Appellant Robert D'Ausilio sued respondent City of Alhambra (City) for civil rights violations and then settled the case with the City. The City then sued appellant for breach of the settlement agreement and declaratory relief. Appellant moved to strike the declaratory relief claim under Code of Civil Procedure section 425.16, the "anti-SLAPP statute."
FACTUAL AND PROCEDURAL BACKGROUND
Appellant is a former employee of the City, and served for many years as president of the Alhambra Firefighter's Association (AFA). In December 2006, he sued the City for alleged civil rights violations in connection with the City's investigation and discipline of his workplace conduct. In October 2007, appellant and the City entered into a "Settlement Agreement and General Release" (settlement agreement). At issue here is section 3.8 of the settlement agreement, in which appellant agreed that in consideration for the settlement payments and other benefits from the City, he would not "represent, participate, or advocate for, any Alhambra employee(s)," including AFA members, "in any matter involving the CITY and/or its agents or employees... from September 21, 2007 through October 28, 2012." Appellant further agreed that he would "not campaign for, solicit, serve nor accept any AFA position including as one of its officers, board or committee members, or in any appointed position serving the AFA board or its members from September 21, 2007 through October 28, 2012."
A year after the settlement agreement was signed, the City learned that on October 7, 2008, appellant participated in an AFA meeting in which he advocated that AFA members join a planned demonstration against the City. The City also learned that on October 9, 2008, appellant took part in a protest by City employees against the City, while wearing his AFA shirt. On December 19, 2008, the City sent written notification to appellant that it believed his actions breached the settlement agreement and demanded that he cease and desist such activities. In a followup telephone call on December 26, 2008, the City again notified appellant that he was in breach of the settlement agreement. Appellant refused to confirm his future compliance with the settlement agreement.
On January 20, 2009, the City sued appellant for breach of contract, money had and received, and declaratory relief. The first and second causes of action deal with an overpayment by the City of $5,328.33, which appellant allegedly refuses to repay under the settlement agreement, and are not at issue here. The third cause of action for declaratory relief alleges that an "actual controversy has arisen and now exists" between the parties "concerning their respective rights and duties" under section 3.8 of the settlement agreement; the City desires "a judicial determination that [appellant's] conduct described
Appellant countersued, seeking a nearly identical judicial declaration. He also removed the case to federal court. In its order remanding the case to state court, the federal court stated: "The City's claim seeks a judicial determination as to (1) the validity of Section 3.8 of the Agreement, and (2) whether [appellant's] conduct violated Section 3.8.... The claim involves a dispute regarding the validity of a contract provision and a party's alleged violation of that provision. As such it can be resolved without necessarily raising a stated federal issue. Because the City's third claim arises out of a contract dispute, it does not arise under the Constitution, laws, or treaties of the United States."
Shortly after the matter was remanded, appellant filed an anti-SLAPP motion to strike the City's third cause of action for declaratory relief. The City opposed the motion, which the trial court denied. The court found that appellant had failed to meet the first prong of the anti-SLAPP analysis, because the third cause of action did not arise from appellant's exercise of free speech or petitioning rights, but from "the controversy over the validity and enforceability of Section 3.8 of the Settlement Agreement." The court further stated, "This is apparently why defendant HIMSELF seeks declaratory relief regarding the same section of the Settlement Agreement...." The court then awarded the City its attorney fees of $5,221.85 on the grounds that appellant's anti-SLAPP motion was "frivolous and solely intended to cause unnecessary delay." This appeal followed.
I. The Anti-SLAPP Statute and the Standard of Review.
We independently review the record to determine whether the asserted causes of action arise from the defendant's free speech or petitioning activity, and, if so, whether the plaintiff has shown a probability of prevailing. (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3 [46 Cal.Rptr.3d 638, 139 P.3d 30]; HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212 [12 Cal.Rptr.3d 786].) We consider "the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based." (§ 425.16, subd. (b)(2); see Flatley v. Mauro (2006) 39 Cal.4th 299, 326 [46 Cal.Rptr.3d 606, 139 P.3d 2].) We do not reweigh the evidence, but accept as true all evidence favorable to the plaintiff and evaluate the defendant's evidence only to determine if it has defeated the
II. The City's Declaratory Relief Claim Does Not Arise from Protected Activities.
It is undisputed that appellant's alleged activities on October 7 and 9, 2008, involving demonstrations against the City constitute free speech or petitioning activities protected under section 425.16. It is also undisputed that the City's complaint was filed shortly after these alleged activities took place and that these activities triggered the City's lawsuit.
