Opinion
D059452
07-19-2012
R. DAVID VERDUGO et al., Plaintiffs and Appellants et al., v. SOUTHWESTERN YACHT CLUB et al., Defendants and Respondents.
NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.
(Super. Ct. No. 37-2010-00100031-CU-DF-CTL)
APPEAL from an order of the Superior Court of San Diego County, Judith F. Hayes, Judge. Affirmed in part and reversed in part.
In 2010, plaintiffs R. David (David) and Carolyn (Carolyn) Verdugo (together the Verdugos) were members of defendant Southwestern Yacht Club (SYC), and David was Commodore of SYC. When a confrontation between David and an employee of SYC caused the employee to raise the specter of legal action against SYC, defendants Gregg Ward and Orlando-Ward & Associates (together Ward) were retained by SYC to investigate the employee's complaints, and to provide a report and recommendations (the Ward Report) to SYC. Relying on the recommendations of the Ward Report, SYC commenced procedures for taking certain adverse actions against the Verdugos, including possibly removing David as Commodore and terminating the Verdugos' membership in SYC. Although no adverse action had been taken before the Verdugos commenced the present lawsuit, the events and conversations transpiring in connection with the subsequent disciplinary proceedings triggered this action.
The Verdugos filed this lawsuit, alleging they were injured as a result of the Ward Report and the events and conversations connected with SYC's subsequent disciplinary proceeding. The lawsuit alleged claims for defamation, intentional infliction of emotional distress, tortious interference with contract, and breach of contract against numerous defendants.
The Verdugos' complaint alleged claims for defamation against Ward, SYC, the members of SYC's Board of Directors (Board) defendants, the Staff Commodore defendants (Messrs. Dysart, Fallon and Ferguson) for SYC, as well as defamation claims against four individual members of SYC. The complaint also alleged claims for intentional infliction of emotional distress (against Ward, SYC, the Board defendants, the Staff Commodore defendants, and numerous individual members of SYC), and a claim for breach of contract against SYC.
The present appeal involves all of the Verdugos' claims except the alleged breach of contract action. All defendants moved to strike the claims for defamation, intentional infliction of emotional distress, and tortious interference with contract, pursuant to Code of Civil Procedure section 425.16, commonly referred to as the anti-SLAPP (strategic lawsuit against public participation) statute. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57.) Defendants' argument was that all of the statements on which the Verdugos' lawsuit was based were within the ambit of the anti-SLAPP law as speech connected to judicial or other proceedings authorized by law. The trial court granted the motions to strike, concluding (1) defendants had made a prima facie showing the claims were based on protected speech, and (2) the Verdugos did not carry their burden of showing probable success on the merits.
All statutory references are to the Code of Civil Procedure unless otherwise specified.
On appeal, the Verdugos argue the anti-SLAPP law was inapplicable because none of the statements qualified as protected conduct under the anti-SLAPP law. They alternatively assert that, even if the anti-SLAPP law does apply, the trial court's ruling must be reversed because they had adequately demonstrated a probability of success on the merits.
FACTUAL BACKGROUND
A. The Parties
SYC is a nonprofit mutual benefit corporation. The remaining SYC-related defendants are members of SYC's Board, or are "Staff Commodores" (members who act in an advisory capacity only to SYC's officers or committees), or are members of SYC.
We hereafter refer to these SYC-related defendants as the "SYC defendants."
The Verdugos are longtime members of SYC and have a contractual relationship with SYC, the terms of which include the SYC bylaws. For the calendar year 2010, David was Commodore of SYC. The Commodore serves as the "primary representative" of SYC, is Chairman of SYC's Board, and is responsible for administering SYC's bylaws and enforcing SYC's rules and regulations.
Ward is a third party that holds no membership in SYC. Ward was hired in 2010 by SYC to perform certain work in connection with a complaint by an employee of SYC against David and others.
