Opinion
B301899
07-06-2021
ANABI OIL CORPORATION, Plaintiff and Appellant, v. IFUEL, INC., et al., Defendants and Appellants EVON HALAKA, Defendant and Respondent.
K.P. Roberts & Associates, Kenneth P. Roberts, Ryan P. Tish and Kevin Y. Kanooni for Plaintiff and Appellant. Kashfian & Kashfian, Ryan D. Kashfian and Robert A. Kashfian for Defendants and Appellants. Law Offices of Andrew M. Stein and Andrew Marc Stein for Defendant and Respondent.
NOT TO BE PUBLISHED
APPEAL from an order of the Superior Court of Los Angeles County, No. 19NWCV00160 Kristin S. Escalante, Judge. Affirmed.
K.P. Roberts & Associates, Kenneth P. Roberts, Ryan P. Tish and Kevin Y. Kanooni for Plaintiff and Appellant.
Kashfian & Kashfian, Ryan D. Kashfian and Robert A. Kashfian for Defendants and Appellants.
Law Offices of Andrew M. Stein and Andrew Marc Stein for Defendant and Respondent.
MANELLA, P. J.
INTRODUCTION
These cross-appeals are from an order resolving two motions filed under Code of Civil Procedure section 425.16, commonly known as the anti-SLAPP statute. (See Rand Resources, LLC v. City of Carson (2019) 6 Cal.5th 610, 615.) Appellant and respondent iFuel, Inc., leased from respondent Evon Halaka real property in Whittier (the subject property), which had been improved with a gas station. Appellant and respondent Artashes Yepremyan signed the lease on behalf of iFuel. iFuel later entered into contracts with appellant and respondent Anabi Oil Corporation, a supplier of Shell-branded gasoline. The contracts required iFuel to pay Anabi specified sums if iFuel failed to purchase minimum quantities of gasoline, and to pay other sums if the gas station did not remain Shell-branded throughout a specified term. Yepremyan guaranteed these payment obligations. One of the contracts also granted Anabi a right of first refusal with respect to iFuel's leasehold interest in the subject property, providing that if iFuel received an acceptable offer from a third party to buy the leasehold interest, iFuel could not accept the third-party offer until it had provided Anabi an opportunity to buy the interest on identical terms.
Years later, Halaka brought an action against iFuel and Yepremyan (the Halaka action), seeking to void the lease. Pursuant to an oral settlement agreement placed on the record, Halaka agreed to pay iFuel and Yepremyan a specified sum and dismiss her action, in exchange for iFuel and Yepremyan's promise to vacate the gas station.
After Halaka's counsel and Yepremyan notified Anabi of the contemplated transfer of possession of the gas station, Anabi brought the instant action against iFuel, Yepremyan, and Halaka. The complaint contained causes of action for breach of contract, specific performance, and declaratory relief against iFuel and Yepremyan, alleging: (1) iFuel had breached Anabi's right of first refusal by failing to provide Anabi an opportunity to buy the leasehold interest on the same terms under which it was allegedly sold to Halaka in the Halaka settlement agreement; and (2) by notifying Anabi of the intended transfer of possession, iFuel and Yepremyan had committed an anticipatory breach of their contractual payment obligations. Anabi also brought a cause of action against Halaka for intentional interference with contractual relations, alleging she had induced iFuel's and Yepremyan's breaches by allegedly buying the leasehold interest in connection with the Halaka settlement agreement.
iFuel and Yepremyan timely filed an anti-SLAPP motion, asking the trial court to strike Anabi's complaint, or specified portions thereof. Halaka filed a separate anti-SLAPP motion 25 days after expiration of the statutory filing deadline, asking the court to strike Anabi's intentional interference claim against her. Both motions were heard on the same day, before any discovery was conducted.
Exercising its discretion to hear Halaka's untimely motion, the court granted it in its entirety, finding that Anabi's cause of action for intentional interference with contractual relations arose from Halaka's protected activity in negotiating and entering into the Halaka settlement agreement, and that Anabi had not shown a reasonable probability of success on the claim. The court made the same findings regarding Anabi's claims against iFuel and Yepremyan to the extent they were based on an alleged breach of Anabi's right of first refusal. However, to the extent Anabi's claims against iFuel and Yepremyan were based on an alleged anticipatory breach of their payment obligations, the court found the claims did not arise from protected activity. Thus, the court granted iFuel and Yepremyan's motion with respect to the right-of-first-refusal claims, but denied it with respect to the nonpayment claims.
In its appeal, Anabi contends the court: (1) abused its discretion by deciding the merits of Halaka's anti-SLAPP motion despite the motion's untimely filing; (2) erred by granting Halaka's anti-SLAPP motion; and (3) erred by granting iFuel and Yepremyan's anti-SLAPP motion with respect to Anabi's right-of-first-refusal claims. In their appeal, iFuel and Yepremyan contend the court erred by denying their anti-SLAPP motion with respect to Anabi's nonpayment claims. Finding no error, we affirm.
We deny iFuel and Yepremyan's motion to strike portions of Anabi's appellate reply brief, or for permission to file supplemental briefing.
FACTUAL BACKGROUND
A. The Underlying Contracts
In early 2013, Halaka and iFuel executed a one-page lease agreement, followed by a longer and more detailed lease agreement. Pursuant to both lease agreements, Halaka leased the subject property and its improvements (including the gas station) to iFuel for a term of up to 20 years.
Halaka later disputed the authenticity of her signatures on the lease agreements, and claimed she had never authorized an agent to place her signature. However, as the trial court observed in its anti-SLAPP ruling, Halaka implicitly conceded the existence of an enforceable lease by suing for alleged breaches of the lease in the Halaka action. The validity of the lease is not disputed in these appeals.
In May 2014, iFuel and Anabi executed a Retailer Product Sales Agreement (RPSA) and a Retailer Facility Development Incentive Program Agreement (RFDIPA). Pursuant to the RPSA, iFuel agreed that each month during the term of the agreement (set to expire in February 2024), iFuel would buy a minimum quantity of gasoline from Anabi, for resale at the subject property's gas station. iFuel agreed to pay liquidated damages if the RPSA was terminated prior to iFuel's purchase of the total minimum quantity of gasoline. Pursuant to the RFDIPA, Anabi agreed to fund certain improvements to the gas station, in exchange for the station remaining Shell-branded throughout the term of the agreement. iFuel agreed that if the station were “debranded” before the expiration of the agreement's term, iFuel would reimburse Anabi for the improvements. Yepremyan executed a guaranty, promising to pay any existing or future debts iFuel owed to Anabi.
