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Filed 3/6/23 Noel v. Collier-Key CA3

NOT TO BE PUBLISHED

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 This opinion has not been certified for publication 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.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

THIRD APPELLATE DISTRICT

(Siskiyou)

----

ANN NOEL et al.,

Plaintiffs and Respondents,

v.

DANA COLLIER-KEY,

Defendant and Appellant.

C094292

(Super. Ct. No. 

SCCVCVCV2020757)

Plaintiffs Ann and Robert Noel (collectively, the Noels; because plaintiffs share 

the same surname, this opinion refers to them individually by their first names to avoid 

confusion) and defendant Dana Collier-Key served at various times on the Klamath River 

Country Estates Owners Association (Association) board of directors (Board) and its 

committees. After Collier-Key sent several derogatory email and social media messages 

about the Noels and their involvement in the Association, effectively accusing them of 
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criminal and unethical conduct, including engaging in an illegal kick-back scheme with a 

contractor hired to fix the Association’s roads, they sued Collier-Key for defamation, 

among other things. 

Collier-Key filed a special motion to strike the defamation cause of action under 

Code of Civil Procedure section 425.16, also known as the anti-strategic lawsuits against 

public participation (anti-SLAPP) statute, arguing the defamation claim implicated 

Collier-Key’s constitutional free speech rights concerning public issues related to the 

Association’s business and governance. (Statutory section citations that follow are found 

in the Code of Civil Procedure unless otherwise stated.) The trial court denied CollierKey’s anti-SLAPP motion, finding that although at least some of Collier-Key’s 

statements qualified as protected activity related to a public issue, the Noels had shown a 

reasonable probability of success on the merits of their defamation claim. Collier-Key 

appeals that order. 

Collier-Key contends the court erred in denying her anti-SLAPP motion because

all of her statements constituted protected activity and the Noels failed to show a 

probability of success on the merits of their defamation claim. She also argues the court 

erred in declining to strike supplemental declarations from Ann and her attorney 

opposing the motion. Finding no merit to her contentions, we shall affirm.

FACTS AND HISTORY OF THE PROCEEDINGS

The Noels and Collier-Key both owned parcels in the Klamath River Country 

Estates residential development, a common interest development in rural Siskiyou 

County governed by the Association. Parcel owners within the common interest 

development constitute the voting members of the Association. 

One of the Association’s duties is to maintain the roads within the residential 

development. For that purpose, it has a volunteer roads committee that inspects the 

development’s roads, reports on conditions, and prioritizes work that is needed. The 
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roads committee does not handle any Association money, and it does not award any 

Association contracts for the roadwork to be completed. 

The Association is governed by the Board, and the Board elects officers, including 

a president, treasurer, and secretary. At various times, both the Noels and Collier-Key 

have served on the Board or otherwise volunteered on Association committees. 

Collier-Key served as a Board member from January 2018 through January 2020, 

holding the positions of Board secretary and corporate secretary for a portion of that time 

in 2018. Ann was elected to the Board in 2019 as its corporate treasurer. Her husband, 

Robert, volunteered on the Association’s road committee beginning in 2019. 

Diana Gwaltney was a Board member and Association secretary during the time 

that Collier-Key was also on the Board. She averred on the Noels’ behalf that CollierKey would repeatedly verbally assault and bash Ann during open meeting sessions of the 

Board, which members of the Association attended. During those meetings, Collier-Key

often accused Ann of embezzlement and of being a thief and breaching her fiduciary duty 

to the Association. Although Gwaltney and other Association members asked CollierKey to present the Board with whatever proof she had to support her allegations against 

Ann regarding her alleged misconduct, Collier-Key never presented any documents or 

evidence to support her claims. Based on her own observations and experiences, 

Gwaltney believed that Collier-Key had a “deep-seated animosity, hatred, or ill-will” 

towards Ann, and that Collier-Key made her unsupported accusations against Ann with 

malice based on this all-consuming hatred. 

Around October 2019, Collier-Key began sending several derogatory emails about 

Ann to other Board members and posted social media messages about Ann and Robert 

and their involvement in Association matters. Collier-Key’s messages repeatedly 

accused Ann of engaging in a kick-back scheme with Gerard Pelletier Backhoe & 

Excavation (Pelletier), the contractor to whom the Association awarded the roads 

maintenance contract, and using the kickbacks to build a $10,000 deck on her residence, 
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which Collier-Key claimed the Noels could not afford because they almost lost their 

house in foreclosure. 

The emails contained various statements to the effect that Ann had engaged in 

“past crimes,” that she was a “lying whore of [S]atan,” a “dumb ass whore[] of [S]atan,” 

and that she was a “liar[] and fool[].” One email message called Ann a “scumbag” and 

also characterized Robert as her “woman beater husband,” and insinuated that Robert had 

not actually walked and inspected the roads while volunteering on the roads committee. 

