C.W. Howe Partners Inc. v. Mooradian ( 2019 )


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  • Filed 12/19/19
    CERTIFIED FOR PUBLICATION
    IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
    SECOND APPELLATE DISTRICT
    DIVISION SEVEN
    C.W. HOWE PARTNERS INC.               B290665
    et al.,
    (Los Angeles County
    Cross-complainants and        Super. Ct. No. BC662798)
    Respondents,
    v.
    GREG MOORADIAN et al.,
    Cross-defendants and
    Appellants.
    APPEAL from an order of the Superior Court of
    Los Angeles County, Howard L. Halm, Judge. Affirmed.
    Pitre & Teunisse and Randall J. Pitre for Cross-defendants
    and Appellants.
    Clark Hill, Richard H. Nakamura Jr., Mehrdad Farivar
    and Christopher Menjou for Cross-complainants and
    Respondents.
    _____________________________________
    Greg Mooradian and Debra A. Mooradian appeal from the
    order denying their special motion to strike under Code of Civil
    Procedure section 425.161 directed to the cross-complaint filed
    against them by C.W. Howe Partners Inc. and its principal Carl
    William Howe (collectively the Howes) for express indemnity,
    equitable indemnity, contribution and declaratory relief. The
    trial court ruled none of the Howes’ claims arose from protected
    speech or petitioning activity within the meaning of
    section 425.16. Although a claim of loss or potential loss is an
    essential prerequisite to any indemnification obligation, whether
    express or equitable, the Howes’ cross-complaint did not arise
    from the filing of the Mooradians’ lawsuit, but from the alleged
    breach of their agreement to indemnify the Howes for any
    liability attributable to information provided by the Mooradians
    or the Mooradians’ representatives and the Mooradians’
    underlying fault with regard to their decisionmaking.
    Accordingly, we affirm.
    FACTUAL AND PROCEDURAL BACKGROUND
    1. The Mooradian Residence Construction Project
    The Mooradians, a married couple, were interested in
    remodeling or reconstructing their existing Los Angeles
    residence. Although they had no prior design or construction
    experience, they discovered in 2014 the work of Erla Dogg
    Ingjaldsdottir and Tryggvi Thorsteinsson of Minarc, Inc. profiled
    in a book featuring cutting-edge homes that were
    environmentally conscious, energy efficient and built with major
    components prefabricated offsite. The Mooradians were
    1     Statutory references are to this code unless otherwise
    stated.
    2
    particularly drawn to a house located in Venice, California, which
    the book attributed to the following: “Minarc” as architect, “Core
    Construction” as builder, “mnm.MOD” as manufacturer and
    “C.W. Howe” as engineer. The home was constructed entirely
    from factory-made parts using a “patented panelized system,”
    with structural components of metal and panels containing
    expanded polystyrene (EPS) insulation.
    The Mooradians met with Ingjaldsdottir and
    Thorsteinsson, who represented that MNM Mod Corp., also
    known as MNMmod and mnmMOD, was one of their companies.
    MNM would custom manufacture offsite, in accordance with a
    design Ingjaldsdottir and Thorsteinsson created specifically for
    the Mooradians, metal-framed EPS panels using the patented
    panelized system. Thorsteinsson sent the Mooradians a proposed
    agreement pursuant to which Minarc would provide design and
    other services for the construction of a new single-family dwelling
    at the site of the Mooradians’ existing residence.2
    After the Mooradians signed the Minarc agreement,
    Thorsteinsson advised hiring a structural engineer and
    recommended Carl Howe. He explained Howe had worked with
    Minarc on other residential projects. Howe provided a proposal
    to Thorsteinsson and then, after being told the proposal was
    2     Under the heading “Key Milestones,” the Minarc
    agreement included the following provisions: “Zoning regulations
    and codes studied”; “[d]rawings establishing all major elements
    and outline specifications are prepared including renderings,
    plans, elevation and sections of the building”; “[p]reparing Plans
    and specification for construction,” but with “‘[e]ngineering by
    others’”; “[m]eeting with local City planners”; “provide ready to
    issue permit plans”; and “[p]rovide field observations throughout
    the project to ensure compliance with the project documents.”
    3
    accepted, submitted an August 18, 2014 letter agreement
    addressed to the Mooradians, printed on the letterhead of
    C.W. Howe Partners and signed by Howe as its principal (the
    Howe agreement).
    2. The Agreement Between the Mooradians and C.W. Howe
    Partners
    Howe is a civil engineer licensed in California, and
    C.W. Howe Partners is in the business of providing structural
    design services for single-family homes and other building types.
