Motion-Secondary: SCOTT BRAUNINGER VS. LISA OH ET AL

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E. Forrest Shryock, Jr. [SBN 121929]
Jonathan P. Varnica [SBN 278746]
VOGL MEREDITH BURKE LLP
456 Montgomery Street, 20th Floor
San Francisco, California 94104
Telephone: (415) 398-0200
Facsimile: (415) 398-2820

Email: fshryock@vmbllp.com

Attorneys for Defendant LISA OH

D. Gill Sperlein [SBN 172887]
The Law Office of D, Gill Sperlein
345 Grove Street

San Francisco, California 94102
Telephone: (415) 404-6615
Facsimile: (415) 404-6616
Email: gill@sperleinlaw.com

ELECTRONICALLY

FILED

Superior Court of Catifornia,
County of San Francisco

05/07/2019
Clerk of the Court
BY:SANDRA SCHIRO

Deputy Clerk

Attorney for Defendants LISA OH & EDWARD PARK

SUPERIOR COURT OF THE STATE OF CALIFORNIA

IN THE COUNTY OF SAN FRANCISCO.

SCOTT BRAUNINGER.,
Plaintiff,

vs.

Case No. CGC-19-573611

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
SPECIAL MOTION TO STRIKE SLAPP

LISA OH; EDWARD PARK; and does 1-100, SUIT AS TO DEFENDANTS LISA OH

Defendants.

Date: June 4, 2019
Time: 9:30 a.m,
Department: 302
Reservation No: ..05070604-11

Complaint Filed: February 6, 2019

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE SLAPP SuIT As

TO DEFENDANTS LISATABLE OF CONTENTS
I, INTRODUCTION

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TL. STATEMENT OF FACTS.....ccccccccssssessssesessessssenssesnenenesnsesseesenesssnessessesscaesscsesesesseanensanessencesssensaas 1
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A. The Defendants’ acts, of which the Plaintiff complains, were ones taken in furtherance of
the Defendants’ constitutional rights of petition or free speech in connection with a public issue.4

1. The Claimed Conduct and Statements Were Made in Anticipation of Litigation... 5

2, The Claimed Conduct and Statements Were Made in a Public Forum ......ssesesecseressrenenes 6

3. The Claimed Conduct and Statements Concern the Public’s Interest

B. — Plaintiff Does Not Have a Probability of Prevailing on the Merits of its Claims

1. Defendants’ Statements Are Privileged 8
2. Plaintiffs Causes of Action are Time Barred by the Applicable Statute of Limitations....... 10
3. Plaintiff's Civil Harassment Cause of Action Lacks Merit Because the Alleged Harassing
Conduct was Cordial and Did Not Cause Plaintiff to Suffer Substantial Emotional Distress.....11
4. Plaintiffs Defamation/False Light Causes of Action Lack Metit ....cscssscsseesesensersneenseenenees 2
5. Plaintiffs Invasion of Privacy Claim Fails... asseneanguevessoaseneacocnenevecaennsnenseneneeseosenrss 14
TV. CONCLUSION ....sssesccsessessessessssesserneenssnceneneeuensccarensensnnenesnenseaussnsssacssesasenseassnsnceseeseenececaceneents 15
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE SLAPP SuIT As
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TABLE OF AUTHORITIES

Cases

Asscherman v. Natanson (1972) 23 Cal.App.3d 861, 864-865

Bailey v. Brewer (2011) 197 Cal.App.4th 781, 789-90...

Barak v. Ouisenberry Law Firm (2006) 135 Cal. App. 4th 654, 661

Bergstein v. Stroock & Stroock. & Lavan LLP (2015) 236 Cal.App.4th 793, 814.

Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1114, fit. 3) .eececceseeesnssnsassnssesrsstssssensesesusnsnenen 4

Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1115, 1119

Brown v. Kelly Broadcasting Co. (4989) 48 Cal.3d 711, 723 vesccssssssssnseeerseeernsssnnnnneerscereesesnnssnarees

Cain v. State Farm Mut. Auto Ins. Co. (1976) 62 Cal.App.3d 310, 313

Clark v. Burleigh (1992) 4 Cal.4th 474, 482.
ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 999

Copp v. Paxton (1996) 52 Cal.App.4th 829, 844, 846

Country Side Villas Homeowners Assn. v. Ivie (2011) 193 Cal.App.4th 1110, 1118

Damon, 85 Cal.App.4th 468, 475, 479-480

Eisenberg v, Alameda Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1385 fn. 13 rene

Emde v. San Joaquin County Central Labor Council (1943) 23 Cal.2d 146, 160...

Equilan Enterprises, LLC v. Consumer Cause, Inc, (2002) 29 Cal. 4th 53,60 0.3 vrerseccreireersiessrseres see cnend 4

Foothills Townhome Assn. v. Christiansen (1998) 65 Cal.App.4th 688, 696

Gertz v. Robert Welch, Inc. (1974) 418 U.S. 323, 351

Hughes v. Hughes (2004) 122 Cal. App. 4th 931, 936

Hui v. Sturbaum (2014) 222 Cal.App.4th 1109, 1118-1119

Kashian v. Harriman (2002), 98 Cal.App.4th 892
Lee v. Silveira (2016) 6 Cal.app.5th 527, 539, 540.

Leydon v. Alexander (1989) 212 Cal.App.3d 1, 5

McGrory v. Applied Signal Technology, Inc. (2013) 212 Cal.App:4th 1510, 1540

Miller v. Collectors Universe, Inc. (2008) 159 Cal.App.4th 988, 998.

