Rubin v. Kessler CA2/2 ( 2020 )

Filed 12/18/20 Rubin v. Kessler CA2/2
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION TWO
JASON P. RUBIN, as Trustee, etc., B301967
Plaintiff and Respondent, (Los Angeles County
Super. Ct. No. BC720451)
v.
WARREN J. KESSLER, Individually
and as Trustee, etc., et al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles County. Robert S. Draper, Judge. Affirmed.
Nemecek & Cole, Frank W. Nemecek, Mark Schaeffer and
Jonathan M. Starre for Defendants and Appellants.
Gould Law, Howard N. Gould; Mokri Vanis & Jones,
Richard W. Vanis, Jr., Matthew J. Eschenburg; Esner, Chang &
Boyer and Stuart B. Esner for Plaintiff and Respondent.
_________________________________
Warren and Joan Kessler1 appeal from the trial court’s
denial of their motion to strike under Code of Civil Procedure
section 425.16 (the anti-SLAPP statute), and accompanying
award of attorney fees.2 The Kesslers and respondent Rubin3 are
neighbors. Rubin owns an easement for a sewer on the Kesslers’
property.
When Rubin sought to build a new, bigger house on his
property in 2014, the Kesslers opposed Rubin’s permit requests.
After the City of Los Angeles (City) approved the project, the
Kesslers filed a petition for a writ of mandate against the City,
naming Rubin as a real party in interest. Rubin and the Kesslers
settled that action in 2015.
As part of the settlement, Rubin agreed to pay $25,000 to
reimburse the Kesslers’ lawyers; the Kesslers agreed to dismiss
the mandamus proceeding; and both sides agreed to a release.
The Kesslers also agreed that Rubin could proceed with his home
construction and agreed not to challenge Rubin’s permits based
on existing plans.
Several years later Rubin sought access to the easement to
complete his house. His plumbers mistakenly cut the Kesslers’
1 Warren and Joan Kessler were sued as individuals and as
trustees of their family trust, which holds title to their home. We
refer to all appellants collectively as the Kesslers.
2Subsequent undesignated statutory references are to the
Code of Civil Procedure. “SLAPP” is an acronym for “[s]trategic
lawsuit against public participation.” (Briggs v. Eden Council for
Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.)
3 Jason Rubin filed this action in his capacity as trustee of
the trust that owns his home. The form of title is not at issue in
this appeal, and we therefore refer to him simply as Rubin.
2
water line, prompting the Kesslers to deny further access to the
easement. Rubin filed this lawsuit and obtained a preliminary
injunction requiring the Kesslers to allow access.
The Kesslers opposed the preliminary injunction in part by
arguing that Rubin had forfeited his easement because he had
abused his easement right. They filed a cross-complaint seeking
to nullify the easement based upon similar grounds. Both the
injunction opposition and the Kesslers’ cross-complaint claimed
that Rubin’s abuse of the easement included events that occurred
prior to the settlement. Rubin responded with a first amended
complaint (FAC) alleging that the Kesslers had breached the
settlement agreement by raising those claims.
The Kesslers filed an anti-SLAPP motion seeking to strike
that cause of action along with some other language in the FAC,
arguing that the challenged portions of the FAC arose from the
Kesslers’ protected petitioning conduct. The trial court denied
the motion and awarded Rubin $33,060 in attorney fees on the
ground that the Kesslers’ motion was frivolous and designed
solely to cause delay and expense.
We affirm. The language that the Kesslers sought to strike
from the FAC supported only Rubin’s claim for breach of the
settlement agreement. Although that claim arose from protected
petitioning conduct—i.e., the Kesslers’ pleadings in this action—
the likelihood that Rubin would succeed on his claim was
apparent from the face of the Kesslers’ own pleadings. The trial
court therefore did not err in denying the Kesslers’ anti-SLAPP
motion and did not abuse its discretion in finding that the
Kesslers’ motion was frivolous and filed for the purpose of delay.
3
BACKGROUND
1. The Parties’ Prior Dispute
Rubin and the Kesslers are neighbors on Skylark Lane,
north of Sunset Boulevard in Los Angeles. Rubin has the right to
a sewage easement on the Kesslers’ property. The easement has
existed for about 60 years.
When Rubin sought to build a new house on his property in
2014, the Kesslers opposed Rubin’s request for City approval.
Warren Kessler appeared before the City’s Board of Building and
Safety Commissioners (Board) and before the Los Angeles City
Council to testify against Rubin’s construction and submitted
correspondence in opposition. Among other things, Warren
Kessler wrote a letter to the Board in October 2014 asking the
Board to consider “the impact of the project on the Applicant’s
sewer lines running the property of the [Kesslers].” Warren
Kessler stated that he “will not agree, and is not required under
law to agree, to any increased burden in the use of the sewer
easement resulting from the increased size of the Applicant’s
residence.”
Warren Kessler also claimed that, “[i]n 2010, the
Applicant’s sewer lines cracked and sewage went on to Skylark
Lane. One of the neighbors, over the course of at least one
month, asked the Applicant on numerous occasions to repair the
damage. The Applicant did not make the repairs until the
neighbor threatened to call the Health Department.”
After Rubin had obtained City approval for his
construction, and while Rubin was awaiting various building
permits, the Kesslers filed a petition for a writ of mandate
(Petition), naming the City as a respondent and Rubin as a real
party in interest (the Writ Action). Among other things, the
4
Petition alleged that, in seeking City approval, Rubin
misrepresented the width of Skylark Lane and misleadingly
referred to Skylark Lane as a public street. The Petition alleged
that the City had violated the California Environmental Quality
Act (Pub. Resources Code, § 21000 et seq.) and the Los Angeles
Municipal Code in approving Rubin’s construction. It sought an
order requiring the City to set aside approvals for Rubin’s project.