    Structural design typically entails designing the foundation and
    structural framework for a building with specified materials to
    allow the building to withstand a variety of forces.
    The August 18, 2014 Howe agreement stated on the subject
    line, “Contract for Structural Engineering Services: Mooradian
    Residence – ‘MnM mod’ – Light Gage Steel Stud House, Green
    Roof Deck, Concrete Wall Front Elevation Elements.”3 The first
    line of the agreement indicated the C.W. Howe Partners’s
    engineering fee for the project was “[i]n accordance with our
    review of drawings produced by your Minarc.” Howe understood
    Minarc to be the designer of the Mooradian project.
    Pursuant to the Howe agreement, the scope of services to
    be provided by C.W. Howe Partners included preparing a
    preliminary structural design, structural engineering
    calculations and structural construction documents. The
    agreement listed services that were specifically excluded from the
    3     The Howe agreement also stated the Mooradian project
    would “be a light gage ‘C’ – stud and joist platform-framed house
    where possible and structural steel where required.” According
    to Howe, the term “light gage” steel studs refers to studs of a
    certain grade of steel.
    4
    work to be performed by C.W. Howe Partners, including permit
    acquisition; construction means and methods or sequences;
    design and detailing of any nonstructural element; and
    coordination with architectural plans, which was instead to be
    performed by the “Designer,” who was to be responsible for
    coordination of structural plans with all other professional
    disciplines.
    Section 4 of the Howe agreement contained the heading
    “Client’s Responsibilities,” which was underlined, capitalized and
    in bold font. Section 4(a), titled “Information Provided by Client”
    in bold font, stated, “Client or Client’s representative shall
    provide Engineer with all necessary information for performance
    of Engineer’s work on a timely basis. Engineer shall be entitled
    to rely upon information provided by Client and Client’s
    representative, and shall not be held responsible for accuracy or
    completeness of such information; or omission of pertinent
    information.”
    Section 4(b), titled “Indemnity – Client Provided
    Information” in bold font, provided, “Client agrees to indemnify,
    defend and hold harmless Engineer, [its] principals, agents and
    employees and subcontractors from and against all costs or
    liability, including but not limited to attorney fees and expert fees
    and costs; arising in whole or in part from errors, omissions or
    inaccuracies in any Project related information or documents
    provided by, or through Client, or any other person or entity,
    acting on Client’s behalf; including but not limited to
    recommendations as to the type of foundation by Client’s soils
    engineer. Engineer has no duty to defend the Client or any party
    claiming through the Client.”
    5
    Greg Mooradian signed the Howe agreement on August 18,
    2014 on behalf of the Mooradians, the “Client.”
    3. Construction of the New House
    In the last quarter of 2014 the Mooradians’ existing house
    was demolished to prepare for the construction of their new
    residence. Ingjaldsdottir, Thorsteinsson, Minarc and the Howes
    submitted architectural and structural drawings and
    specifications for approval by various departments and divisions
    of the City of Los Angeles, and the City issued a building permit
    in March 2015.
    In April 2016 Core Construction and Development Inc., the
    general contractor the Mooradians hired at Ingjaldsdottir and
    Thorsteinsson’s recommendation, discovered a permit for the roof
    deck could not be obtained because the deck railing exceeded the
    height limit of the applicable zoning ordinance. The Mooradians
    then learned Ingjaldsdottir, Thorsteinsson and Minarc were not
    California licensed architects and promptly terminated the
    relationship. Claiming substantial construction errors, the
    Mooradians also subsequently fired Core Construction and hired
    a completion contractor to finish the work.
    4. The Litigation
    On May 26, 2017 the Mooradians filed a complaint and on
    August 8, 2017 a first amended complaint against Ingjaldsdottir,
    Thorsteinsson, Minarc, MNM, the Howes, Core Construction and
    others. The operative first amended complaint generally alleged
    the defendants participated in a joint enterprise designed to
    facilitate a variety of unlawful practices, including the practice of
    architecture by persons who were not licensed architects and the
    manufacture, sale and installation of building materials without
    necessary City approvals. In its factual background section it
    6
    also alleged deficiencies in the Howes’ civil engineering services
    and failures in the Howes’ construction supervision.
