Witt v. Landis
Appellant was employed by Firsthand Capital Management, Inc. (Firsthand), a San Jose-based investment management company that provided investment advice to certain mutual funds. The president, chief executive officer, and majority shareholder of Firsthand is respondent Kevin M. Landis (Landis). Witt was terminated in April 2003 after seven years of employment with Firsthand. Shortly before his termination, he and Landis entered into a one-page agreement (drafted by Witt and his attorney-wife) entitled Privacy Agreement that is the subject of the instant appeal. Witt brought a wrongful termination suit against Firsthand and Landis in August 2003. In the second amended complaint, Witt asserted a claim for breach of the Privacy Agreement. Landis in turn filed a cross-complaint against Witt for breach of the same agreement. Witt moved to strike the cross-complaint under the anti-SLAPP (strategic lawsuits against public participation) statute, Code of Civil Procedure section 425.16.[1] Witt alleged in the motion that Landis, through the cross-complaint, was seek[ing] to have Witt pay speculative damages for allegedly exercising his First Amendment right to criticize [Firsthand] in a public forum and his constitutional right to seek redress for his grievances. The court below denied the motion.
Witt appeals from that order. He claims that the motion to strike should have been granted because (1) he established that the activity that was the subject of the cross complaint was protected speech under the anti SLAPP statute, and (2) Landis failed to meet his burden of demonstrating a probability of success. Witt contends (among other things) that the confidentiality provisions of the Privacy Agreement that he allegedly breached must be construed as applying only to the public disclosure of information shared privately between Witt and Landis after execution of the agreement. Because (Witt argues) the parties had no post-execution private communications, Landiss breach of contract claim is without merit. Court agree with the trial court that the agreement is ambiguous and is reasonably susceptible to Landiss interpretation that it prohibits disclosure of pre-execution private communications. Court therefore conclude that Landis met his burden under section 425.16 of establishing that his claim was meritorious. Accordingly, Court affirm the order denying the anti-SLAPP motion to strike.
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