Here we hold that a declaratory relief action filed in response to an attorney's letters threatening litigation over a contract dispute does not come within the provisions of a strategic lawsuit against public participation (SLAPP). (Code Civ. Proc., § 425.16.)
John Travolta, Atlo, Inc., a Delaware corporation, Constellation Productions, Inc., a California corporation, and Constellation Productions, Inc., a Florida corporation,
Between 1981 and 1987, Atlo employed Gotterba as an airplane pilot. In early 1987, Gotterba voluntarily left his employment with Atlo. The parties entered into a written termination agreement concerning employment matters such as updating and turnover of airplane logbooks, return of employer credit cards, discontinuation of telephone service, and cessation of medical insurance.
Gotterba asserts that a three-page termination agreement dated March 17, 1987, is the enforceable agreement between the parties. That unsigned agreement does not contain a confidentiality provision restricting Gotterba's disclosure of personal, confidential, or proprietary information obtained during the course of his employment with Atlo.
In contrast, Atlo insists that the enforceable termination agreement between the parties is a four-page agreement dated April 3, 1987, that includes this provision: "You hereby represent that you have not and will not disclose, communicate, use, nor permit the use of, in any fashion, any personal (i.e., those matters not customarily disclosed by Employer other than to insiders, in the case of [Atlo], or close friends in the case of Travolta), confidential or proprietary information about Employer or any principals of Employer that you obtained during your employment with Employer." This agreement appears to have been executed by Gotterba, Atlo, and Travolta. Atlo asserts that the three-page agreement upon which Gotterba relies is but an early draft of the termination agreement and was not executed by the parties.
Nearly 25 years following cessation of his employment with Atlo, Gotterba decided to "tell the story of his life and those involved in it," including his personal relationship with Travolta. According to Gotterba, he was "unwillingly thrust" into the gossip tabloids by public revelations from another former Travolta employee.
In June 2012, Atlo's attorney, Martin D. Singer, learned that Gotterba had given statements to a weekly newspaper, the National Enquirer, and that he planned to publish a book regarding his personal and intimate relationship with Travolta. On June 18, 2012, Singer sent a letter to Gotterba demanding that he cease making statements regarding his prior employment and relationship with Travolta. Singer warned Gotterba that he had breached the confidentiality provision of the termination agreement and "face[d] serious legal consequences." Singer continued: "We demand that you immediately cease and desist from your wrongful course of conduct which has subjected you to enormous liability and entitles my client to seek tens of millions of dollars in compensatory and punitive damages.... [¶] You proceed at your peril."
On August 30, 2012, Singer wrote to the attorney representing American Media, Inc. (AMI), the parent company of the National Enquirer, informed them that Gotterba's termination agreement contained a confidentiality provision, and included the relevant portion of the four-page agreement. Singer warned AMI that publication of Gotterba's statements would expose AMI "to significant liability for interference with contract." AMI later sent Gotterba's attorney a copy of Singer's letter and attachment.
On September 4, 2012, Gotterba's attorney wrote Singer, demanded that he retract his claim to AMI regarding a confidentiality provision, and threatened litigation against Atlo, Singer, and the law firm involved in drafting the 1987 termination agreement. On September 6, 2012, Singer responded and included a copy of the four-page termination agreement and a cover letter dated April 2, 1987, which was copied to "Stephen R. Jaffe, Esq." Singer stated that Gotterba "now faces significant liability," and that Atlo will respond to any lawsuit filed by Gotterba with an anti-SLAPP motion and a malicious prosecution action.
On November 29, 2012, Gotterba filed a first amended verified complaint against Atlo, alleging but one cause of action entitled "Non Monetary Declaratory Relief." Gotterba alleges that the four-page termination agreement "is not authentic," that he did not execute that agreement, and that no attorney, including Stephen R. Jaffe, represented him concerning the agreement. Gotterba seeks a judicial declaration whether the three-page agreement or the four-page agreement is the enforceable termination agreement between the parties, and whether a confidentiality provision, if one exists, is enforceable. He also states that a judicial declaration is necessary so that he may determine his rights and duties under the agreement and because Travolta "has repeatedly threatened legal action" against him "based upon alleged violations and prospective violations of the purported `confidentiality agreement.'" Attached to the first amended complaint are copies of the unexecuted three-page agreement and the executed four-page agreement.