    Three causes of action—fraud, negligent breach of contract,
    and restitution and injunctive relief for unfair business
    practices—were asserted against the Howes. For the fraud cause
    of action and, by its reference to the fraud allegations, the unfair
    business practices cause of action, the Mooradians alleged the
    Howes claimed in or about 2012 to have engineered the EPS
    panels that have since been used in other residential structures
    constructed by its coconspirators; knew Ingjaldsdottir,
    Thorsteinsson, Minarc and MNM regularly incorporated into
    their designs for residential steel-framed structures the MNM-
    branded C-stud framed EPS panels that were manufactured by
    MNM offsite; and regularly served as the civil engineer for such
    structures.4 The Mooradians further alleged, to fraudulently
    induce them to sign the Howe agreement and in furtherance of
    the defendants’ conspiracy, the Howes intentionally suppressed
    certain material facts that should have been disclosed, including
    that Minarc was not a licensed architect; MNM did not have City
    approval to manufacture the EPS panels offsite; and the EPS
    4      Debra Mooradian’s February 21, 2018 declaration, which
    was filed in support of the Mooradians’ special motion to strike,
    included, among other exhibits, a March 2012 posting on the
    website of C.W. Howe Partners referring to a “two story steel and
    styrofoam kit-of-parts systems” it had engineered for “Minarc
    Architects,” as well as an August 2012 email from Howe to
    Thorsteinsson referring to the Howes “spending time, money, and
    effort on developing the MnM System.”
    7
    panels included materials not approved for use in residential
    construction within the City.5
    On December 22, 2017 the Howes filed a cross-complaint
    against the Mooradians for express indemnity, equitable
    indemnity, contribution and declaratory relief. In its general
    allegations the cross-complaint set forth verbatim sections 4(a)
    and 4(b) of the Howe agreement and asserted the Howes’
    structural design under the Howe agreement was to be based on
    information and drawings provided by the Mooradians’ designer
    Minarc; the Mooradians, or Minarc as the Mooradians’
    representative, had provided the Howes an architectural design
    using elements labeled “EPS Panels”; and the selection of
    EPS panels had been solely by the Mooradians and/or Minarc. It
    also referred to the Mooradians’ filing of their first amended
    complaint, alleging the Mooradians in their first amended
    complaint admitted the EPS panels had been specified in plans
    prepared by Minarc, manufactured by an entity owned by
    Minarc’s owners and featured as the subject of various
    representations by the Minarc’s owners and of Minarc’s and
    MNM’s website postings that the Mooradians had reviewed.
    For the express indemnity claim, the Howes alleged the
    Mooradians had agreed to the indemnification provisions of the
    Howe agreement, which obligated them to indemnify, defend and
    5     For the negligence-based cause of action, the Mooradians
    alleged the Howes’ negligence included preparing structural
    plans referring to Minarc as an architect, participating in the
    delivery of unapproved EPS panels and failing to detect MNM
    was not approved by the City to manufacture or assemble the
    EPS panels offsite.
    8
    hold harmless the Howes for any liability arising from the use of
    the EPS panels as asserted in the Mooradians’ first amended
    complaint, but breached the agreement by failing and refusing to
    comply with their indemnification obligations.
    For the equitable indemnity claim, the Howes denied
    liability for the events described in the Mooradians’ first
    amended complaint arising from the Mooradians’ and/or Minarc’s
    decision to use the EPS panels. The Howes claimed that the
    Mooradians and/or Minarc were wholly or partially responsible
    for any injuries arising from their decision to use the EPS panels
    and that the Mooradians should be required to pay a share of any
    liability imposed on the Howes in proportion to the Mooradians’
    comparative negligence.
    The contribution claim alleged the Howes were entitled to
    contribution from the Mooradians because of any judgment
    against Howe as a result of the Mooradians’ first amended
    complaint. By their declaratory relief claim, the Howes sought a
    declaration of the Mooradians’ obligation to indemnify the Howes,
    their duty to pay the Howes’ costs of defense and their
    comparative liability for any damages claimed in the first
    amended complaint.
    5. The Mooradians’ Special Motion To Strike
    The Mooradians responded to the Howes’ cross-complaint
    by filing a section 425.16 special motion to strike, which was
    supported by the Mooradians’ declarations. In their moving
    papers the Mooradians argued the Howes’ cross-claims arose
    from the Mooradians’ acts in furtherance of their right of petition
    within the meaning of section 425.16—specifically, from the filing
    of the Mooradians’ complaint. The Mooradians also argued the
    9
    Howes could not establish a probability of prevailing on their
    claims.
    In their opposition the Howes disputed their cross-claims
    arose from actions in furtherance of a right of petition.6 They
    contended their cross-complaint did not allege the Mooradians’
    wrongful act was the filing of the complaint, which constituted
    arguably protected activity, but rather the breach of the
    obligation to indemnify the Howes for any liability attributable to
    information provided by the Mooradians or the Mooradians’
    representatives.
