1 Filed 9/12/13 Rivera v. Value Home Loan CA2/8 NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.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. Affirm ed 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 a nd Respondents, Valu e Home Loan, Inc., Neil D. Gitnick, and John Clark Brown, Jr.

________________ _______________2 The trial court granted a special motio n to strike a “cro ss cross-complaint” pursuant to Code of Civil Procedure secti on 425.16 (§ 425.16), commonly known as the anti-Strategic Lawsuit Against Public Partic ipation statute or anti-SLAPP statute. The court thereafter granted a motion for sanc tions against the attorney who caused the cross cross-complaint to be filed. We affirm the orde r granting the anti-SLAPP motion. We dismiss the appeal to the extent it seek s 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 no te and first deed of trust held by Bank of
America. Value thereafter recorded a notice of default and subsequently initiated nonjudicial foreclosure proceedings. Value cl aims it obtained title to the 133rd Street property in August 2 010 at a trust deed foreclosure sale. In September 2010, the Riveras (represe nted by attorney Ge orge 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, declar atory 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 prop erty to Value. The receipt for possession included this language: “In the event evicted i ndividuals reenter the property in violation3 of Penal Code § 419, presen t this document to the resp onding local law enforcement agency.” In summary, the Riveras were evicted pur suant to a writ of possession in Value’s
unlawful detainer action after the Riveras ha d filed their “wrongful foreclosure” action against Value, and while the wrongful foreclosure action was still pending. According to evidence later presented by the Riveras, Va lue sold the 133rd Street property to Value Holdi ngs LLC in May 2011. Value’s Cross-Complaint In May 2012, the trial court granted Valu e 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 foreclosur e sale in August 2010, and ob tained an unlawful detainer judgment against the Riveras in November 2 010. Value alleged the Sheriff’s Department evicted the Riveras in March 2011 pursuant to a writ of possession i ssued in the unlawful detainer action. Later, at some point be tween March 2011 and November 2011, the Riveras re-entered the 133rd Street property without Value’s know ledge 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 refl ecting 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) file d a motion for leave to file a “cross cross-complaint;” in August 2012, th e trial court granted the Riveras’ motion. 2

1 As noted above, the Riveras later presen ted evidence demonstrating that Value’s cross-complaint was potentially problematic, at least in part, in th at Value no longer owned the 133rd Street property after May 20 11. In short, Value’s cross-complaint was seeking trespass damages (i.e., fair rental va lue) 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 pr esident 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 in tentional 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 Str eet property, and Value knew that the Riveras had re-entered the property. During this sa me time frame, Value (acting by and through its president, Gitnick, and its attorney Brown) and the Rive ras were engaged in settlement negotiations to resolve the Riveras’ wrongful foreclosure action. (This was before Value filed its cross-complaint for trespass.) Duri ng the course of the negotiations, Value and the Riveras “entered into several oral agreemen ts.” 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 “con tinued through out [ sic ] the month of February 2012.” Value breach ed the parties’ oral contract not to evict “when on March 1, 2012, [it] summoned, authorized and orde red 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 ofaction 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 operativ e 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 co mplaints, demurrers, answers, and cross-complaints”].)

3 As noted above, the Riveras later presen ted 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’ cr oss cross-complaint alle ged that Value made a promise to refrain from undertaking an action (e viction) which, by evidence later offered by the Riveras, Value had no lawful auth ority to undertake in any event.5 negotiations in the Riveras’ wrongful foreclos ure action against Value. Value argued that all of the communications between the partie s 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 co mmunications during settlement negotiations because (1) the communications were privilege d under Civil Code s ection 47, subdivision (b), and (2) evidence of settlement negotiations is not admi ssible in court under Evidence
Code section 1152. Value fu rther 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 cour t granted Value’s an ti-SLAPP motion, and awarded attorney fees to Value in the amount of $2,770. On November 8, 2012, Value filed a mo tion for monetary sanctions pursuant to Code of Civil Procedure section 128.7 agai nst 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 impos ed sanctions in the amount of $2,590. On January 3, 2013, the court signed and en tered 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 pursu ant to the anti-SLAPP statute. We disagree.
The anti-SLAPP statute is intended to ad dress a concern with meritless lawsuits
filed to “chill” the valid exercise of the co nstitutional rights, including the rights of free speech and to petition for the redress of grievanc es. (§ 425.16, subd. (a).) To this end, the anti-SLAPP statute authorizes a special pr ocedure for striking such a cause of action at the earlier stages of litigati on. The special stri king procedure entails two steps: a court6 first determines whether the cause of action arises from “protected activity” within the meaning of the statute, and, second, the co urt determines whether there is a probability that the plaintiff will preva il on the cause of action. A cause of action presents a claim arisi ng from so-called “prote cted activity” when it arises from “any act [of the defendant] in furt herance of [his or her] right of petition or free speech under the United States Constituti on 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-SL APP statute applies in the first instance].)