The Kesslers sought a preliminary injunction. In support
of the injunction, Warren Kessler submitted a declaration
suggesting that Rubin had misrepresented the size of his planned
new residence.
The court denied the preliminary injunction. Rubin and
the Kesslers then agreed to settle their dispute.
2. The Settlement Agreement
Rubin and the Kesslers entered into a written settlement
agreement dated October 26, 2015 (Settlement Agreement). As
part of the agreement, Rubin agreed to pay $25,000 toward the
Kesslers’ attorney fees. The Kesslers agreed to dismiss the Writ
Action and to refrain from further challenges to Rubin’s
construction based on his existing plans. Both parties agreed to a
mutual release.
In a section entitled “Recitals,” the Settlement Agreement
explained the parties’ intention with respect to the scope of the
release. It stated that “the Parties intend to settle, compromise
and release any and all claims, counterclaims and offsets among
them, including any claims they have or may have against the
other arising out of, based upon, or involving any occurrences,
events, omissions or conduct that were or could have been
asserted in the Lawsuit [i.e., the Writ Action] from the beginning
of time through and including the date of execution of this
5
Agreement.” The mutual release itself provided that the parties
released each other from “any and all claims, suits, rights,
actions, complaints, liabilities, obligations, promises, agreements,
contracts, common law or statutory torts, causes of action,
demands, costs, losses, damages, debts, and expenses (including
attorney’s fees and costs) of any nature whatsoever, whether
known or unknown, whether suspected or unsuspected, whether
disclosed or undisclosed, whether contingent or vested, which the
Parties ever had, now have, or may claim to have, against the
Releasees, or any of them, from the beginning of time to the date
of execution of this Agreement by reason of any act, event, or
omission concerning any matter, cause, thing, or claims related
to, or arising out of, or based on the conduct or omissions of the
Releasees, and any of them, related to the Lawsuit.” In addition
to the release itself, the Settlement Agreement also contained a
separate paragraph in which the parties promised that they
would not “commence, aid in any way, prosecute or cause to be
commenced or prosecuted, any action or other proceeding based
upon any claims, demands, causes of action, obligations, damages
or liabilities” that were released in the Settlement Agreement.
In other paragraphs in the Settlement Agreement, the
Kesslers acknowledged that Rubin would “continue with all
approved construction activities based on the City approved plans
and currently outstanding building and related permits,” and
agreed to “not challenge any outstanding building and related
permits based on the plans, applications, reports, and other
submissions that were made prior to the issuance of the building
and related permits” for Rubin’s new residence.
Rubin also agreed that he would “restore the landscaping
on the hillside across from the Kesslers’ garage to its condition
6
prior to the removal of such vegetation in or about July 2015 and
will remove the fence.”
3. Events in 2018
As Rubin’s work on the construction proceeded, on
August 2, 2018, Rubin’s counsel notified the Kesslers of the need
to repair the sewer line on the Kessler’s property to complete the
project. The Kesslers responded by requesting more information
about the intended repair and the City’s requirements. The
Kesslers also stated that “under no circumstance will we agree to
any overburdening or other expansion of the easement.” They
advised that, “under California law, any action on your client’s
part other than repair and maintenance of the existing sewer line
would overburden and expand the easement,” and stated that
they were “prepared to take all appropriate legal action to protect
our property rights.”
In subsequent correspondence, the Kesslers claimed that
Rubin had failed to comply with the provision in the Settlement
Agreement requiring him to replant the hillside in front of the
Kesslers’ house. They alleged that Rubin’s motives were
“vindictive” and advised that they would not permit any repairs
to the sewer line until Rubin “plants the hillside across from our
house and installs and operates sprinklers.” They demanded
assurances that “the current sewer line crossing our property will
be repaired but not enlarged” and warned that “[n]o work will
begin unless and until you have addressed all of the highlighted
issues set forth in this email. We are in the process of making
arrangement to hire armed security guards to prevent any
improper trespass onto our property by your client if this matter
is not resolved.”
7
Following some additional correspondence, the Kesslers
eventually agreed that the repair work could go forward.
However, while conducting the repair, Rubin’s plumbers
damaged the Kesslers’ water line and then repaired it without
purging the system of dirt and air and without informing Kessler.
The damage caused dirty water to come out of the Kesslers’
plumbing.
Following that event, the Kesslers told Rubin’s counsel that
they would not permit further work on the sewer line until the
damage to the water line was repaired to their satisfaction and
the line had been inspected by a building or health inspector.
The Kesslers also demanded that they be reimbursed for their
out of pocket costs from the event, including the cost of their
temporary relocation to the “Four Seasons, Peninsula, or a
similar hotel.”
The parties communicated further about plans to repair the
water line, but their negotiations broke down. The Kesslers hired
counsel and continued to refuse Rubin access to the sewer line
while claiming that Rubin had forfeited his right to the easement.
The Kesslers moved to a hotel and made arrangements to replace
their entire water line.
4. Initial Proceedings in the Trial Court
Rubin filed his complaint in this action on September 4,
2018. Along with the complaint he filed a request for a
temporary restraining order (TRO) and a preliminary injunction
requiring the Kesslers to permit access to the easement so that
Rubin could complete the sewer repair. Rubin’s complaint
alleged causes of action for an injunction and damages for
interference with the easement as well as a cause of action for
nuisance.
8
The trial court denied the TRO and set the preliminary
injunction for hearing.
In support of his request for a preliminary injunction Rubin
testified that the only remaining impediment to moving into his
new house was completion of the repairs to the sewer line. He
explained that he had a newborn child who had been born
prematurely and that the infant required a “ ‘stable, equipped
home’ ” when she was able to leave the hospital.
