1 

Filed 9/12/13 Rivera v. Value Home Loan CA2/8 

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS 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 This opinion has not been certified for publication 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

ROBERTO A. RIVERA et al., 

 Plaintiffs and Appellants, 

 v. 

VALUE HOME LOAN, INC. et al., 

 Defendants and Respondents. 

 B245890 

 (Los Angeles County 

 Super. Ct. No. YC063260) 

 APPEAL from orders of the Superior Court of Los Angeles County. 

Cary H. Nishimoto, Judge. Affirmed in part, dismissed in part. 

 Law Offices of George A. Saba, and George A. Saba for Plaintiffs and Appellants, 

Roberto A. Rivera and Maria E. Rivera. 

 John Clark Brown, Jr. for Defendants and Respondents, Value Home Loan, Inc., 

Neil D. Gitnick, and John Clark Brown, Jr. 

_______________________________ 
2 

 The trial court granted a special motion to strike a “cross cross-complaint” 

pursuant to Code of Civil Procedure section 425.16 (§ 425.16), commonly known as the 

anti-Strategic Lawsuit Against Public Participation statute or anti-SLAPP statute. 

The court thereafter granted a motion for sanctions against the attorney who caused the 

cross cross-complaint to be filed. We affirm the order granting the anti-SLAPP motion. 

We dismiss the appeal to the extent it seeks to challenge the order imposing sanctions 

against counsel. 

FACTS 

Background and the Original Complaint 

 In 2005, Roberto and Maria Rivera entered into a home equity line of credit with 

Value Home Loan, Inc. (Value), secured by a deed of trust against real property located 

on 133rd Street in Gardena, and junior to a note and first deed of trust held by Bank of 

America. Value thereafter recorded a notice of default and subsequently initiated nonjudicial foreclosure proceedings. Value claims it obtained title to the 133rd Street 

property in August 2010 at a trust deed foreclosure sale. 

 In September 2010, the Riveras (represented by attorney George Saba) filed a 

complaint against Value seeking to undo the foreclosure sale based on claims that the 

lender failed to comply with statutes governing such sales. The complaint alleged causes 

of action to quiet title to real property, declaratory and injunctive relief, violations of the 

Unfair Competition Law (Bus. & Prof., § 17200), and fraud. 

 In November 2010, Value obtained an unlawful detainer judgment against the 

Riveras. In December 2010, the clerk of the Los Angeles Superior Court issued a writ of 

possession of real property in favor of Value. In March 2011, the Sheriff’s Department 

evicted the Riveras, and placed Value in possession of the 133rd Street property, and 

delivered a receipt for possession of real property to Value. The receipt for possession 

included this language: “In the event evicted individuals reenter the property in violation 
3 

of Penal Code § 419, present this document to the responding local law enforcement 

agency.” 

 In summary, the Riveras were evicted pursuant to a writ of possession in Value’s 

unlawful detainer action after the Riveras had filed their “wrongful foreclosure” action 

against Value, and while the wrongful foreclosure action was still pending. 

 According to evidence later presented by the Riveras, Value sold the 133rd Street 

property to Value Holdings LLC in May 2011. 

Value’s Cross-Complaint 

In May 2012, the trial court granted Value leave to file a cross-complaint for 

trespass. Value’s cross-complaint alleged it obtained title to the 133rd Street property by 

way of the trust deed foreclosure sale in August 2010, and obtained an unlawful detainer 

judgment against the Riveras in November 2010. Value alleged the Sheriff’s Department 

evicted the Riveras in March 2011 pursuant to a writ of possession issued in the unlawful 

detainer action. Later, at some point between March 2011 and November 2011, the 

Riveras re-entered the 133rd Street property without Value’s knowledge or consent. 

The Riveras remained in the property until March 2012, when the City of Gardena Police 

Department returned the property to Value. Value sought damages of “not less than 

$1,800 per month” (possibly reflecting fair rental value) for the time the Riveras occupied 

the property.1

 

The Cross Cross-Complaint and the Anti-SLAPP Motion 

 In July 2012, the Riveras (by attorney Saba) filed a motion for leave to file a 

“cross cross-complaint;” in August 2012, the trial court granted the Riveras’ motion.2

 

 

1 As noted above, the Riveras later presented evidence demonstrating that Value’s 

cross-complaint was potentially problematic, at least in part, in that Value no longer 

owned the 133rd Street property after May 2011. In short, Value’s cross-complaint was 

seeking trespass damages (i.e., fair rental value) for a period of time – May 2011 through 

March 2012 – when it may not have owned the property. 

