Hewitt Lang, MD et al vs Hope Ranch Park Home Association et al

Case Number

24CV02759

Case Type

Hearing Date / Time

Mon, 10/14/2024 - 10:00

Nature of Proceedings

CMC; Demurrer; Motion to Strike

Tentative Ruling

Hewitt R. Lang, M.D., et al. v. Hope Ranch Park Homes Association, et al.

Case No. 24CV02759       

Hearing Date: October 14, 2024                                                         

HEARING:              (1) Defendant Hope Ranch Park Homes Association’s Demurrer To Complaint

                                    (2) Defendant Brian P. Kamel’s Special Motion To Strike                                                  

ATTORNEYS:        For Plaintiffs Hewitt R. Lang, M.D., and Pamela Anne Lang, as co-Trustees of the Lang Living Trust Under Agreement Dated January 11, 1996: Richard I. Wideman

For Defendant Hope Ranch Park Homes Association and Brian Kamel:  Matt D. Ober, Jonathan R. Davis, Richardson Ober LLP

For Defendants Charlotte Terzian, Salman and Pritti Gagneja, Tim and Rebecca Pasquinelli, and Abbas A. Larijani as Trustee of the AL Revocable Living Trust: No appearances

TENTATIVE RULING:

(1) The demurrer of defendant Hope Ranch Park Homes Association to plaintiff’s complaint is sustained, in part, as to the third cause of action only, with leave to amend. On or before October 29, 2024, plaintiffs shall file and serve their first amended complaint, if any, as authorized herein. Except as otherwise herein sustained, the demurrer is overruled.

(2) The special motion of defendant Brian Kamel to strike plaintiff’s complaint is denied.

Background:

On May 20, 2024, plaintiffs Hewitt R. Lang, M.D., and Pamela Anne Lang (collectively, the Langs), as co-Trustees of the Lang Living Trust Under Agreement Dated January 11, 1996, filed a verified complaint against defendants Hope Ranch Park Homes Association (the Association), Brian Kamel (Kamel), Charlotte Terzian (Terzian), Salman and Pritti Gagneja (Gagneja), Tim and Rebecca Pasquinelli (Pasquinelli), and Abbas A. Larijani as Trustee of the AL Revocable Living Trust (Larijani), alleging three causes of action: (1) to quiet title to prescriptive easement for ingress and egress (against all defendants); (2) for injunction and damages (against all defendants); and (3) intentional interference with economic advantage (against all defendants except Larijani). As alleged in the complaint:

Since August 1979, the Langs have owned property known as 515 Sea Ranch Drive, in Santa Barbara, California (the Lang Property). (Compl., ¶ 1.) The Lang Property and adjacent property owned by Larijani (the Larijani Property) abuts Mariposa Drive, which is located in a residential development known as Hope Ranch. (Id. at ¶ 2.) The Association owns, controls, and maintains Mariposa Drive. (Id. at ¶ 3.) Kamel, Terzian, Gagneja, and Pasquinelli (collectively, the Mariposa Drive Residents) own real property located on Mariposa Drive. (Id. at 2.)

There exists a 10 foot wide easement on the western boundary of the Lang Property and the Larijani Property in favor of the residents of Hope Ranch which cannot be built on by the Langs, Larijani, or the Association. (Compl., ¶ 5.) From the time the Langs first obtained ownership of the Lang Property in 1979 and continuing until 2023, the Langs have used the easement, as well as portions of the Larijani Property and Mariposa Drive, to access both the Lang Property and public streets in Hope Ranch. (Id. at ¶ 6.) The prior owner of the Lang Property, Joel Harwin (Harwin), also used the easement to ingress and egress the Lang Property. (Id. at ¶ 7.) As a result of the use of the easement, Mariposa Drive, and a portion of the Larijani Property to ingress and egress the Lang Property, the Langs have acquired a prescriptive easement. (Id. at ¶¶ 7-8 & 10.)

On December 3, 2020, Greg Feet (Feet), who is the General Manager of the Association, made a written promise to the Langs that “’we will not place a fence in that area.’” (Compl., ¶ 16.) In spite of this written promise by Feet, on March 30, 2023, the Association held a meeting which resulted in the Association constructing a 10 foot high fence (the fence) at the eastern end of Mariposa Drive. (Id. at ¶ 9 & Exh. B.) The fence prevents the Langs from accessing the path that they have used to access Hope Ranch since 1979, and interferes with the prescriptive easement acquired by the Langs. (Id. at ¶¶ 9-10.) Before the March 30, 2023, meeting, the Mariposa Drive Residents requested that the Association stop the use of Mariposa Drive by the Langs. (Id. at ¶ 9.)

On August 12, 2024, the Association filed a demurrer the complaint on the grounds that the Langs have failed to allege facts sufficient to constitute a cause of action, and that the complaint is uncertain.

On August 15, 2024, Kamel filed a motion to strike the entirety of the complaint (the motion to strike) on the grounds that the causes of action alleged by the Langs arise against Kamel’s rights to free speech, and that the Langs cannot demonstrate a probability of prevailing on the merits of their claims.

