Filed 9/16/16 Flores v. Skydive Monterey Bay CA6

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication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

SIXTH APPELLATE DISTRICT

GERARDO FLORES,

Plaintiff, Cross-defendant and 

Appellant,

v.

SKYDIVE MONTEREY BAY, INC., et al.,

Defendants, Cross-complainants and 

Respondents.

 H041550, H042071

 (Monterey County

 Super. Ct. No. M126778)

On August 8, 2012, appellant Gerardo Flores rented a parachute from respondent 

Skydive Monterey Bay Inc. (Skydive), a skydiving facility providing rental skydiving 

equipment and air travel to jump locations. Flores wore the parachute during a skydive. 

While he was descending in the air, the parachute prematurely deployed, rendering him 

unconscious during his descent. Flores suffered serious injuries upon landing. 

Subsequently, Flores filed a complaint against Skydive alleging multiple causes of action 

including intentional tort, negligence, gross negligence, product liability, res ipsa 

loquitur, premises liability, and negligent undertaking. Skydive filed a cross-complaint 

for declaratory relief, equitable indemnity, apportionment of fault, and breach of contract, 

alleging that Flores’s lawsuit violated a covenant not to sue that Flores had signed with 
2

Skydive. Flores moved to strike Skydive’s cross-complaint under the anti-SLAPP 

(strategic lawsuit against public participation) statute (Code Civ. Proc., § 425.16).1

On September 4, 2014, the trial court denied Flores’s motion to strike and granted 

Skydive entitlement to attorney fees incurred by responding to the anti-SLAPP motion. 

Flores appealed this order in appeal No. H041550. While the appeal was pending, the 

trial court held a hearing on the attorney fees issue on December 19, 2014, and ordered 

Flores to pay Skydive attorney fees of $27,985. On January 5, 2015, the trial court 

vacated its September 4, 2014 order denying Flores’s motion to strike and issued a new 

order (again) denying the motion to strike and finding that attorney fees were properly 

granted to Skydive because Flores’s anti-SLAPP motion was frivolous. Flores appealed 

both of these orders (the order granting attorney fees and the order purporting to vacate 

the September 4, 2014 order) in case No. H042071.2 

For the reasons set forth below, we reverse the trial court’s September 4, 2014

order denying the anti-SLAPP order, strike the part of the January 5, 2015 order that 

vacated the September 4, 2014 order denying the anti-SLAPP motion, and reverse the 

December 19, 2014 order awarding Skydive with attorney fees.

BACKGROUND

Flores’s Complaint

On March 10, 2014, Flores filed a first amended complaint against Skydive 

alleging seven causes of action for intentional tort, negligence, gross negligence, product 

liability, res ipsa loquitur, premises liability, and negligent undertaking. 

The factual allegations in Flores’s complaint were as follows: On August 8, 2012, 

Flores rented a parachute from Skydive. Prior to Flores’s rental, Skydive had 

 

1 Unspecified statutory references are to the Code of Civil Procedure.

2 On July 13, 2015, we ordered that these two appeals (H042071 & H041550) be 

considered together for the purposes of oral argument and disposition.
3

intentionally altered and modified the parachute. Suspension lines that were attached 

between the riser and the main parachute were broken and dangling, the parachute 

container and shoulder/back harness showed signs of wear and tear beyond serviceable 

limits, at least two suspension lines were broken and had been tied (knotted) back 

together, and a Velcro strap was beyond serviceable limits. These alterations and 

modifications prevented the parachute’s left-side slider from deploying into its proper 

position. 

Flores wore the parachute during a jump from an altitude of 18,000 feet and 

descended for about 16 seconds. Flores executed a barrel roll maneuver during the 

skydive, and the parachute prematurely deployed. Because of the knotted suspension 

lines, Flores entered into a spin. He lost consciousness, landing face down on the ground 

at Marina Municipal Airport. Skydive personnel did not discover that Flores was 

unconscious until more than one minute and 29 seconds after he landed. In fact, a 

Skydive employee erroneously stated that she saw Flores land and that he was conscious 

at the time. Flores suffered from serious head trauma, a lacerated tongue, broken ribs, 

and other physical injuries. He was airlifted for medical treatment. 

Skydive’s Cross-complaint

On April 16, 2014, Skydive filed a cross-complaint against Flores alleging causes

of action for indemnification, apportionment of fault, declaratory relief, and breach of 

contract. Skydive alleged that Flores had breached a contract he had signed that 

contained a covenant not to sue. Skydive attached signed copies of a “Tandem Parachute 

Jumper Agreement” (Tandem Agreement) and a “Release of Liability & Assumption of 

Risk Agreement” (First Release Agreement), both dated September 7, 2009. Also 

attached was a signed copy of a “Release of Liability & Assumption of Risk Agreement”

signed October 26, 2011 (Second Release Agreement). 