We conclude that the City's declaratory relief claim does not arise from appellant's protected activities, but from an actual, present controversy between the parties regarding the scope and enforceability of section 3.8 of the settlement agreement. This is made clear by the specific allegations in the City's complaint; the admissions in appellant's answer; the nearly identical declaratory relief claim alleged by appellant in his counterclaim against the City; and the federal court's order remanding the action. Indeed, appellant's anti-SLAPP motion acknowledges that "This lawsuit arises out of a Settlement Agreement ... executed between the City and Defendant Robert
Appellant's argument that the trial court "incorrectly" relied on Cotati in denying his motion is without merit. In that case, after the City of Cotati passed a mobilehome rent stabilization ordinance, owners of mobilehome parks sued the city in federal court for declaratory relief, seeking a declaration that the ordinance was unconstitutional. The city then sued the owners in state court for declaratory relief, seeking a declaration of the parties' respective rights and duties under the ordinance and that the ordinance was constitutional, valid and enforceable. (Cotati, supra, 29 Cal.4th at p. 72.) In ruling on the owners' anti-SLAPP motion, the trial court found that the city's state lawsuit arose from the owners' filing of the earlier federal court action, and struck the city's declaratory relief claim. (Id. at pp. 72-73.)
The Court of Appeal and Supreme Court disagreed, holding that the motion should have been denied because the city's action arose from the underlying controversy surrounding the legality of the ordinance, not the owners' petition rights and act of suing in federal court. (Cotati, supra, 29 Cal.4th at p. 74.) The Supreme Court stated: "In this case, as the Court of Appeal stated, a dispute exists between the parties over the constitutionality of Cotati Ordinance No. 680. And just as Owners' lawsuit itself was not the actual controversy underlying Owners' request for declaratory relief in federal court, neither was that lawsuit the actual controversy underlying City's state court request for declaratory relief. Rather, the actual controversy giving rise to both actions—the fundamental basis of each request for declaratory relief— was the same underlying controversy respecting City's ordinance. City's cause of action therefore was not one arising from Owners' federal suit. Accordingly, City's action was not subject to a special motion to strike." (Id. at p. 80, fn. omitted.) The same is true here.
Appellant's reliance on Equilon Enterprises v. Consumer Cause, Inc., supra, 29 Cal.4th 53 as support for his claim that the City's declaratory relief claim arises from his protected speech activity is misplaced. There, the defendant served the plaintiff's predecessors in interest with notices of intent to sue for alleged violations of Proposition 65 regarding groundwater pollution. Instead of asking the defendant to clarify its notice, the plaintiff filed a lawsuit for declaratory and injunctive relief, seeking a declaration that the notice failed to comply with the California Code of Regulations. (29 Cal.4th at p. 58.) The
Because appellant failed to show that the City's declaratory relief claim arose from his protected activities, we do not reach the second prong of the anti-SLAPP analysis of whether the City can show a probability of prevailing on its cause of action.
III. Attorney Fees.
Both parties raise issues as to attorney fees. Appellant contends that the trial court's award of attorney fees to the City in denying the anti-SLAPP motion must be reversed. At the hearing on the motion, the court specifically directed the issue of attorney fees to be addressed by separate motion. As respondent points out, appellant did not file a notice of appeal from the subsequent order awarding attorney fees, or otherwise indicate in his notice that he was appealing from this order. (See Torres v. City of San Diego (2007) 154 Cal.App.4th 214, 222 [64 Cal.Rptr.3d 495] ["`When a party wishes to challenge both a final judgment and a postjudgment costs/attorney fee order, the normal procedure is to file two separate appeals....'"].) In any event, appellant's only argument in support of his request for reversal of attorney fees is that the trial court erred in denying his anti-SLAPP motion. Because we have concluded that the denial was correct, appellant has provided no basis for reversal.
The order denying appellants' anti-SLAPP motion is affirmed. The City is entitled to recover its costs and attorney fees on appeal.
Ashmann-Gerst, J., and Chavez, J., concurred.
Unless otherwise indicated, all further statutory references are to the Code of Civil Procedure.