Filed 6/27/17 Rodriguez v. Harbor House Café CA4/3






NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FOURTH APPELLATE DISTRICT

DIVISION THREE


BERTHA RODRIGUEZ et al.,

Cross-complainants and Respondents,

v.

HARBOR HOUSE CAFÉ INC. et al.,

Cross-defendants and Appellants.


G053661

(Super. Ct. No. 30-2013-00660230)

O P I N I O N

Appeal from an order of the Superior Court of Orange County, Sheila Fell, Judge. Reversed. Request for sanctions. Denied.
Kassinove & Raskin, Serafina Raskin and Edward B. Raskin for Cross-defendants and Appellants.
Law Offices of Timothy Donahue and Timothy J. Donahue for Cross-complainants and Respondents.


INTRODUCTION
Harbor House Café, Inc., (Harbor House) and Gary and Mindy Quick (the Quicks) appeal from an order denying their anti-SLAPP motion against a cross-complaint filed by Bertha Rodriguez. The basis of the cross-complaint was a settlement agreement between Rodriguez on the one hand and Harbor House and the Quicks on the other. Several months after finalizing the agreement, Harbor House filed a cross-complaint against Rodriguez. She fired back with her own cross-complaint, alleging that Harbor House’s pleading breached the releases incorporated into the agreement. Harbor House and the Quicks filed an anti-SLAPP motion, which the court denied, finding the settlement agreement ambiguous on the subject of releases.
We reverse. We agree with the trial court that Harbor House’s conduct—filing a cross-complaint—is protected activity under the anti-SLAPP statute. We also agree that the settlement agreement is too uncertain to allow a definitive decision at this point about whether Rodriguez can prevail on her claim that the agreement shields her against Harbor House’s cross-complaint. The litigation privilege of Civil Code section 47, subdivision (b), however, provides an absolute defense against Rodriguez’s cross-complaint, the essence of which is that she is suing Harbor House for suing her. As a matter of law, Rodriguez has no probability of prevailing on her cross-complaint in this action, and it must therefore be dismissed.
FACTS
This case started life in 2013 as an employment action against Harbor House and the Quicks, brought by Sergio Cueva and Rodriguez. An amended complaint was filed in November 2013. Rodriguez settled with Harbor House and the Quicks in February 2015; the agreement included a payment to Rodriguez and her general release of all claims against them.
Harbor House requested leave to file a cross-complaint against Cueva and Rodriguez in July 2015. The motion was finally heard and granted in October. The Harbor House cross-complaint accused Rodriguez and Cueva of diverting money belonging to Harbor House to themselves by setting up a false security interest in Harbor House’s receivables.
Rodriguez then filed a cross-complaint against Harbor House and the Quicks, based on the settlement agreement. In effect, Rodriguez accused Harbor House and the Quicks of breaching the settlement agreement by filing the cross-complaint against her. She alleged that the settlement agreement contained mutual releases and filing the cross-complaint violated them. The four causes of action in the Rodriguez cross-complaint were breach of contract, breach of the implied covenant, and intentional and negligent infliction of emotional distress.
Harbor House and the Quicks moved to strike the complaint under the anti-SLAPP statute. The trial court held that the Rodriguez cross-complaint alleged protected activity, but because the settlement agreement was ambiguous on the subject of releases, Rodriguez had made a prima facie case for a probability of prevailing. The motion was therefore denied.
DISCUSSION
The California Legislature enacted the anti-SLAPP statute to counteract “a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances.” (Code Civ. Proc., § 425.16, subd. (a).) A court may order a cause of action “arising from any act” “in furtherance” of the “right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue” to be stricken by means of this special motion. (Code Civ. Proc., § 425.16, subd. (b)(1).) We review the order granting or denying an anti-SLAPP motion de novo. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.)
We use a two-part test to evaluate an anti-SLAPP motion. First, we determine whether the complaint or cause of action is “one arising from protected activity.” (Navellier v. Sletten (2002) 29 Cal.4th 82, 88.) As the Supreme Court has emphasized, “[T]he critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Id. at p. 89.) If the defendant satisfies the first part of the test, the burden shifts to the plaintiff to demonstrate a probability of prevailing. (Id. at p. 88.) Although the plaintiff does not have to prove its case at this juncture, it must present a prima facie case that could sustain a judgment if its evidence is believed. (Id. at pp. 88-89.)