Around February 2019, Collier-Key also began posting social media messages on 

KRCE.net, which is a Facebook group page moderated by Charles Gordon that currently 

has 187 Association members. According to Collier-Key and Gordon, KRCE.net 

constitutes the Association’s social networking web page that is accessible to all 

Association members to “ ‘sound off’ about Association governance.” But according to 

Ann and Gwaltney, Gordon limits access to KRCE.net to only those persons who express 

views with which he agrees, and the web page is not a public forum to discuss 

Association business. 

Similar to her email messages, Collier-Key’s social media posts generally accused 

Ann of being a “loser[],” “liar[],” and a “thie[f].” Collier-Key again stated that Robert 

was a “woman-beating husband,” and that Ann was a “whore.” In one post, Collier-Key 

stated that Ann was “lying” and “wallowing in deception like a fat little pig in her slop” 

regarding the proper procedures for filling a vacant Board seat. In another post, CollierKey accused Ann of “manipulating many documents in the past, including opening 

sealed files and changing numbers before mailing them out to 40 some people,” thereby 

committing “[l]ayers upon layers of federal crimes.” 

Many of Collier-Key’s social media posts between February 2020 and August 

2020 suggested that the Noels improperly obtained money to construct a $10,000 deck on 

their home in a kick-back scheme with Pelletier, the road contractor. In one social media 

message, Collier-Key wrote that “She [Ann] just had a new deck built and is having a 
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roof put on. Mind you there [sic] were living hand to mouth before she got back on the 

board and the [sic] hired Peltier [sic] to over charge and kick down that bonus deck 

money. Buy her a roof next . . . [.]” She further posted that the Noels “were about to lose 

their house to foreclosure not too long ago. Now Peltier [sic] comes along and cha-ching 

home improvement money. Think about it.” 

Collier-Key also posted that “if [N]oel would have saved some of that $10,000 in 

deck money, she could have paid for her own campaign post cards.” She accused Ann 

and other Board members, which she identified as “the crew,” of hiring Pelletier, “a 

known crook,” rather than two other reputable contractors to maintain the roads, and that 

the roadwork completed did not equal the amount paid for the jobs. Collier-Key further 

posted, “We can all see where the money went. By that I mean the [N]oel’s new $10,000 

deck that they could not afford before the roads scam was played out.” 

Based on the above-described emails and social media posts, the Noels sued 

Collier-Key for defamation. Collier-Key timely filed her anti-SLAPP motion as to the 

defamation cause of action. 

We note that the Noels alleged in an amended complaint that after they filed suit, 

Collier-Key improperly gave a quitclaim deed for her residential property to her son in a 

conspiracy to render her judgment proof should the Noels prevail in their lawsuit. The 

second and third causes of action in the amended complaint to set aside a voidable 

transfer and conspiracy are not the subject of Collier-Key’s anti-SLAPP motion. 

Collier-Key argued (among other things) that as limited public figures who 

voluntarily injected themselves in Association business, the Noels could not show that 

she had made the statements with actual malice, i.e., with knowledge of their falsity or 

reckless disregard for their falsity, and that the Noels were unlikely to prevail on the 

merits because many of the statements concerning Association governance, a matter of 

public interest, were simply nonactionable hyperbolic opinion. Collier-Key submitted 

her own sworn statement describing the Association’s duties, its contentious campaigns 
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for election to the Board, and controversies surrounding the roads committee and its 

recommendations for which roads to repair. She claimed that her critical comments of 

the Noels were not meant to be taken literally; rather, they were metaphorical insults 

made in the heat of contests for Association office and over disagreements for its proper 

governance. 

The Noels opposed the motion, and filed supporting declarations from Ann, 

Robert, Gwaltney, and the Noels’ attorney. They argued that Collier-Key failed to show 

her defamatory speech was protected and denied that they were public figures or limited 

public figures, that KRCE.net was a public forum, or that Collier-Key’s statements 

related to an issue of public interest. They pointed to Collier-Key’s admission that she 

did not know the source of the funds they used to build their decks, and Gwaltney’s 

supporting declaration to show actual malice to the extent the court found that was 

required. 

In reply, Collier-Key submitted a declaration from Gordon to establish that the 

KRCE.net Facebook page was a public forum. She also argued that words like “thief” 

and “liar” in the challenged communications constituted loose, figurative, or hyperbolic 

language that was constitutionally protected, and that the Noels had failed to show a 

probability of prevailing on the merits of their defamation claim. Collier-Key also made 

various evidentiary objections to the declarations of Ann and her attorney. 

Several days before the hearing on the anti-SLAPP motion, the Noels filed 

supplemental declarations from Ann and their attorney. Collier-Key objected and moved 

to strike the supplemental declarations. 

The court considered the anti-SLAPP motion at a hearing in May 2021. The court 

sustained in part and overruled in part the objections to Ann’s original declaration. It also 

overruled Collier-Key’s objections to the Noel’s attorney’s declaration and denied the 

motion to strike both of the supplemental declarations. 
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Regarding the anti-SLAPP motion, the court found that Collier-Key had sustained 

her burden of showing that portions of the defamation cause of action arose from 

protected free speech in connection with a public issue. The court concluded that the 

anti-SLAPP statute applied to homeowner’s associations and that caselaw providing for a 

broad construction of a “public forum” weighed in favor of finding that the KRCE.net 

Facebook page qualified as a public forum. With respect to Ann, the court found that she 

was a limited public figure since she put herself in a public position in the Association by 

becoming a member of the Board. 

