Filed 2/10/23 Groth v. Park III Condominimum Homeowners etc. CA4/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for 

publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication

or ordered published for purposes of rule 8.1115. 

COURT OF APPEAL, FOURTH APPELLATE DISTRICT

DIVISION ONE

STATE OF CALIFORNIA

JAKOB GROTH et al., 

Cross-complainants and

Respondents,

v.

PARK III CONDOMINIMUM 

HOMEOWNERS ASSOCIATION, INC., 

et al.,

Cross-defendants and Appellants.

 D079501

 (Super. Ct. No. 37-2021-

00001534-CU-CO-CTL)

APPEAL from an order of the Superior Court of San Diego County, 

Gregory W. Pollack, Judge. Affirmed.

Murphy, Pearson, Bradley & Feeney, Jeff C. Hsu, and Patrick A. 

Gillespie, for Cross-defendant and Appellant Park III Condominium 

Homeowners Association, Inc.

Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller, Garth N. Ward, and 

Daniel R. Velladao, for Cross-defendant and Appellant Cheryl Snook.

No appearance for Respondents.
2

In January 2021, Park III Homeowners Association (Park III) sued 

Gordon Dunn, Jakob Groth, and Groth’s spouse Ali Aschoff for breach of the 

common interest community’s governing documents and nuisance, seeking 

declaratory relief. Groth, Aschoff, and their resident Michael Kirton filed a 

cross-complaint, against Cheryl Snook and Park III alleging causes of action 

for violations of the federal Fair Housing Act (FHA), the California Fair 

Employment and Housing Act (FEHA), and the California Unruh Civil Rights 

Act, for defamation, and for intentional infliction of emotional distress (IIED). 

Snook and Park III filed separate anti-SLAPP motions, special motions to

strike (Civ. Proc. Code,1 § 425.16).2 The court denied the motions. Snook 

and Park III appealed.

Snook and Park III contend that Groth, Aschoff, and Kirton (the crosscomplainants) failed to establish a reasonable probability of prevailing on the 

merits. We disagree and affirm the order.

FACTUAL AND PROCEDURAL BACKGROUND

The Underlying Events

In January 2015, vandalism began occurring in public spaces around 

the community. This eventually included a series of written and spray1 Undesignated statutory references are to the Code of Civil Procedure. 

2 Section 425.16 is commonly referred to as the anti-SLAPP statute 

because a special motion thereunder seeks to strike a “ ‘[s]trategic lawsuit 

against public participation,’ ” or SLAPP. (Wilson v. Cable News Network, 

Inc. (2019) 7 cal.5th 871, 882, fn. 1 (Wilson).)
3

painted statements that targeted Snook by name,3 which Snook reported to 

police. In Snook’s statements to police, she accused Dunn, Groth, and Kirton

of causing the damage. 

In 2018, Snook filed complaints with the Department of Fair 

Employment and Housing (DFEH) against Park III, Groth, and Dunn, 

alleging sexual harassment based on the vandalism; she named Groth and 

Dunn as the vandals. 

On April 20, 2019, April 29, 2019, and January 18, 2020, letters were 

disseminated throughout the community and posted to social media. The 

letters included Snook’s name on the signature line. Some also had a 

signature. They contained disparaging and offensive comments about people 

of color and people of foreign descent. Snook denied authoring the offending 

letters. She reported them to the police, her representative on city council, 

and the United States Postal Service. 

On May 23, 2019, the Park III board unanimously decided “not to take 

enforcement” against Snook regarding the April 2019 letters because it

determined that “there was concrete evidence that [Snook] did not prepare or 

post the notice or letter.” 

Around July 24, 2020, Snook filed a petition for a temporary

restraining order (TRO) against Kirton. 

3 The vandals spray-painted statements, including “Cheryl Snook wer’e 

[sic] gonna rape you,” Cheryl Snook we’re waiting for you cunt,” “Cheryl 

Snook wer’e [sic] waiting for you to get raped,” “Cheryl Snook get out you 

twat,” “Snook leave,” “Cheryl Snook get the fuck out of here twat,” “Snook 

leave you cunt,” “Listen u cunt Cheryl Snook must go,” “Leave Snook twat,” 

“Snook get out,” “Merry xmas Cheryl Snook racist cunt [with a crudely drawn 

penis below it],” “Cheryl a racist Steve Graham is a pedophile,” “Cheryl 

Snook get out now you racist biiyatch,” “Snook is a racist bitch.” 
4

In September 2020, an attorney for Park III sent a cease-and-desist 

letter to Groth and Aschoff alleging that Kirton had interfered with Park III’s 

enforcement of its rules and regulations. 

Complaint

On January 13, 2021, Park III sued Groth, Aschoff, and Dunn for 

breach of governing documents and nuisance, seeking declaratory relief. 

Cross-complaint

On January 29, 2021, Groth, Aschoff, and Kirton filed a cross-complaint 

against Park III and Snook. The cross-complaint explained that Groth is of 

Polish descent, and Kirton is African-American.4 

It alleged eight causes of action: (1) violation of the FHA, (2) violation 

of FEHA, (3) violation of Unruh Civil Rights Act (against Park III only), (4) 

defamation, (5) breach of quiet enjoyment, (6) private nuisance, (7) IIED, and 

(8) negligence.5 It also alleged that all cross-defendants were the agents, 

servants, employees, and joint venturers of each of the other crossdefendants, and at all times they acted within the course and scope of that 

agency, employment and joint venture, knowingly accepting and ratifying the 

acts and omissions of each of the other cross-defendants. 

