Filed 6/6/13 LiMandri v. Wildman, Harrold et al. CA2/2
                  NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication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 TWO


CHARLES S. LiMANDRI,                                                 B234460

         Plaintiff and Appellant,                                    (Los Angeles County
                                                                     Super. Ct. No. BC449272)
         v.

WILDMAN, HARROLD, ALLEN &
DIXON, LLP, et al.,

         Defendants and Appellants.

CHARLES S. LiMANDRI,                                                 B237158

         Plaintiff and Respondent,                                   (Los Angeles County
                                                                     Super. Ct. No. BC449272)
         v.

SHANNA MOAKLER,

         Defendant and Appellant.
      APPEALS from judgments of the Superior Court of Los Angeles County.
Michael C. Solner, Judge. Affirmed.


      Law Offices of James W. Spertus, James W. Spertus, Ezra D. Landes for
Defendants and Appellants Wildman, Harrold, Allen & Dixon, LLP, and James D.
Nguyen in Case No. B234460.


      The Avanzado Law Firm, Melvin N.A. Avanzado, Ailleen R. Gorospe for
Defendant and Appellant Shanna Moakler in Case Nos. B234460 and B237158.


      Law Offices of Charles S. LiMandri, Charles S. LiMandri, Teresa Mendoza for
Plaintiff and Appellant Charles S. LiMandri in Case No. B234460 and Plaintiff and
Respondent Charles S. LiMandri in Case No. B237158.




            ___________________________________________________



                                           2
       This opinion resolves four appeals stemming from litigation brought by Attorney
Charles LiMandri, who alleges that defendants improperly revealed to the media private
matters encompassed by two confidentiality agreements that the parties signed while
settling litigation. The appeals address the trial court’s rulings on defendants’ motions to
strike the complaint as a Strategic Lawsuit Against Public Participation (SLAPP). (Code
Civ. Proc., § 425.16.)1 We affirm the trial court’s judgment in all four appeals.
               BACKGROUND COMMON TO ALL FOUR APPEALS
       Charles LiMandri was the attorney for Carrie Prejean, a former Miss California
USA. A controversy erupted in April 2009, when Prejean expressed her sentiments about
traditional marriage during the Miss USA pageant.2 Several pageant judges said
afterward that Prejean lost (coming in second) because of her answer. Prejean’s
statements were widely reported in the national media.
       Among those leading subsequent personal attacks on Prejean were defendants
Shanna Moakler and Keith Lewis, executive directors of the Miss California USA
pageant.3 As the controversy escalated, the owner of the Miss Universe Organization,
Donald Trump, admitted that Prejean’s views “probably did cost her the crown,” but he
refused to strip her of her title as Miss California. Moakler resigned her post to protest
Trump’s decision, but continued to publicly criticize Prejean.
       Prejean began negotiations with a publisher to write a book about her experience
as Miss California. On June 10, 2009, Prejean was abruptly terminated from her reign as


1     Undesignated statutory references in this opinion are to the Code of Civil
Procedure.
2        Asked whether every state should legalize same-sex marriage, Prejean replied,
“Well, I think it’s great that Americans are able to choose one way or the other. We live
in a land where you can choose same-sex marriage or opposite marriage. You know
what, in my country, in my family, I do believe that marriage should be between a man
and a woman, no offense to anybody out there. But that’s how I was raised and I believe
that it should be between a man and a woman. Thank you.”
3      Defendant Lewis is not a party to this appeal.


                                             3
Miss California. Represented by Attorney LiMandri, Prejean sued Moakler, Lewis and
others for defamation; public disclosure of private facts; religious discrimination and
emotional distress. One of the defendants filed a cross-complaint for breach of contract,
claiming that Prejean violated her contractual obligation to abide by high ethical and
moral standards; her promise that she has never been photographed in a lewd,
compromising or sexually suggestive manner; her duty to appear at events as Miss
California; and her promise to repay a loan.
                                 The Settlement Agreement
       The parties to the litigation, their attorneys, and their insurers participated in a
mediation at JAMS in New York. Participants signed a JAMS confidentiality agreement.
The law firm of Wildman, Harrold, Allen & Dixon and its partner James D. Nguyen
(collectively, the Law Firm) represented defendant Keith Lewis in the mediation. In the
presence of his client Lewis (though not the other defendants) Nguyen showed Prejean,
LiMandri and the mediator a compromising video and photographs of Prejean.
       The mediation resulted in a confidential settlement on November 3, 2009, in
which the parties resolved all claims against each other (the Settlement Agreement).
LiMandri is a party to the Settlement Agreement; signed it; and is entitled to receive
$110,000 from it. The Settlement Agreement includes a promise by defendants and their
attorneys that the compromising material would be destroyed and its existence would
never be revealed.4 The parties and their attorneys covenanted to maintain “the strictest
confidentiality” regarding the Settlement Agreement. “The Prejean Parties” (which



4      The provision reads, “Each of the pageant-related parties, and their counsel shall
destroy any and all tangible copies of, and eliminate and purge all electronic copies of,
those certain video and photographic materials . . . . Further, none of the pageant-related
parties shall ever, directly or indirectly, reveal that such material exists or existed; the
contents of such material; the nature of such material; and/or, the source of such
material. Each party in the possession of such photographic or video material shall
subscribe a sworn affidavit affirming the destruction and/or purging (as applicable) of
such material.” (Italics added.)