Moreno v. Hanford Sentinel, Inc. (2009) 172 Cal.App-4th 1125, 1129-1130
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE SLAPP SUIT As
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Nabrstedt v. Lakeside Village Condominium Assn. (1994) 8 Cal.4th 361,

New York Times Co. Sullivan (1964) 376 U.S. 254, 280

Roberts v. Las Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 613-14.

Rohde v, Wolf (2007) 154 Cal.App.4th 28, 35
Shively v. Boxanich (2003) 31 Cal.4th 1230, 1246-47
Shulman v. Group W. Productions, Inc. (1998) 18 Cal.4th 200, 230.
Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21
Statutes

California Code of Civil Procedure § 47(c),
California Code of Civil Procedure § 335.1...
California Code of Civil Procedure § 3425.3,
California Code of Civil Procedure § 425.16(a)
California Code of Civil Procedure § 425.16(e)

California Code of Civil Procedure § 426.16.

California Code of Civil Procedure § 527.6 ....cisscssescessseeresssnenssne

California Code of Civil Procedure § 527.6(a)(3) serene

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF S
TO DEFENDANTS LISA

CLAL MOTION TO STRIKE SLAPP SuIr As1. INTRODUCTION

Plaintiff Scott Brauninger has filed the quintessential strategic lawsuit against public participation!
(“SLAPP”) against defendants Lisa Oh and Edward Park. Defendants, a married couple, reside in and own al
condominium in the Rockwell. Brauninger, who also lives in the Rockwell, serves as the COO of Build Group,
Inc., the general contractor for the Rockwell. Though plaintiff attempts to portray this as a dispute between]
neighbors, his true goal is to silence and intimidate defendants because they voiced concerns about construction
defects and participated in an ongoing Rockwell Home Owners’ Association (“HOA”) SB-800! construction|
defect investigation. As the COO of Build Group, Inc. and Responsible Managing Officer for the Rockwell
project, plaintiff has a powerful incentive to inhibit the investigation. [Complaint at { 4].

Although plaintiff and defendants had no contact with each other since March of 2017, on December,
27, 2018, two weeks after the HOA announced that it would hold a town hall meeting in January 2019 to discuss
SB-800, plaintiff sent the cease and desist letter to defendants. [Complaint at 4/18; Declaration of Lisa Oh in
Support (“Oh Decl.”) at 416; Declaration of Ed Park (“Park Decl.”) at [4]. In January 2019, defendants attended)
the town hall meeting and took steps to advance the SB-800 action. [Oh Decl. at {[21; Park Decl. at [5]. Plaintift
filed this action on February 6, 2019, just two weeks after defendants participated in the SB-800 investigations
and two days before candidate statements for HOA Board elections were due. [Park Decl. at {5]. The true|
purpose of this lawsuit was revealed soon after filing when a defaced copy of this Complaint was distributed
throughout the Rockwell with defendants’ names circled in red and with the message “BE CAREFUL WHO}
YOU VOTE TO THE HOA BOARD” typed in large red letters. [Decl. of Lisa Oh at {{30, Exhibit 17].

Plaintiff's Complaint, which includes claims aimed directly at defendants’ public participation and
petitioning activity, is the prototypical SLAPP suit. Defendants respectfully request that this Court dismiss|
plaintiff's Complaint in its entirety pursuant to Code of Civil Procedure § 425.16.
Il. STATEMENT OF FACTS

Plaintiff filed suit on February 6, 2019, alleging defamation and other claims. Plaintiff is the COO at|
Build Group, Inc., (“Build Group”), which built the Rockwell, and he serves as the Responsible Managing

Officer for Build Group. [Complaint at 46]. Plaintiff also owns and occupies a penthouse unit at the Rockwell.

' $B 800 establishes a mandatory process prior to the filing of certain types of construction defect suits. ‘The bill applies whenever!
there are defects alleged by a homeowner in new residential construction.

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The Rockwell is managed by Titan Management, which is closely aligned with Build Group, as it also manages|
other properties built by Oyster Development and Build Group. [Park Dec. at 46].

Defendants, who own and occupy a condominium adjacent and one floor below plaintiff, are active]
participants in the Rockwell community. They attended the first HOA meeting on February 1, 2017 and have
attended nearly every monthly meeting, all workshops, all town halls, and all Architecture Control Committee
(“ACC”) meetings since. [Park Decl. at 4]. In December 2016, Park submitted his candidacy for the initial HOA|
Board of directors but his efforts were thwarted when the developer’s hand-picked management team failed to
circulate Park’s candidate statement. [Park Decl. at 5]. From December 2017 to around the end of 2018, Oh
served on the Rockwell HOA ACC. [Oh Decl. at 12]. In 2017 and 2018, Oh reported Rockwell concerns both
as a resident and as a member of the ACC. [Id]. Defendants made numerous requests through the developer,
building management company, and/or HOA Board to have items repaired both in their unit (Fit & Finish!
Service Requests”) and in common areas (“Repair Requests”). [Oh Decl. at {{f{11-14]. As a homeowner, plaintift
would not be aware of such service and repair requests, but as Responsible Managing Officer of Build Group,
he was likely notified of each service and repair request by defendants. Defendants found management unable}
ot unwilling to pursue repair requests for the common areas, but defendants continued to voice their concerns|
and petition management and the HOA Board. For example, on May 15, 2018, upon his request, Oh e-mailed)
the Rockwell’s management company’s president, Michael Alfaro, recommending the Rockwell conduct an|
assessment for commonly found National Electric Code (“NEC”) wiring errors. In the e-mail, Oh expresses her!
concern about potential wiring errors throughout the building. [Oh Decl. at 13, Exhibit 8]. This is but one|
example of the defendants voicing concerns about potential building defects. There were many. [Id. at {4]11-14].
Those concerns eventually led to the December 2018 announcement in the Rockwell Newsletter of a Town Hall
Meeting to discuss a possible SB-800 action. [Oh Decl. at [15; Park Decl, at [5]. Two weeks after the
announcement, plaintiff sent the cease and desist letter described in the Complaint. [Complaint at 18; Oh Decl,
at 916; Park Decl. at 4]. After defendants participated in an electrical inspection discussion and allowed a unit}
inspection by the SB-800 attorneys and knowing defendants would likely seek election to the HOA Board,
plaintiff then filed the Complaint two days before the deadline for HOA Board nominations. Although deeply|

concerned about retaliation, Park submitted his statement on February 8, 2019. [Park Decl. at [7].