The cross-complaint further alleged that in 2017 Snook falsely accused 

Groth of writing profane statements in common areas.6 It alleged that in 

4 The cross-complaint is silent about Aschoff’s race or national origin. 

5 The cross-complainants voluntarily dismissed the fifth, sixth, and 

eighth causes of action against Snook. 

6 The cross-complaint alleged that Snook accused Groth of writing 

“CHERYL SNOOK LOVES ANAL,” “CHERYL SNOOK LOVES SUCKING 

COCK,” and “SNOOK’S A BITCH.” 
5

2018 Snook falsely accused Groth of spray painting obscene and harassing 

statements targeting Snook.7 It also alleged that, in September 2020, Park 

III falsely accused Groth and Aschoff’s tenant Kirton of harassing Park III 

board member, Alla Rabinovich. 

The cross-complaint alleged that Snook, on behalf of Park III as its 

president, created and disseminated three letters to Park III community 

residents, on April 20, 2019, April 29, 2019, and January 18, 2020. The April 

20 letter “ma[de] derogatory statements about Hispanics and Blacks” 

indicating “that there was a need to limit people of color living in the Park III 

community.” The April 29 letter “target[ed] African-American and Hispanic 

residents stating that African-American and Hispanic residents were 

responsible for serious crime in the area including but not limited to graffiti, 

attempted break-ins and vehicle damage.” The January 18, 2020 letter 

stated, “that problems at the Park III community were being caused by 

people of color and those of foreign descent.” The letter also said Groth was 

being monitored, “falsely accused [Groth] of attempting to break into 

[Snook’s] residence at Christmas time in 2017,” and “falsely accused [Kirton] 

of being responsible for vehicle damage to a Park III’s Board member’s 

vehicle.” 

The cross-complaint alleged that in December 2018, Snook filed a 

complaint with the DFEH falsely claiming she was subjected to a threat of 

7 The cross-complaint alleged Snook attributed the following graffitied 

statements to Groth: “CHERYL SNOOK LOVES JUICY BLACK COCK” on 

an end wall, “CHERYL SNOOK IS GOING TO DIE” on a dumpster, and 

“CHERYL SNOOK WE ARE GONNA ASS RAPE YOU” on an end wall, 

“CHERYL SNOOK WE ARE WAITING FOR YOU CUNT” on a dumpster, 

“CHERYL SNOOK WE ARE WAITING FOR YOU TO GET RAPED” on an 

end wall, “CHERYL SNOOK GET THE FUCK OUT OF HERE TWAT,” 

“CHERYL SNOOK GET OUT YOU TWAT,” and “SNOOK LEAVE.” 
6

violence by Groth due to her sex, and it stated that she sought a TRO against 

Kirton in July 2020. It further alleged that in September 2020, a law firm 

sent Groth and Aschoff a cease-and-desist letter that accused Kirton of 

interfering with the enforcement of Park III rules and regulations, including 

threatening Snook by shouting, “Black lives matter.” The cross-complaint 

stated that the cease-and-desist letter was incomplete because it omitted that 

Snook called Kirton the “N”-word.

As to the FHA, FEHA, and Unruh Civil Rights Act causes of action, the 

cross-complaint alleged Snook and Park III created and disseminated letters 

to the Park III community, which stated that people of color and of foreign 

descent needed to leave the community and were responsible for graffiti, 

attempted break-ins, and vehicle damage in the community. They also 

alleged that Snook and Park III “participated in the selective enforcement of 

Park III’s Declaration of Covenants, Conditions and Restrictions [(CC&R’s)] 

and the rules and regulations of the Park III community specifically 

targeting [c]ross-[c]omplainants on the basis of their national origin/race,” 

and that Snook and Park III’s harassment was designed to intimidate the 

cross-complainants. The cross-complaint alleged that Snook and Park III’s 

conduct interfered with the use or enjoyment of their residence, and that the 

discriminatory conduct has caused them to become “mentally upset, 

distressed, and aggravated.” 

It explained that “the creation and dissemination of baseless and 

unwarranted letters attacking [the cross-complainants’] character and 

national origin/race” was “intentional, extreme, outrageous,” and “done with 

the intent to cause emotional distress,” and that the cross-complainants 

suffered “severe emotional distress, shock and highly unpleasant emotions.” 
7

The Anti-SLAPP Motions

Snook and Park III filed separate anti-SLAPP motions. 

Snook argued in her anti-SLAPP motion that all her conduct arose out 

of protected activity because the communications regarded incidents within 

the community and were directly connected to reports to police or regarded 

enforcement of an HOA governing document. She also argued the crosscomplaint arose out of speech connected to a public matter protected by 

section 425.16, subdivision (e)(4). Finally, she argued that her DFEH and 

civil harassment complaints were privileged under Civil Code section 47, 

subdivision (b). 