The Tandem Agreement contained a covenant not to sue stating that Flores agreed 

“never to institute any suit or action at law or otherwise against any of the organizations 
4

and/or persons described [in the agreement], or to initiate or assist in the prosecution of 

any claim for damages or cause of action which I may have by reason of injury to my 

person or property, or my death, arising from the activities covered by this Agreement, 

whether caused by the negligence and/or fault, either active or passive, of any of the 

organizations and/or persons described [in the agreement], or from any other cause. I 

further expressly agree that I will never raise any claim against any of the organizations 

and/or persons described in [the agreement] for product liability, failure to warn, 

negligence, breach of warranty, breach of contract, or strict liability, regardless of 

whether my claims for damages or injuries are alleged to result from the fault or

negligence of the parties released.” 

The First Release Agreement also contained a covenant not to sue stating that 

Flores agreed “not [to] sue or make any claim of any nature whatsoever against ‘Skydive 

Monterey Bay Inc.’ for personal injuries or other damages or losses sustained by me as a 

result of my ‘parachuting activities’ even if such injuries or other damages or losses 

sustained by me as a result of my ‘parachuting activities’ are caused by the negligence, in 

any degree, or other fault of ‘Skydive Monterey Bay Inc.’ ” The Second Release 

Agreement contained an identical covenant not to sue. 

Flores’s Anti-SLAPP Motion

On May 30, 2014, Flores filed a motion to strike Skydive’s cross-complaint under 

the anti-SLAPP statute (§ 425.16). Flores argued that the cross-complaint arose from 

Flores’s exercise of protected petitioning activity (the filing of the lawsuit) and Skydive 

could not demonstrate a probability of prevailing on the merits of its cross-complaint. 

Skydive’s Response

On July 3, 2014, Skydive filed a response to Flores’s anti-SLAPP motion. 

Skydive argued that Flores’s anti-SLAPP motion should be denied, because its 

cross-complaint did not arise from protected activity, and even if it did, Skydive had 

demonstrated a probability of prevailing on its cross-complaint. Skydive also requested 
5

reasonable attorney fees for responding to the anti-SLAPP motion (§ 425.16, subd. (c)), if 

the court should determine that the anti-SLAPP motion was frivolous or solely brought to 

cause unnecessary delay. Attached to Skydive’s opposition were the various agreements 

signed by Flores and an affidavit by Raymond Ferrell, an expert in parachuting matters, 

who opined that Flores’s actions contributed to his accident.

The Various Orders 

On September 4, 2014, the trial court denied Flores’s special motion to strike 

Skydive’s cross-complaint and granted Skydive’s request for attorney fees and costs 

associated with responding to Flores’s motion. The court’s order held that the 

cross-complaint did not arise from protected petitioning activity, and regardless, Skydive 

had demonstrated a probability of prevailing on the merits of its cross-complaint. The 

order did not specify the amount of attorney fees to be awarded to Skydive. 

Section 425.16, subdivision (i) provides that an order granting or denying a motion to 

strike brought under section 425.16 is an appealable order under section 904.1. 

Accordingly, Flores timely appealed the denial of his motion to strike, which is the 

subject of the appeal in case No. H041550.

Subsequent to the September 4, 2014 order, Skydive filed a motion requesting the 

trial court enter an order for attorney fees. Flores opposed the motion, arguing that the 

trial court was divested of its jurisdiction in the matter since an appeal was pending over 

the order denying the special motion to strike, and the trial court’s initial award of 

attorney fees was erroneous because it did not make a finding that Flores’s anti-SLAPP 

motion was frivolous or brought in bad faith. The court held a hearing on the matter on 

December 19, 2014, and Flores reiterated his position that the trial court lacked 

jurisdiction to consider the matter. 

After considering the arguments presented during the hearing, the trial court orally

granted Skydive’s request for $27,985 in attorney fees and costs, which it found to be a 
6

reasonable amount for responding to Flores’s anti-SLAPP motion. The trial court entered 

a minute order on December 19, 2014, granting Skydive attorney fees in that amount. 

On January 5, 2015, the trial court filed an order vacating its September 4, 2014 

order. The January 5, 2015 order again denied Flores’s motion to strike and again 

awarded Skydive entitlement to attorney fees. Flores appealed this order and the 

December 19, 2014 order granting attorney fees, which are the subject of the appeal in 

case No. H042071.

DISCUSSION3

1. Appealability and Mootness

Before we address the merits of Flores’s arguments regarding the denial of his 

anti-SLAPP motion and the grant of attorney fees to Skydive, we must address the 

threshold issue of appealability. “[S]ince the question of appealability goes to our 

jurisdiction, we are dutybound to consider it on our own motion.” (Olson v. Cory (1983) 

35 Cal.3d 390, 398.) Here, we have several trial court orders that purport (1) to deny 

Flores’s anti-SLAPP motion and (2) to grant Skydive reasonable attorney fees incurred 

from responding to the motion. 

 

3

Flores notes in his reply brief that Skydive’s briefs do not conform with 

California Rules of Court, rule 8.204(a)(1)(C), which states that parties must support any

reference to a matter in the record by citations to the volume and page number of the 

record where the matter appears. After reviewing Skydive’s briefs, we agree with 

Flores’s assessment that Skydive failed to provide record citations to many of the facts 

referenced in its briefs. Despite these shortcomings, we will consider Skydive’s 

arguments. It has provided us with sufficient legal arguments and briefing on the issues 

raised by Flores. However, we caution Skydive that its future filings with this court 

should abide by the California Rules of Court. This court has the discretion to disregard 

contentions that are not adequately supported by citations to the record. (Kim v.