The RPSA granted Anabi a right of first refusal with respect to iFuel's leasehold interest in the gas station, providing: “Whether [iFuel] owns a fee interest in Retailer's Station [i.e., the gas station at the subject property] or the leasehold interest in the lease of Retailer's Station, [iFuel] grants to [Anabi] a right of first refusal with regards to the transfer of any interest (fee, leasehold, or business) in Retailer's Station (‘Property Interest') or in this Agreement in accordance with the terms of this article. If at any time during the term of this Agreement or any extension of this Agreement, [iFuel] receives from a ready, willing and able third-party purchaser or lessee (‘Transferee') an acceptable bona fide offer to purchase or lease, or [iFuel] makes a bona fide offer to a Transferee to sell or lease, the Property Interest, [iFuel] shall offer to [Anabi] a right of first refusal, in writing, giving [Anabi] the right to purchase or lease the Property Interest on the same terms and conditions expressly agreed to between [iFuel] and Transferee.... [Anabi] will have 60 days after receipt of the offer and of a complete and exact copy of the agreement between [iFuel] and Transferee to accept or reject the offer. If [Anabi] rejects the offer or does not give notice of its decision to exercise its right of first refusal prior to expiration of the 60-day period, [iFuel] may make the proposed sale or lease to Transferee, but not at a lower price or on more favorable terms than those offered to [Anabi].”
iFuel's obligations under the RPSA and RFDIPA were confirmed in a leasehold deed of trust, recorded in March 2017.
B. The Halaka Action and Settlement
In April 2017, Halaka initiated the Halaka action by filing a complaint against iFuel and Yepremyan (which she amended in August 2017). Alleging that iFuel and Yepremyan had committed several breaches of the lease of the subject property, Halaka sought, inter alia, a declaration that the lease was void as a result of the alleged breaches, and an order for iFuel and Yepremyan to vacate the subject property. Although her complaint did not dispute the existence of an enforceable lease, during her deposition in December 2017, Halaka testified that her purported signatures on the lease agreements were not genuine, and that she had not authorized an agent to sign on her behalf.
On January 10, 2019, at the conclusion of a mandatory settlement conference, Halaka, iFuel, and Yepremyan agreed to settle the Halaka action. Halaka's counsel, Andrew Stein, stated on the record that pursuant to the settlement agreement, Halaka would pay iFuel $450,000, and iFuel and Yepremyan would vacate the subject property, taking all their remaining inventory. Stein further stated that iFuel and Yepremyan would be required to remove all Shell signage. Presumably contemplating iFuel's promise to Anabi to keep the station Shell-branded, Yepremyan responded, “Shell's still going to be on the property.” Stein replied that Halaka had never agreed to have Shell on the property. The Halaka trial court (Judge John A. Torribio) interjected, “Well, I think that puts both sides in a difficult situation, both the present tenant and the landlord. [¶] We don't know what Shell's going to say, and I just say that Mr. Yepremyan is ordered to comply with any requests that Shell has -- [¶]... [¶] -- regarding the obligations under the contract that he has with Shell because obviously the landlord doesn't [sic].” The court dismissed the Halaka action, but retained jurisdiction to enforce the settlement agreement under Code of Civil Procedure section 664.6.
One week after Anabi filed its complaint in this action, iFuel and Yepremyan filed a motion in the Halaka action to vacate the settlement agreement. They argued they and Halaka did not agree on the material terms, or that the terms were not reasonably certain, in part because “the parties did not have a meeting of the minds on whether ‘Shell's still going to be on the property.'” In April 2019, the Halaka trial court issued an order denying the motion to vacate the settlement, which iFuel and Yepremyan appealed. We take judicial notice of records in Court of Appeal case number B297873 indicating that in January 2021, the appeal was dismissed at iFuel and Yepremyan's request.
C. Notice of the Halaka Settlement
Three weeks after the Halaka settlement agreement was stated on the record, Halaka's counsel sent an email to Anabi, stating, “Please be advised that pursuant to a court ordered settlement, and years of litigation, the business located at [the subject property] had [sic] been sold back to the original owner Evon Hakala [sic]. [¶] The lease was voided, and a court approved settlement occurred. [¶]... [¶] You are hereby notified that your filing [sic] on the property of my client, was without her consent nor approval. Please have it removed ASAP since IFUELS [sic] WILL NO LONGER have any affiliation with this site. [¶] This letter shall inform you that as of March 11, 2019, SHELL Gasoline will no longer be sold at the location, and any signs not removed by that date will be taken down, since they were installed without my client[']s consent.”
On February 10, 2019, Yepremyan sent a letter to Anabi, stating, “I am writing to notify you that as of March 11, 2019[, ] the station at the [subject property] will revert to Evon Halaka pursuant to the terms of a Mandatory Settlement Conference Order issued by Hon. John A. Torribio, ... resolving years of litigation. [¶] In the course of that litigation, it was shown that there were two bilaterally executed leases signed by iFuel, Inc. and Ms. Halaka. However, Ms. Halaka's signatures on both leases had been forged without her consent. Hence, iFuel, Inc. has no valid lease for that property. Hence the pending transfer is not the result of a purchase/sale agreement. [¶] IFuel [sic], Inc. wishes to cooperate with removal of any signage or other Anabi possessions and resolve whatever outstanding issues may arise following this unfortunate development.”
D. Anabi's Instant Complaint
On February 20, 2019 (10 days after Yepremyan sent his letter), Anabi initiated this action against iFuel, Yepremyan, and Halaka. Anabi's complaint alleged that “in connection with entry into the settlement agreement, ” and without regard to Anabi's known contractual rights, Halaka, iFuel, and Yepremyan agreed “to sell the business” and “to terminate the lease between them, ” without first providing notice to Anabi. The complaint further alleged, “Yepremyan and iFuel[] were obligated, pursuant to the ROFR [right of first refusal], to provide Plaintiff with an opportunity to purchase the Shell Station on the same terms and conditions of [sic] Halaka. Plaintiff has not received its ROFR opportunity and offer.” Thus, in connection with entry into the settlement, “Halaka, Yepremyan and iFuel[] agreed to circumvent Plaintiff's rights in the business and lease by terminating the lease and selling the business without any assumption of the existing contracts between Plaintiff, Yepremyan and iFuel[].” Finally, the complaint alleged, “Plaintiff was notified by Yepremyan and iFuel[] of the intent to sell the business to Halaka and of the intent to cease making purchases of motor gasoline in accordance with the provisions of the RPSA, anticipatorily breaching the RPSA and not performing any of their obligations under the RPSA.”
Anabi also brought this action against “S & J Petroleum, ” a purported business entity, but made no allegations concerning it distinct from its allegations against Halaka. According to an answer filed by Halaka's counsel on S & J Petroleum's behalf, S & J One Stop Petroleum is merely a “dba” name used by Halaka. Relatedly, Halaka filed her anti-SLAPP motion under the name “EVON HALAKA dba S & P [sic] One Stop Petroleum.” S & J Petroleum did not file an appellate brief (Halaka filed her respondent's brief in her own name). Thus, if S & J Petroleum is an entity distinct from Halaka, it is not a party to these appeals. We need not discuss it further.