2 The record contains a copy of a “cross cross-complaint” with a file stamp date of 

June 2012. Apparently, that pleading is a nullity; the parties agree that the “cross cross-
4 

The cross cross-complaint named Value, its president Neil Gitnick, and its attorney of 

record in the wrongful foreclosure action, John Clark Brown, Jr. (hereafter, collectively 

Value) and alleged causes of action for breach of oral agreement, breach of the covenant 

of good faith and fair dealing, fraud, and intentional infliction of emotional distress. 

 All of the causes of action were based on the following allegations: In November 

and December 2011, the Riveras had re-entered the 133rd Street property “based on . . . 

instructions given to [them] by the holder of the first mortgage” that it, and not Value, 

was “the legitimate owner” of the 133rd Street property, and Value knew that the Riveras 

had re-entered the property. During this same time frame, Value (acting by and through 

its president, Gitnick, and its attorney Brown) and the Riveras were engaged in settlement 

negotiations to resolve the Riveras’ wrongful foreclosure action. (This was before Value 

filed its cross-complaint for trespass.) During the course of the negotiations, Value and 

the Riveras “entered into several oral agreements.” Value orally promised not to evict 

the Riveras, and the Riveras promised to hold off on the deposition of Value’s “person 

most knowledgeable,” pending a conclusion of settlement discussions and a mediation 

scheduled for February 2012.3

 The mediation “continued through out [sic] the month of 

February 2012.” Value breached the parties’ oral contract not to evict “when on March 

1, 2012, [it] summoned, authorized and ordered the Gardena Police Department to evict 

the Riveras.” 

 Value filed an anti-SLAPP motion to strike the Riveras’ cross cross-complaint. 

Value’s motion argued that all of the causes of action alleged in the Riveras’ cross crosscomplaint were based upon communications made in the course of the parties’ settlement 

 

complaint” filed in August 2012 is the operative pleading. The Code of Civil Procedure 

does not allow a “cross cross-complaint.” (Code Civ. Proc., § 422.10 [“The pleadings 

allowed in civil actions are complaints, demurrers, answers, and cross-complaints”].) 

3 As noted above, the Riveras later presented evidence that Value did not own the 

133rd Street property in late 2011 when it promised not to evict the Riveras until after 

mediation. In other words, the Riveras’ cross cross-complaint alleged that Value made a 

promise to refrain from undertaking an action (eviction) which, by evidence later offered 

by the Riveras, Value had no lawful authority to undertake in any event. 
5 

negotiations in the Riveras’ wrongful foreclosure action against Value. Value argued that 

all of the communications between the parties had been “in connection” with litigation 

activity that was protected by the anti-SLAPP statute. Value argued the Riveras could 

not prevail on any claim based upon the communications during settlement negotiations 

because (1) the communications were privileged under Civil Code section 47, subdivision 

(b), and (2) evidence of settlement negotiations is not admissible in court under Evidence 

Code section 1152. Value further argued that the Riveras could not prevail on their 

claims because the allegations of the cross cross-complaint were “demonstrably false.” 

 On November 2, 2012, the trial court granted Value’s anti-SLAPP motion, and 

awarded attorney fees to Value in the amount of $2,770. 

 On November 8, 2012, Value filed a motion for monetary sanctions pursuant to 

Code of Civil Procedure section 128.7 against attorney Saba. The motion argued that 

Saba filed a frivolous cross cross-complaint. On December 7, 2012, the trial court 

granted Value’s motion for sanctions, and imposed sanctions in the amount of $2,590. 

On January 3, 2013, the court signed and entered a formal order clarifying the imposition 

of sanctions in the amount of $2,590 against attorney Saba. 

 On December 17, 2012, the Riveras filed a notice of appeal from the trial court’s 

order of November 2, 2012, granting Value’s anti-SLAPP motion, and awarding attorney 

fees in the amount of $2,770. 