Sumitomo Bank (1993) 17 Cal.App.4th 974, 979.) Flores also notes that Skydive 

erroneously cites to matters outside of the appellate record, which are outside our review. 

We disregard any factual statements alleged in Skydive’s briefs that are not contained in 

the appellate record. (Kendall v. Barker (1988) 197 Cal.App.3d 619, 625.) 
7

a. The September 4, 2014 Order

On September 4, 2014, the trial court denied Flores’s motion to strike and granted 

Skydive reasonable attorney fees associated with responding to the motion. 

Preliminarily, it is apparent that the part of the order filed on September 4, 2014,

that denied Flores’s motion to strike is appealable. Section 425.16, subdivision (i) 

specifically provides that an order granting or denying a motion to strike brought under 

section 425.16 is an appealable order under section 904.1. 

Whether the second part of the September 4, 2014 order—granting Skydive’s 

request for attorney fees—is also appealable is less clear. In PR Burke Corp. v. Victor 

Valley Wastewater Reclamation Authority (2002) 98 Cal.App.4th 1047, 1050, the 

appellate court held that a judgment determining entitlement to attorney fees but not the 

amount is interlocutory and nonappealable as to that issue. (Id. at p. 1054.) PR Burke

found that its conclusion was “consistent with the policy against piecemeal appeals.” 

(Ibid.) A litigant could otherwise file two appeals—one from an order granting it 

entitlement to fees, and another from a separate order that specifies the amount of fees. 

PR Burke, however, did not arise from an award of attorney fees following a grant 

or denial of an anti-SLAPP motion, which is, by statute (§ 425.16, subd. (i)), appealable. 

In Baharian-Mehr v. Smith (2010) 189 Cal.App.4th 265 (Baharian-Mehr), the appellate 

court considered the appealability of an order finding that the defendant’s anti-SLAPP 

motion was frivolous and awarding the plaintiff $1,500 in attorney fees. (Id. at p. 273.) 

The plaintiff, Smith, had appealed from the trial court’s order which had denied his 

anti-SLAPP motion and awarded attorney fees. The defendant, Baharian-Mehr, argued 

that the appellate court should not review the attorney fee award except upon review from 

a final judgment. 

Baharian-Mehr noted that the Second Appellate District in Doe v. Luster (2006) 

145 Cal.App.4th 139 (Doe) opined, in dicta, that appellate cases that had reviewed both 

the grant or denial of attorney fee awards and the grant or denial of an anti-SLAPP 
8

motion should not have done so. (Id. at p. 150.) Baharian-Mehr disagreed with the dicta 

set forth in Doe, noting that “[i]n cases where, as here, the issue of whether the 

anti-SLAPP motion should have been granted is properly before the appellate court, it 

would be absurd to defer the issue of attorney fees until a future date, resulting in the 

probable waste of judicial resources.” (Baharian-Mehr, supra, 189 Cal.App.4th at 

p. 275.) Therefore, Baharian-Mehr held that “[w]hen the first issue [the grant or denial 

of the anti-SLAPP motion] is properly raised, appellate jurisdiction over both issues [the 

propriety of the grant or denial of the anti-SLAPP motion and the award of attorney fees] 

under section 425.16, subdivision (i) is proper.”4 (Ibid.) 

We agree with the appellate court’s conclusion in Baharian-Mehr, but 

Baharian-Mehr’s conclusion is not dispositive of the issue raised here. Unlike the trial 

court in Baharian-Mehr, the trial court here did not specify the amount of attorney fees to 

be awarded to Skydive. Accordingly, the part of the September 4, 2014 order granting 

attorney fees is akin to the interlocutory order contemplated in PR Burke. Finding that 

this part of the order is appealable would create piecemeal appeals. In appealing the 

September 4, 2014 order, Flores could dispute Skydive’s entitlement to fees. Flores 

could not, however, raise any arguments pertaining to the reasonableness of the fee 

award, because the fee had not yet been fixed. 

Accordingly, the part of the September 4, 2014 order entitling Skydive to attorney 

fees was interlocutory and therefore nonappealable. 

b. December 19, 2014 Order

Next, we turn to whether the December 19, 2014 order granting attorney fees was 

appealable. Flores’s notice of appeal in case No. H042071 specified that he was 

 

4 Although Baharian-Mehr disagreed with the dicta in Doe, it agreed with Doe’s 

holding that an interlocutory denial of an award of attorney fees following a denial of an 

anti-SLAPP is not separately appealable. (Baharian-Mehr, supra, 189 Cal.App.4th at 

p. 274; Doe, supra, 145 Cal.App.4th at p. 150.)
9

appealing from “[a]n order granting a motion awarding attorneys’ fees and costs from a 

hearing on December 19, 2014.” 

On December 19, 2014, the trial court orally granted Skydive attorney fees in the 

amount of $27,985. During the hearing, Skydive’s counsel stated that it had prepared an 

order, and the trial court stated that it would “take a look at [the proposed order] and sign 

it.” 