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il. ARGUMENT

Plaintiff's causes of action against defendants should be stricken under sections (e)(2), (e)(3) and (e)(4)
of the SLAPP statute (Cal. Code of Civil Proc. § 426.16 et seq. (the “SLAPP. statute”)) because the alleged)
defamatory behavior and statements were made in connection with a civil litigation, in a public forum concerning)
a public interest, and Plaintiff cannot establish a probability of succeeding on the merits.

The underlying objective of this lawsuit is to threaten, intimidate, suppress, and punish Oh and her
husband, Park, who have been outspoken leaders at the Rockwell. Their petitioning about the Rockwell
culminated in the HOA Board engaging counsel to conduct an SB-800 investigation. As COO of Build Group,
plaintiff does not want the HOA to pursue construction defect litigation against the Rockwell developer, Oyster
Development, and hence the builder, Build Group, thus plaintiff serves as Build Group’s proxy, and as proxy
filed this action through Build Group’s construction attorneys, Haight Brown, to silence defendants and
intimidate others who might report potential defects. The Complaint explicitly alleges that defendants’
complaints “defame Build Group.” [Complaint at 17]. While Build Group is not a named plaintiff, itis included|
in the “Parties” section of the complaint, which is normally reserved for named parties. [Complaint at {| 4]
Through this SLAPP suit, the COO of Build Group sent a message to all the owners of Rockwell that if they
petition local authorities or report any construction defects in their unit or in the common areas, they too may
be subject to a lawsuit.

California’s SLAPP statute requires a trial court to undertake a two-step process in determining whether]
to grant a SLAPP motion: first, the court decides whether the defendant has made a threshold prima facie
showing that the defendant's acts, of which the plaintiff complains, were ones taken in furtherance of the|
defendant’s constitutional rights of petition or free speech in connection with a public issue; and second, if the
court finds that the defendant has made the requisite showing, the burden then shifts to the plaintiff to establish]
a “probability” of prevailing on the claims by making a prima facie showing of facts that would, if proved,
support a judgment in the plaintiff's favor. (Kashian v. Harriman (2002), 98 Cal.App.4th 892.) Defendants have|
the initial burden of showing that the claims are subject to the SLAPP statute. (ComputerXpress, Inc, v. Jackson
(2001) 93 Cal.App.4th 993, 999.) Then the burden shifts to plaintiff to establish a probability of prevailing by

presenting facts that would support a judgment in the plaintiff's favor. (Id.) “In ass

sing the probability off

prevailing, a court looks to the evidence that would be presented at trial, similar to reviewing a motion for’
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summary judgment; a plaintiff cannot simply rely on its pleadings, even if verified, but must adduce competent,

admissible evidence.” (Roberts ». Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 613-14.)

A. The Defendants’ acts, of which the Plaintiff complains, were ones taken in furtherance
of the Defendants’ constitutional rights of petition or free speech in connection with a
public issue.

California’s anti-SLAPP statute was enacted with the express legislative purpose of protecting a party’s
ability to exercise his/her constitutionally-protected right to free speech without fear of retaliation. “While!
SLAPP suits masquerade as ordinary lawsuits such as defamation .. . they are generally meritless suits brought
primarily to chill the exercise of free speech or petition rights by the threat of severe economic sanctions against
the defendant, and not to vindicate a legally cognizable right.” (Simpson Strong-Tie Co., Inc, v. Gore (2010) 49 Cal.Ath
12, 21.) The California Legislature found “that it is in the public interest to encourage continued participation in
matters of public significance, and that this participation should not be chilled through abuse of the judicial]
process.” (Code of Civ. Proc. § 425.16(a).) "The California Supreme Court recognizes that the statute should be
construed broadly. (Eguilan Enterprises, LLC v. Consumer Cause, Inc. (2002) 29 Cal. 4th 53, 60 n. 3.) “Whenever|
possible, [the courts] should interpret the First Amendment and section 425.16 in a manner ‘favorable to the
exercise of freedom of speech, not to its curtailment.” (Briggs v. Eden Council for Hope & Opportunity (1999) 19
Cal.4th 1106, 1119 (quoting Bradbury v. Superior Court (1996) 49 Cal.App.4th 1108, 1114, fn. 3).)

The party seeking statutory protection need demonstrate only that the claims against him arise from]
protected first amendment activity. (Barak v. Quisenberry Law Firm (2006) 135 Cal. App. 4th 654, 661.) The SLAPP)
statute protects “(2) any written or oral statement or writing made in connection with an issue under
consideration or review by a legislative, executive, ot 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.” (Code of Civ. Proc. § 425.16(e).)

In the face of the SB-800 investigation, plaintiff seeks to prevent defendants from making any statement)
about “poor construction craftsmanship.” [Complaint at {| 16]. It would be quite literally an injunction against]
making a construction defect claim and stifling discussion of defects. The gravamen of plaintiff's allegations

concern three specific complaints by defendants about the Rockwell building: 1) “stray electrical

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currents/voltages in [Plaintiff's Condo];” 2) “electromagnetic fields in [Plaintiff's Condo] which are damaging|
the building;” and 3) “poor construction craftsmanship (pertaining to wiring, glass, windows, piping, elevators,
fire doors, HVAC systems, paint, etc.).” [Complaint at 16].

