Doe v. Olson

Filed 8/30/19 Doe v. Olson CA2/8
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
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has not been certified for publication or ordered published for purposes of rule 8.1115.
IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION EIGHT
JANE DOE,
Plaintiff, Cross-defendant, and
Respondent,
v.
CURTIS OLSON,
Defendant, Cross-complainant,
and Appellant.
B286105
(Los Angeles County
Super. Ct. No. SC126806)
APPEAL from a judgment of the Superior Court of Los
Angeles County, Craig D. Karlan, Judge. Affirmed in part and
reversed in part.
Buchalter, Eric Kennedy, and Robert M. Dato for
Defendant, Cross-complainant, and Appellant.
Martinez Business & Immigration Law Group and
Gloria P. Martinez-Senftner for Plaintiff, Cross-defendant, and
Respondent.
_________________________

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INTRODUCTION
In seeking a civil harassment restraining order, Jane Doe
accused Curtis Olson of sexual harassment and other misconduct.
The two parties settled the action via mediation by agreeing in
writing “not to disparage one another” for three years. Within a
year, Doe filed administrative agency complaints and a civil
complaint against Olson, repeating the same disparaging
allegations at issue in the prior action. Olson responded with a
cross-complaint accusing Doe of breach of contract and seeking
specific performance of the mediation agreement.
On appeal, we face the following question: as a matter of
law, are Doe’s allegations protected by the litigation privilege,
precluding Olson’s causes of action for breach of contract and
specific performance? The answer is a yes and a no. We hold
Olson’s cause of action for breach of contract is precluded as to
Doe’s statements included in her administrative complaints. We
hold Olson’s breach of contract cause of action is not precluded as
to Doe’s statements included in her civil action. For the reasons
stated herein, the cause of action for specific performance fails in
its entirety.
FACTUAL AND PROCEDURAL BACKGROUND
A. Relevant Factual Background
Jane Doe (Doe) and Curtis Olson (Olson) worked together
to acquire and preserve a historic apartment building (the
Building) on Wilshire Boulevard in Los Angeles. Olson acquired
the building, converted it to eight condominium units and—with
Doe’s help—successfully had the Building listed on the National
Register of Historic Places.

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Olson became the owner of the building, a part-time
resident of one of the eight condominium units, and the president
of the Building’s Homeowners Association (HOA) Board from
2013 to January 2016. Doe secured for herself a condominium
unit in the Building in return for her “sweat equity” in connection
with the time she spent “saving [the Building] by making it a
historic landmark[.]”
B. Doe’s Application for a Civil Harassment Restraining Order
On October 13, 2015, Doe applied for a civil harassment
restraining order (CHRO) against Olson. She described many
instances of harassment by Olson, most recently on
September 24, 2015, when Olson “sexually forced himself on
[her],” “jumped on [her], pushed [her] down, pinned himself ontop
[sic] of [her],” and grabbed her hair, face, and breasts. Doe’s
“friends were present and saw this happen.” Doe notified the
property manager who, in turn, told her: “Olson was warned to
stay away from you[,] but he won’t listen[.] What he is doing is
illegal[.] Call the Police!”
Doe described numerous occasions where Olson peeped into
her place of residence and attempted to take photos of her while
she was in her bedroom or bathroom. Doe described how Olson
“hire[d] other people to harass” her and to “peep photograph[s] of
[her].” Doe alleged two peeping incidents occurred on
September 5, 2015, when witnesses saw Olson “repeatedly
looking into [her] windows and back door which is on the opposite
side of his condo unit”; Doe ultimately reported Olson to the
police.
Doe also alleged Olson verbally yelled and swore
obscenities at her in their “complex public common areas, on the
phone and in letters.” She alleged Olson threatened her life and

