MCB Woodberry Developer v. Millrace Condo.

MCB Woodberry Developer, LLC v. The Council of Unit Owners of the Millrace Condominium, Inc., et al., No. 1187, September Term 2020. Opinion by Harrell, J. CIVIL IMMUNITY – ANTI-SLAPP STATUTE – Developer did not state a plausible claim that the residents of a condominium and townhouse development and their homeowners’ associations violated the community declaration by opposing actions by the developer to modify the planned unit development. Md. Code Ann., Cts. & Jud. Proc. § 5-807 (b)(2) & (3).

CIVIL IMMUNITY – ANTI-SLAPP STATUTE – Communications by residents of condominium and townhouse developments and their homeowners’ associations made to the public, elected representatives, the Baltimore City Planning Commission, and the Circuit Court for Baltimore City relative to proposed minor amendments to a planned unit development were on a matter within the authority of a government body and on an issue of public concern. Md. Code Ann., Cts. & Jud. Proc. § 5-807 (b)(1). CIVIL IMMUNITY – ANTI-SLAPP STATUTE – Bad faith under the Anti-SLAPP statute has the same meaning as under Md. Rule 1-341, the pursuit of litigation vexatiously for the purpose of harassment or unreasonable delay, or for other improper reasons.

Md. Code Ann., Cts. & Jud. Proc. § 5-807 (b)(1); Md. Rule 1-341. CIVIL IMMUNITY – ANTI-SLAPP STATUTE – The structure of the Anti-SLAPP statute envisions that, in the appropriate case, bad faith may be decided upon a preliminary motion to dismiss. The facts as alleged in developer’s complaint, coupled with facts that were appropriate for judicial notice, established that the developer filed the complaint for the improper purpose of deterring the residents and their homeowners’ associations from engaging in protected communications in opposition to development, which is bad faith.

Md. Code Ann., Cts. & Jud. Proc. § 5-807 (b)(1) & (d). CIVIL IMMUNITY – ANTI-SLAPP STATUTE – The developer did not allege any facts showing that the residents acted with constitutional malice in making any communications. Md. Code Ann., Cts. & Jud.

Proc. § 5-807 (c). Circuit Court for Baltimore City Case No. 24-C-20-002937 REPORTED IN THE COURT OF SPECIAL APPEALS OF MARYLAND No. 1187 September Term, 2020 ______________________________________ MCB WOODBERRY DEVELOPER, LLC v. THE COUNCIL OF OWNERS OF THE MILLRACE CONDOMINIUM, INC. ______________________________________ Shaw Geter, Zic, Harrell, Glenn T., Jr. (Senior Judge, Specially Assigned), JJ. ______________________________________ Opinion by Harrell, J. ______________________________________ Filed: December 16, 2021 Pursuant to Maryland Uniform Electronic Legal Materials Act (§§ 10-1601 et seq. of the State Government Article) this document is authentic. 2022-03-29 15:39-04:00 *Arthur, Kevin F., J., did not participate in the Court’s decision to designate this opinion for publication pursuant to Md. Rule 8-605.1. Suzanne C. Johnson, Clerk A near-mass extinction event, involving a large impact with the Earth by an asteroid, occurred some 65 million years ago (the Cretaceous-Paleogene extinction event). The effects of the impact resulted in the loss of three-quarters of all animal and plant life on our planet at the time.

The figurative litigation “asteroid” at the heart of the present case requires us to interpret and apply Maryland’s Strategic Lawsuits Against Public Participation statute (sometimes referred to as the “Anti-SLAPP” statute), Md. Code, Cts. & Jud. Proc. (“CJP”), § 5-807. In sum, the Anti-SLAPP statute aims to remedy the fall-out from the unwarranted maintenance of litigation launched to deter, punish or intimidate efforts at critical public comment and participation in governmental proceedings involving the suit- bringer’s interests.

Thus, metaphorically, the wrongfully-brought litigation, within the scope of the statute, is akin to a “killer asteroid” intended to make extinct the complaints and complainants opposing the plaintiff’s initiatives that require governmental approval. VS Clipper Mill, LLC (“VS”), a real property development business in Baltimore City was the developer of a project known as the Clipper Mill Planned Unit Development (“the PUD”).1 VS sought approval from the Baltimore City Planning Commission (“the Planning Commission”) for proposed changes to the previously approved PUD plan in 1 Pursuant to Md. Rules 8-401(b) and 2-241, VS filed with this Court on 20 October 2021 a Notice of Substitution of Party, naming MCB Woodberry Developer, LLC (“MCB”), as VS’s successor as appellant in this litigation (which had been maintained solely by VS to that point). No opposition to this Notice was filed. Consequently, we have re-captioned the case with MCB as appellant; however, we shall refer throughout this opinion to VS, as appropriate to context, for consistency and clarity in our narrative. order to allow it to construct additional townhomes on land committed previously to surface vehicular parking and to redevelop an existing building for office and retail use.

