WALLIN, Associate Justice.
Paul M. Christiansen, in his individual capacity and as trustee for the P.M.C. Trust (Christiansen,
Christiansen owns a home
Foothills refunded the money, but issued another $1,300 assessment for the same purpose (the 1995 assessment), this one approved by an overwhelming majority of the homeowners. Christiansen paid again under protest, and sought to set aside his satisfaction of judgment in the small claims court. One judge denied his request, but on rehearing, the judge who heard the initial trial on the 1993 assessment granted him relief. Christiansen levied on the association account and retrieved his $1,300 payment.
Foothills sued Christiansen in municipal court for the $1,300 and a declaration the 1995 assessment had been issued in compliance with applicable law. Christiansen demurred to the complaint on issue preclusion grounds, arguing the issues had been decided in his favor in the small claims action. The demurrer was overruled, as was his motion to dismiss the action under section 425.16 made on the ground the suit was brought to chill his free speech rights. Because Foothills requested declaratory relief, the matter was transferred to the superior court. There, Christiansen moved the court for summary judgment on the same issue preclusion grounds raised in the demurrer. Foothills filed a counter-motion for summary judgment on the ground there was no triable issue of fact concerning the debt. The court granted Foothills' motion and awarded it over $10,000 in attorney fees.
Christiansen contends the trial court erred by overruling his demurrer and denying his summary judgment motion, both of which rested on issue preclusion grounds.
Christiansen argues that rule does not apply where, as here, the superior court issues a written decision after a de novo small claims trial. Even if it does not, the superior court ruling dealt with the 1993 assessment, not the 1995 assessment.
Christiansen argues the trial court erroneously granted Foothills' summary judgment. "A plaintiff seeking summary judgment meets its burden of showing that there is no defense to a cause of action by proving each element of the cause of action entitling it to judgment on that claim. [Citation.] Once the plaintiff has met that burden, the burden shifts to the defendant to show that a triable issue of one or more material facts exists as to that cause of action or a defense thereto. [Citation.]" (Recorded Picture Company [Productions] Ltd. v. Nelson Entertainment, Inc. (1997) 53 Cal.App.4th 350, 360-361, 61 Cal.Rptr.2d 742, citing § 437c, subd. (o)(1).)
Christiansen asserts that even if his issue preclusion argument fails, there is a triable issue of fact concerning whether the 1995 assessment violated Civil Code section 1366.1.
We have found no cases construing section 1366.1, and the partss do not suggest anything about the section's legislative history alters the plain language of the section. (Birbrower, Montalhano, Condon & Frank v. Superior Court (1998) 17 Cal.4th 119, 131-132, 70 Cal.Rptr.2d 304, 949 P.2d 1 [plain language of statute controls in the absence of compelling reasons].) The assessment was levied to replenish the fund after money was
Thus, the evidence showed the assessment was within the amount necessary to defray the costs for which it was levied—the cost of replenishing the reserve fund. Whether the fund could have been replenished over time is irrelevant to whether the assessment exceeded costs for which it was levied. As a matter of law, an assessment does not violate section 1366.1 merely because the costs could have been recouped incrementally. Nothing in the language of the statute suggests that is so.
Christiansen contends the trial court erred by denying the SLAPP suit motion under section 425.16.
Section 425.16 was enacted to combat frivolous lawsuits brought primarily to chill the valid exercise of the constitutional right of freedom of speech and petition for the redress of grievances. (§ 425.16, subd. (a).) Subdivision (b) provides in relevant part: "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." Subdivision (e) defines "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" as including "any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; 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; or 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."
