Warner v. Thompson CA2/8 ( 2024 )

Filed 10/16/24 Warner v. Thompson CA2/8
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
BERNA LYNN WARNER, B324902
Cross-Complainant and Los Angeles County
Appellant, Super. Ct. No. 20STCV33912
v.
EVAN THOMPSON et al.,
Cross-Defendants and
Appellants.
APPEAL from an order of the Superior Court of
Los Angeles County, Mel Red Recana, Judge. Affirmed in part,
reversed in part, and remanded.
Fredman Legal, Cameron Fredman for Appellant and
Cross-Respondent.
Lewis Brisbois Bisgaard & Smith, Jeffry A. Miller and
Ernest Slome; Gipson Hoffman & Pancione, Kenneth I. Sidle for
Respondents and Cross-Appellants.
Berna Warner’s appeal and Evan Thompson’s cross-appeal
arise from a dispute that took place at the height of the
coronavirus pandemic in the summer of 2020.
Thompson is the guardian ad litem for his sister Lynn, who
is elderly and disabled. When Thompson’s sister and her
caregivers contracted COVID-19, he directed the caregivers to
relocate to his sister’s condominium building to quarantine
together. They did not tell anyone at the condominium that they
had COVID-19.
Warner is the president of her homeowner’s association at
the condominium where Thompson’s sister went to quarantine.
She was responsible for safeguarding the health and welfare of
her condominium, where the majority of residents were elderly
people with health conditions like her. Warner oversaw the
condominium’s implementation of comprehensive safety protocols
to prevent COVID-19 on its premises before vaccines were
available and before there was clarity on how the virus spread.
Warner and the rest of the condominium’s board members
soon found out about the caregivers entering the building and
using the common areas without disclosing their COVID-19
diagnosis. They voted to ban the caregivers from the premises of
the condominium indefinitely. This also effectively banned
Thompson’s sister, who was inseparable from her caregivers.
Thompson’s sister filed a discrimination complaint against
the condominium, and obtained a preliminary injunction
enjoining it from blocking access to her caregivers while she
resided there.
Warner then filed a cross-complaint against Thompson and
his sister’s caregivers, asserting tort claims stemming mostly
from the caregivers’ decision to enter the condominium while
2
infected with COVID-19 and to use the common areas. Other
claims were based on Thompson’s pre-litigation activities.
Thompson responded with an anti-SLAPP motion (see Code
Civ. Proc. § 425.16) to strike the cross-complaint in its entirety.
The trial court partially granted and partially denied
Thompson’s motion. The court properly denied the motion as to
the nuisance and negligence causes of actions. These claims
arose from the caregivers’ actions that potentially exposed the
condominium’s residents to the coronavirus. The court
appropriately handled Warner’s “mixed” emotional distress and
elder abuse causes of actions. We affirm the trial court’s order as
to these five causes of action.
The trial court erred in granting Thompson’s motion as to
Warner’s concealment cause of action, which is also a “mixed”
cause of action. We reverse the trial court’s order with respect to
the concealment cause of action.
I
For purposes of assessing Thompson’s anti-SLAPP motion,
we assume the truth of Warner’s allegations. (See Young v. Tri-
City Healthcare Dist. (2012) 210 Cal.App.4th 35, 54.) We recount
these allegations, along with other undisputed facts before the
trial court.
A
The Diplomat is a 64-unit condominium building in West
Los Angeles. The supermajority of the Diplomat’s residents are
over the age of 65. Eleven residents are over 90, and twenty-two
of the residents are over 80. Many of the Diplomat’s residents
have serious health conditions that increase their vulnerability to
COVID-19.
3
Warner is an elderly person with health concerns who
resides at the Diplomat. At the relevant times, Warner was
president of the Diplomat’s Board of Directors, which consists of
five unpaid volunteers who, according to the Diplomat’s
governing documents, make decisions for the general health,
welfare, comfort, and safety of the residents and staff.
In March 2020, the World Health Organization declared
COVID-19 a pandemic, the president of the United States
declared it a national emergency, and the governor of California
issued a statewide “stay-at-home” order.
