RD Instruments v. Rowe Technologies
Filed 5/17/13 Teledyne RD Instruments v. Rowe Technologies
CA4/1
California Rules of Court, rule 8.1115(a), prohibits courts
and parties from citing or relying on opinions not certified for publication or
ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for
publication or ordered published for purposes of rule 8.1115
COURT
OF APPEAL, FOURTH APPELLATE DISTRICT
DIVISION
ONE
STATE
OF CALIFORNIA
TELEDYNE RD INSTRUMENTS, INC.,
et al.,
Plaintiffs,
Cross-defendants and Respondents,
v.
ROWE TECHNOLOGIES, INC., et
al.,
Defendants,
Cross-complainants and Appellants.
D062330
(Super. Ct.
No. 37-2011-00096603-CU-BT-CTL)
APPEAL from
an order of the Superior Court
of
County, Timothy B. Taylor, Judge. Reversed and remanded with directions.
DLA Piper
US, Robert W. Brownlie and Veronica L. Jackson for Defendants,
Cross-complainants and Appellants.
Deforest,
Koscelnik, Yokitis, Skinner & Berardinelli, Will S. Skinner and Walter P.
Deforest; Knobbe, Martens, Olson & Bear and Boris Zelkind, for Plaintiffs,
Cross-defendants and Respondents.
This is an
appeal from an order granting an anti-SLAPP
motion and striking two causes of action from a cross-complaint. We hold the stricken causes of action did not
arise from activity protected by the anti-SLAPP statute and therefore reverse.
I.
FACTUAL
BACKGROUND
In August
2005, Teledyne Investment, Inc. (TII) entered into a stock purchase agreement
with RD Instruments, Inc. (RDI); the Rowe Family Trust; Francis Rowe; and
Elaine Rowe to buy all of the stock of RDI.
After the stock purchase, RDI was renamed Teledyne RD Instruments, Inc.
(TRDI) and continued in the business of underwater acoustics technology. TII later assigned its rights under the stock
purchase agreement to Teledyne Technologies, Incorporated (TDY). The stock purchase agreement contained
provisions that prohibited the sellers or their affiliates from competing with
TRDI/TDY and from soliciting its employees for five years (hereafter the
noncompetition and nonsolicitation clauses).
In
September 2005, TDY employed Steven Rowe, Daniel Rowe, Steve Maier, Mark Vogt,
John Romeo, and Changle Fang. Each of
them signed an agreement promising "promptly [to] disclose to TDY all
inventions, computer programs, improvements, concepts, or discoveries which
[he] may make, either solely or jointly with others, during [his] employment or
within six months after termination of such employment that may be within the
existing or contemplated scope of TDY's business" (hereafter the
disclosure clause). Francis Rowe
previously had signed an agreement with RDI that contained a similar disclosure
clause.
In
September 2009, Rowe Technologies, Inc. (RTI) was formed. RTI competes with TDY in the underwater
acoustics technology business. By
December 2009, Steven Rowe, Daniel Rowe, Steve Maier, Mark Vogt, John Romeo,
and Changle Fang were all employees of RTI.
II.
PROCEDURAL
BACKGROUND
In August
2011, TRDI; Teledyne RD Technologies (Shanghai) Co., Ltd.; and TDY
(collectively Teledyne) filed a complaint against RTI; Kunming Rowe Marine Instruments
Technology Development Co., Ltd.; the Rowe Family Trust; Francis Rowe; Elaine
Rowe; Steven Rowe; Daniel Rowe; Steve Maier; Mark Vogt; John Romeo; and Changle
Fang (collectively Rowe). Teledyne
sought damages and injunctive relief for breach of contract, misappropriation
of trade secrets, unfair competition, and several other torts.
Rowe
answered the complaint, and, after filing procedurally improper counterclaims
that were stricken by the trial court (see Code Civ. Proc., § 428.80
[counterclaims abolished]), filed a cross-complaint against Teledyne. In the cross-complaint, Rowe alleged the
disclosure clause was unenforceable because it interfered with the proprietary
rights of a competitor who had hired a former TDY employee, and made it more expensive
for the competitor to hire such an employee.
