Metropolitan News-Enterprise


Wednesday, August 15, 2012


Page 1


C.A. Allows Libel Suit Against Lawyer to Go Forward


By a MetNews Staff Writer


An attorney who claims she was libeled by another lawyer in connection with a dispute regarding management of their homeowners’ association may proceed with her lawsuit, the Court of Appeal for this district ruled yesterday.

Div. Six affirmed the denial of Phillip Feldman’s special motion to strike Sherrill  M. Silk’s defamation suit. Silk alleges that Feldman falsely accused her of breaching her fiduciary duties as a member of a committee seeking to resolve litigation involving the association.

Presiding Justice Arthur M. Gilbert, writing for the Court of Appeal, said the motion was correctly denied because Silk showed that she is likely to prevail in the suit.

Silk and Feldman are owners and residents of units at the Malibu Bay Club, a beachfront development in Ventura County. Silk was a director of the homeowners’ group from 1996 to 2000, and Feldman has been a director since 2009.

Both are attorneys, Silk in Malibu and Feldman in Van Nuys. Feldman is a certified specialist in professional liability, was long involved in the attorney discipline system, and ran four times for the State Bar Board of Governors.

Parking Space Suit

During the time Silk was a director of the association, the son of the developer sued the homeowners to quiet title to 36 parking spaces. After a trial judge ruled that the plaintiff owned the spaces, a settlement was reached, and the plaintiff, Montgomery Knox, offered the spaces for sale.

Silk bought six of the spaces in 2003 for $19,000 each.

In 2009, Silk and Feldman both ran for the board, and Feldman sent out a letter accusing Silk of having overseen the Knox lawsuit so she could obtain parking spaces for her personal use. He later sent out another letter claiming that Silk and the group’s president “cut secret deals to purchase nine parking spaces for themselves with manufactured rights to use our beach along with each space” and that subsequent board members had covered up this alleged self-dealing.

Silk alleged in her complaint that the letters were libelous. In opposition to the anti-SLAPP motion, she submitted a declaration explaining that she and two other board members served on a committee that attended mediation sessions with legal counsel in the Knox litigation, that the settlement was approved unanimously by the directors of both homeowner associations that represent owners at the Malibu Bay Club, and that she had no agreement with Knox or anyone else regarding the parking spaces before she purchased them several years later.

President’s Declaration

The club president also submitted a declaration, explaining the settlement process, which included full disclosure to the homeowners, advice of independent counsel, an insurer, and a mediator, and a survey showing a large majority of homeowners supporting the settlement.

Ventura Superior Court Judge Henry Walsh ruled that the alleged defamation was not an exercise of free speech or petition rights.

Gilbert, in his opinion for the Court of Appeal, said Silk’s evidence showed the falsity of Feldman’s charges. Silk had not engaged in self-dealing, he said, did not control the Know litigation, and did not engage in any wrongdoing.

Nor, the presiding justice went on to say, were the letters protected by the litigation privilege. While the letter did contain references to potential future litigation by individual homeowners against the association over the directors’ alleged improprieties, there was no showing that the defamatory statements about Silk advanced the objectives of that litigation, Gilbert explained.

The jurist went on to say that Silk was not required to plead damages.

“Feldman’s letter on its face accused Silk of a serious breach of fiduciary duty,” Gilbert wrote. “That is libelous per se.  Silk need not show damages.”

The case is Silk v. Feldman, 12 S.OS. 4119.


Copyright 2012, Metropolitan News Company