The court then found that under the second step in the analysis, the Noels had 

satisfied their burden of showing that they had a probability of prevailing on the merits of 

their defamation cause of action. Because the Noels had met their burden of showing 

“minimal merit” to their claim, the court denied the anti-SLAPP motion. Collier-Key 

timely appealed. 

DISCUSSION

I

Special Motions to Strike SLAPP Lawsuits

After “finding there had been ‘a disturbing increase in lawsuits brought primarily 

to chill the valid exercise of the constitutional rights of freedom of speech and petition for 

the redress of grievances[,]’ ” the Legislature enacted section 425.16 to provide a remedy 

against such chilling lawsuits. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 

811, 815, fn. 1.) The statute “ ‘sets out a procedure for striking complaints in harassing 

lawsuits that are commonly known as SLAPP suits . . ., which are brought to challenge 

the exercise of constitutionally protected free speech rights.’ ” (Monster Energy Co. v. 

Schechter (2019) 7 Cal.5th 781, 788 (Monster Energy).)

Under the anti-SLAPP procedure, a cause of action arising from an act by the 

defendant in furtherance of the person’s right of petition or free speech under the United 
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States Constitution or the California Constitution in connection with a public issue is 

subject to a special motion to strike, unless the court determines the plaintiff has 

established that there is a probability that plaintiff will prevail on the claim. (§ 425.16, 

subds. (a), (b)(1).) The statute defines the italicized text above as (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. (§ 425, subd. (e).) “ ‘The 

anti-SLAPP statute does not insulate defendants from any liability for claims arising from 

the protected rights of petition or speech. It only provides a procedure for weeding out, at 

an early stage, meritless claims arising from protected activity.’ ” (Monster Energy, 

supra, 7 Cal.5th at p. 788.) 

Resolving an anti-SLAPP motion requires the trial court to engage in a two-step 

review process. (Monster Energy, supra, 7 Cal.5th at p. 788.) First, the court decides 

whether the defendant has made a threshold showing that the challenged claim arises 

from protected activity under section 425.16. (Ibid.) If the defendant makes the requisite 

showing, the burden then shifts to the plaintiff to demonstrate the claim’s merit by 

establishing a probability of success similar to a summary judgment analysis. (Ibid.) 

At this second step, the court does not weigh evidence or resolve conflicting 

factual claims, but instead limits its inquiry to whether the plaintiff has stated a legally 

sufficient claim and made a prima facie factual showing sufficient to sustain a favorable 

judgment. (Monster Energy, supra, 7 Cal.5th at p. 788.) In doing so, the court accepts 

the plaintiff’s evidence as true, and evaluates the defendant’s showing only to determine 
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if it defeats the plaintiff’s claim as a matter of law. (Ibid.) A plaintiff seeking to 

establish the merit of a claim “ ‘may not rely solely on its complaint, even if verified; 

instead, its proof must be made upon competent admissible evidence.’ ” (Ibid.) Claims 

that satisfy this “minimal merit” threshold may proceed. (Ibid.)

Whether the defendant has shown that a claim arises from protected activity and 

whether the plaintiff has demonstrated a probability of prevailing on the merits are 

questions of law that we review independently on appeal. (Seelig v. Infinity Broadcasting 

Corp. (2002) 97 Cal.App.4th 798, 807; Monster Energy, supra, 7 Cal.5th at p. 788.) In 

making these determinations, 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 are not bound by the trial court’s analysis and will affirm the trial court’s 

decision if it is correct on any theory applicable to the case.” (Price v. Operating 

Engineers Local Union No. 3 (2011) 195 Cal.App.4th 962, 970.)

II

Protected Activity

The trial court found that Collier-Key had met her burden under the first prong of 

the section 425.16 analysis to show that portions of the defamation cause of action arose 

from protected free speech related to a public issue, which was made in a public forum, 

the KRCE.net Facebook page. While the Noels assert that the KRCE.net site may 

actually be a private forum, rather than a public one like the trial court found, we decline 

to address this contention because it is raised only in a footnote and is not specified by a 

separate heading or subheading, as required by California Rules of Court, rule 

8.204(a)(1)(B). (Sierra Club v. City of Orange (2008) 163 Cal.App.4th 523, 542; 

Roberts v. Lomanto (2003) 112 Cal.App.4th 1553, 1562 [reviewing court may disregard 

contention asserted in footnote but not raised in a properly headed argument].)
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We agree with the trial court that several of the challenged statements qualified as 

protected activity under the anti-SLAPP statute because they related to Ann’s activities

and duties as a member of the Board and her credibility as a Board member or of other 

issues of interest to the Association members, such as Robert’s performance as a 

volunteer on the Association’s road committee. 

