Filed 7/24/13 Terris v. County of Santa Barbara CA2/6
                     NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS
California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for
publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication
or ordered published for purposes of rule 8.1115.


                IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

                                     SECOND APPELLATE DISTRICT

                                                   DIVISION SIX


SHAWN TERRIS,                                                                 2d Civil No. B242390
                                                                            (Super. Ct. No. 1339241)
  Plaintiff, Cross-Defendant and                                             (Santa Barbara County)
Appellant,

v.

COUNTY OF SANTA BARBARA,

  Defendant, Cross-Complainant and
Respondent.



                   The County of Santa Barbara (County) appeals from an order granting
Shawn Terris's special motion to strike its cross-complaint under the anti-SLAPP statute.
(Code Civ. Proc., § 425.16.)1 The County contends the trial court erred as a matter of law
when it granted the motion to strike, because the County demonstrated a probability of
prevailing on its claim that Terris's wrongful termination lawsuit violates the parties'
agreement to release all claims based on each other's pre-2006 conduct. We affirm.
                         FACTUAL AND PROCEDURAL BACKGROUND
                   Terris worked for the County for 13 years, until 2009. Previous disputes
between the County and Terris in 2003, 2006, and 2007 were resolved by settlement


          1
              All statutory references are to the Code of Civil Procedure unless otherwise
stated.
agreements which allowed for her continued employment and included a mutual release
of any claims based wholly or in part on any conduct arising from pre-2006 conduct. The
parties agreed "not to commence or maintain any administrative or judicial proceeding
against the other on any claim based wholly or in part on any conduct by the other
occurring at any time prior to the signing of the Agreement" in December 2006.
              In 2009, the County terminated Terris. After exhausting administrative
remedies, Terris filed this lawsuit in which she alleges that the County terminated her in
retaliation for her political activity in organizing managers, especially in her capacity as a
trustee of the board of the Santa Barbara County Employees Retirement System
(SBCERS). She also alleges that her sexual orientation was a significant motivating
factor in the County's decision to terminate her.
              Terris's third amended complaint asserts five causes of action:2 (1) a cause
of action for violation of Labor Code section 1101 in which she alleges that the County
". . . prevented her from holding her elected office as a Retirement Board Trustee by
terminating her employment"; (2) a cause action for violation of Labor Code section 1102
in which she alleges that the "County coerced and/or influenced her political activity as a
Retirement Board Trustee by terminating her employment"; (3) a cause of action for
violation of Labor Code section 1102.5 in which she alleges she reported the County's
statutory and regulatory violations throughout her employment and that the County
"retaliated against her for complaining about and enforcing her rights . . . by terminating
her employment"; (4) a cause of action for violation of the FEHA in which she alleges
that the fact that the County "regarded her as [a] lesbian was a motivating factor in
[County's] decision to terminate her employment"; and (5) a cause of action in which she
petitions for a writ of mandate commanding the County to reinstate her on the grounds
that it "terminated [her] in violation of her [statutory rights] . . . to organize County
managers."


       2
       Five of nine original causes of action remain after rulings on County's demurrers,
motions to strike, and a motion for judgment on the pleadings.
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                 In her preliminary allegations, Terris also describes pre-2006 conduct. She
alleges that in 1998, the County Executive Officer (CEO) demanded that she should quit
as a member of the SBCMA Board and should not be a member of the SBCMA. She
alleges that in 1999 she campaigned for a position on the SBCERS board and that in 2000
County officials "reacted angrily" when she communicated with SBCERS constituents
directly. She alleges that in 2003 she was elected Chair of the SBCERS board, and that
in 2003 the County CEO "impl[ied] that [Terris and others] did not know what they were
doing," when he tried to replace a defined benefit plan with a defined contribution plan
for new hires.
                 Terris alleges that in 2003 the parties reached a settlement agreement
"relating to her allegations, among others, that the County violated her rights as a
[SBCERS] Board Trustee." She alleges that in 2004 she was elected to the board of the
State of California's State Association of County Retirement Systems. She alleges that in
2005 and 2006 a County official pressured her to resign from SBCERS and to transfer
from the office of the CEO to another County department. She alleges that in 2006 the
parties amended their settlement agreement "due to the County, among other things,
continuing and increasingly violating her rights as a [SBCERS] Board Trustee." She
alleges that "[i]n 2006 and 2007, the County removed approximately 25 [percent] of the
County's managers out of the Civil Service system, causing them to become at-will
employees, including all of her seven peers in the [office of the] CEO. Had that not
happened, Ms. Terris would have retained her seniority in the CEO's office and would
have been the very last Program Business Leader in the CEO's office to receive a layoff
notice."
                 The County filed a cross-complaint, with leave of court, in which it seeks
equitable relief for breach of the 2006 mutual release. It alleges that Terris breached the
release provision because her third amended complaint is based at least in part on pre-
2006 conduct. Terris moved to strike the cross-complaint under the anti-SLAPP lawsuit.
                 The trial court granted Terris's motion, finding that the County's cross-
complaint arose from an act in furtherance of Terris's right of petition or free speech (her