Within days, the Diplomat’s Board of Directors met to
discuss the implementation of California’s “stay-at-home”
mandate. Given the high percentage of elderly residents
especially vulnerable to COVID-19, the Board hired Dr. Eric
Snyder, the Chief Risk Officer at Pacific HealthWorks, LLC, to
advise it on safety measures. The Board enacted “Precautionary
Protocols” in an effort to carry out its duty to “provide for the
general health, welfare, comfort and safety of the residents.”
The Board notified the Diplomat’s residents of the Protocols by
placing hard copies under the doors of each unit, by posting them
in the Diplomat’s common areas, and emailing them to residents.
The Protocols included the following: requesting residents
and staff to report a positive diagnosis of COVID-19 to the
Diplomat’s manager; restricting the use of the two elevators to
one family unit at a time; disinfecting elevator buttons,
doorknobs to trash chutes, and doors every half hour; reducing
on-site staff; suspending valet services; installing disinfectant
dispensers; and requiring temperature checks of non-residents
entering the lobby. The Diplomat remained free of COVID-19
until July 30, 2020.
4
At some point in late July, Lynn Thompson, an elderly
disabled woman who owns a unit at the Diplomat, contracted
COVID-19. Lynn Thompson is not a party to this appeal, but is
the sister of respondent and cross-appellant Evan Thompson.
When we refer to “Thompson” in this decision, we mean Evan
Thompson. Nevertheless, Lynn Thompson figures in this case as
well.
Lynn Thompson suffers from dementia and dystonia. She
is dependent on her full-time live-in caregivers Chandar Pandey
and Kimberly Leong, a married couple who had been caring for
her for nearly a decade. Pandey and Leong are also respondents
and cross-appellants. In the months before July 2020, Lynn
Thompson resided at Pandey’s and Leong’s home in Studio City.
Lynn Thompson, Pandey, and Leong all tested positive for
COVID-19 in late July 2020. After consulting doctors, Evan
Thompson directed Pandey and Leong to quarantine with his
sister at the Diplomat. According to Evan Thompson, the reason
for relocating to the Diplomat rather than returning to Studio
City was so Lynn Thompson could be closer to her doctors at
UCLA. Evan Thompson believed UCLA would provide the best
care for his sister and did not want her to receive care at another
facility. He, Pandey, and Leong believed that, if they stayed in
Studio City and Lynn Thompson required an ambulance again,
the paramedics would refuse to take her to UCLA because of the
distance.
On July 30, 2020, Pandey, Leong, and Lynn Thompson
arrived at the Diplomat. Ambulance paramedics took Lynn
Thompson to her unit, while Pandey and Leong used the garage
entrance to avoid the Diplomat personnel administering
temperature checks in the lobby.
5
Over the next three days, Pandey and Leong left Lynn
Thompson’s unit several times and used the condominium’s
common areas and elevators. The Diplomat’s personnel reviewed
security camera footage and observed Pandey using the common
areas and elevators fourteen times and saw Leong at least once
outside of Lynn Thompson’s unit. Pandey and Leong did not
wear gloves or wipe the elevator buttons after using them, nor
did they disclose their COVID-19 status to anyone at the
condominium. They also did not disclose the severity of their
symptoms: Leong suffered from fever, fatigue, chills, a cough,
headache, shortness of breath, and aches, and Pandey had a
cough and fatigue.
Lynn Thompson fell ill a few days into the quarantine. An
ambulance came to the Diplomat to take her to the hospital.
Pandey and Leong told the paramedics that they, along with
Lynn Thompson, were all positive for COVID-19. One of the
paramedics, without Pandey’s or Leong’s consent, told an
employee of the Diplomat to disinfect the elevator because Lynn
Thompson, Pandey, and Leong had COVID-19. Shortly
afterwards, the Diplomat’s manager asked Pandey and Leong to
leave immediately, which they did.
Word spread quickly among the Diplomat’s residents and
staff that three people infected with COVID-19 had been in the
building. Panic ensued. Warner received calls from angry and
distraught residents who worried that Pandey and Leong had
exposed them to COVID-19.
Warner and the other members of the HOA Board voted to
deny Pandey and Leong access to the Diplomat because the two
had deliberately exposed residents and staff to COVID-19. As
6
president, it was Warner’s responsibility to communicate the
Board’s resolution to Evan and Lynn Thompson.
