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Court of Appeal:
Accusing Neighbor of Racism Is Not of Public Interest
Opinion Says Allegations to Homeowners’ Board, Neighbors, Insurance Carrier of Bad Faith on Part of Owner of Condominium in Small Building Does Not Implicate Constitutional Protections; Anti-SLAPP Motion Does Not Lie
By a MetNews Staff Writer
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ROBERT DUBAC comedian/actor |
Div. Eight of this district’s Court of Appeal held Friday that repeated accusations by owners of a condominium in a six-unit complex of racism and malfeasance on the part of another owner in emails to the homeowners association, an insurance company, neighbors and others, implicates too small and specific of an audience to qualify as a matter of public interest.
Justice John Shepard Wiley Jr. wrote the opinion affirming Los Angeles Superior Court Judge Mark H. Epstein’s denial of a special motion to strike pursuant to the anti-SLAPP statute, Code of Civil Procedure §425.16, as to most of the plaintiff’s claims. Presiding Justice Maria E. Stratton and Justice Victor Viramontes joined in the opinion.
Wiley wrote:
“The number of people affected by, involved in, or who care about this intra-building name calling is minute. The record offers no objective basis for saying anyone outside the building had any ‘public’ interest in this poisoned relationship between neighbors.”
Appealing the denial were Santa Monica residents Sandra Itkoff and Jonathan Diamond who repeatedly accused their neighbor Robert Dubac, an actor and comedian, of discriminating against them “because they are Jewish and their daughter is African-American” and alleged bad-faith in his dealings as a board member.
At one point, Dubac had a criminal restraining order against Itkoff but it has expired. Dubac sued for defamation, infliction of emotional distress, interference with economic advantage, and civil harassment, alleging that “Defendants continue, to this day, to harass, defame and slander Dubac with new tortious inventions.”
Wiley opined that the case “turns on the first prong of the anti-SLAPP analysis, which here requires independent review of whether the statements” qualify as speech connected to issues of public interest. The justice explained:
“California’s anti-SLAPP jurisprudence has ‘struggled’ to define what makes something an issue of public, rather than private, interest….It has been a struggle because the distinction between ‘public’ and ‘private’ is notoriously difficult to state in clear and simple terms.”
While courts have pointed to five factors which tend to make a statement implicate a public interest, Wiley reasoned that the factors “repeat variations on a consistent theme: they stress the significance of how many people area affected by, or are interested in, a purportedly public issue.”
Homeowners’ Association Governance
Wiley acknowledged case law holding that matters relating to the governance of a homeowners association may create issues of public interest. He commented:
“An objective observer might be puzzled to hear a homeowners association can be the stage for public debate of a public issue. Homeowners associations in some sense are the opposite of ‘public’: they are intensely private; you must buy your way in, often at high cost, to a place that excludes the general public….But….[h]omeowners associations can be a type of small-scale democracy, where people meet in something like a town hall and, through discussion and voting, settle differences and decide their collective fate. This has a sort of ‘public’ aspect.”
However, Wiley noted that case law rejects the notion that every issue within such an association is a public issue, and that cases finding no public interest tend to do so because the number of people involved is small. He declared: “Our result today gains support from these cases where people became enveloped in conflicts they saw as transcendent but that did not involve public issues.”
He continued:
“The number of people affected by, involved in, or who care about this intra-building name calling is minute….Dubac’s lawsuit did not concern ‘speech in connection with a public issue or an issue of public interest.’….This fact doomed the special motion to strike.”
Content and Context
Wiley said “[c]ontent and context confirmed that the emails from Itkoff and Diamond did not contribute to discussion of public issues.” As to content, the jurist wrote:
“The content of the emails shows a personal feud with neighbor Dubac, not an exchange contributing to public discussion of public issues. Itkoff and Diamond thought Dubac had treated their daughter badly. They had other allegations too—Dubac stole their mail, ran the homeowners association poorly, was a narcissistic liar, and so forth—but the dominating theme was their daughter’s mistreatment. This topic, while of vital concern to the parents, was—in context—not an issue of public interest.”
The case is Dubac v. Itkoff, 2024 S.O.S. B317061.
Todd M. Lander and Michael J. Peng of the El Segundo firm Rosen Saba represented Dubac. Kenneth P. White of the Los Angeles firm Brown, White & Osborn LLP acted for Itkoff and Diamond.
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