Memorandum Points and Authorities

Cal. Super. - 6th Dist.December 21, 2018

LAW OFFICES OF JONATHAN D. WINTERS 2750 Bellflower Boulevard, Suite 101 Long Beach, California 90815-1143 +1 562 497 0472 (DmNOU‘l-thA MNNNNNMNNAAAAAAAAA-t QNQO'l-th-‘OOQVODWLODN-‘O Jonathan D. Winters, Attorney at Law California State Bar N9 213700 LAW OFFICES OF JONATHAN D. WINTERS 2750 Bellflower Boulevard, Suite 101 Long Beach, California 90815-1143 +1 562 497 0472 Attorney for Plaintiff Maryam Gholamirad Electronically Filed by Superior Court of CA, County of Santa Clara, on 12/31/2019 2:21 PM Reviewed By: M Vu Case #1 8CV340085 Envelope: 3828154 SUPERIOR COURT OF THE STATE OF CALIFORNIA FOR THE COUNTY OF SANTA CLARA Downtown Superior Court 191 North First Street San Jose, California 95113 MARYAM GHOLAMIRAD Plaintiff, VBI'SBS BELLA VISTA APARTMENT, and Does 1 through 10 inclusive, Defendants. BELLA VISTA APARTMENT, Cross-complainant verses MARYAM GHOLAMIRAD, Cross-defendant. To the Court and all interested parties: Case Number: 180V340085 Complaint filed: December 21, 2018 Trial Date: none set Assigned Judge: none assigned Assigned Department: none assigned Plaintiff Maryam Gholamirad’s Motion to Strike Defendant Bella Vista Apartment’s Cross-complaint as 1. Untimely; or alternatively; 2. redundant 0f the 34 Affirmative Defenses; and / or 3. a Strategic Lawsuit Against Public Participation (Cal. Code of Civ. Proc., §425.16); Memorandum of Points and Authorities, Declaration of R. Spelger and Exhibits, in support thereof [Notice of Motion, filed concurrently] Hearing date: March 19, 2020 Time: 09:00 ante meridiem Department: D-19 Judge: Hon. Socrates Manoukian Plaintiff / Cross-defendant Maryam Gholamirad hereby moves the Court for an Order will move the Court to strike the Cross-complaint because: Plaintiff’s Motion to Strike untimely filed Cross-complaint LAW OFFICES OF JONATHAN D. WINTERS 2750 Bellflower Boulevard, Suite 101 Long Beach, California 9081 5-1 143 +1 S62 497 0472 OQVOU‘I-bOON-K NNNNNNNNNAAAAAAAAAA QVODUI-th-KOCOQNOU'IAOON-‘O 1. the untimely filed the Cross-complaint was served 61 days after the filing of her Answer and without leave of Court; or 2. the 3 causes 0f actions are redundant of the relief sought in Defendant’s 34 Affirmative Defenses; and / or 3. the Cross-complaint is a strategic lawsuit, brought by Defendant t0 “primarily t0 chill the valid exercise of constitutional rights 0f freedom of speech and petition for the redress 0f grievances,” pursuant t0 Cal. Code of Civ. Proc., §425.16 (a/k/a/ Strategic Lawsuit Against Public Participation, or SLAPP), that is against public policy, because it was filed in retaliation for Plaintiff’s complaint against Defendant for uninhabitable leased apartment conditions, wherein Defendant seeks t0 silence Plaintiffs free speech, by the Cross- complaint, by seeking Plaintiff to fund Defendant’s defense. MEMORANDUM OF POINTS & AUTHORITIES 1. BACKGROUND SUMMARY On January 17, 2018, Plaintiff Maryam Gholamirad leased from Defendant Bella Vista Apartments, Apartment 106, 1561 Vista Club Circle, Santa Clara, California. Upon moving into the unit, Plaintiff noticed a musty odor throughout the apartment, thousands of mid-size stains on the living room ceiling and some parts of carpeting, rusted piping in the bathroom areas, and water intrusion on ceilings, windowsills, and on parts of carpet. Plaintiff filled out a Move-In Inspection sheet, noted the presence of visible evidence of mold infestation. Plaintiff continued notifying Defendant of her concerns including pictures of rusted pipe, and mold spots 0n the ceiling and carpet throughout the unit. Defendant did not correct any of the problems (Complaint, 1H] 9-14). On January 24, 2018, Plaintiff emailed Defendant, voicing concerns about dangerous mold infestation, and specifically asked for a history of mold in the unit. On January 25, 2018, Plaintiff followed up, with an email requesting Defendant’s mold inspection report, as well as all information about the history -2- Plaintiff’s Motion to Strike untimely filed Cross-complaint LAW OFFICES OF JONATHAN D. WINTERS 2750 Bcllflowcr Boulevard, Suite 101 Long Beach, California 9081 5-1143 +1 562 497 0472 O(OQVOU'l-thA NNNNNNNNNAAAAAAAAAA mflotfith-‘OOQVOO'I-thA of mold issues in the apartment. (Complaint 1| 16) Hearing no response on April 20, 2018, Plaintiff hired a professional mold inspection, which revealed elevéted levels 0f mold spores of at least three specific types of toxic mold. Mold remediation was required by a professions mold remediation company. 