    In his declaration supporting the opposition Howe stated,
    in preparing structural designs, C.W. Howe Partners relies on
    information provided by others, including architects, designers
    and other consultants, who are typically hired directly by the
    property owner. Because the services of C.W. Howe Partners are
    intertwined with services others provide, C.W. Howe Partners
    typically includes the provisions set forth in sections 4(a) and 4(b)
    of the Howe agreement. For the Mooradian residence,
    C.W. Howe Partners based the structural design from the set of
    plans by the Mooradians’ designers, with whom C.W. Howe
    Partners did not have a contractual relationship. Howe further
    explained C.W. Howe Partners had no role in the selection of the
    insulation material, a nonstructural item, used in the Mooradian
    project. Moreover, the decision whether to use framing
    assemblies fabricated offsite or onsite pertains to means, methods
    and sequences of construction excluded from the scope of work
    under the Howe agreement.
    6     The Howes’ opposition also disputed they could not
    establish the probability of prevailing on their claims.
    10
    The trial court heard the Mooradians’ special motion to
    strike on April 18, 2018. After taking the matter under
    submission, the court later that same day denied the motion,
    ruling the Mooradians had failed to establish the Howes’ cross-
    complaint arose from an act in furtherance of the Mooradians’
    right of petition or free speech. The court, however, denied the
    Howes’ request for attorney fees, finding the arguments advanced
    by the Mooradians “were not completely and totally without
    merit.” The Mooradians filed a timely notice of appeal. (§ 904.1,
    subd. (a)(13).)7
    DISCUSSION
    1. Section 425.16, the Anti-SLAPP Statute,8 and the
    “Arising From” Requirement
    Section 425.16 provides, “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 under the United States
    Constitution or the California Constitution in connection with a
    7     Although the Mooradians’ notice of appeal failed to specify
    the date of the order being appealed, there is no question they
    sought review of the April 18, 2018 order denying their special
    motion to strike, which was the only appealable order included in
    their designation of the record on appeal. (See Cal. Rules of
    Court, rule 8.100(a)(2) [notice of appeal “must be liberally
    construed”]; D’Avola v. Anderson (1996) 
    47 Cal.App.4th 358
    , 362
    [reviewing court may consider the contents of the designation of
    the record in determining whether a respondent has been misled
    by the notice of appeal].) The Howes do not contend they were
    prejudiced in any way by that omission.
    8     SLAPP is an acronym for “strategic lawsuit against public
    participation.” (City of Montebello v. Vasquez (2016) 
    1 Cal.5th 409
    , 413, fn. 2.)
    11
    public issue shall be subject to a special motion to strike, unless
    the court determines that the plaintiff has established that there
    is a probability that the plaintiff will prevail on the claim.”
    (§ 425.16, subd. (b)(1).)
    Pursuant to section 425.16, subdivision (e), an “‘act in
    furtherance of a person’s right of petition or free speech under the
    United States or California Constitution in connection with a
    public issue’ includes: (1) any written or oral statement or writing
    made before a legislative, executive, or judicial proceeding, or any
    other official proceeding authorized by law, (2) any written or oral
    statement or writing made in connection with an issue under
    consideration or review by a legislative, executive, or judicial
    body, or any other official proceeding authorized by law, (3) any
    written or oral statement or writing made in a place open to the
    public or a public forum in connection with an issue of public
    interest, or (4) any other conduct in furtherance of the exercise of
    the constitutional right of petition or the constitutional right of
    free speech in connection with a public issue or an issue of public
    interest.”
    In ruling on a motion under section 425.16, the trial court
    engages in a two-step process. “First, the defendant must
    establish that the challenged claim arises from activity protected
    by section 425.16. [Citation.] If the defendant makes the
    required showing, the burden shifts to the plaintiff to
    demonstrate the merit of the claim by establishing a probability
    of success.” (Baral v. Schnitt (2016) 
    1 Cal.5th 376
    , 384.) “Only a
    cause of action that satisfies both prongs of the anti-
    SLAPP statute—i.e., that arises from protected speech or
    petitioning and lacks even minimal merit—is a SLAPP, subject to
    being stricken under the statute.” (Navellier v. Sletten (2002)
    12
    
    29 Cal.4th 82
    , 89 (Navellier), italics omitted.) If the moving party
    fails to demonstrate that any of the challenged claims for relief
    arise from protected activity, the court properly denies the
    motion to strike without addressing the second step (probability
    of success). (City of Cotati v. Cashman (2002) 
    29 Cal.4th 69
    , 80-
    81; Trilogy at Glen Ivy Maintenance Assn. v Shea Homes, Inc.