Both the demurrer of the Association and the motion to strike of Kamel are opposed by the Langs.

Analysis:

(1) The Association’s Demurrer

In ruling on a demurrer, the court determines whether the complaint states a cause of action. (Moore v. Regents of University of California (1990) 51 Cal.3d 120, 125.) The pleading subject to demurrer is given a reasonable interpretation and is read as a whole, with all its parts in their context. (Ibid.) The demurrer assumes the truth of properly pleaded material allegations, but not of contentions, deductions, or conclusions of fact or law. (Ibid.) The court also accepts as true facts that may be inferred from those expressly alleged and facts appearing in exhibits attached to the complaint. (McMahon v. Craig (2009) 176 Cal.App.4th 1502, 1509; Mead v. Sanwa Bank California (1998) 61 Cal.App.4th 561, 567.) “If the complaint states a cause of action under any theory, regardless of the title under which the factual basis for relief is stated, that aspect of the complaint is good against a demurrer.” (Quelimane Co. v. Stewart Title Guaranty Co. (1998) 19 Cal.4th 26, 38.)

Demurrer to the first cause of action:

The Association contends that the first cause of action to quiet title to the prescriptive easement alleged in the complaint is uncertain. Uncertainty is a ground for a special demurrer. (Code Civ. Proc., § 430.10, subd. (f).) “ ‘[U]ncertain’ includes ambiguous and unintelligible.” (Smith v. Kern County Land Co. (1958) 51 Cal.2d 205, 209.) “A special demurrer on the ground that [a pleading] is (a) ambiguous, (b) unintelligible, or (c) uncertain is insufficient unless the demurrer points out specifically wherein the pleading is ambiguous, uncertain or unintelligible.” (Coons v. Thompson (1946) 75 Cal.App.2d 687, 690.)

Though the Association describes the first cause of action as uncertain, wholly absent from the supporting memorandum is any reasoned factual or legal argument showing where or why the complaint is uncertain. For this reason, the Association’s conclusory statement, alone, is insufficient to support its special demurrer for uncertainty.

In addition, the Association recites the allegations of the complaint in a manner which indicates that the first cause of action is not so unintelligible or ambiguous that the Association cannot understand the issues and the nature of the claim to quiet title alleged by the Langs. (See Youngman v. Nevada Irrigation Dist. (1969) 70 Cal.2d 240, 245 [“a plaintiff is required only to set forth the essential facts of his case with reasonable precision and with particularity sufficient to acquaint a defendant with the nature, source and extent of his cause of action”]; Dumm v. Pacific Valves (1956) 146 Cal.App.2d 792, 799.) Therefore, the Association has failed to explain why the complaint is so incomprehensible that the Association cannot reasonably respond. (Morris v. JPMorgan Chase Bank, N.A. (2022) 78 Cal.App.5th 279, 292.)

In addition, to the extent the complaint is in some respects uncertain as to the theory of liability alleged in the first cause of action, any purported ambiguities “can be clarified under modern discovery procedures.” (Khoury v. Maly’s of California, Inc. (1993) 14 Cal.App.4th 612, 616.) Therefore, and for all reasons discussed above, the Court will overrule the special demurrer of the Association to the first cause of action to quiet title alleged in the complaint.

As to the general demurrer to the first cause of action, the Association relies on the statement allegedly made by Feet on December 3, 2020, in which Feet purportedly indicated that the Association would not place a fence in the area at issue. The Association contends that Feet’s statement demonstrates that the Langs had permission to use the easement as of December 3, 2020. For this reason, the Association contends, the Langs have failed to allege facts sufficient to show that their use of the purported prescriptive easement was hostile or adverse.

“The elements necessary to establish a prescriptive easement are well settled. The party claiming such an easement must show use of the property which has been open, notorious, continuous and adverse for an uninterrupted period of five years.” (Warsaw v. Chicago Metallic Ceilings, Inc. (1984) 35 Cal.3d 564, 570 (Warsaw).)

The allegations of the complaint described above, including facts which may be inferred from those expressly alleged as further described above, are sufficient to show that the use of the easement and Mariposa Drive by the Langs was visible, open, and notorious from the time the Langs acquired the Lang Property in 1979. (Wood v. Davidson (1944) 62 Cal.App.2d 885, 890 [general discussion].) There are no facts alleged either expressly or by inference which would indicate that the Association did not have actual or constructive knowledge of the Langs’ use of the easement or Mariposa Drive, nor does the Association explain with reasoned argument why the allegations are insufficient to show its knowledge of the Langs’ alleged use of the property at issue. (Applegate v. Ota (1983) 146 Cal.App.3d 702, 709-710 (Applegate).)