B. The Alleged Misconduct and the Ward Report
In May 2010 David confronted a female SYC employee over his displeasure about her choice of ties for that season. The employee reported the "tie incident" to SYC's manager, Mr. Wheeler, who suggested she document her complaint. In the employee's subsequent May 30, 2010, letter of complaint, the employee stated David "was very aggressive in his words, and I felt humiliated and demeaned by his tone. I also felt afraid. I literally felt my insides go liquid as he spoke to me." Her letter then described another incident earlier in 2010, which the employee characterized as a sexual assault and verbal abuse against her by a different SYC member, and stated the steps taken by SYC had "[a]fter several months, [made her feel] confident and secure at the Club, feeling that the Board of Directors had really changed the Club culture where certain members demeaned and assaulted employees at will." However, she then expressed disappointment that "[David,] who promised . . . me . . . he would do everything in his power to make sure all the members knew not to treat employees badly has treated me cruelly in a public setting. His actions have shaken my confidence and once again I feel that [SYC] is a hostile work environment," and she feared "retaliation" and "dread[ed] interacting with him again."
SYC promptly responded to the employee's complaint by hiring Ward to investigate her complaints and deliver a report and make recommendations to SYC. Ward interviewed David and the employee. Ward also interviewed six other individuals who had witnessed the incident, interacted with David and/or the employee immediately before and/or after the incident, or had knowledge of the alleged sexual harassment incident referenced in her letter of complaint. During the course of these interviews, "a number of other incidents (including those that were and were not formally investigated) . . . involving [David], [Carolyn], other members of [SYC] and [the employee] were raised and presented to [Ward]."
The Ward Report presented its findings and recommendation to SYC. The Ward Report stated that David's version of the language and tone he employed during the "tie incident" disagreed with the version related by the employee and the other witnesses. David said he merely expressed his dissatisfaction with the ties, and did not employ foul language or language degrading women as a gender, and that his tone was not harsh, demeaning or humiliating but was "rather 'innocuous.' " The employee said his words and tone were harsh, demeaning and humiliating, but she agreed he did not use foul language or language degrading women as a gender. The witnesses agreed with the employee as to the tone employed by David, and described him as being visibly agitated around the time of the confrontation. The witnesses reported he did berate and admonish the employee for a performance issue, used foul language about (though not in the presence of) the employee, and described his tone as "inappropriate[,] . . . 'harsh,' . . . 'over-the-line,' [and] 'not Corinthian behavior.' "
The employee said David had not previously engaged in similar harsh or berating conduct towards her, but that she had observed or was aware of a number of prior incidents in which he had behaved inappropriately toward other SYC members using foul or abusive language. She stated that, based on her knowledge of his conduct toward others, and his conduct towards her, she was " 'afraid' " of David and was " 'physically uncomfortable' in his presence." Other witnesses confirmed the employee's account of other incidents involving the Verdugos " 'attacking,' 'yelling at,' [and] 'cursing at' [other] members of [SYC], including an altercation . . . in October 2009."
The employee told Ward she was considering legal action against SYC as a result of the tie incident and other incidents involving SYC members. She stated she preferred not to sue SYC but instead would like to "see the culture 'changed' to one where members and employees 'are treated with respect' and in a 'professional manner.' "
The Ward Report contained numerous conclusions, including that David's conduct toward the employee violated SYC's rules and regulations concerning members' conduct towards employees. The Ward report concluded David's behavior was not an isolated incident, but was a continuation of a pattern of conduct that had previously drawn a reprimand and warning from SYC arising out of the October 2009 incident, and that his conduct was creating a "climate of fear and intimidation" at SYC. The Ward Report, noted that (in less than nine months) David's conduct had required SYC to twice expend its limited resources to investigate and respond to his inappropriate behavior, and that absent serious disciplinary action by SYC against him, it was likely he would reoffend and require SYC to spend additional resources investigating and possibly defending itself in court.
