Filed 9/20/18

                     CERTIFIED FOR PARTIAL PUBLICATION*

          IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                           FOURTH APPELLATE DISTRICT

                                      DIVISION TWO



    MOSS BROS. TOY, INC.,

          Plaintiff and Appellant,                    E067240

    v.                                                (Super.Ct.No. CIVDS1603069)

    ERNESTO RUIZ,                                     OPINION

          Defendant and Respondent.




         APPEAL from the Superior Court of San Bernardino County. John M. Pacheco,

Judge. Affirmed.

         Fine, Boggs & Perkins, John P. Boggs, David J. Reese, and Roman Zhuk for

Plaintiff and Appellant.

         Parris Law Firm, R. Rex Parris, Kitty K. Szeto, John M. Bickford, and Eric N.

Wilson for Defendant and Respondent.




* Pursuant to California Rules of Court, rules 8.1105(b) and 8.1110, this opinion is
certified for publication with the exception of part III. C. and D.


                                             1
                                   I. INTRODUCTION

       Plaintiff and appellant, Moss Bros. Toy, Inc. (MBT), appeals from the order

granting defendant and respondent, Ernesto Ruiz’s, anti-SLAPP1 motion, or special

motion to strike MBT’s entire first amended complaint (FAC) against Ruiz. (§ 425.16,

subd. (i).) The FAC alleges MBT is Ruiz’s former employer and that Ruiz breached two

March 2010 arbitration agreements with MBT by failing to submit Ruiz’s employment-

related claims against MBT to arbitration, and by instead filing a lawsuit for his

employment-related claims against MBT’s agent, Moss Bros. Auto Group, Inc. (MBAG),

in San Bernardino County Superior Court case No. CIVDS2107201. In this appeal, MBT

claims the anti-SLAPP motion was erroneously granted because the FAC is not based on

protected activity (§ 425.16, subd. (e)), but is instead based on Ruiz’s breach of his

March 2010 arbitration agreements with MBT. MBT also claims it demonstrated a

probability of prevailing on its claims alleged in the FAC.

       We affirm the order granting the anti-SLAPP motion. In the published portion of

this opinion, we explain that the entire FAC is based on protected activity, namely,

Ruiz’s act of filing his lawsuit against MBAG for his employment-related claims in case

No. CIVDS2107201—even though the FAC is also based on Ruiz’s alleged breach of the

2010 arbitration agreements. In the unpublished portion of this opinion, we explain that



       1  “SLAPP is an acronym for ‘strategic lawsuit against public participation.’”
(Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 732, fn. 1; see Code Civ.
Proc., § 425.16.) All further statutory references are to the Code of Civil Procedure
unless otherwise stated.

                                             2
MBT failed to demonstrate a probability of prevailing on its claims against Ruiz as

alleged in the FAC.

                  II. FACTS AND PROCEDURAL BACKGROUND

A. Ruiz’s July 2012 Complaint Against MBAG, and MBAG’s First Unsuccessful Petition

to Compel Arbitration of Ruiz’s Employment-related Claims

      In July 2012, Ruiz filed a putative class action complaint against MBAG in case

No. CIVDS2107201. (Ruiz v. Moss Bros. Auto Group, Inc. (2014) 232 Cal.App.4th 836,

838 (Ruiz I).)2 In that action, Ruiz alleged that MBAG was his employer and that MBAG

failed to (1) pay Ruiz and other employees overtime and other wages, (2) provide

required meal and rest breaks, (3) provide accurate and complete wage statements, (4)

reimburse business expenses, and (5) timely pay final wages. The complaint also alleged

representative claims and sought civil penalties on behalf of Ruiz, other MBAG

employees, and the state pursuant to the Labor Code Private Attorneys General Act of

2004 (PAGA). (Lab. Code, § 2698 et seq.; Ruiz I, supra, at p. 838.)

      In August 2012, MBAG petitioned the trial court to compel arbitration of Ruiz’s

individual employment-related claims, pursuant to an arbitration agreement that MBAG

claimed Ruiz had electronically signed on September 21, 2011 (the 2011 agreement).3

      2  On our own motion, we take judicial notice of our published decision in Ruiz I.
(Evid. Code, §§ 452, subd. (d), 459, subd. (a).)

      3  MBAG asked the trial court to dismiss Ruiz’s putative class action and PAGA
claims, as part of its order compelling arbitration of Ruiz’s individual claims, on the
ground Ruiz had waived his right to bring PAGA and putative class action claims by
electronically signing the 2011 agreement. (Ruiz I, supra, 232 Cal.App.4th at p. 839, fn.


                                            3
The trial court denied MBAG’s petition to compel arbitration, MBAG appealed, and in

Ruiz I we affirmed the order denying the petition. We concluded MBAG had failed to

present sufficient evidence to meet its burden of showing by a preponderance of the

evidence that Ruiz was the person who electronically signed the 2011 agreement, or that

the 2011 agreement existed, after Ruiz claimed in an opposing declaration that he did not

recall electronically signing the 2011 agreement. (Ruiz I, supra, 232 Cal.App.4th at pp.

838, 840-842; Civ. Code, § 1633.9.)

