FACTS

Due to the stage of this case, the facts we recount are as stated in the complaint

and in declarations submitted in connection with the anti-SLAPP motion.

Respondent CBGM, LLC owns and operates Trilogy Golf Course in La Quinta,

California. The golf course and a 61-acre landscaped perimeter area lie within a master-

planned community, called Trilogy at La Quinta, which has 1,238 homes.

3 The homeowners belong to the Trilogy at La Quinta Maintenance Association,

Inc. homeowners association (HOA), which isn’t a party to this case. Appellant Wayne

Guralnick is a lawyer who, together with his firm, Guralnick & Gilliland, LLP (also an

appellant), represented the HOA Board at all relevant times. Gary Turner, another

codefendant, is the HOA’s former president, but he isn’t a party to this appeal.

In 2003, the HOA recorded CCRs governing the golf course and the community.

The CCRs state the golf course must be maintained and operated to meet high standards

designed to sustain the prestige and value of the surrounding homes and development.

From 2003 to 2006, the golf course was well run and hosted several professional

tournaments.

In 2008, it was revealed during a presale inspection that acacia trees had been

planted in the perimeter area, though the original landscaping plan called for dwarf

acacia. The difference was important to homeowners because dwarf acacia grow to be

about four feet tall, whereas acacia can grow as high as 25 feet. If not trimmed, the acacia

trees would block views of the golf course, potentially diminishing home values.

Trimming the acacia trees cost $400,000 to $600,000 a year. As a result, the HOA, not

the golf course, was paying to maintain the perimeter area. According to CBGM’s

complaint, Guralnick was aware of the situation, and was also aware the cost of

maintaining the perimeter area wasn’t listed as a liability in the golf course’s financial

statements.

4 In early 2009, the golf course, clubhouse, and restaurant were sold to an

investment group. The problem with the acacia trees and the high cost of maintaining

them wasn’t disclosed to the investment group during escrow. Instead, Guralnick advised

the HOA Board to amend golf course CCRs to show the HOA would have a claim

against the golf course owner for any maintenance deficiencies, including deficiencies

related to the perimeter area. Between 2009 and 2014, the condition and operation of the

golf course and its restaurant deteriorated, and the HOA Board eventually threatened

litigation.

In August 2013, the investment group invited restauranteur Tom Brown to take

over the operation of the restaurant under a lease. Brown made a significant investment,

and conditions improved to such an extent that community leaders encouraged him to

purchase the golf course. Eventually, Brown formed CBGM with a partner and

completed the purchase in April 2015 for $5.1 million. Before the purchase, CBGM and

the HOA Board signed an agreement which, among other things, temporarily suspended

CBGM’s responsibility to maintain the perimeter area. After the purchase, CBGM

invested in significant improvements to the golf course.

In February 2016, the HOA Board and CBGM began negotiating over the

replacement for their temporary agreement, set to expire in April 2017. Guralnick and

Turner represented the HOA in these negotiations. CBGM employed outside legal

counsel. Included in these negotiations were the overall rehabilitation of the perimeter

area and a plan for its future maintenance. According to CBGM’s complaint, “it was

5 [their] well communicated goal to keep the Perimeter Area annual maintenance costs

below $225,000 per year and keep the rehabilitation costs below $2M. This was stated

over and over again and accepted by the HOA Board and Guralnick.”

In late 2016, CBGM and the HOA Board agreed to test vegetation on a small

portion of the perimeter area with the goal of finding plantings that would keep the

overall rehabilitation cost below $2 million and annual maintenance costs below

$225,000. Everyone agreed at the time to allow the plantings in the test area to mature

before making decisions about what would be planted in the perimeter area.

In early 2017, the plants were maturing as expected, but, according to CBGM,

“the homeowners were growing restless as they wanted something done with the

Perimeter Area almost immediately.” They allege Guralnick and Turner “represented to

[CBGM] that they needed an agreement relating to the Perimeter Area improvements and

maintenance in place prior to a March 2017 vote of the homeowners.” They said the

improvement plan would likely be voted down at the scheduled March 23, 2017

homeowners meeting if they didn’t reach an agreement before then. They alleged such a

vote “would leave [CBGM] solely responsible for the ‘deficiency’ claims being made by

the HOA and likely solely responsible for financing and improving the Perimeter Area.”

Though it’s not entirely clear, it appears the HOA Board’s position was that homeowner

rejection of the new plan in March would leave CBGM responsible for all maintenance,

including the expenses related to trimming acacia trees.