Warner called Evan Thompson. Once she told him that
Lynn Thompson had been taken to the hospital, Thompson
responded that he already knew and did not wish to discuss it
with her. Thompson ended the call before Warner could tell him
about the Board’s resolution.
The next day, Warner drafted a letter summarizing the
Board’s investigation with respect to the Caregivers and the
Board’s decision to deny them access to the Diplomat. The letter
explained that the Board was “extremely upset” by the conduct of
Pandey and Leong for having “acted with reckless disregard for
the health and safety of the Owners and staff of the Diplomat –
many of whom are senior citizens with pre-existing conditions.”
The letter continued: “Please be advised that Kim Leong and her
husband, and any related family members will not be permitted
to enter the Diplomat under any circumstances for any purpose.”
The letter concluded: “Naturally, we wish your sister all the best
and a full and complete recovery. As her nearest relative and her
emergency contact for the Diplomat, please take appropriate
steps on her behalf.”
Warner attempted to send the letter to Thompson by
messenger, FedEx, and text message. Thompson never
responded.
Warner messengered a similar letter to Lynn Thompson at
her UCLA hospital room.
In mid-August, Leong called Warner to demand access to
the Diplomat. Leong’s tone was hostile and she “berated”
Warner. Leong also told Warner that Evan Thompson had
directed her and her husband’s actions.
7
On August 21, 2020, Evan Thompson’s lawyers called
Warner to inform her that Lynn Thompson, Pandey, and Leong
intended to return to the Diplomat imminently. They followed up
with a letter on the same day, asserting that Pandey and Leong
had not been reckless, as they had taken appropriate precautions
by wearing masks, by avoiding contact with others, and by
washing their hands. The letter charged that the Diplomat’s
refusal to allow Pandey and Leong entry infringed upon Lynn
Thompson’s right to reasonable accommodations under the Fair
Employment and Housing Act (FEHA) as a disabled person, as
hiring new caregivers was not an option for her. The letter
concluded by requesting the negotiation of a “mutually
satisfactory resolution,” but warned that Evan Thompson had
authorized counsel to file a lawsuit.
The Diplomat, through counsel, proposed the following
compromise: the Diplomat would permit Pandey and Leong to
return to Lynn Thompson’s unit with her if all three provided
negative COVID-19 tests within 48 hours of entering the
Diplomat, and if they agreed to remain with Lynn Thompson in
her unit for 14 days.
Lynn Thompson, through her lawyers, rejected this offer.
She, Pandey, and Leong were unwilling to provide a negative
COVID-19 test or to quarantine for 14 days, but they provided
“Work Status Report” forms for Pandey and Leong signed by a
Kaiser Permanente nurse practitioner affirming that they “may
return to work without restrictions” and are “no longer
contagious.”
Thompson’s lawyers also provided a letter from Dr. Neil
Wenger, an internal medicine specialist practicing at UCLA.
Wenger’s letter stated that “Ms. Thompson has had a difficult
8
time in the hospital in part related to her being in a foreign
environment.” Wenger wrote that it was “critical” for Lynn
Thompson to “return to her home with the help of her current
caregivers.” Warner later learned, however, that Thompson’s
attorneys had drafted the letter and that Wenger had never
treated Lynn Thompson, Pandey, or Leong.
About a week later, Lynn Thompson filed a complaint
against the Diplomat and Warner alleging discrimination under
FEHA and applied ex parte for a preliminary injunction to enjoin
the Diplomat and Warner from barring Pandey and Leong from
entering the premises. The Diplomat and Warner opposed the
application.
The court found Lynn Thompson had shown a reasonable
prospect of success on her FEHA disability claim and enjoined
the Diplomat from denying the Pandey and Leong entry while
Lynn Thompson resided in her unit. Eventually, the parties
settled Lynn Thompson’s lawsuit.
B
Nearly a year after the court granted this preliminary
injunction, Warner cross-complained against Evan Thompson,
Pandey, and Leong.
Most of the cross-complaint’s allegations arise from Evan
Thompson’s decision to relocate Pandey, Leong, and Lynn
Thompson to the Diplomat while they were infected with COVID-
19, without informing anyone at the Diplomat of their diagnoses,
and in disregard of the Diplomat’s Protocols. Some allegations
derive from communications Lynn and Evan Thompson’s lawyers
sent in response to the Diplomat’s decision to ban Pandey and
Leong from the building premises and the ensuing dispute
between the parties.