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lawsuit), and that the County had not demonstrated a probability of prevailing because
Terris's claims are based on the 2009 termination and not on the County's pre-2006
conduct.
                                        DISCUSSION
              The County argues that the anti-SLAPP statute does not enable courts to
grant immunity to a party who breaches a settlement agreement by filing litigation. That
is true, but the trial court did not grant Terris immunity. The trial court concluded that
the County has no probability of prevailing on its cross-complaint because Terris's
lawsuit does not seek relief based wholly or in part on pre-December 2006 conduct. We
independently reach the same conclusion.
              We review an order granting or denying a motion to strike under section
425.16 de novo. (Oasis West realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820.)
Section 425.16, subdivision (b)(1), 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, unless the court determines that
the plaintiff has established that there is a probability that the plaintiff will prevail on the
claim." Our analysis involves two steps: First, we decide whether Terris has made a
threshold showing that the cross-complaint arises from protected activity. (§ 425.16,
subd. (b)(1).) If so, we consider whether the County has demonstrated a probability of
prevailing on its claim. "Only a cause of action that satisfies both prongs of the anti-
SLAPP statute . . . is a SLAPP, subject to being stricken under the statute." (Navellier v.
Sletten (2002) 29 Cal.4th 82, 89.)
              The County's cross-complaint arises from Terris's protected activity. A
claim alleging that a party breached a settlement agreement by filing a lawsuit is a claim
that arises from protected activity within the meaning of section 425.16, subdivision
(b)(1). (Navallier v. Sletten, supra, 29 Cal.4th at p. 90; Mundy v. Lenc (2012) 203
Cal.App.4th 1401, 1408.) But the anti-SLAPP statute does not preclude litigation of a
claim for breach of a settlement agreement if the claimant can demonstrate a probability

                                                4
of prevailing on the claim. (Navellier, at pp. 93-94; see also DaimlerChrysler Motors
Co. v. Lew Williams, Inc. (2006) 142 Cal.App.4th 344, 354 [car manufacturer overcame
anti-SLAPP motion by demonstrating a probability of prevailing on its claim against a
dealer for violating its agreement not to exercise its right to file a protest with a
regulatory board.])
               To establish a probability of prevailing, the County must demonstrate that
its cross-complaint is both legally sufficient and supported by a sufficient prima facie
showing of facts to sustain a favorable judgment if the evidence it submits is credited.
(Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at p. 820.) We consider the
pleadings and supporting and opposing affidavits to independently determine whether the
County has stated and substantiated a legally sufficient claim. (§ 425.16, subd. (b)(2).)
We do not assess credibility or compare the weight of the evidence. (Oasis West Realty,
at p. 820.) We accept as true all evidence favorable to the County and evaluate Terris's
evidence only to determine if it has defeated County's evidence as a matter of law. (Ibid.)
If County can show a probability of prevailing on any part of its claim, the cause of
action is not meritless. (Ibid.)
               The County relies on the language of the mutual release and the allegations
of Terris's third amended complaint to establish a probability of prevailing. Terris agreed
"not to commence or maintain any administrative or judicial proceeding against [County]
on any claim based wholly or in part on any conduct by the other occurring at any time
prior to [December 2006]." Terris's third amended complaint does not breach the release
provision because it does not seek relief based on County's conduct predating December
2006.
               Each of Terris's five causes of action seek relief based solely on the
County's termination decision, which it made after December 2006. She alleges that
County's conduct was in retaliation for some of her own pre-2006 political activities, but
her claims are not based on pre-2006 conduct. There is no merit to County's contention
the third amended complaint is a "claim based wholly or in part on any conduct of
[County] occurring at any time prior to [December 2006]." Whether and to what extent

                                               5
pre-2006 events will be relevant or admissible as background at trial is not an issue
before us on this appeal.
                                      DISPOSITION
              The order appealed from is affirmed. Respondent shall recover costs on
appeal.
              NOT TO BE PUBLISHED.




                                          GILBERT, P.J.


We concur:



              YEGAN, J.



              PERREN, J.




                                             6
                                 Donna Geck, Judge

                       Superior Court County of Santa Barbara

                        ______________________________


             James H. Cordes for Plaintiff, Cross-Defendant and Respondent.
             Dennis Marshall, County Counsel, County of Santa Barbara and Michael
Youngdahl, Deputy County Counsel; Nye, Peabody, Stirling, Hale & Miller, Karen K.
Peabody, for Defendant, Cross-complainant and Appellant.




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