Rowe also alleged the noncompetition and nonsolicitation clauses
unfairly restricted competition and employee mobility because the five-year
restriction was longer than reasonably necessary to protect TDY's
investment. According to Rowe, Teledyne
"filed [its] sham suit for anticompetitive and strategic reasons,"
namely, "to increase a perceived rival's costs and to divert its perceived
rival's resources from product development." In the first and second causes of action of
the cross-complaint, Rowe alleged the noncompetition, nonsolicitation, and
disclosure clauses violated Business and Professions Code section 16600
and the unfair competition law (UCL; Bus & Prof. Code, § 17200 et
seq.); and it sought a declaration of their unenforceability and a permanent
injunction against their enforcement.
Teledyne
filed a special motion to strike the first and second causes of action of
Rowe's cross-complaint under the anti-SLAPP statute. Teledyne argued those claims were subject to
the statute because they arose from Teledyne's act of filing a complaint
against Rowe. Teledyne further argued
Rowe could not demonstrate a probability of success on the merits because (1) the
challenged claims are barred by the litigation privilege (see Civ. Code,
§ 47, subd. (b)(2) [publication or broadcast in judicial proceeding
is privileged]); (2) the noncompetition and nonsolicitation clauses are
necessary to protect Teledyne's investment and do not restrain competition for
an unreasonably long time period; and (3) the disclosure clause is
necessary to protect Teledyne's trade secrets.
Rowe
opposed Teledyne's special motion to strike.
Rowe argued its first and second causes of action did not trigger the
anti-SLAPP statute because those claims arose from Teledyne's use of illegal
agreements to restrict employee mobility and competition, and the allegation
that Teledyne filed its action as part of a plan to drive Rowe from the market
was "only incidental to the principal thrust of [those claims]." Rowe also argued it had a probability of
prevailing on the challenged claims for three reasons: (1) the litigation privilege did not
apply because Rowe could prove the claims without reference to Teledyne's
lawsuit; (2) the disclosure clauses were void under Business and
Professions Code section 16600 and interpretive case law; and
(3) Teledyne's use of the void disclosure clause constituted an unlawful
business practice under the UCL.
The trial
court granted Teledyne's special motion to strike. The court ruled:
"The gravamen of the [first] and
[second] counts alleged in the cross-complaint is the protected filing of the
complaint. The Rowe parties are the
masters of their own pleadings, and chose to allege in paragraph 36 of the cross[-]complaint
that plaintiffs 'filed this sham suit for anticompetitive and strategic
reasons.' Defendants were, o[f] course,
free to attempt to demonstrate as a defensive matter that the
restrictive covenants they signed in 2005 . . . were illegal and/or
unenforceable; indeed, they so alleged in their affirmative defenses. What they were not free to do,
however, was (in effect) sue plaintiffs for having sued them. This is classic SLAPP territory."
The court also ruled Rowe could not show a probability of
prevailing on its first and second causes of action because they were barred by
the litigation privilege (Civ. Code,
§ 47, subd. (b)(2)) and the Noerr-Pennington
doctrine (Mine Workers v. Pennington (1965)
381 U.S. 657, 670 ["Joint efforts to influence public officials do not
violate the antitrust laws even though intended to eliminate
competition."]; Eastern R. Conf. v.
Noerr Motors (1961) 365 U.S. 127, 138 [antitrust laws do not apply to
"solicitation of governmental action with respect to the passage and
enforcement of laws"]). Finally,
the court ruled Teledyne was entitled to attorney fees under the anti-SLAPP
statute, and ordered it to file a fee motion.
Rowe filed
a timely notice of appeal from the
order granting Teledyne's anti-SLAPP motion.
(See Code Civ. Proc., §§ 425.16, subd. (i), 904.1,
subd. (a)(13) [order granting anti-SLAPP motion is appealable].)
III.