Specifically, the complaint alleged the following: “[W]ith notice of the above rights and obligations belonging to Plaintiff by virtue of the RPSA, RFDIP and Leasehold Deed of Trust, Halaka agreed to purchase from Yepremyan and iFuels [sic] the business operating the Shell Station including all tangible and intangible assets, the ongoing concern and all good will associated with the business, without providing notice to Plaintiff of such sale.” “[A]s a material term of and consideration for entry into the settlement agreement, Yepremyan and iFuel[] agreed to transfer and/or terminate the lease with Halaka, and thereby transfer and relinquish possession of the Property to Halaka all without providing notice to Plaintiff.” “[I]n connection with entry into the settlement agreement and sale of the business, Halaka, Yepremyan and iFuel[] agreed to sell the business without any regard to the rights of Plaintiff that may exist in the business under the RPSA, RFDIP, Leasehold Deed of Trust or any other related agreement.” “[I]n connection with entry into the settlement agreement, ... Halaka, Yepremyan and iFuel[] agreed to terminate the lease between them, without any regard to the rights of Plaintiff that may exist in the lease interest under the RPSA, RFDIP, Leasehold Deed of Trust or any other related agreement. Plaintiff is informed and believes that at the time of the settlement agreement, Halaka, Yepremyan and iFuel[], had actual or constructive notice of the rights of Plaintiff and sought to avoid and circumvent those rights.”
Anabi brought five causes of action. The first cause of action, brought against iFuel, alleged iFuel's previously alleged conduct was “an actual and anticipatory breach” of the RPSA and RFDIPA. The second cause of action, brought against Yepremyan, alleged Yepremyan had committed an anticipatory breach of his guaranty. The third cause of action, brought against iFuel and Yepremyan, sought specific performance of the right of first refusal. The fourth cause of action, brought against Halaka, alleged Halaka “intended to interfere with the rights of Plaintiff that exist under the RPSA, [RFDIPA], Leasehold Deed of Trust and other related agreements by seeking to purchase the business from Yepremyan and iFuel[] and requiring Yepremyan and iFuel[] to terminate their lease with [Halaka] without seeking an assumption of the above referenced agreements and without regard to the rights of Plaintiff under the ROFR.” Finally, the fifth cause of action, brought against iFuel and Yepremyan, sought a declaration that Anabi was “entitled to receive a right of first refusal to purchase the business and assets of the Shell station and to have the lease transferred to Plaintiff.”
An “actual” breach of contract occurs at the time performance is due, while an anticipatory breach (or breach by repudiation) occurs before performance is due. (1 Witkin, Summary of Cal. Law (11th ed. 2020) Contracts, § 886.)
E. iFuel and Yepremyan's Anti-SLAPP Motion
1. Initial Briefing
In May 2019, iFuel and Yepremyan filed an anti-SLAPP motion, asking the court to strike Anabi's complaint or specified portions thereof. They argued that (1) all of Anabi's claims arose from the defendants' entry into the Halaka settlement agreement, which was protected activity under subdivisions (e)(1) and (e)(2) of the anti-SLAPP statute; and (2) Anabi had no probability of success on its claims. In challenging Anabi's probability of success, iFuel and Yepremyan argued that their negotiation of and entry into the Halaka settlement agreement had not triggered Anabi's right of first refusal concerning iFuel's leasehold interest, especially in light of Halaka's deposition testimony challenging the existence of the underlying lease. Yepremyan executed a declaration in support of this argument. In later, supplemental declarations, Yepremyan declared he and iFuel had remained in possession of the subject property, and had continued purchasing gasoline from Anabi as required under the RPSA.
Opposing the motion, Anabi argued its claims against iFuel and Yepremyan arose from their actual or anticipated failure to perform contractual obligations -- in particular, iFuel's “failure to offer a ROFR to Anabi” in connection with “an offer to sell the business to [Halaka]....” Relying on Halaka's counsel's email stating “the business” had been “sold back” to Halaka, Anabi argued, “The ultimate effect of the [Halaka settlement] agreement... was for the sale of the business operating the Shell Station” to Halaka, who “assumed the leasehold interest, effectively extinguishing the same.” But Anabi argued its claims did not arise from the Halaka settlement agreement: “Anabi Oil does not sue because the settlement was read in open court or agreed upon. Anabi Oil sues for breach of a contract that was not the subject of the settlement agreement. The statements in court merely provided notice that the breach of Anabi Oil[']s rights was about to or would occur.” Under this theory, the settlement agreement merely triggered the right of first refusal. Appearing to contradict this theory, however, Anabi implied the settlement agreement breached the right of first refusal, arguing iFuel and Yepremyan “breached the RPSA and other contracts by failing to offer Anabi Oil a right of first refusal when they agreed to sell their business to [Halaka].” Anabi also disputed iFuel and Yepremyan's arguments that Anabi could not succeed on its claims.
In reply, iFuel and Yepremyan argued that their “failure to offer a ROFR” was protected activity, as it “ar[ose] directly from the settlement and [wa]s not ‘merely incidental' to the settlement.” They maintained that the settlement agreement was not a sale, and that the agreement therefore could not have triggered Anabi's right of first refusal.
2. Continuance and Supplemental Briefs
On May 23, 2019, the trial court (Judge Kristin S. Escalante) held a hearing on iFuel and Yepremyan's anti-SLAPP motion. At the outset, the court shared its preliminary impressions that Anabi's nonpayment claims did not arise from protected activity, but that Anabi's right-of-first-refusal claims did, “given that the alleged offer that [allegedly] triggered this right of first refusal happened in the course of [the Halaka] settlement, ” and that Anabi alleged its right had been breached by “the offer and acceptance of this [settlement] agreement....” In response, Anabi's counsel argued the settlement agreement had merely triggered its right of first refusal, which would be breached only upon iFuel's transfer of the leasehold interest to Halaka (the “completion” of the agreement). With respect to Anabi's probability of success on its claims, the court questioned how Anabi could exercise a right of first refusal with respect to Halaka's alleged purchase of iFuel's leasehold interest, given Halaka's “superior interest” in the lease as the landlord. Anabi's counsel responded that Anabi would be allowed to step into iFuel's shoes as Halaka's tenant. iFuel and Yepremyan's counsel replied that the right of first refusal had not been triggered, and that even if it had been, its terms would have allowed Anabi to step into the shoes of the purported purchaser, viz., Halaka. He argued Anabi could not have stepped into Halaka's shoes as the landlord. The court continued the hearing to July 17, 2019, and ordered the parties to file supplemental briefs.
In Anabi's supplemental brief, it maintained that its right of first refusal had been triggered by iFuel's entry into the Halaka settlement agreement, rather than by any offer made during the negotiation of that agreement. It further argued that because the agreement “d[id] not provide for the giving of an offer of right of first refusal to Anabi, ” entry into it constituted “an actual and anticipatory breach....”