                                               4
includes LiMandri as a party) are entitled to seek damages for “any violation” of the
nondisclosure provision.
                   Events Surrounding the Settlement Are Made Public
       One day after the settlement was reached, TMZ reported that “Carrie Prejean nets
a big fat zero in her settlement with the folks at Miss California USA, sources tell TMZ.
Carrie and the Pageant officials have settled their lawsuits against each other and the
terms were confidential . . . until now.” Later, TMZ reported that Prejean demanded
more than a million dollars “until the lawyer for the Pageant showed Carrie an XXX
home video of her handiwork. . . . We’re told it took about 15 seconds for Carrie to
jettison her demand and essentially walk away with nothing.” The reports mention that
defendants agreed to pay LiMandri around $100,000.
       Details of the settlement negotiations quickly made their way through the gossip
sphere. One Internet site wrote that Prejean settled “because [the Law Firm] produced a
homemade Prejean sex tape into evidence [sic].” CNN reported that a “source familiar
with the lawsuits’ settlement” confirmed that the settlement was prompted by the
revelation of the sex tape. On November 5, 2009, TMZ posted additional details about
the mediation, saying “When the video started playing, Carrie’s first reaction was ‘that’s
disgusting’ . . . and Carrie denied it was her. Then, the camera angle changed . . . and
panned up to her face. She was caught red-handed . . . so to speak. Carrie was rendered
speechless . . . .” TMZ also reported that Prejean’s mother was in the mediation room
when the tape was played by the Law Firm, and “was in shock—instantly turning sheet
white” according to unnamed “sources.”
       On November 9 and 10, 2009, Prejean made media rounds while promoting her
just-published book. She was questioned about the compromising video, describing it as
a youthful indiscretion that she sent to a boyfriend when she was 17 and “the biggest
mistake of my life.” Prejean expressed embarrassment about the video, and railed against
the campaign to silence her opinions about same-sex marriage.
       On November 11, 2009, counsel for the Miss Universe Organization sent a letter
to LiMandri regarding the breaches of confidentiality. The letter acknowledges the

                                             5
settling defendants’ obligation to pay LiMandri $110,000 in attorney fees, but sought
(and received) a ratification from Prejean of the Settlement Agreement. Though Prejean
agreed not to disaffirm the Settlement Agreement, no one gave up the right to sue for a
breach of its provisions.
        LiMandri Sues Defendants for Publicly Disclosing Settlement Discussions
       One year later, on November 10, 2010, LiMandri filed suit for breach of the
Settlement Agreement; breach of the JAMS confidentiality agreement; fraudulent
inducement; and breach of the implied covenant of good faith and fair dealing. Among
the named defendants are Shanna Moakler, the Law Firm, its partner Nguyen, and their
client Lewis. LiMandri alleges that “Besides the Prejean Parties and the mediator, the
only people present in the room [when the sex tape was revealed] were [codefendants]
Lewis and Nguyen.” Prejean is not a party to this lawsuit.
          Moakler and the Law Firm Attempt to Have the Complaint Dismissed
       Moakler and the Law Firm brought motions to strike LiMandri’s complaint. The
trial court denied Moakler’s anti-SLAPP motion on the grounds that it was untimely.
The court initially sustained Moakler’s demurrers to LiMandri’s complaint without leave
to amend on the ground that LiMandri lacks standing to pursue his claims. LiMandri
asked the trial court to reconsider its ruling, arguing that he has standing to sue because
he is named party to the Settlement Agreement, and has a “right to financial privacy in
the amount of his fee award.” The trial court granted LiMandri’s motion and gave him
leave to amend his causes of action for breaches of the Settlement Agreement and the
implied covenant of good faith and fair dealing.5 The court granted the Law Firm’s anti-
SLAPP motion only as to LiMandri’s cause of action for fraudulent inducement. It



5       On page one of its opening brief, the Law Firm trumpets the trial court’s “legally
impossible and erroneous” ruling that LiMandri can pursue his lawsuit against the Law
Firm despite ruling (on Moakler’s demurrer) that LiMandri lacks standing. It omits
mention that the standing ruling was vacated on reconsideration. Misrepresenting the
trial court’s rulings and the record on appeal is a poor and discrediting practice.