Residents from two existing residential communities within the PUD opposed those efforts, individually and through their homeowners’ associations. VS responded by filing the instant lawsuit in the Circuit Court for Baltimore City against the Council of Unit Owners of the Millrace Condominium, Inc. (“Millrace Council”) and three of its board members,2 and The Homes at Clipper Mill Homeowners’ Association, Inc. (“Clipper Mill HOA”) and two of its board members3 (collectively “the HOA parties”), alleging that their opposition to the proposed changes to the PUD plan contravened the Clipper Mill Community Declaration and interfered tortiously with VS’s business and economic relations, entitling VS to compensatory damages, $25 million in punitive damages, and declaratory relief. The HOA parties moved to dismiss the lawsuit, arguing that they were immune civilly for their protected communications with government bodies under the Anti- SLAPP statute. Following a hearing, the circuit court granted the HOA parties’ motions to dismiss, ruling that the lawsuit was a prohibited SLAPP suit.

VS appeals, asking solely: I. Did the circuit court err by dismissing with prejudice VS’s complaint under the Anti-SLAPP statute? 2 The Millrace board members are Jessica Meyer, Jared Block, and Dan Cashman. Ms. Meyer does not own a unit in Millrace, but resides there. 3 The Homes at Clipper Mill board members are Jeffrey Pietrzak and Margo Halle. 2 “No” is our answer to that question and, accordingly, we shall affirm the judgment of the circuit court. FACTS AND PROCEEDINGS In 2003, the Baltimore City Council approved the PUD,4 authorizing the redevelopment of a 17.3 acre abandoned industrial site along the Jones Falls for a mixed- use community comprising residential, retail, and office space. The Millrace, a residential condominium, and The Homes at Clipper Mill, a residential community of townhomes and duplex dwelling units, were developed in the early stages of the PUD.

The Millrace Condominium Declaration, recorded among the Land Records of Baltimore City (“Land Records”) on 18 November 2005, created the Millrace Council, which governs the affairs of the Millrace. The Homes at Clipper Mill Declaration of Covenants, Conditions and Restrictions, recorded in the Land Records on the same date, created the Clipper Mill HOA, which governs the affairs of The Homes at Clipper Mill. Five years after those declarations were recorded, the Clipper Mill Community Declaration (“Community Declaration”) was recorded in the Land Records. It incorporated joinder agreements executed by the Millrace Council and the Clipper Mill HOA, agreeing that any “right, title, and interest” in real property within the Clipper Mill 4 A PUD is a type of “floating zone,” which reflects “a local legislative response to the relative rigidity of Euclidian zoning[.]” Cnty.

Council of Prince George’s Cnty. v. Zimmer Dev. Co., 444 Md. 490, 515 (2015) (citing Mayor & Council of Rockville v. Rylyns Enters., Inc., 372 Md. 514 , 539 n. 15 (2002)). “A distinguishing feature of PUDs is the incorporation of a form of site planning requirement at its inception and/or in the latter stages of the overall approval process, if that process is multi-tiered.” Maryland Overpak Corp. v. Mayor & City Council of Baltimore, 395 Md. 16 , 22 n. 4 (2006). 3 development would be held subject to the declaration and subordinating the earlier declarations to the Community Declaration. The Community Declaration established easements, covenants, and community assessments, and defined the common areas of the development. Section 4 of the Community Declaration created the Clipper Mill Association, a nonstock corporation, to levy, collect, and apply community assessments, maintain common areas, improvements, and facilities, and administer and enforce covenants and easements.

Voting rights within that association were allocated to the residential communities and to the developer, based upon the percentage of ownership. Consequently, VS, which owned most of the real property within the PUD, controlled 71% of the votes at the time this litigation was commenced. Subsection 4.9 of the Community Declaration provides: Litigation. Anything in this Community Declaration or the other Clipper Mill Documents to the contrary notwithstanding, neither Clipper Mill Association nor any Person acting or purporting to act on its behalf shall (a) file any (i) civil, criminal or administrative proceeding in or with any court or administrative body or officer, or (ii) appeal of or objection to any decision or other action made or taken by any court, administrative body or officer, in any judicial or administrative proceeding, or (b) testify or submit evidence (unless required by Applicable Law, subpoena or formal order of the court, administrative body or officer), or otherwise take a formal position on any issue under consideration, in any such proceeding or appeal, in all cases until the action is approved in writing by, or by the Votes of Voters holding at least 75 percent of the Total Qualified Votes held by all Voting Members.