However, the record on appeal does not contain a written order granting Skydive 

attorney fees and specifying the amount of fees they should receive. There is, however, a 

minute order dated December 19, 2014, which reflects the trial court’s oral order of

attorney fees. The minute order did not direct counsel to prepare a separate written order 

regarding attorney fees. “ ‘[A]n unsigned minute order can form the basis of an appeal, 

unless it specifically recites that a formal order is to be prepared. . . .’ ” (Cuenllas v. VRL 

International, Ltd. (2001) 92 Cal.App.4th 1050, 1053.) Based on the foregoing, we 

conclude that the December 19, 2014 minute order can form the basis of an appeal.5

The question is whether the minute order was an appealable order. We find that it 

is under section 904.1, subdivision (a)(12). Doe, supra, 145 Cal.App.4th at page 150, 

held that an interlocutory grant or denial of attorney fees following a denial of an 

anti-SLAPP motion is not a separately appealable order. Doe, however, noted that some 

interlocutory anti-SLAPP attorney fees awards may be immediately appealable under 

section 904.1, subdivision (a)(12) (immediate appeal may be taken from order directing 

payment of monetary sanctions by a party or an attorney for a party if the amount exceeds 

$5,000). (Doe, supra, at p. 146.) Here, the attorney fees awarded to Skydive as a 

sanction against Flores’s filing of a frivolous anti-SLAPP motion exceeded $5,000. 

 

5

Section 1003 defines an “order” as “[e]very direction of a court or judge, made 

or entered in writing, and not included in a judgment.” There is no requirement that an 

order be signed.
10

Therefore, the unsigned minute order granting Skydive’s request for attorney fees in the 

amount of $27,985 was an appealable order under section 904.1, subdivision (a)(12). 

c. January 5, 2015 Order

Next, we must consider the appealability—and validity—of the trial court’s 

January 5, 2015 order, which vacated its September 4, 2014 order and made additional 

findings regarding attorney fees and the merits of Flores’s anti-SLAPP motion. Flores 

argues that the trial court’s January 5, 2015 order is void, because the trial court lacked 

fundamental jurisdiction to alter its September 4, 2014 order once an appeal over that 

order had been perfected. Skydive maintains that the September 4, 2014 order was 

nonfinal, and the court retained jurisdiction to amend or alter its nonfinal judgment. We 

find that Flores is mostly correct.

Except in certain situations not relevant to this case, “the perfecting of an appeal 

stays proceedings in the trial court upon the judgment or order appealed from or upon the 

matters embraced therein or affected thereby, including enforcement of the judgment or 

order, but the trial court may proceed upon any other matter embraced in the action and 

not affected by the judgment or order.” (§ 916, subd. (a).) 

“The fact that the postjudgment or postorder proceeding may render the appeal 

moot is not, by itself, enough to establish that the proceeding affects the effectiveness of 

the appeal and should be stayed under section 916. Rather, something more is needed. 

For example, the trial court proceeding must directly or indirectly seek to ‘enforce, vacate 

or modify [the] appealed judgment or order.’ ” (Varian Medical Systems, Inc. v. Delfino

(2005) 35 Cal.4th 180, 189 (Varian).) 

Applying these principles, we conclude that the portion of the January 5, 2015 

order that purports to vacate and modify the September 4, 2014’s order denying Flores’s 

special motion to strike is void. (Varian, supra, 35 Cal.4th at p. 196 [“any judgment or 

order rendered by a court lacking subject matter jurisdiction is ‘void on its face . . . .’ ”].) 

Flores had already perfected an appeal from the September 4, 2014 order denying his 
11

anti-SLAPP motion, which was immediately appealable. The perfecting of the appeal 

divested the trial court of the subject matter jurisdiction over matters related to the 

propriety of the anti-SLAPP motion. (Ibid.) Therefore, the trial court did not have 

jurisdiction to vacate or modify its prior order. We must therefore strike that part of the 

trial court’s order modifying the denial of Flores’s anti-SLAPP motion.

The portion of the January 5, 2015 order modifying the grant of attorney fees 

requires a different analysis. As we explained above, the September 4, 2014 order 

granting entitlement to attorney fees was interlocutory and not final (and therefore not 

appealable). The trial court retains the authority to modify or change interim orders prior 

to entry of judgment. (Darling, Hall & Rae v. Kritt (1999) 75 Cal.App.4th 1148, 1157.) 

Additionally, Skydive’s entitlement to attorney fees was not appealable and therefore the 

issue of attorney fees was not stayed pending resolution of the appeal over the denial of 

the anti-SLAPP motion. Accordingly, the trial court’s order vacating its previous interim

order regarding attorney fees was not improper, since it continued to have jurisdiction 

over the matter. 

