May 18, 2020

Doe v. Olson (August 30, 2019, B286105) 2019 WL 4127263 [nonpub opn.], review granted Nov. 20, 2019, S258498

The California Supreme Court has agreed to consider whether the litigation privilege can bar contract claims.

Plaintiff sought a restraining order against defendant, based on alleged sexual harassment. As part of a settlement of the case, plaintiff and defendant agreed “not to disparage one another” for three years.

A year later, plaintiff sued defendant for damages, based on the same instances of sexual harassment. Defendant cross-complained for breach of contract, contending plaintiff’s new allegations were disparaging and breached their settlement agreement. Plaintiff claimed her allegations were protected by the litigation privilege of Civil Code section 47, subdivision (b). The trial court agreed and granted a motion to strike defendant’s breach of contract claim under the anti-SLAPP statute.

The Court of Appeal held the litigation privilege did not bar the breach of contract claim because plaintiff had waived her right to make disparaging comments as part of the settlement agreement. Since a factfinder could determine the disparaging allegations in plaintiff's lawsuit violated the settlement agreement, the court held that enforcement of the agreement was not contrary to the public policy of the litigation privilege—promoting access to the courts—and that the litigation privilege therefore did not apply to bar defendant’s contract claim. The Supreme Court will now review the Court of Appeal's decision.