In opposing the preliminary injunction, the Kesslers argued
that Rubin had forfeited his right to the sewer easement. Their
opposition discussed the 2018 damage to their water line along
with Rubin’s alleged “past instances of easement abuse.” Those
past instances allegedly included the prior sewage leak onto
Skylark Lane as well as Rubin’s alleged misrepresentations to
the City concerning (1) the size of his new house, (2) the width of
Skylark Lane, and (3) whether Skylark Lane was a public street.
In identifying the events justifying forfeiture, the Kesslers
specifically mentioned Rubin’s conduct in “razing the 3,500
square foot house that was on the Rubin Property and replacing
it with a home 5 times larger” and “increasing the amount of
sewage that will burden the easement.” The Kesslers concluded
their argument by claiming that, “[i]f nothing else, Rubin’s past
misconduct of disregarding the dumping of human waste on
Skylark Lane demonstrates the likelihood of harm to the
Kesslers.”
The trial court (Judge Chalfant) granted the preliminary
injunction on October 16, 2018. The court rejected the Kesslers’
argument that Rubin had forfeited his easement as “spurious.”
The court found that “[t]he Rubin sewer line is and will continue
to be a sewer line for a single family residence. Rubin’s new
9
home may have a much larger square footage, but the sewer line
is still burdened only by a single family’s usage.”
The court noted that part of the Kesslers’ opposition to the
injunction was “based on the parties’ history.” In addition to the
2018 water line rupture, that history included “Rubin’s
construction of an 11,000 square foot home to replace the
previous approximately 3500 square foot home,” and the prior
“sewer line disruption in which human feces and toilet paper was
dumped on Skylark lane.” The court concluded that “[t]his
history explains the parties’ antipathy and the Kesslers’ distrust
of Rubin,” but did not provide a basis “to preclude Rubin from
exercising his legal right to access to the Rubin Easement to
conduct the required repairs.”
The court also observed that “[i]t seems apparent that the
Kesslers overreacted to the break in their water line, which was
an annoyance and not a health hazard. Nor was it . . . reasonable
for the Kesslers to move out of their home, stay in a hotel, and
replace their entire water line.”
The Kesslers appealed from the preliminary injunction
ruling, but abandoned their appeal nine days later.
In early October 2018, the Kesslers filed a cross-complaint,
followed several months later by a first amended cross-complaint
(collectively, the Cross-Complaint). The Cross-Complaint
contained a cause of action for “extinguishment of easement.”
That cause of action alleged that Rubin had “forfeited and
extinguished” his easement “by abusing the easement and unduly
burdening the Cross-Complainants’ property, namely through his
history of spilling sewage, performing unpermitted repair work,
gaining access to the Kessler Property under false pretenses,
substantially increasing the capacity of sewage flow through the
10
Rubin Sewer Line by increasing the size of the Rubin house,
changing the nature and conditions of the dominant tenement,
causing destruction on the servient tenement, rupturing the
Kessler Water Line and improperly repairing it, and by
concealing the rupture of the Kessler Water Line and inadequate
repair. By burdening the sewer line with a significantly larger
new house with substantially greater sewage needs than the
previous house, they are abusing the easement by risking
damage to both the area of the easement and the Cross-
Complainant’s [sic] surrounding property.”
Rubin responded with a first amended complaint (FAC).
The FAC updated the allegations in the original complaint by
stating that the Kesslers had permitted completion of the sewer
work after the trial court had granted the preliminary injunction.
The FAC also added a new cause of action for breach of the
Settlement Agreement. Rubin alleged that the Kesslers had
breached the agreement by asserting claims in their opposition to
the preliminary injunction and in their Cross-Complaint that
they had agreed to release.4
5. The Anti-SLAPP Motion
The Kesslers responded to the FAC with an anti-SLAPP
motion. The motion argued that new language in the FAC
challenged their protected petitioning conduct. The motion
sought to strike: (1) portions of two paragraphs in Rubin’s cause
of action for interference with easement (discussed further below)
4The Kesslers dismissed their Cross-Complaint without
prejudice shortly after Rubin filed his motion for leave to amend
the complaint.
11
and (2) Rubin’s entire cause of action for breach of the Settlement
Agreement.
The trial court (Judge Draper) denied the motion. The
court found that, although the FAC mentioned protected
petitioning conduct, Rubin’s claims were not based on that
conduct. With respect to the cause of action for breach of the
Settlement Agreement, the court concluded that the “gravamen”
of the claim was that the “Kesslers breached the settlement
agreement by not allowing Rubin to access the sewer easement.”
The court found that “the instant lawsuit arises out of
enforcement of the Settlement Agreement, not out of the
Kesslers’ speech in filing the previous . . . case or other filings.
Rubin did not sue the Kesslers because they engaged in protected
speech, but because they breached the Settlement Agreement.”
The court also granted Rubin’s request for an award of
attorney fees and costs. The court found that the Kesslers’
motion was “both frivolous and solely designed to cause
unnecessary delay and expense.” The court concluded that our
Supreme Court’s decision in Monster Energy Co. v. Schechter
(2019) 7 Cal.5th 781 (Monster Energy) (discussed further below)
clearly established that the Kesslers’ motion was without merit
and the filing of the motion caused unwarranted delay because it
automatically stayed proceedings in the trial court. The court
awarded Rubin $33,060 in costs and attorney fees.
DISCUSSION
1. The Anti-SLAPP Procedure
Section 425.16 provides for a “special motion to strike”
when a plaintiff asserts claims 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
12
California Constitution in connection with a public issue.”
(§ 425.16, subd. (b)(1).) Such claims must be stricken “unless the
court determines that the plaintiff has established that there is a
probability that the plaintiff will prevail on the claim.” (Ibid.)
Thus, ruling on an anti-SLAPP motion involves a two-step
procedure. First, the “moving defendant bears the burden of
identifying all allegations of protected activity, and the claims for
relief supported by them.” (Baral v. Schnitt (2016) 1 Cal.5th 376,
396 (Baral).) At this stage, the defendant must make a
“threshold showing” that the challenged claims arise from
protected activity. (Rusheen v. Cohen (2006) 37 Cal.4th 1048,
1056 (Rusheen).)