The Ward Report recommended David be asked to resign his membership in SYC and, should he not resign, that SYC should institute proceedings to terminate his membership. If the Board elected not to pursue this avenue, the report alternatively recommended David be suspended for three months and, upon his return, he be precluded from interacting with any staff and be required to conduct himself toward members and staff in accordance with "Corinthian behavior." The Ward Report also recommended the Board inform David of its selected course of action in a private meeting, and that security be present to obviate the possibility he would react inappropriately to the disciplinary action.
C. The Fallout
The Disciplinary Proceedings
At a Board meeting on June 21, 2010, the Board found David's actions were prejudicial to the best interests and welfare of SYC, in violation of Article V, section 11.A.2 of SYC's bylaws, and voted to terminate the Verdugos' membership under Article V, section 11.B.5 of SYC's bylaws , effective July 20, 2010. The Board's June 23, 2010, letter to the Verdugos informed them of the Board's action, specified a hearing had been scheduled in advance of the effective date of the termination to permit them to present evidence or witnesses regarding that action, and provided them with the underlying documents, including the Ward Report.
Notwithstanding a cease and desist letter from the Verdugos' counsel, the Board proceeded with the scheduled July 14, 2010, hearing. However, because numerous persons appeared at the hearing to provide testimony supporting the Verdugos, the hearing became chaotic and the hearing was ultimately adjourned with no action taken. The Verdugos retained their membership and David retained his office as Commodore.
The Additional Publications
Because of the dissension and confusion among the members created by the events and the lack of any resolution of the dispute over the Verdugos' continuing membership, the Board published an "open letter" to SYC'S members describing the genesis of the dispute over the Verdugos' continued membership. The Verdugos' counsel responded with a letter to members providing the contrary version of the events.
During the same period, SYC was awaiting funding for a $6.5 million redevelopment loan from a bank. On September 9, the Verdugos' counsel wrote the bank and informed it David had been excluded from normal board activities, and the Verdugos intended to pursue litigation against SYC. Shortly thereafter, members Mr. and Mrs. Smith complained to the Board that the letter to the bank was potentially harmful to SYC, and breached David's fiduciary duties to SYC, warranting suspension or termination under the bylaws. Another member, Mr. Harry, also wrote a letter complaining that the behavior towards the bank violated David's oath of office and duty to SYC, and warranted removal.
II
PROCEDURAL HISTORY
A. The Lawsuit and Anti-SLAPP Motion
The Verdugos' first amended complaint in this action alleges a variety of claims against SYC, the Board defendants, the Staff Commodore defendants, the members who complained of the letter to the bank, and Ward. (See fn. 1, ante.) The SYC defendants and Ward separately moved to strike the complaint under the anti-SLAPP statute. The SYC defendants argued the core conduct underlying the Verdugos' claims was protected conduct, because the Verdugos' claims rested on statements made as to matters pending before (or in connection with) the proposed SYC disciplinary proceeding against the Verdugos, which was a official proceeding authorized by law within the meaning of section 425.16, subdivisions (e)(1) and (e)(2). Ward separately argued any statements alleged as against it were connected to matters involving threatened litigation by the employee (as well as comprising statements made in matters before or in connection with the proposed SYC disciplinary proceeding), either of which fell within the protections of section 425.16, subdivisions (e)(1) and (e)(2). All defendants therefore argued they had satisfied the prima facie showing required for application of the anti-SLAPP statute and the Verdugos could not satisfy their burden of showing probable success on the merits. They therefore argued the matter should be dismissed.
The Verdugos opposed the motion, asserting defendants did not satisfy their prima facie showing that the anti-SLAPP statute applied to the claims asserted by the Verdugos' lawsuit. They argued disciplinary proceedings under SYC's bylaws do not fall within the intended ambit of section 425.16, subdivisions (e)(1) and (e)(2), and therefore claims based on defamatory statements made in connection with those proceedings are outside the scope of the anti-SLAPP statute. They also argued that, although the employee's threatened lawsuit (and her related statements) would fall within the provisions of section 425.16, subdivisions (e)(1) and (e)(2), the actionable conduct by the defendants involved defamatory statements irrelevant to the scope of the employee's proposed lawsuit, and therefore the Verdugos' claims were outside the scope of the anti-SLAPP statute. The Verdugos alternatively argued that, even assuming the prima facie showing had been made by defendants, the Verdugos had shown probable success on the merits.
