DEPARTMENT 58 LAW AND MOTION RULINGS

Effective 2-1-16, Judge Treu is assigned to Dept. 59, Family Law.

Case Number: 18STCV00536    Hearing Date: December 31, 2019    Dept: 58

Judge John P. Doyle

Department 58

Hearing Date:             December 31, 2019

Case Name:                 Shankar v. Kassabian, et al.

Case No.:                    18STCV00536

Motion:                       Anti-SLAPP Motion

Moving Party:             Defendant George Kassabian

Responding Party:       Plaintiff Arvind Shankar

Tentative Ruling:      The Anti-SLAPP Motion is granted.

On November 8, 2019, Plaintiff filed the operative First Amended Complaint (“FAC”) for (1) fraud and deceit, and (2) breach of contract.  The FAC alleges that Defendant Kassabian breached the confidentiality provision of a Settlement Agreement (“SA”) by improperly filing the SA in case no. BC567260 without sealing it.  Further, Plaintiff alleges “he had no obligation under the aforesaid Settlement Agreement to cease prosecution under any established case number for the Los Angeles Superior Court as long as Plaintiff was not seeking compensation for any claims that had been previously asserted and that had been released by virtue of the  aforesaid Settlement Agreement. Plaintiff never sought compensation after the Settlement Agreement had been executed for claims that had previously been settled.”  (FAC ¶ 50.)

  1. Anti-SLAPP Motion

Defendant Kassabian brings an anti-SLAPP Motion as to the second cause of action for breach of contract.  Defendant argues such claim arises from protected activity to the extent its targets his filing of the SA in BC567260.  Further, Defendant asserts such claim lacks minimal merit because (1) Plaintiff cannot establish performance and (2) the litigation privilege applies.

(a)   Judicial Notice

As Plaintiff has agreed, the Court takes judicial notice of the filings in case no. BC567260.

The Court also takes judicial notice of the court of appeal’s decision in Shankar v. Kassabian (2017) No. B267970, 2017 WL 2874807.

(b)  Legal Standard

Code of Civil Procedure section 425.16 sets forth the procedure governing anti-SLAPP motions.  In pertinent part, the statute states, “A cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.”  (Code Civ. Proc. § 425.16(b)(1).)  The purpose of the statute is to identify and dispose of lawsuits brought to chill the valid exercise of a litigant’s constitutional right of petition or free speech.  (Code Civ. Proc. § 425.16(a); Sylmar Air Conditioning v. Pueblo Contracting Services, Inc. (2004) 122 Cal.App.4th 1049, 1055-1056.)

Courts employ a two-step process to evaluate anti-SLAPP motions.  (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 61.)  To invoke the protections of the statute, the defendant must first show that the challenged lawsuit arises from protected activity, such as an act in furtherance of the right of petition or free speech.  (Ibid.)  From this fact, courts “ ‘presume the purpose of the action was to chill the defendant’s exercise of First Amendment rights.  It is then up to the plaintiff to rebut the presumption by showing a reasonable probability of success on the merits.’ ”  (Ibid.)  In determining whether the plaintiff has carried this burden, the trial court considers “the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.”  (Code Civ. Proc. § 425.16(b)(2); see Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 291 (“Soukup”).)

(c)  Protected Activity

An “ ‘act in furtherance of a person’s right of petition or free speech under the United States or California Constitution in connection with a public issue’ includes: (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.”  (Code Civ. Proc. § 425.16(e).)

Here, Plaintiff’s breach of contract claim arises from protected activity under Code Civ. Proc. § 425.16(e)(1) because it premises breach on Kassabian’s filing of the SA in BC567260.  (FAC ¶  52.)

Plaintiff argues “a defendant who in fact has validly contracted not to speak or petition has in effect ‘waived’ the right to the anti-SLAPP statute’s protection in the event he or she later breaches that contract.”  (Navellier v. Sletten (2002) 29 Cal.4th 82, 94.)