    (2015) 
    235 Cal.App.4th 361
    , 367.)
    “A claim arises from protected activity when that activity
    underlies or forms the basis for the claim.” (Park v. Board of
    Trustees of California State University (2017) 
    2 Cal.5th 1057
    ,
    1062-1063 (Park).) Thus, “[t]he defendant’s first-step burden is to
    identify the activity each challenged claim rests on and
    demonstrate that that activity is protected by the anti-SLAPP
    statute. A ‘claim may be struck only if the speech or petitioning
    activity itself is the wrong complained of, and not just evidence of
    liability or a step leading to some different act for which liability
    is asserted.’” (Wilson v. Cable News Network, Inc. (2019)
    
    7 Cal.5th 871
    , 884 (Wilson); accord, Park, at p. 1060.) “‘[T]he
    mere fact that an action [or claim] was filed after protected
    activity took place does not mean the action [or claim] arose from
    that activity for the purposes of the anti-SLAPP statute.’” (Park,
    at pp. 1062-1063; see Rand Resources, LLC v. City of Carson
    (2019) 
    6 Cal.5th 610
    , 621 [“a claim does not ‘arise from’ protected
    activity simply because it was filed after, or because of, protected
    activity, or when protected activity merely provides evidentiary
    support or context for the claim”].) “To determine whether a
    claim arises from protected activity, courts must ‘consider the
    elements of the challenged claim and what actions by the
    defendant supply those elements and consequently form the basis
    for liability.’” (Wilson, at p. 884; accord, Park, at p. 1063.)
    13
    We review de novo an order granting or denying a special
    motion to strike under section 425.16 (Wilson, supra, 7 Cal.5th at
    p. 884; Park, supra, 2 Cal.5th at p. 1067), considering the parties’
    pleadings and affidavits describing the facts on which liability or
    defenses are predicated. (§ 425.16, subd. (b)(2); see Navellier,
    
    supra,
     29 Cal.4th at p. 89; see also San Diegans for Open
    Government v. San Diego State University Research Foundation
    (2017) 
    13 Cal.App.5th 76
    , 94.)
    2. The Howes’ Cross-complaint Does Not Arise from the
    Mooradians’ Protected Petitioning Activity
    The Howes’ causes of action for express and equitable
    indemnity constitute the essence of their cross-complaint.9
    “Express indemnity refers to an obligation that arises ‘“by virtue
    of express contractual language establishing a duty in one party
    to save another harmless upon the occurrence of specified
    circumstances”’” and “is enforced in accordance with the terms of
    the contracting parties’ agreement.” (Prince v. Pacific Gas &
    9      In addition to their claims for express and equitable
    indemnity, the Howes alleged causes of action for contribution
    and declaratory relief. However, “the dichotomy between
    [contribution and indemnity] is more formalistic than
    substantive,” and “‘[[i]ndemnity] is only an extreme form of
    contribution.’” (American Motorcycle Assn. v. Superior Court
    (1978) 
    20 Cal.3d 578
    , 591 & fn. 3; see Prince v. Pacific Gas &
    Electric Co. (2009) 
    45 Cal.4th 1151
    , 1162, fn. 7 [“[c]ontribution
    and indemnity are related doctrines, but contribution
    ‘“presupposes a common liability which is shared by the joint
    tortfeasors on a pro rata basis”’”].) As for the Howes’ request for
    declaratory relief, the Mooradians acknowledge in their opening
    brief that this claim “is predicated solely upon their claim for
    indemnity and defense.”
    14
    Electric Co. (2009) 
    45 Cal.4th 1151
    , 1158 (Prince); see Valley
    Crest Landscape Development, Inc. v. Mission Pools of Escondido,
    Inc. (2015) 
    238 Cal.App.4th 468
    , 481 [applying four-year statute
    of limitations for breach of written contract to express indemnity
    claim because, by bringing claim for express indemnity under
    subcontract, “Valley Crest was, in effect, suing . . . for breach of
    contract”]; Ranchwood Communities Limited Partnership v. Jim
    Beat Construction Co. (1996) 
    49 Cal.App.4th 1397
    , 1417 [“we
    must treat the cross-complaints’ causes of action for express
    indemnity as contract based”].) “[T]he elements of a cause of
    action for breach of contract are (1) the existence of the contract,
    (2) plaintiff’s performance or excuse for nonperformance,
    (3) defendant’s breach, and (4) the resulting damages to the
    plaintiff.” (Oasis West Realty, LLC v. Goldman (2011) 
    51 Cal.4th 811
    , 821; accord, Professional Collection Consultants v. Lujan
    (2018) 
    23 Cal.App.5th 685
    , 690; see Four Star Electric, Inc. v.