The complaint admits that the alleged harassing and defamatory behavior revolve around defendants)
discussing defects at the Rockwell with other interested patties at the Rockwell, such as other residents, Rockwell)
employees, members of the HOA, and members of the ACC. [Complaint at {] 16]. Plaintiff alleges that the
complaints about “alleged defects at the Rockwell” were used to “harass plaintiff, defame Build Group, and to
mislead other residents of the Rockwell.” [Complaint at {j 17]. Plaintiffs defamation case consists entirely of|
complaints about building defects, and he alleges that the statements “defame Build Group.” Plaintiff is not the
aggrieved party according to his complaint. The anomaly reveals and supports the primary objective of the true
plaintiff in this case; Build Group.

L The Claimed Conduct and Statements Were Made in Anticipation of Litigation

The SLAPP statute protects statements, writings and pleadings made in connection with civil litigation,
regardless of whether the matter concerns public interest. (Batley v. Brewer (2011) 197 Cal.App.4th 781, 789
[quoting Rohde v. Wolf (2007) 154 CalApp.4th 28, 35.].) The SLAPP statute also protects “communications|
pteparatory to or in anticipation of the bringing of an action or other official proceeding.” (Id.) Therefore,
although litigation may not have commenced, if a statement concerns the subject of the dispute and is made in|
anticipation of litigation contemplated in good faith and under serious consideration then the statement may be|

petitioning activity protected by section 425.16. (Baily, 197 Cal.App.4th at 789-90.) As disc

ed infra,
defendants’ statements are protected by the litigation privilege. Statements within the protection of the litigation]
privilege “are equally entitled to the benefits of section 425,16.” (Briggs, 19 Cal.4th at 1115.)

Defendants reported electrical issues and potential construction defects in good faith contemplation of|
a construction defect litigation. On May 15, 2018, Oh sent an email to Mr. Alfaro of Titan Management Group,
the Rockwell building management company president, proposing an electrical assessment, stating that the
investigation would assess potential wiring errors to be fixed in individual units and in the main electrical room.
[Oh Decl. at 913, Exhibit 8]. Plaintiff's condo, WPH01, is mentioned in the email as an example where priot|
inspections found a wiring error in plaintiff's porch. [Id]. The reference to plaintiff is contained in al

communication about an investigation into a construction defect claim against the developer and Build Group.
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In Summer 2018, Oh continued to communicate about potential construction defects without direct!
reference to plaintiff. On June 15, 2018, Oh sent an email to Mr. Alfaro that detailed potential “Rockwell building)
construction defects and warranty items.” [Oh Decl. at {{14, Exhibit 9]. The listed items are categorized as)
electrical, items installed by contractor BMC, boiler rooms, items installed by contractor Klaus, elevators, fire!
alarm system, front door, construction dust cleanup, and the roof. [Jd.]. Oh states that the items are what she|
believes “should be investigated.” [Id]. The email does not reference plaintiff or his condo,

‘The warranty items listed by Oh resulted in an SB-800 construction defect investigation directed by the
HOA Board. [Oh Decl. at (15, Exhibit 10, 9119, Exhibit 11]. On January 16, 2019, Mr. Alfaro asked Oh to craft}
yet another memo concerning the scope of the Rockwell’s electrical assessment for an upcoming HOA meeting,
{Oh Decl. at 420, Exhibit 13]. On January 16, 2019, the HOA conducted an informational town hall meeting to}
discuss building warranty inspections, including electrical inspections, by the SB-800 counsel. [Oh Decl. at 21],

Defendants made good faith efforts to assist the HOA with conducting a construction defect)
investigation at the Rockwell that may result in actual litigation. Defendants’ activity is protected by the SLAPP|
statute as petitioning activity in anticipation of litigation.

2. The Claimed Conduct and Statements Were Made in a Public Forum

‘The alleged behaviors were made in a public forum because the petitions were made in connection with|
the governance of the Rockwell. A “public forum’ is traditionally defined as a place that is open to the public;
where information is freely exchanged. (Clark ». Burleigh (1992) 4 Cal.4th 474, 482.) California Courts consistently
hold that HOA Board meetings fit into the definition of public forums. (See ¢.g. Damon v. Ocean Hills Journalis
Club (2000) 85 Cal.App.4th 468, 475.) The California Supreme Court has recognized that owners of planned|
development units “comprise a little democratic subsociety....” (Nabrstedt v. Lakeside Village Condominium Assn.
(1994) 8 Cal.4th 361, 374.) In exchange for the benefits of common ownership, the residents elect a legislative)
or executive board and delegate powers to this board. (Damon, supra, 85 Cal.App.4th at 475.) This delegation|
concerns not only activities conducted in the common ateas, but also extends to life within “the confines of the|
home itself.” (Nabrsted?, 8 Cal.4th at 373.) The HOA Board is in effect “a quasi-government entity paralleling in|
almost every case the powers, duties, and responsibilities of a municipal government.” (Cohen ». Kite Hill
Community Assn. (1983) 142 Cal.App.3d 642, 651.) Acts done at an HOA meeting, or done in connection with

board meetings, are considered acts done in a public forum. (Lee ». Si/veira (2016) 6 Cal.app.5th 527, 539.)
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Rockwell HOA Board meetings are open to all members of the Association. [Oh Decl. at | 12, Exhibit}
7 at Section 7.04]. The HOA Board has the power to promulgate and enforce rules applicable to Rockwell
owners. [Id. at Section 8,01(a), (g)]. The HOA Board can delegate its powers to committees, for example, the
ACC. {Id. at Section 8.01(e)]. The HOA Board is a quasi-government entity for the residents of the Rockwell.