DISCUSSION
Rowe contends the trial court erred
by granting Teledyne's special motion to strike because the causes of action of
the cross-complaint for violations of Business and Professions Code
section 16600 and the UCL do not arise from any act protected by the
anti-SLAPP statute, and neither cause of action is completely barred by the
litigation privilege or the Noerr-Pennington
doctrine. Teledyne contends the
trial court ruled correctly because Rowe sued Teledyne for suing Rowe, and the
challenged causes of action fail as a matter of law. Both parties seek an award of attorney fees
on appeal.
As we shall explain, the two causes
of action challenged by Teledyne did not arise from any
subject to being stricken under the anti-SLAPP statute. We therefore reverse the order granting
Teledyne's special motion to strike and remand the matter to the trial court
for a determination of Rowe's entitlement to attorney fees on appeal.
A. General Principles
Governing Anti-SLAPP Motions
Under the
anti-SLAPP statute, 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 or the California Constitution in connection
with a public issue" is subject to a special motion to strike unless the
party asserting the claim establishes a probability of prevailing on the
merits. (Code Civ. Proc., § 425.16,
subd. (b)(1).) As pertinent to this
appeal, an act in furtherance of the constitutional right of petition or free
speech includes any statement made in a judicial
proceeding or in connection with an issue under consideration by a judicial
body. (Id., § 425.16, subd. (e)(1), (2).) "Thus, statements, writings and
pleadings in connection with civil litigation are covered by the anti-SLAPP
statute, and that statute does not require any showing that the litigated
matter concerns a matter of public interest." (Rohde
v. Wolf (2007) 154 Cal.App.4th 28, 35.)
When a party files a special motion
to strike, the anti-SLAPP statute requires the court to engage in a two-step
process. First, the court determines
whether the moving party has made a threshold showing that the challenged cause
of action arises from protected activity.
(Equilon, supra, 29 Cal.4th at p. 67.)
The moving party's burden is to show the act from which the challenged
cause of action arises is within the scope of one of the categories listed in
Code of Civil Procedure section 425.16, subdivision (e). (Navellier
v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) Second, if the court finds the moving party
has made such a showing, it determines whether the nonmoving party has shown a
probability of prevailing on the claim, by pleading a legally sufficient claim
and supporting it with evidence that, if credited, would be sufficient to
sustain a judgment. (
considers the pleadings and any affidavits supporting or opposing the
motion. (Code Civ. Proc., § 425.16,
subd. (b)(2).) "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,
at p. 89.) We review an order
granting an anti-SLAPP motion de novo. (
51 Cal.4th 811, 820; Johnson v. Ralphs
Grocery Co. (2012) 204 Cal.App.4th 1097, 1103.)
B. Analysis of Teledyne's
Anti-SLAPP Motion
The first
step of our de novo review is to determine whether the causes of action
Teledyne moved to strike "aris[e] from" an act in furtherance of its
constitutional right of petition or free speech within the meaning of the
anti-SLAPP statute. (Code Civ. Proc.,
§ 425.16, subd. (b)(1).) The
statutory phrase "cause of action . . . arising from" (
underlying the nonmoving party's cause of action "must
of the right of petition or free speech" (City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78 (
consideration is whether the cause of action is based on the [moving party's] protected free speech or petitioning
activity." (Navellier, supra, 29
Cal.4th at p. 89.) "The
principal thrust of the claim, in terms of any 'allegedly wrongful and
injury-causing conduct . . . that provides the foundation for the
claim,' will determine the applicability of the anti-SLAPP statutory
scheme." (Young v. Tri-City Healthcare Dist. (2012) 210 Cal.App.4th 35, 55 (
Teledyne had the burden to show the challenged causes of action arose
from activity protected by the anti-SLAPP statute; and to determine whether
Teledyne met that burden, we examine the pleadings and any affidavits submitted
in connection with the anti-SLAPP motion.
(Code Civ. Proc., § 425.16, subd. (b)(2); Navellier, at pp. 88-89.)