Nothing in this subsection shall apply to a civil or administrative proceeding which Clipper Mill Association files to collect a Community Assessment or Assessment Installment, or enforce or foreclose an Assessment Lien or Clipper Mill Association’s rights or another Person’s obligations under the Clipper Mill Documents, due to a Default or otherwise as more fully set forth in this Community Declaration. 4 Section 5 of the Community Declaration governs “Property Rights” and provides, at subsection 5.3.2, which falls under a subsection governing “Control of Community Common Areas[,]”: Interference with development. Clipper Mill Association shall not, in its management and control of a Community Common Area or otherwise, take any action which prohibits, impairs, delays, or makes more expensive Developer’s (a) subdivision or development of any of Clipper Mill or other real property in accordance with a preliminary subdivision plan, site development plan or other plan approved by the City, or (b) performance of its obligations under any public works or other agreement with an Authority, the Subdivision or Zoning Laws, other Applicable Law or otherwise, arising in connection with that subdivision or development. In 2017, VS purchased the PUD. It “began the process of applying for a minor amendment . . . to the PUD” to allow it to construct thirty townhomes “on a vacant lot located within the development” (“the Townhome Project”).

VS proposed also a so- called “minor amendment” to the PUD to allow it to convert the existing “Tractor Building” to a mixed-use project to include 98 residences, 19,000 square feet of office space, 106 parking spaces on two levels, and a separate 75-space parking garage (“the Tractor Building Project”) (collectively “the Projects”). Under Baltimore’s zoning ordinance, codified at Article 32 of the Baltimore City Code (hereinafter “BCZO”),5 a “Minor Change” to a PUD may be approved by the Planning Commission, but a “Major 5 In 2016, Baltimore City enacted comprehensive rezoning legislation known as “Transform Baltimore.” Floyd v. Baltimore City Council, 241 Md. App. 199, 203 (2019). The PUD was “grandfathered” into the new zoning ordinance, subject to “Transition rules.” BCZO §§ 2-203(h) & 13-102. As pertinent, amendments to a PUD that predated the new zoning code would be “categorized as either engineering corrections, minor changes, or major changes in accordance with Subtitle 4 {‘Modifications to approved final development plans’} of this [Title 13 of the BCZO]” subject to “the corresponding approval procedure.” BCZO § 13-102(b). 5 Change”6 “requires introduction and enactment of an ordinance [by the City Council] to approve an amendment to the [PUD] and PUD master plan.” BCZO §§ 13-402-13-403.

The HOA parties organized to oppose the Projects, taking the position that the proposed changes amounted to major changes to the PUD that required approval by the Baltimore City Council, not just the Planning Commission. They opposed the Projects at meetings of the Planning Commission on 14 November 2019 and 18 June 2020, respectively, submitting letters, testifying, and making a presentation on behalf of the two HOAs. After the Planning Commission voted unanimously to approve the minor amendment relative to the Townhouse Project, the HOA parties filed a petition for administrative mandamus in the circuit court. See In re The Petition of the Council of Unit Owners of the Millrace Condominium, et al., No. 24-C-19-006602.

