BEVERLY GLEN PARK HOMEOWNER'S ASSOCIATION, INC. Defendant and Respondent.

B205934

Court of Appeals of California, Second Appellate District, Division Seven

 April 22, 2009

Not to be Published in the Official Reports

 The Law Office of Alan Goldberg and Alan M. Goldberg and Law Office of Raymond R. Hassanlou and Raymond R. Hassanlou for Plaintiff and Appellant.

Kulik, Gottesman, Mouton & Siegel, Glen L. Kulik and Daniel L. Reback for Defendant and Respondent.

PERLUSS, P. J.

Fereshteh Ariz, a member of the board of directors of the Beverly Glen Park Homeowner's Association, Inc. (Association), appeals from the trial court's order granting the Association's special motion to strike pursuant to Code of Civil Procedure section 425.16,1 dismissing the Association from Ariz's action for defamation and related tort claims and awarding attorney fees to the Association. We affirm.

FACTUAL AND PROCEDURAL BACKGROUND

1. The Access Door Dispute and the Petition To Remove Ariz from the Association Board of Directors

Ariz owns a condominium in a 220-unit common interest development known as Beverly Glen Park and served as vice president of the Association's board of directors and chair of its architecture and landscape committee. A dispute apparently arose between Ariz and her neighbors David and Robin Curtis regarding access to Ariz's air conditioning unit for servicing by way of an easement that purportedly existed over the Curtises' property and through a trapdoor in a fence separating their two properties.

As the Ariz-Curtis dispute intensified,2 the Curtises circulated two letters (dated August 28, 2007 and September 5, 2007) and a "statement of reasons" (dated August 23, 2007) to other members of the Association as part of a campaign to have Ariz removed from the Association's board of directors. The materials accused Ariz of abusing her position as chair of the architecture and landscape committee, lying to other members of the board and pursuing her and her family's interests, not the Association's, when acting as a member of the board and chair of the architecture and landscape committee. In addition, the Curtises obtained and circulated a sworn statement from Ronald and Sheila Grueskin, the prior owners of the Curtises' condominium unit, that supported their description of the events preceding creation of the access door between the two properties.

The Association's bylaws provide a special meeting of the membership (that is, the individual condominium owners) may be called upon request of one-fifth (20 percent) of the voting members. In response to the Curtis letters, which asked the recipients to request a special meeting, 49 owners (slightly more than 22 percent of the 220 owners) petitioned the board to schedule a special meeting for the membership to vote on recalling Ariz. A board meeting was held on September 11, 2007 to review and respond to the petitions. At the meeting Ariz, who attended with her two attorneys, was permitted to make a brief statement. She maintained the charges against her in the Curtis and Grueskin letters were false and defamatory and asserted the signatures on the petitions had been gathered through fraudulent methods and were invalid.

The board voted to call a special meeting for the membership to be held on October 30, 2007. In addition, the board voted to immediately remove Ariz from her position as vice president of the board and as chair of the architecture and landscape committee.

A total of 99 homeowners were represented at the October 30, 2007 special membership meeting, either by attending in person or having completed a secret ballot on the recall question. Because a quorum (a minimum of 111 homeowners—50 percent of the membership) was not present, no action was taken. Those homeowners present voted not to reconvene the special meeting at a future date.

2. Ariz's Lawsuit and Request for Injunctive Relief

On October 15, 2007, two weeks before the date set for the special membership meeting, Ariz filed a complaint for damages against the Curtises, the Grueskins, the Association and Leonard Siegel, the Association's legal counsel, asserting causes of action against all defendants for defamation, intentional infliction of emotional distress, negligent infliction of emotional distress, negligence and declaratory relief; against the Curtises only for trespass and specific performance; and against the Association only for breach of fiduciary duty and injunctive relief (seeking to enjoin the October 30, 2007 special membership meeting and any future meeting to remove Ariz from the Association board). In her claims against the Association Ariz alleged, in essence, the Association was liable in tort for republishing the defamatory Curtis and Grueskin letters at the September 11, 2007 board meeting and the Association had acted wrongfully in scheduling the special membership meeting without investigating the accusations in the letters or determining the validity of the signatures on the petitions calling for the special recall meeting.

On October 25, 2007 Ariz filed an ex parte application for temporary restraining order and request for order to show cause, seeking to block the special meeting scheduled for October 30, 2007. The trial court denied both the application and the request for an order to show cause.