1 (Complaint 1l 17). By July 19, 2018, Plaintiff’s doctor found that mold exposure had contributed to an onset of asthma and medical issues? (Complaint 1| 18). On October 9, 2018, Plaintiff hired a different company for the second mold inspection company. That report again revealed high relative humidity in areas 0f the apartment where high levels of mold spores were detected; which was not due t0 temperature variations 0r high temperature in general. The report also concluded that there was evidence of potential water intrusion in the family room ceiling, where mold was present; heavy suspected microbial growth was observed along carpeted areas, especially where carpet lined the walls; leaking windows evidenced an entry point for suspected water intrusion; a distinct musty odor was observed in the bedroom; and high counts of mold spores were discovered throughout the unit. At least three types of highly toxic mold spores were identified in this air sampling which was performed about nine months after Plaintiff had moved into the apartment, and about six months later than the first mold inspection Plaintiff caused to be performed. (Complaint 1] 20). After Plaintiff suspected Defendant’s unauthorized entry, she wrote Defendant, to stop further entries, except as per governing law and the lease agreement’s terms. Yet, 0n or about June 27, 2018, Defendants the apartment ' The inspection also discovered high relative humidity in areas of the apartment where elevated levels of mold spores were detected, despite the fact that the room temperatures were not different. ?- Plaintiff has no family or personal history of asthma, which her doctor says she has developed as a result of her exposure to mold. Dr. Singh, also tested Plaintiff for various types of mold, revealing abnormal reactions to at least two of the mold types. The two types of abnormal sensitivity are both types of mold that were discovered in high levels in Plaintiff‘s apartment when she conducted professional mold sampling; indicating a causal link between the mold in the apartment and the medical conditions being experienced by Plaintiff(Complaint1] l9). -3- Plaintiff‘s Motion to Strike untimely filed Cross-complaint LAW OFFICES OF JONATHAN D. WINTERS 2750 Bellflower Boulevard, Suite 101 Long Beach, California 90815-1 143 +1 562 497 0472 (omflmm-hOJNA NNNNNNNNNAAAAAAAAAA mVOU‘I-th-‘OCOQVQO‘IAQJN-‘O without prior notice or authorization. Plaintiff sent Defendant another notice and for safety, changed the locks. (Complaint 1| 18). With no remediation forthcoming, Plaintiff’s Complaint was filed on December 21, 2018, alleging: 1. Breach of Implied Warranty of Habitability; 2. Breach 0f Implied Covenant of Quiet Enjoyment ; 3. Fraud; 4. Nuisance; 5. Premises Liability; 6. Negligence; and 7. Breach of Contract. 2. PROCEDURAL HISTORY The Complaint was filed on December 21, 2019. Defendant answered on August 25, 2019, asserting 34 Affirmative Defenses. Defendant filed / served the Cross-complaint on November 26, 2019, which is 61 days after the filing 0f the Answer, incorporating causes of action that are already contained in its Affirmative Defenses. 