On 25 June 2020, the circuit court held a hearing on the petition for administrative mandamus, declined to reach the merits, and issued a limited remand to the Planning Commission for it to make findings of fact and conclusions of law in support of its decision.7 6 A “Major Change” includes a 10% increase “in the approved number of dwelling units[,]” a “change in the type, location, or arrangement of land use within the development, as shown on the previously approved final development plan[,]” a change in “the boundaries of the [PUD,]” and “any change . . . that violates . . . a condition of approval attached to the [PUD] . . . or . . . a provision of the ordinance that approved . . . the [PUD].” BCZO § 13-403(a). 7 On remand, the Planning Commission made the required findings of fact and conclusions of law and reaffirmed its earlier ruling that the changes to the PUD were, in its view, minor. The circuit court held thereafter a hearing on the merits of the petition for administrative mandamus and affirmed the decision of the Planning Commission. (Continued…) 6 Four days later, on 29 June 2020, VS filed the lawsuit that commenced the present case, asserting claims for breach of contract, tortious interference with economic relations, civil conspiracy to interfere tortiously, and for declaratory relief. It alleged that the HOA parties were “legally precluded from taking any action to obstruct or delay” the development efforts by section 4.9 of the Community Declaration because the HOA parties controlled only 200 of the 700 votes allocated to the Clipper Mill Association members, making it “mathematically [impossible to] achieve the 75 percent threshold” to “undertake any action to oppose [VS’s] efforts relating to the zoning, development or improvement of any property owned by [VS] within the Clipper Mill Development.” Despite that alleged prohibition, the HOA parties created “fictitious and subversive associations to oppose VS[’s] development efforts” and published “false and misleading information about VS . . . and its development efforts.” They also took the following actions to thwart VS’s efforts to pursue the Projects: • “Organized a campaign of letter writing, emailing and other public opposition to the development [of the Projects]”; • “Engaged counsel to file legal objections to the [Projects]”; • “Solicited local politicians to oppose the development of the [Projects]”; The HOA parties noted an appeal from that ruling, which was submitted on brief in this Court during the December session of this year.

See The Council of Unit Owners of The Millrace Condominium, et al. v. City Planning Comm’n, et al., No. 131, Sept. Term 2021. A second administrative appeal arising from the Planning Commission’s approval of a minor amendment to the PUD in the Tractor Building Project is pending also in this Court. See In re The Petition of the Council of Unit Owners of The Millrace Condominium, et al., No. 959, Sept. Term 2021. It has not been briefed yet. 7 • “Filed objections to the proposed development of the [Projects] . . . with the Baltimore City Planning Commission”; • “Appeared individually, through correspondence and through counsel, at a hearing before the Baltimore City Planning Commission and presented testimony, documents, and arguments opposing . . .

VS Clipper Mill’s development efforts [for the Projects] — including a presentation made on behalf of the Millrace Council and the Clipper Mill HOA and testimony by [Defendants Meyer, Block, and Pietrzak] at [hearings] before the Baltimore City Planning Commission on [14 November 2019 and 18 June 2020]”; and • “Otherwise acted in an unlawful, wrongful and malicious manner in an effort to obstruct, impair and delay . . . VS Clipper Mill’s development efforts, and to make VS Clipper Mill’s development more expensive, in violation of their obligations under the Community Declaration and the Subordinate Declarations.” In support of its tort counts and related request for $25 million in punitive damages, VS alleged that the HOA parties undertook these actions “knowingly . . . for the unlawful purpose of obstructing, impairing, delaying and making VS[’s] development efforts more expensive” and wrongfully in an attempt to “strong arm VS . . . and force it to make concessions” related to parking within the development. It alleged that this wrongful intent was evidenced by an email “exchange” between Ms. Meyer and a former resident of the Millrace, in which the former resident related to Ms. Meyer that, if VS “would come to the table and reasonably handle the parking situation[,]” he would support the Tractor Building Project. He suggested that most community members were opposing that Project as a “ploy to try to get [VS] to buzz off.” VS alleged that it had been damaged by the HOA parties’ actions because they delayed final approval of the proposed amendments to the PUD, causing loss of investment income, additional carrying costs, loss of use of the land, and attorneys’ fees 8 and costs associated with defending against the HOA parties’ administrative appeals.

It asked the court to enter a declaratory judgment determining, inter alia, that the HOA parties are bound by the Community Declaration and that they are prohibited by it “from taking any action challenging the zoning, development or improvement of the Clipper Mill Development except through the Clipper Mill Association, which has the sole and exclusive authority to act on such matters[.]” Ten days after it filed its complaint, VS served on the individual HOA parties its first request for production, which directed them to produce all documents included in an earlier preservation request, as well as their personal banking records from January 2015 to the present. The earlier preservation request, dated 20 May 2020, directed the HOA parties to preserve all electronically stored information on personal and business devices, including phones, laptops, and tablets, for potential discovery. The HOA parties moved to dismiss the complaint arguing that it was a SLAPP suit and that they were immune from suit for their protected communications pursuant to CJP § 5-807.8 They emphasized that the conduct that VS alleged was unlawful all concerned the HOA parties’ public participation in opposition to VS’s efforts to amend the PUD before the Planning Commission and the circuit court, which was protected activity under the First Amendment. The HOA parties maintained that the timing of the filing of the 8 The Clipper Mill HOA and its board members, Mr. Pietrzak and Ms. Halle, filed one motion to dismiss and the Millrace Council and its board members, Ms. Meyers, Mr. Block, and Mr. Cashman, filed a separate motion to dismiss.