    F & H Construction (1992) 
    7 Cal.App.4th 1375
    , 1380 [“[a]n
    indemnitee seeking to recover on an agreement for
    indemnification must allege the parties’ contractual relationship,
    the indemnitee’s performance of that portion of the contract
    which gives rise to the indemnification claim, the facts showing a
    loss within the meaning of the parties’ indemnification
    agreement, and the amount of damages sustained”].)
    Equitable indemnity, which “requires no contractual
    relationship,” “‘is premised on a joint legal obligation to another
    for damages’”; it is “subject to allocation of fault principles and
    comparative equitable apportionment of loss.” (Prince, supra,
    45 Cal.4th at p. 1158.) “‘The elements of a cause of action for
    [equitable] indemnity are (1) a showing of fault on the part of the
    indemnitor and (2) resulting damages to the indemnitee for
    15
    which the indemnitor is . . . equitably responsible.’” (Bailey v.
    Safeway, Inc. (2011) 
    199 Cal.App.4th 206
    , 217.)
    The Mooradians contend the existence of a claim of loss to
    be indemnified is a necessary prerequisite to any indemnification
    obligation and argue the filing of their first amended complaint
    supplies an essential element of the Howes’ cross-claims for
    indemnity. The element of “fault,” they contend, connotes
    responsibility for a claim of loss; the element of “resulting
    damages” refers to damages arising from a claim of loss. They
    assert there would be no claim of loss without the filing of their
    first amended complaint.
    To be sure, a cause of action arising from the defendant’s
    (or, as applicable here, cross-defendant’s) litigation activity
    directly implicates the right to petition and is subject to a special
    motion to strike. (Rusheen v. Cohen (2006) 
    37 Cal.4th 1048
    , 1056
    [“‘[a] cause of action “arising from” defendant’s litigation activity
    may appropriately be the subject of a section 425.16 motion to
    strike’”]; Jarrow Formulas, Inc. v. LaMarche (2003) 
    31 Cal.4th 728
    , 741 [malicious prosecution action by its very nature arises
    out of defendant’s constitutionally protected petitioning activity—
    the underlying lawsuit]; see Navellier, 
    supra,
     29 Cal.4th at p. 90.)
    But to satisfy the first prong, the Mooradians had to
    establish the Howes’ causes of action “arise from” the
    Mooradians’ litigation activity; and they misunderstand the
    analysis employed to determine whether a claim arises from
    protected conduct. The “elements” analysis as articulated by the
    Supreme Court in Park, supra, 2 Cal.5th at page 1063 and
    adopted in Wilson, supra, 7 Cal.5th at page 884 does not mean
    any allegation of protected activity supporting an element of a
    cause of action subjects that cause of action to a challenge under
    16
    section 425.16. Courts should only consider the elements of the
    challenged cause of action as part of an analysis to determine
    what actions by the defendant form the basis for liability. As
    cautioned by the Park Court, in the first step of the anti-SLAPP
    analysis, care must be taken “to respect the distinction between
    activities that form the basis for a claim and those that merely
    lead to the liability-creating activity or provide evidentiary
    support for the claim.” (Park, at p. 1064.) As discussed, the
    Supreme Court in both Park and Wilson made clear “the speech
    or petitioning activity itself” must constitute “the wrong
    complained of.” (Wilson, at p. 884; Park, at p. 1060.)
    The filing of the Mooradians’ first amended complaint is
    not the wrongful act forming the basis for the Mooradians’
    liability as alleged in the Howes’ cross-claims. Rather, the
    alleged wrongful act that forms the basis for the express
    indemnity cause of action is the Mooradians’ failure to indemnify,
    defend and hold harmless the Howes in breach of section 4(b) of
    the Howe agreement, including to indemnify the Howes from any
    liability arising from the use of the EPS panels selected by the
    Mooradians or the Mooradians’ representative Minarc. Similarly,
    the alleged wrongful act supporting the equitable indemnity
    cause of action—the alleged “fault” for which they should be held
    equitably responsible for any damages suffered by the Howes—is
    the decision they or their representative Minarc made to use the
    EPS panels.10
    10    As the Mooradians indicate in their reply brief, the
    Supreme Court in Baral v. Schnitt, supra, 1 Cal.5th at page 396
    stated, “When relief is sought based on allegations of both
    protected and unprotected activity, the unprotected activity is
    disregarded.” The Howes’ cross-claims, however, do not allege
    17
    Navellier, 
    supra,
     
    29 Cal.4th 82
     illustrates the difference.