6 The parties proceeded to negotiate a restated declaration of covenants, conditions,

and restrictions for the golf course (restated CCRs). According to CBGM, the restated

CCRs would “define the project, payment responsibilities, the maximum price and

provide a final or negotiated Rehabilitation Project Agreement . . . between [CBGM], the

HOA Board and a third-party contractor and define the scope and costs of the

improvements to the Perimeter Area.” The restated CCRs, as negotiated, provided that

CBGM and the HOA Board would each pay half the construction costs of restoring the

landscaping in the perimeter area and half the annual maintenance costs. It also provided

CBGM would pay its half of the construction costs with $225,000 in cash and in meal

credits at the golf course restaurant for Trilogy homeowners.

According to Guralnick’s declaration and supporting exhibits, the parties had

reached an agreement about the restated CCRs by February 7, 2017. A CBGM

representative sent an email to Guralnick on January 24, 2017 saying “the golf course has

accepted the current edition.” On February 7, 2017, Guralnick sent CBGM’s

representatives the proposed final version of the restated CCRs and noted they would

immediately record the CCRs if they were approved by the vote of the HOA’s

membership.

On February 9, 2017, the HOA Board and CBGM met and signed the restated

CCRs. At this meeting, CBGM was represented by its legal counsel and others. Guralnick

attended the meeting as the HOA’s corporate counsel, as did Turner and other HOA

representatives. Section 16 of the restated CCRs said they “shall have no force or effect

7 unless the members of [the HOA] approve a ballot measure approving the Rehab Project

and cost sharing for the Rehab Project and related maintenance for the Perimeter

Landscaping Areas.” The same provision says “If the Ballot Measure is approved . . . this

Declaration shall be recorded against the Properties, [and] take effect immediately.”

CBGM alleges the restated CCRs omitted material items, including any agreement

about the type of vegetation to be planted, irrigation work, and cost sharing. According to

CBGM, at the February 9, 2017 meeting, Guralnick and Turner told CBGM they “needed

to sign the Restated CCRs by 4 pm that day or the entire financial participation from the

homeowners and the HOA Board would be lost.” CBGM noticed the rehabilitation

project agreement was missing from the CCRs. Though it was supposed to be attached as

Exhibit H, the document attached was instead a letter of credit authorizing the HOA to

take periodic payments for maintenance in the perimeter area. CBGM complained that

the rehabilitation agreement contained the most important terms and also complained of

the provision giving the HOA “an exclusive easement over, under, above and within the

Perimeter Landscape Areas to install, maintain, repair and replace all landscape,

vegetation, trees, shrubs, ground cover (inclusive of all inert material), the irrigation

system and all other improvements located within the Perimeter Landscape Areas.”

CBGM initially refused to sign the restated CCRs for these reasons.

According to CBGM, Guralnick and Turner then assured them “the HOA Board’s

control and absolute discretion had to be in the Restated CCRs to pass the homeowners’

vote because of the significant effect the Perimeter Area’s appearance has on the home

8 values.” They represented the HOA would use the test planting area to choose what

vegetation to plant and that CBGM would have a vote on vegetation choices. They

promised initial construction costs wouldn’t exceed $2 million, annual maintenance costs

would be below $221,000, and maintenance costs wouldn’t be included in the

rehabilitation project agreement as a line item expense. They said the HOA Board would

limit construction to two holes at a time and ensure proper dust control measures to

protect the golf course during construction. Finally, they promised the restated CCRs

would not be recorded without including the rehabilitation project agreement. According

to CBGM, they signed the CCRs on February 9, 2017 based on these representations.

On February 14, 2017, the HOA Board presented the ballot measure to its

homeowners for approval. Homeowners received a cover letter explaining the issues, a

ballot, voting instructions, a map of the property, and answers to “frequently asked

questions.” The letter asked homeowners to review the ballot materials and indicate their

approval or disapproval of the rehabilitation project for the perimeter area’s landscaping,

whose major terms it summarized as “[a]ccept[ing] an easement over the Perimeter

Landscape Areas from the Golf Course Owner,” entering an agreement with a landscape

contractor to install and rehabilitate the perimeter area landscaping and irrigation system,

and splitting evenly the cost of the rehabilitation project and the maintenance costs with

the golf course owner. The ballot materials included information about the amount

homeowners would have to pay on an individual basis to cover rehabilitation and

9 maintenance costs, indicated they expected maintenance to cost about $221,000 per year,

and said the golf course would provide water for irrigation.

The homeowners approved the ballot measure on March 23, 2017, and Guralnick

subsequently recorded the restated CCRs.