       We also concluded in Ruiz I that MBAG could not rely on two other arbitration

agreements to support its petition—a March 4, 2010, arbitration agreement that MBAG

claimed Ruiz electronically signed on March 4, 2010, as part of Ruiz’s online

employment application, and a March 12, 2010, arbitration agreement that MBAG

claimed Ruiz signed by hand when he was hired on March 12, 2010. (Ruiz I, supra, 232

Cal.App.4th at pp. 841, 846.) We explained that MBAG’s petition sought to compel

arbitration based solely on the 2011 agreement, and that MBAG did not mention the 2010

agreements until it filed its reply papers. (Ibid.) Thus, the 2010 arbitration agreements

were not properly presented to the trial court as a basis to compel arbitration of Ruiz’s


4.) We explained in Ruiz I it had “since become clear,” based on our Supreme Court’s
holding in Iskanian v. CLS Transportation Los Angeles, LLC (2014) 59 Cal.4th 348, 360,
that the PAGA claim waiver was unenforceable (Ruiz I, supra, at p. 839, fn. 4). We also
concluded it was unnecessary to determine whether the putative class action waiver in the
2011 agreement was enforceable because MBAG had not adduced sufficient evidence
that Ruiz had electronically signed the 2011 agreement, which MBAG was required to do
after Ruiz averred in his opposition declaration that he did not recall signing the
September 2011 agreement. (Id. at pp. 839, fn. 4, 840-842, 845-846.)


                                             4
employment-related claims, and those agreements were not properly before this court in

Ruiz I.4 (Ruiz I, supra, 232 Cal.App.4th at p. 846.)

B. MBAG’s Second Petition to Compel Arbitration and MBT’s Subsequent Motion to

Intervene in Case No. CIVDS2107201

       In March 2015, shortly after the remittitur issued in Ruiz I, MBAG filed a second

petition to compel arbitration of Ruiz’s individual employment-related claims. (Ruiz v.

Moss Bros. Toy, Inc. (Mar. 10, 2017, E063953) [nonpub. opn.] (Ruiz II).)5 In its second

petition, MBAG claimed for the first time that Ruiz had been employed by MBT, that

Ruiz had never been employed by MBAG, and that MBT, not MBAG, had entered into

all three arbitration agreements with Ruiz—the two 2010 agreements and the 2011

agreement. (Id. [at pp. 6-7].)6




       4 The 2010 agreements did not contain waivers of the employee’s right to bring
putative class action or PAGA claims—unlike the 2011 agreement, which included such
waivers. (Ruiz I, supra, 232 Cal.App.4th at p. 841.)

       5 On our own motion, we take judicial notice of our unpublished decision in Ruiz
II. (Evid. Code, §§ 452, subd. (d), 459, subd. (a).)

       6  As we observed in Ruiz II, MBAG explained that MBT was “‘a member of a
dealership group, consisting of multiple, independently franchised automobile dealerships
and service/parts centers, operating in Riverside and San Bernardino Counties,’” and
MBT had the “‘same dispute resolution program,’” namely, binding individual
arbitration, “‘adopted by each independently franchised automobile dealership and
service/parts center in the entire group.’” (Ruiz II, supra, E063953 [at p. 6].) “[MBAG]
thus suggested, without expressly stating, that [MBAG] was a dealership group and that
MBT was one of several dealerships and service/parts centers comprising [MBAG].” (Id.
[at pp. 6-7].)


                                             5
       Although MBAG’s second motion to compel arbitration was based on all three

agreements, MBAG argued that the 2011 agreement “‘should control’” because it was the

“‘last-in-time’” of the three agreements. (Ruiz II, supra, E063953 [at p. 7].) MBAG

argued it was entitled to compel arbitration of Ruiz’s employment-related claims with

MBT because MBAG was “‘an intended third-party beneficiary of the [three] arbitration

agreements’ between Ruiz and MBT.” (Id. [at p. 9].)7 MBAG wrote that it

“‘anticipated’” that MBT would “‘file for joinder in this action’ because, as Ruiz’s

employer, MBT had ‘a direct interest in both the subject matter and arbitration of

[Ruiz’s] claims . . . .’” (Ruiz II, supra, E063953 [at p. 9].)

       In April 2015, MBT filed an application to intervene in case No. CIVDS2107201

and to join MBAG’s second petition to compel arbitration in that action. (Ruiz II, supra,

E063953 [at p. 9].) Following a May 2015 hearing, the court denied MBAG’s second

motion to compel arbitration, noting that the motion was “‘nothing more than [an

untimely] renewal motion arising from the denial of [MBAG’s] earlier petition . . . .’”

(Id. [at p. 10].) The court also denied MBT’s application to intervene as untimely, noting

the application was “‘nothing more than a thinly-veiled attempt by [MBT] to get yet

another bite at the apple as to its enforcement of the 2010 and/or 2011 arbitration

agreements that are at the center of this dispute.’” (Id. [at pp. 10-11].) The court also


       7  In Ruiz II, we observed that the March 12, 2010, agreement identified “MOSS
Bros. Toyota-Scion” or MBT as the “Company” or employer of Ruiz. We also observed
that both the March 4, 2010, agreement and the 2011 agreement used the term
“Company,” but neither of these agreements identified the Company or the employer as
either MBT or MBAG. (Ruiz II, supra, E063953 [at p. 7].)

                                               6
observed that MBAG and MBT were represented by the same counsel, and that in its first

motion to compel arbitration MBAG adduced that MBT was Ruiz’s “‘actual employer,’”

but MBT did not seek to intervene “‘at that time.’” (Id. [at p. 11].)