“A claim arises from protected activity when that activity
underlies or forms the basis for the claim.” (Park v. Board of
Trustees of California State University (2017) 2 Cal.5th 1057,
1062 (Park).) In determining whether protected activity forms
the basis for a claim, “courts should consider the elements of the
challenged claim and what actions by the defendant supply those
elements and consequently form the basis for liability.” (Id. at
p. 1063.) In doing so, courts should make a “ ‘careful distinction
between a cause of action based squarely on a privileged
communication, such as an action for defamation, and one based
upon an underlying course of conduct evidenced by the
communication.’ ” (Id. at p. 1064, quoting White v. Western Title
Ins. Co. (1985) 40 Cal.3d 870, 888.) Assertions that are merely
incidental or collateral are not subject to a motion to strike under
section 425.16. (Baral, supra, 1 Cal.5th at p. 394.) “Allegations
of protected activity that merely provide context, without
supporting a claim for recovery, cannot be stricken under the
anti-SLAPP statute.” (Ibid.)
13
Second, if the defendant makes the required initial
showing, the “burden shifts to the plaintiff to demonstrate that
each challenged claim based on protected activity is legally
sufficient and factually substantiated.” (Baral, supra, 1 Cal.5th
at p. 396.) Without resolving evidentiary conflicts, the court
determines “whether the plaintiff’s showing, if accepted by the
trier of fact, would be sufficient to sustain a favorable judgment.”
(Ibid.) The plaintiff’s showing must be based upon admissible
evidence. (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118
Cal.App.4th 204, 212.) If the plaintiff’s showing is insufficient,
the “claim is stricken” and “[a]llegations of protected activity
supporting the stricken claim are eliminated from the complaint,
unless they also support a distinct claim on which the plaintiff
has shown a probability of prevailing.” (Baral, at p. 396.)
Section 425.16, subdivision (e) defines the categories of acts
that are in “ ‘furtherance of a person’s right of petition or free
speech.’ ” Those categories include “any written or oral
statement or writing made before a legislative, executive, or
judicial proceeding, or any other official proceeding authorized by
law” and “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.” (§ 425.16, subd. (e)(1)–(2).)
An appellate court reviews the grant or denial of an anti-
SLAPP motion under the de novo standard. (Park, supra, 2
Cal.5th at p. 1067.)
14
2. The Challenged Portions of Rubin’s FAC
Support Only His Claim for Breach of the
Settlement Agreement
Consistent with the procedure outlined above, we must first
consider the portions of the FAC that the Kesslers sought to
strike to determine (1) whether they allege protected activity and
(2) whether that activity provides the basis for any claim for
relief. As mentioned, the Kesslers’ motion specifically identified
the portions of the FAC that they asked to be stricken. We
consider each identified portion below.
a. Paragraph 16 Excerpt
The Kesslers sought to strike a portion of paragraph 16 in
the FAC. That paragraph appeared in Rubin’s first cause of
action for injunctive relief based on the Kesslers’ alleged
interference with Rubin’s easement. The challenged portion of
the paragraph (the Paragraph 16 Excerpt) alleged that “[d]espite
[the Kesslers’] promises in the written settlement agreement,
an[d] in breach of that agreement, the Kesslers again raised
those false allegations in their current efforts to force Mr. Rubin
to move his sewer line off of [their] Property. Those efforts kept
the Rubin family out of their house for approximately one and
one-half months causing Mr. Rubin emotional upheaval and
distress throughout that period of time. The Kesslers continued
those efforts even after learning that Mr. Rubin’s new child had
been born three months premature and in Kansas City, Kansas,
making the need to occupy his new home, establish a stable
household for his older daughter, and prepare the new home for
that premature newborn even more crucial.”
The Kesslers claim that the Paragraph 16 Excerpt alleges
injury from Rubin’s “litigation court filings.” The Kesslers
15
correctly point out that statements in court filings are protected
petitioning conduct. (See Rusheen, supra, 37 Cal.4th at p. 1056.)
We note initially that paragraph 16 does not specifically
identify any statements made in court filings. That paragraph
first refers to the Kesslers’ promise in the Settlement Agreement
not to use their “prior claims and assertions” in “any later legal
challenges.” In the challenged excerpt, the paragraph then
generally alleges that the Kesslers “again raised those false
accusations.” It does not specify that the Kesslers raised the
allegations in litigation filings rather than in some other context
in the parties’ dispute, such as statements accompanying the
Kessler’s refusal to allow Rubin access to the easement.
In any event, even assuming that the Paragraph 16
Excerpt does refer to statements made in litigation or in
protected prelitigation communications, the only claim that those
statements support is Rubin’s claim for breach of the Settlement
Agreement. The Paragraph 16 Excerpt expressly alleges that the
Kesslers raised their prior claims “[d]espite [their] promises in
the written settlement agreement, and in breach of that
agreement.” (Italics added.)5 While that breach allegedly caused
Rubin to incur the attorney fees that he sought to recover in his
claim for breach of the Settlement Agreement, it did not cause
the actual interference with Rubin’s easement right that is the
basis for his tort claims.
The elements of Rubin’s tort claims support this conclusion.
An unreasonable interference with Rubin’s use of his easement is
5 Rubin’s claim for breach of the Settlement Agreement
incorporates paragraph 16 by reference. So does his tort claim
for nuisance.
16
an element of both Rubin’s claim for interference with the
easement and for nuisance. (McCann v. City of Los Angeles
(1978) 79 Cal.App.3d 112, 116 [owner of a servient tenement was
“not permitted to do to the surface of the land anything that
unreasonably interferes with the sewer easement”]; McBride v.