On Ward's motion to strike, the trial court concluded the conduct engaged in by Ward—its investigation and report—qualified for protection both as conduct undertaken in connection with the employee's threatened litigation, and because it was connected to a proceeding (the proposed disciplinary proceeding) authorized by law. The court concluded the Verdugos had not shown probable success on the merits, and therefore granted Ward's motion to strike all of the Verdugos' claims against it.
On the motion to strike filed by the SYC defendants, the trial court likewise found the statements forming the basis of the Verdugos' claims against the SYC defendants were statements connected to an issue before a proceeding (the proposed disciplinary proceeding) authorized by law, and the Verdugos had not shown probable success on the merits. Accordingly, the court granted the SYC defendants' motion to strike all claims (except the Verdugos' claim against SYC for breach of contract) against the SYC defendants. The Verdugos timely appealed.
ANALYSIS
A. Legal Framework
The anti-SLAPP statute is available "to provide for the early dismissal of unmeritorious claims filed to interfere with the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances." (Club Members for an Honest Election v. Sierra Club (2008) 45 Cal.4th 309, 315.) The Legislature authorized the filing of a special motion to strike qualified claims (§ 425.16, subds. (b)(1), (f)), and expressly provided that section 425.16 should "be construed broadly." (§ 425.16, subd. (a).)
To determine whether a cause of action should be stricken under the anti-SLAPP statute, section 425.16 establishes a two-step test. In the first step, the party bringing the motion has the initial burden of showing that the cause of action arises from an act in furtherance of the right of free speech or petition—i.e., that it arises from a protected activity. (Zamos v. Stroud (2004) 32 Cal.4th 958, 965.) To meet this threshold showing, the defendant must show the conduct on which the plaintiff's claims are based is conduct falling within one of the four categories of conduct described in section 425.16, subdivision (e). (Siam v. Kizilbash (2005) 130 Cal.App.4th 1563, 1569.) Those four categories are: "(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." (§ 425.16, subd. (e).)
If the defendant meets this threshold showing, the burden then shifts to the plaintiff to demonstrate a probability of prevailing on the cause of action. (Siam v. Kizilbash, supra, 130 Cal.App.4th at p. 1569.) " 'To demonstrate a probability of prevailing on the merits, the plaintiff must show that the complaint is legally sufficient and must present a prima facie showing of facts that, if believed by the trier of fact, would support a judgment in the plaintiff's favor.' " (Stewart v. Rolling Stone LLC (2010) 181 Cal.App.4th 664, 679.) A plaintiff does not meet this burden by simply relying on the allegations of the complaint, but instead must produce evidence that would be admissible at trial. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212.) The court cannot weigh this evidence, but instead determines whether the evidence is sufficient to support a judgment in the plaintiff's favor as a matter of law. (Ibid.)
Only when a cause of action satisfies both parts of the anti-SLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is that claim subject to being stricken under the statute. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) On appeal, we independently review the trial court's order granting a special motion to strike under section 425.16. (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055.)
B. Ward's Motion
The Verdugos' claims against Ward relied exclusively on the damage allegedly caused by the investigation and report by Ward into the employee's complaints against David and SYC that undergirded her threatened lawsuit against SYC. Ward's motion argued the Verdugos' claims therefore fell squarely within the ambit of the anti-SLAPP statute because the investigation and report was undertaken in anticipation of litigation with the employee, and hence involved statements made in connection with an issue under consideration by a judicial body within the meaning of section 425.16, subdivision (e)(2). The trial court agreed and, after concluding the Verdugos had not demonstrated a probability of prevailing on the merits with a prima facie showing of admissible evidence that would support a judgment in their favor, granted Ward's motion to strike the claims asserted against it.
