prevail on whatever claims are
asserted against defendant.
"Plaintiff did not satisfy that burden. Almost . . . all of these
statements by Defendant are statements of opinion or concern inaction of the
Board. Defendant's speech concerns the
failure of the Board to approve changes of the bylaws and whether Plaintiff is
paid too much. Any insinuation that
Plaintiff is not doing the work he is paid to do really concerns the Board's
lack of supervision or failure to account for members' money paid to Plaintiff
when it is read in conjunction with the rest of the allegations. Again, this statement concerns the Board not
Plaintiff.
"In his second cause of action Plaintiff alleges statements made
by Defendant concerning financial elder abuse.
Defendant indicates that these were published to the District Attorney's
Office. Defamation is not the
appropriate cause of action with regard to this statement because any
statements to the District Attorney, especially those concerning any type of
elder abuse would be protected by privilege.
Plaintiff would need to allege malicious prosecution or, given the
appropriate circumstances, abuse of process.
"Based on the foregoing, it is not likely that Plaintiff would
prevail. Therefore, the Anti-SLAPP
motion is granted and the complaint is stricken."
DISCUSSION
A. Guiding Principles
trial court, a court employs a two-step analysis in determining whether one or
more causes of action should be stricken under the anti-SLAPP statute. (§ 425.16, subd. (b)(1).) In the first step, the defendant bears the
initial burden of making a prima facie showing that the cause of action "aris[es]
from any act of that person in furtherance of the person's right of petition or
free speech . . . ."
(Ibid.; see also
85 Cal.App.4th 468, 473 (Damon).)
Subdivision (e) of section 425.16 provides that an "'act in
furtherance of a person's right of petition or free speech'" under
subdivision (b)(1) of section 425.16 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) 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."
If the defendant meets this threshold burden, in the second step the
burden then shifts to the plaintiff to "establish[] that there is a
probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1); see also
(2013) 215 Cal.App.4th 534, 548 (Kleveland).)
"Under section 425.16, subdivision (b)(2), the trial court in
making these determinations considers 'the pleadings, and supporting and
opposing affidavits stating the facts upon which the liability or defense is
based.' [Citation.] For purposes of an anti-SLAPP motion, '[t]he
court considers the pleadings and evidence submitted by both sides, but does
not weigh credibility or compare the weight of the evidence. Rather, the court's responsibility is to
accept as true the evidence favorable to the plaintiff . . . .' [Citation.]" (Kleveland,
supra, 215 Cal.App.4th at p. 548.)
questions, and we review the record de novo." (Damon,
supra, 85 Cal.App.4th at p.
474.)
B. "Arising From" Requirement
We independently conclude from the record that the alleged defamatory
statements made by Nelson constitute acts in furtherance of her right of free
speech under subdivision (b)(1) of section 425.16, inasmuch as they satisfy the
third statutory category of subdivision (e) of section 425.16 as they were made
in a public forum and concerned issues of public interest.
This court in Damon decided
a nearly identical issue to the case at bar.
There, the plaintiff—a former manager of a homeowners association—brought
a defamation action against six association members who authored articles,
editorials and letters to the editor that were critical of the plaintiff's
management of the homeowners association; the publisher of a private
association newsletter where they appeared; and two board of directors of the
homeowners association who criticized the plaintiff and his management of the
homeowners association and questioned his competency and veracity at board
meetings. (Damon, supra, 85
Cal.App.4th at pp. 472-473.) The trial
court granted the defendants' special motion to strike the plaintiff's
defamation action, finding the suit arose from the defendants' exercise of free
speech in connection with a public issue and the plaintiff could not show a
probability of success on the merits because the alleged defamatory statements "were
privileged and/or nonactionable opinions."
(Id. at p. 473.) This court affirmed.
We concluded in Damon that
the alleged defamatory statements made by the defendants about the plaintiff
were "made in a place open to the public or a public forum" as
provided in subdivision (e)(3) of section 425.16, inasmuch as the defamatory
statements were made both in board meetings of the homeowners association that
were duly noticed and open to members of the homeowners association where
members were entitled to speak publicly, and in a newsletter that was
distributed to association members. (
statements "concerned the manner in which a large residential community
would be governed," we further concluded they also satisfied the "'public
interest'" requirement in subdivision (e)(3) of section 425.16. (Damon,
at pp. 475-476.)