Nonetheless, the January 5, 2015 order regarding attorney fees was also 

interlocutory like the September 4, 2014 order regarding attorney fees and must be 

dismissed as nonappealable. The order merely reiterated that Skydive was entitled to 

fees; it did not specify the amount. We may review the propriety of the fees, however, 

when we review the December 19, 2014 order granting attorney fees and specifying the 

amount to be awarded to Skydive. 

d. Skydive’s Motion to Dismiss

Lastly, we must consider Skydive’s motion to dismiss Flores’s appeal over the 

September 4, 2014 order (appeal No. H041550). Skydive’s motion is premised on its 

argument that the September 4, 2014 order was properly vacated by the trial court’s 

January 5, 2015 order. Since we find that the September 4, 2014 order denying Flores’s 

anti-SLAPP motion was immediately appealable and was properly appealed by Flores, 
12

and the January 5, 2015 order vacating that portion of the September 4, 2014 order void, 

we deny Skydive’s motion to dismiss the appeal taken from the September 4, 2014 order. 

2. Denial of Flores’s Anti-SLAPP Motion

a. Overview of the Anti-SLAPP Statute and Standard of Review

The anti-SLAPP statute provides a “procedural remedy to dispose of lawsuits that 

are brought to chill the valid exercise of constitutional rights.” (Rusheen v. Cohen (2006) 

37 Cal.4th 1048, 1055-1056.) Consequently, “the anti-SLAPP statute is to be construed 

broadly.” (Padres L.P. v. Henderson (2003) 114 Cal.App.4th 495, 508.)

In evaluating an anti-SLAPP motion, the trial court must engage in a two-step 

process. (Equilon Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67 

(Equilon).) It first determines “whether the defendant has made a threshold showing that 

the challenged cause of action is one arising from protected activity.” (Navellier v.

Sletten (2002) 29 Cal.4th 82, 88 (Navellier).) A defendant meets this burden by 

demonstrating the plaintiff’s action is premised on statements or conduct taken “ ‘in 

furtherance of the [defendant]’s right of petition or free speech under the United States 

[Constitution] or [the] California Constitution in connection with a public issue,’ as 

defined in the [anti-SLAPP] statute. (§ 425.16, subd. (b)(1).)” (Equilon, supra, at p. 67.) 

If the defendant makes the requisite showing, the burden shifts to the plaintiff to 

demonstrate a probability of prevailing on the claim. (Ibid.) “Only a cause of action that 

satisfies both prongs of the anti-SLAPP statute—i.e., that arises from protected speech or 

petitioning and lacks even minimal merit—is a SLAPP, subject to being stricken under 

the statute.” (Navellier, supra, at p. 89.)

We review the trial court’s ruling on an anti-SLAPP motion de novo. (Flatley v.

Mauro (2006) 39 Cal.4th 299, 325.) In so doing, 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).) We do not make credibility determinations or compare 

the weight of the evidence presented below. Instead, we accept the opposing party’s 
13

evidence as true and evaluate the moving party’s evidence only to determine if it has 

defeated the opposing party’s evidence as a matter of law. (Soukup v. Law Offices of 

Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) The court “should grant the motion if, 

as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s 

attempt to establish evidentiary support for the claim.” (Wilson v. Parker, Covert & 

Chidester (2002) 28 Cal.4th 811, 821.)

b. First Prong: Protected Activity

First, we note that Flores’s anti-SLAPP motion did not distinguish between each 

cause of action alleged in Skydive’s cross-complaint. In other words, Flores did not 

separately address each of Skydive’s causes of action and articulate how each cause of 

action was based on protected speech or conduct. Rather, Flores broadly asserted that the 

entire cross-complaint should be stricken because it arose from protected petitioning 

activity—that is, Flores’s filing of a lawsuit. 

However, by claiming that all of Skydive’s causes of action must be stricken 

under the anti-SLAPP statute, Flores bears the burden of showing that each of Skydive’s

causes of action arise from petitioning activity. We therefore address Skydive’s causes of 

action separately. As we explain below, Flores did not meet his burden on all of the 

causes of action alleged in Skydive’s cross-complaint.

i. Breach of Contract is Protected Petitioning Activity

First, we agree with Flores’s assessment that his filing of the complaint against 

Skydive was an act undertaken in furtherance of his constitutional right to petition. 

Section 425.16, subdivision (e)(1) provides in pertinent part that protected activity 

includes “any written or oral statement or writing made before a legislative, executive, or 

judicial proceeding, or any other official proceeding authorized by law.” The complaint 

filed by Flores is a written statement made before a judicial proceeding. It is therefore 

protected petitioning activity under the anti-SLAPP statute.
14

ii. Whether the Cross-complaint “Arose” from Protected Activity

Next we determine whether Flores met his initial burden to demonstrate that each

of the challenged causes of action “is one arising from protected activity.” (Navellier,

supra, 29 Cal.4th at p. 88.) “[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. [Citation.] Moreover, that a cause of action arguably may have 

been ‘triggered’ by protected activity does not entail that it is one arising from such. 

[Citation.] In the anti-SLAPP context, the critical consideration is whether the cause of 

action is based on the defendant’s protected free speech or petitioning activity.” (Id. at 

p. 89.)