In its
cross-complaint, Rowe complained of Teledyne's use of allegedly illegal
contractual provisions. In the first
paragraph, Rowe alleged the disclosure clause "improperly interferes"
with the mobility of former Teledyne employees; and for that reason, the clause
is void under Business and Professions Code section 16600 and its use
constitutes an unlawful and unfair business practice under the UCL. In the second paragraph, Rowe similarly
alleged that the noncompetition and nonsolicitation clauses "unreasonably
and unlawfully restrict[] competition for five years," and their use
therefore constitutes an unfair and unlawful business practice under the
UCL. Rowe further alleged that Teledyne
"filed this sham suit for anticompetitive and strategic reasons," and
that the timing of the suit and the assertion of "claims based on
unenforceable and unlawful agreements that restrain employee mobility and
competition[] demonstrate [Teledyne's] use of litigation as a sham to increase
a perceived rival's costs and to divert its perceived rival's resources from
product development." All of these
allegations were expressly incorporated into the first cause of action for
violation of section 16600 and the second cause of action for violation of
the UCL. As part of these causes of
action, Rowe sought a judgment declaring the challenged contractual provisions
void and unenforceable and an injunction prohibiting Teledyne from enforcing or
using them.
In a
declaration submitted in opposition to the anti-SLAPP motion, Daniel Rowe, the
chief executive officer of RTI, stated that he had signed an agreement
containing the disclosure clause when previously employed by TRDI. Mr. Rowe further stated that he is in
charge of RTI's hiring, and he would not want to hire an individual who was
required to disclose to a competitor any inventions the individual created for
RTI.
In responses
to interrogatories from Teledyne, which were attached to a declaration of
Teledyne's counsel submitted in support of the anti-SLAPP motion, Rowe stated
the facts supporting its contentions that Teledyne had violated Business and
Professions Code section 16600 and the UCL.
disclosure clause made it "less attractive" for a competitor to hire
a former Teledyne employee purportedly bound by the clause and also interfered
with the proprietary rights of a competitor that hired a former Teledyne
employee who then made an invention within six months of departing from
Teledyne. Rowe also stated that the
five-year term of the noncompetition and nonsolicitation clauses was excessive
because, "[b]ased on the annual sales of products, [Teledyne] recouped
[its] investment well before five years and then some."
Examination
of the allegations of the cross-complaint, the declaration of Daniel Rowe, and
the interrogatory responses submitted in connection with the special motion to
strike reveals that the gravamen or principal thrust of Rowe's first two causes
of action is that the disclosure, noncompetition, and nonsolicitation clauses
are illegal and unenforceable.
Teledyne's use of these clauses thus constitutes the " 'allegedly wrongful and
injury-causing conduct . . . that provides the foundation for the
claim[s].' " (Young,
supra, 210 Cal.App.4th at
p. 55.) In other words, the first
and second causes of action of Rowe's cross-complaint are "
practice of inserting allegedly unlawful provisions in its contracts. (Navellier,
supra, 29 Cal.4th at
p. 89.) Since this business
practice occurred years before Teledyne sued Rowe, Rowe's claims do not
"aris[e] from any act of [Teledyne] in furtherance of [its] right of
petition or free speech" within the meaning of the anti-SLAPP
statute. (Code Civ. Proc.,
§ 425.16, subd. (b)(1); see City
of Alhambra v. D'Ausilio (2011) 193 Cal.App.4th 1301, 1309 (
involving actual dispute between parties regarding validity of contract
provision was not a SLAPP].)
In support
of its contrary conclusion that Rowe's first and second causes of action fall
within "classic SLAPP territory," the trial court cited paragraph 36
of the cross-complaint, where Rowe alleged that Teledyne "filed this sham
suit for anticompetitive and strategic reasons." Teledyne cites several other references to
its lawsuit in Rowe's cross-complaint and interrogatory responses to argue the
trial court properly granted the anti-SLAPP motion. In paragraph 37 of the cross-complaint, Rowe
alleged: "Filing this action at the
time [it] did, as well as alleging claims based on unenforceable and unlawful
agreements that restrain employee mobility and competition, demonstrate
[Teledyne's] use of litigation as a sham to increase a perceived rival's costs
and to divert its perceived rival's resources from product
development." Similarly, in
paragraph 53, Rowe alleged: "On
information and belief, [Teledyne] filed this suit as a sham to increase
[Rowe's] costs and delay product development.
