CURTIS OLSON, Cross-complainant and Appellant, v. JANE DOE, Cross-defendant and Respondent.
S258498
IN THE SUPREME COURT OF CALIFORNIA
January 13, 2022
Second Appellate District, Division Eight, B286105; Los Angeles County Superior Court, SC126806
Justice Liu authored the opinion of the Court, in which Chief Justice Cantil-Sakauye and Justices Corrigan, Kruger, Groban, Jenkins, and Moor* concurred.
* Associate Justice of the Court of Appeal, Second Appellate District, Division Five, assigned by the Chief Justice pursuant to
Opinion of the Court by Liu, J.
Cross-defendant Jane Doe and cross-complainant Curtis Olson each own units in the same condominium building. Doe sought a civil harassment restraining order against Olson pursuant to
The question here is whether the nondisparagement clause in the parties’ mediation agreement potentially applies to and thereby limits Doe‘s ability to bring a subsequent unlimited civil lawsuit against Olson seeking damages. Doe later filed such a lawsuit; Olson cross-complained for breach of contract and specific performance, arguing that Doe‘s suit violated the nondisparagement clause; and Doe moved to strike Olson‘s cross-complaint under the anti-SLAPP statute. We hold that the mediation agreement as a whole and the specific context in which it was reached — a
I.
Doe and Olson met in 2002 and worked together to acquire and preserve a historic apartment building. Olson acquired the building, converted the apartments into eight condominium units, and ultimately became the owner and part-time resident of one of the units. Olson served as the president of the building‘s homeowners association (HOA) board from 2013 to January 2016, and Doe resided in one of the condominium units.
In December 2016, Doe filed an unlimited civil lawsuit against Olson and various other defendants, including other residents of the building, the HOA, and the property management company. Through the complaint, Doe seeks damages for a variety of claims, including sexual battery, assault, and discrimination based on perceived ethnicity, religion, and marital status. The complaint alleges multiple romantic advances over a long period of time by Olson toward Doe, which Doe rejected, followed by “a pattern of retaliatory events” by Olson, friends and associates of Olson (some of whom resided in the building after purchasing units from Olson), and the HOA. Doe ultimately moved out of the building for a period from 2009 to 2013.
The complaint further alleges that in May 2015, after Doe had resumed living in her unit, Olson invited her to meet with him in order to ” ‘bury the hatchet,’ ” and after socializing in the courtyard of the building, Doe accompanied Olson to his condominium unit to watch a short video on the internet that he was having difficulty loading. According to the complaint, Doe was sitting on a sofa in Olson‘s unit when Olson “forced himself on top of her
The events described in the complaint initially prompted Doe to seek a civil harassment restraining order against Olson pursuant to
Olson opposed Doe‘s request for a civil harassment restraining order, “vehemently deny[ing] th[e] allegations” in her request and asserting that the HOA “and its vendors have had a well-documented history of problems with [Doe] in connection with her use and residency” at the building, including her continued use of a basement storage unit. At a hearing on December 10, 2015, the court ordered the parties to mediation supervised by a volunteer mediator from the California Academy of Mediation Professionals (CAMP). The parties then entered into single-page “Mediation” and “Mediation/Confidentiality” agreements that same day.
Pursuant to the mediation agreement, Doe‘s request for a civil harassment restraining order was dismissed without prejudice, and the parties agreed to resolve their dispute in pertinent part as follows: “(1) [Olson] denies each and every allegation made by [Doe] in the dispute. (2) This agreement is made voluntarily by mutual agreement of the parties, and nothing contained herein is to be construed as an admission of any wrongdoing of the parties. (3) The parties agree not to contact or communicate with one another or guests accompanying them, except in writing and/or as required by law. (4) Should the parties encounter each other in a public place or in common areas near their residences, they shall seek to honor this agreement by going their respective directions away from one another. (5) The parties agree not to disparage one another. (6) The term of this agreement shall be three (3) years.”
According to Doe‘s civil complaint, harassment by the HOA board and other associates of Olson continued even after the mediation agreement was reached, including a demand by the HOA board in May 2016 that Doe pay a
Doe subsequently filed a civil complaint against Olson and the other defendants seeking damages. In May 2017, Olson filed a cross-complaint against Doe for breach of contract damages and specific performance. The cross-complaint alleges that Doe breached the mediation agreement‘s nondisparagement clause by filing her administrative complaint and her civil complaint for damages, and it requests contract damages and an order for specific performance requiring Doe “to withdraw and dismiss all claims in this case, the HUD Complaint, and the DFEH Complaint against Olson or that otherwise disparage Olson.”
