Greg Mooradian and Debra A. Mooradian appeal from the order denying their special motion to strike under Code of Civil Procedure section 425.161 directed to the cross-complaint filed against them by C.W. Howe Partners Inc. and its principal Carl William Howe (collectively the Howes) for express indemnity, equitable indemnity, contribution and declaratory relief.
The trial court ruled none of the Howes’ claims arose from protected speech or petitioning activity within the meaning of section 425.16. Although a claim of loss or potential loss is an essential prerequisite to any indemnification obligation, whether express or equitable, the Howes’ cross-complaint did not arise from the filing of the Mooradians’ lawsuit, but from the alleged breach of their agreement to indemnify the Howes for any liability attributable to information provided by the Mooradians or the Mooradians’ representatives and the Mooradians’ underlying fault with regard to their decisionmaking.
Section 425.16 provides, “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.” (§ 425.16, subd. (b)(1).)
Pursuant to section 425.16, subdivision (e), 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.”
In ruling on a motion under section 425.16, the trial court engages in a two-step process. “First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) “Only a cause of action that satisfies both prongs of the antiSLAPP statute—i.e., that arises from protected speech or petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under the statute.” (Navellier v. Sletten (2002) 13 29 Cal.4th 82, 89 (Navellier), italics omitted.) If the moving party fails to demonstrate that any of the challenged claims for relief arise from protected activity, the court properly denies the motion to strike without addressing the second step (probability of success). (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 80- 81; Trilogy at Glen Ivy Maintenance Assn. v Shea Homes, Inc. (2015) 235 Cal.App.4th 361, 367.)
“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, 1062-1063.) Thus, “[t]he defendant’s first-step burden is to identify the activity each challenged claim rests on and demonstrate that that activity is protected by the anti-SLAPP statute. A ‘claim may be struck only if the speech or petitioning activity itself is the wrong complained of, and not just evidence of liability or a step leading to some different act for which liability is asserted.’” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 884 (Wilson); accord, Park, at p. 1060.)
“‘[T]he mere fact that an action [or claim] was filed after protected activity took place does not mean the action [or claim] arose from that activity for the purposes of the anti-SLAPP statute.’” (Park, at pp. 1062-1063; see Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 621 [“a claim does not ‘arise from’ protected activity simply because it was filed after, or because of, protected activity, or when protected activity merely provides evidentiary support or context for the claim”].) “To determine whether a claim arises from protected activity, courts must ‘consider the elements of the challenged claim and what actions by the defendant supply those elements and consequently form the basis for liability.’” (Wilson, at p. 884; accord, Park, at p. 1063.)
The Howes’ Cross-complaint Does Not Arise from the Mooradians’ Protected Petitioning Activity The Howes’ causes of action for express and equitable indemnity constitute the essence of their cross-complaint. “Express indemnity refers to an obligation that arises ‘“by virtue of express contractual language establishing a duty in one party to save another harmless upon the occurrence of specified circumstances”’” and “is enforced in accordance with the terms of the contracting parties’ agreement.” (Prince v. Pacific Gas & Electric Co. (2009) 45 Cal.4th 1151, 1158.
But to satisfy the first prong, the Mooradians had to establish the Howes’ causes of action “arise from” the Mooradians’ litigation activity; and they misunderstand the analysis employed to determine whether a claim arises from protected conduct. The “elements” analysis as articulated by the Supreme Court in Park, supra, 2 Cal.5th at page 1063 and adopted in Wilson, supra, 7 Cal.5th at page 884 does not mean any allegation of protected activity supporting an element of a cause of action subjects that cause of action to a challenge under section 425.16. Courts should only consider the elements of the challenged cause of action as part of an analysis to determine what actions by the defendant form the basis for liability. As cautioned by the Park Court, in the first step of the anti-SLAPP analysis, care must be taken “to respect the distinction between activities that form the basis for a claim and those that merely lead to the liability-creating activity or provide evidentiary support for the claim.” (Park, at p. 1064.) As discussed, the Supreme Court in both Park and Wilson made clear “the speech or petitioning activity itself” must constitute “the wrong complained of.” (Wilson, at p. 884; Park, at p. 1060.)
Accordingly, the California Court of Appeal affirmed.
If you are faced with California’s Anti-SLAPP issues and dispicable defamation, you need a highly skilled and tenacious attorney as your advocate! Contact the Law Office of Robert Rodriguez! (209) 596-4263.
Robert Rodriguez has prosecuted and defended California’s Anti-SLAPP law Section 425.16 of the Code of Civil Procedure, et seq. in the State of California courts. Robert Rodriguez has litigated well over 100 family law cases and civil litigation matters including personal injury motor vehicle cases, dog bite and slip & fall cases, breach of contract, defamation & invasion of privacy, fraud, unfair business practice, malicious prosecution, workplace and employment matters including sexual harassment, wrongful termination, wage & hour violations, discrimination pursuant to the FEHA, Gov’t Code §§ 12940 et seq., violations of the FMLA & Pregnancy Leave, Civil Rights discrimination pursuant to 42 U.S.C. § 1983 and Title VII of the 1964 Civil Rights Act in the State of California and California federal district courts.
* Disclaimer – Robert Rodriguez is licensed to practice only in the State of California & this analysis is applied only under State of California law. Robert Rodriguez is also admitted to practice in the U.S. District Courts, Central, Northern & Eastern Districts of California. Robert Rodriguez has practiced in the California Court of Appeal.