CBGM wasn’t happy with how the HOA proceeded under the new CCRs. They

complained the HOA and Guralnick “steamed forward” with construction plans,

excluded CBGM from meetings with a landscape architect, and made decisions on their

own damaging CBGM’s ability to run the golf course profitably. CBGM claimed they

had been shut out of control of their property and had been fooled into paying for costly

changes made by the HOA acting alone. As the dispute continued, CBGM came to

believe they were losing hundreds of thousands of dollars in golf dues, greens fees, cart

fees, events, food and beverage sales, and merchandise sales while work went on in the

perimeter area.

According to CBGM, Guralnick and Turner began sending homeowners

newsletters slandering CBGM “citing the inaccurate and admittedly defective Restated

CC&Rs, denying any blame or culpability and instead, demanding that [CBGM] cover

for their budgetary mistakes.”

CBGM claimed to have suffered millions of dollars in damages caused by

closures, construction delays, and damaged goodwill. They said these injuries resulted

from Guralnick and Turner fraudulently inducing them into signing the restated CCRs.

10 In June 2020, the HOA initiated an arbitration proceeding against CBGM. Six

months later, CBGM filed this lawsuit, asserting causes of action for fraud, negligent

misrepresentation, and slander of title against Turner, Guralnick and his law firm.

Guralnick and his firm filed an anti-SLAPP motion.

On October 18, 2021, the trial judge issued a tentative ruling denying the motion

because Guralnick hadn’t carried his initial burden of proving CBGM’s claim arose from

protected activity. The judge acknowledged his statements affected numerous

homeowners and therefore “may be a topic of a wide public concern.” However, he

concluded Guralnick and his law firm “have not demonstrated that the subject matter of

their negotiations and discussions with CBGM, regarding the responsibilities and

maintenance of the golf course and Perimeter Area, was a topic of an ongoing debate by

the homeowners of the Trilogy community to show that statements made during these

negotiations and discussions concerned an issue of public interest. The judge heard oral

argument the following day, but adopted his tentative ruling as a final ruling.

Guralnick and his law firm filed a timely notice of appeal.

II

ANALYSIS

“A SLAPP is a civil lawsuit that is aimed at preventing citizens from exercising

their political rights or punishing those who have done so. While SLAPP suits

masquerade as ordinary lawsuits such as defamation and interference with prospective

economic advantage, they are generally meritless suits brought primarily to chill the

11 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.” (Colyear v. Rolling

Hills Community Assn. of Rancho Palos Verdes (2017) 9 Cal.App.5th 119, 129 (Colyear)

[cleaned up].)

The Legislature acted to protect such political activities by enacting an anti-

SLAPP statute, concluding “it is in the public interest to encourage continued

participation in matters of public significance, and . . . this participation should not be

chilled through abuse of the judicial process.” (§ 425.16, subd. (a).) To reduce the

financial harm of meritless SLAPP suits, the statute authorizes the filing of a special

motion to strike a cause of action “arising from any act of that person in furtherance of

the person’s right of petition or free speech under the United States Constitution or the

California Constitution in connection with a public issue.” (§ 425.16, subd. (b)(1).)

When a defendant seeks protection from a lawsuit by filing a motion to strike, the

courts undertake a two-step analysis to determine if striking the cause of action is

warranted. (Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21 (Simpson).)

First, we ask whether the defendant made a prima facie showing that the plaintiff’s cause

of action arises from an act by the defendant in furtherance of their right of petition or

free speech in connection with a public issue. (§ 425.16, subd. (b)(1).) If the answer to

that question is yes, the cause of action shall be stricken unless the plaintiff can establish

a probability that the plaintiff will prevail on the claim. (Simpson, at p. 21.) “Only a cause

of action that satisfies both prongs of the anti-SLAPP statute—i.e., that arises from

12 protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to

being stricken under the statute.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.)

We review a trial judge’s decision on a special motion to strike de novo. (Flatley

v. Mauro (2006) 39 Cal.4th 299, 325.) We consider “the pleadings, and supporting and

opposing affidavits stating the facts upon which the liability or defense is based.”

(§ 425.16, subd. (b)(2).) We don’t weigh credibility or make decisions based on the

weight of the evidence, but “accept as true the evidence favorable to the plaintiff and

evaluate the defendant’s evidence only to determine if it has defeated that submitted by

the plaintiff as a matter of law.” (Soukup v. Law Offices of Herbert Hafif (2006) 39

Cal.4th 260, 269, fn. 3 [cleaned up].)