The Threshold Showing of Anti-SLAPP Application Was Met
Ward argues, and the Verdugos concede, that communications reasonably relevant to pending or anticipated litigation are ordinarily within the ambit of the anti-SLAPP protections provided under section 425.16, subdivision (e)(2). (See, e.g., Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1263-1266.) In Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, a tenant counseling service was sued for defamation and infliction of emotional distress by owners of residential rental properties for allegedly giving false information to plaintiffs' tenants and making defamatory statements about plaintiffs. The court concluded the defendant tenant counseling service was entitled to the protections of the anti-SLAPP statute against that lawsuit, explaining that "[defendant's] counseling of tenant Bond, apparently, was in anticipation of litigation, and courts considering the question have concluded that '[j]ust as communications preparatory to or in anticipation of the bringing of an action or other official proceeding are within the protection of the litigation privilege of Civil Code section 47, subdivision (b) [citation], . . . such statements are equally entitled to the benefits of section 425.16.' " (Id. at p. 1115.)
Ward's investigation and report qualifies as protected activity under this "pre-litigation activities" line of authority. It is undisputed (1) the employee complained about David and asserted he had contributed to creating a hostile working environment, (2) the employee threatened litigation, and (3) the employee told Ward she had consulted an attorney and was considering a lawsuit against SYC. Ward investigated her allegations, and reported its findings, which reasonably included information from third parties concerning David's interactions with others that had some bearing upon the relative veracity of the employee's version and David's version of what occurred.
The Verdugos argue that, because the Ward Report included statements far beyond the scope of any threatened litigation by the employee and instead devolved into a recitation of alleged conduct by David unrelated to whether the employee had a meritorious claim for a hostile working environment, the anti-SLAPP protections were forfeited under the rationale of Paul v. Friedman (2002) 95 Cal.App.4th 853 (Paul). However, Paul is inapposite to the facts of this case.
In Paul, a security broker filed suit against an attorney who had represented the security broker's former clients in an arbitration proceeding. During the arbitration proceeding, the attorney and the broker signed a confidentiality agreement concerning an unsuccessful mediation of the dispute. (Paul, supra, 95 Cal.App.4th at p. 858.) The arbitrator awarded the security broker $700,000 in sanctions against the attorney and the former clients for "frivolous" claims, and the attorney subsequently sent a written communication to a legal periodical that disclosed confidential information and filed a declaration in a civil proceeding that described the confidential statements. (Id. at pp. 857-858.)
After the arbitration award was returned, the security broker filed an action against his former clients and also sued the attorney alleging, among other things, that the attorney conducted an investigation of the broker that "far exceeded the scope of permissible discovery or investigation in the arbitration and was unreasonably intrusive," and "made public disclosures of embarrassing private facts about [the broker] to clients and prospective clients, including his financial affairs, spending habits, taxes and tax liabilities, relations with his clients, and close personal relationship with another individual," and "intruded into private places and private affairs, including entry into property owned by [the broker], covert surveillance of [him], seeking private financial, credit, tax and occupational information, and questioning individuals with no possible knowledge of the claims made in the arbitration," and "procured a client list and other internal documents of CIBC Oppenheimer containing trade secrets by improper means, used those documents to identify [the broker's] clients, and made false accusations and/or embarrassing disclosures about [him] to those clients," and breached the written confidentiality agreement in numerous postlitigation venues. (Paul, supra, 95 Cal.App.4th at pp. 857-858.) The Paul court held the broker's lawsuit was not subject to a section 425.16 motion to strike, reasoning the intrusive and harassing investigation and postarbitration conduct, which bore no relationship to the matters under review in the arbitration, were not within the scope of conduct sought to be protected by section 425.16. (Id. at pp. 861-868.)