       In Ruiz II, we affirmed the order denying MBT’s application to intervene in case

No. CIVDS2107201. (Ruiz II, supra, E063953 [at pp. 12-18].) We explained that MBT

had unreasonably delayed in applying to intervene, there was no excuse for the delay, and

MBT did not explain why it did not seek to intervene at the outset of Ruiz’s suit against

MBAG in case No. CIVDS2107201. (Id. [at pp. 14-18].) MBT did not seek to intervene

in the action until after MBAG had appealed the denial of its first petition to compel

arbitration, and until after we affirmed the denial of MBAG’s first petition to compel

arbitration in Ruiz I. (Ruiz II, supra, E063953 [at p. 18].)

C. MBT’s Current Lawsuit Against Ruiz

       In September 2015, shortly after the trial court denied MBT’s application to

intervene in case No. CIVDS2107201, MBT filed a complaint against Ruiz in Riverside

County Superior Court, case No. RIC1511040, for breach of written contract for

arbitration of disputes and breach of the covenant of good faith and fair dealing. The

complaint alleged Ruiz breached the March 4 and March 12, 2010, arbitration agreements

by “fail[ing] to submit his employment-related disputes to binding arbitration” and by

instead “fil[ing] a [c]omplaint” against MBAG for his employment-related claims in San

Bernardino County Superior Court, case No. CIVDS2107201. MBT also filed a “notice

of related cases,” advising the Riverside County Superior Court that its newly filed action



                                              7
in Riverside County Superior Court case No. RIC1511040 was related to San Bernardino

County Superior Court case No. CIVDS2107201. Case No. RIC1511040 was transferred

to San Bernardino County and was assigned, as case No. CIVDS1603069, to Judge

Pacheco, the judge presiding over case No. CIVDS2107201 and who had issued the

orders appealed in Ruiz I and Ruiz II. MBT moved to consolidate the two cases, but

Judge Pacheco denied the motion “as an improper attempt to circumvent the Court’s prior

ruling on [MBT’s] motion to intervene . . . .” MBT also petitioned to compel arbitration

of the breach of contract and employment-related claims in both cases—this was the third

motion to compel arbitration of Ruiz’s individual employment-related claims—but this

motion was also denied.

       The court sustained Ruiz’s demurrer to MBT’s complaint with leave to amend,

and MBT later filed the FAC. The FAC alleges three causes of action against Ruiz:

breach of written contract for arbitration of disputes, breach of the covenant of good faith

and fair dealing, and specific performance of MBT’s arbitration contracts with Ruiz.

Each cause of action is based on Ruiz’s act of refusal to submit his employment-related

claims to arbitration and his act of filing of his putative class action complaint against

MBAG in case No. CIVDS2107201.

       The FAC specifically alleges Ruiz was employed by MBT and Ruiz breached the

2010 arbitration agreements with MBT by “fail[ing] to submit his employment-related

disputes” to arbitration and, “by filing a Complaint for employment-related claims




                                              8
[against MBAG] . . . in Case No. CIVDS2107201.”8 (Italics added.) The FAC alleges

MBAG is “a third-party beneficiary” of the 2010 arbitration agreements because MBAG

is MBT’s agent, and an affiliate of MBT’s employee benefit and health plans, and by

signing the 2010 arbitration agreements, Ruiz agreed to arbitrate all employment-related

claims against MBT and its agents and such affiliates. Regarding damages, the FAC

alleges that, by signing the 2010 arbitration agreements, Ruiz “waived [his] right to

represent a class” or file a putative class action lawsuit on behalf of other automotive

technicians, and, as a result, MBT has incurred and will incur attorney fees, legal costs,

lost employee time, and other damages in responding to “class discovery,” and an

anticipated “[m]otion for [c]lass [c]ertification.” The FAC alleges MBT may be liable

for any damages its agent, MBAG, is found liable for in case No. CIVDS2107201.

Finally, the FAC seeks specific performance of Ruiz’s 2010 arbitration agreements with

MBT.

D. The Trial Court’s Ruling on Ruiz’s Anti-SLAPP Motion

       Ruiz moved to strike the entire FAC as a SLAPP (§ 425.16) along with a general

demurrer to the entire FAC (§ 430.10, subds. (e), (f)). The court granted the anti-SLAPP

motion and deemed the demurrer moot. In granting the anti-SLAPP motion, the court

ruled Ruiz had shown that “the alleged acts were in furtherance of his right of petition”

and MBT had failed to demonstrate a probability of prevailing on its claims as alleged in

the FAC. MBT timely filed this appeal. (§§ 425.16, subd. (i), 904.1.)

       8The March 4, 2010, and March 12, 2010, arbitration agreements are attached to
the FAC as exhibits A and B, respectively.

                                             9
                                      III. DISCUSSION

A. Applicable Legal Principles and Standard of Review

       “The anti-SLAPP statute ‘“is designed to protect citizens in the exercise of their

First Amendment constitutional rights of free speech and petition. It is California’s

response to the problems created by meritless lawsuits brought to harass those who have

exercised these rights.’” [Citation.]” (Century 21 Chamberlain & Associates v.