In addition, the Langs allege that they used Mariposa Drive and the easement to “deliver construction and landscaping equipment and materials ….” (Compl., ¶ 6.) These allegations are also sufficient to support an inference that the Langs’ use of the subject property was adverse and not permissive. (Applegate, supra, 146 Cal.App.3d at pp. 709-710.) Moreover, “exclusiveness of user is not essential to acquisition of a prescriptive easement.” (Id. at p. 710 [also noting that the claim of right must be “based on individual use rather than use as a member of the public”].)

It is not unreasonable to infer from the purported statement made by Feet, as the Association has done here, that on December 3, 2020, the Association gave permission to the Langs to use the easement and Mariposa Drive. (See Kaler v. Brown (1951) 101 Cal.App.2d 716, 720 [prescriptive rights are not established by permission or consent of the servient estate owner].) However, even if it can be inferred from Feet’s statement that the Langs were given permission to use the subject property, any prescriptive rights which had vested prior to December 3, 2020, would not be lost. (Harrison v. Bouris (1956) 139 Cal.App.2d 170, 175 (Harrison) [vested prescriptive rights were not lost by subsequent posting of a sign granting permission to pass].)

Giving the allegations of the complaint further detailed above a reasonable interpretation, it is equally reasonable to infer or imply from Feet’s alleged statement that the Association recognized an interest or claim of right held by the Langs in the property at issue. (People v. Sayig (1951) 101 Cal.App.2d 890, 895.) It is also reasonable to infer from the alleged construction of the fence by the Association, which occurred after Feet made the statement described above, that the use of the subject property by the Langs was hostile. For example, the construction of the fence gives rise to a reasonable inference that the Association may have been aware of or concerned with the vesting of prescriptive rights purportedly held by the Langs. (See, e.g., Harrison, supra, 139 Cal.App.2d at p. 175.) These issues, and those further discussed above, give rise to disputed questions of fact which the Court does not determine on demurrer. (Warsaw, supra, 35 Cal.3d at p. 570; Executive Landscape Corp. v. San Vicente Country Villas IV Assn. (1983) 145 Cal.App.3d 496, 500 [the court may not weigh disputed facts on demurrer].)

For all reasons discussed above, the Langs have alleged facts sufficient to show their use of the easement and Mariposa Drive was open, notorious, and continuous for a period of 5 years. Though the allegations of the complaint are sufficient to support an inference that the Langs’ use of the easement and Mariposa Drive was adverse, to the extent there exist competing inferences with respect to whether or not the Association granted permission to the Langs to use the easement and Mariposa Drive, the Court does not, for present purposes, weigh these disputed facts to determine whether the Langs’ use was adverse or hostile. Therefore, and for all reasons discussed above, the Court will overrule the demurrer of the Association to the first cause of action alleged in the complaint.

Demurrer to the second cause of action:

Though the Association describes the second cause of action for injunction and damages as uncertain, the Association similarly fails to offer any reasoned factual or legal authority to show why or where the complaint is uncertain. The same analysis and reasoning applies. For all reasons discussed above, the Court will overrule the special demurrer of the Association to the second cause of action alleged in the complaint.

As grounds for its general demurrer to the second cause of action, in which the Langs request injunctive relief with respect to their loss of access to the prescriptive easement, the Association contends that the Langs seek a remedy without stating a claim. “ ‘Injunctive relief is a remedy and not, in itself, a cause of action, and a cause of action must exist before injunctive relief may be granted.’ [Citation.]” (Camp v. Board of Supervisors (1981) 123 Cal.App.3d 334, 356 (Camp).) As further discussed above, the Langs have alleged facts sufficient to constitute a cause of action to quiet title to the alleged prescriptive easement. However, “a demurrer cannot rightfully be sustained to part of a cause of action or to a particular type of damage or remedy.” (Kong v. City of Hawaiian Gardens Redevelopment Agency (2002) 108 Cal.App.4th 1028, 1047.) As such, the second cause of action for injunctive relief is not subject to demurrer under Code of Civil Procedure section 430.10, subd. (e).

In addition, a wrongful interference with the use of an easement may be enjoined and, in appropriate circumstances, may give rise to a claim for damages. (See, e.g., Danielson v. Sykes (1910) 157 Cal. 686, 691-692.) The Court deems the second cause of action not as a separate cause of action, but as related to the remedies sought under the first cause of action which for reasons noted above, states a cause of action for relief. (Camp, supra, 123 Cal.App.3d at p. 355.) The demurrer on the ground discussed above is accordingly overruled.

Demurrer to the third cause of action:

To the extent the Association specially demurs to the third cause of action for intentional interference with economic advantage on the grounds of uncertainty, the demurrer is overruled for the same reasons further discussed above.

As grounds for its general demurrer to the third cause of action, the Association contends that the complaint fails to allege facts sufficient to show the existence of an economic relationship between the Langs and a third party with a probability of a future economic benefit, that the Association had knowledge of any such relationship, that the Association intentionally acted to disrupt the relationship, an actual disruption of the relationship, and economic harm.

The theory of liability alleged in the third cause of action is titled as one for intentional interference with economic advantage. The tort of intentional interference with prospective economic advantage (IPEA) protects interests “in stable economic relationships” without requiring proof of a contract. (Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118, 1126 [also noting that “a broader range of privilege to interfere is recognized when the relationship or economic advantage interfered with is only prospective”].)