Here, the record shows the alleged defamatory statements made by Nelson
were in response to a "message from the board" published in the
December 2011 SLRH official newsletter that discussed the revitalization
project as follows:
"Did you know that in 1985 our park did an upgrade on our
electrical system? For those of you that
don't know, we have our own master meter for electricity and gas, we own the
meters, we then pay a company to read the meters and then we bill our park
residents for the electricity and gas they use.
"The reason for the upgrade done in 1985 was to increase the
power output from an RV Park to a 1985 Mobile Home Park. The cost of this project was approximately $350,000. We'll bet you don't know how this project was
financed. The residents of the park
voted to assess themselves $1,000 per space and gave themselves one year to
complete their payments. In today's
dollar value, this would be $2,081.57 per space . . . .
"At the present time, the cost estimate to bring the
infrastructure of this park into the 21st century is 9.2 million dollars. Our infrastructure is in a dangerous position
as we are continually fixing gas leaks, and the gas lines run underneath the
homes, they also do not meet state and local codes. Our Fire Department told us that our water
pressure at the present time is not enough to put out fires in our park and it
has become very expensive to keep repairing our sewer problems.
"The board is committed to move this project forward, hopefully
without any assessments to our residents.
We have put together a highly motivated team of homeowners who are
committed to see this project completed.
This team of paid and volunteer homeowners have a vested interest in
making this project successful, they have been doing a tremendous amount of
research and work on this project, [and] they live here just as the rest of us
do.
"If you have any questions or problems with this project, please
contact Sam Rosen or Phil Hauser . . . . They will be happy to meet with you and
discuss your concerns. And any of the
board members will also be happy to answer your questions. Please try and keep informed and aware of
what is going on in the park. You have a
vested interest in its future and if you have any suggestions or ideas that can
help move this project forward, please share them with us, we want your
support, [and] we only want what is best for our park. [¶]
Board of Governors."
The record shows Nelson in February 2012 appeared at an official board
meeting where she first made the alleged defamatory statements about Hauser and
others
involved in the revitalization project.
The record shows Nelson's statements, which were addressed to SLRH "owners/members,"
were "subsequently distributed verbatim to the entire community" by
Hauser, among others, as were similar statements Nelson made at a board meeting
in March 2012.
Following our decision in Damon,
alleged defamatory statements Nelson made at the two SLRH board meetings, and
the subsequent republication (by Hauser) of those statements to the 327 SLRH owners/members
after those meetings, satisfy the "public forum" requirement in
subdivision (e)(3) of section 425.16.
(See Damon,
[noting the board meetings of a homeowners association "serve[] a function
similar to that of a governmental body" "where members [can]
communicate their ideas" to the board and to other members].)
We also conclude the alleged defamatory statements made by Nelson
concerned "issues of public interest" as provided in subdivision
(e)(3) of section 425.16.
of the anti-SLAPP statute 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." (
statements involved matters of "public interest" within the meaning
of subdivision (e)(3) of section 425.16 because the defendants' statements
concerned the decision whether the homeowners association should remain
self-governed or be managed professionally and/or whether the plaintiff was
competent to manage the association].)
Here, the record shows that Nelson made the alleged defamatory
statements in connection with an issue of widespread concern to
that the proposed revitalization project could cost the SLRH community up to
$9.2 million; that the board was considering ways to fund the project without
assessing SLRH owners/members; that in the past SLRH owners/members had paid
for utility improvements in the mobilehome park through assessments; that SLRH
is a seniors-only mobilehome park and that Nelson, like many of its
owners/members, lives on a fixed income; that Nelson disagreed with the board's
decision to hire Hauser and others to head up the revitalization project,
including its decision to pay Hauser for work that Nelson believed Hauser was
not qualified to do; that Nelson questioned whether the board violated the SLRH
bylaws when it hired Hauser and others to head up the revitalization project; and
that Nelson was dissatisfied with the answers/explanations she received from
the board and its attorney regarding its handling of the revitalization
project, including its decision to hire Hauser and others, the money it paid
them and the expenses they incurred. We
thus conclude on this record that Nelson's alleged defamatory statements
concerned matters of "public interest" as provided in subdivision
(e)(3) of section 425.16. (See
Hauser, however, contends that the Damon
case is distinguishable from the instant case and that Nelson therefore did
not satisfy her burden to show the defamation claims "aris[e] from"
protected activity within the meaning of subdivision (b)(1) of section
425.16. Specifically, he contends the
alleged defamatory statements in Damon concerned
only "political issues" and the governance of the homeowners
association, whereas Nelson's statements in the instant case involved "direct
and personal attacks to [his] character and professional experience" that
he claims are "false." He also
contends the alleged defamatory statements in Damon involved the elections of the board of the homeowners
association and a recall campaign against the manager of that association,
whereas the statements by Nelson in the instant case went to issues involving
Hauser and his employment by the SLRH, which he further contends had nothing to
do with a "governing objective." We reject these related contentions.