9
Warner asserted six causes of action: (1) Public Nuisance;
(2) Private Nuisance; (3) Concealment; (4) Negligence; (5)
Intentional Infliction of Emotional Distress; and (6) Elder Abuse.
In response, Evan Thompson, Pandey, and Leong filed a
special motion to strike Warner’s cross-complaint under Code of
Civil Procedure § 425.16.
The trial court rendered a split decision. It granted part of
Thompson’s motion but it also denied a portion of the motion.
Regarding Warner’s first, second, and fourth causes of
action for public nuisance, private nuisance, and negligence, the
court found these did not arise from protected activity under §
425.16(e). These causes of action, the court explained, arose from
alleged violations of the Diplomat’s COVID-19 safety protocols by
Evan Thompson, Pandey, and Leong, “thereby creating a
hazardous or dangerous condition at the residential community.”
The court found these facts “do not establish conduct in
furtherance of the exercise of the constitutional right of petition
or free speech in connection with a public issue.”
As for Warner’s fifth and sixth causes of action for
intentional infliction of emotional distress and elder abuse, the
court found these to be “mixed causes of action” because “they
include both protected and unprotected activity.” Insofar as the
emotional distress and elder abuse causes of actions relied on the
allegations that Evan Thompson, Pandey, and Leong created
dangerous conditions at the Diplomat from July 30 to August 1,
the court found they were not protected activities under the anti-
SLAPP statute.
However, to the extent these two causes of action relied
upon letters, emails or other communications from Evan
Thompson’s lawyers that caused Warner emotional distress from
10
mid-August onwards, the court found these allegations did
pertain to protected activity.
The court granted the special motion to strike the
allegations in the fifth and sixth causes of action relating to Evan
Thompson’s communications and dispute with the Diplomat and
Warner, but denied it as to the remaining allegations, leaving the
fifth and sixth causes of action partially intact.
The court granted the motion to strike as to the third cause
of action for concealment, reasoning that the allegations
supporting the third cause of action relied on Thompson’s
lawyers’ communications to Warner and the Diplomat in the
midst of the controversy about COVID-19 safety protocols
“affecting the residential community at large.” The court also
found Warner was unlikely to succeed on the merits of her
concealment claim.
Finally, the court denied Warner’s request for attorney’s
fees and deferred ruling on Thompson’s request for fees.
Warner appeals the court’s order with respect to the
concealment claim and the striking of certain paragraphs in her
fifth and sixth claims. She also argues the trial court erred in
denying her request for attorney fees.
Thompson cross-appeals the remainder of the trial court’s
order.
II
Our review of orders deciding anti-SLAPP motions is
independent. (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1067.)
The anti-SLAPP analysis has two steps. (Monster Energy
Co. v. Schecter (2019) 7 Cal.5th 781, 788.) At step one, we
determine whether Thompson has established that any of the
11
causes of action in Warner’s cross-complaint arise from activity
that section 425.16 protects. (Ibid.) If a cause of action is
“mixed,” meaning it arises from allegations of both protected and
unprotected activities, we separate the non-SLAPP allegations
from the allegations arising from protected activity. (Baral v.
Schnitt (2016) 1 Cal.5th 376, 396.) For any causes of action based
on protected activity, we move to step two, where we evaluate
whether Warner can demonstrate the merit of these causes of
action by establishing a probability of success. (Ibid.) At step
two, we look beyond Warner’s cross-complaint and examine
whether she can support her causes of action with a prima facie
showing of facts that would allow a judgment in her favor. (See
Newport Harbor Offices & Marina, LLC v. Morris Cerullo World
Evangelism (2018) 23 Cal.App.5th 28, 49.)
A
The trial court correctly denied Thompson’s motion at step
one of the anti-SLAPP analysis with respect to Warner’s causes
of action for public nuisance, private nuisance, and negligence.
These claims do not arise from protected activity.