Park III argued in its anti-SLAPP motion that the communications

concerned an issue of public interest, the governance of the Park III 

community. Park III also contended that its conduct was protected activity 

under section 425.16, subdivision (e)(2) because it “sent notices to [c]ross-

[c]omplainants[ ] for legitimate, non-discriminatory violations of the 

Association’s Governing Documents including maintaining multiple security 

cameras on their patio in violation of Section II(K) of the Rules as well as the 

CC&R’s for altering or affixing devices to common areas. . . . These policies 

and procedures are the same for all Association members and demonstrate 

that the violation notices were not discriminatory, arbitrary, or 

capricious. . . . Further, the violation notices were not issued based upon 

[c]ross-[c]omplainants’ race.” 

Park III also argued that Snook’s DFEH complaint, her request for a 

TRO against Kirton, and the HOA’s cease-and-desist letter were privileged 

under Civil Code section 47 and so constituted protected activity. 

As to the second prong of the anti-SLAPP statute, Snook and Park III 

contended that the HOA directors acted in good faith and within the scope of 
8

their duties to investigate and prevent further fraudulent letters from being 

distributed; thus, their decisions were shielded from liability because of 

judicial deference given to HOA boards (see Lamden v. La Jolla Shores 

Clubdominium Homeowners Assn. (1999) 21 Cal.4th 249, 265 (Lamden)) and 

because of the business judgment rule (Corp. Code, § 7231). 

Park III further argued that because Snook’s DFEH complaint, 

statements made in connection with her request for TRO and the cease-anddesist letter were privileged, the cross-complainants could not demonstrate a 

probability of prevailing on claims based on that conduct. It also contended 

that the cross-complainants could not demonstrate that the HOA had acted 

in an outrageous manner or that its conduct was with the intent to cause 

emotional distress. 

Park III attached declarations to their moving papers. In one, Michelle 

Steinbock, a Pernicano Realty & Management (Pernicano) employee, 

affirmed that the HOA did not enforce the CC&R’s against the crosscomplainants arbitrarily or based upon race or national origin. She stated 

that Park III’s detailed procedures were followed for each of the crosscomplainants’ violations. HOA board member Rabinovich asserted the same 

information in her declaration. In Snook’s declaration, she asserted that she 

had never selectively enforced the HOA’s governing documents, and 

specifically that she had never enforced them based on race or national 

origin. 

In their opposition to Park III’s motion, the cross-complainants

challenged whether the statements at issue constituted “public interest.” 

They also submitted declarations by Groth and Kirton and filed a request for 

judicial notice of declarations by Derek Edwards, Catie Contreras, and 

Rebekah Mainor, which had been filed in a related matter, Mainor v. Park III 
9

Condominium et al., San Diego Superior Court case No. 37-2020-0002875-

CU-CR-CTL. Edwards’s declaration stated that he had observed Snook 

selectively enforcing the CC&R’s and distributing letters to the community by 

placing them on vehicles and posting them in the laundry room. Contreras, 

who had been employed as community manager, also stated that Snook 

directed her to selectively enforce the community’s CC&R’s. 

Snook and Park III filed objections to the cross-complainants’ request 

for judicial notice and other evidence. 

Anti-SLAPP Order

The court found that the first prong of the anti-SLAPP statute was met 

because “Snook’s statements and enforcement activities concern issues 

relating to crime in the 272-member homeowner’s association 

community . . . .” It also found that Snook’s reports to police, filing of a 

DFEH complaint, and her request for a civil harassment restraining order 

were likewise protected activities. 

Addressing the second prong, the court found the evidence was 

sufficient to satisfy the cross-complainants’ burden. The court acknowledged 

the parties offered contradictory evidence, but it noted it was “duty bound to 

accept as true in ruling on Snook’s anti-SLAPP motion” the evidence offered 

by the cross-complainants. It also concluded that because the crosscomplainants alleged Snook engaged in willful misconduct, the qualified 

immunity offered by section 425.15 was not available to Snook. It explained 

that statements contained in a DFEH complaint are protected by the 

litigation privilege (Civ. Code, § 47, subd. (b)), but the protection did not 

extend to defamatory statements contained in the notices disseminated to the 

various homeowners or “Snook’s use of a racial epithet with Kirton, whom 

she called the “ ‘N-word.’ ” Although the court acknowledged that Snook 
10

denied authoring the disparaging notices, because there was conflicting 

evidence that the court was required to accept as true, the crosscomplainants met their burden. The court denied the anti-SLAPP motions.

Snook and Park III timely appealed.

DISCUSSION

I. Anti-SLAPP Law and Standard of Review

“[T]he anti-SLAPP statute is designed to protect defendants from 

meritless lawsuits that might chill the exercise of their rights to speak and 

petition on matters of public concern. [Citations.] To that end, the statute 

authorizes a special motion to strike a claim ‘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.’ ” (Wilson, supra, 7 Cal.5th at pp. 883-884.) 

“Litigation of an anti-SLAPP motion involves a two-step process. First, 

‘the moving defendant bears the burden of establishing that the challenged 

allegations or claims “aris[e] from” protected activity in which the defendant 

has engaged.’ [Citation.] Second, for each claim that does arise from 

protected activity, the plaintiff must show the claim has ‘at least “minimal 

merit.” ’ [Citation.] If the plaintiff cannot make this showing, the court will 

strike the claim.” (Bonni v. St. Joseph Health System (2021) 11 Cal.5th 995,

1009.) “But the plaintiff’s second-step burden is a limited one. The plaintiff 

need not prove her case to the court [citation]; the bar sits lower, at a 

demonstration of ‘minimal merit’ [citation]. At this stage, ‘ “[t]he court does 

not weigh evidence or resolve conflicting factual claims. Its inquiry is limited 

to whether the plaintiff has stated a legally sufficient claim and made a 

prima facie factual showing sufficient to sustain a favorable judgment. It 

accepts the plaintiff’s evidence as true, and evaluates the defendant’s 
11

showing only to determine if it defeats the plaintiff’s claim as a matter of 

law.” ’ ” (Wilson, supra, 7 Cal.5th at p. 891.)