DISCUSSION 

I. The Anti-SLAPP Motion 

 The Riveras contend the trial court erred in granting Value’s motion to strike their 

cross cross-complaint pursuant to the anti-SLAPP statute. We disagree. 

 The anti-SLAPP statute is intended to address a concern with meritless lawsuits 

filed to “chill” the valid exercise of the constitutional rights, including the rights of free 

speech and to petition for the redress of grievances. (§ 425.16, subd. (a).) To this end, 

the anti-SLAPP statute authorizes a special procedure for striking such a cause of action 

at the earlier stages of litigation. The special striking procedure entails two steps: a court 
6 

first determines whether the cause of action arises from “protected activity” within the 

meaning of the statute, and, second, the court determines whether there is a probability 

that the plaintiff will prevail on the cause of action. 

 A cause of action presents a claim arising from so-called “protected activity” when 

it arises from “any act [of the defendant] in furtherance of [his or her] right of petition or 

free speech under the United States Constitution or California Constitution in connection 

with a public issue . . . .” ( § 425.16, subd. (b)(1); see, e.g., Martinez v. Metabolife 

Internat., Inc. (2003) 113 Cal.App.4th 181, 188 [it is the gravamen of the plaintiff’s cause 

of action that determines whether the anti-SLAPP statute applies in the first instance].) 

Such acts are defined in the anti-SLAPP statute to include “any written or oral 

statement . . . made in connection with an issue under consideration or review by 

a . . . judicial body. . . .” (§ 425.16, subd. (e)(2).) 

 When a moving defendant makes the required first-step showing that a challenged 

cause of action arises from protected activity, the court moves onto the second step of the 

anti-SLAPP statute’s special striking procedure. In this step, the court must determine 

whether the plaintiff has demonstrated a “probability” that he or she will prevail on his or 

her claim. (§ 425.16, subd. (b)(1); see e.g., Oasis West Realty, LLC v. Goldman (2011) 

51 Cal.4th 811, 820.) 

 We review an order granting an anti-SLAPP motion under the de novo standard of 

review, meaning we undertake the same two-step evaluation procedure as did the trial 

court. (Mendoza v. ADP Screening & Selection Services, Inc. (2010) 182 Cal.App.4th 

1644, 1651-1652.) 

A. Protected Activity 

 The Riveras first contend the trial court’s order granting Value’s motion to strike 

their cross cross-complaint pursuant to the anti-SLAPP statue must be reversed because 

their cross cross-complaint does not arise from “protected activity” within the meaning of 

the statue. 
7 

 The Riveras argue that the settlement negotiations upon which their cross crosscomplaint is based were not “protected activity” within the meaning of the anti-SLAPP 

statute. In the words of their opening brief filed on appeal: “[The Riveras] respectfully 

suggest that the negotiations between [them] and [Value] were not conducted in 

contemplation of litigation, but rather was an attempt to reach a new contract. [Value]’s 

promise not to re-evict [the Riveras] during mediation was an independent agreement that 

was entered into solely to allow the parties to concentrate on resolving the underlying 

action at the mediation. [Value]’s promise not to evict [the Riveras] during mediation 

had no bearing on settling the underlying action.” By their use of the language “no 

bearing on settling the underlying action,” the Riveras apparently mean that Value’s 

alleged promise not to re-evict them was not a term that would be included in a 

negotiated final settlement. The Riveras offer no case authority in support of their 

suggestion that settlement negotiations are not a protected activity within the meaning of 

the anti-SLAPP statute. 

 We are not persuaded. Settlement negotiations are well recognized as a protected 

activity within the meaning of the anti-SLAPP statute. (See Seltzer v. Barnes (2010) 182 

Cal.App.4th 953, 963-964.) 

B. Probability of Prevailing 

 Next, the Riveras contend the trial court’s order granting Value’s motion to strike 

their cross cross-complaint was erroneous because there is a probability they will prevail. 