To the extent the trial court found that certain emails Collier-Key sent to Ann and 

other Board members (described in paragraphs nine, 10, 11, and 14 of the amended 

complaint) were not made in a public forum, and thus were not protected, we conclude 

otherwise. Section 425.16, subdivision (e)(4) includes conduct in furtherance of free 

speech rights regardless whether that conduct occurs in a place where ideas are freely 

exchanged; the subdivision “governs even private communications, so long as they 

concern a public issue.” (Wilbanks v. Wolk (2004) 121 Cal.App.4th. 883, 897.) Here, the 

emails generally discussed Ann’s alleged past criminal conduct against the Association

and its members while serving on the Board, her supposed dishonesty and poor 

management while an elected Board member, and her husband’s alleged shoddy and 

dishonest work as a volunteer on the Association roads committee, all of which would 

have been issues of interest to the Association members. 

Likewise, to the extent the court concluded that certain social media posts were 

not protected by the anti-SLAPP statute because they did not concern issues pending 

before or of interest to the Association (described in paragraphs 16 through 19 of the 

amended complaint), we again disagree. The posts in question insinuated that certain 

members of the Board, which Collier-Key referred to as “the crew,” including Ann, 

improperly fired an Association contractor that was doing a good job of preventing the 

Association’s money from being stolen, that none of the Association members should 

believe Ann or anything in the Association’s newsletter (the Klamagram), whether 

Collier-Key would be voted back on the Board during Association elections and how she 

would serve with other potential or current Board members, including Ann, and how 
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Ann, while serving on the Board, refused Collier-Key’s request to clean up a dilapidated

property within the Association. The content of these social media posts related to topics 

of undoubted interest to the Association and its members as they touched on governance, 

elections, and duties of the Board and its volunteers. (Damon v. Ocean Hills Journalism 

Club (2000) 85 Cal.App.4th 468, 474-475, 479 [allegedly defamatory statements 

concerning the manner in which a large residential community would be governed 

concerned issues of public interest]; Silk v. Feldman (2012) 208 Cal.App.4th 547, 553 

[courts have recognized a homeowners association functions as a quasi-governmental 

entity, paralleling the powers and duties of a municipal government].)

Because we are not bound by the trial court’s specific rulings as to each of the 

alleged defamatory statements (Price v. Operating Engineers Local Union No. 3, supra, 

195 Cal.App.4th at p. 970 [reviewing court not bound by trial court’s analysis in ruling 

on an anti-SLAPP motion]), and because we conclude the challenged emails and social 

media posts generally addressed public issues of importance to Association members, 

including proper Association governance and management as well as the fitness for duty 

of certain Board members and volunteers, including the Noels, we conclude, as the trial 

court ultimately did, that Collier-Key satisfied her burden under the first prong of the 

anti-SLAPP analysis. We thus turn to whether the Noels satisfied their burden under the 

statute to show a probability of success on the merits.

III

Probability of Prevailing on Merits

Collier-Key contends the Noels have failed to demonstrate a probability of 

prevailing on their defamation claim. She argues that several of the statements constitute 

nonactionable hyperbolic rhetoric or opinion, some statements were protected by the 

common interest privilege, and others are too vague to be defamatory. She further 
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contends the Noels failed to prove she made the statements with actual malice, and failed 

to establish special damages. 

These arguments have no merit.

To establish a reasonable probability of success on the merits, the Noels “ ‘must 

demonstrate that the complaint is both legally sufficient and supported by a sufficient 

prima facie showing of facts to sustain a favorable judgment if the evidence’ ” they 

submitted is credited. (Wilson v. Parker, Covert & Chidester (2002) 28 Cal.4th 811, 

821.) We accept the Noels’ evidence as true and evaluate Collier-Key’s evidence only to 

determine if it defeats the Noels’ claims as a matter of law. (Monster Energy, supra, 

7 Cal.5th at p. 788.) We do not determine credibility, weigh the evidence, or resolve 

conflicting factual claims. (Ibid.; Silk v. Feldman, supra, 208 Cal.App.4th at p. 554.)

A. False Statement of Fact or an Opinion that Implies a Undisclosed False 

Factual Basis

“The tort of defamation ‘involves (a) a publication that is (b) false, (c) defamatory, 

and (d) unprivileged, and that (e) has a natural tendency to injure or that causes special 

damage.’ ” (Taus v. Loftus (2007) 40 Cal.4th 683, 720.) Defamation exposes the 

defamed person to “hatred, contempt, ridicule or obloquy or cause[s] the person to be 

shunned or avoided or injured in his or her occupation ([Civ. Code,] § 45, defining libel), 

or which charge[s] the person with crime, suggest[s] that the person has an infectious or 

loathsome disease or is impotent or unchaste, tend[s] to injure the person in his or her 

business or profession, or otherwise cause[s] actual damage ([Civ. Code,] § 46, defining 

slander).” (Rothman v. Jackson (1996) 49 Cal.App.4th 1134, 1140.) 