“[IPEA] has five elements: (1) the existence, between the plaintiff and some third party, of an economic relationship that contains the probability of future economic benefit to the plaintiff; (2) the defendant’s knowledge of the relationship; (3) intentionally wrongful acts designed to disrupt the relationship; (4) actual disruption of the relationship; and (5) economic harm proximately caused by the defendant's action.” (Roy Allan Slurry Seal, Inc. v. American Asphalt South, Inc. (2017) 2 Cal.5th 505, 512.) A cause of action for IPEA will be “found lacking when either the economic relationship with a third party is too attenuated or the probability of economic benefit too speculative.” (Id. at p. 515.)

In the third cause of action, the Langs allege that the Association “acted deliberately” to deprive the Langs of their right to use the alleged prescriptive easement to access Mariposa Drive and other public streets in Hope Ranch. (Compl., ¶¶ 16-17.) Wholly absent from the complaint are any allegations showing the existence of an economic relationship between the Langs and another third party with respect to the alleged prescriptive easement. For this reason, the Court will sustain the demurrer of the Association to the third cause of action alleged in the complaint. As the complaint does not show on its face that it is incapable of amendment, the Court will grant the Langs leave to amend. (Eghtesad v. State Farm General Insurance Company (2020) 51 Cal.App.5th 406, 411-412.)

(2) Kamel’s Motion to Strike

Kamel moves to strike the entirety of the complaint on the ground that its causes of action arise solely from the allegation that Kamel wrote to the Association to request that it stop the Langs’ use of Mariposa Drive for ingress and egress to the Lang Property. Kamel contends that this writing gives rise to each claim alleged in the complaint and constitutes protected activity under Code of Civil Procedure section 425.16 (California’s anti-SLAPP statute). (Note: Undesignated code references below shall be to the Code of Civil Procedure unless otherwise indicated.) Kamel further contends that the Langs cannot demonstrate a probability of prevailing on the merits of their complaint.

Subdivision (b)(1) of section 425.16 “authorizes a special motion to strike claims ‘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.’ [Citation.]” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 (Wilson).) “Litigation of an anti-SLAPP motion involves a two-step process.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 (Bonni).) At the first step, “the moving defendant bears the burden of establishing that the challenged allegations or claims ‘aris[e] from’ protected activity in which the defendant has engaged. [Citations.]” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061.) To meet this burden, the moving defendant must identify “all allegations of protected activity, and the claims for relief supported by them.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.)

In addition, and relevant here, “[w]here a defendant moves to strike the entire complaint and fails to identify, with reasoned argument, specific claims for relief that are asserted to arise from protected activity, the defendant does not carry his or her first-step burden so long as the complaint presents at least one claim that does not arise from protected activity.” (Park v. Nazari (2023) 93 Cal.App.5th 1099, 1108 (Nazari).)

As further detailed above, in the first cause of action, the Langs seek to quiet title to the alleged prescriptive easement against the Mariposa Drive Residents, who the Langs allege own real property on the portion of Mariposa Drive that abuts the Lang Property and a portion of the Larijani Property where the alleged easement used by the Langs is located. The purpose of an action to quiet title “ ‘is to finally settle and determine, as between the parties, all conflicting claims to the property in controversy, and to decree to each such interest or estate therein as he may be entitled to.’ [¶] [Citation.]” (Newman v. Cornelius (1970) 3 Cal.App.3d 279, 284.) Relevant here, the action may be brought when a plaintiff alleges title to or an interest in an easement provided the complaint alleges plaintiff’s title in the property at issue. (Golden West Baseball Co. v. City of Anaheim (1994) 25 Cal.App.4th 11, 50; see also Twain Harte Homeowners Assn. v. Patterson (1987) 193 Cal.App.3d 184, 188 [action to quiet title to easement].)

A plaintiff in a quiet title action must “name as defendants in the action the persons having adverse claims to the title of the plaintiff against which a determination is sought” and “[i]f the name of a person required to be named as a defendant is not known to the plaintiff, the plaintiff shall so state in the complaint ….” (Code Civ. Proc., §§ 762.010 & 762.020; see also Code Civ. Proc., § 764.030 [setting forth persons on whom judgment in quiet title action is binding and conclusive].) The court cannot determine the rights of an individual who is not a party to an action to quiet title. (Moakley v. Los Angeles Pac. Ry. Co. (1929) 99 Cal.App. 74, 80.)

