Vivian v. Labrucherie
214 Cal. App. 4th 267
| Cal. Ct. App. | 2013Background
- Divorced in 2008; they share one child.
- Dodi (Louise’s boyfriend) sought a TRO against Christopher in 2010 alleging harassment.
- Settlement in March 2010 included dismissal with prejudice of TRO and a non-disparagement clause; Louise bound by terms though not a party to action.
- On March 4, 2011, Christopher sued Louise, Sandra, and Dodi for fraud, breach of settlement, IIED, and conspiracy.
- Special motion to strike under § 425.16 was filed April 7, 2011; court denied some claims but struck fraud; appeal and cross-appeal followed.
- Disposition: appellate court reversed as to breach of contract, affirming other rulings; Louise to bear costs on appeal.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether breach of contract claim arises from protected activity. | Vivian argues breach claim based on protected statements. | Labrucherie contends claim is not rooted in protected activity. | Yes; claim is based on protected activity and falls under § 425.16. |
| Whether the litigation privilege bars the breach claim. | Vivian argues waiver of privilege via settlement. | Labrucherie argues privilege applies. | No; privilege bars claim, so breach claim should be struck. |
| Whether the non-disparagement clause waives § 425.16 protections. | Vivian argues waiver by contract broad enough to defeat privilege. | Labrucherie contends clause limited and not to internal affairs filings. | The clause does not clearly prohibit the challenged conduct; privilege applies. |
| Whether the anti-SLAPP analysis satisfied at second prong. | Vivian must show likely success notwithstanding privilege. | Privilege requires dismissal if applicable and dispositive. | Even with privilege, plaintiff cannot prevail; action stricken. |
Key Cases Cited
- Rusheen v. Cohen, 37 Cal.4th 1048 (Cal. 2006) (two-step anti-SLAPP inquiry; threshold protected activity required)
- McConnell v. Innovative Artists Talent & Literary Agency, Inc., 175 Cal.App.4th 169 (Cal. App. 2009) ( outlines § 425.16(b)(1) analysis)
- Navellier v. Sletten, 29 Cal.4th 82 (Cal. 2002) (sets standard for probability of prevailing; discusses waiver concepts)
- Navellier v. Sletten (Navellier II), 106 Cal.App.4th 763 (Cal. App. 2003) (litigation privilege and breach of contract interplay)
- Wentland v. Wass, 126 Cal.App.4th 1484 (Cal. App. 2005) (confidentiality and privilege in contracts; breach context)