To determine whether a given statement is libelous, “we look to what is explicitly 

stated as well as what insinuation and implication can be reasonably drawn from the 

communication. [Citation.] . . . In this connection the expression used as well as the 
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‘whole scope and apparent object of the writer’ must be considered.” (Forsher v. 

Bugliosi (1980) 26 Cal.3d 792, 803.) 

An essential element of defamation is that the publication in question contains a 

false statement of fact. (Gregory v. McDonnel Douglas Corp. (1976) 17 Cal.3d 596, 600; 

Savage v. Pacific Gas & Electric Co. (1993) 21 Cal.App.4th 434, 444-445.) A fact can 

be proven to be false, an opinion cannot be. (See Judicial Counsel of California Civil 

Jury Instructions (Rev. June 2013) CACI No. 1707 [“A statement of fact is one that can 

be proved to be true or false”].)

The question whether a given communication contains a statement of fact or 

opinion is one of law for the court. (Baker v. Los Angeles Herald Examiner (1986) 

42 Cal.3d 254, 260.) “In making such a determination, the court must place itself in the 

position of the hearer or reader, and determine the sense or meaning of the statement 

according to its natural and popular construction.” (Ibid.) Based on the language used 

and the totality of the surrounding circumstances, the court determines whether the 

average reader or hearer “could have reasonably understood the alleged defamatory 

statement to be one of fact.” (Id. at p. 261.) However, even a statement of opinion may 

be actionable “if it implies the allegation of undisclosed defamatory facts as the basis for 

the opinion.” (Okun v. Superior Court (1981) 29 Cal.3d 442, 451-452; see Judicial 

Council of California Civil Jury Instructions (Rev. June 2013) CACI No. 1707 [under

some circumstances, a plaintiff “may recover if a statement phrased as an opinion implies 

that a false statement of fact is true”].)

In Ferlauto v. Hamsher (1999) 74 Cal.App.4th 1394, 1397-1398, an attorney sued 

the author of a book who referred to him variously as “Kmart Johnnie Cochran,” 

“creepazoid attorney” and “loser wannabe lawyer.” The court concluded that this was 

“classic rhetorical hyperbole” not actionable as defamation. (Id. at pp. 1403-1404.) The 

court reasoned that the phrase “Kmart Johnnie Cochran” “is a lusty and creative 
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expression of contempt, too loose and figurative to be susceptible of being proved true or 

false.” (Id. at p. 1403.)

Likewise, in Seelig v. Infinity Broadcasting Corp., supra, 97 Cal.App.4th 798, a 

radio talk show referred to the plaintiff, a participant in a contest to marry a wealthy 

stranger, as a “ ‘local loser,’ ” “ ‘chicken butt,’ ” and “ ‘big skank.’ ” (Id. at pp. 810-

813.) The court concluded that the statements were not actionable because “they were 

unquestionably statements of the speaker’s subjective judgment” and “fall into the realm 

of ‘classic rhetorical hyperbole which “cannot ‘reasonably [be] interpreted as stating 

actual facts.’ ” ’ ” (Id. at p. 810.)

In Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, Rosenaur sued his political 

opponents, Scherer and others, for defamation stemming from a heated exchange at a 

shopping center where one of the defendants called the plaintiff a “thief” and a “liar.” 

(Id. at p. 278.) The court concluded that the statements were not actionable, explaining: 

“In this case, taken in context, Scherer’s purported use of the word ‘thief’ and ‘liar’ in the 

course of a chance confrontation with a political foe at a shopping center was the type of 

loose, figurative, or hyperbolic language that is constitutionally protected. [Citation.] 

Specifically, in the context of a heated oral exchange at a shopping center in the midst of 

a hard-fought initiative contest, anyone who might have overheard Scherer call plaintiff a 

thief or a liar would have understood Scherer to be furious at, and critical of, plaintiff’s 

position, but would not likely have thought that Scherer’s supposed outburst was 

accusing plaintiff of a criminal past or of dishonesty in his business dealings . . . .” (Id. at 

p. 280.)

Like in Ferlauto, Seelig, and Rosenaur, we agree that at least some of CollierKey’s statements involve classic hyperbole as she argues. For example, Collier-Key’s 

references to Ann being a whore of Satan, a dumbass, a fat little pig wallowing in her 

slop, a scumbag, or even insane arguably constitute colorful figurative language showing 
15

her low opinion of Ann. However, we disagree that all of Collier-Key’s statements 

constitute nonactionable hyperbole or opinion.

We observe here that while some of the alleged hyperbolic statements alone might 

not support a defamation cause of action does not mean the allegations must be excised 

from the amended complaint, especially since they provide context and are relevant on 

the issue of malice. (Baral v. Schnitt (2016) 1 Cal.5th 376, 394 [“[a]llegations of 

protected activity that merely provide context, without supporting a claim for recovery, 

cannot be stricken under the anti-SLAPP statute”].)