On appeal, Thompson contends the trial court erred by not
finding these three causes of action within the scope of the anti-
SLAPP statute’s broad “catchall” provision in section 425.16(e)(4),
which protects “[a]ny 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.” Thompson claims the trial court improperly limited its
inquiry to whether these actions fell within the protections of the
first three categories of protected activities in section 425.16(e).
FilmOn.com Inc. v. DoubleVerify Inc. (2019) 7 Cal.5th 133(FilmOn) instructs us to look at the content of the speech to see
12
what “public issue” or “issue of public interest” the speech
implicates. (Id. at pp. 149-50.) Next, we ask what functional
relationship exists between the speech and the public
conversation about some matter of public interest. (Ibid.)
Here, the conduct Warner challenged in the negligence and
nuisance causes of action is Pandey’s and Leong’s entry into the
Diplomat while sick with COVID-19, and their use of the
Diplomat’s common areas without gloves and without
disinfecting what they touched on July 30, 31, and August 1.
Thompson characterizes Pandey’s and Leong’s actions as
“resist[ing]” the Diplomat’s Protocols, which “concern a topic of
widespread public interest: the proper extent to which the
[COVID-19] pandemic protocols could be employed legally.”
Demonstrating the implication of a public issue at step one
is a low bar. (See FilmOn, supra, 7 Cal.5th at p. 150 [“virtually
always, [anti-SLAPP movants] succeed in drawing a line –
however tenuous – connecting their speech to an abstract issue of
public interest.”]) We assume, without deciding, that Pandey’s
and Leong’s conduct implicates an issue of public interest.
We apply FilmOn’s second step: we examine the
relationship between this conduct and the public discourse on
COVID-19 safety protocols.
Thompson’s argument fails at this second stage. He argues
the “resistance” of Pandey and Leong to the Diplomat’s Protocols
“contributed to the discourse of an issue of public interest
regarding safety protocols for Covid-19 victims in residential
communities such as the Diplomat.” But nothing connected the
caregivers’ actions to discourse about COVID-19 safety protocols.
Pandey and Leong entered the building without announcing their
arrival. Their appearances and actions were unremarkable all
13
around—until residents chanced to learn the caregivers had the
COVID-19 virus. In their sworn declarations, Pandey and Leong
said they were unaware of any rule at the Diplomat requiring
guests to disclose their COVID-19 status. They could not intend
to resist something they did not know existed. There was no
relationship between Pandey’s and Leong’s conduct and a public
issue.
We affirm the trial court’s decision on these causes of
action.
B
Thompson concedes, and Warner does not dispute, that the
trial court correctly decided that the emotional distress and elder
abuse causes of action are “mixed.” These causes of action
include allegations of both protected and unprotected activity. To
the extent that the emotional distress and elder abuse causes of
action rely upon the same non-SLAPP allegations as the nuisance
and negligence claims, the trial court was correct to deny
Thompson’s motion. (Baral, supra, 1 Cal.5th at p. 396 [“When
relief is sought based on allegations of both protected and
unprotected activity, the unprotected activity is disregarded at
this stage”].)
The parties dispute, however, the extent to which these
causes of action rely upon protected activity, and whether it was
proper for the trial court to put these protected activity
allegations through the second step of the anti-SLAPP analysis.
Warner contends the trial court erred in not finding the
allegations were merely “incidental” to her emotional distress
and elder abuse claims. Thompson disagrees, pointing out that
the allegations of protected activity served as the grounds for at
14
least part of her emotional distress and elder abuse causes of
action.
Thompson is right on this issue. To see why, we examine
the allegations the trial court identified as arising from protected
activity. Each allegation refers to Thompson’s pre-litigation
activities through his attorneys. Pre-litigation activities,
including settlement discussions, are squarely within the anti-
SLAPP statute’s protections, because they involve written or oral
statements or writings “made in connection with an issue under
consideration or review by a . . . judicial body, or any other official
proceeding authorized by law.” (Bonni v. St. Joseph Health
System (2021) 11 Cal.5th 995, 1020 (Bonni.))
We italicize the key parts of these allegations.