First, the alleged defamatory statements made by the defendants in
issues" and issues of governance, as Hauser contends. Instead, the defendants in
critical of the plaintiff, including questioning his "competency and
veracity" in managing the homeowners association. (See Damon,
supra, 85 Cal.App.4th at pp. 472-473.)
Second, in both Damon and the
case before us, the alleged defamatory statements were made by owners/members
of a homeowners association during a duly noticed board meeting; were
republished to owners/members of their respective associations; and involved
issues affecting the entire association community. That some of the alleged defamatory
statements in Damon were made in
connection with the election of board members of the homeowners association,
whereas the statements at issue in the instant case were made in connection
with a project to revitalize an association's aging utility infrastructure, is
a distinction without a difference as it relates to the "public interest"
issue under subdivision (e)(3) of section 425.16.
Third, the truth or falsity (as the case may be) of Nelson's alleged "direct
and personal attacks" against Hauser has no bearing whatsoever on whether
Nelson in step one satisfied her burden under subdivision (b)(1) of section
425.16 to show Hauser's defamation claims "aris[e] from" protected
speech. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 94 [noting that
"any 'claimed illegitimacy of the defendant's acts is an issue which the
plaintiff must raise and support in the context of the discharge of the
plaintiff's [secondary] burden to provide a prima facie showing of the merits
of the plaintiff's case'" and noting that such an argument "'confuses
the threshold question of whether the SLAPP statute [potentially] applies with
the question whether [an opposing plaintiff] has established a probability of
success on the merits'"].)
Indeed, the first step of the anti-SLAPP statute focuses on the
defendant's activity that gives rise to the injury-producing conduct, as
opposed to the "unlawful motive the plaintiff is ascribing to that
conduct." (See Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, 271 [noting
that it is "easy to confuse" these two concepts and that "[t]his
confusion will be less likely to occur . . . if on the first step of
the anti-SLAPP inquiry the court's focus remains squarely on the defendant's activity
that gave rise to [the defendant's] asserted liability, and whether that
activity constitutes protected speech or petitioning, rather than on any motive
the plaintiff may be ascribing to the activity"].)
In sum, in reviewing the operative complaint, we independently
conclude the "principal thrust or gravamen" (see Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181,
188) of Hauser's defamation claims against Nelson involve protected speech
within the meaning of subdivision (e)(3) of section 425.16 and thus are subject
to the anti-SLAPP statute.
name="_ftnref4" title="">[4] (See Damon,
supra, 85 Cal.App.4th at pp.
474-475.)
C. Probability of Success on the Merits
Because we conclude Nelson made a prima facie showing that Hauser's
defamation claims arose from protected activity within the meaning of the
anti-SLAPP statute, the burden then shifted to Hauser to provide sufficient
evidence to demonstrate a probability of prevailing on the merits of his
claims. (See § 425.16, subd.
(b)(1); see also Kleveland,
on the allegations in the complaint (see Nagel
v. Twin Laboratories, Inc. (2003) 109 Cal.App.4th 39, 45) or evidence that
would not be admissible at trial (see Hall
v. Time Warner, Inc. (2007) 153 Cal.App.4th 1337, 1346).
Defamation can be of two types: libel or slander.
Code section 45
name="_ftnref5" title="">[5] and slander in Civil Code section 46.
name="_ftnref6" title="">[6]
publication that is (2) false, (3) defamatory, (4) unprivileged, and (5) has a
natural tendency to injure or causes special damage. (Taus v. Loftus (2007) 40 Cal.4th 683,
720; see also Hecimovich v.
Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 470.)
We independently conclude Hauser did not satisfy his burden to show a probability
of success on the merits of his defamation claims. In an effort to make this showing, Hauser
lodged nine exhibits in the trial court.