The question is whether a reasonable person who read the statements that accused 

Ann and Robert of accepting some sort of kick-back from Pelletier that they then used to 

pay for a personal deck on their home after they almost lost their home in foreclosure, 

that Robert was a woman-beater husband, and that Ann had committed numerous federal 

crimes, including tampering with or manipulating Association documents before mailing 

or opening sealed files, would have interpreted them as stating fact or opinion. To state 

that Ann had essentially committed bribery or other federal crimes similar to mailtampering while she was a Board member implies that Collier-Key had knowledge that 

Ann had committed crimes for which she could be prosecuted. The same applies to the 

statements about Robert being a woman-beater, which imply that Collier-Key had 

knowledge that Robert had physically assaulted a woman, another prosecutable offense. 

While Collier-Key asserts that beating a woman might not necessarily equate with 

criminal conduct, as it is conceivable Robert acted in self-defense and thus committed no 

crime, such a nuanced, legal interpretation runs counter to what a lay person likely would 

understand the phrase “woman-beater” to mean. In considering whether the language 

used is defamatory we “look ‘ “not so much [to the allegedly libelous statement’s] effect 

when subjected to the critical analysis of a mind trained in the law, but [to] the natural 

and probable effect upon the mind of the average reader.” ’ ” (Ferlauto v. Hamsher, 

supra, 74 Cal.App.4th at p. 1401.) 
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In our view, a reasonable lay reader or listener would have concluded that CollierKey was accusing Ann and Robert of having engaged in specific criminal conduct rather 

than merely loose rhetoric describing a political foe. Her comments clearly accuse Ann 

of criminal and ethical violations regarding her duties to the Association as a Board 

member. And, we believe, an average reader would have understood that the statements 

that Robert was a “woman-beater” meant that he physically beat a woman without any 

legal justification such as self-defense. These statements are not hyperbole, but 

statements of fact, provable to be true or false. And such statements--accusing Robert 

and Ann of identifiable crimes--if false, naturally tended to subject Ann and Robert to 

“hatred, contempt, ridicule or obloquy, or which causes him to be shunned or avoided, or 

which has a tendency to injure him in his occupation” (Civ. Code, § 45) by other 

members of the Board or the Association.

To the extent Collier-Key argues some of the alleged statements are “too vague” 

to be defamatory, this argument, too, is without merit. As the Noels point out, “[t]here is 

no requirement that the person defamed be mentioned by name.” (DiGiorgio Fruit 

Corp. v. American Federation of Labor and Congress of Indus. Organizations (1963) 

215 Cal.App.2d 560, 569.) “It is sufficient if from the evidence the jury can infer that the 

defamatory statement applies to the plaintiff[,]” or “if the publication points to the 

plaintiff by description or circumstance tending to identify him.” (Id. at pp. 569-570.) 

Collier-Key’s vagueness argument essentially ignores that she published the social media 

posts to a targeted audience--members of the residential development the Association 

governed, where the Noels also lived. Thus, it is reasonably probable that the readers of 

Collier-Key’s posts understood that defendant was writing about the Noels and accusing 

them of dishonesty and potentially of criminal behavior regarding their actions on the 

Board and roads committee, especially since the chain of social media posts often did 

identify them by name when accusing them of criminal activity. 
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B. Actual Malice

In determining whether the Noels have met their burden of demonstrating a 

probability of prevailing on the merits, we must consider whether they qualify as private 

or public figures. “[A] private person need prove only negligence (rather than malice) to 

recover for defamation.” (Brown v. Kelly Broadcasting Co. (1989) 48 Cal.3d 711, 742.) 

A libelous statement is made with “actual malice” when the speaker knows the 

statement is false or makes the statement with reckless disregard of whether it was false. 

(Reader’s Digest Assn. v. Superior Court (1984) 37 Cal.3d 244, 256.) Actual malice may

be proved by direct or circumstantial evidence. (Id. at pp. 257-258.) Evidence of the 

publisher’s motive and intent, a failure to investigate, anger and hostility toward the 

plaintiff, reliance upon sources known to be unreliable or known to be biased against the 

plaintiff may, in an appropriate case, indicate that the publisher himself entertained 

serious doubts regarding the truth of his publication. (Reader’s Digest, at pp. 257-258.)

The trial court here found that Ann was a limited public figure because she put

herself in a public position within the Association by becoming an elected Board 

member. The court made no such finding as to Robert. 

We need not decide whether the court properly concluded that Ann and not Robert 

was a limited public figure. (Ampex Corp. v. Cargle (2005) 128 Cal.App.4th 1569, 1577 

[“[t]he limited purpose public figure is an individual who voluntarily injects him or 

herself or is drawn into a specific public controversy, thereby becoming a public figure 

on a limited range of issues”].) Even if we assume, for purposes of argument, that both 

qualify as limited public figures given Ann’s status as an elected Association Board 

member and Robert’s position as a volunteer Association roads committee member, the 

evidence presented on the motion was sufficient to prove Collier-Key acted with the 

requisite malice in defaming them. In our view, the evidence presented in the trial court 

on the motion to strike, if credited by the trier of fact, is sufficient to establish actual 
18

malice, that is, to establish that Collier-Key, in making the alleged statements, acted out 

of hatred or ill will toward the Noels and that she lacked a reasonable basis for believing 

in the truth of her statements. 