‘The alleged acts occurred in the HOA public forum. Plaintiff specifically alleges that Oh used her
position on the ACC as a “platform to harass Plaintiff’ [Complaint at 4 17]. On May 15, 2018, upon Mr, Alfaro’s
request Oh provided a proposal to conduct electrical inspections that was added to the list of items for the HOA
Board to review, [Oh Decl. at 13, Exhibit 8]. On July 25, 2018, Oh forwarded the list of warranty items to
Sahand Sasha Karimi, who was the HOA Board treasurer. [Oh Decl. at (14, Exhibit 9 at pg. 6]. In response, Mr.
Karimi added the warranty items to the agenda for the next HOA director meeting. [/d. at pg. 7].

Plaintiff's complaint further impacts the HOA Board because plaintiff filed this complaint two days|
before HOA Board election candidate statements were due, and the existence of the complaint and the!
allegations therein were used to undermine Park’s candidacy under the guise of campaigning or clectionecring,
{Park Decl. at 5; Oh Decl. at 30, Exhibit 17]. The underlying implication from the timing of plaintiff's filing
of the complaint is that he is trying to discourage defendants’ participation on the HOA Board. “When|
considering a section 425.16 motion, a court must consider the actual objective of the suit and grant the motion,
if the true goal is to interfere with and burden the defendants’ exercise of free speech. (Foothills Townhome Assn.
v. Christiansen (1998) 65 Cal.App.4th 688, 696).

Defendants’ activity of reporting and petitioning “alleged defects at the Rockwell” and running for
election to the Rockwell HOA Board were done in connection with the activities of the Rockwell HOA Board.
‘The acts that are the primary focus of plaintiff's Complaint, and the true underlying objective of the complaint
to discourage Park’s candidacy, were done in a public forum for purposes of section 425.16.

3. The Claimed Conduct and Statements Concern the Public’s Interest

‘The public has an interest in the decision to pursue a construction defect litigation, and in Park’s election,
A public issue can be limited to issues of importance only to those who live in a planned community. (See ¢.g.
Damon, 85 Cal.App.4th 468, 479-480; Lee, 6 Cal.App.4th at 540 [finding HOA Board decision that impacted a)
broad segment of owners’ association members to be a public issue for purposes of section 425.16]; Conniry Side

Villas Homeowners Assn. v. Ivie (2011) 193 Cal.App.4th 1110, 1118 [noting a homeowner’s complaints about the’
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actions of a homeowners association board in connection with the repair and replacement of balconies and
shingle siding were matters of “public interest” within the meaning of section 425.16 because, even if not all of]
the members’ balconies and siding needed repair or replacement, the board’s decision “affected all members of]
the association” as the expenses to make these repairs would be “borne by all”].) Moreover, since Build Group
has built and continues to construct other buildings, holding the Rockwell builder accountable here will have an
impact on many people beyond those currently living at the Rockwell.

B. Plaintiff Does Not Have a Probability of Prevailing on the Merits of its Claims

Plaintiff will be unable to show a probability of prevailing on the merits of his claims. The primary acts
of complaining about “poor construction craftsmanship” and “alleged defects at the Rockwell” are protected
by the litigation privilege contained in Civil Code section 47. The specific claims fail pursuant to the applicable
statute of limitations for each cause of action. Further, the claims fail on the metits.

1 Defendants’ Statements Are Privileged

‘The gravamen of plaintiff's Complaint is that defendants complained of defects in the Rockwell building.
‘The statements are privileged under Civil Code section 47 pursuant to the litigation privilege in subsection (b)
and the common purpose privilege in subsection (c).

i. Under the Litigation Privilege Defendants’ Statements are absolutely
privileged.

The complained of acts and statements that are the primary focus of plaintiffs Complaint are absolutely
privileged by the litigation privilege as the conduct was in furtherance of the construction defect investigation,
The Civil Code makes privileged publications in “any (1) legislative proceeding, (2) judicial proceeding, (3) in
any other official proceeding authorized by law, or (4) in the initiation or course of any other proceeding}
authorized by law.” (Civil Code § 47(b).) The litigation privilege is applied broadly, with all doubts resolved in|

favor of the privilege. (Lambert, 158 Cal.App.4th at 1138.) The privilege encompas:

's statements made prior to)
filing a lawsuit, “whether in preparation for anticipated litigation or to investigate the feasibility of filing a
lawsuit.” (Bergstein v. Stroock & Stroock €* Lavan LLP (2015) 236 Cal.App.4th 793, 814.) The litigation privilege!
is unaffected by the presence of malice. (Ascherman v. Natanson (1972) 23 Cal. App.3d 861, 864-865.)

Here, the complained of conduct regarding published statements about “alleged defects” in the Rockwell

ate privileged. Plaintiff alleges that defendants’ complaints about defects at the Rockwell “harass plaintiff]

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECLAL MOTION TO STRIKE SLAPP SuIr As
TO DEFENDANTS LISACeo ty nA mH

defame Build Group, and [will] mislead other residents of the Rockwell.” [Complaint at { 17]. The complained
behavior revolves around defendants making statements about “poor construction craftsmanship” and “alleged
defects at the Rockwell.” In 2018, Oh sent emails to the Rockwell management and the Rockwell HOA
concerning potential defects she perceived at the Rockwell, including electrical issues. [Oh Decl. at {{{]11-14, 24,
Exhibits 6-9, 15]. Later in 2018, the HOA engaged the law firm of Fenton Grant to pursue a SB-800 investigation]
into possible defects at the Rockwell and found over 200 construction defects reported by Roger Grant o
Fenton Grant at the April 25, 2019 HOA meeting. [Oh Decl. at { 31].
The underlying conduct at issue in this case is absolutely privileged. Rockwell residents, including

defendants, ate protected by the litigation privilege when discussing the construction of the Rockwell.

ii. Under the Common Purpose Privilege Defendants Statements have
Qualified Immunity.