                                              6
denied the motion with respect to LiMandri’s contract claims, finding that he has
established a probability of prevailing on his claims.
           The Law Firm’s Appeal and LiMandri’s Cross-Appeal in B234460
       The Law Firm appeals from the trial court’s denial of its anti-SLAPP motion as to
LiMandri’s claims for breaches of the Settlement Agreement and the JAMS
confidentiality agreement, and breach of the implied covenant of good faith and fair
dealing. LiMandri cross-appeals the court’s ruling striking his cause of action for
fraudulent inducement.
       A special motion to strike may resolve individual causes of action. (Coretronic
Corp. v. Cozen O’Connor (2011) 192 Cal.App.4th 1381, 1387; Shekhter v. Financial
Indemnity Co. (2001) 89 Cal.App.4th 141, 150.) Appeal may be taken from an order
granting or denying a motion to strike disputed causes of action. (§ 425.16, subd. (i);
Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1180 [appeal taken from the denial
of a motion to strike the first and thirteenth causes of action, leaving plaintiff’s other
claims aside].) Review is de novo. (Id. at p. 1181.)
       The court may strike causes of action “arising from” the defendant’s exercise of its
right to petition or to free speech. (§ 425.16, subd. (b)(1); Equilon Enterprises v.
Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67.) Performing a two-step analysis, the
court first determines whether the defendant has shown that the challenged causes of
action arise from protected First Amendment activity. If the threshold showing is met,
the burden shifts to the plaintiff to establish a probability of prevailing on the claim.
(Taus v. Loftus (2007) 40 Cal.4th 683, 712.) The court examines “the pleadings, and
supporting and opposing affidavits stating the facts upon which the liability or defense is
based” (§ 425.16, subd. (b)(2)), but does not weigh the evidence; rather, it must accept as
true all evidence favoring the challenged pleading. (Soukup v. Law Offices of Herbert
Hafif (2006) 39 Cal.4th 260, 291; Nagel v. Twin Laboratories, Inc. (2003) 109
Cal.App.4th 39, 45-46.)
       At the threshold of the two-step analysis, the Law Firm argues that section 425.16
applies to LiMandri’s complaint, which arises from (1) public statements that defendants

                                               7
allegedly made about Prejean’s conduct, the mediation, and the Settlement Agreement
and (2) misrepresentations defendants made to LiMandri during the mediation.
       a. LiMandri’s Contract Claims Against the Law Firm and Nguyen
       LiMandri’s lawsuit alleges a breach of two contracts in which defendants
relinquished their right to speak publicly about the mediation and settlement. The JAMS
agreement states that disclosure of any information obtained during the mediation “would
cause irreparable injury” and incorporates by reference state law provisions regarding
mediation confidentiality.6 The JAMS confidentiality agreement was signed by the
attorneys for the parties, including the Law Firm. In addition, the parties expressly
covenanted in the Settlement Agreement to keep its terms and even its existence from
ever being disclosed to the public.7
       Conduct alleged to be a breach of contract may fall within the anti-SLAPP statute,
which focuses not on plaintiff’s cause of action but on the defendant’s activity.
(Navellier v. Sletten (2002) 29 Cal.4th 82, 92 (Navellier).) If the defendants engaged in
speech in connection with a matter of public interest, the first prong of the analysis is
met. Any claimed illegitimacy of the defendants’ conduct “must be resolved as part of a
plaintiff’s secondary burden to show the action has ‘minimal merit.’” (Flatley v. Mauro
(2006) 39 Cal.4th 299, 319-320 (Flatley).) This analysis applies in a lawsuit alleging that



6     “Anything said, any admission made, or any writing that is inadmissible, protected
from disclosure, and confidential under this chapter before a mediation ends, shall remain
inadmissible, protected from disclosure, and confidential to the same extent after the
mediation ends.” (Evid. Code, § 1126, italics added.)
7       The Settlement Agreement requires the parties to release a statement saying that
they “‘have met, dropped their claims against each other and wish each other the best in
their future endeavors.’ Except for such statement, . . . the terms and provisions of this
Settlement Agreement, or the fact that the parties entered into this Settlement Agreement,
shall never be disclosed by any party hereto (or their . . . attorneys . . .), whether directly,
indirectly or otherwise, it being the intent of the parties hereto to maintain the strictest
confidentiality regarding this Settlement Agreement, its entry and its contents.” (Italics
added.)