The Riveras argue the court erred in finding the litigation privilege (Civ. Code, § 47, 

subd. (b)) applied to the claims in their cross cross-complaint, precluding them from 

prevailing on those claims. We disagree and find the trial court appropriately ruled there 

is no probability the Riveras will prevail.4

 

1. Analysis Under Civil Code Section 47, Subdivision (b) 

 

4 We are at a loss to understand why the concurrence makes so much of the fact that 

we address the litigation privilege given that it was the primary issue raised in the briefs 

of both parties. 
8 

 The Riveras argue the litigation privilege historically has been applied to provide 

absolute immunity from tort liability for “communications with ‘some relation’ to 

judicial proceedings.” (Rubin v. Green (1993) 4 Cal.4th 1187, 1193.) However, they 

recognize that the litigation privilege does not always preclude liability on a breach of 

contract claim. (Wentland v. Wass (2005) 126 Cal.App.4th 1484, 1492 (Wentland).) 

They argue the determination of whether the litigation privilege applies to an action for 

breach of contract “turns on whether its application furthers the policies underlying the 

privilege.” (Ibid.) 

 In Wentland, the Court of Appeal determined that when the parties to an action 

reach a final agreement to settle, the litigation privilege afforded under Civil Code section 

47, subdivision (b), does not preclude a subsequent cause of action alleging a breach of 

the settlement agreement. This rule is based on common sense –– if the litigation 

privilege applied to preclude a breach of contract claim based on an alleged breach of a 

settlement agreement, it would frustrate the very purpose of the parties’ settlement 

agreement. (See Wentland, supra, 126 Cal.App.4th at pp. 1491-1492, citing and 

discussing Navellier v. Sletten (2003) 106 Cal.App.4th 763, 774-775.) 

 The Riveras argue Wentland’s reasoning should apply when parties in a pending 

action enter into an unrelated side agreement in the course of, and prior to, negotiating a 

final settlement agreement. The Riveras argue that, if the parties to an action make such 

a preliminary agreement during settlement negotiations (here, the agreement not to reevict in exchange for delaying a deposition) before they reach a final settlement 

agreement, a party may pursue a cause of action for breach of an oral agreement.5

 

 Before addressing the Riveras’ argument as to the contract-based causes of action, 

we take a moment to find the litigation privilege precludes liability on their causes of 

action for fraud and intentional infliction of emotional distress. Tort causes of action 

arising from litigation are barred by the litigation privilege with the exception of post-

 

5 Value does not discuss nor even acknowledge Wentland in its respondent’s brief 

on appeal. 
9 

action claims for malicious prosecution. (See Silberg v. Anderson (1990) 50 Cal.3d 205, 

215.) This result ensues even under Wentland, which acknowledges the long-standing 

rule that the litigation privilege applies to preclude tort causes of action arising from 

litigation. 

 This leaves one issue to resolve: In light of the litigation privilege, is there a 

probability that the Riveras can prevail on their cause of action for breach of an oral side 

agreement made during an attempt to settle litigation?6

 The Riveras argue they should be 

permitted to sue for damages caused by an alleged breach of an oral contract, which was 

entered into for the purpose of “allow[ing] the parties to concentrate on resolving the 

underlying action.” Basically, the Riveras would extend the Wentland rule –– that a party 

may sue for breach of a final settlement agreement without implicating the litigation 

privilege –– to approve lawsuits on every incidental promise made during settlement 

negotiations, prior to reaching a final settlement agreement. The Riveras have offered an 

interesting argument, but we are not persuaded that their cause of action survives in light 

of the litigation privilege. 

 As noted above, Wentland teaches that the determination of whether the litigation 

privilege applies to preclude an action for breach of contract turns on whether applying 

the privilege “furthers the policies underlying the privilege.” (Wentland, supra, 126 

Cal.App.4th at p. 1492.) The purposes of the litigation privilege are to: ensure access to 

the courts free of the fear of being subject to derivative actions, promote complete and 

truthful testimony, encourage zealous advocacy, give finality to judgments, and avoid 

unending litigation. (Ibid.) 