Collier-Key repeatedly accused the Noels of accepting what amounts to a $10,000 

bribe from the Association’s road contractor to build a deck on their home. Both Ann 

and Robert, however, denied any involvement in any kick-back scheme and specifically 

averred that they saved their money and used family money to purchase the deck. If 

credited, this evidence shows that Collier-Key’s published statements were false. 

Collier-Key admitted in her discovery responses that she did not know the source 

of the funds the Noels used to build their deck. Thus, she had no reasonable basis for 

believing that the Noels obtained the money to build their deck from an illegal kick-back 

scheme at the Association’s expense. 

Collier-Key’s contention that her statement regarding Robert being a “womanbeater” was apparently true, or that she reasonably believed it to be true, also finds no 

support in the record. Although she claimed in the trial court that her declaration 

supporting her motion to strike established the basis for this assertion--that some 

unidentified female victim had described Robert’s alleged assault to Collier-Key--a 

review of Collier-Key’s actual declaration shows it makes no such averment. In fact, 

Collier-Key’s declaration noticeably omits any reference whatsoever to the alleged 

female victim, whether the unidentified person was reliable, or what that unknown person 

may or may not have told her about Robert. Thus, the only admissible evidence before 

the trial court was Robert’s declaration stating that Collier-Key’s woman-beating 

accusation was false. 

Ann also averred and Robert confirmed that Collier-Key had “made it clear over 

the years, both publicly and privately, that she has a well-established hatred of [Ann], and 

animosity, anger and hostility toward [her], to the point that [Ann] even fear[ed] that she 

will cause [her] physical bodily harm.” At some point, Collier-Key circled Ann’s name 
19

on a piece of paper in the office and wrote “Evil” next to it after the Association hired a 

new office employee so the new employee would understand how Collier-Key viewed 

Ann. Ann believed that Collier-Key’s deep hatred of her possibly arose after the 

Association took Collier-Key’s mother to small claims court for failing to pay 

assessments. If credited at trial, a trier of fact might reasonably conclude that CollierKey made many of the defamatory statements as payback for a perceived wrong to her 

mother, which fueled Collier-Key’s animosity towards Ann, and not because Collier-Key 

reasonably believed the defamatory statements to be true.

Gwaltney’s declaration, if believed by the trier of fact, further supports a finding 

that Collier-Key deeply hated Ann and had no basis for accusing her of dishonesty and 

other criminal conduct. According to Gwaltney, Collier-Key would viciously attack Ann 

during Association meetings, repeatedly accusing her of embezzlement, of being a thief, 

and of breaching her fiduciary duties to the Board. Collier-Key never provided any proof 

to substantiate her criminal and misconduct allegations against Ann, even though 

Gwaltney and other Association members requested evidence to support her serious 

accusations. Based on her own personal observations of Collier-Key and Ann, it was 

Gwaltney’s opinion that Collier-Key held a deep-seated animosity or hatred towards Ann 

and that Collier-Key made baseless accusations of a criminal nature against Ann. 

And, as the Noels point out, Collier-Key’s own vitriolic words tended to show that 

she harbored a deep hatred of Ann. For example, Collier-Key repeatedly described Ann 

as a “lying whore of [S]atan.” The word “whore” is commonly understood as a 

derogatory term that means a promiscuous or immoral woman (see

https://perma.cc/HM5F-H3N6, visited Feb. 23, 2023), and Satan is perhaps the mosthated figure in Christianity. (See https://perma.cc/43QR-4N75, visited Feb. 23, 2023

[defining Satan as “the rebellious angel who in Christian belief is the adversary of God 

and lord of evil”].) Collier-Key’s repeated use of such a derogatory phrase reveals her 

extreme resentment or hatred of Ann. Thus, while such language may be hyperbolic 
20

rhetoric and may not be sufficient to establish malice alone, it nevertheless tends to 

support the Noels’ claim that Collier-Key acted without regard to whether the statements 

she made were true, blinded by her hatred of Ann. (Baral v. Schnitt, supra, 1 Cal.5th at 

p. 394 [contextual allegations of protected activity, even if they do not support a claim for 

recovery, not stricken under the anti-SLAPP statute].)

Finally, we note that Collier-Key did not file a declaration with her reply brief 

below denying or otherwise contradicting the declarations of Ann, Robert, or Gwaltney. 

Instead, Collier-Key filed only Gordon’s declaration in response, which did not address 

or deny in any manner whatsoever Collier-Key’s all-consuming hatred of Ann or the 

basis for her challenged statements. Thus, nothing in Collier-Key’s evidence rebutted the 

Noels’ malice showing as a matter of law. (Monster Energy, supra, 7 Cal.5th at p. 788.)