We note that much of the "evidence" contained in these
exhibits is inadmissible as presented and therefore cannot be considered in
determining whether Hauser satisfied his burden under the anti-SLAPP
statute. (See Hall v. Time Warner, Inc., supra,
153 Cal.App.4th at p. 1346.)
In addition, it appears Hauser lodged these exhibits to show that the
revitalization project is a good thing for the SLRH community and that Nelson
is improperly interfering with that project, to the detriment of
have to pay for these improvements absent grant money. However, whether the SLRH revitalization
project is good or bad for the SLRH community has no bearing whatsoever on
Hauser's defamation claims against Nelson.
Turning to the exhibits, exhibit 1 attempts to explain the "[r]easons
for [m]alice and [s]tatements of [m]alice" by Nelson against Hauser. It states Nelson allegedly engaged in a
campaign of harassment against an SLRH board member (not Hauser) after this
member allegedly was elected to the board in lieu of Nelson. It also mentions Nelson's alleged failed
lawsuit against a different board member two years earlier; her alleged refusal
to change the date of the board's annual appreciation dinner that she was
overseeing, which allegedly is the "most lavish" board event of the
year; her criticism of the revitalization project; his view that "it is
virtually impossible to find anyone with utility infrastructure engineering
experience to work for $15 an hour" as he was being paid by the board; and
his opinion that Nelson should not be allowed to "ridicule" the board
for its decision to pay for his time and expenses in obtaining a certification
in grant writing because Nelson allegedly "has not demonstrated an
appropriate amount of research" on this issue.
This "evidence" in exhibit 1 is inadmissible as it is
neither supported by properly authenticated documents nor sworn testimony. In addition, even if admissible, the "evidence"
provides no support for Hauser's defamation claims and his corresponding burden
under the anti-SLAPP statute to show a probability of success on the merits of
those claims.
Exhibit 2, lodged by Hauser, discusses his alleged damages as a result
of Nelson's conduct in appearing at the board meetings to criticize and oppose
the revitalization project. Exhibit 2
generally states Hauser lost about $1,760 per month for six months because
Rosen was unable to convince the board to give Hauser a "much deserved"
$10 per hour pay increase because the board allegedly was "intimidated"
by Nelson. Exhibit 2 also states that if
Nelson is successful in convincing the board to terminate the revitalization
project, the only source of funding allegedly available to replace the community's
aging infrastructure would be an assessment of each individual homeowner in an
amount between $30,000 and $38,000 which, in turn, would create a hardship for Hauser
and for many other SLRH owners/members (ostensibly including Nelson). Again, these general statements as presented
are inadmissible and, in any event, are irrelevant to Hauser's defamation
claims against Nelson.
Unlike exhibits 1 and 2, exhibit 3 is in the form of declaration
signed under penalty of perjury. In
exhibit 3, Rosen states that in early March 2012 he approached the board and
recommended it give Hauser the $10 per hour pay raise identified in exhibit 2 for
Hauser's work on the revitalization project.
Rosen further states the board refused to give Hauser this raise because
of Nelson's criticism of the revitalization project at the March 2012 board
meeting.
However, exhibit 3 suffers the same fate as exhibits 1 and 2 as Rosen's
statements regarding the board's alleged refusal to give Hauser a pay raise,
and the reasons for its refusal (i.e., Nelson's criticism of the revitalization
project), are inadmissible (i.e., hearsay).
In addition, these statements have no relevance to Hauser's defamation
claims, as they concern the board, not Hauser.
Exhibit 4 discuses the alleged benefits of the revitalization project. Like the "evidence" in exhibits 1, 2
and 3, the "evidence" in exhibit 4 is inadmissible as presented. Moreover, as noted ante, whether the
revitalization project is good or bad for the SLRH community has no bearing on
Hauser's defamation claims against Nelson.
Exhibit 5 provides a "response" by Hauser to the decision of
the trial court in the Rosen action
(see fn. 3, ante) to grant Nelson's
anti-SLAPP motion. This response again
has no bearing on Hauser's defamation claims.
Exhibit 6 is likewise irrelevant to Hauser's defamation claims. Much of exhibit 6 involves a legal discussion
of the Damon case and why that case
allegedly is distinguishable from the instant case. Exhibit 6 also contains inadmissible
statements regarding the source of the proposed funding for the SLRH
revitalization project. Clearly, this
discussion and these statements have nothing to do with Hauser's defamation
claims and whether Hauser satisfied his burden under the anti-SLAPP
statute.
Exhibit 7 includes the alleged defamatory statements Nelson made at
the February and March 2012 board meetings in connection with the
revitalization project and involves the subsequent republication of those
statements.