 In our view, applying the litigation privilege to preclude the Riveras’ cross crosscomplaint furthers these policies. “[T]he public policy of this state is not served by 

 

6 The following discussion applies equally to the Riveras related cause of action for 

a contract-based breach of the covenant of good faith and fair dealing. 
10 

permitting attorneys to sue one another for omissions or representations made as officers 

of the court during the course of litigation. This policy is reflected in Civil Code section 

47, subdivision (b), which recognizes a ‘privilege [ ] to any communication (1) made in 

judicial or quasi-judicial proceedings; (2) by litigants or other participants authorized by 

law; (3) to achieve the objects of the litigation; and (4) that have some connection or 

logical relation to the action.’” (Pollock v. Superior Court (1991) 229 Cal.App.3d 26, 

29-30 (Pollock), quoting Silberg v. Anderson (1990) 50 Cal.3d 205, 212.) As Pollock

explains: “Attorneys have a relatively swift mechanism for redressing careless, slick, 

underhanded, or tacky conduct: court-imposed sanctions. Once imposed, sanctions may 

be reviewed by an appellate court. They may not, however, be tried de novo under the 

guise of a breach of contract or tort action.” (Pollock, at p. 30.) Allowing an 

independent cause of action for every incidental broken promise made in the course of 

settlement negotiations would not avoid unending litigation. Instead, the potential for 

litigation would be endless. Allowing these type of actions would encourage the filing of 

cases arising from cases. In our view, such a situation would not give access to the courts 

without the fear of derivative actions. 

The concurrence attempts to label the side agreement alleged here a “standstill 

agreement.” The parties do not identify the promise made here as a “standstill 

agreement,” nor do we. We believe that characterization is erroneous and gives too much 

weight to the alleged promises made in this case. The cases discussing standstill 

agreements generally involve agreements that halt the filing of a lawsuit or put a cause of 

action on hold; they generally include covenants not to sue and to toll the statute of 

limitations. (See. e.g., USA Waste of California, Inc. v. City of Irwindale (2010) 184 

Cal.App.4th 53, 57; Transwestern Pipeline Co. v. Monsanto Co. (1996) 46 Cal.App.4th 

502, 510.) 

 Here, there was no lawsuit to halt. The Riveras already filed a complaint and no 

one promised to temporarily halt all or any cause of action in the pending action. Indeed, 

the Riveras’ cross cross-complaint did not allege that any aspect of the lawsuit was to 
11 

temporarily stand still. It is important to remember there was no pending unlawful 

detainer action to put on hold at the time of the settlement negotiations; that action was 

separately filed and resolved well before the settlement negotiations in February 2012. 

The Riveras lost that lawsuit and were evicted pursuant to a writ of possession in March 

of 2010. 

 When considering the alleged promise by the Riveras was to postpone Value’s 

deposition until after the settlement negotiations, the same result is reached. It did not 

bring their action for wrongful foreclosure to a stop. The alleged promises here amount 

to nothing more than mere courtesies exchanged by parties in settlement negotiations. 

As a result, we term the alleged agreement what it was –– an incidental agreement not to 

re-evict.7

 Because we have determined that the litigation privilege precludes the Riveras’ 

cross cross-complaint, we do not address their argument that Evidence Code section 1152 

would require exclusion of evidence needed to prove the claim alleged in their cross 

cross-complaint. 

2. The Substantive Merits 

 Assuming the oral agreements alleged by the Riveras were not barred by the 

litigation privilege, the record supports a conclusion that the Riveras did not show a 

reasonable probability of prevailing. The Riveras alleged that Value agreed not to evict 

pending a mediation, and that the mediation continued “throughout February of 2012.” 

The Riveras alleged they were evicted on March 1, 2012. There was no breach of the 

promise not to evict, not given the framework of the promise as alleged. 

 In addition, the evidence in the record in the form of letters and e-mail exchanges 

between Value’s counsel and the Riveras’ counsel do not show an enforceable agreement 

 

7 Whether the Riveras suffered any damages beyond those already contemplated in 

their wrongful foreclosure action is not an issue in this appeal. 
12 

not to evict as alleged in the Riveras’ cross cross-complaint. The communications show 

discussions about the mediation and deposition and issues concerning title to the 133rd 

Street property. Value’s counsel submitted a declaration in support of the anti-SLAPP 

motion attesting that the letters and e-mails were “the only communications . . . regarding 

settlement . . . .” The evidence presented in opposition to the anti-SLAPP motion did not 

establish a prima facie showing that the Riveras would prevail on the merits at a trial. 

II. Sanctions against Attorney Saba 

 Attorney Saba contends the trial court erred in imposing sanctions against him. 

We dismiss this aspect of the appeal. 