3. PLAINTIFF/ CROSS-DEFENDANT MEET AND CONFER, IN GOOD FAITH WITH DEFENDANT / CROSS-COMPLAINANT PRIOR TO FILING THIS MOTION. Prior to filing this Motion, meet and confer was attempted, to avoid any Hearing, pursuant t0 Cal. Code of Civ. Proc., § 435.5(d)(4). On December 3, 2019, Plaintiffs counsel personally called and discussed With Ms. Lawson, at Bassi, Edlin, Huie & Blum, LLP, before filing this Motion to Strike. The phone call was followed up by 2 written letters. (R. Spelger’s Decl, 1H] 4-8). With Defendant / Cross-complainant refusing to withdraw the Cross-complaint, no alternative exists but to file this Motion. 4. THIS MOTION TO STRIKE IS TIMELY BROUGHT, WITHIN 30 DAYS OF SERVICE OF THE CROSS- COMPLAINT Any party, Within the time allowed to respond to a pleading may serve and file a notice of motion to strike the whole 0r any part thereof.” Cal. Code of Civ. Proc., § 435(b)(1). Also, the Court may strike pleadings 0r portions of pleadings “at any'time in its discretion.” Cal. Code of Civ. Proc., § 436; Sole -4- Plaintiff’s Motion to Strike untimely filed Cross-complaint LAW OFFICES OF JONATHAN D. WINTERS 2750 Bellflower Boulevard, Suite 101 Long Beach, California 90815-1143 +1 S62 497 0472 ©mN0301¥00NA NNNNNNNNN-‘A-3-3A-x-x-x-LA mflmm-th-‘OtomNOOI-th-KO Energy Co. v. Petrominerals Corp., (2005) 128 Cal.App.4th 187, 193; Lucas v. County of Los Angeles, (1996) 47 Ca1.App.4th 277, 284-285. Here, the Cross- Complaint was served by U.S. First Class Mail on November 26, 2019. 35 days thereafter is December 31, 2019. 5. THE CROSS- COMPLAINT WAS UNTIMELY FILED AFTER ANSWERING and WITHOUT LEAVE OF COURT “A defendant may file a cross-complaint at time 0f answering. Thereafter, it may only be done by permission of the court.” Nels E. Nelson, Inc. v. Tarman, (1958) 163 Ca1.App.2d 7 14, 730. Defendant; Bella Vista Apartments did not file their Cross-complaint at the time of answering, Which occurred in August 2019. “There is no doubt that the trial court, in its sound discretion, may grant a motion to strike a pleading because it was not timely filed. Amacorp Industrial Leasing Co., Inc. v. Robert C. Young Associates, Inc., (1965) 237 Cal.App.2"d 724, 729 (citing Buck v. Morrossis, (1952) 114 Cal. App. 2d 461, 464-465); also see The United States National Bank of San Diego, v. Bank ofAmerica National Trust And Savings Association, (1963) 214 Ca1.App.2d '74, 76. Because the Cross-complaint was not filed at the time Defendant Bella Vista Apartments answered, nor did Defendant seek leave of Court, the Cross-complaint is untimely and should be stricken. 6. DUPLICATIVE CLAIMS ALREADY ASSERTED AS AFFIRMATIVE DEFENSES ARE REDUNDANT AND SHOULD BE STRICKEN The Court may “[s]trike out any irrelevant, false, or improper matter inserted in any pleading.” Cal. Code of Civ. Proc., § 436(a). The Cross- complaint’s 3 causes of actions are redundant of the relief sought in Defendant’s 34 Affirmative Defenses, and therefore subject to a Motion to Strike. Triodyne, Inc v. Superior Court (Ridely and Company), (1966) 240 Ca1.App. 2d 536, 542. Claims that add nothing to the [Cross-] Complaint by way 0f fact or theory of recovery are improper. Shoemaker v. Myers, (1990) 52 Cal. 3d 1, 24; Award -5- Plaintiff’s Motion to Strike untimely filed Cross-complaint LAW OFFICES OF JONATHAN D. WINTERS 2750 Bellflower Boulevard, Suite 101 Long Beach, California 90815-1143 +1 562 497 0472 (OWNOIU'I-hOONA NNNNNNNNN-X-t-x-x-x-x-xA-xA mNOmAwNAOOmNOm-thAO Metals, Inc. v. Superior Court (Hernandez) (1991), 228 Cal.App.3d 1128, 1134. Defendant Bella Vista Apartments, has in essence, asserted the same claims of the Cross-complaint, as Affirmative Defenses in its Answer (Affirmative Defenses 24 and 27). As such, its asserted rights are protected Without the need to litigation the appropriateness or timeless of the Cross-complaint. Additionally, the equitable indemnity cause of action is not appropriate in this action. Indemnity seeks to transfer the entire loss imposed upon one tortfeasor t0 another who in justice and equity should bear it. Contribution distributes the loss equally among all tortfeasors, each bearing his pro rata share. Cal. Code Civ. Proc., §§ 875, 8'76; Cahill Bros., Inc. v. Clementina Co., (1962) 208 Cal. App. 2d 367, 376. However, the “right t0 setoff is not absolute, but may be