Smith (2018) 18 Cal.App.5th 1160, 1178 [“for a defendant’s
conduct to constitute a nuisance, the interference with use and
enjoyment of land must be both substantial and unreasonable”].)
Paragraph 16 does not allege that the Kesslers’ litigation
statements themselves interfered with Rubin’s use of his
easement. They were part of the Kesslers’ alleged course of
conduct, but they did not themselves cause the delay that Rubin’s
tort claims identify as the injury that Rubin suffered. The
Kesslers’ pleadings did not delay Rubin’s construction; the
Kesslers’ refusal to allow Rubin access to the easement did. The
Kesslers’ pleadings attempted, unsuccessfully, to explain and
justify their conduct, but they did not cause it. The trial court
succinctly described the nature of the Kesslers’ interference with
Rubin’s easement in granting the preliminary injunction: “The
Kesslers’ refusal to permit Rubin access to the easement to make
. . . repairs constitutes clear unreasonable easement interference
in violation of Civil Code section 809.” (Italics added.)
Thus, at most, the Kesslers’ pleadings provided context for
the “ ‘underlying course of conduct’ ” at issue in Rubin’s tort
claims. (Park, supra, 2 Cal.5th at p. 1064; see Baral, supra, 1
17
Cal.5th at p. 394.) They did not themselves satisfy any element
of those claims.6
b. Paragraph 19 Excerpt
The Kesslers’ motion challenged a portion of paragraph 19
in the FAC (the Paragraph 19 Excerpt). The challenged portion
stated that “[o]nly after this Court issued a preliminary
injunction on October 16, 2018, and after the Kesslers appealed
that ruling, and then abandoned the appeal, did the Kesslers, by
letter dated October 26, 2018, advise Mr. Rubin that he would be
allowed to complete the sewer work on October 27, 2018 or
thereafter. Such actions by the Kesslers prevented Mr. Rubin’s
use of his new house from on or about October 1, 2018 up to and
through on or about November 15, 2018.”
The only reference to litigation conduct in this excerpt is
purely collateral to Rubin’s claims. The reference does not itself
support any claim.
Paragraph 19 details the Kesslers’ alleged interference
with the easement. It alleges that the Kesslers instructed Rubin
and his contractors to “stay away” from the easement and “not to
enter to finish the sewer repair work already underway and one
6 Moreover, even if the Paragraph 16 Excerpt did support
Rubin’s tort claims, and even if Rubin failed to meet his step two
burden to show that he was likely to prevail on those claims (an
issue that we need not consider), the excerpt was still not subject
to a motion to strike. The Paragraph 16 Excerpt also supports
Rubin’s claim for breach of the Settlement Agreement. A
challenged claim may not be stricken if it “also support[s] a
distinct claim on which the plaintiff has shown a probability of
prevailing.” (Baral, supra, 1 Cal.5th at p. 396.) As discussed
below, Rubin met his burden to show a probability of success on
his claim for breach of the Settlement Agreement.
18
day form [sic] completion.” It claims that this work was essential
to complete construction of Rubin’s residence so that he and his
family could occupy it. It alleges that the Kesslers announced
that they “were enforcing” their instruction to stay away from the
easement, including by employing armed security guards. In the
challenged excerpt, paragraph 19 then explains that the Kesslers
permitted access to the easement only after the court had ordered
them to do so.
The “actions” that prevented Rubin from using his house
were the steps the Kesslers took to refuse access to the easement.
The reference in the Paragraph 19 Excerpt to the injunction and
abandoned appeal merely provides context to explain why that
refusal ceased. As discussed above, the Kesslers’ pleadings did
not themselves cause Rubin’s alleged harm from the denial of
access. Rather, the cause of the harm was the Kessler’s decision
to refuse permission to complete work on the sewer until they
were subject to a court order.
c. Rubin’s cause of action for breach of the
Settlement Agreement
The Kesslers sought to strike Rubin’s fourth cause of action
in its entirety for breach of the Settlement Agreement. They
argue on appeal that Rubin’s cause of action arises directly from
the Kesslers’ protected statements in the litigation. We agree.
Rubin’s cause of action for breach of the Settlement
Agreement is expressly based on the Kesslers’ pleadings in this
case. Rubin’s FAC alleges that the Kesslers breached the
Settlement Agreement by asserting claims “in this lawsuit.” It
repeatedly cites Warren Kessler’s declaration in opposition to the
preliminary injunction and the Kesslers’ Cross-Complaint as the
occasions for the breach. And it expressly alleges that the
19
Kesslers “have breached said Settlement Agreement by . . .
opposing the preliminary injunction . . . and by filing the Cross-
Complaint and First Amended Cross-Complaint in this action.”
We therefore disagree with the trial court’s conclusion that
Rubin’s cause of action for breach of the Settlement Agreement
does not arise from protected activities. The Kesslers allegedly
breached that agreement by engaging in protected litigation
conduct.
In support of its conclusion, the trial court cited this court’s
decision in City of Alhambra v. D’Ausilio (2011) 193 Cal.App.4th
1301 (D’Ausilio). In that case, the City of Alhambra (Alhambra)
filed a declaratory relief action to determine the scope of a prior
settlement agreement with D’Ausilio in which D’Ausilio agreed
not to engage in certain labor advocacy activities. Although
Alhambra’s declaratory relief claim was prompted by D’Ausilio’s
petitioning conduct that Alhambra believed breached the
agreement, this court concluded that the claim did not arise from
that protected conduct. Rather, it arose from “an actual, present
controversy between the parties regarding the scope and
enforceability” of the parties’ settlement agreement. (Id. at
p. 1307.)