                                               8
defendants violated contractual obligations set forth in a settlement agreement. (Mundy
v. Lenc (2012) 203 Cal.App.4th 1401, 1408.)
       The Law Firm argues that any statements made to the media about Prejean’s
conduct or the settlement occurred in “a public forum in connection with an issue of
public interest.” (§ 425.16, subd. (e)(3).) We agree that Prejean is a public figure as a
beauty pageant contestant and subsequently as a book author, whose opinion about same-
sex marriage garnered national attention during the Miss Universe pageant. Defendants’
statements about Prejean to TMZ, the Advocate, and others were made in a public forum
about a matter of public interest. (Barrett v. Rosenthal (2006) 40 Cal.4th 33, 41, fn. 4;
ComputerXpress, Inc. v. Jackson (2001) 93 Cal.App.4th 993, 1006 [comments made on
electronic media occurs in a public forum].) Further, the Law Firm’s statements to
LiMandri during mediation were made in connection with a matter pending before a
court. (§ 425.16, subd. (e)(2).)
       We move to the second prong of the analysis, in which LiMandri bears the burden
of showing that his claims have “‘minimal merit.’” (Flatley, supra, 39 Cal.4th at pp.
319-320.) LiMandri argues that he is likely to prevail because defendants contracted to
forego their right to speak publicly. “‘[I]t is possible to waive even First Amendment
free speech rights by contract.’” (Sanchez v. County of San Bernardino (2009) 176
Cal.App.4th 516, 528 (Sanchez); ITT Telecom Products Corp. v. Dooley (1989) 214
Cal.App.3d 307, 319.) The courts closely scrutinize waivers of constitutional rights and
“‘“‘indulge every reasonable presumption against a waiver.”’’” (Ferlauto v. Hamsher
(1999) 74 Cal.App.4th 1394, 1400.) Any waiver must be “clear and compelling.” (City
of Glendale v. George (1989) 208 Cal.App.3d 1394, 1398.)
       Signing a confidentiality provision waives First Amendment rights, preventing a
party from disclosing the circumstances surrounding a settlement agreement. In Sanchez,
a high-ranking employee in San Bernardino had a romance with the leader of the sheriff’s
deputies union. When Sanchez’s supervisor learned of the extramarital affair, he told
Sanchez that she had to resign. Sanchez and the county signed a confidential



                                             9
“Compromise, Release and Settlement Agreement” prepared by county counsel.8
Immediately after the settlement agreement was signed, a number of newspapers reported
on Sanchez’s resignation: the articles named two county employees as sources who
revealed that Sanchez had resigned after having an improper relationship. The media
reports provoked a county investigation, which concluded with a report about the
circumstances of Sanchez’s resignation. (176 Cal.App.4th at pp. 518-523.)
       Sanchez sued the county for breaching the settlement’s confidentiality provision.
The appellate court found no basis for declaring the provision void on public policy
grounds because there was no statute requiring the county to publicly disclose the
circumstances of Sanchez’s resignation. (Sanchez, supra, 176 Cal.App.4th at pp. 525-
527.) There was no way to construe the confidentiality provision except as a waiver of
the county’s First Amendment right to publicly discuss the settlement. (Id. at p. 528.)
       The Law Firm cites no precedent permitting parties to confidentiality and
nondisclosure agreements or their attorneys to speak publicly after expressly forfeiting
their right to do so. On the contrary, the Supreme Court has construed section 425.16 to
mean that “a defendant who in fact has validly contracted not to speak or petition has in
effect ‘waived’ the right to the anti-SLAPP statute’s protection in the event he or she later
breaches that contract.” (Navellier, supra, 29 Cal.4th at p. 94.) The resulting lawsuit
arises from a breach of the contract that prevents the defendant “from engaging in certain
speech-related conduct.” (City of Alhambra v. D’Ausilio (2011) 193 Cal.App.4th 1301,
1308.) The anti-SLAPP statute affords no protection to the defendant who breaches a
contract limiting his right to speak publicly on matters of public interest. (Id. at pp.1307-
1309.) Moreover, the litigation privilege does not bar a breach of contract claim arising


8       The confidentiality provision read, “‘To the maximum extent permitted by law,
the parties [ ] agree that this Agreement, the terms and conditions of this Agreement, the
facts, events and issues which gave rise to this Agreement, and any and all actions by Ms.
Sanchez and the County [ ], are strictly confidential and shall not be disclosed or
discussed with any other persons, entities or organizations, whether within or without the
County.’” (Sanchez, supra, 176 Cal.App.4th at p. 522.)