Paragraph 42: “EVAN THOMPSON’s agents also wrote
letters and made phone calls, asserting falsely, that Lynn
Thompson had been ‘banned’ from the Diplomat. On August 21,
2020, attorneys for EVAN THOMPSON announced to Warner
that Lynn Thompson would be returning to the Diplomat with
employees LEONG and PANDEY imminently. They refused to
provide information regarding their COVID status or contagion
and repeated the misrepresentation that Lynn Thompson had
been ‘banned.’” (Italics added.)Paragraphs 45-46: “The following
day, on or about August 22, 2020, counsel for EVAN THOMPSON
provided a letter from Doctor Neil Wenger, which stated: [¶] I am
an internal Medicine specialist practicing at UCLA who has
closely been following the course of Ms. Lynn Thompson during
her hospitalization. Ms. Thompson suffers from dementia,
among other medical conditions. . . The letter was silent with
respect to Lynn Thompson, LEONG, or PANDEY’s COVID-19
status and whether they were contagious. It would later be
15
discovered that Dr. Wenger had never treated or even met Lynn
Thompson; she was not his patient; and he had never met
LEONG or PANDEY. The letter had been drafted by EVAN
THOMPSON’s attorneys–although all of this was unknown at the
time to [Warner] or the Diplomat.” (Italics added.)
Lines 7-12 of Paragraph 50: “[Thompson’s, Pandey’s and
Leong’s intent to frighten Warner] was evident from their earlier
communications: on August 21, 2020, [Thompson’s] agents wrote,
‘We want to underscore that we understand these are scary and
uncertain times…’ The following day, [Thompson’s] agent wrote
that [Warner] was acting ‘based on fear . . .’ On August 24,
[Thompson’s] agent again described [Warner] as ‘operat[ing] from
a place of fear . . .” (Italics added.)
These allegations each refer to Thompson's pre-litigation
activities through his lawyers, which commenced soon after
Thompson learned the Diplomat had barred Pandey and Leong
from the premises. The record shows that, when Thompson
learned of this ban, he retained counsel to vindicate his sister’s
right to accommodations under FEHA. He authorized counsel to
file a lawsuit if necessary.
We proceed to consider the “gravamen” of Warner’s causes
of action to determine whether certain allegations are elements,
as opposed to background information. (Bonni, 11 Cal.5th at p.
1012.) Our review of Warner’s cross-complaint establishes that
her emotional distress and elder abuse claims do rely upon the
allegations pertaining to Thompson’s counsel’s communications
as elements, not background. As a result, Thompson’s motion
satisfied the first step of the anti-SLAPP analysis with respect to
these two causes of action. (See id.)
16
The emotional distress cause of action contains general
allegations that Thompson’s actions were “outrageous,” that he
“intended to cause [Warner] emotional distress” and that
Thompson is “guilty of oppression, fraud or malice.” Similarly,
the elder abuse cause of action contains general allegations that
Thompson “engaged in forms of intimidating behavior, threats,
harassment,” “engaged in deceptive acts,” and “engaged in false
or misleading statements made with malicious intent to agitate,
confuse, frighten, or cause severe depression or serious emotional
distress of the elder.”
Warner’s argument that the allegations about the actions
and communications from Thompson’s lawyers are merely
“incidental” to her cross-complaint fails. Rather, the “gravamen”
of these causes of action, as Warner pleaded them, shows they
include the allegations of protected activity as elements: Warner
alleged that Thompson’s lawyers caused her emotional distress
and caused her harm amounting to elder abuse. It was thus
proper for the trial court to analyze them under the second step
of the anti-SLAPP analysis. (Bonni, 11 Cal.5th at 1012.)
At this second step, the trial court determined that Warner
had failed to provide evidence establishing a prima facie finding
for her emotional distress and elder abuse claims with respect to
the protected activity allegations. Warner does not contest this
finding on appeal, nor did she raise it at the hearing on the anti-
SLAPP motion, after having the opportunity to review the court’s
tentative decision. She has therefore forfeited any argument that
the trial court erred in striking paragraphs 42, 45-46, and lines 7-
12 of paragraph 50. (See Cahill v. San Diego Gas & Electric Co.
(2011) 194 Cal.App.4th 939, 956.)
17
C
The trial court erred in granting Thompson’s motion as to
Warner’s concealment cause of action. Like the emotional
distress and elder abuse causes of action, this one is also “mixed,”
and the court should have approached it the same manner.