The common purpose privilege protects “communications, without malice, to a person interested)
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.” (Civil Code § 47(¢).) The common purpose privilege
“extends a conditional privilege against defamation to statements made without malice on subjects of mutual
interests.” (Hui ». Sturbaum (2014) 222 Cal.App.4th 1109, 1118-1119.) The malice necessary to defeat the
common purpose privilege is “actual malice” arising from hatred or ill will, (Brown ». Kelly Broadcasting C “0. (1989)
48 Cal.3d 711, 723.) When evaluating the presence of malice, the truth or falsity of the statements is not at issue,
but “whether they were made recklessly without reasonable belief in their truth.” (McGrory ». Applied Signa
Technology, Inc, (2013) 212 Cal.App.4th 1510, 1540.)

Plaintiff alleges that defendants’ complaints about the Rockwell were made to other residents and HOA|
Board members. All Rockwell residents, including plaintiff, share a common interest in the HOA addressing}
construction defects. All Rockwell residents share a common contractual bond as members of the Rockwell
HOA and it is in their interest to discuss defects even in the absence of litigation. Plaintiff's allegation that)
defendants have taken measures to protect themselves from stray electrical cutrents and their efforts to correct
construction defects of all kinds throughout the Rockwell belie any notion of malice. Their motivation was to

fix the problems. The underlying conduct of reporting defects at the Rockwell is protected by the common

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MEMORANDUM OF POINTS AND AUTHORIT
ToD

UPPORT OF SPECIAL MOTION TO STRIKE SLAPP SuIT As
ENDANTS LISACom YD HW BW YR =

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purpose privilege.
2. Plaintiff's Causes of Action are Time Barred by the Applicable Statute of
Limitations
Each of plaintiff's causes of action are time barred by the application statute of limitations. Plaintiff}
makes specific allegations about stale conduct involving plaintiff as a mask to hide the true objective of this case,
which is to hinder the construction defect investigation. Plaintiff filed suit over one year after defendants
originally uttered the alleged defamatory statements in December 2016. [Complaint at {] 28].
i, Civil Harassment
Plaintiff filed suit on February 6, 2019, over two years after the alleged harassing behavior began in
December 2016. [Complaint at {| 24]. The statute of limitations for harassment is two years. (Code Civil Proc.
335.1.) To the extent plaintiff suffered the requisite “substantial emotional distress” to satisfy the statutory,
definition of harassment, that injury occurred in December 2016, over two years before plaintiff filed suit.
Plaintiff alleges that the harassing conduct began in December 2016, when defendants met plaintiff at his unit.
[Complaint at {| 12] Plaintiff then alleges that he permitted defendants’ access to his unit in January 2017, without
any further contact between the parties. Plaintiff does not identify any time after January 2017 when the patties
made contact. Plaintiff makes an allegation of behavior in January 2019, but this allegation is false. Plaintiff is
informed and believes defendants attempted to enter plaintiff's unit in January 2019. [Complaint at { 19]. Plaintiff}
was not present at this incident, but Plaintiff alleges that the Rockwell building manager was present during this|
allegedly harassing incident. [Complaint at § 19]. According to the Rockwell building manager, this January 2019
incident did not occur. Oh did not attempt to enter plaintiff's unit during a January 2019 inspection. Plaintiff]
most likely included the fictitious incident as an attempt to defeat the statute of limitations. [Oh Decl. at { 27|
Accordingly, the alleged harassment occurred in December 2016 and January 2017, over two years before}
plaintiff filed suit.
ii, Defamation/False Light
Plaintiff's defamation and false light claims are barred by the applicable one-year statute of limitations.
“When a false light claim is coupled with a defamation claim, the false light claim is essentially superfluous, and
stands or falls on whether it meets the same requirements as the defamation cause of action. (Eisenberg v. Alameda|

Newspapers, Inc. (1999) 74 Cal.App.4th 1359, 1385 fn. 13.) For a defamation claim, the period of limitations
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE SLAPP SuIT AS
TO DEFENDANTS LISAbegins at the time the defamatory statement is “published.” (Shively v. Boxanich (2003) 31 Cal.4th 1230, 1246-47).
Publication occurs when the defendant communicates the defamatory statement to a person other than the)
person being defamed. (Miller ». Collectors Universe, Inc. (2008) 159 Cal.App.4th 988, 998.) Subsequent publications}
do not create new causes of action because California had codified the single publication rule, which states that
“[njo person shall have more than one cause of action for damages for libel or slander or invasion of privacy or|
any other tort founded upon any single publication or exhibition or utterance.” (Civil Code § 3425,3.)