Considering the nature of an action to quiet title as further discussed above, it can be reasonably inferred from the allegations of the complaint that Kamel, who is alleged to be a Mariposa Drive Resident, owns or possesses an interest, title or claim to Mariposa Drive and the easement at issue in this litigation which is adverse to the claim asserted by the Langs. Therefore, the allegations of the complaint show that the Langs joined Kamel in this action as a necessary or indispensable party with respect to the quiet title claim asserted in the complaint, and not based on a writing or other act. (Lake Merced Golf and Country Club v. Ocean Shore Railroad Co. (1962) 206 Cal.App.2d 421, 429-431 [general discussion necessary or indispensable parties to an action to quiet title to a right of way].) Therefore, and for all reasons discussed above, Kamel has failed to meet his burden to show that the theory of liability alleged in the first cause of action to quiet title to the prescriptive easement arises from the purported writing sent by Kamel to the Association.

In addition, because the second cause of action for injunctive relief is not a separate cause of action but is related to the remedies sought under the first cause of action as further discussed above, the same reasoning and analysis applies. For these reasons, Kamel has also failed to show that the second cause of action arises from a purported writing sent by Kamel to the Association.

As the complaint which Kamel seeks to strike in its entirety presents two causes of action that do not arise from protected activity, Kamel has failed to meet his burden on the first step of the anti-SLAPP analysis. For this reason, there exists sufficient grounds to deny the motion. Even if the Court were to consider the motion to strike as to the third cause of action, Kamel has also failed to meet his burden to demonstrate that the IIEA claim alleged in the third cause of action arises from protected activity for all further reasons discussed below.

Regarding the third cause of action for IIEA, “while courts may strike less than the entirety of a complaint or pleaded cause of action, the trial court is not required to take on the burden of identifying the allegations susceptible to a special motion to strike. If a defendant wants the trial court to take a surgical approach, whether in the alternative or not, the defendant must propose where to make the incisions. This is done by identifying, in the initial motion, each numbered paragraph or sentence in the complaint that comprises a challenged claim and explaining ‘the claim’s elements, the actions alleged to establish those elements, and wh[y] those actions are protected.’ [Citation.]” (Nazari, supra, 93 Cal.App.5th at p. 1109; see also Wilson, supra, 7 Cal.5th at p. 884 [moving defendant must “identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute”].)

Kamel claims that the third cause of action for IIEA is based on the Langs’ incorporation of allegations that the Mariposa Drive Residents, which includes Kamel, wrote to the Association requesting that it stop the Langs from using Mariposa Drive to access the Lang Property before the Association meeting that resulted in the construction of the fence. Kamel contends that, because the Langs do not allege that the Mariposa Drive Residents had authority to decide, or approve the decision, to construct the fence or constructed the fence, the sole act that can be attributed to Kamel is the writing. Therefore, Kamel argues, the claim alleged in the third cause of action arises from the writing.

In the third cause of action alleged in the complaint, the Langs do not expressly allege the nature of the “deliberate act” taken by Kamel to deprive their alleged right to use the purported prescriptive easement and Mariposa Drive. (See Compl., ¶¶ 16 & 17.) However, the Langs “incorporate” into the third cause of action the allegations appearing in paragraph 9 of the complaint which includes allegations regarding the “writing” sent by Kamel to the Association regarding the Langs’ use of Mariposa Drive. (Compl., ¶¶ 9 & 15 [incorporating paragraphs 1 through 10 of the complaint].) Based on these allegations, it appears that the theory of liability alleged in the third cause of action arises from the alleged writing sent by Kamel to the Association prior to the March 30, 2023, meeting, the contents of which are described above and in the complaint.

In addition, though Kamel is not required to rely on evidence outside the complaint to demonstrate the factual basis for the claims alleged in the complaint, the court may consider such evidence to the extent it “helps clarify the true nature of the dispute.” (Yeager v. Holt (2018) 23 Cal.App.5th 450, 457 [also noting that the court should not ignore what is pleaded in the complaint]; Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 929 (Bel Air).)

In support of the motion, Kamel submits the declaration of Jill Van Zeebroeck (Van Zeebroeck), who is the General Manager of the Association. (Van Zeebroeck Decl., ¶ 1.) Van Zeebroeck states that Kamel was present at a meeting of the board of directors of the Association held on October 25, 2022, during which the board of directors approved a motion to install the fence as well as a gate, each of which are located at the east end of Mariposa Drive. (Id. at ¶ 3 & Exh. A.) Van Zeebroeck further states that the records of the Association, which are tracked and held by Van Zeebroeck, include a letter from Kamel (the Kamel Letter) to the Association’s board of directors dated March 23, 2023, that Van Zeebroeck asserts was submitted in support of the decision to install the fence at the end of Mariposa Drive. (Id. at ¶ 4 & Exh. B.)

In their opposition to the motion, the Langs do not dispute that the claim alleged in the third cause of action is based on the Kamel Letter to the Association described above, and offer no argument or information to suggest that the claim arises from different or additional conduct or writings by Kamel. Therefore, there appears to be no dispute by the parties that the claim alleged in the third cause of action arises from the Kamel Letter.

