Opinion
D073328
11-29-2018
JOHN DOE, Plaintiff and Respondent, v. THE REGENTS OF THE UNIVERSITY OF CALIFORNIA, Defendant and Appellant.
Law Office of Nicholas A. Boylan, Nicholas A. Boylan and Liam Vavasour for Plaintiff and Respondent. Reed Smith, Raymond A. Cardozo, Brian A. Sutherland; University of California Office of the General Counsel, Charles F. Robinson, Margaret L. Wu, Michael R. Goldstein; Paul, Plevin, Sullivan & Connaughton, Sandra L. McDonough and Jennifer M. Fontaine for Defendant and Respondent.
ORDER MODIFYING OPINION AND DENYING REHEARING AND PUBLICATION NO CHANGE IN JUDGMENT
THE COURT:
It is ordered the opinion filed November 29, 2018, be modified as follows:
1. On page 19, the following footnote should be added to the end of the first full paragraph, which will require renumbering of all subsequent footnotes:
In his petition for rehearing, Doe contends that our conclusion regarding the first anti-SLAPP prong contravenes the Supreme Court's decision in Park, supra, 2 Cal.5th 1057. We disagree. In Park, the Supreme Court rejected an argument that all aspects of a public university's tenure decision are necessarily inseparable and protected, including the university's ultimate decision whether to grant or deny tenure. (Park, supra, 2 Cal.5th at pp. 1069-1071.) In this case, however, it is not the University's ultimate disciplinary
decision that gives rise to the causes of action at issue. Rather, it is the University's resumption of its disciplinary proceedings—marked by the release of a communication in the form of an investigative report—that gives rise to the claim of breach.
2. On page 23, the first three sentences in the paragraph beginning "Under Civil Code section" are deleted and replaced with the following:
Under Civil Code section 1698, an unexecuted oral modification to a written contract must be "supported by new consideration." (Civ. Code, § 1698, subd. (c).) Here, Doe does not contend that the University received new consideration for the alleged oral modification.
3. On page 23, the following footnote is added just before the citation to Malmstrom v. Kaiser Aluminum & Chem. Corp. (1986) 187 Cal.App.3d 299, 318:
In his petition for rehearing, Doe contends specifically for the first time that the University received consideration for the oral modification of the Settlement Agreement. "We express no opinion on this issue, however; as a court of review, we will not ' "submit to piecemeal argument and will not consider on petition for rehearing questions not previously raised" ' absent extraordinary circumstances, which are not present in the instant case." (J.J. v. County of San Diego (2014) 223 Cal.App.4th 1214, 1230, fn. 5.)
4. On page 24, the first sentence and citation of the first full paragraph are modified to read as follows:
Doe claims the alleged oral modification was effective, notwithstanding the undisputed lack of consideration, because the parties "carried out" the modified Settlement Agreement. (See Civ. Code, § 1698, subd. (b); see also Kroepsch v. Muma (1969) 272 Cal.App.2d 467, 473 ["An executed oral agreement will serve as modification of a written agreement without regard to the presence or absence of consideration.]".)
5. On page 24, in the second full paragraph beginning "Irrespective of whether," the word "collaterally" is deleted from the first sentence.
6. The following footnote is added before the sentence beginning "Doe also does not claim" on the first line of page 27:
In his petition for rehearing, Doe argues that our opinion "misstate[s] [his] factual and legal allegations." "To avoid any confusion," he advises us that it has been his position throughout this litigation that the University modified and/or waived not only the Full Report Provision, but also the Sole Discretion Provision. There is no confusion. Rather, it is plainly apparent that Doe is asserting a post-hoc argument that he did not previously develop. Because Doe did not specifically articulate this argument in his merits briefing, we decline to address it now. (See J.J., supra, 223 Cal.App.4th at p. 1230, fn. 5.)
7. On page 32, the following footnote is added to the end of the first paragraph:
In his petition for rehearing, Doe contends the University conceded that the default materiality principles apply to the Settlement Agreement, citing a colloquy between the University and the trial court. However, Doe mischaracterizes the statements made by the University. The University has unequivocally opposed Doe's materiality argument in the trial court and in this court, including by arguing to the trial court that default materiality rules cannot "override [the] express terms" of the Settlement Agreement.
There is no change in judgment.
The request for publication of the opinion is denied.
Respondent's petition for rehearing is denied.
BENKE, Acting P. J. Copies to: All parties
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. (Super. Ct. No. 37-2017-00023321-CU-MC-CTL) APPEAL from an order of the Superior Court of San Diego County, Gregory W. Pollack, Judge. Reversed. Law Office of Nicholas A. Boylan, Nicholas A. Boylan and Liam Vavasour for Plaintiff and Respondent. Reed Smith, Raymond A. Cardozo, Brian A. Sutherland; University of California Office of the General Counsel, Charles F. Robinson, Margaret L. Wu, Michael R. Goldstein; Paul, Plevin, Sullivan & Connaughton, Sandra L. McDonough and Jennifer M. Fontaine for Defendant and Respondent.
The Regents of the University of California (the Regents) appeal from an order denying their special motion to strike the complaint of John Doe under California's anti-SLAPP statute, Code of Civil Procedure section 425.16. Doe, formerly a tenured professor at the University of California, San Diego (the University), sued the Regents for breach of contract, breach of the implied covenant of good faith and fair dealing, and declaratory relief, after the University instituted disciplinary proceedings against him for allegedly harassing two of his subordinates based on sex and sexual orientation.
All further statutory references are to the Code of Civil Procedure, unless otherwise noted.
The trial court concluded, and we agree, that Doe's causes of action arise from protected activity under the anti-SLAPP statute, namely the University's release of its internal investigative report regarding Doe's alleged misconduct and its filing of formal disciplinary charges against Doe related to his alleged misconduct. The trial court concluded, however, that Doe had adequately pleaded and presented sufficient evidence to establish a prima facie case against the Regents, albeit barely, and therefore denied the Regents's motion to strike. On this matter, on our de novo review, we disagree with the trial court. For the reasons discussed below, we conclude that Doe has not established that his causes of action possess the minimal merit required to survive the Regents's anti-SLAPP motion.
Accordingly, we reverse the order denying the Regents's motion to strike Doe's complaint.
I
STATEMENT OF THE CASE
A. The Harassment Allegations and Settlement Agreement
John Doe was a tenured professor of medicine at the University who was accused by two of his subordinates of engaging in severe harassment based on sex and sexual orientation. The accusations were referred to the University's Office for the Prevention of Harassment and Discrimination (OPHD), which began an investigation into Doe's alleged misconduct. However, in accordance with faculty code of conduct guidelines encouraging the informal resolution of misconduct allegations, the University and Doe executed an agreement (the Settlement Agreement) to try to resolve the harassment allegations and suspend the University's investigation and discipline of Doe.