This court subsequently distinguished D’Ausilio in a case
with facts analogous to this case. In Mundy v. Lenc (2012) 203
Cal.App.4th 1401 (Mundy), the plaintiff (Mundy) sued Lenc for
an alleged violation of the Americans with Disabilities Act (ADA;
42 U.S.C. § 12101 et seq.). Mundy had previously sued Lenc for
other ADA violations, and had settled that litigation with an
agreement releasing all claims that “were or could have been”
asserted in the prior lawsuit. Lenc filed a cross-complaint in the
20
second action for breach of the settlement agreement, and Mundy
responded with an anti-SLAPP motion.
This court held that Mundy met his burden to show that
Lenc’s cross-complaint arose from protected activity because the
cross-complaint alleged that Mundy “breached the settlement
agreement by filing a complaint against her in a second action.”
(Mundy, supra, 203 Cal.App.4th at p. 1408.) The court concluded
that D’Ausilio was inapposite, as “[t]he dispute in that case arose
over the enforceability and scope of a settlement agreement” and
“did not involve the filing of a lawsuit that resulted in the breach
of a settlement agreement and general release.” (Id. at p. 1409;
see Long Beach Unified School Dist. v. Margaret Williams, LLC
(2019) 43 Cal.App.5th 87, 98, fn. 6 [distinguishing D’Ausilio on
the same ground].)
Like Mundy, this case involves the filing of a lawsuit (in
the form of the Kesslers’ Cross-Complaint) that allegedly
breached a settlement agreement. There is no exception to the
anti-SLAPP statute for claims for breach of a settlement release.
(Navellier v. Sletten (2002) 29 Cal.4th 82, 91–93 (Navellier).)
Thus, the Kesslers met their burden to show that Rubin’s claim
for breach of the Settlement Agreement arises from protected
conduct.
On the other hand, like all other claims that arise from
protected conduct, claims that challenge statements made during
litigation may proceed if a plaintiff meets his or her burden to
show a probability of success in the second step of the anti-
SLAPP analysis. (See Navellier, supra, 29 Cal.4th at p. 94 [“The
Legislature’s inclusion of a merits prong to the statutory SLAPP
definition (§ 425.16, subd. (b)(1)) . . . preserves appropriate
remedies for breaches of contracts involving speech by ensuring
21
that claims with the requisite minimal merit may proceed”];
Mundy, supra, 203 Cal.App.4th at pp. 1409–1411 [Lenc
adequately demonstrated a probability of success on her cross-
complaint for breach of the release in the settlement agreement].)
We therefore proceed to consider whether Rubin met his step two
burden.
3. Rubin Demonstrated a Probability of Success
on His Claim for Breach of the Settlement
Agreement
In the second step of the anti-SLAPP analysis, Rubin has
the burden to show that his claim for breach of the Settlement
Agreement has the “minimal merit” necessary to defeat the
Kesslers’ anti-SLAPP motion. (Navellier, supra, 29 Cal.4th at
p. 94; Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871,
891.) Our inquiry in this stage of the analysis is limited to
determining whether Rubin made a “ ‘ “prima facie factual
showing sufficient to sustain a favorable judgment.” ’ ” (Wilson,
at p. 891.) We accept Rubin’s evidence as true and evaluate the
Kesslers’ showing “ ‘ “only to determine if it defeats [Rubin’s]
claim as a matter of law.” ’ ” (Ibid.)
Rubin easily meets this standard based upon the pleadings
alone.
a. Evidence of breach
In the Kesslers’ opposition to Rubin’s motion for a
preliminary injunction, the Kesslers argued that Rubin had
forfeited his easement based, in part, on his conduct in “razing
the 3,500 square foot house that was on the Rubin Property and
replacing it with a home 5 times larger, and by increasing the
amount of sewage that will burden the easement.” They also
argued that “Rubin’s past misconduct of disregarding the
22
dumping of human waste on Skylark Lane demonstrates the
likelihood of harm to the Kesslers.”
Warren Kessler also raised Rubin’s past conduct in his
testimony opposing the injunction. Kessler testified that Rubin
“misrepresented the size of the house he planned to build” when
applying to the City for a permit for dirt removal. He claimed
that Rubin “described Skylark Lane as being uniformly wider
than, in fact, it actually was” and misrepresented that Skylark
was a public street rather than a private street. And he asserted
that, in about 2010, “before Mr. Rubin began the construction of
his new residence” the Kesslers “became aware of toilet paper
and human fecal waste on Skylark Lane in the vicinity of Mr.
Rubin’s sewer line,” for which Rubin allegedly admitted
responsibility. Kessler explained in his declaration that the
Kesslers “have taken the position with Mr. Rubin in writing that
given his course of dealing with us” has “led to the forfeiture of
the sewer easement under California law.” He stated that that
course of dealing included the “human fecal contamination on
Skylark Lane.”
The Kesslers incorporated their claim for forfeiture of the
easement into their Cross-Complaint. The Cross-Complaint
reiterated the allegations about the sewage spillage in 2010 and
Rubin’s alleged misrepresentations about the size of his new
house and the status of Skylark Lane as a public street. The
Cross-Complaint’s seventh cause of action for “extinguishment of
easement” claimed that Rubin had forfeited the easement by
abusing it and “unduly burdening” the Kesslers’ property. That
abuse allegedly included Rubin’s “history” of spilling sewage,
“substantially increasing the capacity of sewage flow through the
23
Rubin Sewer Line by increasing the size of the Rubin house” and
“changing the nature and conditions of the dominant tenement.”
In entering into the 2015 Settlement Agreement the
Kesslers released all claims and rights, whether “disclosed or
undisclosed,” that were “related to, or arising out of” conduct
related to the Writ Action. The Settlement Agreement
specifically stated that the parties intended to release “any and
all claims, counterclaims and offsets among them, including any
claims they have or may have against the other arising out of,
based upon, or involving any occurrences, events, omissions or
conduct that were or could have been asserted in the
[Mandamus] Lawsuit from the beginning of time through and
including the date of execution of this Agreement.” The Kesslers
also acknowledged that construction on the Rubin’s new house
would continue; they agreed not to challenge any outstanding
building permits; and they promised not to prosecute any “action
or other proceeding” based upon the released claims.