restricted by judicial limitations” Jess v. Hermann, (1979) 26 Cal.3d 131, 142 - 143. As a general rule an implied right of indemnity does not exist among tortfeasors. Herrera v. Atkinson, (1964) 227 Cal.App.2d 69. “The reason stated for this rule is that the courts will not aid one tortfeasor against another because no one should be permitted to found [sic]a cause of action on his own wrong.” Id, at '74. Absent a claimed special relationship between the parties and the parties are merely joint tortfeasors, indemnity Will be disallowed. American Can Co. v. City & County of San Francisco, (1962) 202 Cal. App. 2d 520; Pierce v. Turner, (1962) 205 Cal. App. 2d 264. As such, the indemnity causes of actions should be stricken. 7. ALTERNATIVELY, THE CROSS-COMPLAINT SHOULD BE STRICKEN AS IT ARISES FROM MS. GHOLAMIRAD’S EXERCISE OF FREE SPEECH 0R PETITION RIGHTS Alternatively, the Cross-complaint should be stricken pursuant to Cal. Code of Ciu. Proc., § 425.16[4], because the Cross-complaint is a strategic lawsuit, filed to stifle Plaintiffs exercising her rights. Under the two-step process in -6- Plaintiff’s Motion t0 Strike untimely filed Cross-complaint LAW OFFICES OF JONATHAN D. WINTERS 2750 Bellflower Boulevard, Suite lOl Long Beach, California 9081 5-1 143 +1 562 497 0472 (OQNODUILOON-A NNNNNNNNNAAAAAAAAAA mNODU'l-th-AOCOWNOU'IACDNAO determining whether t0 grant an anti-SLAPP motion, the Court first decides whether the Cross-defendant has a prima facie threshold showing, that the acts, alleged in the Cross-complaint, were in furtherance of the Cross-defendant's constitutional rights of petition or free speech in connection With a public issue Equilon Enterprise, LLC v. Consumer Cause, Inc. (2002) 29 Cal 4th 53, 61. Upon such a showing, the burden then shifts to Cross-complainant to establish a ‘probability’ of prevailing on the claim by making a prima facie showing of facts that would, if proved, support a judgment in the plaintiff‘s favor. Premier Med. Mgnt. Systems, Inc. v. California Ins. Guar. Association (2006) 136 Ca1.App.4th 464, 476. The moving Cross-defendant’s burden is light: all that she needs to show is that the cause of action arises from an act in furtherance of her right of petition 0r free speech or other protected activity. Club Members for an Honest Election v. Sierra Club, (2008) 45 Cal. 4th 309. The Cross-complaint seeks indemnification, through Plaintiff paying for Defendant Bella Vista Apartments’ defense and reimburse of attorney fees / cost derived from BASSIL, EDLIN, HUIE & BLUM, LLP (Cross-comp1., 1HI26, 33 and 38). Since Defendant’s claim for indemnity arises from the same facts of the Complaint, the Cross-complaint arises from the conduct in furtherance 0f the litigation. Takhar v. People ex rel. Feather River Air Quality Management Dist., (290187) 2’7 Cal. 5th 15, 28; also see, Long Beach Unif. School Dist. v. Margaret Williams, LLC. (Dec. 19, 2019, B290069) _ Cal.4th _ (p. 4)(copy attached as Exhibit 3)(finding that Defendant’s counsel’s firm of Bassi, Edlin, Huie & Blum’s filing 0f a Cross-compliant arose from underlying litigation, Which is protected by the anti-SLAPP statue). Even if the Cross-complaint did does not arise from the underlying action, the Cross-complaint arises from protected activity of safeguarding tenant’s rights. It is protected activity as “conduct in furtherance of the exercise 0f the constitutional right of petition or the constitutional right 0f free speech in -7- Plaintiff’s Motion to Strike untimely filed Cross-complaint LAW OFFICES OF JONATHAN D. WINTERS 2750 Bellflower Boulevard, Suite 101 Long Beach, California 90815-1143 +1 562 497 0472 OmflamthA MNNNNNMNNAAAAAAA-s“ mNOO'I-hOON-‘OCOQNOO'IAOONAO connection with a public issue 0r an issue 0f public interest.” Cal. Code of Civ. Proc., § 425.16(e)(4); also see, Navellier v. Sletten, (2002) 29 Cal.4th 82, 92. Such requirement is satisfied if the [cross-] complaint “potentially impairs the right of free speech.” Beilenson v. Superior Court (1996) 