Doe moved to strike Olson‘s cross-complaint under the anti-SLAPP statute, asserting that it was “retaliatory litigation” and “an attempt to chill Doe‘s exercise of her rights of free speech under the United States or California Constitution . . . and right to petition the courts and the executive branch for redress of grievances.” (See
The trial court granted Doe‘s special motion to strike, and Olson appealed. The Court of Appeal affirmed in part and reversed in part. With respect to Doe‘s administrative complaint, the Court of Appeal agreed with the trial
II.
The parties’ dispute centers on the construction of their mediation agreement, which was reached within the context of a civil harassment restraining order proceeding. (
The Legislature enacted
“If the judge finds by clear and convincing
Thus, ”
III.
With this statutory context in mind, we consider the subject of Doe‘s special motion to strike Olson‘s cross-complaint: whether Doe‘s civil lawsuit violated the nondisparagement clause in the parties’ mediation agreement arising from Doe‘s
A.
Pursuant to
To succeed in opposing a special motion to strike, the nonmoving party must “demonstrate both that the claim is legally sufficient and that there is sufficient evidence to establish a prima facie case with respect to the claim.” (Taus v. Loftus (2007) 40 Cal.4th 683, 714.) “[C]laims with the requisite minimal merit may proceed.” (Navellier, supra, 29 Cal.4th at p. 94.) The moving party prevails by “defeat[ing]” the “claim as a matter of law” (Baral, supra, 1 Cal.5th at p. 385) in “a summary-judgment-like procedure” (Taus, at p. 714).
As relevant here, we recognized in Navellier that the anti-SLAPP statute can apply to a breach of contract claim, but the statute “preserves appropriate remedies for breaches of contracts involving speech” since “a defendant who in fact has validly contracted not to speak or petition has in effect ‘waived’ the right to the anti-SLAPP statute‘s protection in the event he or she later breaches that contract.” (Navellier, supra, 29 Cal.4th at p. 94.) An essential element of Olson‘s breach of contract action is showing that Doe breached the mediation agreement. (E.g., Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821 [setting forth elements of breach of contract claim].) In light of the language of the nondisparagement clause, the mediation agreement as a whole, and the broader context in which the agreement was negotiated, we hold that the nondisparagement clause does not apply to statements made by Doe in the litigation context. Thus, Olson has failed to make a prima facie showing on this element sufficient to overcome Doe‘s special motion to strike.
The language of the nondisparagement clause is simple: “The parties agree not to disparage one another.” Read in isolation, this language is vague as to its scope and conceivably could be understood to sweep broadly as Olson suggests. Yet a few reasons suggest that such a reading — i.e., one that prevents Doe from making any allegations potentially disparaging against Olson in future litigation — is foreclosed as a matter of law. (See People v. Doolin (2009) 45 Cal.4th 390, 413, fn. 17 (Doolin) [“[w]here . . . the meaning of [the] agreement does not turn on the credibility of extrinsic evidence, interpretation is a question of law“].)
The terms of Doe and Olson‘s agreement were handwritten. The mediator had apparently run out of the standard-issue, typed mediation agreements used at the courthouse. But the substantive terms contained in Doe and Olson‘s agreement nonetheless share substantial similarity with those contained in the version provided by the clerk in response to a request for the “standard mediation agreement.” The standard agreement provides: “The parties agree not to communicate with each other directly or through persons acting on their behalf. . . .” Further, although the standard agreement does not anticipate parties sharing a residential building, it says: “The parties agree to stay away from each other and their respective property, including but not limited to, their residences, places of employment, and personal property,” and “[s]hould the parties encounter each other in a public place, they agree to continue going in their respective directions away from one another.”