Wholly absent from the supporting memorandum, which itself is generally broad, is any discussion regarding the elements of the claim alleged in the third cause of action, or the manner in which the Kamel Letter or its contents establish each element of the claim. (Bonni, supra, 11 Cal.5th at p. 1015.) For example, the Kamel Letter appears to have been transmitted after the date the fence was constructed. (Van Zeebroeck Decl., Exh. B at PDF p. 10 [stating that “Hope Ranch has acted prudently by placing a locked gate and fence to prevent the backside entry into Hope Ranch”].) For this reason, Kamel has improperly shifted the burden to the Court and to the Langs to “pars[e] the [third] cause of action in the [Kamel’s] stead.” (Bonni, supra, 11 Cal.5th at p. 1011; Nazari, supra, 93 Cal.App.5th at p. 1108 [moving party failed to carry its first step burden based on a “failure to link specific claims for relief to protected activity”].) This additional deficiency constitutes further sufficient grounds to deny the motion to strike.

Notwithstanding the substantive deficiencies in the motion further discussed above, available information and evidence shows that Kamel wrote the Kamel Letter “in response to [the Association’s] recent inquiry regarding the placement of the security fence and gate at the end of Mariposa Drive in Hope Ranch.” (Van Zeebroeck Decl., Exh. B at PDF p. 10.) In the Kamel Letter, Kamel notes that Mariposa Drive is a “private street” which is “owned by the four residents on the street”, and that the “Mariposa residents” do not want nonresidents to be creating dangers to the residents of the Hope Ranch community.” (Id. at PDF p. 11.)

Kamel expresses in the Kamel Letter a general and nonspecific concern about an “increase in crime” in Hope Ranch and concerns regarding a nonresident entering onto Mariposa Drive “hurling a ball down the street for his off leash dog to chase” which Kamel asserts “creates a significant risk, not only to the dog, but also to residents in cars who are turning the blind corner, pulling out of driveways, and driving down the street ….” (Van Zeebroeck Decl., Exh. B at PDF pp. 10-11.) Kamel states his opinion that the Association “has acted prudently by placing a locked gate and fence to prevent the backside entry into Hope Ranch” and that the fence “has resulted in an increase in security to not only the homes on Mariposa Drive, but the homes on adjoining streets.” (Id. at PDF p. 10.) Kamel further states that “[r]esidents of the 4100 block of Mariposa have firsthand knowledge regarding the increase in activity due to the lack of closure at the end of the street” and that “[i]t was only a matter of time before that backside opening was discovered by individuals who are looking for an opportunity to commit unlawful activity in Hope Ranch.” (Ibid.)

There is no evidence or information to establish, and Kamel does not appear to contend, that the Kamel Letter was made “before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law” or “in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law ….” (Code Civ. Proc., § 425.16, subd. (e)(1) & (2).)

To the extent Kamel contends that the Kamel Letter was “made in a place open to the public or a public forum”, Kamel has failed to show the existence of a “public forum” where the Kamel Letter was published. For example, the Kamel Letter is ostensibly addressed and emailed only to the “board” of the Association. (Van Zeebroeck Decl., Exh. B at PDF p. 10.) There is nothing to suggest that the Kamel Letter was distributed to any person or organization other than the board of directors of the Association. This indicates, and Kamel does not dispute, that the Kamel Letter was not made in, communicated to, or published at an open board meeting, a newspaper, a website, or other similar publication or vehicle for public discussion that would constitute a “public forum”. (See Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 474-475 (Damon) [involving alleged defamatory statements made at association board meeting open to the public and in a news publication]; Balla v. Hall (2021) 59 Cal.App.5th 652, 673-674 [describing types of publications which constitute “public forums”].)

There are also no allegations or other information to suggest that the Kamel Letter was distributed to a “large and interested community” or in a manner that was generally accessible to the public including the Hope Ranch community. (Annette F. v. Sharon S. (2004) 119 Cal.App.4th 1146, 1161; Nygard, Inc. v. Uusi-Kerttula (2008) 159 Cal.App.4th 1027, 1039.) In addition, though Kamel offers no evidence to show whether the board of directors of the Association is comprised of a relatively large number of persons, an otherwise private matter does not become a matter of public interest “ ‘simply by communicating it to a large number of people.’ [Citations.]” (Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 621 (Rand).)

Further, though Kamel offers evidence to show he was present at the meeting when the Association approved the construction of the fence, there exists no evidence or information to show that Kamel made any public statements during that meeting. Even if the evidence showed that Kamel made a statement apart from the Kamel Letter, the claim alleged in the third cause of action does not arise from any statements made by Kamel during a meeting of the Association’s board of directors. (Bel Air, supra, 20 Cal.App.5th at p. 936 [the complaint “ultimately defines the contours of the claims”].) For this and all further reasons discussed above, Kamel has not shown that the Kamel Letter was made in a place open to the public or a public forum.

Kamel further contends that the Kamel Letter implicates matters that affect a common area in a common interest development (i.e., Hope Ranch), the management of the Association, and conduct which affects a community. For these reasons, Kamel argues, the Kamel Letter was made in connection with a public issue or an issue of public interest.