Doe filed suit under a pseudonym to protect his privacy and reputational interests. (Doe v. Lincoln Unified School Dist. (2010) 188 Cal.App.4th 758, 766 [" 'The judicial use of "Doe plaintiffs" to protect legitimate privacy rights has gained wide currency, particularly given the rapidity and ubiquity of disclosures over the World Wide Web.' "].)
A redacted copy of the executed Settlement Agreement is attached to this opinion as Appendix A.
The fully-integrated Settlement Agreement was approximately three pages in length and required Doe to comply with the following requirements:
• Refer himself to the University's Physician Well-Being Committee (PWBC)—a standing committee of medical staff aimed at recognizing physician impairment and providing support services—to establish a monitoring system in accordance with the PWBC's standard practices and requirements;
• "[F]ully comply with any and all of the PWBC's requirements, as determined in the PWBC's sole discretion";
• Undergo an assessment and evaluation program at Vanderbilt University (Vanderbilt) during an upcoming sabbatical, "obtain from Vanderbilt both an executive summary of the findings and a detailed assessment," and authorize Vanderbilt to release this information to the PWBC and engage in dialogue with the PWBC;
• "[R]easonably and substantially comply with any and all treatment and follow-up recommendations made by the Vanderbilt program";
• Prior to returning from sabbatical, "have an initial meeting with the PWBC to establish a monitoring program in an effort to assure adherence to any treatment recommendations resulting from the Vanderbilt evaluation (if any), and to document compliance with" the University's faculty, physician, and nondiscrimination policies; and
• Comply with all applicable University policies, including the University's faculty, physician, and nondiscrimination policies.
The Settlement Agreement provided that "[a]ny failure by [Doe] to adhere to any of the commitments or obligations set forth in [the Settlement Agreement], including the monitoring program established with the PWBC, [would] entitle the University to void [the] [A]greement, and [would] also result in OPHD finalizing and issuing its final report . . . with respect to the complaints raised [against Doe] (which could thereafter result in the initiation of formal misconduct charges filed [against Doe])." B. The Vanderbilt Evaluation and Report
In April 2016, Doe completed the Vanderbilt program and Vanderbilt sent the chair of the PWBC, Dr. Robin Seaberg, an executive summary of the report it had prepared about the assessment and evaluation. The executive summary stated that Doe "presented as an intense individual with limited insight as to how others perceive his behavior" and his "reputation at the school [was] negative, at least for some individuals." However, it stated that Doe had "done several things to address the behaviors that resulted in the [misconduct] allegations" and was "fit to practice" medicine. It also stated that Doe's "reentry [to the University] should include an external monitor to negotiate future conflicts and disagreements should they arise," and suggested "another 360 review" in the future.
Although Doe authorized Vanderbilt to release its executive summary to the PWBC, he did not authorize it to send the full report it had prepared, as the Settlement Agreement required. On May 21, 2016, Dr. Seaberg informed Doe she was supposed to receive the full report and did not have the information she required to proceed. Doe responded that he did not "feel comfortable sharing [his] private health records" because he had experienced "multiple serious and illegal breaches" of confidentiality at the University. However, he stated he would be willing to show Dr. Seaberg the full report in person. Dr. Seaberg did not respond to Doe's proposal to share the report with her in person.
On May 23, 2016, Doe spoke with the Dean of the University's School of Medicine, Dr. David Brenner, and Dr. Brenner agreed Doe could show the full report to Dr. Seaberg in person, in lieu of providing a copy to the PWBC. That same day, Doe e-mailed Dr. Seaberg and again offered to share the full report with her in person (but not to send the full report to the PWBC). Dr. Seaberg did not respond to Doe's proposal.
In a declaration filed in the trial court, Dr. Brenner averred he never made this representation. However, for purposes of an anti-SLAPP motion, we do not weigh credibility or compare the weight of the evidence, and must instead accept as true the evidence favorable to the plaintiff. (Golden Eagle Land Investment, L.P. v. Rancho Santa Fe Assn. (2018) 19 Cal.App.5th 399, 412-413 (Golden Eagle).)
On August 16, 2016, Doe e-mailed Dr. Seaberg and Dr. Brenner and, although he had neither shown Dr. Seaberg the full report nor sent the full report to the PWBC, informed them he believed his business with the PWBC was complete. Neither Dr. Seaberg nor Dr. Brenner responded. In September 2016, Doe resumed his position at the University, without having provided the full report to the PWBC or meeting with the PWBC to establish a monitoring program. C. The External Monitor
Consistent with Vanderbilt's recommendations, the University hired Peggy Hanley as an external monitor to facilitate Doe's reentry to the University. Doe met with Ms. Hanley on at least one occasion, on or about September 26, 2016. However, when he sought to meet with her again in October 2016, he learned that the University had unilaterally instructed her to discontinue her work as external monitor. D. The Voiding of the Settlement Agreement
On September 29, 2016, Dr. Seaberg sent Doe an e-mail stating that the "PWBC (as a committee, and not simply any individual) [would] need the full evaluation (detailed assessment) from Vanderbilt (and not merely an executive summary)." She advised Doe to update his release forms to ensure Vanderbilt would send the full report. Finally, she stated that if she did not receive the full report by October 12, 2016, she would assume Doe "[did] not intend to fulfill this requirement." Over several e-mails, Doe asked to meet or speak with Dr. Seaberg. Dr. Seaberg responded that she "need[ed] the Vanderbilt assessment (directly from Vanderbilt) before any meeting [could] take place" and there was "nothing to discuss" until the PWBC received the full report. Despite Dr. Seaberg's request, the PWBC did not receive the full report by October 12, 2016.
On October 27, 2016, Dr. Brenner sent Doe an e-mail in which he reminded Doe of the PWBC's request for the full report. He stated that if Doe did not send the full report by November 4, 2016, the University would void the Settlement Agreement, which would "result in OPHD finalizing and issuing its final report" regarding the misconduct allegations. The PWBC did not receive the full report by November 4, 2016.