On November 8, 2007 Ariz filed a first amended complaint, once again naming the Curtises, the Grueskins and the Association as defendants, omitting attorney Siegel and adding instead Andrew Kaplan, president of the Association board. The first amended complaint alleged the same nine causes of action as had the original complaint. Although the October 30, 2007 special membership meeting date had passed without any action, the request for injunctive relief sought to enjoin any future meeting to remove Ariz from the board.

3. The Special Motion to Strike

In response to the amended complaint the Association demurred and filed a special motion to strike pursuant to section 425.16, arguing in both filings it was obligated by the Corporations Code and its bylaws to schedule a special membership meeting to consider recalling Ariz after being presented with a petition signed by more than 20 percent of its membership and any statements made at the board meeting or in connection with the recall process were absolutely privileged under Civil Code section 47, subdivision (b). Ariz filed a combined opposition to the demurrer and special motion to strike, including a nine-page declaration responding to the various accusations against her in the Curtis and Grueskin letters and describing the September 11, 2007 board meeting to consider the petitions for a special membership meeting. Ariz also submitted statements from several homeowners declaring they had received the August 23, 2007 Curtis letter and the August 20, 2007 Grueskin letter in their mail boxes "in the normal course of business"; they had read the letters and believed they were statements of fact, not opinion; and they knew the October 30, 2007 special meeting had been called by the Association board based on the Curtis and Grueskin letters.

The trial court heard oral argument on the special motion to strike at a hearing on February 8, 2008. Following argument, and in conformity with its tentative ruling, the court granted the motion.3 In a written order signed February 15, 2008 the court found Ariz's causes of action against the Association arose out of written and oral statements made in a place open to the public or a public forum in connection with an issue of public interest. In addition, the court found Ariz was unable to demonstrate a probability of prevailing on the merits "in that the Association's statements and conduct were privileged and in compliance with its legal obligations under the Association Bylaws and Sections 7510(e) and 7511(c) of the Corporations Code." The court also granted the Association's request for attorney fees pursuant to section 426.16, subdivision (c), with the amount of fees and costs to be determined by a separately noticed motion.

DISCUSSION

1. Section 425.16: The Anti-SLAPP Statute

Section 425.16 provides, "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States or California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).)4 In ruling on a motion under section 425.16, the trial court engages in a two-step process. "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken `in furtherance of the [defendant]'s right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers `the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.'" (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 (Equilon Enterprises).)

In terms of the so-called threshold issue, the moving party's burden is to show "the challenged cause of action arises from protected activity." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056; City of Los Angeles v. Animal Defense League (2006) 135 Cal.App.4th 606, 616, fn. 10.) "[T]he statutory phrase `cause of action . . . arising from' means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech. [Citation.] In the anti-SLAPP context, the critical point is whether the plaintiff's cause of action itself was based on an act in furtherance of the defendant's right of petition or free speech. [Citations.] `A defendant meets this burden by demonstrating that the act underlying the plaintiff's cause [of action] fits one of the categories spelled out in section 425.16, subdivision (e) . . . .'" (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.)

Once the defendant establishes the statute applies, the burden shifts to the plaintiff to demonstrate a "probability" of prevailing on the claim. (Equilon Enterprises, supra, 29 Cal.4th at p. 67.) In deciding the question of potential merit, the trial court properly considers the pleadings and evidentiary submissions of both the plaintiff and the defendant, but may not weigh the credibility or comparative strength of any competing evidence. (Taus v. Loftus (2007) 40 Cal.4th 683, 713-714 (Taus ); Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 821.) The question is whether the plaintiff presented evidence in opposition to the defendant's motion that, if believed by the trier of fact, is sufficient to support a judgment in the plaintiff's favor. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) Nonetheless, the court should grant the motion "`if, as a matter of law, the defendant's evidence supporting the motion defeats the plaintiff's attempts to establish evidentiary support for the claim.'" (Taus, at p. 714; Wilson, at p. 821; Zamos, at p. 965.)

"`The defendant has the burden on the first issue, the threshold issue; the plaintiff has the burden on the second issue.'" (Kajima Engineering & Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 928 (Kajima).) We review the trial court's rulings independently under a de novo standard of review. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325; Rusheen v. Cohen, supra, 37 Cal.4th at p. 1055.)