 First, attorney Saba never filed a notice of appeal from the January 3, 2013 order 

imposing sanctions against him. The only notice of appeal in the record is the Riveras’ 

notice of appeal from the order of November 2, 2012, granting Value’s anti-SLAPP 

motion. The filing of a timely notice of appeal is a jurisdictional requirement for our 

court to address an appeal. (Van Beurden Ins. Services, Inc. v. Customized Worldwide 

Weather Ins. Agency, Inc. (1997) 15 Cal.4th 51, 56.) If there is no timely notice of 

appeal filed, we must dismiss the appeal. (Cal. Rules of Court, rule 8.104(b).) Liberally 

construing the notice of appeal on file cannot be indulged here. We cannot reasonably 

construe the notice of appeal, expressly in the name of the Riveras, from the order of 

November 2, 2012, to include an appeal by attorney Saba, from a sanctions order entered 

in January 2013. 

 Second, an order imposing sanctions of less than $5,000 is not an independently 

appealable order; such an order is reviewable on appeal after entry of final judgment in 

the main action. (Code of Civ. Proc., § 904.1, subds. (a)(11), (a)(12), (b).) An 

appealable order is a jurisdictional requirement in order for our court to address an 

appeal. (Jennings v. Marralle (1994) 8 Cal.4th 121, 126.) 
13 

 Finally, the order imposing sanctions against attorney Saba is not reviewable as 

part of the order granting Value’s anti-SLAPP motion because the sanctions order was 

separately entered, upon a separate motion, after the entry of the order granting the antiSLAPP motion. (Cf. Martin v. Inland Empire Utilities Agency (2011) 198 Cal.App.4th 

611, 631-633; Melbostad v. Fisher (2008) 165 Cal.App.4th 987, 990-997; Doe v. Luster

(2006) 145 Cal.App.4th 139, 145-150.) 

DISPOSITION 

 The trial court’s order of November 2, 2012, granting Value’s anti-SLAPP motion, 

and awarding attorney fees in the amount of $2,770, is affirmed. Attorney George Saba’s 

appeal is dismissed to the extent it seeks review of the trial court’s order of January 3, 

2013, imposing sanctions in the amount of $2,590. The parties are to bear their own 

costs on appeal. 

 BIGELOW, P. J. 

I concur: 

 FLIER, J. 
1 

RUBIN, J. – Concurring: 

I agree with the majority opinion that the anti-SLAPP motion was properly 

granted and that the judgment should be affirmed. I also agree with the majority to the 

dismissal of the appeal from the imposition of sanctions. I write separately only because 

I do not believe the majority’s discussion of the litigation privilege is necessary to our 

decision; nor do I believe it is a warranted extension of current law. 

 The majority correctly concludes that the first prong of the anti-SLAPP statute was 

satisfied as the Riveras’ lawsuit was directed towards proceedings that had taken place 

during litigation, and, thus, implicated protected activity. (See Jay v. Mahaffey (2013) 

218 Cal.App.4th 1522.) I also agree that the Riveras did not satisfy their second prong 

burden to show a probability of prevailing on their claim. This failure was simply one of 

lack of evidentiary proof. The record reflects that the purported agreement between the 

parties was that Value agreed not to evict the Riveras while the parties were attempting to 

mediate the dispute. But the record also shows that mediation continued throughout 

February 2012, and the Riveras were evicted on March 1, 2012. Thus, there was no 

breach, and the second prong was not satisfied. The majority agrees with this. (Maj. 

opn. ante, at pp. 12-13.) I would stop there. 

 Rather than relying on a straightforward evidentiary analysis, the majority rests its 

opinion primarily on its conclusion that the litigation privilege (Civ. Code, § 47, 

subd. (b)) bars the Riveras’ claim as a matter of law. The traditional formulation of the 

litigation privilege is found in Silberg v. Anderson (1990) 50 Cal.3d 205, 212, in which 

the Supreme Court for the first time stated that, although the privilege was originally 

thought to be directed only to defamation, it applied “to all torts except malicious 

prosecution.” The majority expands the privilege to now apply to breaches of partial or 

interim settlement agreements. It does so without citing a single case in which an 
2 

appellate court has actually held that a breach of contract cause of action was barred by 

the litigation privilege. 