Exhibit 8 is a copy of Nelson's objections to 25 specially-prepared
interrogatories propounded by Hauser. Exhibit
8 does not support Hauser's defamation claims or the requirement in the
anti-SLAPP statute that he show a probability of success on those claims.
Although Hauser failed to produce sufficient admissible evidence of the essential elements of his defamation
claims, even if we assume otherwise, we would still conclude those claims fail
based on the common interest privilege codified in Civil Code section 47. This statute provides in part: "A privileged publication . . .
is one made . . . [¶] . . . [¶] (c) [i]n a
communication, without malice,
therein, (1) by one who is also interested, or (2) by one who stands in such a
relation to the person interested as to afford a reasonable ground for
supposing the motive for the communication to be innocent, or (3) who is requested
by the person interested to give the information."
Here, the record shows that the alleged defamatory comments by Nelson
were directed to the board and not to Hauser; that they were made in connection
with a duly noticed board meeting and at the invitation of the board (as noted
owners/members who had a vested interest in the revitalization project (again,
as noted ante). As such, we conclude Nelson's comments were
between interested parties and thus qualifiedly privileged. (See Civ. Code, § 47, subd. (c).)
Because a prima facie case for qualified privilege was established,
the burden shifted to Hauser to show malice existed at the time the alleged
defamatory comments were published by Nelson.
(See Katz v. Rosen (1975) 48
Cal.App.3d 1032, 1037.) "'"The
malice necessary to defeat a qualified privilege is 'actual malice' which is
established by a showing the publication was motivated by hatred or ill will
towards the plaintiff or by a showing
that the defendant lacked reasonable grounds for belief in the truth of the
publication and therefore acted in reckless disregard of the plaintiff's rights
[citations]."'" (
113 Cal.App.4th 1363, 1370.) Malice in
such circumstances "is not inferred from the communication." (Civ. Code, § 48; see also
As we noted ante,
by Nelson were addressed to the board, as opposed to Hauser individually, and
were the result of her "good faith belief" that the board and certain
SLRH owners/members were improperly managing the revitalization project. Under such circumstances, we conclude Hauser
cannot make the requisite prima facie showing of malice to defeat the
common-interest privilege.
In addition, we conclude that most if not all of the alleged
defamatory comments by Nelson were based on her opinion that the board was
mishandling the revitalization project.
As such, for this separate and independent reason, we conclude Hauser
cannot satisfy his burden to show a probability of success on the merits of his
defamation claims. (See
Cal.App.4th 1344, 1353-1354 [noting that an essential element of libel is the
publication must contain a false statement of fact and noting that statements
of opinion are not actionable].)
Finally, with respect to Nelson's statement at the March 2012 board
meeting that the revitalization project "may possibly" constitute
financial elder abuse, we conclude this statement also was merely an opinion by
Nelson (see Melaleuca, Inc. v. Clark,
supra, 66 Cal.App.4th at pp.
1353-1354); it was not directed at Hauser but to the board generally; it was,
in any event, conditional; and, at a minimum, was qualifiedly privileged as it
involved an issue of public interest among the SLRH owners/members. (See Civ. Code, § 47, subd. (c).)
DISPOSITION
The trial court's order granting
Nelson's anti-SLAPP motion to strike Hauser's defamation claims is affirmed.
BENKE, Acting P. J.
WE CONCUR:
HUFFMAN, J.
HALLER, J.
name="_ftn1" title="">[1] All statutory references are to the Code of Civil Procedure
unless indicated otherwise. Section
425.16 is commonly referred to as the anti-SLAPP statute. (Siam
v. Kizilbash (2005) 130 Cal.App.4th 1563, 1568.) SLAPP is an acronym for "'strategic
lawsuit against public participation.'"
(Jarrow Formulas,
732, fn. 1.)
name="_ftn2" title="">[2] Nelson did not submit a respondent's brief in this proceeding. However, we do not "treat the failure to
file a respondent's brief as a 'default' (i.e., an admission of error) but
independently examine the record and reverse only if prejudicial error is
found." (Kennedy v. Eldridge (2011) 201 Cal.App.4th 1197,
1203, citing In re Bryce C. (1995) 12 Cal.4th 226, 232-233 and In re
Marriage of Riddle (2005) 125 Cal.App.4th 1075, 1078, fn. 1; cf. In re
Bryce C., supra, at
p. 232 ["If an appellant fails to file a brief, the appeal may be
dismissed entirely."].)