2. Ariz's Complaint Arises from the Association's Protected Speech and Petitioning Activity

To satisfy the initial burden on a special motion to strike, the moving party must demonstrate the conduct that forms the basis for the challenged causes of action was an act in furtherance of the right of petition or free speech. (City of Cotativ. Cashman, supra, 29 Cal.4th at p. 78; Equilon Enterprises, supra, 29 Cal.4th at p. 67.) There is no question that convening a special board meeting to consider the petitions to recall Ariz signed by more than 20 percent of its members and setting a special membership meeting to vote on the recall—the conduct that underlies each of the seven causes of action against the Association in Ariz's amended complaint—were actions taken in furtherance of the Association's exercise of its (and its members') rights of petition and free speech. Indeed, in her opening brief on appeal Ariz describes the gravamen of her suit against the Association as one for defamation (that is, speech-related) based on her claim that, in conducting the September 11, 2007 board meeting and then setting the October 30, 2007 special membership meeting, the Association "continued the publication of, and republished, the defamation" contained in the Curtis and Grueskin letters.

Whether that speech and petitioning activity was simply part of a private property dispute between neighbors or took place "in connection with a public issue" within the meaning of section 425.16, subsections (b) and (e)(3) and (4), is a more difficult question. In Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106 the Supreme Court held a moving party relying on section 425.16, subdivisions (e)(1) and (e)(2), need establish only that the challenged statement was made within or in connection with an official proceeding whether or not it pertained to an issue of public significance: "[P]lainly read, section 425.16 encompasses any cause of action against a person arising from any statement or writing made in, or in connection with an issue under consideration or review by, an official proceeding or body." "[A] defendant moving to strike a cause of action arising from a statement made before, or in connection with an issue under consideration by, a legally authorized official proceeding [under subdivisions (b)(1) and (2)] need not separately demonstrate that the statement concerned an issue of public significance." (Id. at pp. 1113, 1123.) A defendant like the Association that seeks to strike a cause of action that arises from protected conduct described in section 425.16, subdivision (e)(3) or (e)(4), however, must demonstrate the matter concerns a public issue or an issue of public interest. (Briggs, at pp. 1117-1118; see also DuPont Merck Pharmaceutical Co. v. Superior Court (2000) 78 Cal.App.4th 562, 567.)

a. The public forum question

As noted above, section 425.16, subdivision (e)(3), defines protected speech or petitioning activity to include statements or writings made in connection with an issue of public interest in a place open to the public or a public forum. Ariz and the Association devote significant portions of their appellate briefs debating whether the September 11, 2007 board meeting was open to the Association's membership and thus qualified as "a place open to the public or a public forum" within the meaning of section 425.16, subdivision (e)(3). We need not resolve the dispute. Section 425.16, subdivision (e)(4), sometimes referred to as a "catch-all" provision (see, e.g., Lieberman v. KCOP Television, Inc. (2003) 110 Cal.App.4th 156, 164), identifies as protected "any other conduct" in furtherance of the exercise of the rights of petition or free speech in connection with an issue of public interest. "[C]onduct" in subdivision (e)(4) has been broadly construed to include not only expressive conduct such as demonstrations or picketing but also pure speech, even though that interpretation makes subdivision (e)(3), as in this case, essentially superfluous. (Carver v. Bonds (2005) 135 Cal.App.4th 328, 342-343; see Vogel v. Felice (2005) 127 Cal.App.4th 1006, 1015 [observing that challenges to "pure speech" would always involve "conduct" within the meaning of § 425.16, subd. (e)(4)].) Because subdivision (e)(4) also includes purely private communications that concern a public issue (see, e.g., Wilbanks v. Wolk (2004) 121 Cal.App.4th 883, 897; Averill v. Superior Court (1996) 42 Cal.App.4th 1170, 1175), whether or not the Association's challenged conduct occurred in a public forum is without consequence.

b. The public issue question

Section 425.16 does not define "public issue" or "issue of public interest," and "it is doubtful an all-encompassing definition could be provided." (Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1132.) However, "`[p]ublic interest' within the meaning of the anti-SLAPP statute has been broadly defined to include, in addition to government matters, `"private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a government entity."'" (Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1468 (Ruiz); compare Rivero v. American Federation of State, County and Municipal Employees, AFL-CIO (2003) 105 Cal.App.4th 913, 924 [statement concerning supervision of a staff of eight custodians was not an issue of public interest] with Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468, 479 ["`"[m]atters of public interest . . . include activities that involve private persons and entities, especially when a large, powerful organization may impact the lives of many individuals"'"].)

In Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 119, the Court of Appeal held a matter may be of public interest for the purpose of section 425.16 even if interest in the communication is not general but is limited to a private group, organization or community—a "definable portion of the public"—provided the activity occurs in the context of an ongoing controversy or discussion. Similarly, in Damon v. Ocean Hills Journalism Club, supra, 85 Cal.App.4th at page 479, the court held statements published in a homeowners association newsletter concerning the manner in which the organization would be managed pertained to issues of public interest within the homeowners' community (a group of more than 3,000 individuals). Indeed, the court emphasized the statements at issue in that case were made in connection with board elections and recall campaigns and quoted from cases holding "`"[p]ublic discussion about the qualifications of those who hold or who wish to hold positions of public trust presents the strongest possible case for applications of the safeguards afforded by the First Amendment."'" (Ibid.) In Ruiz, supra, 134 Cal.App.4th at pages 1468 to 1469, Justice Fybel writing for Division Three of the Fourth District held that private communications (letters) from a homeowners association attorney to a discontented association member concerning activities of the association's architectural committee affected the governance of the association itself and would be of interest to all 500-plus association members, "a large enough group to come within the requirements of Du Charme."

Unlike the homeowners associations in Damon, which had 3,000 members, and Ruiz, which had 500-plus members, the Association has only 220 condominium-owner-members. Is that "limited, but definable portion of the public" sufficiently large to "warrant[] protection by a statute that embodies the public policy of encouraging participation in matters of public significance"? (See Du Charme v. International Brotherhood of Electrical Workers, supra, 110 Cal.App.4th at p. 119.) Although the size of the homeowners' community potentially interested in the Association's actions in connection with the petitions to recall Ariz is slightly smaller than the group involved in Ruiz, in light of the Legislature's express directive to broadly construe the anti-SLAPP statute to encourage continued participation in matters of public significance (§ 425.16, subd. (a)), we have no difficulty concluding that the Association's activities surrounding the recall election fall within the ambit of the section 425.16, subdivision (e)(4), and that the Association met its threshold burden on the special motion to strike.

3. Ariz Failed To Establish a Probability of Prevailing on Her Claims Against the Association

The gravamen of Ariz's complaint is that, by acting on the charges against Ariz contained in the Curtis and Grueskin letters (removing her as chair of the architecture and landscape committee and vice president of the board and calling a special membership meeting to consider her recall) without first investigating the substance of the charges or declaring the petition signatures obtained as a result of the letters invalid, the Association "ratified and republished the defamatory remarks." In fact, although Ariz's first amended complaint asserts a variety of legal claims against the Association, in the trial court and again on appeal she argues only that she has demonstrated a probability of prevailing on the merits of her cause of action for defamation and, in connection with that claim, established that the Association's actions were not privileged as a matter of law. Ariz's pleadings and evidentiary submissions fall well short of establishing the requisite probability of success. (See Equilon Enterprises, supra, 29 Cal.4th at p. 67; Taus v. Loftus, supra, 40 Cal.4th at pp. 713-714.)

a. Publication

As a threshold matter, under the facts as described by Ariz in her declaration in opposition to the special motion to strike, it is by no means clear the Association published or republished the defamatory comments allegedly contained in the Curtis and Grueskin letters, an essential element of Ariz's claim. (See Barrett v. Rosenthal (2006) 40 Cal.4th 33, 45 ["[p]ublication is a necessary element of all defamation claims"].) Although "publication" includes any repetition of the defamatory statements (ibid.), there must be some communicative act to a third party for the defendant's conduct to be actionable. (See Ringler Associates Inc. v. Maryland Casualty Co. (2000) 80 Cal.App.4th 1165, 1179-1180 ["Publication, which may be written or oral, is defined as a communication to some third person who understands both the defamatory meaning of the statement and its application to the person to whom reference is made. . . . Reprinting or recirculating a libelous writing has the same effect as the original publication."]; accord, Gilbert v. Sykes (2007) 147 Cal.App.4th 13, 27; see 5 Witkin, Summary of Cal. Law (10th ed. 2005) Torts, § 529, p. 782; Rest.2d Torts, § 577(1) ["[p]ublication of defamatory matter is its communication intentionally or by a negligent act to one other than the person defamed"].)

