Pfeister v. Rogers

1

JOANNA L. PFEISTER, Plaintiff and Respondent, v. STEPHEN ROGERS et al., Defendants and Appellants

A165508

California Court of Appeals, First District, First Division

April 15, 2024

NOT TO BE PUBLISHED

(City & County of San Francisco Super. Ct. No. CGC-20-586621)

LANGHORNE WILSON, J.

Plaintiff Joanna L. Pfeister applied for an open seat on the board of her homeowners association. Nearly two years later, she sued the homeowners association and the individual directors of the board-including defendants Giampaolo D'Errico and Stephen Rogers (collectively, defendants)-alleging they engaged in a course of conduct to deter her from serving on the board due to her membership in a protected class.^[1] Among other things, she alleged they postponed the board election, made false police reports about her, and prosecuted a meritless civil action against her. Pfeister asserted causes of action for discrimination, abuse of process, malicious prosecution, invasion of privacy, elder abuse, intentional infliction of emotional distress, and various corporate abuses.

Defendants filed an anti-SLAPP motion to strike those claims. (See Code Civ. Proc., § 425.16.)^[2] The trial court denied the motion because it was untimely and because the causes of action either did not arise from protected activity or Pfeister established a probability of prevailing on her claims. Defendants appeal.

We conclude the order denying defendants' special motion to strike should be granted pertaining to certain claims in Pfeister's second, third, and sixth causes of action because defendants presented a prima facie showing that those claims arose from protected activity, and Pfeister did not establish a probability of prevailing on those claims. Consequently, we reverse and direct the trial court to enter an order granting the motion to strike those claims. In all other respects, we affirm.

I. BACKGROUND

Pfeister owns a condominium unit in a 260-unit common interest development in San Francisco. Every homeowner in the development is a member of the Gramercy Towers Condominium Association (the Association), which is governed by a seven-member board of directors (the Board) comprised of volunteer homeowners. The individual defendants, including D'Errico and Rogers, were directors of the Board at the time of the events giving rise to this action.

A. The Complaint

In 2020, Pfeister filed a lawsuit against the Association. She later filed a first amended complaint, adding the individual directors as defendants. The first amended complaint alleged claims for discrimination, elder abuse, abuse of process, malicious prosecution, intentional infliction of emotional distress, and various corporate abuses against all defendants. After the court sustained the Association's demurrer to the first amended complaint, Pfeister filed a second amended complaint (SAC) asserting the same claims and adding a cause of action for invasion of privacy.

The SAC's first cause of action for discrimination alleged that in December 2018, Pfeister was "duly elected" to the Board. Defendants were aware she was a 75-year-old transgender woman and a disabled veteran, and they conspired to prevent her from exercising her rights as a director of the Board. To that end, they made disparaging remarks about her and encouraged others to act uncooperatively or disrespectfully towards her. They also "invad[ed] her privacy" by hiring attorneys and investigators to obtain her private information; Rogers and other directors made false reports to law enforcement to initiate civil and criminal proceedings against her. Defendants then "misus[ed]" Association funds to finance third-party litigation against her and refused to maintain insurance coverage for her, thereby requiring her to incur costs in defending against the litigation. Additionally, defendants postponed Board meetings and denied her the right to inspect Association records and call and attend Board meetings.

The second cause of action for abuse of process alleged that Rogers and other directors knowingly made false statements to law enforcement about Pfeister's conduct during a settlement meeting for litigation involving the Association. Defendants allegedly did so to instigate criminal and civil proceedings against her. This cause of action further alleged that defendants authorized the use of Association funds to finance that litigation.

The third cause of action for malicious prosecution alleged that defendants made or "ratified" false statements to law enforcement to instigate criminal proceedings against Pfeister and to create a "pretext" to bring a civil harassment action against her, and there were no reasonable grounds to bring either action.

The fourth cause of action for invasion of privacy alleged that defendants hired attorneys and private investigators to "expose[]" Pfeister's private information for the purpose of humiliating her.

The fifth cause of action for elder abuse, as relevant to this appeal, alleged that defendants failed to provide Pfeister insurance coverage to which she was entitled as a "duly elected" director of the Board, thereby exposing her to personal liability for her defense of "unjustified" criminal and civil litigation.

The sixth cause of action for intentional infliction of emotional distress incorporated the allegations in the first five causes of action and asserted that defendants' alleged conduct caused Pfeister severe emotional distress.

The seventh through ninth causes of action and the eleventh cause of action are for various corporate abuses. Those causes of action alleged that defendants violated Association bylaws and state laws by "postpon[ing]" and "refus[ing]" to conduct annual meetings of the Association, "den[ying]" Pfeister her right as a member and director to inspect and copy Association records, "den[ying]" her the right to call and attend executive sessions, and "refus[ing]" to maintain an insurance policy for her, respectively.

Finally, the tenth cause of action for "unauthorized transfer of funds" alleged that each of the defendants "authorized" or "directed" the "unlawful and unauthorized transfers of the Association's funds [] for the purpose of . . . financing litigation against Plaintiff."

B. Defendants' Anti-SLAPP Motion

Defendants filed an anti-SLAPP motion arguing that the SAC and each cause of action therein should be stricken. They asserted that the causes of action arose from their protected activity because they were based on their decisions as directors regarding issues of public interest, the prosecution of a civil action, the hiring of attorneys and investigators for a litigation-related investigation, or their communications with law enforcement.

In opposition, Pfeister argued the motion was untimely and that each cause of action except for her abuse of process and malicious prosecution claims did not arise from protected activity. She further argued that she established a probability of prevailing on her causes of action. Pfeister submitted two declarations stating that defendants made false statements to law enforcement about her, and that those false statements served as the basis for their civil action against her. She also indicated that defendants had postponed the Board election with "no justification," withheld Association records from her, refused to provide her insurance coverage to which she was entitled, and excluded her from Board meetings. Attached to her first declaration were excerpts from the deposition of the Association's manager, which showed that some of the directors had made disparaging remarks about Pfeister and her transgender status.^[3] The trial court denied the motion as untimely as to all causes of action except the invasion of privacy claim because defendants filed the motion more than 60 days after they were served with the first amended complaint. The trial court also denied the motion on the merits, concluding that for each claim, Pfeister demonstrated a probability of prevailing, or the claim was not based on protected activity.

II. DISCUSSION

Defendants challenge the denial of their anti-SLAPP motion on two grounds. We address each in turn.

A. Timeliness of Anti-SLAPP Motion

Defendants first contend the trial court abused its discretion in denying their motion as untimely. Even though defendants filed the motion more than 60 days after they were served with the first amended complaint (§ 425.16, subd. (f)), we agree.

1. Additional Background

Pfeister filed the lawsuit against the Association in September 2020. Over a year later, she filed the first amended complaint, adding the individual defendants. D'Errico was personally served with the first amended complaint on November 24, 2021. Rogers was served by substitute service, and the complaint and summons were mailed to him on November 29, 2021, meaning service was effective on him on December 9, 2021. (§ 415.20, subd. (a).)

By January 3, 2022, D'Errico had retained counsel, who asked Pfeister for an extension to file a response to the first amended complaint. Instead of granting an extension, Pfeister requested entry of D'Errico's default on January 6. D'Errico attempted to file an anti-SLAPP motion the following day, but the trial court rejected the filing because of the pending request for default. The court entered D'Errico's default on January 12, just 49 days after he was personally served with the first amended complaint. The court entered Rogers's default on January 14, only 36 days after service was effective on him.

D'Errico moved to set aside his default a week later, on January 20. The following day, he filed an ex parte application to advance the hearing and shorten time to hear the motion to set aside the default. Attached to...