                                             10
from violations of confidentiality provisions contained in a settlement agreement.
(Wentland v. Wass (2005) 126 Cal.App.4th 1484, 1493-1494.)
       The confidentiality provision of the Settlement Agreement expressly applies to the
attorneys for the parties. As counsel, the Law Firm can be presumed to know what it was
doing when it gave up its right to speak about the Prejean settlement. There is no doubt
that the Law Firm’s waiver of its right to speak publicly about the settlement is clear and
compelling: it was this very promise to maintain public silence that formed the basis of
the settlement. Though the Law Firm did not sign the Settlement Agreement as a
“party,” it is bound by the confidentiality provision to the same extent as its client. (See
fn. 7, ante.)
       An attorney’s breach of a confidentiality provision is not protected by section
425.16. (Paul v. Friedman (2002) 95 Cal.App.4th 853, 869.) “The privacy of a
settlement is generally understood and accepted in our legal system, which favors
settlement and therefore supports attendant needs for confidentiality.” (Hinshaw,
Winkler, Draa, Marsh & Still v. Superior Court (1996) 51 Cal.App.4th 233, 241.) Public
disclosure of confidential information “would chill the parties’ ability in many cases to
settle the action before trial. Such a result runs contrary to the strong public policy of this
state favoring settlement of actions.” (Board of Trustees of California State University v.
Superior Court (2005) 132 Cal.App.4th 889, 899.) As a matter of legal ethics, it is
intolerable to imagine that an attorney can freely violate the promise of confidentiality
that binds his client. Thus, even if Nguyen spoke in a public forum with regard to an
issue of public interest, it is not necessarily protected speech because defendants
voluntarily relinquished their right to discuss Prejean’s case.
       The record shows that the Law Firm submitted a mediation brief arguing that
“Prejean and her counsel” face significant risks if they failed to settle, the risk that she
might be branded a “hypocrite” because “as everyone knows, the fastest path to
destruction is the revelation (or even just the perception) that a person is a hypocrite,”
noting that she espoused “conservative Christian values” but might be tripped up by “a
previously undisclosed photograph or video [that] would destroy Ms. Prejean’s newfound

                                              11
reputation as a family values poster girl.” The Law Firm went on to assert that LiMandri
was “using” Prejean to push a same-sex marriage agenda and predicted that he “will have
great financial exposure” if he continued the lawsuit.
       After emphasizing the career-destroying effects of being called a “hypocrite,”
Nguyen gave a postsettlement interview to the Advocate in which he is quoted as saying
that “the events of [Prejean’s] case helped to expose her as a hypocrite and discredit her.”
Thus, Nguyen publicly uttered the very insult he deployed during mediation to threaten
Prejean and LiMandri into settlement, and plainly refers to his own display of the
confidential sex tape during the mediation. The Settlement Agreement requires those
involved to conceal the contents and existence of the sex tape. In addition, after Prejean
settled, Nguyen wrote an article in the Advocate in 2010 using the terms “notoriety” and
“infamy” to refer to Prejean, suggesting disgraceful or unsavory behavior. We are
satisfied that this is enough evidence to establish the second prong: a jury could find that
Nguyen and the Law Firm breached the confidentiality agreements.
       The Law Firm’s standing argument is not convincing at this stage of the
proceedings. LiMandri is a named party to the Settlement Agreement entitled to sue for
“any violation” of the confidentiality provisions. In opposition to the motion to strike,
LiMandri declared that his right to sue for breach of the confidentiality provisions “was
part of the bargained-for consideration of the settlement agreement.” LiMandri settled
the case “on favorable terms to the defendants” to prevent his client from being
“essentially blackmailed with the private photos and videos” and to prevent Prejean’s and
LiMandri’s reputations from being injured.
       The benefit of settling quietly was ruined when defendants publicized confidential
information mere hours after the Settlement Agreement was signed. Someone publicly
described the shock and distress Prejean and her mother experienced in the mediation
room: inasmuch as Lewis and Nguyen are the only defendants to witness these emotional
reactions, it considerably limits the list of likely suspects who committed the breach of
confidence. We cannot say as a matter of law that LiMandri should be deprived of the



                                             12
benefit of his bargain, as a party to a Settlement Agreement that includes promises of
confidentiality.
       We are not impressed by the Law Firm’s claim that LiMandri breached the
nondisclosure provisions when he engaged in “damage control” after defendants
wrongfully revealed confidential information. A defendant’s breach of a confidentiality
provision excuses further performance by plaintiff to keep matters confidential.
(Sanchez, supra, 176 Cal.App.4th at pp. 529-530; Plotnik v. Meihaus (2012) 208
Cal.App.4th 1590, 1602-1603.)
       The Law Firm argues that its conduct is protected petitioning activity. It is
mistaken. “[D]efendant’s entering into the settlement agreement during the pendency of
the federal case was indeed a protected activity, but defendant’s subsequent alleged
breach of the settlement agreement after the federal case was concluded is not protected
activity because it cannot be said that the alleged breaching activity was undertaken by
defendant in furtherance of defendant’s right of petition or free speech, as those rights are
defined in section 425.16. Thus, the instant suit is based on alleged conduct of defendant
that is not protected activity.” (Applied Business Software, Inc. v. Pacific Mortgage
Exchange, Inc. (2008) 164 Cal.App.4th 1108, 1118 (Applied).)
       The court in Applied declined to extend Navellier “to cover all causes of action
alleging the breach of a settlement agreement when the case that produced the settlement
agreement was concluded prior to the alleged breach.” (Applied, supra, 164 Cal.App.4th
at p. 1118.) In Navellier, plaintiff alleged that Sletten misrepresented his intent to be
bound by a release in a still-pending federal action that the parties were pursuing in the
Ninth Circuit. (29 Cal.4th at pp. 86-87.) Specifically, Sletten released his claims against
Navellier, then proceeded to file counterclaims after Navellier amended the complaint in
federal court, prompting Navellier to sue Sletten in state court for violating the terms of
the release. The Supreme Court found that Sletten’s negotiation, execution and
repudiation of the release arose from acts in furtherance of Sletten’s right to petition—by
filing counterclaims—in the pending federal case. (Id. at p. 90.)