Except for an argument relative to Ms. Meyers’ status as a non-owner resident of the Millrace, the HOA parties made the same arguments for dismissal. The circuit court did not distinguish between the parties in ruling on the motions to dismiss. 9 lawsuit, just four days after the circuit court issued its remand order in the Townhouse Project administrative appeal, coupled with the demand for punitive damages and “onerous, overbroad, and intentionally intrusive discovery requests[,]” exemplified bad faith and justified dismissal of the complaint. In addition, they asserted that VS had not pleaded any facts showing that the HOA parties made any statements about VS or the Projects with “constitutional malice.” The HOA parties rejected the proposition that they breached the Community Declaration by their conduct, arguing that the declaration only restricted actions taken “on behalf” of the Clipper Mill Association and that none of the HOA parties held themselves out as acting on behalf of that entity. In any event, if the construction of § 4.9 of the Community Declaration advanced by VS was correct, that provision should be struck down as unconscionable and a violation of Maryland public policy.

VS opposed the motions to dismiss, arguing that the HOA parties asserted “fact- dependent defenses” that were inappropriate for resolution on a preliminary motion to dismiss. It relied upon several unreported decisions issued by the United States District Court for the District of Maryland denying motions to dismiss under the Anti-SLAPP statute.9 This Court announced recently that it is “no longer [our] policy to prohibit the 9 citation of unreported opinions of federal courts or the courts of other states for persuasive value, provided that the jurisdiction that issued any particular opinion would permit it to be cited for that purpose.” Gambrill v. Bd. of Educ. of Dorchester Cnty., 252 Md. App. 342 , 352-53 n.6 (2021), cert. granted, __ Md. __ (13 Sept. 2021). Federal Rule of Appellate Procedure 32.1 prohibits any federal court from restricting the citation of any unpublished federal judicial opinion issued after 1 January 2007. 10 The circuit court held a hearing and, by order entered 23 November 2020, granted the motions to dismiss. It ruled that the lawsuit was a SLAPP suit, that the Community Declaration did not prohibit the HOA parties’ conduct, and that the HOA parties were immune civilly from suit for their protected communications made in opposition to the Projects.

We shall present the court’s specific findings in our discussion of the question presented. This timely appeal by VS followed. As noted earlier at (slip op. at 1, n.1) MCB was substituted for VS as appellant for purposes of this appeal. STANDARD OF REVIEW When deciding whether to grant a motion to dismiss a complaint as a matter of law, a court must assume the truth of well-pleaded factual allegations made in the complaint and draw all reasonable inferences from those allegations in favor of the plaintiff.

Ceccone v. Carroll Home Servs., LLC, 454 Md. 680, 691 (2017). “Mere conclusory charges that are not factual allegations need not be considered.” Shenker v. Laureate Educ., Inc., 411 Md. 317, 335 (2009) (citation omitted). We review the circuit court’s decision without deference. Lamson v. Montgomery Cnty., 460 Md. 349, 360 (2018). DISCUSSION “Generally speaking, anti-SLAPP statutes aim to weed out and deter lawsuits brought for the improper purpose of harassing individuals who are exercising their protected right to freedom of speech.” Fairfax v. CBS Corp., 2 F.4th 286, 296 (4th Cir. 2021).

The quintessential SLAPP suit is “directed at individual citizens of modest means 11 for speaking publicly against development projects.” Duracraft Corp. v. Holmes Prods. Corp., 691 N.E.2d 935, 940 (Mass. 1998); Town of Madawaska v. Cayer, 103 A.3d 547, 551 (Me. 2014) (explaining that “zoning disputes make up many of the classic anti- SLAPP cases, . . . [occurring typically] when citizens who publicly oppose development projects are sued by companies or other citizens”). SLAPP suits “are by definition meritless suits.” Duracraft, 691 N.E.2d at 935 (quotations and citation omitted). A. Maryland’s Anti-SLAPP Statute In 2004, the General Assembly enacted CJP § 5-807 to “protect individuals and groups, many with few assets, from defending costly legal challenges to their lawful exercise of such constitutionally protected rights as free speech, assembly, and the right to petition the government.” Dep’t Legislative Servs., Fiscal and Policy Note, House Bill 930, at 2 (2004 Session) (hereinafter cited as “HB 930 Fiscal Note”).