On November 8, 2016, based on Doe's failure to send the full report to the PWBC, Dr. Brenner notified Doe that the University would "void [the] [Settlement] [A]greement, and OPHD [would] finalize their [sic] report" to the University's Executive Vice Chancellor. The following day, on November 9, 2016, Doe provided the University a redacted version of the full report and requested that the University rescind its decision to void the Settlement Agreement. The University declined Doe's request and, shortly after, issued its investigative report finding reasonable cause to believe that Doe had harassed his subordinates. In February 2017, the University brought disciplinary charges against Doe and the University's Privilege and Tenure Committee (the Committee) scheduled a hearing to adjudicate those charges. E. Doe's Lawsuit
On June 27, 2017, Doe filed a complaint against the University asserting causes of action for breach of contract, breach of the implied covenant of good faith and fair dealing, and declaratory relief. In his breach of contract cause of action, Doe claimed the University breached the Settlement Agreement by purporting to void the Agreement and thereafter reinitiating disciplinary proceedings against him. In his breach of the implied covenant of good faith and fair dealing claim, Doe alleged the University impeded his ability to fulfill his obligations under the Settlement Agreement—particularly his obligation to comply with Vanderbilt's "treatment and follow-up recommendations"—by instructing the external monitor to discontinue her work. Finally, Doe sought a declaration regarding the parties' rights, duties, and liabilities under the Settlement Agreement; whether Doe or the University breached the Settlement Agreement; and whether the University was entitled to void the Settlement Agreement.
Doe named the Regents as the party-defendant in this action pursuant to article IX, section 9 of the California Constitution, which establishes the Regents as the legal corporation vested with authority to administer the University of California and the power to sue and be sued. (Cal. Const., art. IX, § 9, subds. (a), (f).) For purposes of this appeal, we refer to the University and the Regents interchangeably as the University.
Shortly after filing the complaint, Doe filed a request to enjoin the Committee from conducting its adjudicatory hearing, pending resolution of his lawsuit against the University. At the hearing on Doe's injunction request, the trial court determined that Doe likely had breached the Settlement Agreement, but not materially so. The court found that the University "basically gave [Doe] a pass on anything he had done before" November 4, 2016, by setting that date as the deadline to send the full report. Thus, in the court's view, the primary issue in dispute was whether Doe materially breached the Settlement Agreement by sending the full report four days after that deadline. The court found that this delay breached the Settlement Agreement, but not in a material way.
The court also acknowledged that when Doe belatedly sent the full report to the University, "he did [redact] some things that—that really should not have been taken out." For instance, he deleted "reference[s] to [a] narcissistic personality disorder," "symptoms that could be associated with bipolar disorder[,]" and "a tendency to repress emotions, abuse, [and] denial." However, the court noted that Doe did not redact the report's final discussion and conclusion portion. For that reason, it found that any breach due to Doe's redactions was likely nonmaterial. After finding that the equities tipped in Doe's favor, the court enjoined the Committee from proceeding with its hearing. F. The Anti-SLAPP Motion
After appellate briefing concluded, Doe informed this court that he recently accepted a position at another institution, he is no longer a faculty member at the University, and the Committee proceedings against him have been terminated.
On August 23, 2017, the University filed a motion to strike Doe's complaint under the anti-SLAPP statute, and, on September 18, 2017, filed an "amended" motion to strike. In opposition, Doe filed declarations from himself, his attorney, and the program manager of the Vanderbilt program, as well as a variety of documentary exhibits.
The University lodged 13 pages of objections to Doe's evidentiary submissions, which the trial court overruled in a one-line order. The University has not renewed its objections on appeal and, therefore, has waived its evidentiary challenges. (Hawran v. Hixson (2012) 209 Cal.App.4th 256, 294, fn. 12.)
In resolving the University's motion, the trial court concluded that the University had satisfied its burden at the first step of the anti-SLAPP analysis. Specifically, the court determined that Doe's claims arose from the University's "resumption of the disciplinary process and proceedings" against Doe, which the court found to be a protected activity under the anti-SLAPP statute. However, the court found—consistent with its earlier order granting the preliminary injunction—that Doe had "successfully carried, albeit perhaps minimally," his burden of establishing a probability of success at the second step of the anti-SLAPP analysis. In a brief analysis, the court found a triable issue of fact "as to whether [the] Regents material[ly] breached the agreement (and whether [Doe's] admitted breaches were sufficiently material)." Accordingly, the court denied the University's anti-SLAPP motion.
When ruling on a preliminary injunction request, a court must assess the likelihood that the plaintiff will prevail at trial, an inquiry that bears some resemblance to the court's task at the second step of the anti-SLAPP analysis. (Lam v. Ngo (2001) 91 Cal.App.4th 832, 843.) However, a trial court's granting of a preliminary injunction does not prevent it from later considering the merits of, and granting, an anti-SLAPP motion. (Id. at p. 844.)
II
ANALYSIS
A. Anti-SLAPP Law
" 'A SLAPP suit is "a meritless lawsuit 'filed primarily to chill the defendant's exercise of First Amendment rights.' " [Citation.] California's anti-SLAPP statute allows a defendant to move to dismiss "certain unmeritorious claims that are brought to thwart constitutionally protected speech or petitioning activity." ' " (Ralphs Grocery Co. v. Victory Consultants, Inc. (2017) 17 Cal.App.5th 245, 253.) To that end, the anti-SLAPP statute provides in pertinent part as follows: "A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim." (§ 425.16, subd. (b)(1).)
Courts apply a two-step analysis when ruling on a motion to strike under the anti-SLAPP statute. "First, the defendant must establish that the challenged claim arises from activity protected by section 425.16. [Citation.] If the defendant makes the required showing, the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral).) Courts "have described this second step as a 'summary-judgment-like procedure.' [Citation.] The court does not weigh evidence or resolve conflicting factual claims. Its inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment. It accepts the plaintiff's evidence as true, and evaluates the defendant's showing only to determine if it defeats the plaintiff's claim as a matter of law." (Id. at pp. 384-385.)
We apply de novo review to a ruling on a motion to strike under the anti-SLAPP statute. (Klem v. Access Ins. Co. (2017) 17 Cal.App.5th 595, 608.) "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 v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).) B. The Trial Court Did Not Abuse its Discretion by Considering the Merits of the University's Motion
Before we reach the merits of the University's motion to strike Doe's complaint, we must first address Doe's claim that the University's motion was untimely and, therefore, should have been denied without consideration of its merits.
The anti-SLAPP statute provides that a motion to strike "may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper." (§ 425.16, subd. (f).) Doe served his complaint on July 16, 2017, the University filed a motion to strike within the 60-day filing window, and the University "amended" its motion on September 18, 2017, three days after the 60-day deadline expired. The trial court found the "amended" motion was timely because the amendment of the motion did "not create a new legally-operative filing date," but rather related back to the filing date of the original motion. Doe claims this finding was erroneous because the relation-back doctrine applies only to pleadings, not motions.
The parties state that the University's "amended" motion to strike included additional evidence not filed with the original motion to strike, but do not otherwise explain the substantive differences between the two versions of the motion.
