Mesquite Country Club Condo. Homeowners Ass'n v. Save Oswit Canyon, Inc.

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MESQUITE COUNTRY CLUB CONDOMINIUM HOMEOWNERS ASSOCIATION, Plaintiff and Appellant, v. SAVE OSWIT CANYON, INC., etc., Defendant and Respondent;

PETER L. TRIPODES et al., Interveners and Respondents.

D082746

California Court of Appeals, Fourth District, First Division

August 1, 2024

NOT TO BE PUBLISHED

APPEAL from orders of the Superior Court of Riverside County, No CVPS2203251 Carol A. Greene, Judge. Motion to dismiss appeal denied. Order denying anti-SLAPP motion reversed; order dissolving preliminary injunction affirmed.

Capobianco Law Offices, Anthony Capobianco, Derek Wallen Slovak Baron Empey Murphy &Pinkney, Shaun Murphy; Murphy Pearson, Bradley &Feeney, Jeff C. Hsu and Marin Gillespie for Plaintiff and Appellant.

Burke Williams &Sorenson, Mark J. Mulkerin, Richard J. Reynolds and John R. Horstmann for Defendant and Respondent.

Law Offices of Peter L. Tripodes and Peter L. Tripodes for Interveners and Respondents.

DATO J.

This appeal arises out of litigation concerning a deteriorated golf course at the center of an integrated residential community in Palm Springs.

Plaintiff and appellant, the Mesquite Country Club Condominium Homeowners Association (the HOA), manages the community. The HOA has sued the owners of the golf course and its facilities, including defendant and respondent Save Oswit Canyon, Inc., doing business as the Oswit Land Trust, a nonprofit corporation (Oswit). Interveners and respondents Peter L. Tripodes and Nicoletta M. Tripodes own a condominium in the community.

Essentially, the HOA contends that Oswit must restore the property to a usable golf course, whereas Oswit seeks to transform the property into a nature preserve. The Tripodeses intervened in this dispute, alleging that the HOA board members voted to initiate this lawsuit without proper notice and input from the Mesquite homeowners. The Tripodeses generally agree with Oswit that it can and should proceed with its plans for the property.

Here, the HOA appeals the denial of its special motion to strike the Tripodeses' complaint-in-intervention under the anti-SLAPP^[1] statute (Code Civ. Proc.,^[2] § 425.16), as well as the dissolution of a preliminary injunction that would have required Oswit to maintain the status quo of the property during the pendency of the case. In its view, the anti-SLAPP motion should have been granted and the injunction should have remained in place.

On its first contention, we agree with the HOA that the trial court erred in finding that the gravamen of the complaint-in-intervention did not involve protected activity under the anti-SLAPP statute. We further conclude that the Tripodeses have not shown any probability of prevailing on their claim. Accordingly, we reverse the order denying the special motion to strike the complaint-in-intervention and direct the court to grant it.

Regarding the second claim, we disagree with Oswit that the order dissolving the injunction is not appealable under the plain language of section 904.1, subdivision (a)(6), and therefore deny its motion to dismiss the appeal. On the merits, however, we conclude that the trial court correctly dissolved the injunction because the HOA failed to post the mandatory injunction bond. The HOA otherwise fails to demonstrate that the court abused its discretion in declining to reduce the bond amount, and its arguments that the court erred in setting the bond in the first place are beyond the scope of this appeal.

FACTUAL AND PROCEDURAL BACKGROUND

The underlying dispute is not particularly complicated.^[3] "In its complaint filed on August 12, 2022, the HOA explains that it was designed as an integrated residential golf course community and that about a third of its 600 condominium units are situated adjacent to an 18-hole golf course. Palms Partners Capital, LLC (Palms Partners), owned by [Ramin] Saghian, acquired the Mesquite Golf &Country Club (the Club) and the golf course in 2014.^[4] Thereafter, Palms Partners allegedly failed to maintain the golf course and the Club despite several notices from the HOA regarding deficiencies and dangerous conditions, which the HOA contends are lease violations and public nuisances. As a result of Palms Partners' lack of action, the HOA describes both the Club and golf course as 'not useable.'" (Mesquite Country Club, supra, D082762.)