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reminded her that he “has a ‘club’ that can kill [her] because he is
so wealthy.” Doe alleged Olson also had his friends harass her
and call her obscene names.
In applying for the CHRO, Doe requested that the court
issue personal conduct orders against Olson, requiring him not
to: 1) harass, intimidate, attack, or threaten Doe; and 2) contact
her, either directly or indirectly, in any way. Doe also requested
that the court issue stay-away orders, requiring Olson to stay
away from Doe, her home, her place of work, her vehicle, her
garage, and her basement storage unit in the building.
The court issued a temporary restraining order granting
Doe’s requested personal conduct orders as to Olson, but denying
her request for a stay-away order.
In opposing Doe’s request for a CHRO, Olson vehemently
denied what he called “numerous outrageous and ridiculous
allegations” about his alleged conduct generally and on
September 5, 2015 and September 24, 2015. As to the alleged
sexual assault allegations of September 24, 2015, Olson declared
he was in Orange County the entire day with his daughter and
son and his “children’s nanny will testify to this fact.” He
referred to the HOA’s “well-documented history of problems with
[Doe] in connection with her use and residency” at the Building,1
and described Doe’s CHRO application as “a calculated attempt
1 The HOA’s history of alleged problems with Doe include,
inter alia: 1) Doe listing her unit on the AirBnB website as a
short-term vacation rental unit for her “personal financial gain”
in violation of the building’s covenants, conditions, and
restrictions (CC&Rs); and 2) Doe using the building’s common
area “as a film location” without HOA approval.

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[by Doe] to gain leverage and perhaps some measure of
retribution against [Olson] because of the [HOA]’s enforcement
actions . . . and [Olson’s] role as [HOA] [p]resident . . . .” Olson
believed Doe’s CHRO application was retaliatory because, less
than four weeks earlier, Doe had received from HOA legal
counsel a notice to cease and desist her violations of the CC&Rs.
At the CHRO hearing, the trial court referred the parties to
mediation supervised by a volunteer mediator for the California
Academy of Mediation Professionals (CAMP). That same day,
the parties entered into a one-page “Mediation Agreement” and a
one-page “Mediation/Confidentiality Agreement” (collectively
referred to as Mediation Agreement). Pursuant to the Mediation
Agreement, Doe’s CHRO case against Olson was dismissed
without prejudice. The Mediation Agreement provides, in
relevant part:
(1) “CAMP and the parties to this mediation agree that
the provisions of California Evidence Code Section 1119
apply to this mediation.”2
(2) The Mediation Agreement “shall be admissible in
any subsequent proceeding to prove the existence of the
2 The effect of Evidence Code section 1119 was described in
great detail in the Mediation Agreement, putting both parties on
notice that “all communications, negotiations, or settlement
discussions by and between participants in the course of this
mediation shall remain confidential” and that “evidence of
anything said, or admissions made . . . in the course of . . . this
mediation” shall be inadmissible “in any arbitration,
administrative adjudication, civil action, or other non criminal
proceedings in which, pursuant to law, testimony can be
compelled to be given.”

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agreement and/or enforce said agreement.” (Italics
added.)
(3) Olson “denies each and every allegation made by
[Doe] in the dispute.”
(4) “This agreement is made voluntarily by mutual
agreement of the parties . . . .” (Italics added.)
(5) “The parties agree not to contact or communicate
with one another or guests accompanying them, except
in writing and/or as required by law. [¶] . . . Should
the parties encounter each other in a public place or in
common areas near their residences, they shall seek to
honor this agreement by going their respective
directions away from one another.” (Italics added.)
(6) “The parties agree not to disparage one another.”
(7) “The term of this agreement shall be three (3) years.”
(8) “By signing this agreement, the parties acknowledge
that they have read and understand the information
contained herein,” and acknowledge that Evidence Code
section 1119 applies to this mediation.
C. Doe’s Administrative Complaints
On August 12, 2016, about nine months after executing the
Mediation Agreement, Doe filed an administrative complaint
against Olson with the U.S. Department of Housing and Urban
Development (HUD). Doe alleged “discrimination based on sex
and gender,” that Olson “subjected [Doe] to unwanted sexual
comments and touching,” “stalked her,” took pictures of her
“while she is in the bathroom and in her bedroom,” and “used his
position as [HOA] board president to direct the maintenance man
to install cameras in [Doe]’s unit.”

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HUD thereafter referred Doe’s administrative complaint to
the California Department of Fair Employment and Housing
(DFEH). On September 16, 2016, DFEH indicated it would
investigate the allegations and grievances set forth in the
HUD/DFEH complaint.
D. Underlying Civil Action
1. Doe’s Civil Complaint
On December 9, 2016, three months after filing the
HUD/DFEH complaints, Doe filed a civil action for damages,
alleging sexual battery, assault, tortious interference with
economic or prospective economic advantage, interference with
quiet use and enjoyment of real property, intentional and/or
negligent infliction of emotional distress, defamation and/or false
light, breach of fiduciary duty, aiding and abetting breach of
fiduciary duty, discrimination based on ethnicity, discrimination
based on marital status, discrimination based on perceived
religion, invasion of privacy and/or stalking, distribution of
obscene materials without consent, quiet title of prescriptive
easement, and declaratory relief. The complaint named Olson,
the HOA, and various HOA board members, most of whom Doe
alleged are Olson’s “wealthy white ‘club’ friends and agents [who]
aid[ed] and abet[ted] him in punishing [Doe], by stalking,
defaming, discriminating, harassing, and a host of other
outrageous actions.”
In the civil complaint, Doe alleged Olson’s “romantic
advances” towards her began as early as July 2002, despite Doe
having just met Olson’s pregnant wife the preceding month. Doe
alleged Olson called her “mistress material” because she “was a
low status, low income minority . . . .” According to Doe, after she
rejected Olson’s “sexual advances, a pattern of retaliatory events”