To qualify as an issue of public interest under the anti-SLAPP statute, the issue must “ ‘include attributes that make it one of public, rather than merely private, interest. [Citation.] A few guiding principles can be gleaned from decisional authorities. For example, “public interest” is not mere curiosity. Further, the matter should be something of concern to a substantial number of people. Accordingly, a matter of concern to the speaker and a relatively small, specific audience is not a matter of public interest. Additionally, there should be a degree of closeness between the challenged statements and the asserted public interest. The assertion of a broad and amorphous public interest that can be connected to the specific dispute is not sufficient. [Citation.] One cannot focus on society’s general interest in the subject matter of the dispute instead of the specific speech or conduct upon which the complaint is based.’ [Citation.] Cases that have found an issue of public interest have done so where ‘the subject statements either concerned a person or entity in the public eye [citations], conduct that could directly affect a large number of people beyond the direct participants [citations] or a topic of widespread, public interest [citation].’ [Citation.]” (Colyear v. Rolling Hills Community Assn. of Rancho Palos Verdes (2017) 9 Cal.App.5th 119, 131 (Colyear).)

Kamel effectively contends that, because the Kamel Letter was made to the board of directors of the Association, which the parties do not dispute is the governing body of a common interest development known as Hope Ranch, the transmission of the Kamel Letter constitutes “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, supra, 85 Cal.App.4th at p. 479.) For this reason, Kamel contends that the Kamel Letter concerns issues of public interest. (Ibid.) Though statements pertaining to issues of public interest within a community such as Hope Ranch may under appropriate circumstances concern issues of public interest, under the circumstances present here, and for all reasons discussed below, Kamel has failed to show that the Kamel Letter was made in connection with a public issue or an issue of public interest.

For example, Kamel notes in the Kamel Letter that the fence has increased security to homes on Mariposa Drive, which Kamel notes is owned by only four residents of Hope Ranch, and an unspecified number of homes on an unspecified number of adjoining streets. Kamel further notes that the fence does not cause any hardship because the Hope Ranch community can still be accessed by “other means” including via Marina Drive. Considering the totality of these statements, the available information and evidence indicates that the specific safety and security issues noted in the Kamel Letter were of concern only to a relatively small and specific audience of the four residents of Mariposa Drive and potentially residents of adjoining streets, and not the entirety of the Hope Ranch community which, according to the statements made by Kamel in the Kamel Letter, remained accessible by other means after the fence was constructed. (Colyear, supra, 9 Cal.App.5th at p. 131; see also Rand, supra, 6 Cal.5th at p. 621 [matters of concern to the speaker and a small, specific audience are not matters of public interest].)

Even if Kamel made a sufficient showing that the concerns expressed in the Kamel Letter were of interest to the Hope Ranch community due to the lack of a fence at the subject location, which Kamel has not done so here, Kamel has not shown that the Kamel Letter was made in connection with or in the context of “an ongoing controversy, debate or discussion” within the Hope Ranch community regarding the matters raised in the Kamel Letter including the fence, access to Hope Ranch at the location of the fence, or future governance by the Association with respect to the fence or access to Hope Ranch at the subject location as discussed in the Kamel Letter. (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 118;  see also Grenier v. Taylor (2015) 234 Cal.App.4th 471, 482 [“constitutionally protected activity must, at a minimum, be connected to a discussion, debate or controversy … [m]erely informational statements are not protected”].) For these same reasons, Kamel has failed to show the existence of any “degree of closeness” between the Kamel Letter and the broad and undefined safety or security concerns expressed in the Kamel Letter with respect to the fence. (Colyear, supra, 9 Cal.App.5th at p. 131.)

It can also be inferred from additional evidence submitted by Kamel in support of the motion to strike that the existence or nonexistence of the fence addressed in the Kamel Letter did not directly affect the Hope Ranch community or a large number of people beyond the Mariposa Drive Residents or adjoining neighbors, and did not relate to relate to issues of governance by the Association with respect to the fence or access to Hope Ranch at the subject location. (See Rivero v. American Federation of State, County, and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924.)

Attached to the Van Zeebroeck declaration as exhibits C and D are, respectively, communications from Gagneja and Pasquinelli ostensibly transmitted to the Association’s board of directors. As further described above, Gagneja and Pasquinelli are also Marina Drive Residents. Van Zeebroeck asserts that these additional letters were submitted “in support of the Board’s decision to install the security fence and gate at the end of Mariposa Drive.” (Van Zeebroeck Decl., ¶¶ 5-6.)

In a March 22, 2023, email from Gagneja to the board, Gagneja expresses concerns about an undisclosed neighbor’s “desire to have open access to Hope Ranch via a gate at the end of our street” which Gagneja considered a “threat to [their] safety”, and further states that Gagneja is “grateful to Hope Ranch for this renovation and ask to maintain this privacy ….” (Van Zeebroeck Decl., Exh. C.) Though Gagneja also expresses in a general and conclusory manner that the existence of the fence is “important” for all of Hope Ranch’s safety and privacy, nothing in the Gagneja email submitted by Kamel shows the existence of any larger discussion, debate or controversy regarding, or the Association’s governance with respect to, the fence or the concerns expressed by Gagneja or in the Kamel Letter.