Haberman (2009) 173 Cal.App.4th 1, 6. (Haberman).) The anti-SLAPP statute provides:

“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 . . . shall be subject to a special motion to

strike, unless the court determines . . . there is a probability that the plaintiff will prevail

on the claim.” (§ 425.16, subd. (b)(1), italics added.)

       “Resolution of an anti-SLAPP motion involves two steps.” (Baral v. Schnitt

(2016) 1 Cal.5th 376, 384 (Baral).) The court first determines whether the defendant has

met its burden of making a threshold showing that the challenged claim “arises from”

activity protected by section 425.16. (Ibid.) The defendant meets this burden by

showing that the “act” underlying the claim—that is, the act constituting the factual basis

of the claim—fits one of the four categories of protected activities described in section

425.16, subdivision (e). (See Navellier v. Sletten (2002) 29 Cal.4th 82, 88 (Navellier).)

       If the court determines the defendant has met its threshold burden, it then

determines whether the plaintiff has demonstrated a probability of prevailing on the

merits of the challenged claim. (Baral, supra, 1 Cal.5th at pp. 384-385.) To meet its



                                               10
burden, the plaintiff must state and substantiate a legally sufficient claim; it must show

that the challenged claim is both legally sufficient and supported by a prima facie

evidentiary showing of facts to sustain a favorable judgment if the evidence submitted by

the plaintiff is credited. (See Navellier, supra, 29 Cal.4th at pp. 88-89.)

       In the anti-SLAPP context, a claim is not to be confused with a cause of action.

(See § 425.16, subd. (b)(1); Baral, supra, 1 Cal.5th at p. 393.) A claim is an act

underlying a cause of action, but it is not necessarily the sole act underlying the cause of

action. (See Baral, supra, at pp. 384-393.) This distinction is important when a cause of

action is based on protected and unprotected activity. Section 425.16 is designed to

eliminate only those parts of a cause of action which are based on the defendant’s

protected activity and which the plaintiff cannot substantiate. (Baral, supra, at p. 393.)

       We review an order granting or denying an anti-SLAPP motion de novo. (Flatley

v. Mauro (2006) 39 Cal.4th 299, 325.) That is, we exercise our independent judgment in

determining whether the challenged claim arises from protected activity, and if so

whether the plaintiff has demonstrated a probability of prevailing on the claim. (Park v.

Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1067 (Park).) In

determining whether a challenged claim arises from protected activity, 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); Navellier, supra, 29 Cal.4th at p.

89.)




                                             11
B. The Entire FAC Is Based on Ruiz’s Protected Right of Petition

       MBT claims none of the causes of action or claims alleged in the FAC arise from

Ruiz’s protected right of petition. We disagree. As we explain, the entire FAC is based

on Ruiz’s protected right of petition. (§ 425.16, subd. (e)(1), (2).)

       As noted, section 425.16 provides: “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 Constitution or the California Constitution in connection with a

public issue shall be subject to a special motion to strike . . . .” (§ 425.16, subd. (b)(1),

italics added.) For these purposes, an “‘act in furtherance of a person’s right of petition

or free speech’” includes the four categories of activities described in section 425.16,

subdivision (e). The relevant categories here are: “(1) any written or oral statement or

writing made before a legislative, executive, or judicial proceeding, . . . , (2) any written

or oral statement or writing made in connection with an issue under consideration or

review by a legislative, executive, or judicial body . . . .” (§ 425.16, subd. (e)(1), (2).)

       “A claim arises from protected activity when that activity underlies or forms the

basis for the claim. [Citations.] Critically, ‘the defendant’s act underlying the plaintiff’s

cause of action must itself have been an act in furtherance of the right of petition or free

speech.’ [Citations.] ‘[T]he mere fact that an action was filed after protected activity

took place does not mean the action arose from that activity for the purposes of the anti-

SLAPP statute.’ [Citations]. Instead, the focus is on determining what ‘the defendant’s

activity [is] that gives rise to his or her asserted liability—and whether that activity



                                              12
constitutes protected speech or petitioning.’ [Citation.] ‘The only means specified in

section 425.16 by which a moving defendant can satisfy the [“arising from”] requirement

is to demonstrate that the defendant’s conduct by which plaintiff claims to have been

injured falls within one of the four categories described in subdivision (e) . . . .’

[Citation.] In short, in ruling on an anti-SLAPP motion, courts should consider the

elements of the challenged claim and what actions by the defendant supply those

elements and consequently form the basis for liability.” (Park, supra, 2 Cal.5th at pp.

1062-1063.)

       Here, Ruiz’s anti-SLAPP motion is directed to the entire FAC. Although the FAC

alleges three causes of action, it effectively pleads a single “claim” against Ruiz for his

breach of the 2010 arbitration agreements with MBT based on his refusal to submit his

individual employment-related claims to arbitration and his act of instead filing a putative

class action complaint for those claims and others against MBT’s agent, MBAG, in case

No. CIVDS2107201. (Navellier, supra, 29 Cal.4th at p. 92 [“The anti-SLAPP statute’s

definitional focus is not the form of the plaintiff’s cause of action but, rather, the

defendant’s activity that gives rise to his or her asserted liability—and whether that

activity constitutes protected speech or petitioning.”].]

       The FAC alleges Ruiz “breached the arbitration contracts by filing a complaint for

employment-related claims” against MBAG, and if MBAG is found liable in case No.