Here, plaintiff alleges that defendants first published the allegedly defamatory statements that portrayed)
him in a false light in December 2016, well over one year before plaintiff filed suit. Plaintiff alleges that Oh first]
began making the defamatory statements in December 2016. [Complaint at 4 28]. Plaintiff alleges that Oh
publicized blog postings concerning him or his unit. [Complaint at 29]. She did not. [Oh Decl. at {| 32] Plaintiff's
defamation claim concerning these statements accrued in December 2016, when the statements were originally
published. Plaintiff makes the additional allegation that defendant made the same defamatory statement again in|
January 2019, however, even if this incident occurred, plaintiff has but one cause of action for this statement)
that accrued in December 2016. Accordingly, plaintiff's defamation and false light causes of action fail pursuant
to the applicable one-year statute of limitations.

iii. Invasion of Privacy

The one-year statute of limitations found in Code of Civil Procedure section 340 applies to invasion o
privacy claims. (Cain v. State Farm Mut. Auto Ins, Co. (1976) 62 Cal.App.3d 310, 313,) Here, plaintiff alleges that
an invasion occurred over year before plaintiff filed his complaint on February 6, 2019. Plaintiff alleges that he|
gave defendants personal information in January and March 2017. [Complaint at {] 42]. Plaintiff goes on to allege|
that “later that same year” defendants disclosed plaintiff's personal information. It is unknown what constitutes
plaintiff's personal information in this case, but according to plaintiff the information was disclosed in 2017.
Plaintiff had one year from the 2017 disclosures to file suit on the alleged disclosures, but he did not file suit
until a full year had lapsed in 2019. Accordingly, the alleged invasion of privacy complained of by plaintiff is
barred by the one-year statute of limitations.

3. Plaintiff's Civil Harassment Cause of Action Lacks Merit Because the Alleged
Harassing Conduct was Cordial and Did Not Cause Plaintiff to Suffer
Substantial Emotional Distress

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE SLAPP SuIT As
TO DEFENDANTS LIseC ea Dn HM FF BW KY

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BRRRRREBK FSS eA ARE HH RS

Plaintiff's civil harassment allegations do not rise to the level of harassment because plaintiff's interaction|
with defendants was “cordial,” and thus would not cause substantial emotional distress. Further, Oh’s alleged
harassing conduct of “complaining” about defects at the Rockwell while serving on the ACC setved a legitimate
purpose. Code of Civil Pro. {527.6 defines “harassment” as “unlawful violence, a credible threat of violence, or
a knowing and willful course of conduct directed at a specific person that seriously alarms, annoys, or harasses
the person, and that serves no legitimate purpose.” The statute requires that the “course of conduct must be
that which would cause a reasonable person to suffer substantial emotional distress, and must actually cause
substantial emotional distress to the petitioner. (Code Civil Proc. §527.6(a)(3).) Harassment does not include the}
constitution right to petition the court to redress grievances. (Leydon v. Alexander (1989) 212 Cal.App.3d 1, 5.)
As to plaintiff's claims concerning the actual interactions between the patties, plaintiff describes a meeting with|
defendants in December 2016 as “cordial.” [Complaint at {J 12]. The subsequent inspections by experts for
both parties do not contain any allegations of harassing behavior, On the face of the complaint, plaintiff does
not allege any actual direct contact between the parties that plaintiff considers harassing. Statements by Oh as a)
concerned homeowner and as a member of the ACC about plaintiff's unit served the legitimate purpose o
fulfilling the ACC duties.

4. Plaintiffs Defamation/False Light Causes of Action Lack Merit

Plaintiffs defamation and false light claims do not have a likelihood of success on the merits as|
defendants did not act with the requisite malice. Plaintiff's suit depends on his known status as the COO 0
Build Group, the Rockwell builder. Plaintiff specifically alleges that defendants’ statements “defame Build)
Group,” and that the statements ate offensive to plaintiff only because he works for Build Group. [Complaint
at {| 17, 30]. Plaintiff claims the alleged statements are per se libel because the statements “harm plaintiffs
reputation and his business, Build Group.” [Complaint at {| 32]. This case is essentially a lawsuit by Build Group!
silencing, intimidating, and punishing two homeowners of the Rockwell who reported defects in the building;
that led to an estimated seven figure SB-800 construction defect arbitration complaint. For the statements to be
understood as libel against plaintiff, the listeners at the Rockwell would need to have special knowledge about}
the identity of plaintiff's employer. Plaintiffs complaint depends on his recognizable status within the building}
community; in other words, his role as a public figure.

///

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MEMORANDUM OF POINTS AND AUTHORITIES

UPPORT OF SPECIAL MOTION TO STRIKE SLAPP SuIT AsCera DA Hh eR YR eS

RON NR Ra
BueRm PR RF SF Se UA HAR HEH SKS

Plaintiff is a limited purpose public figure in this case. An ordinarily private figure may achieve a level of|
notoriety to become a public figure for limited purposes in “an individual voluntarily injects himself or is drawn
into a particular public controversy and thereby becomes a public figure for a limited range of issues.” (Gerty ».
Robert Welch, Inc. (1974) 418 U.S. 323, 351.) A public issue is one that is debated publicly and has ramifications
for nonpatticipants. (Copp v. Paxton (1996) 52 Cal.App.4th 829, 844.) It is not necessary for the plaintiff to actually
achieve notoriety in the public debate; it is sufficient that “[a plaintiff] attempts to thrust himself into the public}
eye” (Rudnick v. McMillan (1994) 25 Cal.App.4th 1183, 1190) The alleged defamation must be “germane to the
plaintiff's participation in the controversy.” (Copp, supra, 52 Cal.App.4th at 844.) Here, plaintiff and Build Group
are public figures for the limited purposes of the Rockwell community’s efforts to correct defects in the
Rockwell. Plaintiffs defamation claim is about Build Group. Build Group is in the special position of being the
building general contractor. When the residents discuss defects at the Rockwell, the resident are discussing the}
work done by Build Group. Plaintiff has voluntarily entered the public debate about correcting defects at the|
Rockwell by making himself the representative of Build Group. This lawsuit is primarily about plaintiff resisting)
efforts to conduct a construction defect investigation from within. Plaintiff has assumed the position of a pariah)
at the Rockwell, characterizing complaints about building defects as a personal attack on him. Plaintiff has)
elevated himself to become the personification of the Rockwell and his notoriety as such is required for the|
listener to understand that plaintiff is being defamed by the statements. A complaint against the building is now
a complaint against plaintiff.