In this appeal, we’re called upon to determine whether Guralnick’s acts were

protected conduct. We evaluate whether Guralnick has demonstrated his statements fit

one of the four categories of conduct set forth in section 425.16, subdivision (e): “(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, 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.”

13 Guralnick concedes section 425.16, subdivisions (e)(1), (e)(2), and (e)(3) don’t

apply because the conduct CBGM complains of occurred in private negotiations over the

terms of the CCRs and not in a legislative, executive, or judicial proceeding, other

official proceeding authorized by law, or even in a public forum. Instead, he argues the

anti-SLAPP protections apply because CBGM’s causes of action arise from conduct in

furtherance of the right of free speech in connection with a public issue or issue of public

interest, protected under subdivision (e)(4).

“Section 425.16 does not define an issue of public interest. Nevertheless, the

statute requires the issue to include attributes that make it one of public, rather than

merely private, interest. A few guiding principles can be gleaned from decisional

authorities. For example, public interest is not mere curiosity. Further, the matter should

be something of concern to a substantial number of people. Accordingly, a matter of

concern to the speaker and a relatively small, specific audience is not a matter of public

interest. Additionally, there should be a degree of closeness between the challenged

statements and the asserted public interest. The assertion of a broad and amorphous

public interest that can be connected to the specific dispute is not sufficient. One cannot

focus on society’s general interest in the subject matter of the dispute instead of the

specific speech or conduct upon which the complaint is based. Cases that have found an

issue of public interest have done so where the subject statements either concerned a

person or entity in the public eye, conduct that could directly affect a large number of

14 people beyond the direct participants or a topic of widespread, public interest.” (Colyear,

supra, 9 Cal.App.5th at p. 131 [cleaned up].)

As such, “public interest” may extend beyond government matters to embrace

“private conduct that impacts a broad segment of society and/or that affects a community

in a manner similar to that of a governmental entity.” (Du Charme v. International

Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 115.) In such cases—

those of interest “to a limited, but definable portion of the public (a private group,

organization, or community)”— the protected activity must “occur in the context of an

ongoing controversy, dispute or discussion, such that it warrants protection by a statute

that embodies the public policy of encouraging participation in matters of public

significance.” (Du Charme, at p. 119.)

Guralnick appeals to these principles to argue his statements made during

negotiations with CBGM over the terms relating to landscaping in the perimeter of the

golf course should be treated as protected conduct because they concerned matters of

interest to the entire community over which there were active discussion and ultimately a

vote of homeowners. He is right that appellate courts have extended protections to

conduct that occurred in the context of disputes within a homeowners association. (E.g.,

Ruiz v. Harbor View Community Assn. (2005) 134 Cal.App.4th 1456, 1468 (Ruiz).)

In Ruiz, a homeowner sued his homeowners association alleging letters written by

the homeowners association’s counsel had defamed him. (Ruiz, supra, 134 Cal.App.4th at

pp. 1463-1465.) The letters addressed a dispute about the rejection of Ruiz’s architectural

15 plans for his home and Ruiz’s complaints the architectural committee was applying the

homeowners association guidelines arbitrarily. (Ibid.) The Court of Appeal concluded the

attorney’s letters fell within section 425.16 (e)(4) because they were written during an

ongoing dispute between Ruiz and the homeowners association over the denial of Ruiz’s

plans and the application of the association’s architectural guidelines, and the dispute was

of interest to the residents of 523 lots because they “would be affected by the outcome of

those disputes and would have a stake in [HOA] governance.” (Ruiz, at pp. 1467-1469.)

The court emphasized that the attorney’s letters “were part of the ongoing discussion over

those disputes and ‘contribute[d] to the public debate’ on the issues presented by those

disputes. ” (Id. at p. 1469.)

We see little difference between Ruiz and the facts of this case. If anything, the

case for concluding that Guralnick’s statements concerned matters of public interest is

stronger. The pleadings and affidavits submitted in relation to the anti-SLAPP motion

establish that the HOA Board was engaged in the long-term project of rehabilitating the

landscaping on the perimeter of the golf course and negotiating a cost sharing agreement

with the golf course to accomplish that end. The matter was important to all the

homeowners in the development—more than 1,200 families. And the issue of how to

resolve the problem, either by enforcing the old CCRs or renegotiating new CCRs, was a

matter placed for a vote by the homeowners, who in fact approved the agreement the

HOA Board and CBGM signed. Under these circumstances, we conclude Guralnick’s

statements in negotiating the terms of the agreement and convincing CBGM to sign it did

16 concern a matter of public interest that occurred in the context of an ongoing controversy,

dispute, or discussion. We therefore conclude the trial judge erred by holding Guralnick

did not establish his acts were protected conduct under section 425.16, subdivision (e)(4).