CIVDS2107201, then MBT may be liable for the actions of its agent, MBAG, even

though MBT is not a named defendant in the case. The FAC seeks money damages for



                                              13
MBT’s liability, if any, in case No. CIVDS2107201, and for “legal costs, attorney fees,

and time spent” by MBT’s employees and officers in responding to class discovery in

case No. CIVDS2107201, which the FAC alleges MBT would not have incurred if Ruiz

had submitted his individual employment-related claims to arbitration as the 2010

agreements required. The FAC also seeks a judgment compelling Ruiz’s specific

performance of the 2010 arbitration agreements. Thus, the FAC is based entirely on

Ruiz’s protected act of filing the complaint against MBAG, an act Ruiz took “in

furtherance of [his] right of petition. . . .” (§ 425.16, subd. (b)(1); Navellier, supra, 29

Cal.4th at p. 90 [the constitutional right of petition encompasses “‘“‘the basic act of filing

litigation.’”’”].)

       Navellier is instructive. There, the defendant, Sletten, entered into an agreement

and a release of claims (the Release), with the plaintiffs, after the plaintiffs sued Sletten

in federal district court. (Navellier, supra, 29 Cal.4th at pp. 85-86.) The plaintiffs later

filed an amended complaint in the federal court action, and Sletten filed counterclaims for

breach of the Release and related claims. (Id. at p. 86.) After the plaintiffs and Sletten

lost on their respective claims in the federal court action, the plaintiffs sued Sletten in

state court, “alleging that Sletten had committed fraud in misrepresenting his intention to

be bound by the Release, so as to induce plaintiffs to incur various litigation costs in the

federal action that they would not have incurred had they known Sletten’s true intentions.

Plaintiffs also alleged Sletten had committed breach of contract by filing counterclaims in




                                              14
the federal action.” (Id. at p. 87.) Sletten filed a special motion to strike the plaintiffs’

entire complaint as a SLAPP. (Ibid.)

       The Navellier court held that the plaintiffs’ complaint against Sletten for breach of

the Release was based on Sletten’s protected act of filing his counterclaims in the federal

court action. (Navellier, supra, 29 Cal.4th at p. 90.) The court reasoned: “Sletten is

being sued because of the affirmative counterclaims he filed in federal court. In fact, but

for the federal lawsuit and Sletten’s alleged actions taken in connection with that

litigation, plaintiffs’ present claims would have no basis. This action therefore falls

squarely within the ambit of the anti-SLAPP statute’s ‘arising from’ prong.” (Ibid.,

italics added, fn. omitted.)

       Similarly here, MBT is suing Ruiz because of the putative class action complaint

Ruiz filed against MBAG. But for Ruiz’s filing of the complaint against MBAG, MBT’s

FAC against Ruiz for breach of the 2010 arbitration agreements would have no factual

basis, and MBT would not have incurred any of the damages the FAC alleged MBT has

and will incur as a result of Ruiz’s breach of the 2010 arbitration agreements and his

failure to submit his individual employment-related claims to arbitration. In the language

of section 425.16, Ruiz’s act of filing the complaint against MBAG involved Ruiz’s

“statement[s] or writing[s] made before a . . . judicial proceeding” (§ 425.16, subd.

(e)(1)), and “statement[s] or writing[s] made in connection with an issue under

consideration or review by a . . . judicial body” (id., subd. (e)(2)). That is, Ruiz’s act of




                                              15
filing the complaint against MBGA involved Ruiz’s protected “‘“‘basic act of filing

litigation.’”’” (Navellier, supra, 29 Cal.4th at p. 90.)

       MBT argues the FAC is not based on Ruiz’s protected right of petition, but is

instead based on Ruiz’s breach of the 2010 arbitration agreements and MBT’s contractual

right to enforce Ruiz’s performance of those agreements. To be sure, the FAC is based

on Ruiz’s breach of the 2010 arbitration agreements and on MBT’s alleged right to

enforce Ruiz’s performance of those agreements. But this does not mean the FAC cannot

also be based, and is not also based, on Ruiz’s protected right of petition or act of filing

the complaint against MBAG.

       The Navellier court rejected a similar claim. The plaintiffs in Navellier argued

their complaint was not covered by section 425.16, but was, instead, “‘a garden variety

breach of contract and fraud claim.’” (Navallier, supra, 29 Cal.4th at p. 90.) As the

Navellier court explained, this claim is based on the “false dichotomy between actions

that target ‘the formation or performance of contractual obligations’ and those that target

‘the exercise of the right of free speech.’ [Citation.] A given action, or cause of action,

may indeed target both. . . . [C]onduct alleged to constitute breach of contract may also

come within constitutionally protected speech or petitioning.” (Id. at p. 92.)9


       9  Following Navellier, other courts have recognized the false dichotomy between
claims based on a defendant’s breach of contract and the defendant’s act of filing
litigation. (E.g., Feldman v. 1100 Park Lane Associates (2008) 160 Cal.App.4th 1467,
1483-1484 [“[I]t is established that conduct alleged to constitute a breach of contract may
also come within the statutory protections for protected speech or petitioning.”]; Area 51
Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 597 [recognizing same];
Aron v. WIB Holdings (2018) 21 Cal.App.5th 1069, 1083.)