We need not consider whether and under what circumstances the relation-back doctrine applies to motions because, assuming the doctrine does not apply, we nonetheless construe the trial court's order as a valid exercise of its discretion to consider an untimely anti-SLAPP motion. (§ 425.16, subd. (f).) Notwithstanding the 60-day window applicable to the filing of anti-SLAPP motions, a court "enjoys considerable discretion regarding whether to allow the late filing of an anti-SLAPP motion . . . ." (Platypus Wear, Inc. v. Goldberg (2008) 166 Cal.App.4th 772, 787.) Further, the court need not state the reason(s) why it has exercised its discretion to hear such a motion. (Du Charme v. International Brotherhood of Electrical Workers (2003) 110 Cal.App.4th 107, 113.)
Here, the trial court acted well within its discretion when it heard the University's "amended" motion to strike. The motion was, at most, untimely by a mere three days (and one business day). Moreover, the parties did not engage in further proceedings during the brief window between the expiration of the 60-day filing deadline and the filing of the University's "amended" motion. Under these circumstances, the trial court undoubtedly could have determined that "the anti-SLAPP statute [could] fulfill its purpose of resolving the case promptly and inexpensively." (Newport Harbor Ventures, LLC v. Morris Cerullo World Evangelism (2018) 4 Cal.5th 637, 645.) Accordingly, we reject Doe's timeliness challenge and turn now to the merits of the University's motion. C. The University Established that Doe's Claims Arise from Protected Activity
At the first step of the anti-SLAPP analysis, the defendant must establish that the conduct underlying the plaintiff's cause of action arose from protected acts in furtherance of the defendant's free speech or petition rights. (Baral, supra, 1 Cal.5th at p. 384.) "[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." (Navellier, supra, 29 Cal.4th at p. 89.) Rather, "[a] claim arises from protected activity when that activity underlies or forms the basis for the claim." (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1062 (Park).) Thus, at the first stage of the analysis, we must "consider the elements of the challenged claim and what actions by defendant supply those elements and consequently form the basis for liability." (Ibid.)
It is well established that an internal investigation of a government employee's alleged misconduct constitutes an "official proceeding authorized by law" and, therefore, involves protected activity. (Guarino v. County of Siskiyou (2018) 21 Cal.App.5th 1170, 1181 [county's investigation of counsel's alleged misconduct was protected activity]; Nam v. Regents of University of California (2016) 1 Cal.App.5th 1176, 1186-1187 [university's disciplinary process of medical resident, including investigation, was protected activity]; Miller v. City of Los Angeles (2008) 169 Cal.App.4th 1373, 1383 [claims based on investigation into employee's misconduct satisfied first anti-SLAPP prong].) Certain aspects of a government employee's disciplinary or grievance proceeding also constitute protected activity. (Vergos v. McNeal (2007) 146 Cal.App.4th 1387, 1397 [hearing officer's statements and communicative conduct in grievance hearing protected]; cf. Park, supra, 2 Cal.5th at p. 1071 [an ultimate determination in a grievance proceeding does not arise from protected statements that might precede the determination].)
Doe does not argue otherwise. Nor does he dispute that the University's investigation into his alleged misconduct and the disciplinary proceedings that it instituted against him were protected activities. Rather, he claims the causes of action he has asserted do not arise from such conduct. Therefore, to determine whether the University has satisfied its burden, we must examine whether the acts the University undertook in connection with its investigative and disciplinary proceedings supply necessary elements of Doe's causes of action.
1. Breach of Contract
The elements of Doe's 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 breach; and (4) resulting damages to the plaintiff. (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 821.) The University contends, and the trial court agreed, that the injury-producing conduct unpinning Doe's claim of breach was the University's resumption of disciplinary proceedings against Doe, including the release of its investigative report and the filing of formal disciplinary charges. Doe, on the other hand, contends his cause of action arises from the notice the University sent indicating it was voiding the Settlement Agreement, which Doe claims was not only unwarranted, but also untethered to the investigative and disciplinary proceedings pending against him.
We agree with the University and conclude that, under a fair reading of the complaint, the University's investigative report and disciplinary charges form the basis of the claimed breach. It is undisputed that the purpose and effect of the Settlement Agreement was to halt the ongoing proceedings against Doe, the release of the investigative report, and the filing of formal disciplinary charges against Doe. Indeed, as Doe stated in a declaration filed in the trial court, "the principal benefit and inducement for [Doe] entering into the Settlement Agreement in the first place was that . . . it would bar the University from taking any further action, including disciplinary action, against [him] based on the disputed allegations . . . ." In short, the University's investigative and disciplinary proceedings against Doe—which were paused due to the Settlement Agreement—were inherently entwined with the continued existence of, and the parties' sustained adherence to, the Settlement Agreement. Thus, we conclude that the voiding of that Agreement is necessarily tied to the resumption of the University's proceedings.
Doe argues that we should view the University's voiding of the Settlement Agreement as separate from the University's resumption of its disciplinary proceedings because the University had to make two separate decisions to accomplish these acts—first, to void the Settlement Agreement and, second, to resume its proceedings. However, the Settlement Agreement itself provided that the University's voiding of the Agreement "shall . . . result in OPHD finalizing and issuing its final report" regarding Doe's alleged misconduct. The word "shall" indicates that the University's release of its investigative findings was the inevitable result of its decision to void the Settlement Agreement. (Walt Rankin & Associates, Inc. v. City of Murrieta (2000) 84 Cal.App.4th 605, 614 [generally, " 'shall' is mandatory"].) Further, Dr. Brenner informed Doe in his October 27, 2016 e-mail that the University's decision to void the Settlement Agreement would "result in OPHD finalizing and issuing its final report" regarding the misconduct allegations. And, in his November 8, 2016 e-mail terminating the Settlement Agreement, Dr. Brenner again informed Doe that the "OPHD [would] finalize their [sic] report." For all these reasons, we reject Doe's claim that the voiding of the Settlement Agreement and the resumption of disciplinary proceedings were separate and unrelated decisions.
Doe, relying on Applied Business Software, Inc. v. Pacific Mortgage Exchange, Inc. (2008) 164 Cal.App.4th 1108, also argues that actions to enforce settlement agreements do not arise from protected activity. In Applied Business, a software licensor sued its licensee for copyright infringement and the parties entered into a settlement agreement requiring the licensee to certify that it had deleted and/or returned all copies of the disputed software to the licensor. (Id. at pp. 1111-1112.) The licensor subsequently sued the licensee for breach of this certification provision and the licensee filed an anti-SLAPP motion. (Id. at p. 1114.) On appeal, the Court of Appeal rejected the licensee's argument that its claim arose from protected activity merely because the settlement agreement had been the product of a judicial proceeding. (Id. at p. 1117.) As the court explained, "the gist of plaintiff's complaint [was] not that defendant did something wrong by acts committed during the course of the underlying [initial] action, but rather that defendant did something wrong by breaching the settlement agreement after the underlying action had been concluded." (Id. at p. 1118, italics added.) Thus, the court concluded, the licensee's claim did not arise from the licensee's protected activity. (Ibid.)