We review the record independently to determine whether the trial court ruled correctly. (Church of Scientology v. Wollersheim (1996) 42 Cal.App.4th 628, 653, 49 Cal.Rptr.2d 620.) Christiansen alleges this suit was in retaliation for his opposition to Foothills' governing board and its actions, particularly concerning assessments. He does not allege any statements or writings he made in the course of these activities were made before an official proceeding or in connection with an issue under consideration in such a proceeding, as section 425.16, subdivision (e) requires, but he does assert Foothills'
In Averill v. Superior Court (1996) 42 Cal.App.4th 1170, 50 Cal.Rptr.2d 62, we construed the statute broadly and determined statements made by an employee to her employer in private opposing the employer's support for a battered women's shelter in the neighborhood fell under the statute's purview. We found an action against the employee by the shelter for slander and related causes of action was meritless and ordered the trial court to grant the section 425.16 motion. (Id. at pp. 1174-1176, 50 Cal.Rptr.2d 62; see also Brawn v. Chronicle Publishing Co. (1997) 52 Cal.App.4th 1036, 1044-1050, 61 Cal.Rptr.2d 58; Church of Scientology v. Wollersheim, supra, 42 Cal. App.4th at pp. 650-651, 49 Cal.Rptr.2d 620; Wilcox v. Superior Court (1994) 27 Cal.App.4th 809, 821, 33 Cal.Rptr.2d 446 [cross-complainants conceded issue was public]; compare Linsco/Private Ledger, Inc. v. Investors Arbitration Services, Inc. (1996) 50 Cal.App.4th 1633, 1638-1639, 58 Cal.Rptr.2d 613 [narrow interpretation]; Zhao v. Wong (1996) 48 Cal.App.4th 1114, 1120-1121, 1129, 55 Cal.Rptr.2d 909.)
Based on Averill, we conclude Christiansen's alleged activities involved matters of sufficient public interest made in a sufficiently public forum to invoke the protection of section 425.16. Nevertheless, his claim fails. SLAPP suits can conceivably be pleaded in terms of breach of contract or other valid actions. (See, e.g., Wilcox v. Superior Court, supra, 27 Cal.App.4th 809, 33 Cal.Rptr.2d 446.) 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 defendant's exercise of his free speech and petition rights. (Church of Scientology v. Wollersheim, supra, 42 Cal. App.4th at p. 652, 49 Cal.Rptr.2d 620; see also Ericsson GE Mobile Communications, Inc. v. C.S.I. Telecommunications Engineers (1996) 49 Cal.App.4th 1591, 1601-1603, 57 Cal.Rptr.2d 491.) We conclude from our independent review that Christiansen failed to meet his burden to show the lawsuit was brought to chill his first amendment rights. (Wilcox v. Superior Court, supra, 27 Cal. App.4th at pp. 819-820, 33 Cal.Rptr.2d 446 [defendant bears initial burden to show the suit falls within the ambit of the statute].)
Foothills brought suit to collect on the 1995 assessment and obtain declaratory relief the assessment was valid, presumably to ensure the assessment could be collected against all of the homeowners. Christiansen did not show he was singled out for enforcement of the assessment. Indeed, he averred others had been pursued as well. Although those who were sued may have been members of the protesting group, that is not surprising since that is the group one would expect to withhold payment. Christiansen's allusion to tangential threatening comments by the spouse of a board member after the association filed suit does not change our view of the circumstances. Foothills' suit appears to be no more than a dogged effort to collect the assessment. To allow Christiansen to avoid payment of the assessment simply because he disagreed with Foothills would mean Foothills could never collect an assessment from him. (See Ericsson GE Mobile Communications, Inc. v. C.S.I. Telecommunications Engineers, supra, 49 Cal.App.4th 1591, 1601-1603, 57 Cal.Rptr.2d 491.)
Moreover, section 425.16 motions should not be granted unless the court finds the plaintiffs case is meritless. (§ 425.16, subd. (b).) As we determined in part I, Foothills' case had merit.
Christiansen asserts the trial court awarded excessive attorney fees in an amount slightly over $10,000.
The judgment is affirmed. Foothills is entitled to its costs on appeal.
SILLS, P.J., and RYLAARSDAM, J., concur.
The trial court properly denied the motion for reconsideration. To merit reconsideration, a party must give a satisfactory reason why it was unable to present its "new" evidence at the original hearing. (Mink v. Superior Court (1992) 2 Cal.App.4th 1338, 1342, 4 Cal.Rptr.2d 195.) Christiansen did not think the evidence was necessary at the first hearing. That reason was patently insufficient, and the trial court properly refused to reconsider its ruling. (See Lucas v. Santa Maria Public Airport Dist. (1995) 39 Cal.App.4th 1017, 1028, 46 Cal.Rptr.2d 177.) Because the trial court did so, no evidence shows the superior court considered the 1995 assessment.