Therefore, such act is unlawful and unfair within the meaning of [the
UCL]." In paragraphs 44 through 47,
which concerned its request for declaratory relief, Rowe alleged the existence
of an actual controversy consisting of Teledyne's claims that Rowe breached the
disclosure, noncompetition, and nonsolicitation clauses and Rowe's cross-claims
that those clauses are unenforceable. In
its interrogatory responses, Rowe stated that "the true purpose of the
litigation is to use the litigation process, as opposed to an outcome of the
process, to increase defendants' costs."
Based on these various statements, Teledyne argues that it "could
not be . . . clearer" that its lawsuit "caused the controversy,"
and that Rowe's cross-complaint "is an attempt to inhibit [Teledyne's]
pursuit of [its] right of petition."
We are not persuaded.
Teledyne's
filing of its lawsuit against Rowe did not cause or give rise to the first two
causes of action of Rowe's cross-complaint so as to subject them to a special
motion to strike. To be sure, the act of
filing a complaint constitutes an act in furtherance of the constitutional
right of petition that is protected by the anti-SLAPP statute. (Code Civ. Proc., § 425.16,
subd. (e)(1); Navellier,
"was filed after protected activity took place," or "arguably
may have been 'triggered' by protected activity," does not mean the
cross-complaint arose from that activity for purposes of the anti-SLAPP
statute. (Navellier, at p. 89; see also Cotati, supra, 29 Cal.4th
at pp. 76-77 ["But the mere fact an action was filed after protected
activity took place does not mean it arose from that activity."].) Indeed, "[t]he Legislature expressly has
provided that a cross-action may 'arise[] out of the same transaction,
occurrence, or series of transactions or occurrences as the cause of action
which the plaintiff alleges' [citations], rather than out of that cause of
action itself." (
42 Cal.App.4th 628, 651 ["A compulsory cross-complaint on a 'related cause
of action' against the plaintiff [citation] would rarely, if ever, qualify as a
SLAPP suit arising from petition activity."].)
Here, the actual controversy giving
rise to both parties' pleadings is their dispute over the validity of the
disclosure, noncompetition, and nonsolicitation clauses. By its complaint, Teledyne seeks to enforce
the clauses against Rowe; and by its cross-complaint, Rowe seeks to void the
clauses. The transactions giving rise to
the dispute occurred well before and existed independent of Teledyne's
commencement of litigation against Rowe.
Therefore, Rowe's first and second causes of action did not
"aris[e] from" Teledyne's lawsuit and were not subject to a special
motion to strike. (Code Civ. Proc.,
§ 425.16, subd. (b)(1); see Cotati,
supra, 29 Cal.4th at p. 80
[plaintiff's state court action for declaratory relief filed in response to
defendants' similar federal court action was not subject to anti-SLAPP statute
because both actions arose out of parties' dispute over constitutionality of
ordinance]; Kajima Engineering &
Construction, Inc. v. City of Los Angeles (2002) 95 Cal.App.4th 921, 933 (
anti-SLAPP statute because it arose out of same business transactions from
which complaint arose and did "not arise 'out of the litigation process
itself' "].)
We also
reject Teledyne's related argument that the multiple references to its
"sham" litigation contained in Rowe's cross-complaint and
interrogatory responses indicate Rowe is trying to stifle petitioning activity
protected by the anti-SLAPP statute. A
party to an ordinary private dispute cannot invoke the anti-SLAPP statute
simply because the challenged pleading contains some references to the party's
protected speech or petitioning activity.
(Martinez v. Metabolife Internat.,
Inc. (2003) 113 Cal.App.4th 181, 188.)
If the reference to protected activity is only incidental to a cause of
action essentially based on nonprotected activity, the anti-SLAPP statute does
not apply. (Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265, 272 (
SLAPP, the trial court should distinguish between (1) speech or
petitioning activity that is mere evidence
related to liability and (2) liability that is based on speech or petitioning activity." (Graffiti
Protective Coatings, Inc. v. City of Pico Rivera (2010) 181 Cal.App.4th
1207, 1214-1215.) Hence, the court must
focus on " '[t]he
allegedly wrongful and injury-producing conduct . . . that provides
the foundation for the claim.'