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took place where “Olson and his [HOA] friends hatched an
unending series of schemes to discriminate and harass [her].”
Doe described many instances of harassment and discrimination
she suffered at the hands of Olson and his “club” friends since
2002. She recalled having been defamed by Olson and his
“cronies” on multiple occasions, having been called, among other
things, “a prostitute,” “a liar,” and a “crazy psycho-bitch.” She
also recalled Olson and one of his friends asking her if she were a
Jew. The friend also happened to own a condominium and reside
at the Building. Finally, Doe described various examples of what
she perceived to be “an abuse of the Board’s power,” including the
new president of the HOA authorizing the building’s
maintenance man “to steal [Doe]’s lockbox and Unit keys . . . .”
2. Olson’s Cross-Complaint
On May 18, 2017, Olson filed a cross-complaint against
Doe, asserting causes of action for breach of contract and specific
performance. “Doe similarly accuse[d] Olson of unlawful conduct,
including sexual battery, assault, infliction of emotional distress,
misogyny, anti-Semitism, invasion of privacy, and stalking. Doe’s
claims against Olson in this action are based on the same
allegations she made in connection with her application for a
restraining order and in filing her HUD Complaint and her
[DFEH] Complaint.” Olson argued that by repeating the
allegations set forth in Doe’s previously filed (and later
dismissed) CHRO application, she stood in violation of the
Mediation Agreement’s non-disparagement clause.

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With respect to the breach of contract claim, Olson alleged
he had complied with his obligations under the Mediation
Agreement; Doe, however, had breached the Mediation
Agreement by filing the HUD/DFEH complaints and the
underlying civil complaint, “each of which contain statements
and allegations which disparage Olson” within the three-year
time period where the parties agreed “not to disparage one
another.” With respect to the specific performance claim, Olson
contended he had “no plain, speedy, and adequate legal remedy
that would be as efficient to attain the ends of justice and its
prompt administration, as a judicial decree for specific
performance requiring Doe to withdraw and dismiss all claims” in
her HUD/DFEH complaints and the underlying civil complaint.
According to Olson, in the HUD/DFEH complaints and the civil
action, Doe “disparaged [him] by resurrecting and leveling the
same false allegations that she previously made in connection
with her application for a restraining order – i.e., the same
application she dismissed as part of the Mediation Agreement.”
3. Doe’s Special Motion to Strike Olson’s Cross-
Complaint
On July 17, 2017, Doe filed a special motion to strike
Olson’s cross-complaint as a strategic lawsuit against public
participation under the anti-SLAPP statute, citing Code of Civil
Procedure section 425.16, subdivisions (b)(1), (e)(1), and (e)(4).3
She argued Olson’s cross-complaint was “retaliatory litigation”
meant to chill and “discourage Doe’s rights of freedom of speech
3 All further undesignated statutory references are to the
Code of Civil Procedure, unless otherwise indicated.

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and right to petition the courts and the executive branch for
redress of grievances.” She contended Olson’s “oppressive
conduct has constitutional implications which are protected by . .
. § 425.16 and . . . Civil Code § 47. Consequently, . . . the burden
shifts to Olson to present admissible evidence establishing a
probability that he will prevail on his [breach of contract and
specific performance] claims.” Doe believed Olson could not meet
that burden.
In opposition, Olson argued that because Doe entered into a
valid agreement “not to disparage the other to any other party,”
she effectively waived her right to invoke the protection of the
anti-SLAPP statute. Olson contended that Doe, having repeated
the same disparaging accusations she made in support of her
CHRO case, had breached the non-disparagement clause of the
Mediation Agreement.
4. The Trial Court’s Ruling
On September 20, 2017, the trial court granted Doe’s
special motion to strike Olson’s cross-complaint for breach of
contract and specific performance. As to the first prong, the court
ruled Doe met her burden to establish that her “three filings [i.e.,
the HUD/DFEH complaints and the civil complaint] are protected
activity.” As to the second prong, the court found the litigation
privilege precluded Olson’s two causes of action; the court thus
did not reach or analyze whether Olson demonstrated a
probability of prevailing on his claims.
Olson timely appealed.