However, this waiver argument applies only to the second prong of the Anti-SLAPP analysis.  (DaimlerChrysler Motors Co. v. Lew Williams, Inc. (2006) 142 Cal.App.4th 344, 351–52 [“[I]t is the plaintiff’s burden to substantiate defendant breached a valid waiver to protest. We now address that prong. . . . Keil claims DaimlerChrysler did not show a probability of success on the merits of its cross-complaint.”].)

Defendant has met his burden to show that the second cause of action for breach of contract is premised on petitioning activity within the meaning of Code Civ. Proc. § 425.16(e)(1).

(d) Minimal Merit

On the second component of the analysis, courts employ a “summary-judgment-like” procedure, “accepting as true the evidence favorable to the plaintiff and evaluating the defendant’s evidence only to determine whether the defendant has defeated the plaintiff’s evidence as a matter of law.”  (Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193 Cal.App.4th 435, 444.)  In other words, the Court does not assess credibility, and the plaintiff is not required to meet the preponderance of the evidence standard.  The Court accepts as true the evidence favorable to the plaintiff, who need only establish that his or her claim has “minimal merit” to avoid being stricken as a SLAPP.  (Soukup, supra, 39 Cal.4th at p. 291.)

Defendant argues the second cause of action lacks minimal merit because it is barred by the litigation privilege.  Defendant also argues Plaintiff cannot establish performance.

(1)   Litigation Privilege

The litigation privilege set forth in Civ. Code § 47 generally applies “to any communication (1) made in judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litigation; and (4) that have some connection or logical relation to the action.”  (Silberg v. Anderson (1990) 509 Cal.3d 205, 212.)  The “principle purpose of [the litigation privilege] is to afford litigants . . . the utmost freedom of access to the courts without fear of being harassed subsequently by derivative tort actions.”  (Id. at p. 213.) “The litigation privilege is . . . relevant to the second step in the anti-SLAPP analysis in that it may present a substantive defense a plaintiff must overcome to demonstrate a probability of prevailing.”  (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.)  Statements made in anticipation of litigation are subject to the litigation privilege.  (Briggs v. Eden Council for Hope and Opportunity (1999) 19 Cal.4th 1106, 1115.)

“[W]hether the litigation privilege applies to an action for breach of contract turns on whether its application furthers the policies underlying the privilege.”  (Wentland v. Wass (2005) 126 Cal.App.4th 1484, 1492.)

The litigation privilege does not apply to Plaintiff’s second cause of action.  As the Court stated in ruling on Kassabian’s demurrer to the Complaint,

Here, the litigation privilege does not apply to Plaintiff’s breach of contract claim because such claim is not premised on wrongful conduct during litigation, but rather the failure to abide by an independent contractual promise to maintain confidentiality.  (Wentland, supra, 126 Cal.App.4th at p.1494 [“This cause of action is not based on allegedly wrongful conduct during litigation, as in Pollock v. Superior Court, supra, 229 Cal.App.3d 26, 279 Cal.Rptr. 634, and Laborde v. Aronson, supra, 92 Cal.App.4th 459, 112 Cal.Rptr.2d 119. Rather, it is based on breach of a separate promise independent of the litigation . . . .”].)  Contrary to Kassabian’s arguments, Wentland’s finding was not premised on the fact that the contract therein was formed outside litigation, but rather the fact that the wrong complained of related to breach of an independent contractual duty.

Indeed, “[j]ust as one who validly contracts not to speak waives the protection of the anti-SLAPP statute (Navellier v. Sletten, supra, 29 Cal.4th at p. 94, 124 Cal.Rptr.2d 530, 52 P.3d 703), so too has he waived the protection of the litigation privilege. The litigation privilege has never shielded one from all liability. One who makes an injurious communication may be criminally liable for perjury (Silberg v. Anderson, supra, 50 Cal.3d at p. 219, 266 Cal.Rptr. 638, 786 P.2d 365), or subject to professional disciplinary proceedings (Budwin v. American Psychological Assn. (1994) 24 Cal.App.4th 875, 881, 29 Cal.Rptr.2d 453).”  (Wentland, supra, 126 Cal.App.4th at p. 1494.)