                                             13
       Here, the Law Firm’s alleged breaches of the Settlement Agreement and the
JAMS confidentiality agreement occurred after the Prejean litigation concluded. “[T]he
gist of plaintiff’s complaint is not that defendant did something wrong by acts committed
during the course of the underlying [ ] action, but rather that defendant did something
wrong by breaching the settlement agreement after the underlying action had been
concluded.” (Applied, supra, 164 Cal.App.4th at p. 1118.) By the time that the Law
Firm breached the Settlement Agreement, it was no longer engaged in petitioning
activities: its alleged misconduct occurred after Prejean settled, unlike Navellier, in
which the underlying case was still being litigated when Sletten was sued for filing
counterclaims. Any other outcome would render confidentiality provisions used to
promote a settlement utterly worthless and illusory for both defendants and plaintiffs who
settle court cases to maintain their privacy. And it would undermine Evidence Code
section 1126, which requires that confidential information remain confidential even after
the mediation is over. (See fn. 6, ante.) The trial court properly denied the Law Firm’s
special motion to strike LiMandri’s contract claims.
       LiMandri’s request for an award of attorney fees for defending against a frivolous
anti-SLAPP motion is denied. (§ 425.16, subd. (c)(1).) If the issues in these appeals
were obvious and simple, their resolution would not have required 382 pages of briefing
in B234460, plus another 144 pages in B237158.
       b. LiMandri’s Fraudulent Inducement Claim Against the Law Firm and Nguyen
       LiMandri’s cross-appeal addresses his fraudulent inducement claim, which was
stricken by the trial court. He alleges that defendants misrepresented during settlement
discussions that they would abide by the confidentiality provisions, They induced him to
“greatly reduce his fees in return for the assurance that all of the provisions of the
agreement, particularly the confidentiality provisions, would be kept.” LiMandri relied
on defendants’ assurances and signed the Settlement Agreement, causing him economic
loss and harm to his professional reputation.
       LiMandri argues that California law does not apply, pointing to a provision of the
Settlement Agreement mandating the application of New York law to disputes between

                                              14
“the parties.”9 The Settlement Agreement specifies that its terms and existence will
“never be disclosed by any party hereto (or their attorneys).” (See fn. 7, ante.) An agent
may be liable for a breach of contract when an intent to make the agent liable is clear and
explicit. (Filippo Industries, Inc. v. Sun Ins. Co. (1999) 74 Cal.App.4th 1429, 1443;
Heringer v. Schumacher (1928) 88 Cal.App. 349, 352.) The nondisclosure proviso does
not make the Law Firm a party to the agreement to pay LiMandri $110,000; however, it
can be a basis for liability if Nguyen proves to be responsible for making prohibited
disclosures of confidential information. Because the Law Firm is not a party to the entire
Settlement Agreement, New York law does not apply to this dispute. This is particularly
true because the JAMS confidentiality agreement signed by the Law Firm states that the
mediation was governed by California law.
       Statements made during litigation to induce settlement are within the scope of
section 425.16. For example, an attorney who makes a settlement offer during a prior
action cannot be sued because “communication of an offer to settle the ongoing lawsuit
[is] a matter connected with issues under consideration [ ] by a judicial body” that
“directly implicates the right to petition.” (GeneThera, Inc. v. Troy & Gould
Professional Corp. (2009) 171 Cal.App.4th 901, 908. Accord: Seltzer v. Barnes (2010)
182 Cal.App.4th 953, 963.) LiMandri’s attempt to sue the Law Firm for promises it
made during the JAMS mediation in order to reach a settlement arises from protected
activity in the course of ongoing litigation.
       LiMandri asserts that section 425.16 does not apply because the Law Firm
committed a crime. A prelitigation demand that “constituted criminal extortion as a
matter of law [is] unprotected by constitutional guarantees of free speech or petition.”
(Flatley, supra, 39 Cal.4th at p. 305.) In Flatley, the defendant attorney sent a letter to an


9      Paragraph 16 of the Settlement reads, “This Settlement Agreement; all relations
between the parties; and, any and all disputes between or among the parties, whether
sounding in contract, tort or otherwise, is to be exclusively construed in accordance with
and/or governed by (as applicable) the law of the State of New York without recourse to
New York’s (or any other) choice of law or conflicts of law principles.”


