Superior Court of Sonoma County, No. SCV-249259, Honorable Elliott Daum, Judge.
The opinion of the court was delivered by: Pollak, J.
CERTIFIED FOR PARTIAL PUBLICATION*fn1
(Sonoma County Super. Ct. No. SCV-249259)
Before the court are cross-appeals from an order granting in part and denying in part defendants' special motion to strike, pursuant to Code of Civil Procedure*fn2 section 425.16, the so-called anti-SLAPP statute. In the unpublished portion of this opinion, we conclude the court correctly dismissed plaintiff's cause of action for fraud and denied the motion to strike plaintiff's claim for intentional infliction of emotional distress. In the published portion, we conclude the court erred in failing to strike plaintiff's cause of action for breach of contract.
Factual and Procedural History
Plaintiff Christopher Vivian and defendant Louise Labrucherie were divorced in 2008. They have one child together. Sandra Labrucherie is Louise's mother. Christopher is a Sonoma County deputy sheriff.
The present dispute arose in 2010 when Louise's new boyfriend, Sukhdev Sidhu, referred to throughout the proceedings as Dodi, sought a temporary restraining order (TRO) prohibiting Christopher from harassing him. In his application for the restraining order, Dodi claimed, "Threats have been made against my life and physical safety. Christopher Vivian is harassing my business contacts and family, causing harm to me. I am being followed and stalked by Christopher Vivian." Dodi explained that on December 21, 2009, Louise and Christopher's son told him, "My daddy doesn't like you because you don't work. And he's going to shoot you, pepper spray you in the eyes, cut you in half, and you can't shoot back because he wears a bullet proof vest." Dodi also claimed that on a number of occasions between October and December 2009, Christopher had followed him while driving his personal vehicle and while driving a patrol car. Christopher also allegedly contacted the chief of police in Kapurtha, Punjab India, identified himself as a sheriff from Sonoma County and claimed that he was investigating Dodi. On February 2, 2010, the trial court issued a TRO. Although Louise was not a party to the application, she and her son were listed as protected persons in the order.
In March 2010, Dodi and Christopher executed a settlement agreement by which Dodi dismissed with prejudice his request for a permanent injunction against Christopher. Dodi and Christopher agreed, among other things, "not to disparage the other to any other party." Louise signed the agreement as follows: "Louise Labrucherie not a party to this action agrees to be bound to all the terms and conditions in this agreement except for any matter currently pending in family court."
On March 4, 2011, Christopher filed the present action against Louise, Sandra, and Dodi*fn3 alleging causes of action for fraud, breach of settlement agreement, intentional infliction of emotional distress, and conspiracy to commit a civil wrong. The complaint alleges that Louise, Sandra, and Dodi conspired to have Dodi file the TRO application for an improper purpose and that Louise and Sandra gave Dodi false information to convince him to file the application. The complaint alleges that after entry of the TRO but before execution of the settlement agreement, Christopher requested that an internal affairs investigation be opened in the Sonoma County Sheriff's Department. Following execution of the settlement agreement, the complaint alleges, Louise voluntarily provided disparaging statements to the internal affairs department with respect to the allegations made by Dodi in the TRO application. In addition, on March 22, 2010, Louise filed papers in family court related to pending custody issues, in which she repeated some of the allegations made by Dodi in the TRO application. Louise also attached to the documents filed in family court copies of the TRO papers, representing that the facts stated in Dodi's declaration were true.
On April 7, 2011, Louise and Sandra filed the special motion to dismiss that is at issue in this appeal. The court denied the motion with regard to Christopher's causes of action for breach of the settlement agreement, intentional infliction of emotional distress, and conspiracy to commit a civil wrong, but granted the motion and struck the cause of action for fraud. Louise and Sandra filed a timely notice of appeal from the denials and Christopher filed a timely cross-appeal from the dismissal of his fraud claim.
"A SLAPP suit--a strategic lawsuit against public participation--seeks to chill or punish a party's exercise of constitutional rights to free speech and to petition the government for redress of grievances. [Citation.] The Legislature enacted Code of Civil Procedure section 425.16--known as the anti-SLAPP statute--to provide a procedural remedy to dispose of lawsuits that are brought to chill the valid exercise of constitutional rights." (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1055-1056.) "[U]nder Code of Civil Procedure section 425.16, subdivision (b)(1), a defendant may move to strike '[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 . . . in connection with a public issue. . . .' " (McConnell v. Innovative Artists Talent and Literary Agency, Inc. (2009) 175 Cal.App.4th 169, 175.)
In ruling on a motion to strike under section 425.6, subdivision (b)(1), the court must engage in a two-step process. "First, the court decides whether the defendant has made a threshold showing that the challenged cause of action is one arising from protected activity. The moving defendant's burden is to demonstrate that the act or acts of which the plaintiff complains were taken 'in furtherance of the [defendant's] right of petition or free speech under the United States or California Constitution in connection with a public issue,' as defined in the statute. (§ 425.16, subd. (b)(1).) If the court finds such a showing has been made, it then determines whether the plaintiff has demonstrated a probability of prevailing on the claim. Under section 425.16, subdivision (b)(2), the trial court in making these determinations considers 'the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.' " (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Only an action that lacks all merit is subject to a special motion to strike. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier I).) "[I]n order to establish the requisite probability of prevailing (§ 425.16, subd. (b)(1)), the plaintiff need only have ' "stated and substantiated a legally sufficient claim." ' [Citation.] 'Put another way, the plaintiff "must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited." ' " (Id. at pp. 88-89.)
We review the trial court rulings on the special motion to strike de novo. (Martin v. Inland Empire Utilities Agency ...