Doe's efforts to analogize this action to Applied Business are misplaced. Unlike the judicial proceedings in Applied Business, which were resolved and dismissed before the defendant allegedly breached the settlement agreement at issue, the investigative and disciplinary proceedings in this case were merely paused while the Settlement Agreement was in effect. As discussed ante, those proceedings resumed when the University voided the Settlement Agreement. Thus, while this case and Applied Business both ostensibly involve alleged breaches of settlement agreements, it is the University's simultaneous resumption of its investigative and disciplinary proceedings—facts not present in Applied Business—that constitute the protected activity giving rise to Doe's cause of action.
Ultimately, the allegations that Doe made in his trial court filings constitute the most convincing proof that the injury-producing activity underlying the alleged breach was the University's issuance of its investigative report and filing of disciplinary charges. For instance, the complaint states that Doe's claim arises from the University's act of "initiating proceedings to take disciplinary action against him on the basis of the [misconduct] charges that were resolved by the [S]ettlement Agreement." Elsewhere in the complaint, Doe pleaded that the University's purported breach "frustrated the benefits that [he] was entitled to receive under the [Settlement] Agreement, including the benefit of being free from distressing and costly disciplinary charges."
Likewise, in his briefing to enjoin the Committee's adjudicatory hearing, Doe argued "the University was breaching the Settlement Agreement by bringing and prosecuting formal disciplinary charges against [him] based on . . . allegations that were resolved and settled by the Settlement Agreement." In that same briefing, he also argued that the University "violated [the Settlement Agreement] by bringing disciplinary charges against [him] based on allegations that were resolved and settled by the parties' Settlement Agreement."
For all these reasons, we reject Doe's efforts to recharacterize the injury-producing conduct at issue and conclude that the University has satisfied its step-one burden. (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1271-1272 ["[A] plaintiff cannot avoid operation of the anti-SLAPP statute by attempting, through artifices of pleading, to characterize an action as a garden variety tort or contract claim when in fact the claim is predicated on protected speech or petitioning activity."].)
2. Declaratory Relief
Doe's second cause of action seeks declaratory relief regarding the parties' rights, duties, and liabilities under the Settlement Agreement; whether Doe or the University breached the Settlement Agreement; and whether the University was entitled to void the Settlement Agreement. "A complaint for declaratory relief is legally sufficient if it sets forth facts showing the existence of an actual controversy relating to the legal rights and duties of the parties under a written instrument or with respect to property and requests that the rights and duties of the parties be adjudged by the court." (Market Lofts Community Assn. v. 9th Street Market Lofts, LLC (2014) 222 Cal.App.4th 924, 931.)
In this case, the University's purported breach of the Settlement Agreement not only preceded the declaratory relief cause of action; it generated the "actual controversy" that underpins Doe's request for declaratory relief. Because Doe's breach of contract cause of action arises from protected activities, so too does his related cause of action for declaratory relief. (Takhar v. People ex Rel. Feather River Air Quality Management Dist. (2018) 27 Cal.App.5th 15, 22 [protected activity gave rise to the actual, present controversy on which plaintiff based declaratory relief action]; Lunada Biomedical v. Nunez (2014) 230 Cal.App.4th 459, 473 [same]; CKE Restaurants, Inc. v. Moore (2008) 159 Cal.App.4th 262, 271 [same].)
3. Breach of the Implied Covenant of Good Faith and Fair Dealing
Finally, Doe contends that the University breached the implied covenant of good faith and fair dealing by impeding his ability to fulfill his obligations under the Settlement Agreement. Specifically, Doe points to a provision in the Settlement Agreement that required him to reasonably and substantially comply with Vanderbilt's treatment and follow-up recommendations, and claims that the University's discharge of Ms. Hanley precluded him from satisfying Vanderbilt's recommendations.
Based on our review of the complaint and the parties' evidentiary submissions, it is apparent to us that the conduct of which Doe complains relates to the same core conduct underpinning Doe's breach of contract cause of action—the University's resumption of disciplinary proceedings against Doe. (Bel Air Internet, LLC v. Morales (2018) 20 Cal.App.5th 924, 940-946 [overlapping causes of action for breach of contract and breach of the implied covenant of good faith and fair dealing arose out of protected activities].)
The University instructed Ms. Hanley to discontinue her work with Doe in October 2016, just before it released its investigative report and recommenced its disciplinary process against Doe. Given this timing, it is apparent that the University discharged Ms. Hanley—whose role was to assist with Doe's integration back into the University—because of the University's forthcoming resumption of its investigative and disciplinary proceedings. Thus, the conduct underpinning Doe's cause of action is part and parcel of the University's overarching resumption of disciplinary proceedings. On this basis, we conclude that Doe's cause of action for breach of the implied covenant of good faith and fair dealing, like his other causes of actions, arises from protected activity. D. Doe Has Not Established a Probability of Success on the Merits of His Claims
In the trial court, the University claimed the injury-producing conduct giving rise to Doe's complaint was also protected as "conduct in furtherance of the exercise of the constitutional right of petition or the constitutional right of free speech in connection with a public issue or an issue of public interest." (§ 425.16, subd. (e).) However, the University did not press that argument on appeal. Therefore, we do not address it.
At the second step of the anti-SLAPP analysis, "the burden shifts to the plaintiff to demonstrate the merit of the claim by establishing a probability of success." (Baral, supra, 1 Cal.5th at p. 384.) At this stage, the court's "inquiry is limited to whether the plaintiff has stated a legally sufficient claim and made a prima facie factual showing sufficient to sustain a favorable judgment." (Id. at pp. 384-385.) To make this showing, "the plaintiff cannot rely on the allegations of the complaint, but must produce evidence that would be admissible at trial." (HMS Capital, Inc. v. Lawyers Title Co. (2004) 118 Cal.App.4th 204, 212; see City of Costa Mesa v. D'Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 376 [" 'The plaintiff may not rely solely on its complaint, even if verified; instead, its proof must be made upon competent admissible evidence.' "].)
The plaintiff's second-step burden is " ' "not high," ' " as he or she need only show that there exists a " 'minimum level of legal sufficiency and triability.' " (Cross v. Facebook, Inc. (2017) 14 Cal.App.5th 190, 205 (Cross).) As we will explain, however, the evidence that Doe submitted to meet his prong-two burden—consisting of declarations from Doe, his attorney, and the program manager of the Vanderbilt program—is insufficient to support a prima face showing of facts that would support a judgment favorable to Doe on his causes of action.