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DISCUSSION
A. Applicable Law
Section 425.16 provides, inter alia, that “[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 shall be subject to a special motion to strike,
unless the court determines that the plaintiff has establishes that
there is a probability that the plaintiff will prevail on the claim.”
(§ 425.16, subd. (b)(1).) An “ ‘act in furtherance of a person’s right
of petition or free speech . . . in connection with a public issue’ ” is
defined in section 425.16 to include, in relevant part: “any
written or oral statement or writing made before a legislative,
executive, or judicial proceeding, or any other official proceeding
authorized by law,” and “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.” (§ 425.16, subd. (e).)
The Legislature enacted section 425.16 to prevent and
deter “lawsuits brought primarily to chill the valid exercise of the
constitutional rights of freedom of speech and petition for the
redress of grievances.” (§ 425.16, subd. (a).) Thus, the purpose of
the anti-SLAPP law is “not [to] insulate defendants from any
liability for claims arising from the protected rights of petition or
speech. It only provides a procedure for weeding out, at an early
stage, meritless claims arising from protected activity.” (Baral v.
Schnitt (2016) 1 Cal.5th 376, 384 (Baral).)
When a party moves to strike a cause of action (or portion
thereof) under the anti-SLAPP law, a trial court evaluates the
special motion to strike by implementing a two-prong test:

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(1) Has the moving party “made a threshold showing that the
challenged cause of action arises from protected activity”
(Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056 (Rusheen)); and if
it has, (2) has the non-moving party demonstrated that the
challenged cause of action has “minimal merit” by making “a
prima facie factual showing sufficient to sustain” a judgment in
its favor? (Baral, supra, 1 Cal.5th at pp. 384–385; Navellier v.
Sletten (2002) 29 Cal.4th 82, 93–94 (Navellier I); see also
§ 425.16, subd. (b)(1)). Thus, after the first prong is satisfied by
the moving party, “the burden [then] shifts to the [non-moving
party] to demonstrate that each challenged claim based on
protected activity is legally sufficient and factually
substantiated.” (Baral, at p. 396.)
B. Standard of Review
We review a trial court’s ruling on a special motion to
strike pursuant to section 425.16 under the de novo standard.
(Monster Energy Company v. Schechter (2019) 7 Cal.5th 781, 788
(Monster); Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1067 (Park).) “In other words,
we employ the same two-pronged procedure as the trial court in
determining whether the anti-SLAPP motion was properly
granted.” (Mendoza v. ADP Screening & Selection Services, Inc.
(2010) 182 Cal.App.4th 1644, 1652.)
As always, “our job is to review the trial court’s ruling, not
its reasoning.” (People v. Financial Casualty & Surety, Inc.
(2017) 10 Cal.App.5th 369, 386.) 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).) In
considering the pleadings and declarations, we do not make
credibility determinations or compare the weight of the evidence;

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instead, we accept the opposing party’s evidence as true and
evaluate the moving party’s evidence only to determine if it has
defeated the opposing party’s evidence as a matter of law.
(Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260,
269, fn. 3 (Soukup).)
C. Prong 1: Arising from Protected Activity
Doe’s initial burden is to show that Olson’s two causes of
action against her for breach of contract and specific performance
arise from protected activity. (Park, supra, 2 Cal.5th at p. 1061.)
At the trial court level and on appeal, Olson concedes—as
he must—that filing documents in court is petitioning activity
protected by section 425.16, subdivision (e)(1). (See Birkner v.
Lam (2007) 156 Cal.App.4th 275, 281 [“ ‘[t]he constitutional right
to petition . . . includes the basic act of filing litigation or
otherwise seeking administrative action’ ”]; City of Colton v.
Singletary (2012) 206 Cal.App.4th 751, 766 [same].)
We agree. Doe’s filing of the HUD/DFEH complaints and
the civil action against Olson were acts in furtherance of her
constitutional right of petition and are protected activity for
purposes of the anti-SLAPP statute. The first prong of the two-
step anti-SLAPP test/analysis is satisfied.
D. Prong 2: Probability of Prevailing on the Claims
Olson contends the trial court’s order granting Doe’s anti-
SLAPP motion should be reversed because the litigation privilege
did not preclude his causes of action for breach of contract and
specific performance.
Accordingly, we must determine whether the litigation
privilege applies. If it does not, then we must determine whether
Olson has shown that his claims otherwise have minimal merit.