In their supplemental brief, iFuel and Yepremyan maintained that Anabi's right-of-first-refusal claims arose from their acceptance of Halaka's settlement offer. They did not dispute the trial court's preliminary opinion that Anabi's nonpayment claims did not arise from protected activity. Instead, they argued the nonpayment claims were not “at issue, ” relying on asserted inadequacies in Anabi's complaint and on their evidence that they had continued to meet their obligations to Anabi.
F. Halaka's Anti-SLAPP Motion
On June 4, 2019, Halaka filed an ex parte application for permission to file an untimely anti-SLAPP motion. She argued there was good cause for the court to hear the merits of her motion because it would be filed at an early stage of the case, before any discovery would be conducted (and before iFuel and Yepremyan's motion would be fully heard), and because Anabi would not be prejudiced by her modest delay in filing. Anabi opposed the application, arguing Halaka had failed to meet a purported requirement to provide a “compelling explanation” for her delay in filing. The court granted the application in part, allowing Halaka to file the motion, but reserving decision on whether to deny the motion as untimely. The court ordered Halaka to file a supplemental brief regarding the motion's untimeliness, but Halaka failed to do so.
Anabi had served Halaka with its complaint on March 14, 2019. Thus, Halaka's 60-day statutory deadline to file an anti-SLAPP motion expired on May 13, 2019 (22 days before she filed her ex parte application). (See Code Civ. Proc., § 425.16, subd. (f) [anti-SLAPP motion may be filed “within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper”].)
On June 7, 2019, Halaka filed her anti-SLAPP motion, asking the court to strike Anabi's cause of action against her for intentional interference with contracts. She argued the claim arose from her protected activity in prosecuting and settling the Halaka action. She further argued Anabi had no reasonable probability of success on the claim because, inter alia, the claim was barred by the litigation privilege.
Anabi opposed Halaka's anti-SLAPP motion, arguing the motion should be denied as untimely, especially because Halaka had failed to further brief the issue as ordered. Anabi further argued its intentional interference claim arose not from Halaka's protected litigation activity, but from “the underlying agreement... to sell the business and transfer the property from iFuel[] to Halaka, with full knowledge of Anabi Oil's rights.” Anabi argued this alleged sale agreement was distinct from the settlement agreement, asserting that “the fact that an agreement was reached to settle the Halaka Matter... [was] merely evidence of the agreement that violate[d] the rights of Anabi Oil's right of first refusal.” Finally, Anabi argued it had established a probability of success on its intentional interference claim, disputing the applicability of the litigation privilege. In reply, Halaka principally reiterated that the litigation privilege barred the claim.
G. Ruling
In August 2019, the trial court heard both anti-SLAPP motions. After counsel generally repeated arguments made in the briefs and at the earlier hearing, the court took the matter under submission. Eight days later, the court issued an order granting Halaka's anti-SLAPP motion in its entirety, granting iFuel and Yepremyan's anti-SLAPP motion in part, and denying the remainder of the latter motion.
1. Halaka's Motion
The court exercised its discretion to decide the merits of Halaka's untimely anti-SLAPP motion. The court found it appropriate to do so because: (1) the motion had been heard on the same day as iFuel and Yepremyan's timely motion; (2) policy considerations strongly favor deciding cases on the merits; (3) the case was still in an early stage, as no discovery had been conducted; and (4) Anabi had not been prejudiced by the delay in filing.
At the first step of the anti-SLAPP analysis, the court found that Anabi's intentional interference claim against Halaka arose from protected activity, viz., her negotiation of and entry into the Halaka settlement agreement. The court found this activity protected under the reasoning of Cheveldave v. Tri Palms Unified Owners Assn. (2018) 27 Cal.App.5th 1202 (Cheveldave), where the Court of Appeal held a party's entry into a settlement agreement was protected under Code of Civil Procedure section 425.16, subdivision (e)(2) (Subdivision (e)(2)). (Cheveldave, supra, at 1210-1213.)
Although the trial court's express reliance on Cheveldave indicated the court found Halaka's conduct protected under Subdivision (e)(2), the court also stated that her negotiation of and entry into the settlement agreement was “conduct ‘in furtherance of the exercise of the constitutional right of petition'” within the meaning of subdivision (e)(4) of the anti-SLAPP statute. The court did not discuss the latter subdivision's public-interest requirement. (See Code Civ. Proc., § 425.16, subd. (e)(4) [protecting only specified conduct “in connection with a public issue or an issue of public interest”].) Contrary to iFuel and Yepremyan's contention, the public-interest requirement applies to petitioning activity. (Old Republic Construction Program Group v. The Boccardo Law Firm, Inc. (2014) 230 Cal.App.4th 859, 870-878.) We need not address whether the public-interest requirement was satisfied, as we conclude the court properly relied on Subdivision (e)(2), which lacks such a requirement.
At the second step, the court found Anabi had failed to demonstrate a reasonable probability of prevailing on its intentional interference claim. Because the claim arose from the litigation and settlement of the Halaka action, the court found the claim precluded under Pacific Gas & Electric Co. v. Bear Stearns & Co. (1990) 50 Cal.3d 1118 (PG&E), where our Supreme Court held that the constitutional right to petition precludes an intentional interference claim based on the defendant's undertaking potentially meritorious litigation. (Id. at 1123, 1130-1137.) Although PG&E addressed a claim that a defendant induced third-party litigation (unlike Halaka, who brought her own litigation), the trial court quoted PG&E's recognition that the right to petition also “protect[s] the litigant from liability for undertaking to bring a colorable claim to court.” (Id. at 1135.) The court concluded, “It logically follows that the same principle should apply to interference claims arising out of the settlement of litigation. The law strongly favors the settlement of litigation. It would be anomalous to allow an interference claim to arise from the settlement of litigation when an interference claim based on the successful prosecution of the claim to judgment would be barred.”
Having found that Anabi's intentional interference claim arose from protected activity, and that Anabi had failed to establish a reasonable probability of success on the claim, the court struck the claim.
2. iFuel and Yepremyan's Motion
The trial court granted iFuel and Yepremyan's anti SLAPP motion with respect to Anabi's claims based on the right of first refusal, viz., (1) the portion of Anabi's first cause of action alleging iFuel breached its contracts with Anabi; (2) the entirety of Anabi's third cause of action seeking specific performance of the right of first refusal; and (3) the entirety of the fifth cause of action seeking a declaration that Anabi was entitled to exercise its right of first refusal. The court denied the motion with respect to Anabi's claims based on iFuel and Yepremyan's payment obligations, viz., (1) the remainder of Anabi's first cause of action for breach of contract; and (2) the entirety of the second cause of action, which alleged Yepremyan breached his guaranty of iFuel's debts to Anabi.
a. Right of First Refusal
The court found Anabi's right-of-first-refusal claims arose from protected activity “because it is the entry into the settlement agreement without giving Anabi a chance to match the terms that forms the alleged breach of the right of first refusal.” Again following Cheveldave, the court found entry into the settlement agreement to be protected activity.