                                              16
       MBT’s reliance on Haberman, supra, 173 Cal.App.4th 1 is misplaced. There, the

plaintiffs sued Haberman for account stated, alleging she failed to pay interest on a loan,

and for declaratory relief that there was no agreement to submit the account stated claim

to private arbitration. (Id. at p. 6.) The Haberman court held neither claim arose from

Haberman’s protected activity. (Id. at p. 7.) Instead, the account stated claim arose from

Haberman’s alleged act of failing to pay interest on the loan, and the declaratory relief

claim arose from Haberman’s alleged act of demanding that the plaintiffs arbitrate a

negligence claim against them. (Id. at pp. 7-8.) Regarding the declaratory relief claim,

the court explained that a demand to commence private arbitration does not fall into any

of the four categories of protected activity described in section 425.16, subdivision (e).

(Haberman, supra, at pp. 7-9.) The court explained , “[a]rbitration is not a judicial

proceeding—it is an alternative thereto[,]” and arbitration is also not an “‘official

proceeding authorized by law.’” (Id. at p. 8; § 425.16, subd. (e)(1), (2).) A demand to

commence private arbitration also does not fall into the final two categories of protected

activity described in section 425.16, subdivision (e), which protect “statements ‘made in

. . . a public forum in connection with an issue of public interest’ (§ 425.16, subd. (e)(3))

and ‘conduct . . . in connection with a public issue or an issue of public interest.’

(§ 425.16, subd. (e)(4).)” (Haberman, supra, at p. 9.)

       Haberman does not support MBT’s argument that the FAC is based on Ruiz’s

breach of the 2010 arbitration agreements rather than on Ruiz’s protected right of petition

in filing the putative class action complaint against MBAG. Unlike the FAC, the



                                              17
complaint in Haberman was not based on Haberman’s protected act of filing a lawsuit.

Instead, the complaint sought declaratory relief that no arbitration agreement existed, and

was therefore based on Haberman’s demand for private arbitration, which is not a

protected activity. (Haberman, supra, 173 Cal.App.4th at pp. 7-9.) The FAC is not

based on the unprotected act of demanding private arbitration. It is instead based on

Ruiz’s protected act of filing the complaint against MBAG.

       MBT also relies on City of Alhambra v. D’Ausilio (2011) 193 Cal.App.4th 1301

(City of Alhambra) for the proposition that the FAC is based on Ruiz’s unprotected act of

refusing to arbitrate his individual employment-related claims with MBT—that is, Ruiz’s

breach of the 2010 arbitration agreements. City of Alhambra is also distinguishable. In

that case the defendant, D’Ausilio, a former employee of the City of Alhambra and

president of the Alhambra Firefighters’ Association (AFA), sued the city for civil rights

violations, and the parties entered into a settlement agreement. (Id. at pp. 1303-1304.)

As part of the settlement agreement, D’Ausilio agreed not to “‘represent, participate, or

advocate for, any Alhambra employee(s)’ including AFA members” for a period of

approximately five years between 2007 and 2012. In October 2008, D’Ausilio allegedly

breached the settlement agreement by (1) participating in an AFA meeting and

advocating that AFA members join a demonstration against the city, and (2) participating

in a protest by city employees against the city. (Id. at p. 1304.) The city sued D’Ausilio

for breach of contract, money had and received, and declaratory relief that the settlement

agreement was valid and D’Ausilio had breached the agreement. (Id. at pp. 1304-1305.)



                                            18
D’Ausilio countersued, “seeking a nearly identical judicial declaration,” and filed a

special motion to strike the city’s cause of action for declaratory relief. (Id. at p. 1305.)

       The City of Alhambra court held that the declaratory relief claim was not based on

D’Ausilio’s protected activity of participating in the demonstrations against the city, but

was instead based on the parties’ “actual, present controversy . . . regarding the scope and

enforceability” of the settlement agreement. (City of Alhambra, supra, 193 Cal.App.4th

at p. 1307.) The court reasoned: “The City did not sue [D’Ausilio] because he engaged

in protected speech; the City sued him because it believed he breached a contract which

prevented him from engaging in certain speech-related conduct and a dispute exists as to

the scope and validity of that contract.” (Id. at p. 1308.) Here, in contrast, MBT sued

Ruiz because he filed the putative class action complaint against MBAG rather than

submit his individual employment related claims to arbitration.

       In a subsequent anti-SLAPP case, Mundy v. Lenc (2012) 203 Cal.App.4th 1401

(Mundy), Division Two of the Second Appellate District—the same court that decided

City of Alhambra —distinguished City of Alhambra as “[arising] over the enforceability

and scope of a settlement agreement and not from the plaintiff’s exercise of the right of

petition.” (Mundy, supra, at p. 1408.) The plaintiff, Mundy, a disabled person, sued

Lenc, a bar owner, alleging Lenc failed to comply with the Americans with Disabilities

Act (ADA; 42 U.S.C. § 12101 et seq.). (Id. at pp. 1404-1405.) The parties entered into a

settlement agreement, which included a general release of claims and a Civil Code




                                              19
section 1542 waiver, whereby Mundy agreed to waive unknown and unanticipated ADA

claims against Lenc. (Mundy, supra, at p. 1405.)