The trial court found the concealment claim arose from
protected activity “since it relates to [Thompson’s]
communications to [Warner] and the Diplomat in the context of
an ongoing controversy, dispute, or discussion at that time
regarding [COVID-19] and related safety protocols affecting the
residential community at large.”
A review of Warner’s cross-complaint, however, reveals
that her concealment cause of action does not rely only on
allegations about Thompson’s communications, but rather is
mostly about the conduct of Thompson, Pandey, and Leong before
anyone at the Diplomat learned Lynn Thompson, Pandey, and
Leong had COVID-19. In support of her concealment cause of
action, Warner alleges as follows: “‘[Thompson, Pandey, and
Leong] prevented [Warner] from discovering that [Pandey and
Leong] and [Lynn Thompson] had been exposed to and were
infected with [COVID-19] when they arrived at the Diplomat on
July 30, 2020 and for the following three days . . . which was
known only to them and that [Warner] could not have
discovered.” There are a few allegations alluding to Dr. Wenger’s
letter and some of the communications from Thompson’s
attorneys, but those allegations are only a small portion of those
that compose the concealment cause of action.
The trial court erred in this ruling. Warner correctly notes
the “period of concealment (while exposing [Warner] to infection)
occurred between July 30 and August 1, 2020; whereas the first
18
purported protected communication occurred weeks later–on
August 21, 2020.” The trial court’s analysis of the concealment
claim discussed only communications between the parties, which
took place weeks after the concealment.
And as Warner points out, Thompson, Pandey, and Leong
did not conceal Lynn Thompson’s, Pandey’s, and Leong’s COVID-
19 status in contemplation or anticipation of future litigation.
The fact that there were later settlement discussions and
litigation did not transform the conduct from July 30 to August 1
into protected activity. (See Clarity Co. Consulting, LLC v.
Gabriel (2022) 77 Cal.App.5th 454, 464 [denying anti-SLAPP
motion at step one because at the time of the injury-producing
activity, “there was no claim or dispute to be litigated or settled.”]
In urging us to affirm the trial court on the concealment
claim, Thompson relies on the same arguments we rejected with
respect to Warner’s nuisance and negligence claims. Those
arguments likewise fail here.
The trial court ably separated the protected activity from
the unprotected activity with respect to Warner’s emotional
distress and elder abuse claims.
Rather than remanding the concealment claim for further
trial court review, we direct the trial court to strike
subparagraphs (e), (f), and (g) from paragraph 73 of Warner’s
cross-complaint. In advance of oral argument, we posed the
question to the parties about whether they would prefer a
remand on this issue, or whether we should decide this issue
ourselves. The parties united in asking, in the interest of
litigation efficiency, that we not remand. We do their bidding.
19
D
In opposing Thompson’s anti-SLAPP motion, Warner
sought attorney’s fees, pursuant to the statute’s directive that the
court award costs and reasonable attorney’s fees in the event of a
finding that “a special motion to strike is frivolous or is solely
intended to cause unnecessary delay.” (Code Civ. Proc. § 425.16,
subd. (c)(1).)
The trial court denied Warner’s request for attorney’s fees
and costs for opposing Thompson’s motion because Thompson had
prevailed on a portion of his motion.
We deferentially review the trial court’s decision on
attorney’s fees and will not disturb this decision unless we are
convinced that it is clearly wrong. (See Ketchum v. Moses (2001)
24 Cal.4th 1122, 1130.)
The trial court acted within its discretion in denying
Warner attorney’s fees under the anti-SLAPP statute. Fees are
mandatory only if the court finds an anti-SLAPP motion
frivolous. Thompson’s motion was not frivolous. Warner’s cross-
complaint had some allegations of protected conduct, and
Thompson succeeded in weeding these allegations out. We affirm
the court’s decision on Warner’s attorney’s fees.
DISPOSITION
We reverse the order granting the motion as to the third
count. We direct the trial court to strike subparagraphs (e), (f),
and (g) from paragraph 73 of Warner’s cross-complaint.
///
///
///
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We affirm the remainder of the order and remand for
proceedings consistent with this opinion. We award costs to
Warner.
WILEY, J.
We concur:
GRIMES, Acting P. J.
VIRAMONTES, J.
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