The standard-issue mediation agreement also has a nondisparagement clause of sorts. It provides that the “parties agree to not gossip about each other to anyone. The parties further agree to not comment . . . about each other to non-governmental 3rd parties unless specifically requested to do so. If they are asked to comment, they shall refer to each other using neutral terms and shall not use negative words or disparage one another.” By specifically exempting “governmental 3rd parties” from its ambit, the form makes clear that such agreements are intended to prevent interpersonal third party “gossip” and rumor-spreading, not official filings with legal authorities. The similarities between Doe and Olson‘s agreement and the standard-issue form suggest that the parties did not intend something out of the ordinary with
Absent from either Doe and Olson‘s agreement or the standard mediation agreement are terms providing any release from liability or waiver of claims. Olson seeks a broad reading of the nondisparagement clause, one that would effectively serve the purpose of those missing terms. Yet we must tread carefully in such circumstances. ” ‘Release, indemnity and similar exculpatory provisions are binding on the signatories and enforceable so long as they are . . . “clear, explicit and comprehensible in each [of their] essential details. Such an agreement, read as a whole, must clearly notify the prospective releasor or indemnitor of the effect of signing the agreement.” ’ ” (Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353, 1368, quoting Powers v. Superior Court (1987) 196 Cal.App.3d 318, 320.) Moreover, according to the terms of the agreement, Doe‘s
The parties’ agreements further suggest that they contemplated the possibility of future litigation outside of
Second, the mediation agreement is inextricably linked to the broader context in which it was negotiated — i.e., in a proceeding for a civil harassment restraining order. This context is critical. (See
The narrow focus of these proceedings is communicated to petitioners through instructions issued by the Judicial Council. Judicial Council form CH-100-INFO explains that the purpose of a civil harassment restraining order is to “protect people from harassment.” The instructions explain that in a civil harassment case, the court can “order a person to . . . [¶] [n]ot harass or threaten you[,] [¶] [n]ot contact or go near you, and [¶] [n]ot have a gun.” But the court cannot, among other things, “[o]rder a person to pay money that he or she owes you.”
That the petitioner in a
“Compromise agreements are, of course, ‘governed by the legal principles applicable to contracts generally’ . . . [and] ‘regulate and settle only such matters and differences as appear clearly to be comprehended in them by the intention of the parties and the necessary consequences thereof, and do not extend to matters which the parties never intended to include therein, although existing at the time.’ ” (Folsom v. Butte County Assn. of Governments (1982) 32 Cal.3d 668, 677.) We have applied this principle in a somewhat analogous
Similar reasoning applies here. As noted, a petitioner seeking a civil harassment restraining order and a court reviewing such a request are confined by the limited nature of
Moreover, the specific procedures governing the mediation process for
Finally, it is undisputed that Doe‘s administrative and civil complaints constitute petitioning activity protected by
In sum, the mediation agreement as a whole, the statutory context in which it was negotiated, and the fact that it implicates constitutionally protected petitioning activity lead us to conclude that the nondisparagement clause does not apply to the circumstances here. Under the reading Olson urges, the clause would seem to constrain Doe‘s ability to further avail herself of the very protections provided by
We are not confronted with factual circumstances that might make the anti-SLAPP question more difficult, such as conduct that falls somewhere
B.
Olson argues that Doe may “try to prove her tort causes of action” but “cannot shoot and miss without facing the penalty of contract damages.” First, Olson analogizes the Court of Appeal‘s holding to the statutory provisions governing family law proceedings and custody determinations in the face of one parent‘s potentially false accusations of sexual abuse by the other. According to Olson, such family law provisions demonstrate “another context where the Legislature has recognized the incentive to make false accusations can be so great as to overwhelm the motivation for veracity.” But the analogy does not hold. We are not confronted with how to apply a highly reticulated statutory scheme reflecting the Legislature‘s sensitive policy judgments. This case turns on an ordinary question of contract interpretation that the Legislature likely did not contemplate when enacting
Next, Olson contends that the answer to the question before us is “simple because the Court of Appeal‘s holding does not bar Doe‘s claims but allows Olson to plead and prove his.” Olson‘s argument is that “the non-disparagement clause in the mediated agreement does not operate to ‘bar’ Doe‘s ‘unlimited civil lawsuit’ ” because Doe can still proceed with her claims, just with the specter of breach of contract liability hanging over her head. This fails to respond to the substance of the question at hand. Whether the claim is that Doe cannot file suit or that she may be subject to damages liability for doing so is materially the same for purposes of assessing whether the nondisparagement clause applies to statements made in connection with subsequent litigation.
