Litigation

Petitioning Activity Can Be the Essence of a Contract

Midland Pacific Building Corp. v. King (11/28/07, 2d Civil No. B192017, Second Dist.)
12 p. opinion
Rehearing Opinion

A developer brought suit against a landowner for breach of contract and fraud. The contract had provided that the landowner would obtain City approval of a draft tract map.

After the landowner presented a different, higher density tract map for approval at a planning commission hearing, the developer sued for breach of contract and fraud. The landowner brought an anti-SLAPP motion, arguing the suit was brought in response to the landowner's statements at an official proceeding in furtherance of his right of petition and free speech.

The Court of Appeal found that the breach of contract cause of action arose out of the petitioning activity. Indeed, the petitioning activity was the primary obligation of the landowner under the contract. However, it also found that the developer had shown a probability of prevailing.

The fraud cause of action was based upon private communications between the parties and therefore not based upon protected activity.

The anti-SLAPP motion had been correctly denied.

Presiding Justice Gilbert wrote the opinion. Justices Yegan and Coffee concurred.

Full post as published by California Civil Litigation on November 28, 2007 (boomark / email).