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1. Litigation Privilege
Civil Code section 47 provides, in relevant part: “A
privileged publication or broadcast is one made: [¶] . . . [¶] . . .
In any . . . judicial proceeding, [and/or] in any other official
proceeding authorized by law . . . .” (Id., subd. (b).)
The litigation privilege is “relevant to the second step in the
anti-SLAPP analysis in that it may present a substantive defense
a plaintiff must overcome to demonstrate a probability of
prevailing.” (Flatley v. Mauro (2006) 39 Cal.4th 299, 323.) Thus,
Olson cannot establish a probability of prevailing if the litigation
privilege precludes a finding of liability on Olson’s two causes of
actions.
The principal purpose of the litigation privilege is to afford
litigants and witnesses the utmost freedom of access to the courts
without fear of harassment in subsequent derivative actions.
(Action Apartment Assn., Inc. v. City of Santa Monica (2007)
41 Cal.4th 1232, 1241.) “The usual formulation is that the
privilege applies to any communication (1) made in judicial or
quasi-judicial proceedings; (2) by litigants or other participants
authorized by law; (3) to achieve the objects of the litigation; and
(4) that have some connection or logical relation to the action.”
(Silberg v. Anderson (1990) 50 Cal.3d 205, 212 (Silberg).) The
privilege is “not limited to statements made during a trial or
other proceedings, but may extend to steps taken prior thereto, or
afterwards.” (Rusheen, supra, 37 Cal.4th at p. 1057.) “[W]hether
the litigation privilege applies to an action for breach of contract
turns on whether its application furthers the policies underlying
the privilege.” (Wentland v. Wass (2005) 126 Cal.App.4th 1484,
1492 (Wentland).)

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a. HUD/DFEH Complaints
One of the policies underlying the privilege is to “ ‘ “protect
citizens from the threat of litigation for communications to
government agencies whose function is to investigate and remedy
wrongdoing.” ’ ” (McNair v. City and County of San Francisco
(2016) 5 Cal.App.5th 1154, 1163.) Based on the Silberg factors
and as it relates to Doe’s administrative complaints with
HUD/DFEH, we believe it goes without saying that both HUD
and DFEH are governmental and administrative bodies of the
United States and California, respectively, that hold “judicial or
quasi-judicial” proceedings. We believe Doe’s communications
with HUD leading up to the filing of her administrative
complaints and the HUD/DFEH complaints themselves were
statements made or steps taken prior to a proceeding on Doe’s
alleged housing discrimination at Olson’s hands. (See Rusheen,
supra, 37 Cal.4th at p. 1058; Wise v. Thrifty Payless, Inc. (2000)
83 Cal.App.4th 1296, 1303 (Wise) [“The privilege extends beyond
statements made in the proceedings, and include statements
made to initiate official action.”].) We also find that Doe was
within her right to make the allegations and file the complaints
with HUD/DFEH, as she alleged she was subjected to unlawful
practices by Olson under the Fair Employment and Housing Act
(FEHA) (Gov. Code, § 12900 et seq.). Her statements are directly
connected to the ensuing investigation by the DFEH.
We believe, as did the trial court, that Vivian v.
Labrucherie (2013) 214 Cal.App.4th 267 (Vivian) is dispositive.
In Vivian, the reviewing court held that the litigation privilege
precluded a breach of contract claim brought by a deputy sheriff
against his ex-wife. (Id. at pp. 276-277.) The ex-wife made
statements about him in response to an inquiry by the county