For three reasons, the court found Anabi had failed to show a reasonable probability of success on its right-of-first-refusal claims. First, the court reasoned that, even assuming the right of first refusal had been triggered by the Halaka settlement agreement, Anabi could not have matched Halaka's offer to dismiss her claims against iFuel, as necessary to exercise the right. Second, because iFuel could not have granted Anabi rights greater than iFuel itself possessed as Halaka's tenant, the court reasoned that Anabi's right of first refusal was necessarily “subject to” Halaka's right, as a remedy for material breaches of the lease, to extinguish the leasehold interest to which the right of first refusal applied. Finally, the court reasoned that Anabi's right of first refusal had not been triggered, because “iFuel's forfeiture of the lease in exchange for the dismissal of Halaka's claims” (i.e., the Halaka settlement agreement) was not a voluntary sale. The court relied on Campbell v. Alger (1999) 71 Cal.App.4th 200 (Campbell), where the Court of Appeal held a plaintiff's right of first refusal was not triggered by the transfer of the property interest at issue, reasoning that the owners did not “voluntarily determine to sell their interest, ” but instead merely acquiesced to an involuntary taking of the property by stipulating to judgment in an eminent domain action. (Id. at 207-208.)
To the extent Anabi's third and fifth causes of action were brought against Yepremyan, the court relied on a fourth reason: Yepremyan was not a party to the RPSA.
Having found that Anabi's right-of-first refusal claims against iFuel and Yepremyan arose from protected activity, and that Anabi had failed to establish a reasonable probability of success, the court struck the claims.
b. Nonpayment Claims
In contrast, the trial court found Anabi's nonpayment claims, alleging an anticipatory breach of iFuel and Yepremyan's payment obligations under the RPSA, the RFDIPA, and Yepremyan's guaranty, did not arise from protected activity. Unlike Anabi's other claims, the court reasoned, these claims arose not from the Halaka settlement, but from the anticipated “failure to pay money, ” which was not a protected activity. Although the anticipated nonpayment might “follow from” the settlement, the settlement merely provided context and (potentially) evidentiary support for the claims. The court noted that iFuel and Yepremyan's arguments ostensibly relevant to this issue -- including their assertion that they had continued to meet their obligations to Anabi -- were relevant only to the merits of the claims and thus to the second step of the anti SLAPP analysis. The court declined to address the second step, as its conclusion that the nonpayment claims did not arise from protected activity compelled denial of iFuel and Yepremyan's motion to strike those claims.
Accordingly, the court granted Halaka's motion in its entirety, granted iFuel and Yepremyan's motion in part, and denied the remainder of the latter motion. The court struck Anabi's intentional interference claim and right-of-first-refusal claims, but left intact Anabi's nonpayment claims. After Anabi timely appealed, iFuel and Yepremyan timely cross-appealed.
DISCUSSION
In its appeal, Anabi contends the trial court: (1) abused its discretion by deciding the merits of Halaka's anti-SLAPP motion despite the motion's untimely filing; (2) erred in granting Halaka's anti-SLAPP motion; and (3) erred in granting iFuel and Yepremyan's anti-SLAPP motion with respect to Anabi's right-of-first-refusal claims. In their appeal, iFuel and Yepremyan contend the court erred in denying their anti-SLAPP motion with respect to Anabi's nonpayment claims. We reject both claims of error.
A. Anti-SLAPP Principles
“At the first step of the [anti-SLAPP] analysis, the defendant must make two related showings. Comparing its statements and conduct against the statute, it must demonstrate activity qualifying for protection. [Citation.] And comparing that protected activity against the complaint, it must also demonstrate that the activity supplies one or more elements of a plaintiff's claims.” (Wilson v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 887 (Wilson).) In other words, the defendant must show that the challenged claims arose from protected activity. (See id. at 884, 887-888.) Under Subdivision (e)(2), protected activity includes “any written or oral statement or writing made in connection with an issue under consideration or review by a... judicial body....” (Code Civ. Proc., § 425.16, subd. (e)(2).) Subdivision (e)(2) thus protects negotiation of and entry into a settlement agreement. (O&C Creditors Group, LLC v. Stephens & Stephens XII, LLC (2019) 42 Cal.App.5th 546, 566 (O&C Creditors); Suarez v. Trigg Laboratories, Inc. (2016) 3 Cal.App.5th 118, 123 (Suarez); Cheveldave, supra, 27 Cal.App.5th at 1210-1213.) We and other courts, including our Supreme Court, have also applied Subdivision (e)(2) to omissions in the course of settlement negotiations. (See Navellier v. Sletten (2002) 29 Cal.4th 82, 89-90 (Navellier) [Subdivision (e)(2) protected defendant's failure to disclose disagreement with release before executing it]; Suarez, supra, at 122-125 [Subdivision (e)(2) protected defendant's failure to disclose, during settlement negotiations, potential sale of business, where failure to disclose was intended to induce opposing party to settle on less favorable terms]; Crossroads Investors, L.P. v. Federal National Mortgage Assn. (2017) 13 Cal.App.5th 757, 779, fn. 9, 782 [Subdivision (e)(2) protected defendant's failure to respond to accounting requests made in settlement discussions].)
“If the court determines that relief is sought based on allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated.... If [the plaintiff fails to satisfy this burden], the claim is stricken.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 396.) We review de novo a trial court's ruling on an anti-SLAPP motion. (Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788.)
B. Intentional Interference Claim
The trial court granted Halaka's untimely anti-SLAPP motion and struck Anabi's sole cause of action against her, which alleged she intentionally interfered with Anabi's contracts with iFuel and Yepremyan. Anabi contends the court abused its discretion by deciding the merits of Halaka's untimely anti-SLAPP motion, and further erred in its first-step analysis of the intentional interference claim. In its reply brief, Anabi additionally contends the court erred in its second-step analysis. We conclude: (1) the court acted within its discretion in deciding the merits of Halaka's motion despite its untimely filing; (2) the court properly found that the right-of-first-refusal claims arose from protected activity; and (3) Anabi forfeited its challenge to the court's second-step analysis, both by failing to address the issue in its opening brief and by failing to adequately develop an argument in its reply brief.
1. Timeliness
The trial court acted within its discretion in deciding the merits of Halaka's motion despite its untimely filing. (See Code Civ. Proc., § 425.16, subd. (f) [anti-SLAPP motion may be filed “within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper”].) The motion was filed on June 7, 2019, 25 days after the statutory deadline expired on May 13, 2019. Anabi has identified no prejudice from this modest delay in filing, and we discern none. The motion was heard at an early stage of the case (on the same date as iFuel and Yepremyan's timely anti-SLAPP motion), before any discovery was conducted.