Below and on appeal, Flores did not separately address each of the four causes of 

action in Skydive’s cross-complaint. Before the trial court, he broadly argued that the 

entire cross-complaint arose from his alleged breach of contract and his filing of a 

lawsuit. On appeal, his opening brief asserted that “[c]onduct alleged to constitute a 

breach of contract may come within the statutory protections for protected speech or 

petitioning for purposes of” the anti-SLAPP statute. Flores also opined that the only 

“alleged breach” in the complaint was the breach of contract that occurred when Flores 

filed his lawsuit against Skydive. His opening brief then quoted from a portion of 

Skydive’s cause of action for breach of contract. Flores then, in a conclusory fashion, 

asserted that all four causes of action in the cross-complaint arose from protected activity. 

His opening brief did not reference the allegations that constitute the causes of action for 

declaratory relief, indemnity, or equitable apportionment.

Based on his conclusory arguments to the trial court and on appeal, we find that 

Flores fails to meet his initial burden to show that the causes of action for declaratory 

relief, indemnity, and equitable apportionment alleged in Skydive’s cross-complaint all 

arose from protected petitioning activity. Flores demonstrated that his filing of a lawsuit 

was protected petitioning activity under section 425.16, subdivision (e)(1). He does not, 
15

however, explain, argue, or provide citations to support his claim that these three causes 

of action all arose from that protected petitioning activity. In sum, Flores fails to apply 

the facts to the relevant law. It was his burden on appeal to demonstrate the trial court 

erred when it found that the cross-complaint did not arise from protected petitioning 

activity and that burden is not satisfied by a generalized argument that “the gravamen of 

the [entire] cross-complaint is the fact that Gerardo Flores filed a lawsuit, nothing else.”6

For example, the causes of action for equitable apportionment and indemnity are 

based (at least in part) on Skydive’s allegation that Flores himself was at fault for the 

accident based on his conduct during the skydive. Flores also does not directly address 

the cause of action for declaratory relief and whether it arose from valid contract dispute 

between the parties (City of Alhambra v. D’Ausilio (2011) 193 Cal.App.4th 1301 [cause 

of action for declaratory relief seeking determination that city employee’s participation in 

meetings and protests against the city violated terms of a settlement agreement did not

arise from protected petitioning activity]) or if it arose from protected petitioning activity 

(Equilon, supra, 29 Cal.4th 53 [cause of action for declaratory relief that notice to sue 

failed to comply with the California Code of Regulations arose from protected petitioning 

activity]). 

Flores’s failure to develop these arguments on appeal or raise them below to the 

trial court compels us to find that these issues are waived.7 (Badie v. Bank of America

 

6

In the September 4, 2014 order the trial court expressly stated that Flores failed 

to show that the challenged activity arose from protected activity within the meaning of 

the anti-SLAPP statute. We note that in the January 5, 2015 order, the trial court issued a 

new order finding that the cross-complaint did arise from protected activity. However, as 

in the previous section of this opinion we have stricken that part of the trial court’s order. 

(See ante.)

7 We do not express an opinion as to whether the gravamen of these causes of 

action arises from protected activity. We also note that during oral argument, Flores cited 

to the California Supreme Court’s recent decision in Baral v. Schnitt (Aug. 1, 2016, 

S225090) __ Cal.4th __ [2016 WL 4074081]. Baral is not inconsistent with our 

(continued)
16

(1998) 67 Cal.App.4th 779, 784-785 [“When an appellant fails to raise a point, or asserts 

it but fails to support it with reasoned argument and citations to authority, we treat the 

point as waived.”]; Paterno v. State of California (1999) 74 Cal.App.4th 68, 106 [“An 

appellate court is not required to examine undeveloped claims, nor to make arguments for 

parties.”]; Baugh v. Garl (2006) 137 Cal.App.4th 737, 746 [“Points not raised in the trial 

court may not be raised for the first time on appeal.”].) 

In his briefs, Flores argues that these three causes of action should be stricken, 

because they are merely affirmative defenses to his complaint. In essence, Flores claims 

that Skydive failed to state valid causes of action. However, Flores filed an anti-SLAPP 

motion under section 425.16. The first step taken when evaluating his special motion to 

strike is to determine whether each challenged cause of action arises from protected 

petitioning activity. We do not reach the second prong of the anti-SLAPP statute (the 

probability of prevailing on the merits)—which would take into account the viability of 

each cause of action—unless the first prong is met. We therefore decline to address 

Flores’s arguments on these points.8

We do, however, find that Flores sufficiently addressed Skydive’s cause of action 

for breach of contract, which Flores claims was based on his filing of a lawsuit against 

Skydive. As we previously discussed, we agree with Flores that the filing of a complaint 

is an act undertaken in furtherance of the constitutional right to petition. (Navellier,

supra, 29 Cal.4th at p. 90; § 425.16, subd. (e)(1).) And as Flores argues, Skydive’s 

cross-complaint alleged that he breached his contract by violating the covenant not to 

sue—that is, by filing the lawsuit. Based on the foregoing, we find that Flores met its 

 

conclusion. The Baral court noted that “[a]t the first step, the moving defendant bears 

the burden of identifying all allegations of protected activity, and the claims for relief 

supported by them.” (Id. at p. *13.) As we have indicated, we do not believe Flores met 

his initial burden here.