[Citation.] If the core
injury-producing conduct upon which the [challenged] claim is premised does not
rest on protected speech or petitioning activity, collateral or incidental
allusions to protected activity will not trigger application of the anti-SLAPP
statute." (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th
1264, 1272.)
The
repeated references to Teledyne's purportedly improper litigation activities
contained in Rowe's cross-complaint and interrogatory responses were merely
collateral or incidental to its causes of action. "For purposes of anti-SLAPP analysis,
. . . an alleged act is incidental to a claim, and incidental to any
unprotected activity on which the claim is based, only if the act is not
alleged to be the basis for liability."
(Wallace v. McCubbin (2011)
196 Cal.App.4th 1169, 1183.) Thus, to
determine whether or not a reference to protected activity is merely
incidental, "[t]he question should be whether the [nonmoving party] is
seeking relief from the [moving party] for its protected communicative
acts." (Young, supra, 210
Cal.App.4th at p. 55.) Here, in its
cross-complaint and interrogatory responses Rowe disparaged Teledyne's lawsuit
as a "sham" and asserted the lawsuit was designed to increase Rowe's
costs, but it did not seek damages or any other form of relief for Teledyne's
litigation activity. Rather, on the two
causes of action targeted by the anti-SLAPP motion, Rowe sought
disclosure, noncompetition, and nonsolicitation clauses were void and
unenforceable and a permanent injunction prohibiting Teledyne from enforcing or
using such clauses.
title="">[4] Thus, Rowe's cross-complaint "does not
allege that [Teledyne's] filing of [its] lawsuit gives rise to any additional
liability, but that the lawsuit evidenced [Teledyne's anti-competitive use of
the challenged contractual provisions]."
(Aguilar v. Goldstein (2012)
207 Cal.App.4th 1152, 1161.) In other
words, Rowe's references to Teledyne's lawsuit "purport to describe
[Teledyne's] pattern and practice with respect to [using the challenged
contractual provisions] in general; they do not seek to impose liability based
on acts taken in furtherance of [Teledyne's] right to petition the courts for
the wrongs allegedly committed by [Rowe] with regard to [breaches of those
provisions]." (Kajima, supra, 95 Cal.App.4th
at p. 931.) Accordingly, because
Rowe's "mention of protected activity is 'only incidental' to a business
dispute based on nonprotected activity," the anti-SLAPP statute does not
apply. (Baharian-Mehr, supra, 189
Cal.App.4th at p. 273; see also Wang
v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 809
[anti-SLAPP statute inapplicable when "overall thrust of the complaint
challenges the manner in which the parties privately dealt with one another
. . . and does not principally challenge the collateral activity of
pursuing governmental approvals"].)
We are not
persuaded to reach a different conclusion by any of the cases Teledyne cites in
support of its contention the anti-SLAPP statute applies to Rowe's
cross-complaint. Teledyne relies on
where the appellate courts held declaratory relief actions filed in response to
Proposition 65 intent-to-sue notices were SLAPP's because the service of such a
notice is protected activity, and without the notices there would have been no
basis for the plaintiffs to seek declaratory relief regarding their compliance
with Proposition 65. Similarly, in
the defendant for fraudulent inducement of a release negotiated in an earlier
federal lawsuit and for breach of the release.
Our Supreme Court held the anti-SLAPP statute applied because "but
for the federal lawsuit and [the defendant's] alleged actions taken in
connection with that litigation, plaintiffs' present claims would have no
basis." (Id. at p. 90.) Here,
however, if Teledyne had not sued Rowe, the first two causes of action of
Rowe's cross-complaint would still have a basis, namely, the parties' business
dispute over the validity and enforceability of the disclosure, noncompetition,
and nonsolicitation clauses.
Other cases on which Teledyne
relies are also not on point. For
example, in Mann v. Quality Old Time
Service, Inc. (2004) 120 Cal.App.4th 90, 104, we held the anti-SLAPP
statute applied when reports to governmental agencies, a petitioning activity
protected by the anti-SLAPP statute, "formed a substantial part of the
factual basis" of the challenged claims.