Contrary to Anabi's contention, the court's discretion to decide the motion on its merits was not contingent on a finding of justification for Halaka's delay. (See Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 113 [trial court acted within its discretion in hearing merits of untimely anti-SLAPP motion, despite movants' failure to “demonstrate persuasive justification for the delay”].) Anabi's reliance on Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772 is unavailing. There, the Court of Appeal held a trial court abused its discretion by hearing the merits of an untimely anti-SLAPP motion, in part because the movant had offered only “weak” reasons for his delay in filing. (Id. at 787.) However, the absence of justification for the movant's delay was only a small component of the appellate court's reasoning, which also turned on the facts that: (1) the anti-SLAPP motion was filed more than 200 days late, after the parties had completed substantial discovery; (2) the trial court failed to “fully read” the opposition; (3) the court heard the motion only one week before trial; and (4) the hearing resulted in a continuance of trial, undermining the anti-SLAPP statute's purpose of allowing prompt resolution of disputes. (Id. at 784-787 & fn. 15.) The facts here are not comparable.
2. First Step
The trial court properly found, at the first step of the anti-SLAPP analysis, that the intentional interference claim arose from protected activity. One element of a claim for intentional interference with contractual relations is “the defendant's intentional acts designed to induce a breach or disruption of the contractual relationship.” (Ixchel Pharma, LLC v. Biogen, Inc. (2020) 9 Cal.5th 1130, 1141.) Here, that element allegedly was supplied by Halaka's negotiating and entering into the Halaka settlement agreement. That activity was protected under Subdivision (e)(2). (See Suarez, supra, 3 Cal.App.5th at 122-125; O&C Creditors, supra, 42 Cal.App.5th at 566; Cheveldave, supra, 27 Cal.App.5th at 1210-1213.)
Anabi alleged Halaka intentionally induced a breach “by seeking to purchase the business from Yepremyan and iFuels and requiring Yepremyan and iFuels to terminate their lease, ” and “by proceeding to complete the purchase of the business, ” all “in connection with entry into the settlement agreement....”
The cases on which Anabi principally relies are distinguishable. (See City of Cotati v. Cashman (2002) 29 Cal.4th 69, 79-80 [city's declaratory relief action arose from controversy between it and homeowners concerning constitutionality of rent stabilization ordinance]; Wang v. Wal-Mart Real Estate Business Trust (2007) 153 Cal.App.4th 790, 807-809 [contract and tort claims arose from city's and company's development and planning of store on land bought from plaintiffs]; Applied Business Software, Inc. v. Pacific Mortgage Exchange, Inc. (2008) 164 Cal.App.4th 1108, 794, 1117-1118 [claims for breach of settlement agreement arose from defendant's activity, after entering agreement, in using plaintiff's software and failing to provide certification]; Oakland Bulk and Oversized Terminal, LLC v. City of Oakland (2020) 54 Cal.App.5th 738, 758-759 (Oakland Bulk) [contract and tort claims against city arose from various acts of “stonewalling” and noncooperation, such as refusal to issue non-disturbance agreements and proper estoppel certificates].) In Oakland Bulk, the Court of Appeal did not consider whether the plaintiffs' contract and tort claims arose from their allegations concerning the city's protected litigation activity, as the trial court had granted a separate motion to strike those allegations. (Oakland Bulk, supra, at 759-760.)
In sum, the trial court properly found that Anabi's claim against Halaka for intentional interference with contractual relations arose from protected activity.
3. Second Step
For two reasons, we conclude Anabi forfeited its challenge to the trial court's conclusion, at the second step of the anti-SLAPP analysis, that Anabi had failed to establish a probability of success on its intentional interference claim. First, as Anabi conceded in its opposition to iFuel and Yepremyan's motion to strike portions of Anabi's reply brief, Anabi failed to address the second step in its opening brief. (See, e.g., Paulus v. Bob Lynch Ford, Inc. (2006) 139 Cal.App.4th 659, 666, 684-685 (Paulus) [appellant forfeited challenges to trial court's striking of two claims under anti-SLAPP statute by failing to address claims in opening brief, despite appellant's belated attempt to address them in reply brief].) Second, even in its reply brief, Anabi failed to develop an argument that the trial court erred in its merits analysis. (See People v. Guzman (2019) 8 Cal.5th 673, 683, fn. 7 [appellant forfeited due process claim by failing to “develop the argument”]; In re Phoenix H. (2009) 47 Cal.4th 835, 845 [““‘Contentions supported neither by argument nor by citation of authority are deemed to be without foundation and to have been abandoned'””].) Anabi failed to cite any authority concerning the merits of an intentional interference claim. Indeed, Anabi failed even to cite PG&E, supra, 50 Cal.3d 1118, the authority on which the trial court relied in concluding that the constitutional right to petition precluded Anabi's claim. We need not develop Anabi's belated argument for it, and it would be unfair to Halaka to do so.
Because the trial court properly analyzed Halaka's motion at the first step, and Anabi forfeited any challenge to the court's analysis at the second step, we affirm the court's order to the extent it granted Halaka's motion to strike the intentional interference claim.
C. Right-of-First-Refusal Claims
The trial court granted iFuel and Yepremyan's anti-SLAPP motion with respect to Anabi's claims based on an alleged breach of Anabi's right of first refusal. Anabi contends the court erred in its first-step analysis of the right-of-first-refusal claims. In its reply brief, Anabi additionally contends the court erred in its second-step analysis. We conclude the court properly found, at the first step, that the right-of-first-refusal claims arose from protected activity. As with the intentional interference claim, Anabi forfeited its challenge to the court's second-step analysis, both by failing to address the issue in its opening brief and by failing to adequately develop an argument in its reply brief.
1. First Step
The trial court properly found that Anabi's right-of-first-refusal claims arose from protected activity, viz., iFuel's “entry into the [Halaka] settlement agreement without giving Anabi a chance to match the terms, ” as that conduct “forms the alleged breach of the right of first refusal.” Anabi argues the court erred in finding the right was allegedly breached by iFuel's entry into the settlement agreement, as that conduct, Anabi argues, merely triggered the right. We disagree.