1. Breach of Contract
As discussed ante, Doe alleges the University breached the Settlement Agreement by voiding the Agreement and resuming disciplinary proceedings against him. According to the University, it voided the Settlement Agreement and resumed its disciplinary proceedings because Doe was himself in breach. As such, the University claims Doe cannot demonstrate that he performed his obligations under the Settlement Agreement—a necessary element of his breach of contract cause of action. (Durell v. Sharp Healthcare (2010) 183 Cal.App.4th 1350, 1367 [element of breach of contract claim is "plaintiff's performance or excuse for nonperformance"], italics omitted.)
Specifically, the University contends that Doe failed to satisfy three independent provisions of the Settlement Agreement that required Doe to: (1) obtain a "detailed assessment" from Vanderbilt and authorize its release to the PWBC (the Full Report Provision); (2) "fully comply with any and all of the PWBC's requirements, as determined in the PWBC's sole discretion" (the Sole Discretion Provision); and (3) "have an initial meeting with the PWBC to establish a monitoring program" before returning from sabbatical (the Monitoring Provision). The University argues that under the express language of the Settlement Agreement, Doe's failure to adhere to any one of these provisions provided a sufficient basis for the University to void the Settlement Agreement and resume disciplinary proceedings against Doe.
a. The Full Report Provision
As noted, the University argues it was entitled to reinstitute disciplinary proceedings against Doe because he purportedly violated the Full Report Provision, which required that Doe authorize Vanderbilt to release the full report to the PWBC. Doe contends he did not breach this Provision because he and the University (acting through Dr. Brenner) orally modified the Provision to state that Doe merely needed to show the full report to Dr. Seaberg in person. For purposes of this appeal, we accept the evidence favorable to Doe, Golden Eagle, supra, 19 Cal.App.5th at pp. 412-413, and assume Dr. Brenner in fact consented to the alleged oral modification of the Full Report Provision.
Under Civil Code section 1698, "[a] contract in writing may be modified by an oral agreement to the extent that the oral agreement is executed by the parties." (Civ. Code, § 1698, subd. (b).) However, any such modification must be "supported by new consideration." (Id., § 1698, subd. (c).) Here, all parties agree the University received no new consideration for the alleged oral modification. On this basis, we conclude that, even assuming Dr. Brenner orally consented to the modification, the parties' oral modification was ineffective. (Malmstrom v. Kaiser Aluminum & Chem. Corp. (1986) 187 Cal.App.3d 299, 318 ["An oral modification of the terms of the written contract . . . requires new consideration"]; Beggerly v. Gbur (1980) 112 Cal.App.3d 180, 190 ["[T]he trial court could properly determine that the alleged oral modification of the written agreement was invalid and ineffective because it lacked being supported by new consideration within the meaning of subdivision (c) of section 1698 of the Civil Code."].)
Doe claims the alleged oral modification was effective, notwithstanding the admitted lack of consideration, because the parties "carried out" the modified Settlement Agreement. (Kroepsch v. Muma (1969) 272 Cal.App.2d 467, 473 ["An executed oral agreement will serve as modification of a written agreement without regard to the presence or absence of consideration.]".) Specifically, he claims that the parties "carried out" the modified Settlement Agreement because, after May 2016, the University stopped "insisting" on the full report for the next four months, until September 2016. We find no merit to this argument. The brief period of time that the University stopped "insisting" on the full report did not evince an intent to "carry out" a modified Settlement Agreement. Moreover, Doe and Dr. Seaberg never "carried out" a modified Settlement Agreement in any other way by, for example, meeting in-person to review the full report.
Irrespective of whether the parties modified the Full Report Provision, Doe contends that Dr. Brenner waived the Full Report Provision on behalf of the University or, alternatively, that the University is collaterally estopped from relying on the Full Report Provision. We address Doe's waiver argument first.
"The parties may, by their words or conduct, waive the enforcement of a contract provision if the evidence shows that was their intent." (Wind Dancer Production Group v. Walt Disney Pictures (2017) 10 Cal.App.5th 56, 80.) Further, unlike an oral modification to a written contract, a waiver of a contract provision may be effectuated without consideration to the waiving party. (Civ. Code, § 1698, subd. (d) ["[n]othing in [Civ. Code, § 1698] precludes in an appropriate case the application of rules of law concerning . . . waiver of a provision of a written contract"]; see Bennett v. Farmers Ins. Co. (Or. 2001) 332 Or. 138, 156 ["Unlike a modification of a contract, waiver can be accomplished unilaterally, and it need not be supported by consideration."].)
Based on the evidence Doe presented to the trial court, and viewed in the light most favorable to him, we conclude that Doe has established a "minimum level of legal sufficiency and triability" on the issue of waiver. (Cross, supra, 14 Cal.App.5th at p. 205.) As Doe explained in his declaration, Dr. Brenner instructed him that he need not provide the full report to the PWBC before returning to the University and, instead, could show Dr. Seaberg the full report in person. Further, Doe submitted documentary evidence suggesting that he sent an e-mail to Dr. Brenner and Dr. Seaberg shortly before his return to the University, in which he stated that he believed his business with the PWBC was "complete"—an e-mail that Doe claims went unanswered. At this stage, Doe's evidence is sufficient to support his claim of waiver.
Because we conclude that Doe has established a probability of success on his waiver argument, we need not address Doe's argument that the University is estopped from enforcing the Full Report Provision.
Thus, we cannot conclude, as the University urges, that the Full Report Provision precludes Doe from prevailing on his breach of contract cause of action.
b. The Sole Discretion Provision
The University contends that even if it waived the Full Report Provision in May 2016, Doe subsequently violated a second provision of the Settlement Agreement—the Sole Discretion Provision—which required him to "fully comply with any and all of the PWBC's requirements, as determined in the PWBC's sole discretion." The University claims Doe violated this Provision because after the University's alleged waiver of the Full Report Provision, the PWBC instructed Doe he needed to authorize Vanderbilt to send the full report to the PWBC and he did not comply with this instruction.
Specifically, Dr. Seaberg sent Doe a September 29, 2016 e-mail that read in pertinent part as follows:
"PWBC (as a committee, and not simply any individual) will need the full evaluation (detailed assessment) from Vanderbilt (and not merely an executive summary) . . . . Please work directly with Vanderbilt to update any release forms that may be needed in order to assure that the information is sent to PWBC and that PWBC may engage in two way communications with Vanderbilt (as contemplated by the agreement). Please let me know as soon as the necessary paperwork is in place. If I do not receive the detailed assessment from Vanderbilt by October 12, 2016, I will assume that you do not intend to fulfill this requirement."In follow-up e-mails, Dr. Seaberg further informed Doe that the PWBC "need[ed] the Vanderbilt assessment (directly from Vanderbilt) before any meeting [could] take place." Thereafter, on October 27, 2016, Dr. Brenner sent Doe an e-mail reiterating Dr. Seaberg's prior requests and instructing him that he needed to comply by November 4, 2016, or else the University would void the Settlement Agreement and issue its investigative report.
