43 Cal.App.5th 688
Cal. Ct. App.2019Background:
- Mooradians engaged Minarc for design; Minarc recommended structural engineer C.W. Howe Partners; Greg Mooradian signed Howe's August 18, 2014 agreement.
- The Howe agreement included a reliance clause (Engineer may rely on client/representative information) and an indemnity clause obligating the client to "indemnify, defend and hold harmless" Howe for liabilities arising from errors or inaccuracies in project information provided by the client or its representative.
- Construction used offsite-fabricated EPS (expanded polystyrene) panels; Mooradians later discovered licensing/permit issues and sued Minarc, MNM, the Howes and others alleging fraud, negligence and related claims.
- The Howes cross-complained against the Mooradians for express indemnity (contract), equitable indemnity, contribution and declaratory relief based on the indemnity clause and the Mooradians’/Minarc’s selection of EPS panels.
- The Mooradians filed an anti-SLAPP special motion to strike under Cal. Code Civ. Proc. § 425.16, arguing the indemnity cross-claims "arise from" their filing of the lawsuit; the trial court denied the motion and the denial was appealed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Howes' indemnity cross-claims "arise from" Mooradians' protected petitioning (anti-SLAPP first prong) | Mooradians: cross-claims arise from and are based on their filing of the complaint, so are protected petitioning | Howes: claims arise from breach of indemnity and from the Mooradians'/Minarc's selection/fault regarding EPS panels, not from filing suit | Held: No; cross-claims do not arise from protected activity; anti-SLAPP not satisfied |
| Whether the existence/filing of the underlying complaint is the operative wrongful act for indemnity claims ("but-for" causation) | Mooradians: underlying suit supplies essential element of indemnity (loss/damages), so the claims depend on protected activity | Howes: indemnity elements are contractual breach/fault and resulting damages; underlying suit is context/evidence, not the wrongful act | Held: Court rejects simple "but-for" analysis; litigation alone is insufficient unless the petitioning itself is the wrong alleged |
| Applicability of cases (e.g., Lennar Homes, Williams) holding indemnity claims subject to anti-SLAPP | Mooradians: relies on those cases to argue indemnity claims are based on prior litigation | Howes: those cases are distinguishable and predate/ignore Park/Wilson clarifications | Held: Those authorities are not persuasive here; Park/Wilson control and foreclose striking these indemnity claims as SLAPPs |
Key Cases Cited
- Baral v. Schnitt, 1 Cal.5th 376 (2016) (clarifies two-step anti-SLAPP framework)
- Park v. Board of Trustees of Cal. State Univ., 2 Cal.5th 1057 (2017) (requirement that protected activity itself form basis of claim; elements-based analysis)
- Wilson v. Cable News Network, Inc., 7 Cal.5th 871 (2019) (reiterates Park: speech/petition must be the wrong complained of)
- Navellier v. Sletten, 29 Cal.4th 82 (2002) (anti-SLAPP principles; example where filing counterclaims constituted the breach)
- Rusheen v. Cohen, 37 Cal.4th 1048 (2006) (claims arising from litigation activity may be subject to anti-SLAPP)
- Jarrow Formulas, Inc. v. LaMarche, 31 Cal.4th 728 (2003) (malicious prosecution and petitioning activity analysis)
- Prince v. Pacific Gas & Electric Co., 45 Cal.4th 1151 (2009) (principles for express indemnity and treating indemnity as contract-based)
- Moss Bros. Toy, Inc. v. Ruiz, 27 Cal.App.5th 424 (2018) (example where the petitioning activity itself constituted the alleged contractual breach)
- Lennar Homes of California, Inc. v. Stephens, 232 Cal.App.4th 673 (2014) (court held indemnity claim arose from underlying litigation but decided before Park/Wilson clarifications)