Slapping and Mootness - Colyear v Rolling Hills Community Ass’n (2017) 9 CA5th 119

A planned residential community had a sequence of applicable covenants, conditions, and restrictions (CC&Rs) since 1936. The original CC&Rs allowed the homeowners association (HOA) to trim trees on a homeowner’s property to protect the view of another homeowner. The second set of CC&Rs applicable to the homeowners at issue did not contain precisely the same rights. In 1997, however, the HOA passed a resolution to set up a procedure by which a homeowner could seek view restoration through the HOA. The community spread to the entire city of Rolling Hills and it too had an ordinance that created a procedure for view abatement disputes.

One homeowner (Liu) applied to the HOA for view restoration against two of his neighbors, seeking to have some of their trees trimmed. One of the targeted homeowners (Col-year) sued the HOA and Liu, correctly arguing the tree-trimming covenant did not expressly encumber his property and that the application clouded his title by seeking so to burden his property. Liu dropped his HOA application and then filed a special motion to strike Colyear’s complaint under CCP §425.16 (the anti-SLAPP statute). The trial court granted the motion and the court of appeal affirmed.

The tree-trimming application could be construed as a statement made in connection with “an issue of public interest” under CCP §425.16(e)(4).The court dismissed Col-year’s argument that the issue was private, not public. The term “public interest” should be construed broadly to include private conduct that affects a community—here, the entire city of Rolling Hills. An ongoing dispute between members of an HOA should fall under the anti-SLAPP statute to protect and encourage community “participation in matters of public significance.” 9 CA5th at 131, quoting Du Charme v International Bhd. of Electrical Workers (2003) 110 CA4th 107, 119. Since 2002, there had been ongoing discussions and disputes among the HOA board and the association members about whether the tree-trimming covenants applied to lots that were not expressly burdened by them and whether the HOA could broadly enforce those covenants. Furthermore, Liu had applied under the procedure set up by the HOA and his statements closely related to the asserted public interest that Colyear and other community members had challenged.

The gravamen of the clouded title claim in Colyear’s complaint was that Liu had filed an application using an invalid HOA process seeking to encumber and cloud his title. Thus, “the only injury-producing conduct” mentioned in the complaint was Liu’s “petitioning act”—a protected activity. 9 CA5th at 135 (emphasis in original).

The quiet title claim was mooted when Liu withdrew his dispute resolution application with the HOA before any action was taken. Because no adverse claim existed against Colyear, and because a court could not grant any effective relief against Liu, Colyear failed to demonstrate a probability of prevailing on his complaint—a requirement under CCP §425.16.

COMMENT: On April 11, 2017, Colyear filed a petition for review with the California Supreme Court (S241201)—Eds.

THE EDITOR’S TAKE: This decision that Colyear’s lawsuit should be SLAPPed because the underlying action by Liu had already been withdrawn may or may not have been correct, but regardless, it is regrettable that the rest of us have been denied the opportunity to learn more about the scope of restrictive covenants that may apply differently to different parcels in a subdivision based on differences in their language or time of creation. Even though we may be nonparties, as attorneys and members of the public we are interested in how questions of that sort are answered, thereby making them matters of public interest for SLAPP purposes.

The 1936 CC&Rs covered 84 lots, although not the three parcels involved here. The 1944 amendment to the CC&Rs, which added 14 lots, did include the three lots at issue, but contained substantively different provisions. How are these 14 new owners affected? Are they burdened, benefited, and suable by the original owners the same as those original 84 covenanting parties, or is litigation between the 14 and the 84 treated differently from 84 against 84, or 14 against 14? Can the original covenants be enforced against newcomers who may never have agreed to them? Can the 14 (or 84) enforce the original covenants against the 84, but not against the 14? Do they enforce the old covenants against the 84 or the new covenants against the other 14? Are new owners benefited or bound differently? These covenants are contracts, meaning that consent by the burdened parties must be shown, or consent shown of their predecessors and a subsequent “running with the lands”—which may be expensive and hard to do in a subdivision that is large or fast-growing.

These questions may get easier or instead more difficult to answer when (as here), the subdivision, originally bound by CC&Rs (contracts), matures into a municipal community, regulating itself by ordinances rather than by CC&Rs (and which may or may not displace the old covenants). Now, former requirements of unanimous consent (by all contracting parties) may have been superseded and given way to the easier principle of majority rule, or these new ordinances may instead be deemed to remain inferior to the original covenants and the uncertain constitutional protections against ex post facto laws.

Liu’s demand that Colyear trim trees on his property may succeed or fail, but we outsiders we will have to wait until other neighbors inside the development get angry enough about their own (and their neighbors’ own) trees to induce them to sue each other in nonSLAPP contexts. —Roger Bernhardt

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40 Real Property Law Reporter 70 (Cal CEB May 2017), © The Regents of the University of California, reprinted with permission of CEB.