       Despite the settlement agreement, Mundy sued Lenc a second time for another

ADA violation, and Lenc cross-complained against Mundy for breach of the settlement

agreement. (Mundy, supra, 203 Cal.App.4th at p. 1405.) Mundy moved to strike the

cross-complaint as a SLAPP. (Ibid.) The Mundy court held the cross-complaint was

based on Mundy’s protected activity in filing the second ADA action against Lenc, and

distinguished its decision in City of Alhambra as involving a “dispute . . . over the

enforceability and scope of a settlement agreement and not [arising] from the plaintiff’s

exercise of the right of petition.” (Mundy, supra, at pp. 1408-1409.)

       Like Mundy, other courts have recognized the critical distinction, in the anti-

SLAPP context, between claims based on the protected act of filing a lawsuit and claims

based solely or distinctly on the alleged breach of an agreement, and similar claims for

declaratory relief. For example, in City of Cotati v. Cashman (2002) 29 Cal.4th 69, the

court held the city’s state court action against mobilehome park owners for a judgment

declaring the city’s rent stabilization ordinance constitutional was not based on protected

activity—because the city’s action was not based on the owners’ protected act of filing a

federal court action seeking to declare the same ordinance unconstitutional. Instead, the

city’s action—indeed both parties’ actions—were based on the parties’ dispute

concerning the constitutionality of the ordinance. (Id. at p. 80.)




                                             20
       Vivian v. Labrucherie (2013) 214 Cal.App.4th 267 is similarly instructive. There,

the plaintiff’s breach of contract claims were based on the defendant’s protected activity

of making statements to internal affairs investigators and in family court papers—even

though, by his challenged claims, the plaintiff was seeking damages for the defendant’s

breach of a settlement agreement “not to disparage” the plaintiff based on the defendant’s

protected statements. (Id. at pp. 270-271, 274.) Because the plaintiff was seeking to

impose liability on the defendant for her acts of making protected statements, the

plaintiff’s action was based on protected activity. (Id. at p. 274.)

       More recently, in Park, supra, 2 Cal.5th 1057, the high court explained that, for a

claim to be based on protected activity, the protected activity “must supply the elements

of the challenged claim.” (Id. at p. 1064.) The court approved the challenged claims in

Navellier as meeting this standard: “The defendant’s [protected] filing of counterclaims

constituted the alleged breach of contract,” and likewise, “the defendant’s

misrepresentation of his intent not to file counterclaims [a protected statement made in

connection with a pending judicial matter (§ 425.16, subd. (e)(1), (2))] supplied an

essential element of the fraud claim.” (Park, supra, at p. 1064.) The court also explained

that a claim is not based on protected activity if it was filed merely because of protected

activity, and noted the distinction between activities that form the basis of a claim and

activities that “merely lead to the liability-creating activity or provide evidentiary support

for the claim.” (Ibid.)




                                             21
       Each of these standards was met here. As discussed, the entire FAC is based on

Ruiz’s protected act of filing the complaint against MBAG, because Ruiz’s act of filing

that complaint against MBAG constitutes the entire basis of the FAC’s singular breach of

contract claim. Ruiz’s act of filing the complaint against MBAG does not merely provide

evidentiary support for the MBT’s breach of contract claim, and the FAC was not filed

merely because Ruiz filed the complaint against MBAG. (Park, supra, 2 Cal.5th at p.

1064.) To the contrary, Ruiz’s protected act of filing the complaint against MBAG

constitutes the “‘conduct by which plaintiff [MBT] claims to have been injured.’” (Id. at

p. 1063; Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 66.)

C. The Federal Arbitration Act (FAA) Does Not Preempt Section 425.16

       MBT claims that section 2 of the FAA (9 U.S.C. § 2) preempts Code of Civil

Procedure section 425.16 to the extent the anti-SLAPP statute can be applied to an action

to compel performance of an arbitration agreement. We disagree. Section 2 of the FAA

preempts “defenses that apply only to arbitration or that derive their meaning from the

fact that an agreement to arbitrate is at issue.” (AT&T Mobility LLC v. Concepcion

(2011) 563 U.S. 333, 339.) Code of Civil Procedure section 425.16 does not provide a

defense to arbitration, and does not derive its meaning from the fact an arbitration

agreement may be in issue. Rather, the anti-SLAPP statute applies to all claims that are

based on acts in furtherance of protected rights of petition and free speech. (§ 425.16,

subds. (b)(1), (e); see Navellier, supra, 29 Cal.4th at p. 89.)




                                              22
       Further, and contrary to MBT’s suggestion, Ruiz’s filing of his complaint against

MBAG did not prevent MBT from seeking to enforce Ruiz’s performance of the 2010

arbitration agreements with MBT. “[T]he anti-SLAPP statute [does not] allow[] a

defendant to escape the consequences of wrongful conduct by asserting a spurious First

Amendment defense. [Citation.] In fact, the statute does not bar a plaintiff from

litigating an action that arises out of the defendant’s free speech or petitioning [citation];

it subjects to potential dismissal only those actions in which the plaintiff cannot ‘state[]

and substantiate[] a legally sufficient claim’ [citation]. . . . [T]he statute poses no

obstacle to suits that possess minimal merit.” (Navellier, supra, 29 Cal.4th at p. 93.) We

now turn to the question of whether the FAC possesses minimal merit.

D. The FAC Lacks Minimal Merit

       MBT claims it met its burden on the second prong of the anti-SLAPP inquiry by

establishing a probability of prevailing on its breach of contract and related claims

alleged in the FAC. Again, we disagree.