 The case that occupies most of the majority’s attention on this subject is Wentland 

v. Wass (2005) 126 Cal.App.4th 1484, 1492. The majority quotes the final six words of 

the following passage from Wentland in support of its new rule that the litigation 

privilege applies to breach of contract actions of the type involved in the present case: 

“Our review of Laborde [v. Aronson (2001) 92 Cal.App.4th 459] and Pollock [v. 

Superior Court (1991) 229 Cal.App.3d 26], as well as other cases that have considered 

the litigation privilege in the context of a breach of contract case, instructs that whether 

the litigation privilege applies to an action for breach of contract turns on whether its 

application furthers the policies underlying the privilege.” (Wentland, supra, at p. 1492; 

see maj. opn. ante, at p. 10.) 

Wentland, however, did not hold that the contract in question was barred by the 

litigation privilege. The appellate court pointed out that the two cases, Laborde and 

Pollock, which the Wentland court cited in the above passage applied the rule in 

extremely narrow circumstances. First of all Laborde has been disapproved, albeit on 

other grounds. (Musaelian v. Adams (2009) 45 Cal.4th 512, 520 [attorney who responds 

in pro se to a filing abuse may not recover attorney fees as sanctions].) More 

fundamentally, although the complaint in Laborde included a breach of contract cause of 

action, the opinion contains no discussion of the applicability of the litigation privilege to 

contract actions. The appellate court instead first held that summary judgment was 

properly granted in favor of a psychologist who gave testimony unfavorable to the 

plaintiff in a family law proceeding, a holding which, coincidentally, mirrors the 

Supreme Court’s decision in Silberg v. Anderson, supra. The rest of the opinion deals 

with sanctions against an attorney. 

 The second case discussed in Wentland, Pollock v. Superior Court, supra, 
3 

229 Cal.App.3d 26, also had its genesis in sanctions imposed on counsel. The parties 

were two lawyers who had previously represented opposing clients in an underlying 

lawsuit that had settled. In the new lawsuit, the plaintiff lawyer sought damages against 

the defendant lawyer because the latter had failed to advise the court that the underlying 

litigation had settled. For this omission, the original court imposed monetary sanctions 

against the plaintiff which was the amount of damages plaintiff sought to recover in the 

new lawsuit. Although there was a breach of contract cause of action, the court rested its 

decision on the reality of what the plaintiff was trying to accomplish in its new lawsuit. 

He was attacking the sanctions order. “If plaintiff has no quarrel with the sanctions 

order, he should pay up and be done with it. If, as he has inconsistently alleged, the 

sanctions order was ‘imposed wrongfully and ignorantly by the [Los Angeles] court’ 

because the defendants breached an agreement or acted tortiously, his remedy was to seek 

reconsideration (Code Civ. Proc., § 1008) or to appeal. (Code Civ. Proc., § 904.1; see 

I. J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 331 [220 Cal.Rptr. 103, 708 

P.2d 682].)” (Pollock, supra, 229 Cal.App.3d at p. 29.) The court described plaintiff’s 

position as “hokum.” (Ibid.) “Simply put, the public policy of this state is not served by 

permitting attorneys to sue one another for omissions or representations made as officers 

of the court during the course of litigation. . . . [¶] Attorneys have a relatively swift 

mechanism for redressing careless, slick, underhanded, or tacky conduct: court-imposed 

sanctions. Once imposed, sanctions may be reviewed by an appellate court. They may 

not, however, be tried de novo under the guise of a breach of contract or tort action.” (Id.

at pp. 29-30.) Pollock, I suggest, is better understood as holding that an agreement 

between two lawyers to advise the court of a settlement does not rise to the level of an 

enforceable contract. 

 Nothing in Pollock remotely resembles the facts of this case: there was no charge 

of slick lawyering here, for sanctions nor misleading the court about a settlement. 

Laborde and Pollock are the only cases discussed in Wentland that remotely deal 

with the question of the application of the litigation privilege to contract causes of action. 
4 

They deal with actions founded on testimony given in court proceedings and with 

sanctions against an attorney. They do not deal with agreements made between 

contracting parties who happen to be involved in litigation. The agreement here has 

nothing to do with who testified to what and it has nothing to do with sanctions against 

opposing counsel. Rather, the agreement here is fairly similar to the agreement in 

Wentland that the appellate court held was not barred by the litigation privilege. Both 

cases involve the breach of a partial settlement agreement. 