On appeal, we examine without deference an order granting or denying 

an anti-SLAPP motion to strike. (Flatley v. Mauro (2006) 39 Cal.4th 299, 

325.) We accept the cross-complainants’ evidence as true. (Sweetwater Union 

High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 940

(Sweetwater).) We neither weigh credibility nor compare the weight of the 

evidence. (Flatley, at p. 326.) In doing so, we conduct “ ‘an independent 

review of the entire record.’ ” (Roche v. Hyde (2020) 51 Cal.App.5th 757, 787.) 

We exercise our discretion to examine all of the evidence the parties 

presented to determine if prima facie evidence supports the plaintiffs’ 

contentions. (§ 425.16, subd. (b)(2).) 

II. Applicable Law Regarding Causes of Action

The court concluded Snook and Park III met their burden under the 

first prong of the anti-SLAPP statute. The cross-complainants did not file an 

appeal challenging this conclusion or file a respondents’ brief. Thus, we need 

not discuss this prong. We focus our analysis on the second prong and 

consider whether the cross-complainants demonstrated minimal merit.

A. Applicable Law Regarding the FHA Claim

Federal law prohibits discrimination in the sale or rental of a dwelling 

to a person based on the person’s race, color, or national origin, among other 

protected classes. (42 U.S.C. § 3604(a).) It also prohibits discriminating 

against any person in the terms, conditions, or privileges of sale or rental of a 

dwelling because of race, color, or national origin. (Id., § 3604(b).) Further, it 

is “unlawful to coerce, intimidate, threaten, or interfere with any person in 

the exercise or enjoyment of, or on account of his having exercised or enjoyed, 

or on account of his having aided or encouraged any other person in the 
12

exercise or enjoyment of, any right granted or protected by section 803, 804, 

805, or 806 [3603, 3604, 3605, or 3606]” of this title. (Id., § 3617.)

A plaintiff can raise an FHA claim under either a disparate-impact or a 

disparate-treatment theory of liability. (See Wright v. National Archives & 

Records Service (4th Cir. 1979) 609 F.2d 702, 711.) Under the disparateimpact theory, the plaintiff must also demonstrate a causal connection 

between the defendant’s policy and the statistical disparity. (Tex. Dept. of 

Hous. & Cmty. Affairs v. Inclusive Cmtys. Project, Inc. (2015) 576 U.S. 519, 

524.) Under a disparate-treatment theory of liability, a “ ‘plaintiff must 

establish that the defendant had a discriminatory intent or motive.’ ” (Ibid.)

A plaintiff is not required to elect the applicable theory at the pretrial, trial, 

or appellate stages of litigation. (Wright, at p. 711.)

B. Applicable Law Regarding the FEHA Claim

California’s FEHA prohibits the owner of any housing accommodation 

to discriminate against or harass any person based on race, color, or national 

origin, among other protected classes. (Gov. Code, § 12955, subd. (a).) It also 

prohibits owners of housing accommodations from harassing, evicting, or 

otherwise discriminating against a person in the rental of housing 

accommodations when the owner’s dominant purpose is retaliation against a 

person who has opposed unlawful discriminatory or harassing practices. (Id., 

subd. (f).) The law further prohibits any person from aiding, abetting, 

inciting, compelling, or coercing such discrimination or harassment. (Id., 

subd. (g).) 

“Because of the similarity between state and federal employment 

discrimination laws, California courts look to pertinent federal precedent 

when applying our own statutes.” (Guz v. Bechtel National Inc. (2000) 24 

Cal.4th 317, 354 (Guz).) In analyzing FEHA discrimination claims, including 
13

national origin discrimination, “California courts have long used the threestage burden-shifting test established by the United States Supreme Court in 

McDonnell Douglas Corp. v. Green (1973) 411 U.S. 792.” (Arnold v. Dignity 

Health (2020) 53 Cal.App.5th 412, 424; see Reid v. Google, Inc. (2010) 50 

Cal.4th 512, 520, fn. 2; Guz, at p. 354.)

“This so-called McDonnell Douglas test reflects the principle that direct 

evidence of intentional discrimination is rare, and that such claims must 

usually be proved circumstantially. Thus, by successive steps of increasingly 

narrow focus, the test allows discrimination to be inferred from facts that 

create a reasonable likelihood of bias and are not satisfactorily explained.” 

(Guz, supra, 24 Cal.4th at p. 354.)

“At trial, the McDonnell Douglas test places on the plaintiff the initial 

burden to establish a prima facie case of discrimination. This step is 

designed to eliminate at the outset the most patently meritless claims, as 

where the plaintiff is not a member of the protected class . . . . While the 

plaintiff’s prima facie burden is ‘not onerous’ [citation], he [or she] must at 

least show ‘ “actions taken by the [defendant] from which one can infer, if 

such actions remain unexplained, that it is more likely than not that such 

actions were ‘based on a [prohibited] discriminatory criterion . . . .’ 

