(Los Angeles County Super. Ct. No. BC438046) APPEAL from an order of the Superior Court of Los Angeles County. Gregory W. Alarcon, Judge.
The opinion of the court was delivered by: Ashmann-gerst, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
Affirmed in part and reversed in part.
Thomas Mundy (Mundy) and attorney Morse Mehrban (Mehrban) appeal from the denial of Mundy's special motion to strike pursuant to Code of Civil Procedure section 425.16*fn2 and from the award of attorney fees to respondent Laura D. Lenc (Lenc). In the published portion of this opinion, we affirm the order denying the special motion to strike as it pertains to Lenc's cause of action for breach of the parties' settlement agreement. We hold that when a disabled person sues a business owner due to an accessibility violation of the Unruh Civil Rights Act (Civ. Code, § 51 et seq.) and the California Disabled Persons Act (Civ. Code, § 54 et seq.) and then settles and releases all known and unknown claims and waives the protection Civil Code section 1542, the disabled person is contractually barred from suing the business owner in a second lawsuit regarding any violation that previously existed and could have been enjoined in the first lawsuit pursuant to Civil Code section 55. In the unpublished portion of this opinion, we reverse the order as to Lenc's fraud causes of action and her cause of action for abuse of process because Mundy is protected by the litigation privilege. Further, we reverse the award of attorney fees.
Mundy is confined to a wheelchair. In June 2009, Mundy went to a bar owned by Lenc and could not use the toilet because it was not equipped with two adjacent grab bars. Also, Mundy was unable to use the restroom mirror because it was mounted too high above the floor. Represented by Mehrban, Mundy sued Lenc for violating the Civil Code sections 51, 54 and 54.1 because the toilet and mirror did not comply with the design accessibility standards set forth in the Americans with Disabilities Act (ADA). The parties entered into a settlement in which Mehrban received $3,000, Mundy received $2,500 and Lenc received a general release of known and unknown claims. Specifically, the settlement stated: "[Mundy] hereby release[s] and forever discharge[s] [Lenc] from any and all claims and causes of action that were or could have been asserted in the Lawsuit, including those for personal, emotional, physical, or mental injuries and damages. [Mundy] . . . understand[s] . . . that there is a risk that, subsequent to the execution of this Agreement, [he] may discover, or incur, or suffer damages or liability from claims which were unknown or unanticipated at the time this Agreement was executed, including, without limitation, unknown or unanticipated claims which, if known by [Mundy] on the date of this Agreement is being executed, may have materially affected [his] decision to execute this Agreement. Nevertheless, it is the intention of [Mundy] to fully, finally and forever settle and release the matters related hereto notwithstanding the discovery or existence of any additional or different claims or facts relative thereof. [Mundy] [is] assuming the risk of such unknown or unanticipated claims and expressly waive the benefit of the provisions of Civil Code section 1542."
Mundy filed a dismissal on December 8, 2009.
A year later, Mundy sued Lenc under Civil Code section 51 and once again alleged noncompliance with the ADA. This time, he claimed that Lenc's bar did not provide him with a van-accessible handicap parking space. Soon after, Lenc filed a cross-complaint against Mundy and Mehrban for breach of the settlement agreement, false promise, intentional misrepresentation, negligent misrepresentation and abuse of process. Mundy responded by filing a special motion to strike. The trial court denied the motion and ordered the parties to submit briefs regarding Lenc's entitlement to attorney fees as the prevailing party. Subsequently, pursuant to a separately filed motion, Lenc was awarded $21,506.25 in attorney fees against Mundy and Mehrban. The trial court found that Mundy's motion was frivolous. At both hearings, Mundy's attorney submitted on the tentative rulings.
Mundy and Mehrban argue that the trial court's orders must be reversed because: (1) the claims in Lenc's cross-complaint arose from acts in furtherance of Mundy's right of petition and Lenc failed to demonstrate a probability of prevailing on her causes of action; and (2) Mundy's special motion to strike was neither frivolous nor brought in bad faith and, as a consequence, there was no basis for an award of attorney fees. We discuss the issues below.