    In Navellier the Supreme Court held a claim for breach of a
    release clause in a contract was subject to section 425.16 because
    the alleged breach consisted of asserting claims in litigation (in a
    counterclaim in a federal lawsuit that had been initiated prior to
    the release agreement) that had purportedly been released under
    the contract: “In alleging breach of contract, plaintiffs complain
    about Sletten’s having filed counterclaims in the federal action.
    Sletten, plaintiffs argue, ‘counterclaimed for damages to recover
    money for the very claim he had agreed to release a year
    earlier’ and ‘was sued for that act.’” (Navellier, at p. 90; see id. at
    p. 89 [“[p]laintiffs . . . alleged that Sletten had committed breach
    of contract by filing counterclaims in the federal action”].)
    Similarly, in Moss Bros. Toy, Inc. v. Ruiz (2018)
    
    27 Cal.App.5th 424
     the petitioning activity itself constituted the
    alleged breach. In that case an employer filed a breach of
    contract action against an employee alleging the employee had
    breached two arbitration agreements by failing to submit his
    employment-related disputes to arbitration, instead filing a
    putative class action complaint in superior court against the
    employer. The trial court granted the employee’s special motion
    to strike. (Id. at pp. 430-432.) In affirming, the court of appeal
    relied, among other cases, on Vivian v. Labrucherie (2013)
    
    214 Cal.App.4th 267
    , where a motion pursuant to section 425.16
    successfully challenged a breach of contract action that had
    alleged protected activity constituted the breach: “There, the
    plaintiff’s breach of contract claims were based on the defendant’s
    any part of the Mooradians’ breach or other wrongful conduct
    includes the protected activity of filing their lawsuit.
    18
    protected activity of making statements to internal affairs
    investigators and in family court papers . . . . Because the
    plaintiff was seeking to impose liability on the defendant for her
    acts of making protected statements, the plaintiff’s action was
    based on protected activity.” (Moss Bros. Toy, at pp. 438-439.)
    Unlike the plaintiffs in Navellier and Moss Bros. Toy, the Howes
    did not allege in their cross-complaint that by filing their lawsuit
    the Mooradians had breached the Howe agreement or otherwise
    engaged in wrongful activity.
    Neither Lennar Homes of California, Inc. v. Stephens
    (2014) 
    232 Cal.App.4th 673
     (Lennar Homes) nor the recent case
    from Division Four of this court, Long Beach Unified School Dist.
    v. Margaret Williams, LLC (Dec. 9, 2019, B290069)
    __ Cal.App.5th __ [2019 Cal.App. Lexis 1228] (Williams), which
    affirmed trial court orders granting special motions to strike first
    party contractual indemnity causes of action, provides persuasive
    support for the Mooradians’ motion.
    In Lennar Homes defendants Stella Stephens and Timothy
    and Melissa Young, a married couple, purchased homes from
    builder Lennar Homes of California, Inc., entering into
    agreements that required the homebuyers to indemnify and
    defend Lennar from any costs and liabilities arising from claims
    the homebuyers might make based on the builder’s nondisclosure
    or incomplete disclosure of various items. Stella Stephens and
    Timothy Young, but not Melissa Young, were named plaintiffs in
    a federal class action lawsuit asserting claims of fraudulent
    nondisclosure and misrepresentation against Lennar. After
    dismissal of the federal action, Lennar sued all three homebuyers
    for express contractual indemnity to recover its attorney fees and
    costs in defending the federal action. The trial court granted the
    19
    homebuyers’ section 425.16 motion, and the court of appeal
    affirmed. (Lennar Homes, supra, 232 Cal.App.4th at pp. 677-
    679.) Significantly, however, Lennar did not dispute on appeal
    that its cause of action for indemnity as asserted against
    Stephens and Timothy Young arose from actions in furtherance
    of their right to petition (id. at p. 680); Lennar argued Melissa
    Young had failed to satisfy the first prong of the anti-SLAPP
    analysis because, unlike her husband, she was not named as a
    plaintiff in the federal action (ibid.).11 Applying authority holding
    that section 425.16 applies to one who did not personally engage
    in protected petitioning activity but who provided support for
    that activity, the appellate court concluded Timothy Young
    effectively brought suit on behalf of both himself and his wife,
    asserting rights belonging jointly to them, and the federal
    litigation therefore constituted an act in furtherance of Melissa
    Young’s right of petition, even though she was not named as a
    plaintiff. (Lennar Homes, at pp. 681, 684.)