[Citation.] ” [Citation.]’ ” (Guz, supra, 24 Cal.4th at pp. 354-355.) “If, at 

trial, the plaintiff establishes a prima facie case, a [rebuttable] presumption 

of discrimination arises.” (Id. at p. 355.) The burden then shifts to the 

defendant to show that its action was motivated by legitimate, 

nondiscriminatory reasons. (Id. at pp. 355-356.) A reason is “ ‘legitimate’ ” if 

it is “facially unrelated to prohibited bias, and which if true, would thus 

preclude a finding of discrimination.” (Id. at p. 358.) If the defendant meets 

this burden, the plaintiff then must show that the defendant’s reasons are 
14

pretexts for discrimination, or produce other evidence of intentional 

discrimination. (Id. at p. 356.)

C. Applicable Law Regarding Unruh Civil Rights Act

The purpose of Unruh Civil Rights Act is to “create and preserve ‘a 

nondiscriminatory environment in California business establishments by 

“banishing” or “eradicating” arbitrary, invidious discrimination by such 

establishments.’ ” (White v. Square, Inc. (2019) 7 Cal.5th 1019, 1025 (White), 

quoting Angelucci v. Century Supper Club (2007) 41 Cal.4th 160, 167; Civ. 

Code, § 51.) “ ‘The Act stands as a bulwark protecting each person’s inherent 

right to “full and equal” access to “all business establishments.” ’ ” (White, at

p. 1025.)

Civil Code section 51, subdivision (b), states: “All persons within the 

jurisdiction of this state are free and equal, and no matter what their sex, 

race, color, religion, ancestry, national origin, disability, medical 

condition . . . are entitled to the full and equal accommodations, advantages, 

facilities, privileges, or services in all business establishments of every kind 

whatsoever.” Civil Code section 52, subdivision (a), provides: “Whoever 

denies, aids or incites a denial, or makes any discrimination or distinction 

contrary to Section 51 . . . is liable for each and every offense for the actual 

damages, and any amount that may be determined by a jury.”

D. Applicable Law Regarding Defamation

“ ‘ “The elements of a defamation claim are (1) publication that is 

(2) false, (3) defamatory, (4) unprivileged, and (5) has a natural tendency to 

injure or causes special damage.” ’ ” (Laker v. Board of Trustees of California 

State University (2019) 32 Cal.App.5th 745, 763.)
15

E. Applicable Law Regarding IIED

“The elements of the tort of intentional infliction of emotional distress 

are: ‘ “(1) extreme and outrageous conduct by the defendant with the 

intention of causing, or reckless disregard of the probability of causing, 

emotional distress; (2) the plaintiff’s suffering severe or extreme emotional 

distress; and (3) actual and proximate causation of the emotional distress by 

the defendant’s outrageous conduct. . . .” ’ ” (Christensen v. Superior Court 

(1991) 54 Cal.3d 868, 903.) “To be outrageous, the defendant’s conduct must 

be either intentional or reckless, and it must be so extreme as to exceed all 

bounds of decency in a civilized community.” (Spinks v. Equity Residential 

Briarwood Apartments (2009) 171 Cal.App.4th 1004, 1045 (Spinks).) 

Whether conduct is outrageous is usually a question of fact. (Ibid.) Courts 

have found that acts manifesting racial animus can constitute outrageous 

conduct in some circumstances. (See, e.g., Agarwal v. Johnson (1979) 25 

Cal.3d 932, 946-947 [racial slur], disapproved of on other grounds in White v. 

Ultramar, Inc. (1991) 21 Cal.4th 563; Robinson v. Hewlett-Packard (1986) 183 

Cal.App.3d 1108, 1128-1130 [same].)

III. Evidentiary Objections

Snook and Park III contend the cross-complainants cannot demonstrate 

a probability of success because they have not stated a legally sufficient 

claim. Snook and Park III make this claim by attacking the admissibility 

and quality of the evidence. 

A. Authorship of the Letters

Snook contends that she did not author the written communications 

that were disseminated throughout the community. She explains that some

letters did not contain her signature and others contain a forged signature. 

Park III contends Snook’s conduct of seeking help from the San Diego City 
16

Council, the San Diego Mayor’s Office, and the United States Postal Office to 

help identify the author of the letters was inconsistent with her actually 

authoring them. Ultimately, Park III argues that “if the SDPD and USPS 

have not been able to identify the culprit responsible for the Letters, there 

are no facts or evidence which [ ] can be put forward by the Respondents to 

overcome the presumption that the Association acted reasonably with respect 

to their investigation and efforts to prevent further incidents.” In essence, 

they contend evidentiary obstacles preclude consideration of the written 

communications.

However, “[t]o strike a complaint for failure to meet evidentiary 

obstacles that may be overcome at trial would not serve the SLAPP Act’s 

protective purposes. Ultimately, the SLAPP Act was ‘intended to end 

meritless SLAPP suits early without great cost to the target’ [citation], not to 

abort potentially meritorious claims due to a lack of discovery.” (Sweetwater,

supra, 6 Cal.5th at p. 949.) Although a trial court may decline to consider 

submitted evidence in response to an anti-SLAPP motion when the evidence 

“cannot be admitted at trial, because it is categorically barred or undisputed 

factual circumstances show inadmissibility” (ibid), neither condition applies 

here. The letters are not categorically barred, and there are disputed facts 

about whether Snook authored them. Snook and Park III’s “argument runs 

ahead of itself and accordingly fails. . . . evidence may be considered at the 

anti-SLAPP motion stage if it is reasonably possible the evidence set out in 

supporting affidavits, declarations or their equivalent will be admissible at 

trial.” (Id. at pp. 946-947.) 