 In Wentland, the parties had earlier reached an agreement regarding one of several 

partnerships involved in litigation. Later, a cross-complaint was filed that allegedly 

contained statements that constituted a breach of the original agreement. The trial court 

sustained a demurrer on the ground that a breach of the agreement was barred by the 

litigation privilege. The Court of Appeal reversed, concluding that cross-complainants 

could continue with the claim that the other party had breached its partial settlement 

agreement. 

 The alleged agreement reached between the parties here may carry a little less 

weight than the settlement in Wentland. This agreement could be called a standstill 

agreement in which parties agree to put litigation aside for some period of time while 

there is an effort to accomplish something that might benefit both sides, such as the 

termination of litigation, mitigation of damages or otherwise narrow the litigation. The 

majority does not approve of the use of term “standstill agreement” (maj. opn. ante, at 

p. 11), preferring instead “side agreement.” Either way it is an agreement between the 

parties. It does not purport to resolve the order of discovery, or the scheduling of a 

motion. This is not the type of conduct that the court in Pollock described: careless, 

slick, underhanded or tacky conduct by opposing counsel. I agree that the type of 

conduct present in Pollock is handled properly and routinely by a sanctions motion. But 

this is not such a case. The parties allegedly entered into a simple contract, with fairly 

simple terms but bargained for consideration. Here, there was nothing the trial court 

could do within the confines of the litigation to avoid damages for break of contract. 
5 

 Although the majority suggests that this dissent would extend the Wentland rule 

(maj. opn ante, at p. 9), it is the majority that has created a new rule of law that certain 

partial settlement agreements are worthy of enforcement and others are not. The 

determination of worthiness is made by the tool of the litigation privilege. I respectfully 

disagree. 

 Consistent with Wentland’s holding that the litigation privilege was inapplicable is 

Navellier v. Sletten (2003) 106 Cal.App.4th 763 (Navellier II), a case which the majority 

cites but does not discuss. Navellier II followed an earlier Supreme Court opinion in the 

same case (Navellier v. Sletten (2002) 29 Cal.4th 82 (Navellier I).) In Navellier II the 

issue was whether the plaintiff had showed a probability of prevailing on the merits of its 

breach of contract claim, which was based on the defendant having filed counter claims 

against the plaintiff in alleged breach of a release of liability. The Navellier II court 

assumed that the litigation privilege did not bar the plaintiff’s action for breach of a 

contract not to sue, although it eventually found the claim failed for lack of damages. 

(Id. at pp. 773-774.) Its analysis as to the nonapplicability of the litigation privilege was 

twofold: 

 First, it relied on a series of Supreme Court cases that, according to Navellier II, 

describe the litigation privilege “as one that precludes liability in tort, not liability for 

breach of contract. (E.g., Rubin v. Green [1993] 4 Cal.4th 1187, 1193-1194; Kimmel v. 

Goland [1990] 51 Cal.3d at p. 209; Silberg v. Anderson [1990] 50 Cal.3d at p. 212.)” 

(Navallier II, supra, 106 Cal.App.4th at p. 773.) 

 Second, it found support in the following statement by the Supreme Court in 

Navellier I, supra, 29 Cal.4th at page 94: “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.” The Navellier II court 
6 

reasoned that applying the litigation privilege to an agreement not to sue would frustrate 

the very purpose of the contract. (Navellier II, supra, 106 Cal.App.4th at p. 774.)

1

 In sum, this case does not require an analysis of the litigation privilege because 

there are narrower grounds for deciding this appeal. (See Witkin, Cal. Procedure (5th ed. 

2008) Appeal, § 342, p. 392.) To the extent the privilege is considered, I conclude it is 

not applicable here. 

RUBIN, J. 

 

1

 Several other cases have concluded that the litigation privilege does not apply to 

breach of contract causes of action. (See Stacy & Witbeck, Inc. v. City and County of San 

Francisco (1996) 47 Cal.App.4th 1, 6-8 [litigation privilege did not apply to False Claims 

Act claim which contained contract elements]; ITT Telecom Products Corp. v. Dooley 

(1989) 214 Cal.App.3d 307, 319-320 [privilege barred tort but not contract claims for 

breach of confidentiality agreement during litigation].)