8 We express no opinion on the merits of these other causes of action.
17

initial burden to show that the cause of action for breach of contract arose from protected 

petitioning activity.

Skydive does not directly address the first prong of the anti-SLAPP statute in its 

briefs on appeal. It does, however, argue that Flores waived the right to any protections 

afforded by the anti-SLAPP statute based on his decision to agree to the various 

covenants not to sue in the Tandem Agreement, First Release Agreement, and Second 

Release Agreement.

Skydive’s argument is premised on a mistaken interpretation of DaimlerChrysler 

Motors Co. v. Lew Williams, Inc. (2006) 142 Cal.App.4th 344 (Daimler). In Daimler, a 

car dealer protested a manufacturer’s notice of its intent to establish a new car dealership 

in violation of an agreement not to protest. (Id. at p. 347.) The manufacturer filed a 

cross-complaint against the dealership alleging multiple causes of action including breach 

of contract for violating the agreement not to protest. (Id. at p. 349.) The car dealership 

filed an anti-SLAPP motion, which was denied. The appellate court affirmed. (Id. at 

p. 347.)

In regard to the first prong of the anti-SLAPP statute, the appellate court 

determined that it was undisputed that the car dealership’s protests were written 

statements made before an executive proceeding that were made in connection with an 

issue under review by an executive body. (Daimler, supra, 142 Cal.App.4th at p. 351.) 

It was therefore protected petitioning activity under section 425.16. The manufacturer, 

like Skydive, attempted to argue that the protests were not protected petitioning activity 

because the dealership had waived its right to protest. (Daimler, supra, at p. 351.) 

The Daimler court rejected the manufacturer’s argument, which had relied on 

Navellier. In Navellier, the Supreme Court recognized that a plaintiff’s breach of 

contract claim based on the defendant’s act of filing counterclaims in violation of a 

release fell within the purview of the “arising from” prong of the anti-SLAPP statute. 

(Navellier, supra, 29 Cal.4th at p. 90.) Navellier, however, noted that “as the 
18

[anti-SLAPP] statute is designed and as we have construed it, 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.” (Id.

at p. 94.) In essence, Navellier held that “[t]he Legislature’s inclusion of a merits prong 

to the statutory SLAPP definition (§ 425.16, subd. (b)(1)) . . . preserves appropriate 

remedies for breaches of contracts involving speech by ensuring that claims with the 

requisite minimal merit may proceed.” (Ibid.) Whether the party has “validly waived” 

the right to petition is a question properly reserved for the second (not the first) prong of 

the anti-SLAPP analysis. (Ibid.; Daimler, supra, 142 Cal.App.4th at p. 351.)

Accordingly, the Daimler court went on to analyze whether the manufacturer had 

satisfied its burden to show that there was a probability of success on the merits of its 

cross-complaint. (Daimler, supra, 142 Cal.App.4th at p. 352.) Daimler analyzed the 

merits of the cross-complaint and concluded that the manufacturer had met its burden. It 

therefore affirmed the judgment of the trial court denying the car dealership’s 

anti-SLAPP motion. (Id. at p. 355.)

Applying the principles set forth in Navellier and Daimler to this case, we find 

that the covenant not to sue did not render Skydive’s cause of action for breach of 

contract automatically outside the purview of the anti-SLAPP statute. Rather, whether 

Flores “waived” his right to the protections of the anti-SLAPP statute depends on 

whether Skydive can meet its burden on the second prong of the anti-SLAPP statute and

demonstrate that its breach of contract claim has minimal merit. 

c. Second Prong: Probability of Prevailing on the Merits

Finding that Flores met his initial burden to show that Skydive’s cause of action 

for breach of contract arose from protected activity, the burden now shifts to Skydive to 

demonstrate that it has a probability of prevailing on the merits.

“[T]he elements of a cause of action for breach of contract are (1) the existence of 

a contract, (2) plaintiff’s performance or excuse for nonperformance, (3) defendant’s 
19

breach, and (4) the resulting damages to the plaintiff.” (Oasis West Realty, LLC v.

Goldman (2011) 51 Cal.4th 811, 821.) “Damages are, of course, a necessary element of 

the breach of contract cause of action.” (Navellier v. Sletten (2003) 106 Cal.App.4th 763, 

775 (Navellier II).) 

Flores argues that Skydive cannot prevail on its cause of action for breach of 

contract, because it failed to provide evidence of damages resulting from the breach. We 

agree that once Flores met his initial burden to establish that the breach of contract claim 

arose from protected petitioning activity, the burden shifted to Skydive to “ ‘establish 

evidentiary support for [its] claim.’ ” (Navellier II, supra, 106 Cal.App.4th at p. 775.) 