Although the issue of who wrote and disseminated the letters will be a 

central factual question at trial, proof of their authorship is not required at 
17

this stage of litigation. We express no opinion regarding the admissibility of 

the declarations in a different context or at a different proceeding.

B. Judicial Notice of Declarations

In their opposition to the anti-SLAPP motions, the cross-complainants 

requested judicial notice of three declarations submitted in related litigation. 

Snook and Park III objected. The trial court overruled the objections, 

distinguishing judicially-noticed documents from declarations signed under 

penalty of perjury. It concluded the additional declarations were no different 

in type or substance than the declarations submitted directly in the pending 

proceeding and admitted the evidence. In the minute order, the court 

referenced Derek Edwards’s declaration,8 explaining that it provided 

evidence “regarding prior instances of selective enforcement and distribution 

of letters by Snook.” 

On appeal, Park III repeats its objection to the evidence contained 

within the request for judicial notice, arguing that the court could take 

judicial notice of the declarations’ existence but not of the truth of the 

matters asserted therein.9 Quoting Fremont Indemnity Co. v. Fremont 

General Corp. (2007) 148 Cal.App.4th 97, 113, Park III argues that the 

truthfulness and proper interpretation of a document for which judicial notice 

is granted is disputable. 

In the context of an anti-SLAPP motion where the court was 

considering evidentiary claims to evaluate the probability of success on the 

8 The minute order appears to mistake the name Derek Johnson for 

Derek Edwards. There is no declaration by Derek Johnson; however, the 

declaration by Derek Edwards addresses the substance identified by the 

court’s minute order. 

9 Snook does not challenge this evidence in her opening brief.
18

merits, its decision to consider a declaration signed under penalty of perjury 

was not erroneous. We observe that rather than provide such evidence 

through judicial notice, the cross-complainants could have simply submitted 

the evidence directly in connection with their oppositions to the anti-SLAPP 

motions, and that may have been preferrable. However, we decline to 

disregard the contents of the declarations here based on the notion that form 

should govern over substance in this situation.

Separately, Park III argues that because the cross-complainants did 

not explicitly reference Contreras’s or Mainor’s declarations in their written 

opposition, those statements offer no evidence to demonstrate a probability of 

prevailing. While we do not believe the evidence contained in those 

declarations is necessary, we note that the statements in those declarations

do support the cross-complainants’ claims. Contreras’s declaration states

that when she was the community manager, Snook accompanied her on 

inspections of the community, and Snook selectively chose which residents to 

send notice of violations. This supports the cross-complainants’ claim that 

the HOA engaged in selective enforcement practices.

Mainor’s declaration likewise recounts selective enforcement of 

CC&R’s. Mainor, an African-American female who rented a unit in the 

community, identified incidents in which she received notice of violating the 

CC&R’s where there had been no violations. She also explained that a board 

member had surveillance cameras monitoring her home, but when she 

installed cameras on her patio umbrella after receiving permission from the 

unit’s owner, the HOA board issued a notice of violation for her cameras. 

These statements, if accepted as true, support the cross-complainants’ 

allegations regarding race-based, selective enforcement of the CC&R’s. 
19

On appeal, Snook does not repeat her objection to the court’s 

consideration of the judicially noticed declarations or otherwise directly 

challenge them. Instead, she contends that the statements contained within 

the declarations do not provide evidence of selective enforcement due to racial 

animus. As we have detailed, we disagree. 

C. Evidence Code Section 1101

Snook and Park III contend Kirton’s declaration constitutes 

inadmissible character evidence. Park III makes the same challenge to 

Edwards’s declaration. 

Evidence Code section 1101, subdivision (b) provides: “Nothing in this 

section prohibits the admission of evidence that a person committed a crime, 

civil wrong, or other act when relevant to prove some fact[, ] (such as motive, 

opportunity, intent, preparation, plan, knowledge, identity, absence of 

mistake or accident . . . ).” Under that statute, and in the FEHA context, 

California Courts of Appeal have allowed admission of so-called “me-too” 

evidence to show intent or motive for the purpose of casting doubt on a 

defendant’s stated reason for an adverse action against the plaintiff. 

(Pantoja v. Anton (2011) 198 Cal.App.4th 87, 92 [defining “ ‘me-too’ ” evidence 

as that tending to show a defendant’s alleged discrimination in the form of 

harassing activity against individuals other than the plaintiff, outside 

plaintiff’s presence]; accord Meeks v. Autozone, Inc. (2018) 24 Cal.App.5th 

855, 871 [“California courts have held so-called ‘me-too’ evidence, that is, 

evidence of gender bias against employees other than the plaintiff, may be 

admissible evidence in discrimination and harassment cases”].) 

Kirton’s declaration serves a similar purpose. He explains that the 

letter blaming Blacks and Hispanics for serious crime was signed by Snook. 