I. Preliminary Matter: Mundy Did Not Forfeit His Appeal.
According to Lenc, Mundy is barred from challenging the trial court's orders because he submitted on the tentative rulings. Lenc relies on the doctrines of invited error and waiver. Her reliance is misplaced.
If a party induces the commission of an error, "he is estopped from asserting it as grounds for reversal. [Citations.]" (Redevelopment Agency v. City of Berkeley (1978) 80 Cal.App.3d 158, 166 (Redevelopment Agency).) "At bottom, the doctrine rests on the purpose of [a] principle, which is to prevent a party from misleading the trial court and then profiting therefrom in the appellate court. [Citations.]" (Norgart v. Upjohn Co. (1999) 21 Cal.4th 383, 403.) The problem for Lenc is that even though Mundy submitted on the tentative rulings, he filed a motion seeking relief under section 425.16. Also, he filed an opposition to Lenc's request for attorney fees. His position below was that he should prevail on all issues before the trial court. He did not mislead the trial court. Submission on a tentative ruling is neutral; it conveys neither agreement nor disagreement with the analysis.
"As a general rule, failure to raise a point in the trial court constitutes of waiver and appellant is estopped to raise that objection on appeal." (Redevelopment Agency, supra, 80 Cal.App.3d at p. 167.) There are exceptions. For example, a party need not object that a judgment is unsupported by the evidence. (People v. Butler (2003) 31 Cal.4th 1119, 1039.) And a party need not object if it would be futile. (People v. Abbaszadeh (2003) 106 Cal.App.4th 642, 648.) In our view, Mundy raised the points he asserts on appeal via his special motion to strike and the opposition to Lenc's motion for attorney fees. He is not, therefore, raising new arguments on appeal. Further, the orders at issue are postjudgment orders, which are analogous to judgments. Based on that analogy, we conclude that Mundy was not required to object that the orders were unsupported by the evidence. Finally, even if litigants are required to object to tentative rulings, Mundy would be excused from doing so because it would have been futile. The trial court had the benefit of his two memorandums of points and authorities. Based on the tentative rulings, it is apparent that the trial court rejected Mundy's arguments. If Mundy's attorney had told the trial court that he objected to the tentative rulings, the trial court would still have decided in favor of Lenc.
K.C. Multimedia, Inc. v. Bank of America Technology & Operations, Inc. (2009) 171 Cal.App.4th 939 (K.C. Multimedia) offers Lenc no aid. In that case, the trial court dismissed three causes of action after the defendant raised the issue of preemption in a trial brief. The plaintiff did not object to the procedure. Rather, it acquiesced. The reviewing court held that any objection was waived. K.C. Multimedia is inapposite because the plaintiff raised its legal points for the first time on appeal, and because the futility exception did not apply.
Sperber v. Robinson (1994) 26 Cal.App.4th 736 (Sperber) also does not factor into our analysis. The appellant in Sperber argued that the question of whether he had a lien was one for the jury and that the trial court erred in taking that question from the jury and directing a verdict for the respondents. The court stated: "[A]ppellant has not preserved this issue for appeal. At trial, counsel for appellant agreed that the issue of whether or not there was an equitable lien established was one for the trial court alone and that the jury's role would be only to determine the amount of any such lien. Such agreement constitutes a waiver of the issue, since appellant and counsel acquiesced in and contributed to any such error. [Citations.]" (Id. at pp. 742-743, fn. omitted.) Once again, there is no analogy. Sperber involved invited error and an argument that was raised for the first time on appeal. Here, Mundy raised his arguments below and did not agree to a mistaken procedure.
Last, we easily distinguish In re Marriage of Falcone & Fyke (2008) 164 Cal.App.4th 814, 826 [the appellant waived her argument that under section 128.7 the time to amend or withdraw a challenged motion should have been extended by five days pursuant to section 1013]. That case, unlike ...