Doe does not dispute the University's claims that these representations constituted "requirements" that the PWBC articulated pursuant to its authority under the Sole Discretion Provision. Doe also does not claim that the University modified or waived the Sole Discretion Provision. Further, Doe does not argue that the University was estopped from enforcing the Sole Discretion Provision (in the same way that he asserted an estoppel argument with respect to the Full Report Provision).
Even if Doe had raised an estoppel argument with respect to the Sole Discretion Provision, we would reject such an argument. Doe has not shown that he experienced detrimental reliance based on the University's statements or conduct. (Feduniak v. California Coastal Com. (2007) 148 Cal.App.4th 1346, 1359 [the party seeking to invoke equitable estoppel must show he relied upon the conduct of another to his injury].)
Nevertheless, Doe argues he was not required to comply with the PWBC's requests because a contracting party may not exercise its discretionary authority under a contract to contradict the express terms of the contract and, as discussed ante, he claims the parties modified the Settlement Agreement to state that Doe was not required to send the full report to the PWBC. (Storek & Storek, Inc. v. Citicorp Real Estate, Inc. (2002) 100 Cal.App.4th 44, 55-56 (Storek) [implied covenant of good faith and fair dealing applicable to contract provisions granting one party discretion to act "cannot contradict the express terms of a contract"].) However, we have already rejected Doe's argument that the parties orally modified the Settlement Agreement. Accordingly, there is no merit to Doe's claim that the PWBC's requests contravened the express terms of the Settlement Agreement.
Next, Doe claims the PWBC acted in "bad faith" when it issued its requests, which Doe characterizes as "arbitrary," "unreasonable," and "improper." (Storek, supra, 100 Cal.App.4th at p. 62 [" '[T]he implied promise of good faith and fair dealing requires [a] party to act in good faith and to deal fairly with the other party in deciding whether to use [its] discretionary power and in deciding what actions to take.' "].) Doe has directed us to no evidence substantiating these contentions or explaining why the PWBC's requests were "arbitrary," "unreasonable," or "improper." Nor can we discern any basis in the record to support Doe's claims. On the contrary, the parties expressly contemplated that Doe would send the full report to the PWBC when they initially executed the Settlement Agreement. Further, Doe had ample time to comply with the PWBC's requests—five weeks in total. Thus, we reject Doe's unsupported claims of "bad faith."
In sum, we conclude that Doe has not made a prima facie factual showing of his compliance with the Sole Discretion Provision and, as a result, has not demonstrated his performance under the Settlement Agreement. Because the evidence before us does not show that Doe performed under the Settlement Agreement, Doe has not established a probability of success on his breach of contract cause of action.
Because Doe has not made a prima facie showing that he complied with the Sole Discretion Provision, it is unnecessary for us to determine whether he satisfied his obligations under the Monitoring Provision.
c. Doe's Remaining Arguments
Doe raises two additional arguments in support of his argument that he has satisfied his second-step burden for his breach of contract claim. Neither has merit.
i. Materiality of Doe's Breach
First, Doe contends that his breach of the Settlement Agreement was immaterial and did not afford the University the right to terminate the Settlement Agreement. In support of this argument, Doe cites several cases for the proposition that "courts allow termination only if the breach can be classified as 'material,' 'substantial,' or 'total.' " (Superior Motels, Inc. v. Rinn Motor Hotels, Inc. (1987) 195 Cal.App.3d 1032, 1051; see Brown v. Grimes (2011) 192 Cal.App.4th 265, 277 ["When a party's failure to perform a contractual obligation constitutes a material breach of the contract, the other party may be discharged from its duty to perform under the contract."].)
However, unlike the cases on which Doe relies, which applied default principles of contract law, the contract at issue here expressly sets forth the basis on which it may be voided—i.e., Doe's failure to "adhere to any of the commitments or obligations set forth in [the Settlement Agreement]." (Italics added.) In California, a "contract may contain a valid provision giving one or the other party an option to terminate it on specified conditions." (Call v. Alcan Pacific Co. (1967) 251 Cal.App.2d 442, 447; R. J. Cardinal Co. v. Ritchie (1963) 218 Cal.App.2d 124, 143 ["A contract may contain a valid provision giving one or either of the parties thereto an option to terminate it within a certain time or on specified conditions."]; Mad River Lumber Sales, Inc. v. Willburn (1962) 205 Cal.App.2d 321, 324 [" 'A power may be reserved to one party to terminate the contract if the other party fails to render specified performances or to produce certain results.' "].)
For instance, in Thrifty Payless, Inc. v. Mariners Mile Gateway, LLC (2010) 185 Cal.App.4th 1050, 1055, 1058, a landlord terminated a commercial lease with its tenant after regulatory approvals delayed the landlord's efforts to improve the property, relying on a provision of the parties' contract that permitted either party to terminate the contract "for any reason" if the lease term did not begin on or before a specified date. The court concluded that this contract provision authorized the landlord's decision to terminate the contract because the contract " 'meant what it said.' " (Id. at p 1064.) As the court explained, "[t]he parties freely negotiated a provision under which either could terminate the lease—'for any reason' if the lease did not begin' " by the date specified in the contract. (Ibid., fn. omitted.) The court determined that the clause "must be given effect," not read "out of the lease simply because one party [felt] its operation was harsh or unfair." (Ibid.; see Galdjie v. Darwish (2003) 113 Cal.App.4th 1331, 1341-1342 [courts generally enforce deadlines in real estate sales contracts, thereby allowing a seller to cancel the contract if the contract specifies that time is of the essence].)
Likewise, federal courts construing California law have rejected litigants' efforts to use default materiality rules to override express contract provisions delineating the specific bases on which parties may terminate their agreements. (See Int'l Fruit Genetics, LLC v. P.E.R. Asset Mgmt. Trust (C.D.Cal., Apr. 20, 2016, No. 2:14-cv-05273-ODW(MRW)) 2016 U.S. Dist. Lexis 53232, *17-18, affd. 711 F.Appx. 408 [rejecting claim that breach was not material so as to justify contract termination because events of default included defendant's failure to perform " 'any of its obligations' "]; Fru-Con Constr. Corp. v. Sacramento Mun. Util. Dist. (E.D.Cal., June 15, 2007, No. CIV. S-05-583-LKK/GGH) 2007 U.S. Dist. Lexis 47555, *32 ["The relevant inquiry is not whether there was a material breach, but whether the conditions giving rise to a right to terminate occurred."].) As these authorities make clear, courts will give effect to provisions authorizing one or more parties to terminate their contracts based on another party's failure to perform its contractual obligations, irrespective of whether the basis for the termination would normally be considered material in the absence of such provisions.