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sheriff’s internal affairs department. The deputy alleged his ex-
wife’s statements violated the non-disparagement clause of a
written agreement they had previously executed in a temporary
restraining order action. As part of a settlement, each party had
agreed “ ‘not to disparage the other to any other party.’ ” (Id. at
pp. 270–271, 276–277.) He also argued his ex-wife had waived
the privilege and the protection of the anti-SLAPP statute by
signing the agreement. (Ibid.)
The Vivian court considered three decisions addressing the
intersection of breach of contract by “prohibited” speech and the
litigation privilege. In Navellier I, our Supreme Court declared,
“a defendant who in fact has validly contracted not to speak or
petition has in effect ‘waived’ the right to the anti-SLAPP
statute’s protection in the event he or she later breaches that
contract.” (Navellier I, supra, 29 Cal.4th at p. 94.) In Navellier v.
Sletten (2003) 106 Cal.App.4th 763 (Navellier II), the court
declined to apply the litigation privilege, reasoning “it ‘may
frustrate the very purpose of the contract’ if there were a
privilege to breach the covenant.” (Id. at p. 774.)
In the third case, Wentland, supra, 126 Cal.App.4th 1484,
the court did not apply the litigation privilege to bar a cause of
action between business partners based on an alleged breach of
an express confidentiality agreement. The court examined the
public policies behind the privilege—promoting access to the
court, truthful testimony, and zealous advocacy—and determined
those policies would not be furthered by application of the
privilege. (Id. at pp. 1492 & 1494.) Instead, applying the
privilege would frustrate the purpose of the confidentiality
agreement. “ ‘Allowing such comments to be made in litigation,
shielded by the privilege, invites further litigation as to their

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accuracy and undermines the settlement reached in the [prior
litigation.]’ ” (Id. at pp. 1489-1490.)
The Vivian court concluded that these cases stood for the
proposition that “the litigation privilege does not necessarily bar
liability for breach of contract claims. Application of the privilege
requires consideration of whether doing so would further the
policies underlying the privilege.” (Vivian, supra,
214 Cal.App.4th at p. 276.) It then went on to examine the
underlying policies and apply the privilege to bar the deputy’s
breach of contract action against his ex-wife.
The policy underlying the litigation privilege is to assure
“ ‘utmost freedom of communication between citizens and public
authorities whose responsibility it is to investigate and remedy
wrongdoing. . . . The importance of providing to citizens free and
open access to governmental agencies for the reporting of
suspected illegal activity outweighs the occasional harm that
might befall a defamed individual.’ ” (Vivian, supra,
214 Cal.App.4th at p. 277.)
Here, Doe made disparaging comments in the
administrative complaints to HUD and DFEH. Housing
discrimination is a significant public concern and the FEHA was
codified “ ‘to provide effective remedies that will eliminate these
discriminatory practices.’ ” (Konig v. Fair Employment &
Housing Com. (2002) 28 Cal.4th 743, 747–748.) We believe
application of the litigation privilege to absolve Doe of liability for
repeating the same disparaging allegations in her HUD/DFEH
complaints is warranted and necessary, as it promotes full and
candid discourse with a public agency whose purpose is to protect
the public from illegal activity.

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Olson argues Vivian is distinguishable because unlike the
ex-wife in Vivian, Doe was not responding to an investigation;
instead, she affirmatively went “out of her way” to disparage him.
We see no meaningful difference. In Williams v. Taylor (1982)
129 Cal.App.3d 745, an employer affirmatively reported
disparaging facts about his employee to the police. After the
employee was acquitted, he sued the employer for slander. The
court found the statements protected by the litigation privilege
because, for public investigations to be effective, “ ‘there must be
an open channel of communication by which citizens can call
attention to suspected wrongdoing.’ ” (Id. at pp. 753-754.)
To further the public policy behind the litigation privilege,
we apply it to bar Olson’s causes of action for breach of contract
and specific performance based on statements Doe made in her
administrative complaints to HUD and DFEH.
b. Civil Complaint
As it relates to Doe having repeated the same disparaging
accusations about Olson in her civil complaint for damages, the
Silberg factors are once again satisfied. The Los Angeles
Superior Court holds “judicial proceedings” and Doe’s act of
communicating (i.e., communicating to the court via the filing of
her complaint) are statements made to initiate official action.
(See Wise, supra, 83 Cal.App.4th at p. 1303.) Though an
argument may be made as to whether Doe was permitted by law
to make said communication, we believe it undisputed that she
was authorized by law to do so. (Silberg, supra, 50 Cal.3d at
p. 212 [“authorized by law”].)
As set out above, whether the litigation privilege applies
depends on whether application furthers its underlying policies.
(Wentland, supra, 126 Cal.App.4th at p. 1492.) Caselaw confirms