In a March 29, 2023, email from Pasquinelli, who is also a Mariposa Drive Resident, to the “Chair” and “Board Members” of the Association, Pasquinelli references a “blind bend” as it approaches the corner of “Mariposa” creating a safety issue, and urges the Association to “keep that gate locked for the safety of the drivers, pedestrians and pets in the area.” (Van Zeebroeck Decl., Exh. D, italics added.) The same analysis and reasoning applies. Nothing in the communication attached as exhibit D to the Van Zeebroeck declaration, which also purportedly addresses the fence discussed in the Kamel Letter, concerns an ongoing discussion or debate or the Association’s governance of matters relating to the fence. Furthermore, the Pasquinelli email attached to the Van Zeebroeck declaration further demonstrates that the fence and other issues discussed in the Kamel Letter were of concern to a small and specific group of residents in Hope Ranch, and not the topic of any ongoing dispute or discussion affecting the Hope Ranch community sufficient to show a widespread public interest in these matters.

The parties here do not dispute that there exists a general societal interest in safe and secure communities. Though issues impacting the safety and security of a common interest development may under certain circumstances concern matters of public interest, “a defendant must do more than identify some speech touching on a matter of public interest.” (Rand, supra, 6 Cal.5th at p. 621; see also Martinez v. Metabolife Internat., Inc. (2003) 113 Cal.App.4th 181, 188 [“a defendant in an ordinary private dispute cannot take advantage of the anti-SLAPP statute simply because the complaint contains some references to speech or petitioning activity by the defendant”].) Furthermore, the fact that the Kamel Letter was transmitted to the board of directors of the Association does not, alone, show that the writing constitutes protected activity under section 425.16. For all reasons discussed above, Kamel has failed to show that the Kamel Letter was made in a place open to the public or a public forum, or in connection with a public issue or matter of public interest. Therefore, Kamel has failed to meet his burden to show that the third cause of action arises from protected activity under the anti-SLAPP statute. The Court will accordingly, and for all reasons discussed above, deny the motion to strike.

 

Kamel’s request for judicial notice:

Kamel requests judicial notice of the Association’s “Second Amended and Restated Declaration of Covenants, Conditions, and Restrictions of Hope Ranch” (the CC&Rs) which Kamel asserts was recorded with the County of Santa Barbara Recorder’s Office on August 15, 1995. (RFJN at p. 2 & Exh. A.)

Recorded covenants, conditions, and restrictions of a development are a proper subject of judicial notice. (See River’s Side at Washington Square Homeowners Association v. Superior Court of Yolo County (2023) 88 Cal.App.5th 1209, 1220, fn. 3 [court may take judicial notice of recorded CC&Rs]; Eisen v. Tavangarian (2019) 36 Cal.App.5th 626, 642, fn. 12 [judicial notice of recorded CC&Rs]; Palacin v. Allstate Ins. Co. (2004) 119 Cal.App.4th 855, 860 [same]; see also Evid. Code, § 452, subd. (c) [permitting judicial notice of “official acts” of designated departments].) However, the CC&Rs attached to the request are not recorded. Therefore, there exists no “official act” for which the Court may take judicial notice. Therefore, the Court will deny the request as to the CC&Rs.

Kamel also requests that the Court take judicial notice of a grant deed for real property owned by Kamel and located on Mariposa Drive. (RFJN at p. 3 & Exh. B.) Kamel has failed to establish the relevance of the grant deed to the issues raised in the motion to strike. (Aquila, Inc. v. Superior Court (2007) 148 Cal.App.4th 556, 569 [“only relevant material may be [judicially] noticed”].) Therefore, the Court will deny Kamel’s request for judicial notice of the grant deed.

The Langs’ request for an award of attorney’s fees:

In their opposition to the motion to strike, the Langs request an award of attorney’s fees in the amount of $2,500, corresponding to four hours of their counsel’s time to conduct research and to prepare the opposition. (Wideman Decl., ¶ 3.) “If the court finds that a special motion to strike is frivolous or is solely intended to cause unnecessary delay, the court shall award costs and reasonable attorney’s fees to a plaintiff prevailing on the motion, pursuant to Section 128.5.” (Code Civ. Proc., § 425.16, subd. (c)(1).)

Apart from asserting in a general and conclusory manner that the motion to strike constitutes a “stalling tactic”, the Langs offer no reasoned argument demonstrating why the motion to strike was frivolous or intended solely to cause unnecessary delay. Moreover, there exists no evidence or information to show that “any reasonable attorney would agree that the motion is totally devoid of merit”, or from which it can be inferred that the sole purpose of the motion to strike was to harass the Langs or to cause unnecessary delay. (Chitsazzadeh v. Kramer & Kaslow (2011) 199 Cal.App.4th 676, 683-684.) For these reasons, the Court will deny the Langs’ request for an award of attorney’s fees under subdivision (c)(1) of section 425.16.