Doe, citing Boston LLC v. Juarez (2016) 245 Cal.App.4th 75, claims that a default materiality requirement applies to every termination of a contract, even if the contract provides otherwise. We are not persuaded. In Boston, a landlord gave its tenant a three-day notice to perform or quit based on the tenant's failure to carry insurance required by the parties' lease. (Id. at p. 78.) Although the landlord had not enforced the provision for 15 years, it served its three-day notice the day before a holiday weekend and filed its unlawful detainer action immediately thereafter. (Ibid.) The Boston court concluded that a materiality requirement applied, even though the lease allowed the landlord to cancel for "any failure of compliance or performance," because "free market principles, which justify, in part, the freedom to contract, do not apply to urban residential leases . . . ." (Id. at pp. 82, 84.) The court explained that the Los Angeles rent stabilization ordinance, which governed the lease, had "public policy goals of providing stable affordable housing to low-income Angelenos and preventing pretext evictions [that] outweigh[ed] the free market and freedom to contract principles" that normally apply. (Id. at p. 85.) These considerations are not at issue in this appeal, however, and Doe has not directed us to any similar public policy considerations that might trump the parties' freedom to contract.
In accordance with the principles discussed ante, therefore, we conclude that the default materiality rules applicable to contracts governed by California law are not dispositive in this case. Rather, the Settlement Agreement—a "negotiated, integrated agreement, drafted by both parties and their counsel"—expressly entitled the University to void the parties' contract based on Doe's failure to adhere to "any of the commitments or obligations" set forth in the three-page Settlement Agreement. One such obligation was Doe's compliance with the Sole Discretion Provision, which he did not satisfy. While we recognize that this express provision placed great significance on Doe's strict compliance with the terms of the three-page Settlement Agreement, " '[t]he courts cannot make better agreements for parties than they themselves have been satisfied to enter into or rewrite contracts because they operate harshly or inequitably.' " (Series AGI West Linn of Appian Group Investors DE, LLC v. Eves (2013) 217 Cal.App.4th 156, 164.) Thus, on the record before us, we conclude that the University had an express contractual right to terminate the Settlement Agreement based on Doe's breach, which it properly exercised.
ii. The University's "Earlier" Breach
Second, Doe argues (as best as we can discern) that the University breached the Settlement Agreement before Doe's breaches took place and before it voided the Settlement Agreement, by instructing Ms. Hanley to discontinue her role as external monitor. In support of this claim, Doe relies on a provision of the Settlement Agreement stating that Doe would "reasonably and substantially comply with any and all treatment and follow-up recommendations made by the Vanderbilt program." As noted, Vanderbilt recommended that Doe's reentry to the University "should include an external monitor." Doe contends the Settlement Agreement, when read together with this Vanderbilt recommendation, required the University to retain an external monitor, and that the University breached this obligation when it discharged Ms. Hanley.
There is no merit to Doe's claim. The Settlement Agreement does not contain any provision discussing an external monitor and the Settlement Agreement's integration clause " 'preclude[s] the introduction of evidence which varies or contradicts the terms of the written instrument[].' " (R.W.L. Enterprises v. Oldcastle, Inc. (2017) 17 Cal.App.5th 1019, 1031.) Furthermore, the provision on which Doe bases his argument states only that Doe must adhere to Vanderbilt's "treatment and follow-up" recommendations. It does not require the University to comply with any Vanderbilt recommendations, including, for example, any of Vanderbilt's recommendations regarding how the University might possibly reintegrate Doe back into its faculty. Therefore, we reject Doe's claim that the University breached the Settlement Agreement before he did.
d. Conclusion
For the reasons discussed, we conclude that Doe has not made a prima facie factual showing sufficient to sustain a judgment in his favor with respect to his breach of contract cause of action.
2. Declaratory Relief
"[T]he mere existence of a controversy is insufficient to overcome an anti-SLAPP motion against a claim for declaratory relief. [¶] To defeat an anti-SLAPP motion, the plaintiff must also make a prima facie evidentiary showing to sustain a judgment in the plaintiff's favor. [Citation.] In other words, for a declaratory relief action to survive an anti-SLAPP motion, the plaintiff must introduce substantial evidence that would support a judgment of relief in plaintiff's favor." (South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634, 670 (South Sutter).)
For the reasons discussed ante, Doe has not made a prima facie factual showing that would support a favorable judgment in his favor regarding the issues presented in his declaratory relief cause of action. For instance, he has not shown that he satisfied his contractual obligations under the Settlement Agreement. (See ante, § II.D.1.b.) He has not introduced evidence to establish a prima facie case that the University breached its obligations under the Settlement Agreement. (See ante, § II.D.1.c.ii.) And he has not demonstrated that it was improper for the University to void the Settlement Agreement and resume its investigative and disciplinary proceedings against him. (See ante, § II.D.1.c.i.) On this basis, we conclude that Doe has not established a probability of success on his declaratory relief cause of action. (South Sutter, supra, 193 Cal.App.4th at pp. 670-672 [plaintiff did not establish that it would achieve a favorable judgment of declaratory relief and thus did not satisfy its step-two burden].)
3. Breach of the Implied Covenant of Good Faith and Faith Dealing
Finally, as noted ante, Doe contends the University breached the covenant of good faith and fair dealing by impeding his ability to comply with his obligations under the Settlement Agreement and, therefore, to receive the benefits of the Settlement Agreement. (Behnke v. State Farm General Ins. Co. (2011) 196 Cal.App.4th 1443, 1469.) Specifically, he contends the University's instruction to Ms. Hanley to discontinue her work as external monitor precluded him from satisfying the Settlement Agreement provision requiring him to "reasonably and substantially comply with any and all treatment and follow-up recommendations made by the Vanderbilt program."
We disagree. While Vanderbilt did recommend that the University institute an external monitor during Doe's reentry into the University, the University's discharge of Ms. Hanley did not preclude Doe from complying with Vanderbilt's "treatment and follow-up" recommendations to Doe. Of relevance to this appeal, Doe could have authorized Vanderbilt to send the full report to the PWBC, regardless of whether the University had enlisted an external monitor. But he did not do so. Therefore, the University's conduct with respect to Ms. Hanley did not frustrate Doe's ability to adhere to Vanderbilt's "treatment and follow-up" recommendations, and it did not breach the covenant of good faith and fair dealing.
DISPOSITION
The order denying the University's motion to strike the complaint is reversed. The University is entitled to its costs on appeal.
IRION, J. WE CONCUR: BENKE, Acting P. J. HALLER, J.
Appendix A
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