On February 1, 2013, Atlo filed an anti-SLAPP motion to strike the first amended complaint, pursuant to section 425.16. Atlo asserted that Gotterba "filed this action to prevent Travolta from exercising his right to send [prelitigation demand] letters and/or suing to enforce the terms of the parties'
Atlo appeals and contends that the trial court erred by denying the anti-SLAPP motion.
Atlo asserts that Gotterba's declaratory relief lawsuit arises from the protected petitioning activity of prelitigation demand letters. (Varian Medical Systems, Inc. v. Delfino (2005) 35 Cal.4th 180, 193 [25 Cal.Rptr.3d 298, 106 P.3d 958] ["`[T]he point of the anti-SLAPP statute is that you have a right not to be dragged through the courts because you exercised your constitutional rights.'"].) Atlo relies upon Guessous v. Chrome Hearts, LLC (2009) 179 Cal.App.4th 1177 [102 Cal.Rptr.3d 214], to contend that the demand letters form the "actual controversy upon which to base the claim for declaratory relief." (Id. at p. 1186.)
We independently review the trial court's determination of each step of the analysis. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325-326 [46 Cal.Rptr.3d 606, 139 P.3d 2]; Silk v. Feldman (2012) 208 Cal.App.4th 547, 553 [145 Cal.Rptr.3d 484].) "`[W]e engage in the same two-step process as the trial court to determine if the parties have satisfied their respective burdens. [Citations.] If the defendant fails to show that the lawsuit arises from protected activity, we affirm the trial court's ruling and need not address the merits of the case under the second prong of the statute.'" (Talega Maintenance Corp. v. Standard Pacific Corp., supra, 225 Cal.App.4th 722, 728.)
Moreover, Gotterba's complaint does not seek a declaration regarding Atlo's communication with AMI or a declaration that any specific conduct by Gotterba or Atlo is permitted or not permitted by the termination agreement. The lawsuit also does not seek to curtail Atlo's right to send demand letters.
Acceptance of Atlo's arguments would lead to the absurd result that a person receiving a demand letter threatening legal action for breach of contract would be precluded from seeking declaratory relief to determine the validity of the contract. Declaratory relief would be limited to situations where the parties have not communicated their disagreement regarding an asserted breach of contract.
Country Side Villas Homeowners Assn. v. Ivie, supra, 193 Cal.App.4th 1110, involved an action for declaratory relief and attorney fees filed by a homeowners association against a homeowner who "spoke out against the members of her homeowners association board and management on matters that affected all members of the association," and who demanded the association's financial documents. (Id. at p. 1118.) The reviewing court concluded that the action "clear[ly] ... arose from [defendant's] ... right of free speech in criticizing and speaking out against [the association]." (Ibid.)
Levy v. City of Santa Monica, supra, 114 Cal.App.4th 1252, concerned an action for declaratory and injunctive relief and damages by the plaintiff homeowners against a city, city council member, and the plaintiff's neighbor. The plaintiffs sought declaratory relief that city council members be precluded from influencing city administrative staff regarding a playhouse built on the plaintiff's property. (Id. at p. 1257.) Levy reversed the trial court's ruling that SLAPP did not apply, and concluded that the city met its burden of establishing that the plaintiffs' action arose from protected speech. (Id. at p. 1258 ["[The neighbor's] act of contacting her representative and [the city council member's] act of contacting planning staff are petitions for grievances against the government protected by the First Amendment."].)
Guessous v. Chrome Hearts, LLC, supra, 179 Cal.App.4th 1177, involved an action between business competitors wherein the plaintiffs asserted claims for breach of contract and declaratory relief based upon the defendant's lawsuits filed in France in asserted violation of a covenant not to sue. (Id. at pp. 1180-1182.) Guessous held that "petitioning activity undertaken in a foreign county is not protected by the anti-SLAPP statute." (Id. at p. 1186.) In dictum, the reviewing court noted that the lawsuits in France formed the "actual controversy" upon which the plaintiffs' claims rested. (Ibid.) In contrast, Gotterba's lawsuit seeks a declaration regarding the terms of his termination agreement, not whether Atlo may send demand letters or threaten litigation.
In view of our discussion, we need not decide whether Gotterba established a probability that he will prevail on his claim. (Talega Maintenance Corp. v. Standard Pacific Corp., supra, 225 Cal.App.4th 722, 728 [court need not
The order is affirmed. Respondent shall recover costs on appeal.
Yegan, J., and Perren, J., concurred.