Ariz's contention that, by acting in reliance on the defamatory charges in the letters without first independently investigating them and determining their accuracy, the Association effectively republished the statements is misplaced. The actions taken by the board standing alone, although arguably the product of tortious communications by others, are not themselves communicative acts.5 The notices sent to homeowners by the Association advising its members of the actions of the board and the scheduling of the special membership meeting did not attach the letters or quote from or paraphrase the charges made against Ariz and, in fact, expressly stated the recall petition and related letters had been circulated independently by the Curtises "with absolutely no involvement from the Board." Whatever implicit ratification of the charges may have occurred, there was no "republication" by the Association and, accordingly, no actionable defamation. (Cf. Shively v. Bozanich (2003) 31 Cal.4th 1230, 1245 ["each person who takes a responsible part in a publication of defamatory matter may be held liable for the publication"]; Matson v. Dvorak (1995) 40 Cal.App.4th 539, 549 [because evidence, even if taken as true, did not indicate defendant "had a responsible part in the publication of the alleged libel, the [trial] court did not err in ruling that [plaintiff] has failed to demonstrate a probability of prevailing on his libel claim"].)

b. Privilege

Even if we were to conclude the Association's actions in response to the petitions for Ariz's recall from the board constituted a republication of the allegedly defamatory statements in the Curtis and Grueskin letters, however, the record on the motion to strike established the challenged acts were privileged.

"The duties and powers of a homeowners association are controlled both by statute and by the association's governing documents." (Ostayan v. Nordhoff Townhomes Homeowners Assn., Inc. (2003) 110 Cal.App.4th 120, 127.) "The statutory duties of homeowners associations are set forth in the Davis-Stirling Common Interest Development Act (Civ. Code, § 1350 et seq.) and the Nonprofit Mutual Benefit Corporation Law (Corp. Code, § 7110 et seq.)." (Ibid.) Pursuant to Corporations Code section 7510, subdivision (e), "special meetings of the members [of a homeowners association] for any lawful purpose may be called by 5 percent or more of the members." The Association's bylaws provide a special meeting of the membership may be called upon request of one-fifth of the voting members.

Once the governing threshold has been satisfied—here, the number of signatures obtained met the requirements of both the statute and the bylaws and a sufficient number were verified as genuine—the board or an authorized official of the association must schedule the special meeting not less than 35 nor more than 90 days after receipt of the request. (Corp. Code, § 7511, subd. (c) ["[u]pon request in writing . . . by any person (other than the board) entitled to call a special meeting of members, the officer [to whom the request was addressed] forthwith shall cause notice to be given to the members entitled to vote that a meeting will be held at a time fixed by the board not less than 35 nor more than 90 days after the receipt of the request"].) Setting the meeting is mandatory: Nothing in these statutory provisions authorizes, let alone requires, the board to question the motives of the homeowners who have requested the special meeting or to determine whether the basis for the request (if any) has merit. The only requirement, as was stated in the Association's notice to homeowners, is that the board or its designee verify the genuineness of the signatures on the petitions.

In light of this statutory framework any republication of the allegedly defamatory statements in the Curtis and Grueskin letters in connection with the September 11, 2007 board meeting or the notices subsequently sent to condominium owners to advise them of the board's actions or the upcoming membership meeting to consider Ariz's recall plainly implicates the common-interest privilege established by Civil Code section 47, subdivision (c)(1).6 That section provides, "A privileged publication or broadcast is one made: [¶] . . . [¶] (c) In a communication, without malice, to a person interested therein, (1) by one who is also interested . . . ."