As discussed above, the size of Rubin’s new house and
Rubin’s alleged misrepresentations to the City were issues that
arose in connection with Rubin’s original request for City
approval prior to the Settlement Agreement. The sewer leak on
Skylark Lane also occurred prior to the construction of Rubin’s
new house and was part of the Kesslers’ arguments to the Board
opposing City approval of Rubin’s construction.
The Kesslers do not dispute that the alleged 2010 sewage
leak, Rubin’s alleged misrepresentations to the City in connection
with permit approvals, and the alleged increased burden on the
sewer easement from Rubin’s plan to build a larger house were
claims that they released in the Settlement Agreement. Rather,
the Kesslers simply assert that, while they referred to the history
24
of their dispute with Rubin in their litigation filings, those
historical events were not the basis for any relief that they
requested.
That assertion cannot be reconciled with the record of the
Kesslers’ own pleadings discussed above. The Kesslers sought
forfeiture of Rubin’s easement based in part on claims that were
released in the Settlement Agreement.
The Kesslers also argue that they did not seek any relief
from Rubin in their opposition to the preliminary injunction,
which they characterize as purely “defensive.” Again, that
argument is inconsistent with the record of the Kesslers’ own
pleadings and testimony in opposition to the injunction, in which
they claimed that Rubin had forfeited the easement. That claim
was identical to their affirmative claim for “extinguishment” of
the easement that they later asserted in their Cross-Complaint.
b. The litigation privilege
The Kesslers’ primary argument disputing the merits of
Rubin’s claim for breach of the Settlement Agreement is that the
claim is barred by the litigation privilege. (See Civ. Code, § 47,
subd. (b).) We reject the argument. The litigation privilege does
not apply to a claim for breach of an agreement not to engage in
particular speech or petitioning conduct.
In Navellier our Supreme Court rejected the argument that
the anti-SLAPP statute provides “ ‘immunity’ for breach of a
release or of other types of contracts affecting speech.” (Navellier,
supra, 29 Cal.4th at p. 93.) The court held that, like other claims
that arise from protected conduct, a plaintiff alleging a claim for
breach of a release can defeat an anti-SLAPP motion by showing
that the claim is likely to succeed. The court explained that “a
defendant who in fact has validly contracted not to speak or
25
petition has in effect ‘waived’ the right to the anti-SLAPP
statute’s protection in the event he or she later breaches that
contract.” (Id. at p. 94.)
While the court in Navellier did not directly address the
litigation privilege, its reasoning applies equally to the scope of
the privilege. A defendant who contracts not to speak or petition
waives protection from a claim of breach under the litigation
privilege as well as under the anti-SLAPP statute. Otherwise, a
defendant in a lawsuit to enforce contractually released claims
could assert immunity for this petitioning conduct, which our
Supreme Court explained such a defendant may not do.
A number of courts have recognized this. On remand from
the Supreme Court in Navellier, the First District Court of
Appeal rejected the argument that the litigation privilege applied
to the plaintiff’s breach of contract claim. (Navellier v. Sletten
(2003) 106 Cal.App.4th 763, 773–774 (Navellier II).) The claim
alleged that the defendant breached a release by filing a
counterclaim in a prior federal lawsuit. (Id. at p. 768.) The court
cited the waiver language in the Supreme Court’s opinion and
noted that, “[a]lthough the court was not addressing the litigation
privilege, its discussion suggests that breach of contract claims
like the one advanced here have potential merit.” (Id. at p. 774.)
In Wentland v. Wass (2005) 126 Cal.App.4th 1484(Wentland) the court held that the litigation privilege did not bar
a claim for breach of contract based on statements made in
pleadings opposing a summary judgment motion. The claim
alleged that the statements violated a prior confidentiality and
nondisparagement agreement. (Id. at p. 1488.) The court held
that the policies underlying the litigation privilege would not be
furthered by applying the privilege in that case. The court cited
26
Navellier, supra, 29 Cal.4th at page 94, in concluding that “[j]ust
as one who validly contracts not to speak waives the protection of
the anti-SLAPP statute [citation], so too has he waived the
protection of the litigation privilege.” (Wentland, at p. 1494.)
In Crossroads Investors, L.P. v. Federal National Mortgage
Assn. (2017) 13 Cal.App.5th 757 the court held that the litigation
privilege did not bar a claim for breach of an oral agreement
concerning how the defendant would conduct a nonjudicial
foreclosure. Citing Navellier II, the court concluded that, “[i]f one
expressly contracts not to engage in certain speech or petition
activity and then does so, applying the privilege would frustrate
the very purpose of the contract if there was a privilege to breach
it.” (Id. at p. 787, citing Navellier II, supra, 106 Cal.App.4th at
p. 774.)
Most recently, in Monster Energy, supra, 7 Cal.5th 781, our
Supreme Court reaffirmed the waiver principle that it had
explained in Navellier. The court held that the plaintiffs in
Monster Energy had successfully shown that they would probably
succeed in proving their claim against an attorney for breach of a
confidentiality provision in a prior settlement agreement. (Id. at
pp. 795–796.) In concluding that the plaintiff had met its burden
under the second step of the anti-SLAPP analysis, the court
quoted its prior statement in Navellier that “ ‘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
27
event he or she later breaches that contract.’ ” (Id. at p. 796,
quoting Navellier, supra, 29 Cal.4th at p. 94.)7
The cases that the Kesslers cite do not support applying the
litigation privilege to Rubin’s breach of contract claim. McNair v.