In doing so, Maryland joined at least 20 other states with Anti-SLAPP laws in place. HB 930 Fiscal Note at 2. Codified within Title 5, Subtitle 8 of the Courts and Judicial Proceedings Article, governing miscellaneous “Immunities and Prohibited Actions,” the statute defines a lawsuit as a SLAPP suit if it meets these criteria: (1) Brought in bad faith against a party who has communicated with a federal, State, or local government body or the public at large to report on, comment on, rule on, challenge, oppose, or in any other way exercise rights under the First Amendment of the U.S. Constitution or Article 10, Article 13, or Article 40 of the Maryland Declaration of Rights regarding any matter within the authority of a government body or any issue of public concern; (2) Materially related to the defendant’s communication; and 12 (3) Intended to inhibit or inhibits the exercise of rights under the First Amendment of the U.S. Constitution or Article 10, Article 13, or Article 40 of the Maryland Declaration of Rights. CJP § 5-807(b).

In sum, the statutory thresholds for such a lawsuit require that it be 1) brought in bad faith, 2) brought against a party who has made protected communications to a government body or the public on a matter within the authority of government body or on an issue of public concern, 3) materially related to the protected communications, and 4) intended to inhibit or to have inhibited the making of those protected communications. If all four criteria are satisfied, then the defendant is entitled to civil immunity if he or she acted “without constitutional malice” when making the protected communications. CJP § 5-807(c). The Anti-SLAPP statute provides two particular procedural options for responding to an alleged SLAPP suit: (d) A defendant in an alleged SLAPP suit may move to: (1) Dismiss the alleged SLAPP suit, in which case the court shall hold a hearing on the motion to dismiss as soon as practicable; or (2) Stay all court proceedings until the matter about which the defendant communicated to the government body or the public at large is resolved.

CJP § 5-807(d).10 10 During the 2010 regular session, the General Assembly considered, but rejected, proposed amendments to subsection (d) of the Anti-SLAPP statute. See SB 990 (2010 Regular Session), Rejected Amendment to SB 990, 04/10/2010, 228373/01. Those amendments proposed eliminating the motion to stay provision and modifying the motion to dismiss provision to allocate the burdens of proof and specify the evidence that a court (Continued…) 13 To date, neither this Court nor the Court of Appeals has had occasion to construe the provisions of the Anti-SLAPP statute in a reported opinion. B. Contentions of Error MCB contends exclusively that the circuit court “misappli[ed] . . . the standard of review” applicable to a motion to dismiss for failure to state a claim upon which relief may be granted and erred in four specific ways in granting the motion.

First, it argues that the circuit court should not have determined the element of “bad faith” on a motion to dismiss because it is a factual question that turns, in part, upon the subjective motivation of the plaintiff and, even if that issue could be decided on a preliminary motion, that the “four circumstances” relied upon by the circuit court did not support that finding. Second, MCB contends that the communications made by the HOA parties were motivated by private parking concerns, not an issue of public concern or a matter within the authority of a government body. Third, MCB maintains that it made a “plausible may consider in ruling on a motion. Patterned after similar out-of-state Anti-SLAPP laws, the amendments allocated the initial burden to the moving party to make a prima facie showing that the lawsuit was a SLAPP suit and, if met, shifted the burden to the non-moving party to show a probability of prevailing in the lawsuit “by presenting substantial evidence.” See SB 990 (2010 Regular Session), Rejected Amendment to SB 990, 04/10/2010, 228373/01; see also, e.g., Ga.

Code Ann., § 9-11-11.1 (defendant may file a special motion to strike an alleged Anti-SLAPP suit which shall be granted unless the court determines, upon considering pleadings and supporting and opposing affidavits, that the non-moving party has established a probability of prevailing); D.C. Stat. § 16- 5502 (allowing special motion to dismiss, allocating initial prima facie burden to moving party to show that lawsuit is a SLAPP and, if met, shifting burden to non-moving party to show likelihood of success on the merits). The proposed amendments would have permitted also the parties to submit supporting and opposing affidavits for the court’s consideration in ruling on a motion to dismiss. See SB 990 (2010 Regular Session), Rejected Amendment to SB 990, 04/10/2010, 228373/01. 14 claim” that the HOA parties contravened the Community Declaration by their actions and, consequently, the lawsuit was not “materially related” to any protected communications. Fourth, MCB contends that the HOA parties could not and did not show at the dismissal stage that they acted without constitutional malice in