Likewise, in Raining Data Corp. v.
Barrenechea (2009) 175 Cal.App.4th 1363, 1368-1369, 1371, a cross-complaint
was held to be a SLAPP because two of its causes of action "by definition
ar[o]se from the protected activity of [the plaintiff's] filing of its
complaint," the "remaining causes of action present[ed] a classic
case of mixed claims of protected and nonprotected activity," and the
cross-complaint "include[d] a single specific allegation of [the
plaintiff's] conduct causing harm to defendants that [was] not directly related
to [the] filing of the complaint."
As we have already explained, however, Rowe's references to Teledyne's
lawsuit in the cross-complaint and interrogatory responses did not form a
substantial part of the causes of action challenged by Teledyne's anti-SLAPP
motion. The references were merely
incidental to claims the principal thrust of which was that Teledyne uses the
disclosure, noncompetition, and nonsolicitation clauses unlawfully to restrict
competition.
In sum, we
conclude the trial court erred when it ruled the gravamen of Rowe's claims for
violations of Business and Professions Code section 16600 and the UCL was
Teledyne's filing its complaint against Rowe and, on that basis, struck the
claims pursuant to the anti-SLAPP statute.
Since those claims did not arise from any activity by Teledyne that is
protected by the anti-SLAPP statute, we need not, and do not, decide whether
Rowe satisfied its burden to show a probability of prevailing on those
claims. (See, e.g., Cotati, supra,
to decide whether nonmoving party established probability of prevailing when
its claim did not arise from protected activity]; Young, supra, 210
Cal.App.4th at p. 59 [same].) As a
further consequence of our holding, Teledyne was not the prevailing party
entitled to attorney fees incurred in connection with the anti-SLAPP
motion. (Code Civ. Proc., § 425.16,
subd. (c)(1); People ex rel.
Strathmann v. Acacia Research Corp. (2012) 210 Cal.App.4th 487, 505.) The trial court's contrary determination thus
constituted error.
C. Attorney Fees on Appeal
As noted
earlier, both parties have requested an award of attorney fees on appeal. A nonmoving party who defeats an anti-SLAPP
motion is entitled to recover reasonable attorney fees if the trial court finds
the motion was "frivolous" or "solely intended to cause
unnecessary delay." (Code Civ.
Proc., § 425.16, subd. (c)(1).)
A statute that authorizes an award of attorney fees for trial court
proceedings also includes fees for appellate proceedings unless the statute
specifically provides otherwise. (
preclude recovery of appellate attorney fees; hence attorney fees recoverable
under the statute include appellate fees."
(Carpenter v. Jack in the Box
Corp. (2007) 151 Cal.App.4th 454, 461.)
As the prevailing party on appeal, Rowe is entitled to recover attorney
fees reasonably incurred in prosecuting this appeal if the trial court finds
Teledyne's anti-SLAPP motion was frivolous or filed solely to cause unnecessary
delay. On remand, the trial court shall
make this determination and shall determine the amount of fees (if any) to be
awarded upon motion by Rowe.
DISPOSITION
The order granting Teledyne's special motion to strike
under the anti-SLAPP statute and determining Teledyne was entitled to attorney
fees is reversed. On remand, upon motion
by Rowe the trial court shall determine Rowe's entitlement to attorney fees
incurred in connection with this appeal.
IRION, J.
WE CONCUR:
McCONNELL, P. J.
HUFFMAN,
J.
name="_ftn1" title="">[1] SLAPP is an acronym for strategic lawsuit against public
participation, i.e., a lawsuit "brought primarily to chill the valid
exercise of the constitutional rights of freedom of speech and petition for the
redress of grievances." (Code Civ.
Proc., § 425.16, subd. (a); see Equilon
Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 57 &
fn. 1 (Equilon).)
name="_ftn2" title="">[2] Business and Professions Code section 16600
provides: "Except as provided in
this chapter, every contract by which anyone is restrained from engaging in a
lawful profession, trade, or business of any kind is to that extent void."
