Defendants Could Not Strike A Cause Of Action For Breach Under The Anti-SLAPP Statute On The Ground Of Privileged Conduct Where Defendants Clearly Breached A Contract Not To Assert Particular Claims.
Rubin v. Kessler, Case No. B301967 (2d Dist., Div. 2 December 18, 2020) (unpublished) involves a bitter neighbor dispute – described by Los Angeles Superior Court Judge Chalfant as a “tempest in a teapot” – over a sewer easement. Actually, the neighbors were previously involved in litigation when plaintiff neighbor, who owns an easement for a sewer on defendant neighbors’ property, applied for permits to build a new, larger house on his property. Defendant neighbors opposed and filed a petition for writ of mandate against the City of Los Angeles when it approved plaintiff’s project. That action was settled in 2015 – with plaintiff and defendants agreeing to a mutual release of any and all claims against each other from the beginning of time to the date of execution of the release. Additionally, pursuant to their settlement agreement, plaintiff and defendants 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.
A few years later, just as plaintiff was completing construction of the new house, his plumbers mistakenly cut defendants’ water line. Defendants responded by denying plaintiff access to the easement, so plaintiff filed a lawsuit and was granted a preliminary injunction requiring defendants’ to allow easement access.
In opposing the preliminary injunction, defendants claimed plaintiff had forfeited his easement – citing the mistaken cut to their water line as well as issues previously resolved through the parties’ settlement agreement and release. Additionally, defendants filed a cross-complaint seeking to nullify the easement based on the same claims – prompting plaintiff to file a first amended complaint alleging defendants breached the settlement agreement by raising claims previously disposed of in the settlement agreement. Defendants SLAPPed back – claiming plaintiff’s new cause of action and other portions of his FAC arose from defendants’ protected petitioning activity. The trial court denied the motion and awarded plaintiff $33,060 in attorney fees on the ground that the defendants’ motion was frivolous and designed solely to cause delay and expense.
The 2/2 DCA affirmed both the trial court’s denial of defendants’ anti-SLAPP motion and award of fees to plaintiff. Although disagreeing with the trial court’s conclusion that plaintiff’s breach cause of action did not arise from protected activities, the appellate panel found that plaintiff met his burden in the second step of the anti-SLAPP analysis. Based upon defendants’ own pleadings, plaintiff easily showed that his claim for breach of the settlement agreement had the “minimal merit” necessary to defeat defendants’ SLAPP motion. Additionally, the trial court reasonably concluded defendants' anti-SLAPP motion was the latest example of a litigation strategy to cause delay and expense based on defendants' prior pattern of using litigation as a means to obstruct and harass plaintiff.
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