Anabi's right of first refusal was triggered, if at all, upon iFuel's receipt of an acceptable third-party offer to purchase or sublease its leasehold interest (or iFuel's decision to offer its leasehold interest to a third party). The RPSA stated, in relevant part, “If... [iFuel] receives from a ready, willing and able third-party purchaser or lessee (‘Transferee') an acceptable bona fide offer to purchase or lease, or [iFuel] makes a bona fide offer to a Transferee to sell or lease, [iFuel's] Property Interest, [iFuel] shall offer to [Anabi] a right of first refusal....” This language is consistent with standard descriptions of a right of first refusal. (See Greenwald & Bank, Cal. Practice Guide: Real Prop. Trans. Ch. 8-D (The Rutter Group 2020) ¶ 8:212 [“A right of first refusal is triggered when the owner [or leaseholder] (grantor of the right) elects to sell and obtains a third party offer to buy”]; id. ¶ 8:206 [“Under a ‘right of first refusal,' the landowner [or leaseholder] seller first procures a bona fide offer to purchase from a third party on terms and conditions acceptable to the seller. The seller must then present the third party offer to the grantee of the right of first refusal”].) Anabi produced no extrinsic evidence that the parties intended to deviate from standard usage. (See 1 Witkin, Summary of Cal. Law (11th ed. 2021) Contracts, § 778 [“Usage or custom may be looked to, both to explain the meaning of language and to imply terms, where no contrary intent appears from the terms of the contract”].)
Anabi's right of first refusal was breached, if at all, upon iFuel's entry into a third-party agreement to sell or sublease the leasehold interest, without first providing Anabi an opportunity to buy or sublease the interest on the same terms contemplated in the proposed agreement. The RPSA stated, “If [Anabi] rejects the offer or does not give [timely] notice of its decision to exercise its right of first refusal..., [iFuel] may make the proposed sale or lease to Transferee....” (Italics added.) Thus, Anabi's right of first refusal prohibited iFuel from entering a third-party sale or lease agreement until Anabi had been provided an opportunity to exercise its right and had failed to do so. Again, this is consistent with standard descriptions of a right of first refusal. (See Greenwald & Bank, Cal. Practice Guide: Real Prop. Trans., supra, ¶ 8:211.5 [“The landowner's [or leaseholder's] attempt to sell the property [or leasehold interest] to a third party without affording the holder of the preemptive purchase right an opportunity to exercise its preemptive right constitutes a breach of contract”].) Assuming, arguendo, that Anabi's claims have merit, iFuel breached the right of first refusal by entering into an agreement to sell the leasehold interest to Halaka -- viz., the Halaka settlement agreement -- without first providing Anabi an opportunity to match Halaka's offer. Indeed, according to Anabi's complaint, this settlement activity was the conduct through which iFuel “circumvent[ed]” Anabi's right of first refusal.
Anabi argues iFuel's entry into the settlement agreement merely triggered the right of first refusal, which would be breached only upon a “completed” sale, i.e., the transfer of the property interest. We disagree with Anabi's interpretation that its right was triggered by iFuel's acceptance of Halaka's offer. Such an interpretation is at odds with the contractual language, discussed above, indicating that Anabi and iFuel intended the right to be triggered upon iFuel's receipt of an acceptable offer. Further, Anabi's interpretation would lead to absurd results. (See Civ. Code, § 1643 [“A contract must receive such an interpretation as will make it... reasonable, ... if it can be done without violating the intention of the parties”].) After entering an agreement to sell its leasehold interest to a third party, iFuel would be required to delay performance of the agreement during the up-to-60-day period in which Anabi decided whether to buy the interest on the same terms. If Anabi did exercise its right to buy the interest, iFuel would be required to breach its agreement to sell the same interest to the third party. In contrast, under our interpretation, Anabi's right requires iFuel only to delay acceptance of the third-party offer, and to refrain from accepting it if Anabi exercises its right to match the offer. iFuel breaches the right if, without providing Anabi that opportunity, it accepts the third-party offer, thereby entering into an agreement. Accordingly, we conclude the trial court properly found that Anabi's right-of-first-refusal claims arose from iFuel's entry into the Halaka settlement agreement, which was protected under Subdivision (e)(2). (See Suarez, supra, 3 Cal.App.5th at 122-125; O&C Creditors, supra, 42 Cal.App.5th at 566; Cheveldave, supra, 27 Cal.App.5th at 1210-1213.)
We acknowledge that the RPSA provided iFuel must give Anabi an opportunity to purchase or lease the leasehold interest on the same terms “expressly agreed to between [iFuel] and Transferee, ” and further provided Anabi may exercise that opportunity within 60 days after receipt of the offer and “a complete and exact copy of the agreement between [iFuel] and Transferee....” But subsequent language in the same provision prohibited iFuel from making the “proposed” sale or lease until after Anabi had received this opportunity. Thus, the provision is best understood to require submission of a copy of the proposed agreement. (See Civ. Code, § 1641 [“The whole of a contract is to be taken together, so as to give effect to every part, if reasonably practicable, each clause helping to interpret the other”].)
Moreover, even assuming, arguendo, that the claims arose from iFuel and Yepremyan's failure to provide Anabi an opportunity to exercise its right of first refusal before entering into the settlement agreement, that omission too was protected under Subdivision (e)(2). The omission was an essential component of iFuel and Yepremyan's settlement strategy, as they would have sabotaged their efforts to settle Halaka's claims against them had they asked Halaka, in response to her offer at the mandatory settlement conference, to delay executing the agreement in order to provide Anabi an opportunity to thwart it. We therefore find iFuel and Yepremyan's failure to provide Anabi an opportunity to exercise its right of first refusal fell within Subdivision (e)(2)'s protection for omissions in the course of settlement negotiations. (See Suarez, supra, 3 Cal.App.5th at 122-125 [Subdivision (e)(2) protected failure to disclose potential sale of business, where nondisclosure was part of settlement strategy to mislead opposing party regarding value of his claims]; cf. Navellier, supra, 29 Cal.4th at 89-90; Crossroads Investors, L.P. v. Federal National Mortgage Assn., supra, 13 Cal.App.5th at 779, fn. 9, 782.)
Anabi places great emphasis on the Halaka trial court's purported order, during the mandatory settlement conference, that Yepremyan comply with requests from “Shell” (apparently referring to Anabi) concerning unspecified contractual obligations. Anabi argues this purported order “clarified that the settlement agreement could not be relied upon as a defense, ” and established that “[c]onduct which violated Anabi Oil's contractual right is not protected.” But our Supreme Court has disapproved authority drawing a “false dichotomy” between “conduct alleged to constitute breach of contract” and conduct protected by the anti-SLAPP statute. (Navellier, supra, 29 Cal.4th at 92.) The Halaka trial court could not have resuscitated that false dichotomy, and it did not purport to do so. It said nothing about the anti-SLAPP statute, let alone the statute's application to any future claims Anabi -- a nonparty to the proceeding before it -- might bring. Moreover, in implying that application of the anti-SLAPP statute establishes a defense to a claim, Anabi “fall[s] prey... to the fallacy that the anti-SLAPP statute allows a defendant to escape the consequences of wrongful conduct, ” rather than merely subjecting the claim of wrongdoing to screening for minimal merit. (Id. at 93.)
In sum, the trial court properly found that Anabi's right-of-first-refusal claims arose from iFuel and Yepremyan's entry into the Halaka settlement agreement, which was protected under Subdivision (e)(2).