    Selectively quoting from Navellier, supra, 
    29 Cal.4th 82
    ,
    Lennar Homes relied on a facile “but for” analysis to conclude
    Lennar’s claim against Melissa Young arose from protected
    activity because, but for the federal litigation, Lennar’s
    indemnification claim would have no basis. (Lennar Homes,
    11     Lennar contended the express indemnity cause of action
    against Melissa Young did not arise from her own petitioning
    activity. Because Melissa Young had agreed “‘to indemnify
    Lennar for costs incurred in defending a meritless suit by a third
    party (here Mr. Young),’” Lennar unsuccessfully attempted to
    characterize its claim against Melissa Young as a
    “‘straightforward third-party indemnity claim.’” (Lennar Homes,
    supra, 232 Cal.App.4th at p. 684.)
    20
    supra, 232 Cal.App.4th at pp. 684-685.) The Lennar Homes
    court, which decided the case several years before the Supreme
    Court’s clarification of proper section 425.16 analysis in Wilson,
    supra, 
    7 Cal.5th 871
     and Park, supra, 
    2 Cal.5th 1057
    , did not
    consider whether the wrongful act giving rise to an express
    indemnity claim for purposes of the first prong of section 425.16
    was the filing of the underlying action or the refusal to honor the
    contractual indemnification obligation.12
    Williams, supra, ___ Cal.App.5th ___ involved a first party
    contractual indemnity claim filed by the Long Beach Unified
    School District as a cross-complaint in a lawsuit by Margaret
    Williams and Margaret Williams, LLC alleging the District had
    wrongfully terminated the LLC’s contract to perform construction
    management and environmental compliance work for the District
    and unlawfully caused Williams’s arsenic poisoning.13 (Id. at
    p. ___ [2019 Cal.App. Lexis 1228, *1-2].) Relying on the
    truncated first prong reasoning in Lennar Homes, the Williams
    court concluded, “Here, the District’s cross-claims for defense and
    12     As explained by Division One of the First District in Wong
    v. Wong (Dec. 13, 2019, A154286) __ Cal.App.5th __ [2019
    Cal.App. Lexis 1252, *13], which involved a third party
    indemnity claim, “Lennar Homes was decided before Park and did
    not employ Park’s elements-based analysis. The builder
    effectively conceded that the husband and the other woman had
    met their first-prong burden.”
    13     In Williams the District’s cross-complaint included a breach
    of contract cause of action; the LLC’s contract contained an
    indemnity provision, which the District alleged the LLC breached
    by failing to accept the District’s tenders of defense and
    indemnity. (Williams, supra, __ Cal.App.5th __ [2019
    Cal.App. Lexis 1228, *9-11].)
    21
    indemnity likewise would have no basis without the Underlying
    Action in which it seeks to be defended and indemnified.” (Id. at
    p. __ [2019 Cal.App. Lexis 1228, *17].) However, implicitly
    recognizing the flaw inherent in utilizing a simple “but for”
    analysis, rather than considering the elements of the challenged
    claims to determine what actions form the basis for liability, as
    required by Park, supra, 2 Cal.5th at page 1063, the Williams
    court went on to conclude, even if the District’s cross-complaint
    for indemnity did not arise from the underlying action, it
    nonetheless arose from protected activity within the meaning of
    section 425.16, subdivision (e)(4), because funding or refusing to
    fund litigation (that is, refusing the District’s demand for a
    defense and indemnification) constituted protected conduct in
    furtherance of petitioning activity and Williams and her LLC’s
    lawsuit involved an issue of public interest (allegations of an
    environmental hazard at a construction site for a public school).
    (Williams, at p. __ [2019 Cal.App. Lexis 1228, *18].) The
    Mooradians do not, and cannot, assert that their refusal to honor
    the Howes’ indemnity demand similarly implicates an issue of
    public interest.
    In sum, the trial court properly determined the Mooradians
    failed to establish the Howes’ cross-claims arose from protected
    activity.
    22
    DISPOSITION
    The order denying the Mooradians’ special motion to strike
    is affirmed. The Howes are to recover their costs on appeal.
    PERLUSS, P. J.
    We concur:
    ZELON, J.
    SEGAL, J.
    23
    

Document Info

Docket Number: B290665

Filed Date: 12/19/2019

Precedential Status: Precedential

Modified Date: 12/19/2019