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that a preexisting legal relationship between the parties may
limit a party’s right to petition and may affect whether
application of the litigation privilege furthers its underlying
policies. (Crossroads Investors, L.P. v. Federal National Mortgage
Assn. (2017) 13 Cal.App.5th 757, 787; Wentland, supra,
126 Cal.App.4th at p. 1492; Navellier II, supra, 106 Cal.App.4th
at pp. 773–775.;) A court may conclude the litigation privilege
does not apply if the alleged contractual breach “was not simply a
communication, but also wrongful conduct or performance under
the contract.” (Wentland, supra, at p. 1494.) For instance, as
stated above, “if one expressly contracts not to engage in certain
speech or petition activity and then does so, applying the
privilege would frustrate the very purpose of the contract if there
was a privilege to breach it.” (Crossroads Investors, L.P., supra,
at p. 787, citing Navellier II, supra, at p. 774.)
Here is how we see the sequence of events: The parties
voluntarily executed the Mediation Agreement, which specified:
1) Olson denies each and every allegation put forth by Doe; and
2) the parties shall not disparage one another for a three-year
period. Doe then utilized the same exact disparaging allegations
about Olson in her civil action within the specified time period.
As the Wentland court aptly reasoned: “In reaching
settlement . . . , the parties presumably came to an acceptable
conclusion about the truth of [one party]’s comments about [the
other’s behavior]. Allowing such comments to be made in
litigation, shielded by the privilege, invites further litigation as to
their accuracy and undermines the settlement reached in the
[prior] matter.” (Wentland, supra, 126 Cal.App.4th at p. 1494.)
Following the Wentland court’s line of reasoning as to the civil
complaint, “application of the privilege in the instant case does

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not serve to promote access to the courts, truthful testimony[,] or
zealous advocacy. This cause of action is not based on allegedly
wrongful conduct during litigation . . . . Rather, it is based on
breach of a separate promise independent of the litigation . . . .
This breach was not simply a communication, but also wrongful
conduct or performance under the contract [and] application of
the privilege would frustrate the purpose of the [prior]
agreement.” (Ibid.)
Instead of promoting access to courts, application of the
privilege would immunize Doe against enforcement of the terms
of the agreement she signed. Further, application of the
litigation privilege does not “encourage finality and avoid
litigation” (Wentland, supra, 126 Cal.App.4th at p. 1494), as it
will allow Doe to repeat the same disparaging comments, despite
her agreement not to do so.
Accordingly, we find the public policy underpinning the
litigation privilege does not support barring Olson’s breach of
contract and specific performance causes of action based on Doe’s
statements in the civil complaint. We are now left to determine
whether Olson has otherwise satisfied the second prong, that is,
showing minimal merit to the causes of action for breach of
contract and specific performance. (Navallier, supra, 29 Cal.4th
at p. 94 [claims with the requisite minimal merit may proceed].)4
4 Here, because the trial court applied the litigation
privilege, it had no occasion to consider the evidence presented in
support of the merits of the breach of contract claim. We review
de novo the probability of success on the merits and consider the
evidence below. (Monster, supra, 7 Cal.5th at p. 788.)

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2. Breach of Contract
The elements of a breach of contract cause of action are:
(1) a contract; (2) Olson’s performance or excuse for non-
performance; (3) Doe’s breach; and (4) resulting damages to
Olson. (See Coles v. Glaser (2016) 2 Cal.App.5th 384, 391
[elements of breach of contract].)
Doe first argues that the Mediation Agreement is “merely
an ‘understanding,’ because it lacked the necessary elements to
be a contract.” She argues many “essential contractual elements”
were missing, including offer, acceptance, consideration,
competence, capacity, and mutual consent. She alleges she was
traumatized and under duress during mediation as she was self-
represented while Olson appeared with counsel.
We find these arguments unavailing, especially as the
Mediation Agreement repeats not once, but twice, that the
parties voluntarily and mutually agreed to the settlement. The
agreement states it is enforceable and more than amply puts both
parties on notice at the time of signing that they are entering into
a binding agreement. The first element is satisfied.5
Olson presented evidence that he did not breach the
agreement and that he was damaged by Doe’s statements
because the requirement that he personally guarantee loans for
his real estate business requires that his reputation remain
“impeccable.” We accept Olson’s evidence as true. (Soukup,
5 Doe describes in great detail extrinsic evidence of her
thought process during mediation, the comments of the mediator,
and her subsequent understanding of the Mediation Agreement.
This is inadmissible evidence under Evidence Code section 1152.
We do not consider it.