C. Nonprivileged Communication

Collier-Key argues that some of her comments were protected by the common 

interest privilege, but she never raised that issue below. Points not raised in the trial court 

may not be raised for the first time on appeal. (Degnan v. Morrow (1969) 2 Cal.App.3d 

358, 366.) 

Regardless, the common interest privilege only protects certain communications 

made without malice. (Civil Code, § 47, subd. (c)(1) [“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 . . .”]; Taus v. Loftus, supra, 

40 Cal.4th at p. 721.) Having determined that sufficient evidence on the motion to strike 

established actual malice if credited by the trier of fact, the common interest privilege 

would not apply.

D. Special Damages

Collier-Key also claims in her reply brief on appeal that the Noels cannot show a 

probability of prevailing because they failed to demonstrate special damages. A review 
21

of Collier-Key’s moving and reply papers shows she never raised the issue of special 

damages in the trial court, instead focusing only on whether the statements constituted 

actionable defamatory statement of fact or nonactionable hyperbolic opinion. She cannot 

do so now for the first time on appeal. (Degnan v. Morrow, supra, 2 Cal.App.3d at 

p. 366.)

In any event, “ ‘[w]here the statement is defamatory on its face, it is said to be 

libelous per se, and actionable without proof of special damage.’ ” (Silk v. Feldman, 

supra, 208 Cal.App.4th at p. 555; Civ. Code, § 45a [“A libel which is defamatory of the 

plaintiff without the necessity of explanatory matter . . . is said to be a libel on its face”].) 

Collier-Key’s emails and social media posts on their face repeatedly accused the Noels of 

engaging in a kick-back scheme that essentially amounts to bribery and a serious breach 

of fiduciary duty, accused Ann of committing numerous federal crimes, including 

tampering with Association mail or sealed files, and accused Robert of committing a 

criminal battery on a woman. Such statements are “libelous per se.” (Silk, at p. 556 

[reviewing court deemed letter accusing former homeowner’s association Board member

of breaching her fiduciary duty by using her position as a Board member to settle a 

lawsuit against the board so that she could obtain free parking spaces as libelous per se]; 

Weinberg v. Feisel (2003) 110 Cal.App.4th 1122, 1127 [recognizing that false 

accusations of criminal conduct, “which are among the most clear and egregious types of 

defamatory statements” are “libel per se”]; Barnes-Hind, Inc. v. Superior Court (1986) 

181 Cal.App.3d 377, 385 [false accusation of “ ‘dishonesty or questionable business 

methods’ ” are libel per se].) 

The evidence the Noels presented adequately showed that their defamation cause 

of action was legally sufficient and had minimal merit, and none of Collier-Key’s 

evidence defeats their claim as a matter of law. Thus, the trial court properly denied 

Collier-Key’s anti-SLAPP motion to strike.
22

Finally, although we conclude the trial court did not err in denying Collier-Key’s 

anti-SLAPP motion, we reject the Noel’s suggestion that they are entitled to attorneys’ 

fees on appeal because there was “no good reason” to appeal the court’s adverse ruling. 

IV

Supplemental Declarations

Defendant contends that the trial court erred in declining to strike the supplemental 

declarations filed by Ann and her attorney a few days before the hearing on the antiSLAPP motion to strike. She contends considering the untimely declarations deprived 

her of due process and the opportunity to rebut the supplemental declarations with 

additional declarations or other evidence. Assuming the supplemental declarations were 

untimely, the record shows any alleged error in considering them was harmless. (Waller 

v. TJD, Inc. (1993) 12 Cal.App.4th 830, 833 [“[p]rejudice is not presumed, and the 

burden is on the appealing party to demonstrate that a miscarriage of justice has 

occurred”].) 

Ann’s supplemental declaration sought to establish that the KRCE.net Facebook 

page maintained by Gordon was not a public forum, an issue Gwaltney’s declaration 

already addressed. Despite considering her supplemental declaration, the court found in 

favor of Collier-Key’s position and against the Noels that the KRCE.net page was a 

public forum. Thus, any consideration of Ann’s supplemental declaration did not 

prejudice Collier-Key.

Similarly, the original declaration of the Noels’ attorney, which was timely filed, 

attested to Collier-Key’s responses to certain discovery requests for admissions, 

including that she made the statements attributed to her and that she did not know the 

source of funds the Noels used to build their deck. The attorney’s supplemental 

declaration reiterated the same information, and merely attached the actual discovery 

request and response as exhibits. The court overruled Collier-Key’s evidentiary 
23

objections to the attorney’s original declaration, and Collier-Key does not raise any issue 

on appeal regarding that evidentiary ruling. Thus, any error in considering the 

supplemental attorney declaration was harmless as the court had already admitted the 

same evidence by overruling Collier-Key’s objections to the attorney’s original 

declaration.

DISPOSITION

The trial court’s order denying Collier-Key’s anti-SLAPP motion to strike is 

affirmed. The Noels shall recover their costs on appeal. (Cal. Rules of Court, rule 

8.278(a)(1)-(2).)

 

HULL, Acting P. J.

We concur:

 

MAURO, J.

 

BOULWARE EURIE, J.