He notes that a second letter directly accused him of causing vehicle damage 
20

and stated that people of color were problem residents. He describes Snook’s 

conduct in photographing a vehicle of another African-American resident, 

followed by her harshly telling him “I am gonna get you next” and calling him 

the “N” word. Taken together, these statements imply that Snook targeted 

African-American residents.

We note that the cross-complainants’ burden is limited; they do not 

need to prove their case to the court. They merely need to demonstrate there 

is “minimal merit” to their claims. (Wilson, supra, 7 Cal.5th at pp. 890-891.) 

At this stage, we do not weigh evidence or resolve conflicts; we simply 

consider whether the cross-complainant has stated a legally sufficient claim 

and made a prima facie factual showing. We evaluate Snook and Park III’s 

showing “ ‘ “only to determine if it defeats the plaintiff’s claim as a matter of 

law.” ’ [Citation.]” (Id. at p. 891.) We do not opine whether the challenged 

declarations would be admissible in a different context. We simply conclude 

that in this anti-SLAPP context, the Evidence Code section 1101 challenges 

do not defeat the cross-complainants’ allegations as a matter of law.

D. Litigation Privilege

Snook and Park III contend that statements Snook made in connection 

with her DFEH complaint and her request for a TRO are protected by Civil 

Code section 47, subdivision (b), the litigation privilege. Snook also contends 

that her communications to police are protected by the litigation privilege. 

Park III further contends that the cease-and-desist letter sent by an attorney 

on behalf of the HOA board falls within the litigation privilege, and that 

Groth’s allegations concerning Snook’s statements fall within that privilege. 

The Supreme Court has interpreted the litigation privilege to prevent 

any secondary suit raised solely from communications related to any 

proceeding authorized by law. (Rubin v. Green (1993) 4 Cal.4th 1187, 1196-
21

1198.) The privilege applies to statements, communications, court filings, 

and other communications outside the confines of a proceeding when 

“required or permitted by law in the course of a judicial proceeding to achieve

the objects of the litigation.” (Silberg v. Anderson (1990) 50 Cal.3d 205, 212.)

The litigation privilege appears to bar allegations that rely on the civil 

harassment complaint, the DFEH complaint, and the cease-and-desist letter. 

We do not direct those allegations be stricken because they may provide 

evidentiary value for the remaining claims. However, we express no opinion 

regarding whether this evidence would be admissible or survive a litigation 

challenge in a future proceeding or different context.

IV. Substantive Claims

The gravamen of Snook’s and Park III’s arguments on appeal is that 

the cross-complainants do not offer sufficient evidence to meet their prima 

facie burden. In addition to challenging the admissibility of the crosscomplainants’ evidence, Snook and Park III also challenge the substance of 

the evidence. 

A. FHA, FEHA, and Unruh Civil Rights Act Causes of Action

Snook contends her decisions to enforce the HOA rules and regulations 

falls within the business judgment rule and the doctrine of judicial deference. 

She and Park III argue that the citations issued to cross-complainants were 

based on observable violations of the CC&R’s. 

They also challenge the substance of the declarations. They contend 

that the declarations do not describe activity by Snook to support the claim 

that she authored the offending letters, that Groth’s declaration is selfserving and speculative, and that Edwards’s, Contreras’s, and Mainor’s 

declarations fail to prove there was selective enforcement of the CC&R’s 

based on unlawful bias. 
22

The business judgment rule protects directors from personal liability 

when they make decisions that result in damage or loss to another as long as 

those decisions were made in good faith, consistent with the inquiry an 

ordinary, prudent person would make, believed to be in the best interest of 

the HOA. (See Corp. Code, § 7231, subd. (a).) Moreover, the rule applying 

judicial deference to homeowner associations requires the decisions to 

represent good faith efforts to further the purpose of the common interest 

development, to be consistent with the community’s governing documents, 

and to comply with public policy. (Watts v. Oak Shores Community Assn.

(2015) 235 Cal.App.4th 466, 473, discussing Lamden, supra, 21 Cal.4th at 

p. 265; see Fountain Valley Chateau Blanc Homeowner’s Assn. v. Department 

of Veterans Affairs (1998) 67 Cal.App.4th 743, 754-755.) These defenses do 

not create blanket immunity for all decisions or actions of homeowners 

associations. 

Moreover, as we explained ante, we may consider inferences as well as 

direct evidence to determine whether there is prima facie evidence of the 

cross-complainants’ claims. “[T]he proper inquiry in the context of an antiSLAPP motion ‘is whether the plaintiff proffers sufficient evidence for such 

an inference.’ ” (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 

822; followed in Jenni Rivera Enterprises, LLC v. Latin World Entertainment 

Holdings, Inc. (2019) 36 Cal.App.5th 766, 781.) Indeed, “ ‘to satisfy due 

process, the burden placed on the plaintiff must be compatible with the early 

stage at which the motion is brought and heard [citation] and the limited 

opportunity to conduct discovery . . . .’ ” (Hardin v. PDX, Inc. (2014) 227 

Cal.App.4th 159, 166; see Integrated Healthcare Holdings, Inc. v. Fitzgibbons

(2006) 140 Cal.App.4th 515, 530 [“We are inclined to allow the plaintiff in a 

[special motion to strike] a certain degree of leeway in establishing a 
23

probability of prevailing on its claims due to ‘the early stage at which the 

motion is brought and heard [citation] and the limited opportunity to conduct 

discovery’ ”].)