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supra, 39 Cal.4th at p. 269, fn. 3.) The second and fourth
elements are satisfied.
As to the third element, Doe argues the Mediation
Agreement contains an “exception clause” which expressly
preserved her right to sue in an unlimited case for damages. The
clause states: “The parties agree not to contact or communicate
with one another or guests accompanying them, except in writing
and/or as required by law.” (Italics added.) We do not agree
with Doe’s interpretation.
Additionally, she argues that because the Mediation
Agreement does not define what constitutes “disparagement,” the
onus is on Olson to prove that her filing of the complaints
amounts to an act of disparagement, that is, a breach of the
agreement. Doe maintains Olson failed to do so and therefore, “it
is virtually impossible to determine if or when a breach of the
agreement can occur, if at all.” She argues that an agreement not
to disparage does not equate to an agreement to waive a right to
sue.
Those are valid arguments, but Doe misunderstands the
standard we must apply. The legal question here is whether, as a
matter of law, a finder of fact is precluded from finding a breach
of this agreement. Ordinarily, “ ‘[i]n the absence of fraud,
mistake, or another vitiating factor, a signature on a written
contract is an objective manifestation of assent to the terms set
forth there.’ ” (Monster, supra, 7 Cal.5th at p. 789.) Moreover, an
essential element of any contract is consent. The consent must
be mutual. Consent is not mutual, unless the parties all agreed
upon the same thing in the same sense. The existence of mutual
consent is determined by objective rather than subjective criteria,

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the test being what the outward manifestations of consent would
lead a reasonable person to believe.
Accordingly, the primary focus in determining the existence
of mutual consent is upon the acts of the parties involved.
(Monster, supra, 7 Cal.5th at p. 789.) On one side, Olson argues
that the agreement is all-encompassing and that Doe could have
inserted a savings clause expressly preserving her right to make
disparaging statements in conjunction with further litigation.
Instead, she agreed to a broad all-inclusive provision.6 On the
other side, Doe to argue the language of the agreement is too
vague and that because Olson did not insert a clause expressly
forbidding disparaging statements made in conjunction with
further litigation, the agreement should be narrowly construed.
She argues the parties did not consent because there was no
meeting of the minds.
These are arguable issues to be decided by the trier of fact
and we do not believe any argument is precluded as a matter of
law. Here, a factfinder considering all the circumstances could
reasonably conclude that when Doe signed the non-
disparagement provision, she waived her right to use such
disparaging comments in future litigation. A factfinder could
also readily determine that the agreement should not in fairness
6 Olson compares the non-disparagement clause in the
Mediation Agreement to a non-disparagement clause at issue in
Moreno v. Tringali (D.N.J., June 27, 2017, No. 14-4002
(JBS/KMW)) 2017 WL2779746, at page *1, where the parties
expressly limited the non-disparagement clause by specifying
that they are not to disparage the other “except to the Prosecutor
or Judge in the pending criminal litigation.”

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be so broadly read. In any case, we find that Olson’s breach of
contract claim shows the requisite “minimal merit,” passing the
second prong of the anti-SLAPP test. The trial court erred in
granting Doe’s special motion to strike the breach of contract
claim as it applies to the civil complaint.
1. Specific Performance
“To obtain specific performance after a breach of contract, a
plaintiff must generally show: ‘(1) the inadequacy of his legal
remedy; (2) an underlying contract that is both reasonable and
supported by adequate consideration; (3) the existence of a
mutuality of remedies; (4) contractual terms which are
sufficiently definite to enable the court to know what it is to
enforce; and (5) a substantial similarity of the requested
performance to that promised in the contract.’ ” (Real Estate
Analytics, LLC v. Vallas (2008) 160 Cal.App.4th 463, 472.)
As to the first element, Olson argues there is no adequate
remedy at law as the “harm to Olson’s reputation is difficult to
quantify. . . .” As to the fourth element, Olson argues “the terms
of the Mediation Agreement are specific and easily enforced.”
These two sentences are the only evidence, argument, and
reasoning Olson provides in support of this cause of action. We
believe Olson has failed to prove the requisite minimal merit.
Accordingly, we find the trial court did not err in granting Doe’s
special motion to strike Olson’s specific performance cause of
action.

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DISPOSITION
The order granting Doe’s special motion to strike the causes
of action for breach of contract and specific performance with
respect to statements in Doe’s administrative complaints is
affirmed. The order granting Doe’s special motion to strike the
cause of action for breach of contract with respect to statements
in Doe’s civil complaint is reversed. The order granting Doe’s
special motion to strike the cause of action for specific
performance is affirmed. The parties are to bear their own costs
on appeal.
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
STRATTON, J.
We concur:
BIGELOW, P. J.
GRIMES, J.

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