"Oswit purchased the golf course from Palms Partners on July 26, 2022. Palms Partners retained ownership of the Club. According to the HOA's complaint, Oswit confirmed in written materials disseminated to homeowners that it would convert the golf course to a public nature preserve and botanical garden. The HOA further submits that an attorney for a principal of Oswit and one of its significant donors, The Prescott Foundation, stated that the new preserve, to be known as Prescott Preserve, will never operate as a golf course. The complaint alleges that '[s]ince its purchase of the Golf Course, it appears that Oswit has completely abandoned the Golf Course and has stopped all maintenance, landscaping and irrigation, contributing to its further deterioration." (Mesquite Country Club, supra, D082762.)

DISCUSSION

A. The trial court should have granted the anti-SLAPP motion.

The HOA contends the trial court erred by denying its anti-SLAPP motion to strike the Tripodeses' complaint-in-intervention, which raises a claim under the Common Interest Development Open Meeting Act (the Open Meeting Act) (Civ. Code § 4900 et seq.). It maintains that the complaint challenges the board's vote to initiate this lawsuit, which is "a textbook example" of protected activity under the anti-SLAPP statute. We agree the court erred in finding that the Tripodeses' claim did not arise from protected petitioning activity. And although the court did not reach the second step in its anti-SLAPP analysis, we independently conclude that the Tripodeses have failed to show minimal merit to their claim.

1. Anti-SLAPP Motions Generally

"[T]he anti-SLAPP statute is designed to protect defendants from meritless lawsuits that might chill the exercise of their rights to speak and petition on matters of public concern. [Citations.] To that end, the statute authorizes a special motion to strike a claim '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.'" (Wilson, supra, 7 Cal.5th at pp. 883-884; see § 425.16.)

"Resolution of an anti-SLAPP motion involves two steps. First, the defendant must establish that the challenged claim arises from activity protected by section 425.16." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) "[T]he Legislature has defined such protected acts in furtherance of speech and petition rights to include a specified range of statements, writings, and conduct in connection with official proceedings and matters of public interest." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062 (Park); see § 425.16, subd. (e).)

"If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Baral, supra, 1 Cal.5th at p. 384.) The Supreme Court has described "this second step as a 'summary-judgment-like procedure.'" (Ibid.) "If the plaintiff cannot make this showing, the court will strike the claim." (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995, 1009 (Bonni).) "The anti-SLAPP statute does not insulate defendants from any liability for claims arising from the protected rights of petition or speech. It only provides a procedure for weeding out, at an early stage, meritless claims arising from protected activity." (Baral, at p. 384.)

"We review de novo the grant or denial of an anti-SLAPP motion. We exercise independent judgment in determining whether, based on our own review of the record, the challenged claims arise from protected activity. In addition to the pleadings, we may consider affidavits concerning the facts upon which liability is based. We do not, however, weigh the evidence, but accept plaintiffs submissions as true and consider only whether any contrary evidence from the defendant establishes its entitlement to prevail as a matter of law." (Park, supra, 2 Cal.5th at p. 1067, citations omitted.)

2. Additional Background

With the trial court's permission, the Tripodeses intervened in this litigation in December 2022. According to their complaint-in-intervention, this lawsuit "was initiated by a vote of the [HOA's] board of directors without notice to, or vote or approval or consent of the homeowners." The Tripodeses more specifically alleged "that on or about July 28, 2022, the board of directors secretly authorized the filing of the suit without seeking any input from the homeowners. It was not until August 25, 2022, that the homeowners were first notified [via email] of the board's decision and that suit had been filed."

The Tripodeses agreed with Oswit that it was not required to maintain the property as a golf course under the lease or covenants, conditions, and restrictions (CC&Rs) governing the HOA and Oswit. Indeed, the Tripodeses believed that a nature preserve would enhance their property value, and that most of their fellow homeowners were similarly unopposed to the preserve. They contested the HOA using the homeowners' dues or levying any special assessments upon the homeowners to fund this litigation.

The Tripodeses sought a judgment that included the following: (1) that the HOA "take nothing by its action;" (2) that judgment be awarded in favor of Oswit; (3) "[t]hat the decision by the board of directors to initiate this litigation be declared...