                                                15
entertainer threatening to publicly accuse him of rape unless he “settled” by paying a sum
of money to ensure silence. (Id. at p. 329.) The Supreme Court deemed the letter
“criminal extortion as a matter of law.” (Id. at p. 330.)
       LiMandri asserts that the Law Firm’s conduct during settlement negotiations
amounted to obtaining money by false pretenses (Pen. Code, § 532); or extortion (Pen.
Code, § 519); or a violation of counsel’s duty to not intentionally deceive a party to
litigation (Bus. & Prof. Code, §§ 6068, 6128). We cannot say, as a matter of law, that the
facts alleged by LiMandri amount to theft or extortion. Prejean’s fulfillment of her
contractual promise that she had high moral standards and had never been photographed
in a lewd, compromising or sexually suggestive manner was at issue in the pending
litigation: it was not extortionate for defendants to disclose during mediation that they
possessed evidence produced by subpoena that tended to prove the allegations in the
cross-complaint regarding Prejean’s breach of contract. A factual dispute exists with
respect to the Law Firm’s alleged deceit about maintaining confidentiality. Because a
crime was not shown to have been committed as a matter of law, LiMandri’s claim of
fraudulent inducement falls within the scope of section 425.16.
       We turn to whether LiMandri has established a probability of prevailing on his
fraudulent inducement claim. He cannot. As the Law Firm contends, misrepresentations
made during settlement discussions are absolutely privileged. (Civ. Code, § 47, subd.
(b).) The litigation privilege is not limited to statements made inside a courtroom.
(Hagberg v. California Federal Bank (2004) 32 Cal.4th 350, 361.) It applies to
communications made in judicial proceedings by litigants or other participants to achieve
the objects of the litigation and have some connection or logical relation to the action.
(Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) In particular, the public policy
underlying the litigation privilege does not permit attorneys to sue one another for
omissions or misrepresentations made during the course of litigation. (Pollock v.
Superior Court (1991) 229 Cal.App.3d 26, 29.) Thus, misstatements made by a party or
an attorney during settlement negotiations cannot form the basis for subsequent tort claim
that they were intended to fraudulently induce the settlement. (Home Ins. Co. v. Zurich

                                             16
Ins. Co. (2002) 96 Cal.App.4th 17, 24; Flatley, supra, 39 Cal.4th at p. 325.) The trial
court properly granted the Law Firm’s special motion to strike LiMandri’s claim of
fraudulent inducement.
       c. Conclusion
       In sum, (1) although Nguyen made statements about a matter of public interest in a
public forum, LiMandri has demonstrated a probability of prevailing on his claims: the
anti-SLAPP statute does not protect statements made in breach of the Settlement
Agreement’s nondisclosure provisions or the JAMS confidentiality agreement because
the Law Firm waived its right to speak publicly about the Prejean case; (2) the Law
Firm’s alleged postsettlement breaches of the confidentiality agreements are not protected
petitioning activity under the anti-SLAPP statute; and (3) promises made during
settlement discussions are protected petitioning activity because they occurred during
ongoing litigation, and LiMandri has not shown a probability of prevailing on his
fraudulent inducement claim.
                  Shanna Moakler’s Appeals in B234460 and B237158
       In B234460, Moakler appeals from the trial court’s ruling that her motion to strike
LiMandri’s complaint under section 425.16 was untimely. In B237158, Moakler appeals
from the denial of her motion to strike LiMandri’s first amended complaint: the trial
court ruled that Moakler’s second motion to strike lacks merit.
       First, we address Moakler’s appeal in B234460.
       A special motion to strike a complaint as a SLAPP “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.” (§ 425.16, subd. (f).) The trial court’s denial of an application to file a
late anti-SLAPP motion is reviewed for an abuse of discretion. (Platypus Wear, Inc. v.
Goldberg (2008) 166 Cal.App.4th 772, 782.) That discretion may be abused if the court
acted in a whimsical, arbitrary or capricious manner that exceeds the bounds of reason, or
had a mistaken view of the scope of its discretion. (Ibid.)
       There are two potential purposes of the 60-day limitation in section 425.16. One
is to require prompt presentation and resolution of the anti-SLAPP claim before the