A defendant generally bears the initial burden of establishing the statement in question was made on a privileged occasion; thereafter, the burden shifts to the plaintiff to establish the statement was made with malice. (See, e.g., Taus, supra, 40 Cal.4th at p. 721; Lundquist v. Reusser (1994) 7 Cal.4th 1193, 1202.) Based on the evidence presented on the motion to strike and applying well-established California law, there can be no question the Association's allegedly defamatory republication of the charges against Ariz to other members of the homeowners association falls within the reach of this statutory common-interest privilege.7 (See Taus, at p. 721 [statement made by psychology professor and author at a professional conference attended by other mental health professionals that was related to the subject of the conference falls within the reach of the common-interest privilege]; Lundquist, at p. 1204 ["[t]he parties do not dispute that the allegedly defamatory statements at issue in the present case, made by defendants at a seminar to persons sharing a common interest in horse breeding, were made upon a `privileged occasion' for purposes of the common-interest privilege"]; Katz v. Rosen (1975) 48 Cal.App.3d 1032, 1037 [common-interest privilege applies to letter sent by defendant to local bar association complaining of plaintiff attorney's conduct].) Accordingly, Ariz bore the burden in opposing the motion to strike "of establishing a prima facie case that these statements were made with "`"[a]ctual malice."'" (Taus, at p. 721.)

Civil Code section 48a, subdivision (4)(d), defines "actual malice" as "that state of mind arising from hatred or ill will toward the plaintiff . . . ." "In the context of communication privileges, malice has been described as `a state of mind arising from hatred or ill will, evidencing a willingness to vex, annoy or injure another person.'" (Hassan v. Mercy American River Hospital (2003) 31 Cal.4th 709, 718; accord, Lundquist v. Reusser, supra, 7 Cal.4th at p. 1204.) "`"The malice necessary to defeat a qualified privilege is `actual malice' which is established by a showing that the publication was motivated by hatred or ill will toward the plaintiff or by a showing that the defendant lacked reasonable grounds for belief in the truth of the publication and therefore acted in reckless disregard of the plaintiff's rights (citations)."'" (Taus, supra, 40 Cal.4th at p. 721; see Hassan, at p. 719.)

Although Ariz arguably made an adequate showing the Curtises' circulation of their letters and the recall petition was motivated by ill will toward her (based on Ariz's role in the effort to remove David Curtis from the board, as well as their private property boundary dispute), the evidence presented in the trial court on the motion to strike clearly is insufficient to establish a prima facie case of actual malice as to the Association, that is, to establish the Association, in responding to the request by 49 owners for a special membership meeting, acted out of hatred or ill will toward Ariz or lacked a reasonable basis for believing the actions it took were appropriate. (Cf. Lundquist v. Reusser, supra, 7 Cal.4th at p. 1206, fn. 12 ["[t]he `good faith' requirement distinguishes a conditional (or `qualified') privilege from an absolute one"].) As discussed, once the board verified the signatures on the petitions were genuine (as all but one were), it was obligated by statute to call the membership meeting. And Ariz concedes the board meeting was conducted in consultation with, and based upon the advice of, the Association's counsel (who she had initially named as a defendant in her lawsuit). Thereafter, the notices sent to other condominium owners regarding the upcoming meeting made plain both that the Curtis letters were not authorized by the board and that all parties would have an opportunity to present their version of events at the meeting itself.

Ariz attempts to support her claim of malice only by asserting the Association was "duped" by the Curtises and arguing, had the board conducted a good faith investigation of the charges contained in the letters before acting, it would have been able to determine they were false. The lack of any board investigation under the circumstances of this case, however, simply is not affirmative proof the Association was motivated by ill will or bad faith in responding as it did to the petitions to recall Ariz. (Cf. Viner v. Sweet (2004) 117 Cal.App.4th 1218, 1229 [absence of evidence supporting a proposition "does not constitute affirmative evidence of the contrary proposition"].)8 In sum, the circumstances relied upon by Ariz fall far short of providing an adequate basis for finding the Association's "republication" of the allegedly defamatory letters was made with actual malice. Accordingly, we conclude Ariz failed to establish a prima facie case with regard to her cause of action for defamation against the Association.