Protected Activity
The trial court found that the Rodriguez cross-complaint was based on protected activity: filing the Harbor House cross-complaint. We agree. The cross-complaint is a “writing made in connection with an issue under consideration or review by a . . . judicial body.” (Code Civ. Proc., § 425.16, subd. (e)(2).)
Rodriguez argues that her cross-complaint is a breach of contract action, not a SLAPP suit. What Rodriguez overlooks is that Harbor House breached the contract, allegedly, by filing a lawsuit. She is seeking to hold Harbor House liable for filing a lawsuit. Filing a lawsuit is an exercise of a person’s right of petition and thus is protected conduct under the anti-SLAPP statute. Harbor House could have breached the contract in ways that did not implicate rights of petition or free speech—by failing to pay Rodriguez the agreed-upon settlement amount, for example—but filing a lawsuit falls squarely within the type of conduct protected by the anti-SLAPP statute. (See City of Colton v. Singletary (2012) 206 Cal.App.4th 751, 767-768 (Singletary).)
Probability of Prevailing
In the motion proceeding below, the probability of prevailing centered on the release provisions of the settlement agreement. The most extensive release runs one way—from Rodriguez to Harbor House and the Quicks. There is, however, language in the agreement that could support two-way releases. We agree with the trial court that the proper interpretation of the release provisions of the settlement agreement cannot be decided at this early point in the proceedings.
This uncertainty is not the end of the story. Rodriguez is, in effect, suing Harbor House and the Quicks for suing her. Filing a lawsuit is conduct that is absolutely privileged under Civil Code section 47, subdivision (b); a cross-complaint is a publication made in connection with a judicial proceeding. Rodriguez cannot base any cause of action on filing a lawsuit except one for malicious prosecution. (See Silberg v. Anderson (1990) 50 Cal.3d 205, 215-216; Kashian v. Harriman (2002) 98 Cal.App.4th 892, 926-927 [absolute privilege precludes likelihood of prevailing]; see also Singletary, supra, 206 Cal.App.4th at p. 771.) She has no probability of prevailing on her cross-complaint in this action.
Other Issues
In her brief in this court, Rodriguez raised a number of arguments in addition to the main issues of protected activity and probability of prevailing. Some are contradicted by the record. None are supported by citation to authority. Not all of them are comprehensible.
Rodriguez claimed that Harbor House lacked standing to file the motion. As Harbor House was a named cross-defendant and Rodriguez alleged “[a] cause of action against [Harbor House] arising from any act of that person in furtherance of that person’s right of petition” (Code Civ. Proc., 425.16, subd. (b)), it is difficult to understand the basis of this argument.
Rodriguez also made some manifestly untrue statements in her brief. She claimed that the motion was filed late, and that the delay was “recognized by the trial court.” On the contrary, the court found that the motion was timely. She claimed that the failure to comply with Code of Civil Procedure section 425.16, subdivision (j), was a “fatal problem recognized by the trial court.” The trial court made no such ruling. She complained about the content of the notice of motion, which the court found to be proper. She also claimed that the court sustained her evidentiary objections. The record contains no ruling on any evidentiary objections. She asserted that the trial court found that Harbor House had no standing to make the motion. The trial court entertained and ruled on the motion, as it would not have done had the moving party lacked standing.
Finally, Rodriguez seeks sanctions for a purportedly frivolous appeal. Given the outcome of this appeal sanctions are not appropriate. There was nothing frivolous about this appeal, except her request for sanctions. The closer question was whether to sanction her counsel for his continued disrespect for this court and its rules. We have decided not to sanction him . . . this time.
 
DISPOSITION
The order denying Harbor House and the Quicks’ anti-SLAPP motion is reversed, and the trial court is directed to enter an order dismissing the Rodriguez cross-complaint. Rodriguez’s request for sanctions is denied. Harbor House and the Quicks are to recover their costs on appeal.



THOMPSON, J.

WE CONCUR:



BEDSWORTH, ACTING P. J.



ARONSON, J.