Paul is inapplicable here because the attorney's actions in Paul, in investigating and harassing the broker, had no relationship to the underlying arbitration and included statements by the attorney made outside of the arbitration, and statements made even after the arbitration was concluded. Here, the Ward Report relates the investigation of the employee's complaint, and information from percipient witnesses (including facts germane to evaluating whether David's denial of inappropriately harsh treatment was credible), and disclosed his findings and recommendations to limited parties (SYC's board) in light of the investigation in anticipation of the litigation.
The Verdugos Did Not Show Probable Success on the Merits on Claims Against Ward
The Verdugos submitted no evidence below demonstrating a likelihood of success on the merits on their claims against Ward. Instead, the Verdugos merely submitted a declaration that the contents of the complaint were "true and accurate to the best of our knowledge." However, "[i]n assessing the probability of prevailing, a court looks to the evidence that would be presented at trial . . . [and] a plaintiff cannot simply rely on its pleadings, even if verified, but must adduce competent, admissible evidence." (Roberts v. Los Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 613-614.) The trial court did not err in concluding the Verdugos failed to show probable success on the merits as to the claims against Ward.
Conclusion
Ward met the threshold showing that the conduct on which the Verdugos' claims are based is conduct falling within section 425.16, subdivision (e)(2), and the Verdugos did not present admissible evidence of facts that, if believed by the trier of fact, would support a judgment in the Verdugos' favor. Accordingly, we affirm the order striking the claims against Ward.
C. The SYC Defendants' Motion
The Verdugos' claims against the SYC defendants are based on different conduct and requires a distinct analysis. The core conduct underlying the Verdugos' claims against the SYC defendants is that the various SYC defendants made false accusations against the Verdugos: (1) during the June 21, 2010, board meeting at which the Board voted to terminate the Verdugos as members, (2) during the subsequent July 14, 2010, hearing on the proposed discipline, (3) in the "open letter" to members, and (4) in the writings that complained of the conduct in connection with the bank loan. The Verdugos also alleged various SYC defendants attempted to deprive David of his office as Commodore, and to terminate the Verdugos' membership in SYC, without adhering in good faith to SYC's procedures embodied in the bylaws. The SYC defendants' motion argued all of these claims fell within the ambit of the anti-SLAPP statute because the accusations of misconduct were statements or conduct related to matters pending before the proposed SYC disciplinary proceeding against the Verdugos, and that disciplinary proceeding qualified as an official proceeding authorized by law, within the meaning of section 425.16, subdivisions (e)(1) and (e)(2). The trial court agreed and, after concluding the Verdugos had not demonstrated a probability of prevailing on the merits with a prima facie showing of admissible evidence that would support a judgment in the Verdugos' favor, granted the SYC defendants' motion to strike the claims asserted against them.
The Threshold Showing of Anti-SLAPP Application
The SYC defendants' argument for application of the anti-SLAPP law turns on whether SYC's board meetings and disciplinary proceedings qualify as an "official proceeding authorized by law" within the ambit of section 425.16, subdivisions (e)(1) and (e)(2). Relying on Kibler v. Northern Inyo County Local Hospital Dist. (2006) 39 Cal.4th 192 (Kibler), which held a hospital peer review disciplinary proceeding qualified as an " official proceeding authorized by law" under the anti-SLAPP laws, the SYC defendants argued SYC's board meetings and disciplinary proceeding under its bylaws are a forum protected under the anti-SLAPP laws, and therefore statements connected to those proceedings qualify for anti-SLAPP treatment under section 425.16, subdivisions (e)(1) and (e)(2).
However, in Donovan v. Dan Murphy Foundation (2012) 204 Cal.App.4th 1500 (Donovan), the court recently concluded that an adverse action taken against the plaintiff by a board of directors for a nonprofit private corporation was not an "official proceeding authorized by law" within the meaning of section 425.16, subdivisions (e)(1) and (e)(2). The Donovan court concluded the type of proceeding involved in Kibler was not analogous to proceedings by a nonprofit private corporation against a member of that corporation, in part because the peer review process considered in Kibler is a highly regulated process under the Business and Professions Code, and in part because any determination by a hospital peer review board is subject to judicial review by administrative mandamus. (Donovan, at p. 1508.) The same distinctions apply in the instant case: the procedures for removing a member of a nonprofit private club are not akin to the peer review process considered in Kibler,and the Business and Professions Code does not authorize review of decisions by a nonprofit private club to be pursued by administrative mandate.