2. Second Step
For the same reasons Anabi forfeited its challenge to the trial court's second-step analysis of the intentional interference claim, Anabi forfeited its challenge to the court's second-step analysis of the right-of-first-refusal claims. First, Anabi failed to address the second step in its opening brief. (See, e.g., Paulus, supra, 139 Cal.App.4th at 666, 684-685.) Second, even in its reply brief, Anabi failed to develop any argument that the court erred in relying on two of its three alternative reasons for its conclusion. (See People v. Guzman, supra, 8 Cal.5th at 683, fn. 7; In re Phoenix H., supra, 47 Cal.4th at 845.) Anabi did not address the court's reasoning that: (1) Anabi's right of first refusal was necessarily subject to Halaka's right, as owner of the subject property, to extinguish the leasehold interest to which the right of first refusal applied; and (2) the right of first refusal had not been triggered because the Halaka settlement agreement, like the stipulated judgment in Campbell, supra, 71 Cal.App.4th 200, was not a voluntary sale. Anabi neither cited nor attempted to distinguish Campbell. We need not develop Anabi's belated argument for it, and it would be unfair to iFuel and Yepremyan to do so.
Anabi cited only a single case, and only in challenging the court's third alternative reason for its conclusion, viz., that Anabi could not have matched Halaka's offer to dismiss her claims against iFuel.
Contrary to Anabi's contention, iFuel and Yepremyan did not affirmatively raise the merits of the right-of-first-refusal claims. In their opening brief, iFuel and Yepremyan addressed the second step of the anti-SLAPP analysis only with respect to the nonpayment claims. In their respondent's brief, iFuel and Yepremyan argued Anabi had forfeited any second-step argument concerning the right-of-first-refusal claims.
Because the trial court properly found, at the first step of the anti-SLAPP analysis, that the right-of-first-refusal claims arose from protected activity, and Anabi forfeited any challenge to the court's analysis at the second step, we affirm the court's order to the extent it granted iFuel and Yepremyan's motion to strike the right-of-first-refusal claims.
D. Nonpayment Claims
The trial court denied iFuel and Yepremyan's anti-SLAPP motion with respect to Anabi's nonpayment claims, which alleged that iFuel and Yepremyan committed an anticipatory breach of their payment obligations under the RPSA, the RFDIPA, and Yepremyan's guaranty. iFuel and Yepremyan contend the court erred. We disagree.
Anabi's nonpayment claims arose from iFuel and Yepremyan's alleged decision to repudiate their contractual payment obligations. The anti-SLAPP statute does not protect such a refusal to pay sums allegedly due under a contract. (See Personal Court Reporters, Inc. v. Rand (2012) 205 Cal.App.4th 182, 190 [anti-SLAPP statute did not protect “nonpayment of overdue invoices” for court reporting services]; Century 21 Chamberlain & Associates v. Haberman (2009) 173 Cal.App.4th 1, 7 [anti-SLAPP statute did not protect failure to pay interest on loan].) It is immaterial that the repudiation was allegedly communicated through Yepremyan's letter notifying Anabi of the Halaka settlement agreement. The settlement and notice thereof were alleged merely to provide context and evidentiary support for the activity from which the claims arose, viz., the alleged repudiation of the payment obligations. (See Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 596 & fn.10 [event-planning company's breach of contract claim against city, based on city's ending long-standing arrangement to license property to company, arose from “the City's decision to end the licensing relationship (whether that decision [wa]s doctrinally categorized as a breach of contract or as an anticipatory repudiation of a contract), not the expressive act of declaring an end to the relationship by email”]; Mission Beverage Co. v. Pabst Brewing Co., LLC (2017) 15 Cal.App.5th 686, 702 [distributor's claims against brewer for anticipatory breach of distribution agreement arose from brewer's “decision to repudiate” agreement; “the fact that the repudiation was communicated through a letter d[id] not alter the basis of those claims”].)
iFuel and Yepremyan omit this allegation from their otherwise extensive quotations from Anabi's complaint; it contradicts their argument that the complaint framed the nonpayment claims as arising from their entry into the settlement agreement. Contrary to their suggestion, this allegation was not negated or transformed into an allegation of protected activity merely because they produced evidence that they continued to meet their contractual obligations to Anabi. As the trial court observed, though potentially relevant to the second-step analysis of the merits of the nonpayment claims, this evidence was irrelevant to determining whether the claims arose from iFuel and Yepremyan's alleged repudiation of the payment terms. Anabi alleged iFuel and Yepremyan repudiated the payment terms by providing notice of “the intent to sell the business to Halaka and of the intent to cease making purchases of motor gasoline” (implicitly, without expressing any intent to pay liquidated damages or reimburse Anabi for the improvements it funded). Yepremyan's declaration clarified that this notice was contained in Yepremyan's February 10, 2019 letter to Anabi, which stated that the gas station would soon “revert” to Halaka pursuant to the Halaka settlement agreement, and that iFuel wished to cooperate in the “removal of any [Shell] signage or other Anabi possessions” from the station.
The cases on which iFuel and Yepremyan principally rely are distinguishable. (See Cheveldave, supra, 27 Cal.App.5th at 1208-1212 [claims against homeowners association arose from association's entry into settlement agreement, where plaintiffs “framed their case as being about the Association's lack of standing to enter into the Agreement, ” and sought declaration that agreement was void]; Optional Capital, Inc. v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th 95, 103-104, 114-115 [claims against attorneys, alleging they conspired with their client and others to fraudulently transfer certain funds to their client, arose from attorneys' protected activity in representing their client in litigation over funds]; O&C Creditors, supra, 42 Cal.App.5th at 569 [claim challenging defendant's nonpayment of attorney lien from settlement funds arose from protected activity, as defendant was “carrying out the terms of the settlement agreement” in disbursing settlement funds to designated recipients, rather than to lienholder]). Contrary to their contention, iFuel and Yepremyan were not “carrying out the terms of the [Halaka] settlement” in allegedly repudiating the payment obligations. The Halaka agreement did not require such a repudiation, as it did not prohibit iFuel and Yepremyan from paying money to Anabi (a nonparty to the agreement, the Halaka action, and the underlying lease).
In sum, the trial court properly denied iFuel and Yepremyan's anti-SLAPP motion with respect to the nonpayment claims, on the ground that the claims did not arise from protected activity. We need not address the second step of the anti-SLAPP analysis with respect to these claims.
DISPOSITION
The trial court's order granting Halaka's anti-SLAPP motion in its entirety, granting iFuel and Yepremyan's anti-SLAPP motion in part, and denying the remainder of the latter motion is affirmed. Halaka is entitled to recover her costs on appeal from Anabi. Anabi, iFuel, and Yepremyan shall bear their own costs on appeal.
WE CONCUR: WILLHITE, J., CURREY, J.