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parties have started to accrue the expenses of litigation, and the other is to avoid tactical
manipulation. (Olsen v. Harbison (2005) 134 Cal.App.4th 278, 285.) In Morin v.
Rosenthal (2004) 122 Cal.App.4th 673, 679, for example, the defendant sought to file an
anti-SLAPP motion six weeks past the 60-day deadline. The court did not abuse its
discretion by denying the motion because the defendant engaged in “procedural
maneuvering” before filing his motion. (Id. at p. 681.)
       LiMandri filed his complaint on November 10, 2010. On November 15,
Moakler’s attorney Melvin Avanzado informed LiMandri that he was authorized to
accept service of the complaint against his client, and warned LiMandri not to “harass” or
embarrass Moakler by serving her directly. A process server delivered the complaint to
Avanzado on November 16. Moakler filed her motion to strike on January 31, 2011.
       LiMandri objected that Moakler’s anti-SLAPP motion was untimely. In reply,
Moakler argued that the operative date of service is December 2, when Avanzado sent
LiMandri an acknowledgement of receipt stating that the complaint was hand-served on
November 16. Avanzado maintained that LiMandri “never informed us that the notice of
acknowledgement procedure was inapplicable.”
       At the hearing, the court stated that Moakler’s motion was 15 days late. Avanzado
replied that he calculated the 60-day statutory deadline from December 2, the date he
signed the acknowledgement. Avanzado conceded that LiMandri “served me personally
on November 16, no question.” Nevertheless, he complained that LiMandri “induced me
to believe” that December 2 was the correct service date. LiMandri rejoined that
Avanzado only asked for an extension of time to demur or answer the complaint, not an
extension to file an anti-SLAPP motion; LiMandri would never agree to an extension of
time for a defendant who was seeking an award of attorney fees. After listening to the
arguments, the court observed that “when you [Avanzado] say ‘Do not serve my client;
serve me,’ and he [LiMandri] does that and then 75 days go by when the statute says 60,
then it’s untimely.” The court acknowledged its discretion, but chose to deny Moakler’s
motion as untimely.



                                              18
       The court did not abuse its discretion when it denied Moakler’s motion on the
grounds of untimeliness. Just five days after the complaint was filed, Avanzado informed
LiMandri in writing that he was authorized to accept service for Moakler; in fact,
Avanzado threatened to sue LiMandri for abuse of process if LiMandri served Moakler
directly with the complaint. As a result, LiMandri personally served Avanzado on
November 16. Summons may be served on a person by delivering a copy of the
complaint to the plaintiff “or to a person authorized by him to receive service of process.”
(§ 416.90.) An attorney is an agent authorized to accept service on behalf of a client.
(Warner Bros. Records, Inc. v. Golden West Music Sales (1974) 36 Cal.App.3d 1012,
1015, 1017.) The service on Moakler was effective on November 16, the day it was
made on her authorized agent.
       Attempts to blame LiMandri for Avanzado’s misunderstanding of the law on
service of summons fall short: LiMandri was under no duty to instruct opposing counsel
about the law. Avanzado’s claim to have unilaterally extended the service date out to
December 2 by sending a receipt is self-serving: Avanzado cannot cry “foul” just
because LiMandri did not question why Avanzado provided the unnecessary receipt.
Finally, Avanzado defeated the purpose of the anti-SLAPP statute by engaging in
litigation—specifically by demurring—instead of filing a timely motion to strike under
section 425.16. The trial court decided that Avanzado’s procedural maneuvering did not
excuse his late filing of the anti-SLAPP motion. This was not an abuse of discretion, and
the elements of estoppel are not met.
       Finally, we move to Moakler’s appeal in B237158. This appeal addresses the
merits of Moakler’s second anti-SLAPP motion, directed at LiMandri’s first amended
complaint. An anti-SLAPP motion may be filed when a defendant is served with an
amended complaint. (Lam v. Ngo (2001) 91 Cal.App.4th 832, 835.) The amended
pleading asserts causes of action for breach of the Settlement Agreement and breach of
the implied covenant of good faith and fair dealing.
       Moakler’s motion to strike LiMandri’s contract claims fails for the same reasons
that the Law Firm’s motion fails because Moakler, like Nguyen and the Law Firm,

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waived her First Amendment rights when she agreed to maintain confidentiality,
expressly forfeiting her right to speak publicly about—or even acknowledge the existence
of—the Settlement Agreement. Everything that was confidential during the mediation
remained confidential after the mediation ended.
       The only thing that Moakler was entitled to say after signing the Settlement
Agreement was that the parties have “dropped their claims against each other and wish
each other the best in their future endeavors.” Any postsettlement statement about
Prejean’s case beyond the good wishes is not protected speech. Though it touched a
matter of public interest, it may prove to be costly rather than “free” speech, if it is found
to be a breach of the two confidentiality agreements.
       For example, in a postsettlement televised interview, Moakler referred to Prejean’s
“pornographic video,” a confidential matter encompassed by the Settlement Agreement.
We repeat, “a defendant who in fact has validly contracted not to speak [ ] has in effect
‘waived’ the right to the anti-SLAPP statute’s protection in the event he or she later
breaches that contract.” (Navellier, supra, 29 Cal.4th at p. 94, italics added.) Further,
Moakler’s postsettlement conduct was not protected petitioning activity. (Applied, supra,
164 Cal.App.4th at p. 1118.)
                                      DISPOSITION
       The judgment in B234460 is affirmed as to all three appeals arising from it. The
judgment in B237158 is affirmed. The parties to bear their own costs on appeal.
       NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS.


                                           BOREN, P.J.
We concur:


       ASHMANN-GERST, J.


       CHAVEZ, J.



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