In Olson‘s view, even if Doe prevailed on her sexual battery claim, he could also prevail on his breach of contract claim and seek damages for economic injury based on reputational harm to offset any damages he owed her. Such an interpretation could require Doe to pay Olson after having successfully proven her case if his damages exceed those awarded to her. There are strong public policy reasons to refrain from such an interpretation. Not long after the mediation agreement in this case was signed, the Legislature clarified that a provision within a settlement agreement that prevents the
Olson is correct, of course, that generally speaking a party can “validly contract[] not to speak or petition” and thereby ” ‘waive[]’ the right to the anti-SLAPP statute‘s protection in the event he or she later breaches that contract.” (Navellier, supra, 29 Cal.4th at p. 94.) But the circumstances here are meaningfully different from what we have confronted in other cases.
In Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, a tort settlement “included several provisions purporting to impose confidentiality obligations on the parties and their counsel,” and counsel signed the agreement “under a notation that they approved [it] as to form and content.” (Id. at p. 785.) Monster Energy subsequently sued counsel, alleging that public statements about the settlement constituted breach of the agreement. We held that Monster Energy had met its burden of showing the “minimal merit” needed to proceed on the breach of contract claim “[i]n light of the nature and extent of provisions in the agreement here purporting to bind counsel, and the other properly submitted evidence.” (Id. at p. 796.) We specifically looked to the agreement‘s “numerous references to counsel as one whose keeping of confidentiality is assured,” which “reflect[ed] an expectation that the confidentiality provisions would apply to counsel as well.” (Ibid.) Thus, we found it “reasonable to argue that counsel‘s signature on the document evinced an understanding of the agreement‘s terms and a willingness to be bound by the terms that explicitly referred to him.” (Ibid.)
Whereas the agreement as a whole, together with extrinsic evidence, supported the breach of contract claim in Monster Energy, Olson relies solely on the text of the nondisparagement clause. Going beyond that isolated language, as we must, to consider the mediation agreement as a whole and the context in which it was negotiated undermines Olson‘s showing on a critical element of his claim: Doe had no obligation under the contract to refrain from making disparaging statements in litigation. Olson thus cannot defeat Doe‘s anti-SLAPP motion.
We also granted review to decide under what circumstances the litigation privilege of
CONCLUSION
We reverse the judgment of the Court of Appeal insofar as it reversed the trial court‘s order granting Doe‘s special motion to strike the breach of contract cause of action with respect to statements in Doe‘s civil complaint. We remand the matter for further proceedings consistent with this opinion.
LIU, J.
We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
MOOR, J.*
* Associate Justice of the Court of Appeal, Second Appellate District, Division Five, assigned by the Chief Justice pursuant to
See next page for addresses and telephone numbers for counsel who argued in Supreme Court.
Name of Opinion Olson v. Doe
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Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 8/30/19 – 2d Dist., Div. 8
Rehearing Granted
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Opinion No. S258498
Date Filed: January 13, 2022
__________________________________________________________
Court: Superior
County: Los Angeles
Judge: Craig D. Karlan
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Counsel:
Buchalter, Robert M. Dato, Eric Michael Kennedy, Robert Collings Little and Paul Augusto Alarcon for Cross-complainant and Appellant.
Martinez Business & Immigration Law Group, Gloria P. Martinez Senftner; Keiter Appellate Law, Mitchell Keiter; Sidley Austin, David R. Carpenter, Collin P. Wedel, Andrew B. Talai, Joel L. Richert, Paula C. Salazar; Bryan Cave Leighton Paisner, Jean-Claude Andre, Anne Redcross Beehler and Kristy Anne Murphy for Cross-defendant and Respondent.
Goodwin Procter, Neel Chatterjee, Alexis S. Coll-Very, Stella Padilla, Megan D. Bettles; Arati Vasan, Janani Ramachandran, Jennafer Dorfman Wagner, Erin C. Smith; and Amy C. Poyer for Family Violence Appellate Project and California Women‘s Law Center as Amici Curiae on behalf of Cross-defendant and Respondent.
Law Offices of Aimee J. Zeltzer and Aimee Zeltzer for John K. Mitchell and Dr. Jack R. Goetz as Amici Curiae on behalf of Cross-defendant and Respondent.
Counsel who argued in Supreme Court (not intended for publication with opinion):
Eric Michael Kennedy
Buchalter
1000 Wilshire Boulevard, Suite 1500
Los Angeles, CA 90017
(213) 891-5051
Jean-Claude Andre
Bryan Cave Leighton Paisner LLP
120 Broadway, Suite 300
Santa Monica, CA 90401-2386
(310) 576-2148