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Century 21 Chamberlain & Associates v. Haberman

April 17, 2009

CENTURY 21 CHAMBERLAIN & ASSOCIATES ET AL., PLAINTIFFS AND RESPONDENTS,
v.
LISA HABERMAN, DEFENDANT AND APPELLANT.



Appeal from an order of the Superior Court of Orange County, Franz E. Miller, Judge. Order affirmed and appeal dismissed in part. (Super. Ct. No. 07CC11454).

The opinion of the court was delivered by: Ikola, J.

CERTIFIED FOR PUBLICATION

OPINION

Defendant Lisa Haberman appeals from an order (1) denying her anti-SLAPP motion to strike the complaint of plaintiffs Century 21 Chamberlain Associates and David T. Chamberlain,*fn1 and (2) continuing a hearing on her motion to compel arbitration. We affirm the order denying the anti-SLAPP motion and dismiss the appeal to the extent it challenges the order continuing the hearing on the motion to compel arbitration.

Resolving an issue of first impression, we hold the anti-SLAPP statute does not protect the act of initiating private, contractual arbitration. The anti-SLAPP statute protects statements made in, or concerning issues under review by, a "judicial proceeding, or any other official proceeding authorized by law." (§ 425.16, subds. (e)(1), (2).) Private, contractual arbitration is neither. It is a private alternative to a judicial proceeding. It is not an "official proceeding" because it is a non-governmental activity not reviewable by administrative mandate or required by statute.

Haberman also purports to appeal from that portion of the order continuing a hearing on her motion to compel arbitration, but which she describes as an order denying her motion to compel arbitration. We dismiss her appeal from this part of the order. The court did not rule on her arbitration motion - it merely continued the hearing. No appealable order exists with respect to her motion to compel arbitration.

FACTS

Plaintiffs alleged two causes of action in their complaint. First, plaintiffs asserted a cause of action against Haberman for account stated, alleging she failed to pay approximately $14,000 in interest on a $200,000 loan secured by a deed of trust. Second, plaintiffs asserted a cause of action for declaratory relief against Haberman and defendant Pacific West Association of Realtors (PWAR). Plaintiffs alleged Haberman accused them of negligently marketing her house, and that Haberman and PWAR demanded they arbitrate this claim before PWAR. Plaintiffs sought a declaration that no arbitration agreement existed.

Haberman responded by filing an anti-SLAPP motion to strike the complaint and a motion to compel arbitration. The court heard both motions in January 2008. It denied the anti-SLAPP motion, finding the complaint did not arise from protected activity. It ordered PWAR to produce documents to Haberman regarding plaintiffs' purported duty to arbitrate, bifurcated trial on the account stated and declaratory relief causes of action, and set a date in April 2008 for an evidentiary hearing on the arbitration motion and a bench trial on the declaratory relief cause of action. Haberman filed a notice of appeal in March 2008.

DISCUSSION

The Court Correctly Denied the Anti-SLAPP Motion

The order denying Haberman's anti-SLAPP motion is directly appealable and subject to our independent review. (§ 425.16, subd. (i); Flatley v. Mauro (2006) 39 Cal.4th 299, 325 (Flatley).)

The anti-SLAPP statute ""is designed to protect citizens in the exercise of their First Amendment constitutional rights of free speech and petition. It is California's response to the problems created by meritless lawsuits brought to harass those who have exercised these rights.'" (Rosenaur v. Scherer (2001) 88 Cal.App.4th 260, 273.) It 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 or California Constitution in connection with a public issue shall be subject to a special motion to strike . . . ." (§ 425.16, subd. (b)(1).)

Haberman bears the initial burden of establishing the causes of action in the complaint arise from her protected activity. "[T]he statutory phrase "cause of action . . . arising from'' means simply that the defendant's act underlying the plaintiff's cause of action must itself have been an act in furtherance of the right of petition or free speech." (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (Cotati).) "In the anti-SLAPP context, the critical point is whether the ...


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