We find Navellier II to be analogous to the present case. In Navellier II, the 

Second Appellate District ultimately found that the plaintiffs failed to demonstrate a 

probability of prevailing on their breach of contract claim after the defendants breached 

an agreement and filed counterclaims against them in federal court. (Navellier II, supra, 

106 Cal.App.4th at pp. 775-776.) In part, the plaintiffs had alleged that the attorney fees 

and costs they had incurred while litigating the defendants’ federal counterclaims resulted 

from the breach of their agreement. (Id. at p. 775.) The Navellier II court rejected the 

plaintiffs’ claim that this was sufficient evidence of damages, noting that “plaintiffs have 

presented nothing as to their damages on the breach of contract cause of action beyond 

the bare allegations of their unverified complaint—an insufficient showing to survive the 

motion to strike that cause of action.” (Id. at p. 776.) The plaintiffs did not present any 

affidavit or evidence stating facts with respect to their alleged damages. (Ibid.)

Like the Navellier plaintiffs, Skydive alleged in its unverified cross-complaint9

that it was damaged by the breach of contract, because it incurred and will continue to 

incur damages including the cost of defending against Flores’s lawsuit and the amount of 

 

9

Skydive’s attorney signed its complaint, but there was no verification in the 

complaint as described in section 446.
20

any resulting judgment that may be entered as a result of the lawsuit. Skydive’s 

cross-complaint further alleged that reasonable attorney fees incurred to represent its 

interests was another item of damages. 

Also like the Navellier plaintiffs, Skydive has not submitted any evidence of 

damages resulting from the alleged breach aside from the unverified allegations in its 

cross-complaint. In its respondent’s brief, Skydive asserts that Flores’s claim that 

Skydive “[has] not incurred any damage as a result of [Flores’s] breach of contract is 

incredulous!” While we agree with Skydive that, logically speaking, damages arising 

from the cost of defending against Flores’s lawsuit are likely to exist, Skydive did not

submit any affidavits or declarations to support the allegations of damages in the 

cross-complaint. Skydive cannot simply rely on the bare allegations in its unverified

cross-complaint. It must offer evidentiary support for its claim, which it has failed to do. 

(Navellier II, supra, 106 Cal.App.4th at p. 775.) Like in Navellier II, the lack of evidence 

of damages is dispositive of the issue. For this reason, Skydive did not meet its burden 

on the second prong of the anti-SLAPP statute.10 

Accordingly, the order denying Flores’s anti-SLAPP motion must be reversed as 

to the breach of contract cause of action.

3. Attorney Fees

a. Attorney Fees to Skydive

The trial court, after denying Flores’s anti-SLAPP motion, granted Skydive’s 

request for attorney fees under section 425.16, subdivision (c)(1), which mandates 

reasonable attorney fees be awarded to a prevailing plaintiff if the court finds that the 

special motion to strike is frivolous or solely intended to cause unnecessary delay. 

 

10 We therefore do not need to reach the issues of whether the covenant not to sue 

is enforceable under Civil Code section 1668 and whether the litigation privilege (Civ. 

Code, § 47) applies.
21

(§ 425.16, subd. (c)(1); Moore v. Shaw (2004) 116 Cal.App.4th 182, 198-199.) On 

appeal, Flores argues that we should reverse the court’s order on attorney fees. 

We agree with Flores’s contention on this point. Here, we have found that 

Flores’s motion has some merit. His anti-SLAPP motion therefore cannot be said to be 

frivolous. The order granting Skydive attorney fees must therefore be reversed.

b. Attorney Fees to Flores

Section 425.16, subdivision (c)(1) also provides that “a prevailing defendant on a 

special motion to strike shall be entitled to recover his or her attorney’s fees and costs.” 

(Italics added.) “Under this provision, ‘any SLAPP defendant who brings a successful 

motion to strike is entitled to mandatory attorney fees.” (Mann v. Quality Old Time 

Service, Inc. (2006) 139 Cal.App.4th 328, 338.) “[A] party who partially prevails on an 

anti-SLAPP motion must generally be considered a prevailing party unless the results of 

the motion were so insignificant that the party did not achieve any practical benefit from 

bringing the motion.” (Id. at p. 340.)

Flores has prevailed on part of his anti-SLAPP motion, and these results were not 

insignificant. He is therefore entitled to mandatory attorney fees under section 425.16, 

subdivision (c). The matter must therefore be remanded to the trial court for a 

determination of the amount of fees to be awarded. 

DISPOSITION

The September 4, 2014 order denying Flores’s anti-SLAPP motion is reversed. 

The trial court is directed to enter a new order granting Flores’s anti-SLAPP motion as to 

Skydive Monterey Bay, Inc.’s cause of action for breach of contract and denying the 

anti-SLAPP motion as to Skydive Monterey Bay, Inc.’s remaining causes of actions. 

The portion of the January 5, 2015 order vacating the September 4, 2014 order and 

denying the anti-SLAPP motion is stricken and the appeal from the remainder of the 

January 5, 2015 order is dismissed. 
22

The December 19, 2014 order awarding Skydive Monterey Bay, Inc. with attorney 

fees is reversed. The matter is remanded to the trial court to determine the amount of 

attorney fees Flores is entitled to as the prevailing party on the anti-SLAPP motion under 

Code of Civil Procedure section 425.16, subdivision (c). 

The parties are to bear their own costs on appeal in case No. H041550. 

Flores is entitled to his costs on appeal in case No. H042071.
Premo, J.

WE CONCUR:

Rushing, P.J.

Grover, J.