The declarations recount instances of selective enforcement of 

violations generally, enforcement of violations against African-American 

residents, negative interactions with African-American residents that 

included the use of a racial slur, and letters that targeted residents of color 

and those of foreign descent attributable to Snook on behalf of the HOA. We 

conclude that, considered together, the declarations allow a trier of fact to 

draw sufficient inferences to support the cross-complainants’ claims. (See 

Issa v. Applegate (2019) 31 Cal.App.5th 689, 702 [“[t]he ‘burden of 

establishing a probability of prevailing is not high’ ”]; Whitehall v. County of 

San Bernardino (2017) 17 Cal.App.5th 352, 363-364, [same].) 

Moreover, the cross-complainants’ claims of racial animus and willful 

misconduct are not compatible with the good faith requirement of the 

business judgment rule and the doctrine of judicial deference. Although 

Snook and Park III contend that they acted reasonably and in good faith, 

citing to their efforts to determine who authored and disseminated the 

communications, the cross-complainants’ evidence contradicts those claims. 

Snook and Park III have not shown that application of these doctrines would, 

as a matter of law, defeat the cross-complaint claims. At most, they create 

factual disputes for a trier of fact to resolve.
24

B. Defamation Cause of Action

Snook contends that the cross-complainants cannot show a probability 

of success on the defamation claim because the allegations giving rise to it 

are absolutely privileged. 

Although Snook appears to concede that at least one of the letters is a 

publication that could give rise to a defamation cause of action, she maintains 

that there is not sufficient evidence that she authored the letters, so any 

defamatory statements cannot properly be attributed to her. This argument 

does not overcome the evidence offered by the cross-complainants. 

We observe that not all the communications were raised in the context 

of litigation or other official proceedings, and as we explained ante, the issue 

of authorship is a factual one. We cannot say, as a matter of law, that Snook 

did not author the offending and non-litigation-oriented communications. 

The superior court explained in its minute order, and we agree, that “[w]hile 

Snook vehemently denies having [authored the communications], permissible 

inferences from the cross-complainants’ proffered evidence, i.e., the content of 

the notices [ ] themselves; the purported signature of Snook on the notices; 

the photos of Snook on the notices; cross-complainants’ denial of authorship 

of the notices; Kirton’s claim that Snook called him a ‘N-word[ ]’; and[ ] the 

declaration of Derek [Edwards] regarding prior instances of selective 

enforcement and distribution of letters by Snook, considered collectively, are 

sufficient to satisfy cross-complainants’ minimal Prong II burden of 

establishing probability of prevailing on their defamation claim.” 

Park III separately contends that the cross-complainants cannot meet 

the requirements of a defamation cause of action because there is no evidence 

Snook’s statements, including those made during her verbal confrontation 

with Kirton, were made on behalf of the HOA. We disagree. 
25

Under the doctrine of respondeat superior, Snook’s acts are imputed 

legally to Park III. (See Civ. Code, § 2330.) Snook was the president of the 

board of directors of the HOA when the alleged conduct occurred. The April 

20, 2019 communication identifies her as a resident and also as the board’s 

president. The April 23, 2019 mailed letter to Mainor states that it is the 

author’s “fiduciary duty as board president to protect our community from 

residents like you and your son,” indicating it was written on behalf of the 

board. The January 18, 2020 mailed correspondence states that Snook is the 

board president who has been working hard to create a nice community, and 

it references the other board members as her “team.” Below her signature is 

her title (president) and “Park III Board of Directors.” Moreover, the crosscomplaint alleges that she acted as an agent of Park III and that Park III 

knowingly accepted and ratified her conduct. Park III points to no evidence 

that contradicts these allegations. 

Park III points out that it is a named respondent in Snook’s DFEH 

complaint as a reason that Snook’s comments cannot be attributed to 

Park III. However, the content of that complaint addresses only some of the 

conduct upon which the cross-complainants base their defamation cause of 

action. Her complaint that the HOA board’s inaction resulted in continued 

harassment is not necessarily inconsistent with the defamation allegations 

based on other conduct undertaken on behalf of the HOA board. 

C. IIED Cause of Action

Snook contends there is no evidence that she engaged in extreme and 

outrageous conduct because she did not draft the letters or engage in any 

other conduct that intimates racial animus. Park III adds that even 
26

assuming Snook authored the communications, this is not evidence of 

extreme and outrageous conduct. 

As we detailed ante, the issue of authorship is one of fact. The crosscomplainants have introduced evidence that Snook authored the letters, and 

we must accept that evidence as true at this stage. (Wilson, supra, 7 Cal.5th 

at pp. 891-892.) Whether the conduct rises to the level of extreme and 

outrageous conduct is, similarly, usually a determination made by the trier of 

fact. (Spinks, supra, 171 Cal.App.4th at p. 1045.) 

V. Park III’s Request for Attorney Fees and Costs

Because we conclude that the court properly denied the anti-SLAPP 

motions, Park III is not a “prevailing defendant.” (Civ. Proc. Code, § 425.16, 

subd. (c).) Thus, Park III is not entitled to attorney fees or costs.

DISPOSITION

The order is affirmed. Snook and Park III to bear their own costs on 

appeal. 

HUFFMAN, Acting P. J.

WE CONCUR:

IRION, J.

BUCHANAN, J.