44 Cal.App.4th 944, 950; see also, Baral v. Schnitt (2016) 1 Ca1.5th 3’76; Park v. Board of Trustees, (2017) 2 Cal.5th 1057. Plaintiff’s filing and prosecution of a lawsuit is a protective activity. Takhar v. People, ex rel. Feather River Air Quality Management Dist. (2018) 27 Cal.App.5th 15, 27-28. Consequently, Defendant Bella Vista Apartments’ Cross- complaint “potentially impairs the right of free speech.” Beilenson v. Superior Court, (1996) 44 Cal.App.4th 944, 950. The Courts have interpreted broadly speech which is of “public interest” regardless 0f whether or not it takes place in a traditional petitioning or public forum. Upon such a showing the [Cross-] Complaint will be stricken unless [Cross- complainant] can establish ‘a probability that the [cross-complainant] will prevail on the claim.’ Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12, 21. With the Cross-complaint devoid 0f specific facts, Cross-complainant’s allegations are tentative at best. Cross-defendant’s acts are described summarily, based on conclusions, rather than facts. As outlined above, the Cross-complaint was untimely filed. As such, it is an improper pleading, wherein there is no probability that Cross-complainant can prevail. Defendant Bella Vista Apartments further cannot prevail on its Cross- complaint’s claims, because the “Early Termination Option” and paragraph 43, are unenforceable as substantively (the unfairness of the contract’s terms) and procedurally (unfair fashion in Which the contract was imposed) unconscionable. To require a tenant t0 live in unhabitable conditions, for the duration of the Option, determinately affected the tenant’s health, is oppressive. “The -8- Plaintiff’s Motion to Strike untimely filed Cross-complaint LAW OFFICES OF JONATHAN D. WINTERS 2750 Bellflower Boulevard, Suite 101 Long Beach, California 90815-1143 +1 562 497 0472 (omflmm-hwk)‘ MNNNNNNNNAAAAAAAAAA mNOJU'I-hWN-‘OCOQVODOI-hOONAO overreaching unconscionability question is whether an agreement is imposed in such an unfair fashion and so unfair one-sided that it should not be enforced.” 0T0, L.L.C. v. Kho, (2019) 8 Cal. 5th 111, 123. The “Early Termination Option” allows landlord t0 act With impunity, leaving tenant no option but t0 endure inhabitable conditions 0r pay an extorted amount, to leave early. Additionally, the Cross-complaint explicitly seeks Plaintiff to fund Defendant Bella Vista Apartments’ own litigation AND impair Plaintiff’s pursuit of her litigation. (111] 26, 33 and 38). The claims specifically seek payment of costs of litigation and fees incurred solely of derived from BASSI, EDLIN, HUIE & BLUM, LLP. By seeking to have Plaintiff defend and pay Defendant Bella Vista Apartments’ defense costs and pay any judgment rendered against her by any judgment against Defendant, Defendant asserts the “paradigmatic example of a ‘head I win, tails you lose’ proposition [that] embodies a high degree of substantive unconscionability. Lennar Homes of California v. Stephens, (2014) 232 Cal. App. 4th 673, 693. Furthermore, unconscionability defenses have been recognized where the indemnitee “often have the superior bargaining power and may use this power unfairly to shift t0 another a disproportionate share of the financial consequent of its own legal fault.” Crawford v. Weather Shield Mfg, Inc. (2008) 44 Cal. 4th 514, 552. Here, Defendant Bella Vista Apartments refused to rectify mold causes, that it was put 0n notice at the time Plaintiff moved in. Rather than clean the apartment’s conditions that existed at the time of Plaintiffs move in and then exacerbated by the time, after Defendant was placed 0n notice of the conditions, Defendant requires a payment of nearly $5,000.00 before Plaintiff can move out, 0f an uninhabitable dwelling, when Defendant caused the conditions. Notwithstanding, the Cross-complaint, if enforced, would require Plaintiff to fund Defendant’s defense against the very litigation that Plaintiff brought against Defendant. The Cross-complaint not only