City and County of San Francisco (2016) 5 Cal.App.5th 1154 and
Vivian v. Labrucherie (2013) 214 Cal.App.4th 267 involved
agreements that did not “clearly prohibit” the speech at issue and
that implicated significant policies protecting communications to
government agencies about matters of public concern. (See
McNair, at pp. 1170–1171; Vivian, at p. 276.) The court in
Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th
1467, 1497, distinguished Wentland, supra, 126 Cal.App.4th at
page 1494, on the ground that, “unlike Wentland and several of
the cases relied on by it,” in Feldman “there was no breach of a
confidentiality agreement or other agreement not to sue or
refrain from comment.” (Feldman, at p. 1497.) Laborde v.
Aronson (2001) 92 Cal.App.4th 459 similarly did not involve any
agreement not to engage in particular speech or petitioning
activity.
Thus, the litigation privilege clearly does not apply to
Rubin’s claim for breach of the Settlement Agreement. He
7The litigation privilege was not at issue in Monster
Energy because the defendant in that case did not make his
challenged disclosures in the context of litigation. However, our
Supreme Court’s confirmation of the waiver principle is still
compelling here. It would defy logic to conclude that a defendant
waives anti-SLAPP protection by entering into a contract not to
engage in particular speech but nevertheless retains the right
under the anti-SLAPP statute to obtain dismissal of a claim for
breach because the breach was privileged.
28
therefore met his burden to show that his claim was likely to
succeed.
4. The Trial Court Did Not Abuse Its Discretion in
Awarding Attorney Fees to Rubin
Section 425.16, subdivision (c) provides that, “[i]f the court
finds that a special motion to strike is frivolous or is solely
intended to cause unnecessary delay, the court shall award costs
and reasonable attorney’s fees to a plaintiff prevailing on the
motion, pursuant to Section 128.5.” As discussed, the trial court
found that the Kesslers’ motion was both frivolous and was
“solely designed to cause unnecessary delay and expense.”
We independently review issues of law that affect the trial
court’s ruling. (Conservatorship of Whitley (2010) 50 Cal.4th
1206, 1213; Rudisill v. California Coastal Com. (2019) 35
Cal.App.5th 1062, 1070 (Rudisill).) We otherwise review the trial
court’s decision to award fees for abuse of discretion. (Rudisill, at
p. 1070; Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193
Cal.App.4th 435, 450 (Gerbosi).)8
The trial court properly concluded that the Kesslers’ motion
was frivolous. An anti-SLAPP motion is frivolous if it is “totally
and completely without merit.” (§ 128.5, subd. (b)(2).) This
means that “ ‘any reasonable attorney would agree the motion
8 The only issue of law bearing upon the trial court’s ruling
here is whether a reasonable attorney would have concluded that
the litigation privilege applies to Rubin’s claim for breach of the
Settlement Agreement. As discussed above, we conclude as a
matter of law that the privilege does not apply. And, as discussed
below, we also hold that no reasonable attorney would conclude
otherwise.
29
was totally devoid of merit.’ ” (Rudisill, supra, 35 Cal.App.5th at
p. 1070, quoting Gerbosi, supra, 193 Cal.App.4th at p. 450.)
The trial court explained that, upon reviewing the language
in the FAC that the Kesslers sought to strike, “the only
conclusion the Court can draw is that, at bottom, this motion is
based on the claim that when a settlement agreement is entered
into in litigation, an action to enforce a settlement agreement is
barred by the Anti-SLAPP statute. Monster Energy Co. v.
Schechter (2019) 7 Cal.5th 781, 788, of which defendants’ counsel
was aware when he filed this motion, could not more clearly
establish that this position is without merit, whether under the
first with [sic] the second prong of the Anti-SLAPP statute.”
Although the trial court did not address the litigation
privilege, its reasoning was sound. As discussed above, the
Kesslers’ pleadings clearly asserted claims that they promised in
the Settlement Agreement they would not assert. And Monster
Energy, along with the other cases discussed above, establish
that a party waives protection from a breach of contract claim
under the litigation privilege as well as under the anti-SLAPP
statute by agreeing not to assert particular claims in future
litigation.
We differ from the trial court in concluding that the
Kesslers’ anti-SLAPP motion failed at the second rather than the
first step of the anti-SLAPP analysis. But, in concluding that our
Supreme Court’s decision in Monster Energy applies to both “the
first [and] the second prong of the Anti-SLAPP statute,” the trial
court recognized that the waiver analysis in the opinion
precluded a breach of contract claim under the second prong.
And we may affirm the trial court’s ruling on any legal ground
30
that supports it. (See Rappleyea v. Campbell (1994) 8 Cal.4th
975, 980–981.)
No reasonable attorney could analyze the cases discussed
above and conclude that a defendant who has clearly breached a
contract not to assert particular claims may strike a cause of
action for breach under the anti-SLAPP statute on the ground
that the defendant’s conduct was privileged. The trial court
therefore reasonably concluded that the Kesslers’ motion was
frivolous.
The trial court also acted within its discretion in finding
that the Kesslers filed their motion for the sole purpose of delay.
The court could reasonably infer a motive to delay from the
absence of merit in the Kesslers’ motion. (See Olive Properties,
L.P. v. Coolwaters Enterprises, Inc. (2015) 241 Cal.App.4th 1169,
1177.) And the Kesslers’ prior litigation tactics support the
conclusion that the Kesslers engaged in a pattern of using
litigation as a means to obstruct and harass Rubin in a bitter
neighbor dispute, which Judge Chalfant aptly described as a
“tempest in a teapot.” The trial court could reasonably conclude
that the Kesslers’ anti-SLAPP motion was the latest example of a
litigation strategy to impose delay and expense.
31
DISPOSITION
The trial court’s order is affirmed. Rubin is entitled to his
costs on appeal.
NOT TO BE PUBLISHED.
LUI, P. J.
We concur:
CHAVEZ, J.
HOFFSTADT, J.
32