The peer review process considered in Kibler "serves an important public interest [of] . . . 'preserving the highest standards of medical practice' " and "[t]o this end, the Business and Professions Code sets out a comprehensive scheme that incorporates the peer review process into the overall process for the licensure of California physicians." (Kibler, supra, 39 Cal.4th at p. 199.) Moreover, the statutory scheme for hospital peer reviews (1) requires notice and opportunity to be heard by the person subjected to the proposed disciplinary action, (2) requires a hearing before mutually acceptable arbitrators, (3) requires certain discovery rights by the right to call witnesses and to demand exchange of lists of proposed witnesses and documents, (4) provides a right to a record of the proceedings, (5) allocates the burdens of proof and persuasion, (6) provides for the potential right to be represented by counsel, (7) requires a written decision, and (8) provides for a potential mechanism for an internal appeal of a decision. (Bus. & Prof. Code, § 809.1 et seq.) In contrast, expulsion of a member of a nonprofit corporation (1) involves no important public interest and (2) requires only a right to notice of the proposed expulsion and an opportunity to be heard on the proposed action. (Corp. Code, § 7341, subd. (c).)
The Kibler court noted that "[t]here is another attribute of hospital peer review that supports our conclusion that peer review constitutes an 'official proceeding' under the anti-SLAPP law. A hospital's decisions resulting from peer review proceedings are subject to judicial review by administrative mandate. (Bus. & Prof. Code, § 809.8.) Thus, the Legislature has accorded a hospital's peer review decisions a status comparable to that of quasi-judicial public agencies whose decisions likewise are reviewable by administrative mandate." However, unlike Business and Professions Code section 809.8, which expressly contemplates review of adverse decisions by administrative mandate (by expressly preserving an aggrieved physicians right to seek "judicial review under section 1094.5 of the Code of Civil Procedure"), the Corporations Code section regarding expulsion of member of nonprofit corporations does not mention section 1094.5 of the Code of Civil Procedure, but instead merely provides for a one-year statute of limitations on "[a]ny action challenging [an adverse action]," and authorizes equitable relief, including reinstatement. (Corp. Code, § 7341, subd. (e).) While the SYC defendants cite Kurz v. Federation of Petanque U.S.A. (2006) 146 Cal.App.4th 136 as supporting the claim that expulsion of member under Corporations Code section 7341 is reviewable by a petition for administrative mandate, Kurz had no occasion to consider this issue because it concluded that section "did not govern Kurz's case, because his rights as a member of FPUSA were never implicated. This section also did not apply in Carter's case once the Committee notified him that it was not considering any action involving his membership rights." (Id. at p. 146, italics added.)
As Donovan noted, "a nonprofit charitable organization's board of directors meeting is akin to a private company's sexual harassment grievance protocol, which has been held not to be an official proceeding authorized under law. (Olaes v. Nationwide Mutual Ins. Co. (2006) 135 Cal.App.4th 1501, 1508 . . . .) Both the board of directors meeting and the sexual harassment protocol are authorized by statutes, but the actual procedures are left to the private organizations." (Donovan, supra, 204 Cal.App.4th at p. 1508.) Similarly, although expulsions are authorized under Corporations Code section 7341, the grounds and procedures are left largely to the nonprofit corporation. (Corp. Code, § 7341, subds. (c) & (f).) We conclude, as did Donovan, the anti-SLAPP law does not apply here because the proceedings described by Corporations Code section 7341 are not an "official proceeding authorized by law" within the ambit of section 425.16, subdivisions (e)(1) and (e)(2).