       To establish the probability of prevailing on a claim in response to an anti-SLAPP

motion—to state and substantiate a legally sufficient claim, that is, the plaintiff “‘“must

demonstrate that the complaint is both legally sufficient and supported by a sufficient

prima facie showing of facts to sustain a favorable judgment if the evidence submitted by

the plaintiff is credited.”’” (Premier Medical Management Systems, Inc. v. California

Ins. Guarantee Assn. (2006) 71 Cal.Comp.Cases 210, 219.)




                                              23
       In deciding the question of potential or minimal merit, we consider the parties’

pleadings and evidentiary submissions (§ 425.61, subd. (b)(2)), but we do not weigh the

credibility or comparative probative strength of competing evidence (DaimlerChrysler

Motors Co. v. Lew Williams, Inc. (2006) 142 Cal.App.4th 344, 352). “‘Thus, a plaintiff’s

burden as to the second prong of the anti-SLAPP test is akin to that of a party opposing a

motion for summary judgment. [Citation.]’” (Ibid.)

       The FAC alleges Ruiz breached two written arbitration agreements he entered into

with his employer, MBT, on March 4, 2010, and March 12, 2010, by failing to submit his

individual employment-related claims to arbitration and by instead filing the putative

class action complaint for employment-related claims against MBAG in July 2012. The

two 2010 arbitration agreements are attached to the FAC. The FAC seeks to compel

Ruiz’s specific performance of the two arbitration agreements and also seeks damages for

Ruiz’s breach of the two agreements.

       In opposing Ruiz’s anti-SLAPP motion, MBT adduced evidence of two things and

only two things: (1) that Ruiz was employed by MBT (at some point in the past); and (2)

that all expenses associated with defending Ruiz’s complaint against MBAG have been

and will be charged to MBT because MBT was Ruiz’s employer. At the hearing on the

anti-SLAPP motion, Ruiz conceded through his counsel that MBT was his employer.10



       10  Ruiz’s counsel also explained that Ruiz filed his putative class action suit
against MBAG, rather than MBT, because MBAG’s policies applied to all of MBT’s
employees and “everyone” else who worked for automobile dealerships and service/parts
centers in MBAG’s “entire group.” (See fn. 6, ante.)

                                            24
       But critically, MBT adduced no evidence that it entered into either of two alleged

written 2010 arbitration agreements with Ruiz—even though each of the FAC’s causes of

action are based entirely on the two written 2010 arbitration agreements, which the FAC

alleged MBT entered into with Ruiz. Put another way, MBT failed to authenticate either

of the two written 2010 arbitration agreements in opposing Ruiz’s anti-SLAPP motion.

       “The authentication of a writing is required before it may be received in

evidence,” and “before secondary evidence of its content may be received in evidence.”

(Evid. Code, § 1401, subds. (a), (b).) “Authentication of a writing means (a) the

introduction of evidence sufficient to sustain a finding that it is the writing that the

proponent of the evidence claims it is or (b) the establishment of such facts by any other

means provided by law.” (Evid. Code, § 1400.)11

       Because MBT adduced no evidence that it entered into either of the two written

2010 arbitration agreements with Ruiz—that is, that either of the two agreements were

what the FAC alleged they were (Evid. Code, §§ 1400, 1401), MBT failed to meet its

burden on the second step of the anti-SLAPP inquiry of showing that any of the FAC’s

causes of action had minimal merit. It is therefore unnecessary to address Ruiz’s




       11   In Ruiz I, we noted that Ruiz signed the March 12, 2010, arbitration agreement
by hand. (Ruiz I, supra, 232 Cal.App.4th at p. 841, fn. 6.) But the evidence that Ruiz
signed the March 12, 2010, arbitration agreement by hand, which MBAG adduced for the
first time in its reply papers on its first motion to compel arbitration of Ruiz’s claims in
case No. CIVDS2107201, was not presented to the trial court in opposition to Ruiz’s anti-
SLAPP motion in this action. Thus, that evidence is not before us in this appeal.


                                              25
additional arguments concerning why MBT failed to meet its burden on the second prong

of the anti-SLAPP inquiry.12

                                    IV. DISPOSITION

       The order granting Ruiz’s special motion to strike MBT’s FAC is affirmed. Ruiz

shall recover his costs of suit. (Cal. Rules of Court, rule 8.278.)

       CERTIFIED FOR PARTIAL PUBLICATION


                                                                 FIELDS
                                                                                          J.


We concur:

CODRINGTON
          Acting P. J.

SLOUGH
                           J.




       12  Among other things, Ruiz claims MBT “cannot establish a valid breach of
contract claim” against Ruiz because “no legal authority” permits “a defendant-employer
to recruit affiliated entities to harass plaintiff-employees after they successfully oppose
petitions to compel arbitration.” Ruiz does not argue MBT is collaterally estopped from
asserting the claims alleged in the FAC based on the actions of MBT’s agent, MBAG, in
case No. CIVDS2107201. In any event, it is unnecessary to address these questions
because MBT failed to show it had any arbitration agreement with Ruiz. As noted in
Ruiz I, “‘In California, “general principles of contract law determine whether the parties
have entered a binding agreement to arbitrate,”’ and the party seeking arbitration bears
the burden of proving the existence of an arbitration agreement. [Citation.]” (Ruiz I,
supra, 232 Cal.App.4th at p. 842.)

                                             26