arose from the underlying litigation, but is substantive unconscionable, subject to a Motion to Strike. Long -9- Plaintiff’s Motion to Strike untimely filed Cross-complaint LAW OFFICES OF JONATHAN D. WINTERS 2750 Bellflower Boulevard, Suite 101 Long Beach, California 90815-1143 +1 562 497 0472 (OQNOU‘IAOON-x NNNNNNNNNAAAAAAAAAA mem-fiwN-‘OCOmVGU‘l-wa-‘O Beach Unif. School Dist. v. Margaret Williams, LLC. (Dec. 19, 2019, B290069) _ Cal.4th _ (p. 4)(copy attached as Exhibit 3) 8. CONCLUSION Defendant Bella Vista Apartments answered on September 25, 2019 and without leave 0f Court, filed a Cross-complaint 2 months later, on November 26,2019. If the cross-complaint is not filed at the time of answering, it thereafter may only be done by permission of the Court. Douglas v. Superior Court (Weiner), (1968) 267 Cal. App. 2d 569, 576; citing: Nels E. Nelson, Inc. v. Tarman, (1958) 163 Cal. App. 2d 714, 730; Glogau v. Hagan, (1951) 107 Cal. App. 2d 313, 320; Gallo v. Boyle Mfg. Co., Inc., (1930) 30 Cal. App. 2d 653, 655- 656. Since the Court has not granted permission for Defendant to file a cross- complaint, it was not filed in conformity statutory deadlines and should be stricken. Stafford v. Ballinger, (1962) 199 Cal. App. 2d 289, 297. Therefore, Plaintiff respectfully requests that Court strike the Cross-complaint as untimely. Alternatively, if the Court permits the filing of the untimely Cross- complaint, it should then be stricken, as the causes of action are redundant 0f its 34 Affirmative Defenses and therefore, are improperly plead. Furthermore, the Cross-complaint should be stricken, as it concerns Plaintiffs free speech rights and Defendants cannot prevail on its breach of contract or indemnity causes of action, as indemnity is procedurally and substantively unconscionable. Dated: December 26, 2019 LAW OFFICE OF JONATHAN D. WINTERS /S/ R. Spelger R. Spelger, for Jonathan D. Winters, Attorney for Plaintiff, Maryam Gholamirad -1 0- Plaintiff’s Motion to Strike untimely filed Cross-complaint LAW OFFICES OF JONATHAN D. WINTERS 2750 Bellflower Boulevard, Suite 101 Long Beach, California 90815-1 143 +1 562 497 0472 Omflmmhwmé NNNNNNNNNAAA-L-LAA-t-tas mVOCfi-BCDN-‘OCDWNQO'ILCDN-‘O DECLARATION OF R. SPELGER I, R. Spelger, declare: 1. I am an attorney licensed to practice in the State of California. I am an employee of Jonathan D. Winter, attorney of Record for Plaintiff and Cross- defendant Maryam Gholamirad. I have personal, first-hand knowledge of the entire contents of this declaration and, if called upon to d0 so, could and would competently testify thereto. 2. The Complaint was filed 0n December 21, 2019. 3. Defendant Bella Vista Apartments answered on August 25, 2019, asserting 34 Affirmative Defenses. 4. Defendant filed / served the Cross-complaint on November 26, 2019, Which is 61 days after the filing of the Answer, incorporating causes of action that are already contained in its Affirmative Defenses. 5. Prior t0 filing this Motion, I attempted to meet and confer With Counsel for Defendant / Cross-complainant, Bella Vista Apartments, pursuant to Cal. Code of Civ. Proc., § 435.5(d)(4). Per the Defendant’s Answer, it is currently represented by Michael E. Gallagher, Attorney at Law, and Ms. Lisa M. Stevenson, Attorney at Law, from the firm 0f Bassi, Edlin, Huie & Blum, LLP. 6. On December 3, 2019, I counsel personally called and discussed with Ms. Lawson @ +1 415 397 9006 at Bassi, Edlin, Huie & Blum, LLP, before filing a Motion t0 Strike untimely filed Answer. The phone call was followed up by a letter, specifically outlining the supporting law. Attached as Exhibit 1, is a true and correct copy of that letter. 