c. Intentional infliction of emotional distress

Finally, although Ariz fails to address her other tort claims on appeal, to the extent she asserts the Association's actions in removing her as chair of the board's architecture and landscape committee and scheduling a membership meeting to consider her recall based on the Curtis and Grueskin letters establish a prima facie case of intentional infliction of emotional distress, this claim also fails to survive the second step of the section 425.16 analysis. Extreme and outrageous conduct, an essential element of the tort (see Cervantez v. J.C. Penny Co. (1979) 24 Cal.3d 579, 593; Conley v. Roman Catholic Archbishop (2000) 85 Cal.App.4th 1126, 1133), is behavior "`so extreme as to exceed all bounds of that usually tolerated in a civilized community.'" (Potter v. Firestone Tire & Rubber Co. (1993) 6 Cal.4th 965, 1001.) "`"[I]t is for the court to determine, in the first instance, whether the defendant's conduct may reasonably be regarded as so extreme and outrageous as to permit recovery."'" (Fowler v. Varian Associates, Inc. (1987) 196 Cal.App.3d 34, 44.) Even assuming the Association board should have undertaken some investigation of the charges contained in the Curtis and Grueskin letters before acting—a rather questionable assumption—as alleged by Ariz, the steps taken by the board with respect to internal management affairs constituted no more than nonactionable insults, indignities or "petty oppressions." (See, e.g., Cochran v. Cochran (1998) 65 Cal.App.4th 488, 496 ["the tort does not extent to `mere insults, indignities, threats, annoyance, petty oppressions or other trivialities"].)

4. The Trial Court Properly Awarded the Association Its Attorney Fees

Section 425.16, subdivision (c), provides, "In any action subject to subdivision (b), a prevailing defendant on a special motion to strike shall be entitled to recover his or her attorney's fees and costs. . . ." The award of attorney fees to the party bringing a successful special motion to strike under section 425.16 is "mandatory." (Ketchum v. Moses (2001) 24 Cal.4th 1122, 1131.)

Although on page six of its memorandum of points and authorities the Association misidentified the relevant statute as "§ 425(c)," rather than section 425.16, subdivision (c), the motion itself cited the correct statute as the basis for the award of fees, as did the trial court in awarding those fees. Ariz's argument this typographical error precludes the award of attorney fees is frivolous. The trial court properly awarded the Association its fees incurred in successfully moving to strike Ariz's complaint. In addition, the Association is entitled to its attorney fees incurred in connection with this appeal. (See Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 286 ["appellate courts have construed section 425.16, subdivision (c) to include an attorney fees award on appeal"]; Dove Audio, Inc. v. Rosenfeld, Meyer & Susman (1996) 47 Cal.App.4th 777, 785 ["[s]ince section 425.16, subdivision (c) provides for an award of attorney fees and costs to a prevailing defendant on a special motion to strike, and does not preclude recovery of appellate attorney fees by a prevailing defendant-respondent, those fees are recoverable"]; see generally City of Los Angeles v. Animal Defense League, supra, 135 Cal.App.4th at pp. 627-628.)

DISPOSITION

The order granting the section 425.16 special motion to strike, dismissing the action as to the Association and awarding it attorney fees is affirmed. The Association is to recover its attorney fees and costs on appeal in an amount to be determined by the trial court.

We concur:

ZELON, J.

JACKSON, J.

Footnotes

1. Statutory references are to the Code of Civil Procedure unless otherwise indicated.

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2. Ariz asserts the private property dispute escalated as an outgrowth of David Curtis's anger at Ariz because she was on the Association's board when a special election was authorized to remove him as a board member.

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3. A similar special motion to strike filed by the Curtises was denied by the court.

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4. Under the statute an "`act in furtherance of a person's right of petition or free speech under the United States or California Constitution in connection with a public issue' includes: (1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or 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; (4) or 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." (§ 425.16, subd. (e).)

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5. To the extent individual participants in the September 11, 2007 board meeting discussed the charges in the Curtis and Grueskin letters, those individuals may well have republished the allegedly defamatory statements. Indeed, as discussed, Ariz has named one such individual, the president of the Association's board, who played a significant role at the September 11 board meeting, as a defendant in her lawsuit.

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6. The potential applicability of Civil Code section 47, subdivision (c)(1), was not discussed by the parties in the trial court or in their initial briefs to this court. Because our own review of the record indicated the possible relevance of this provision, we invited the parties to file supplemental briefs addressing the issue; and they have done so. (See Taus, supra, 40 Cal.4th at p. 720, fn. 16.)

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7. As it did in the trial court, on appeal the Association has argued its republication, if any, of the allegedly defamatory charges in the Curtis and Grueskin letters was absolutely privileged under Civil Code section 47, subdivision (b)(4), because it occurred "in the initiation or course of [a] proceeding authorized by law and reviewable pursuant to [Code of Civil Procedure, section 1084 et seq. ARIZ v. BEVERLY GLEN PARK