. . .

Further, it is unclear how applying the litigation privilege to Plaintiff’s breach of contract claim would support the litigation privilege’s purpose “to ensure free access to the courts, promote complete and truthful testimony, encourage zealous advocacy, give finality to judgments, and avoid unending litigation.”  (Wentland, supra, 126 Cal.App.4th at p. 1492.)  This is because, again, to the extent the wrong complained of is the unnecessary disclosure of the SA to the public by failing to seal the SA, Plaintiff’s claim does not actually challenge the content of the communications made to the court in BC567260.

(October 7, 2019, Minute Order.)

(2)   Performance

“The elements of a cause of action for breach of contract are: (1) [a valid] contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s breach, and (4) the resulting damages to plaintiff.”  (Coles v. Glaser (2016) 2 Cal.App.5th 384, 391.)

Kassabian argues Plaintiff cannot establish performance because Plaintiff filed an ex parte application to vacate the dismissal in BC567260.  The Court agrees.

The evidence shows that after Plaintiff executed a request for dismissal–but before Defendants filed the request–Plaintiff filed an amended complaint in BC567260.  Plaintiff thereafter filed an ex parte application to vacate the dismissal because “(1) the request for dismissal was filed by defendants, not plaintiff; (2) the request for dismissal applied to the original complaint, not the amended complaint; (3) the request for dismissal was filed by plaintiff’s former attorney; and (4) the request for dismissal applied only to claims in the original complaint against the defendant named therein, not the claims against the other defendants who were named in the amended complaint.”  (Shankar v. Kassabian (2017) 2017 WL 2874807 at *3.)  Plaintiff’s ex parte application was ultimately denied.

The court of appeal dismissed Plaintiff’s appeal of the denial of his ex parte application.  But in doing so, the court stated, “[t]he amended complaint repeated nearly verbatim the factual allegations and causes of action of the original complaint. The amended complaint added only the allegation that defendants continued to employ Kassabian after settling the action in January 2015.”  (Id. at *2.)  The court notably went on to say, “[counsel’s] statement in his declaration that he did not intend to dismiss claims against defendants that arose as a result of conduct that occurred after the settlement also is contradicted by the terms of the settlement agreement. The agreement expressly provided that it applied to ‘all claims (known or unknown, suspected or unsuspected) arising out of, from or in any way related to the subject Action and the subject incident.’ Plaintiff further waived all claims regarding ‘unknown and unexpected consequences or results’ related to the litigation, pursuant to Civil Code section 1542. The only allegation in the amended complaint of conduct that occurred after the settlement was that defendants continued to employ Kassabian after entering into the settlement agreement. Any alleged damage from defendants’ continued employment of Kassabian clearly arises out of the claims resolved by the settlement agreement.”  (Id. at *5.)

That is, by attempting to prosecute the amended complaint in BC567260, Plaintiff sought to pursue claims which had been released by the SA.  In other words, Plaintiff breached the SA such that he cannot establish performance.[1]  Therefore, Kassabian had no obligation to abide by the SA’s confidentiality provision and the filing of the unsealed SA cannot constitute a breach of the SA.[2]

Because Plaintiff cannot establish performance, the second cause of action lacks minimal merit.  Accordingly, the Anti-SLAPP Motion is granted.  The second cause of action is stricken as to Kassabian.

(e) Attorneys’ Fees and Costs

As the prevailing party on the Anti-SLAPP Motion, Kassabian is entitled to attorneys’ fees and costs.  (Code Civ. Proc. § 425.16(c.)  The Court awards the requested $3,060, which the Court finds reasonable.

 

[1] Even if Plaintiff wished to pursue misconduct taking place after the execution of the SA, the amended complaint in BC567260 did not plead allegations supporting such misconduct.  Thus, the amended complaint only sought damages for released claims.

[2] For the same reasons, Plaintiff cannot establish waiver.