The SYC defendants also appear to argue, for the first time on appeal, that the Verdugos' claims are subject to the anti-SLAPP statute because the claims rest on statements made in a "public forum in connection with an issue of public interest," within the meaning of section 425.16, subdivision (e)(3), under the rationale of Damon v. Ocean Hills Journalism Club (2000) 85 Cal.App.4th 468 (Damon) and Cabrera v. Alam (2011) 197 Cal.App.4th 1077 (Cabrera). Even assuming we may reach this argument, we are unpersuaded by SYC's reliance on these cases. In Donovan, the board of the private nonprofit corporation also argued that, under Damon and Cabrera, the board's actions should qualify for anti-SLAPP protections. (Donovan, supra, 204 Cal.App.4th at pp. 1507, fn. 3, 1509, fn. 4.) Donovan rejected the analogy to Damon, noting Damon's conclusion that the board meeting qualified as a "public forum" turned largely on the conclusion that a "homeowners association is in effect ' "a quasi-government entity paralleling in almost every case the powers, duties, and responsibilities of a municipal government" ' [quoting Damon, at p. 475; citation,] [while] . . . important[ly], a nonprofit charitable organization . . . is not a quasi-governmental entity." (Donovan, at p. 1507, fn. 3.)
It does not appear the SYC defendants raised this argument below. Ordinarily, a court will not consider new theories on appeal that require resolution of factual issues not presented and developed below. (Richmond v. Dart Industries, Inc. (1987) 196 Cal.App.3d 869, 879.) Insofar as Cabrera and Damon rested their conclusions on the fact that the boards of directors in those cases made and enforced rules affecting the daily lives of hundreds or thousands of people (Damon, supra, 85 Cal.App.4th at p. 475 [3000 residents impacted by board decisions]; Cabrera, supra, 197 Cal.App.4th at p. 1082 [228 condominiums governed by board]), and therefore concluded the boards were public forums governing small democratic subsocieties, the number of members of this private club does not appear in the record, and the record was not developed as to the extent to which SYC's board's actions would "[affect] the daily lives" of its members. (Damon, at p. 475; Cabrera, at p. 1088.) Accordingly, this argument is not adequately preserved on appeal.
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The Donovan court similarly rejected the analogy to Cabrera, reasoning Cabrera was "distinguishable because it involved statements made during a board meeting prior to the election for directors of a homeowners association. [Citation.] Conduct involving homeowners associations generally involves a matter of public interest because a homeowners association is akin to a governmental entity. 'The definition of "public interest" within the meaning of the anti-SLAPP statute has been broadly construed to include not only governmental matters, but also private conduct that impacts a broad segment of society and/or that affects a community in a manner similar to that of a governmental entity.' [Quoting Damon, supra, 85 Cal.App.4th at p. 479; citation.] There is no evidence that the [nonprofit corporation] affects a community in a manner similar to that of a governmental entity." (Donovan, supra, 204 Cal.App.4th at p. 1509, fn. 4, italics added by Donovan.) Similarly, we are unconvinced that a board of directors for a private club, such as SYC, affects a community in a manner similar to that of a governmental entity, and therefore we are not persuaded by SYC's argument under Damon and Cabrera that SYC's board meetings qualify as public forums within the ambit of section 425.16, subdivision (e)(3).
Conclusion
We conclude the threshold showing for applying the anti-SLAPP provisions to the claims asserted against the SYC defendants was not met. Accordingly, we reverse the order striking the Verdugos' complaint against the SYC defendants.
DISPOSITION
The order granting Ward's special motion to strike under section 425.16, and dismissing the Verdugos' complaint as against Ward, is affirmed. Ward is entitled to costs on appeal against the Verdugos. The order granting the SYC defendants' special motion to strike under section 425.16 is reversed. The Verdugos are entitled to costs on appeal against the SYC defendants.
McDONALD, J. WE CONCUR: BENKE, Acting P. J. AARON, J.