Though we don’t have the benefit of a respondent’s brief, the trial judge relied on

Talega Maintenance Corp. v. Standard Pacific Corp. (2014) 225 Cal.App.4th 722

(Talega) to support his holding that Guralnick’s statements were not protected. We find

Talega distinguishable. That case involved, among other things, a dispute between an

HOA and developers over representations the developer’s employees made about who

was responsible for repairing trails adjacent to the community, which were badly

damaged during heavy rains and flooding in 2005. (Id. at p. 725.) At the time, three

employees represented the developer, Talega Associates, on the homeowners association

board of directors, and they made up a majority of the board. (Id. at p. 726.) By 2005, the

title to the damaged property had transferred to the homeowners association, and the

developer board members represented that the association was responsible to pay for

repairs to the trails. (Ibid.) The homeowners association expended more than half a

million dollars based on that understanding. However, when rains again damaged the

trails in 2010, independent board members hired consultants to investigate, and they

discovered the developers had in fact been responsible for repairing damage to the trails

all along. (Id. pp. 726-727.) The homeowners association sued the developers and their

three employees for, relevant here, breach of fiduciary duty, fraud, constructive fraud,

17 and negligence, claiming the developer board members knew in 2005 the developers

were responsible for the cost of repairing the trails. (Ibid.)

The developers filed an anti-SLAPP motion seeking to strike all those causes of

action, but the trial judge denied the motion after concluding the developers “have not

demonstrated that [their conduct] involved a matter of sufficient public interest.” (Talega,

supra, 225 Cal.App.4th at p. 727.) On appeal, the Court of Appeal, Fourth District,

Division Three, determined “[t]here is no indication in the record that there was any

controversy, dispute, or discussion surrounding the Developer Board Members’

representation that the HOA was liable to pay the repair costs. To the contrary, a

declaration submitted by an independent board member states, ‘I believed [the Developer

Board Members’] representations, as I had no reason to believe at the time that they were

not telling me the truth or acting in the best interest of the Association.’” (Id. at p. 734.)

The Court of Appeal concluded “the absence of any controversy, dispute, or discussion

. . . [about] the issue of who was to play for the repairs, which was of interest to only a

narrow sliver of society, [shows it] was not a public issue.” (Ibid.) The trial court here

found the facts analogous and followed Talega in concluding the Guralnick had failed to

demonstrate “the subject matter of their negotiations and discussions . . . regarding the

responsibilities of rehabilitation and maintenance of the golf course and the Perimeter

Area, was a topic of an ongoing debate by the homeowners.”

Talega is factually distinguishable from this case. As we discuss above, we

conclude the uncontested fact that the homeowners were preparing to vote on a ballot

18 measure to approve the rehabilitation plan for the area surrounding the golf course

establishes that the subject matter of the negotiations did concern an ongoing matter of

discussion or controversy among the homeowners. And while it is true that the subject

matter of the allegedly fraudulent statements in Talega and this case are similar—both

concerned the extent to which a homeowners association (and therefore homeowners)

would be responsible for costs associated with repairing and maintaining common

areas—the fact that the HOA Board was actively trying to gain approval from the

homeowners for their proposal distinguishes this case. In Talega, the Court of Appeal

found it important that one of the independent board members admitted he had simply

accepted the developers’ representations without question. That dynamic isn’t present

here. The problems with the condition of the landscaping in the perimeter area was a

problem of longstanding, and Guralnick was negotiating a solution to the problem with

the golf course owners and then took the issue to the homeowners to get their approval

for the negotiated allocation of responsibility. We conclude that’s enough discussion of

an issue affecting enough people to warrant anti-SLAPP protection.

Our conclusion that Guralnick’s conduct was protected doesn’t mean he and his

law firm are entitled to have the complaint stricken. CBGM may still defeat the motion if

they can establish a probability they will prevail on their claims. (Simpson, supra, 49

Cal.4th at p. 21.) Since the trial judge did not decide that issue, and respondents have not

briefed the issue in this court, we conclude the better course is to remand for the trial

judge to make that determination in the first place.

19

III

DISPOSITION

We reverse the trial judge’s order denying the anti-SLAPP motion and remand for

a determination whether CBGM has a probability of prevailing on the merits of their

claims. Appellants shall recover their costs of appeal.

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

SLOUGH

J.

We concur:

McKINSTER Acting P. J.

FIELDS

J.

20