Such acts are defined in the anti-SLAPP statute to include “any written or oral
statement . . . made in conn ection with an issue under co nsideration or review by a . . . judicial body. . . .” (§ 425.16, subd. (e)(2).) When a moving defendant makes the requi red first-step showin g that a challenged cause of action arises from protected activity, the court moves onto the second step of the anti-SLAPP statute’s special stri king procedure. In this step, the court must determine whether the plaintiff has demonstrated a “proba bility” 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-SL APP 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 pur suant to the anti-SLAPP statue must be reversed because their cross cross-complaint doe s not arise from “protected ac tivity” within the meaning of
the statue.7 The Riveras argue that the settlement negotiations upon whic h their cross crosscomplaint is based were not “protected ac tivity” within the mean ing of the anti-SLAPP statute. In the words of their opening brief f iled on appeal: “[The Riveras] respectfully suggest that the negotiations between [the m] 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 partie s 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 u nderlying action.” By their use of the language “no bearing on settling the underl ying action,” the Riveras appa rently 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 offe r no case authority in support of their suggestion that settlement nego tiations are not a protected ac tivity within the meaning of
the anti-SLAPP statute. We are not persuaded. Settlement negotia tions 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-compla int 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 clai ms 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 conc urrence 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 litigati on privilege historically ha s 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 privile ge applies to an action for
breach of contract “turns on whether its a pplication furthers the policies underlying the privilege.” ( Ibid. )
In Wentland , the Court of Appeal determined th at when the parties to an action reach a final agreement to settle , the litigation privilege afford ed under Civil Code section 47, subdivision (b), does not preclude a subse quent 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 ne gotiations (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 priv ilege 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 litigati on privilege with the exception of post-

5 Value does not discu ss 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 a ttempt to settle litigation? 6 The Riveras argue they should be permitted to sue for damages caused by an alle ged 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 ag reement without imp licating the litigation privilege –– to approve lawsuits on every incidental promise ma de during settlement negotiations, prior to reaching a final settlement agreement. The Riveras have offered an interesting argument, but we ar e not persuaded that their caus e of action survives in light of the litigation privilege. As noted above, Wentland teaches that the determina tion of whether the litigation privilege applies to preclude an action for br each of contract turns on whether applying the privilege “furthers the policie s underlying the privilege.” ( Wentland, supra , 126 Cal.App.4th at p. 1492.) The purposes of th e litigation privilege are to: ensure access to the courts free of the fear of being subjec t 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 privile ge to preclude the Riveras’ cross crosscomplaint furthers these policie s. “[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 omis sions 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 ‘privi lege [ ] to any communication (1) made in judicial or quasi-judicial proc eedings; (2) by litigants or other participants authorized by law; (3) to achieve the objects of the litiga tion; 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 swif t 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 incident al broken promise made in the course of settlement negotiations would no t avoid unending litigation. Instead, the potential for litigation would be endless. Allowing these t ype 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 char acterization is erroneous and gives too much weight to the alleged promis es made in this case. The cases discussing standstill agreements generally involve ag reements that halt the filing of a lawsuit or put a cause of action on hold; they generally include covena nts 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. Th e Riveras already filed a complaint and no one promised to temporarily halt all or any ca use of action in the pending action. Indeed, the Riveras’ cross cross-complaint did not alle ge that any aspect of the lawsuit was to11 temporarily stand still. It is important to remember there was no pending unlawful
detainer action to put on hold at the time of th e settlement negotiations; that action was separately filed and resolved well before th e settlement negotiations in February 2012.