It should be noted when evaluating the likelihood of success of plaintiff's defamation claim that the
complaint is ambiguous as to the exact nature of all the defamatory statements. At times, plaintiff describes the
statements as mentioning plaintiff expressly. [Complaint at 31]. However, the quoted statements included by
plaintiff do not mention plaintiff expressly. [Complaint at {| 16]. It is difficult for defendants to fully examine]
the merits of plaintiff's claims when the alleged defamatory statements are unknown.

i, The Alleged Statements Lack Malice

Asa limited purpose public figure, plaintiff must show actual malice by defendants. (Copp, 45)
Cal.App.4th at 846.) Actual malice requires that the defamatory statement is made “with knowledge that it was
false or with reckless disregard of whether it was false or not.” (New York Times Co. Sullivan (1964) 376 U.S. 254,

280.) Perhaps to embarrass defendants, plaintiff describes how defendants have installed aluminum foil on|

3CIAL MOTION TO STRIKE SLAPP SuIT asCoC Oe YN DAH BF BW NY

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stairwells near plaintiff's unit, on the walls of defendants’ unit, and in defendant’s car in “an effort to protect
herself and others from the electromagnetic fields of which she complains.” [Complaint at {| 20]. Plaintiff's
allegations describe defendants as people who truly believed that plaintiffs condominium was suffering from an|
electrical defect. Far from thinking their statements are false, by plaintiff's own allegations it is clear defendants}
believe what they say. Defendants have not exhibited malice.
iii. Defendants Made Reasonable Efforts to Determine the Truth of the
Statements

Defendants have made reasonable efforts to determine the truth of their statements. Plaintiff's civil]
harassment claim is in fact defendants’ efforts to show that their statements have merit. Defendants have hired
experts at their own personal expense to measure electromagnetic Field (“EMF”) in the building.

Moreover, truth is a defense to a defamation claim. “To establish the defense of truth—ie., that the
statement is not false—defendants do not have to prove the ‘literal truth’ of the statement at issue. (Hughes ».
Hughes (2004) 122 Cal. App. 4th 931, 936 [ating, Emde v. San Joaquin County Central Labor Council (1943) 23 Cal.2d
146, 160].) Defendants’ statements were essentially that there are problems with various aspects of the
Rockwell’s construction, including the electrical systems. The experts confirmed EMFs resulting from a wiring
error in plaintiffs unit. [Oh Decl. at 8, Exhibit 4]. An investigation revealed a pinched wire in plaintiff's porch|
outlet. Defendants made reasonable efforts to determine the truth of their statements and were proven right.
Further, the uncovering of over 200 defects by the SB-800 investigation validates their concerns about multiple]
construction problems through the building. [Oh Decl. at { 31,|. Defendants referenced plaintiffs’ unit as an
example of at least one known confirmed problem that was fixed - plaintiff's porch outlet cover pinched an
electrical wire.

5. Plaintiff's Invasion of Privacy Claim Fails

Plaintiff's invasion of privacy claim has no merit as no private information was released and plaintiff}
consented to defendants’ entry into his unit. Plaintiff alleges public disclosure of private facts because according)
to plaintiff he “submitted personal information concerning plaintiff's condo” to defendants, which was disclosed]
by defendants to other residents of the Rockwell. [Complaint at {{{] 42-43]. The elements of a public disclosure)
of private facts claim are “(1) public disclosure (2) of a private fact (3) which would be offensive and

objectionable to the reasonable person and (4) which is not of legitimate public concern.” (Moreno v. Hanford

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF SPECIAL MOTION TO STRIKE SLAPP. SUIT AS
TO DEFENDANTS Lis/SB & N

3

Sentinel, Inc. (2009) 172 Cal.App.4th 1125, 1129-1130.)
i, No private information was released

The Complaint is not clear as to what private facts plaintiff did not want disclosed to the public. The
section of the complaint with the specific cause of action for invasion of privacy only refers generally to
“plaintiff's personal information” with no further description whatsoever. [Complaint at {] 40-45]. A review off
the facts common to all claims turns up no further description of the “personal information” defendants
allegedly disclosed to other. ‘The only fact alleged by plaintiff that he may wish were private is that the Rockwell]
contains defects.

ii, Claim Lacks Merit Because Plaintiff Consented to the Alleged Invasion

Plaintiffs claim for invasion of privacy fails because he permitted defendants’ access to his unit and|
voluntarily submitted information to defendants. An invasion must be “unconsented-to.” (Sha/man v. Group W
Productions, Inc. (1998) 18 Cal.4th 200, 230.) The tort of intrusion “encompasses unconsented-to physical]
intrusion into the home, hospital room or other place the privacy of which is legally recognized, as well as|
unwarranted sensory intrusions such as eavesdropping, wiretapping, and visual or photographic spying.”
(Shulman, supra, 18 Cal.Ath at 230.)

Here, plaintiff admits that he consented to the alleged invasion. Defendants’ inspections of plaintiff's
unit cannot be an invasion because plaintiff states that he “permitted” the inspections. [Complaint at {ff] 14-15}.
To the extent such information was transmitted, plaintiff states that he voluntarily submitted the information to}
defendants. [Complaint at 42]. Defendants did not conduct an invasion to receive information.
IV. CONCLUSION

Based on the foregoing the Court should grant defendants’ Special Motion to Strike. Plaintiff's
allegations fall within activity protected by the SLAPP statute. Plaintif