The Riveras lost that lawsuit and were evic ted 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 par ties in settlement negotiations. As a result, we term the alleged agreement wh at 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 c onclusion that the Riveras did not show a reasonable probability of prevailin g. The Riveras alleged that Value agreed not to evict pending a mediation, and that the mediation continued “throu ghout February of 2012.” The Riveras alleged they were evicted on Ma rch 1, 2012. There was no breach of the promise not to evict, not given the fra mework 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’ couns el 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’ cro ss cross-complaint. The communications show discussions about the mediation and depositi on and issues concerni ng 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 communica tions . . . regarding settlement . . . .” The evidence presented in opposition to the an ti-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 sanc tions against him. We dismiss this asp ect 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 Novemb er 2, 2012, granting Value’s anti-SLAPP motion. The filing of a timely notice of appe al is a jurisdictional requirement for our court to address an appeal. ( Van Beurden Ins. Services, In c. 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. (C al. 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 sa nctions order entered in January 2013. Second, an order imposing sanctions of less than $5,000 is not an independently appealable order; such an orde r is reviewable on appeal afte r 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 requireme nt in order for our court to address an appeal. ( Jennings v. Marralle (1994) 8 Cal.4th 121, 126.)13 Finally, the order imposing sanctions agains t attorney Saba is not reviewable as part of the order granting Value’s anti-SL APP 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 Em pire 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.4t h 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 revi ew 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 affirm ed. 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 pr ivilege is necessary to our decision; nor do I believe it is a wa rranted extension of current law. The majority correctly conc ludes that the first prong of the anti-SLAPP statute was
satisfied as the Riveras’ lawsuit was direct ed towards proceedings that had taken place during litigation, and, thus, impli cated protected activity. (See Jay v. Mahaffey (2013) 218 Cal.App.4th 1522.) I also agree that th e 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. Th e record reflects that the pu rported 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 evic ted 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 ev identiary 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 privil ege to now apply to breaches of partial or interim settlement ag reements. It does so without citing a single case in which an2 appellate court has actually held that a breac h of contract cause of action was barred by the litigation privilege. The case that occupies most of the ma jority’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 brea ch of contract case, instructs that whether the litigation privilege applies to an action fo r 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 c ontract in question was barred by the litigation privilege. The appellate c ourt pointed out that the two cases, Laborde and Pollock, which the Wentland court cited in the above pa ssage applied the rule in extremely narrow circumst ances. 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 rec over 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 inst ead first held that summary judgment was properly granted in favor of a psychologi st who gave testimony unfavorable to the plaintiff in a family law proceeding, a ho lding 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 pr eviously 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 faile d 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 c ontract 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 an d ignorantly by the [Los Angeles] court’
because the defendants breached an agreement or acted torti ously, his remedy was to seek reconsideration (Code Civ. Proc ., § 1008) or to appeal. (C ode Civ. Proc., § 904.1; see I. J. Weinrot & Son, Inc. v. Jackson (1985) 40 Cal.3d 327, 33 1 [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 omis sions or representations made as officers of the court during the course of litigation. . . . [¶] Atto rneys have a relatively swift mechanism for redressing careless, slick, und erhanded, or tacky conduct: court-imposed sanctions. Once imposed, sanctions may be re viewed 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 th e facts of this case: there was no charge of slick lawyering here, fo r 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 litiga tion privilege to contract causes of action.4 They deal with actions foun ded 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 testifie d to what and it has nothing to do with sanctions against opposing counsel. Rather, th e agreement here is fairly similar to the agreement in
Wentland that the appellate court held was not barred by the litigati on 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 th at constituted a breach of the orig inal agreement. The trial court sustained a demurrer on the gr ound that a breach of the agreement was barred by the litigation privilege. The Court of Appeal re versed, concluding that cross-complainants
could continue with the clai m that the other party had br eached 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 coul d be called a standstill agreement in which parties ag ree to put litigation aside fo r some period of time while there is an effort to accomp lish something that might bene fit both sides, such as the termination of litigation, mitigation of dama ges 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 c onduct by opposing counsel. I agree that the type of conduct present in Pollock is handled properly and routinel y by a sanctions motion. But this is not such a case. The parties allegedl y 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 da mages 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 agreemen ts are worthy of enforcemen t and others are not. The
determination of worthiness is made by the tool of the litiga tion privilege. I respectfully disagree.
Consistent with Wentland’s holding that the litigation privilege was inapplicable is
Navellier v. Sletten (2003) 106 Ca l.App.4th 763 ( Navellier II ), a case which the majority
cites but does not discuss. Navellier II followed an earlier Supr eme 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 pr obability 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 bre ach of a release of liability. The Navellier II court assumed that the litigation priv ilege did not bar the plaintiff’s action for breach of a contract not to sue, although it eventually fo und the claim failed for lack of damages. ( Id . at pp. 773-774.) Its analysis as to th e nonapplicability of the litigation privilege was
twofold: First, it relied on a series of Su preme 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 statemen t by the Supreme Court in Navellier I, supra , 29 Cal.4th at page 94: “a defendan t who in fact has validly contracted not to speak or petition has in effect ‘wai ved’ the right to the anti-SLAPP statute's protection in the event he or she la ter breaches that contract.” The Navellier II court6 reasoned that applying the litiga tion privilege to an agreemen t 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 an alysis 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 no t apply to False Claims Act claim which containe d 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 ag reement during litigation].)