7. Defendant’s counsel did not reply until 12 December 2019, asserting basically that the Cross-compliant was untimely, but would not withdraw the it. I followed up With another letter, reiterating the case and statutory law. A true and correct copy of that letter is attached as Exhibit 2. -1 1- Plaintiff‘s Motion to Strike untimely filed Cross-complaint LAW OFFICES OF JONATHAN D. WINTERS 2750 Bellflower Boulevard, Suite 101 Long Beach, California 90815-1143 +1 562 497 0472 (omflmm-bwlo‘ NNNNNNNNN-AAAAAAAAA-x mem-th-‘OtomNOU'I-fiwN-‘O 8. Having received no return call or reply from my last 12 December 2019 letter, and with Defendant / Cross-complainant refusing to Withdraw the Cross-complaint, no alternative exists but t0 file this Motion. 9. On 30 December 2019, at around 1525, Iphone Ms. Qwalyne Lawson at Bassi, Edlin, Huie & Blum, LLP, at +1 415 397 9006. Per the Local Rule, I conferred as to dates for this Motion. 10. Attached as Exhibit 3, is a true and correct copy 0f the California Appeals Court, Second Appellate District, certified for publication (but not yet appearing in the Report) 0f Long Beach Unif. School Dist. v. Margaret Williams, LLC. (Dec. 19, 2019, B290069) _ Cal.4th _. I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct. Executed on this 30th day of December 2019, at Long Beach, California. /S/ R. Spelger Robert Spelger -12- Plaintiff’s Motion to Strike untimely filed Cross-complaint Gholamirad, Maryam, v. Bella Vista Apartments Case Number: 18CV340085 Attachment to Plaintiff Maryam Gholamirad’s Motion to Strike Defendant Bella Vista Apartment’s Answer: Exhibit 1 JONATHAN DANIEL WINTERS I I ' TEL(562) 497-04722750 BELLF’LOWER B LEV E-MAIL:Jw!nbers@JMnterslaw.com SUITE ‘01 0U ARD FAX (562)497-0474 LONG BEACH. CALIFORNIA 90815 3 December 2019 Bx electronic and U.S. First Qalls mail: Ms. Qwalyne Lawson, Attorney at Law Ms. Lisa M. Stevenson. Attorney at Law Mr. Michael E, Gallagher, Jr., Attorney at. Law BASSI EDLIN HUIE &BLUM 500 Washington Street Suite 700 San Francisco, California 94111 qlawson@behblaw.com lstevenson@behblaw.com mgallagher@behblaw.com RE: Case Name: Gholamirad, Maryam, v. Bella Vista Apartments Case Number: 18CV340085 Dear Counsel: This letter is a follow up to our good faith “meet. and confer,” phone conversation, this afternoon, regarding Defendant Bella Vista Apartments’ recently served Cross-complaint. Since the cross- complaint was filed against a party to the lawsuit, Defendant’s Cross-complaint is untimely, as it should have been served I filed at or before the filing of Defendant’s Answer. Cal. Ciu. Proc. Code § 435(b)(1). Defendant filed its Answer on 25 September 2019. However, the Cross-complaint was served by mail. on 26 November 2019. If the cross-complaint is not filed at the time of answering, it thereafter may only be done by permission of the Court. Douglas v. Superior Court (Weiner), (1968) 267 Cal. App. 2d 569, 576; citing: Nels E. Nelson, Inc. v. Tarman, (1958) 163 Cal. App. 2d 714, 730; Glogau v. Hagan, (1951) 107 Cal. App. 2d 313, 320; Gallo v. Boyle Mfg. Co., Inc., (1930) 30 Cal. App. 2d 653. 655-656. Since the Court has not granted permission for Defendant to file a cross-complaint, it was not filed in conformity statutory deadlines and should be stricken. Stafford v. Ballinger, (1962) 199 Cal. App. 2d 289, 297. Therefore, Plaintiff requests that Defendant withdraw the Cross-complaint. If not. Plaintiff will request the Court to strike the Cross-complaint. Additionally, the equitable indemnity cause of action is not appropriate in this action. Indemnity seeks to transfer the entire loss imposed upon one tortfeasor to another who in justice and equity should bear it. Contribution distributes the loss equally among all tortfeasors, each bearing his pro rata share. Cal. Code Civ. Proc., §§ 875, 876; Cahill Bros., Inc. v. Clementina Co., (1962) 208 Cal. App. 2d 367, 376. However, the “right to setoff is not absolute, but may be restricted by judicial limitations" Jess u. Hermann, (1979) 26 Cal.3d 131. 142 - 143. As a general rule an implied right of indemnity does not. exist among tortfeasors. Herrera u. Atkinson. (1964) 227 Cal.App.2d 69. ”The reason stated for this rule is that the courts will not aid one tortfeasor against another because no one should be permitted to found [sicla cause of action on his own wrong.” Id, 74. Absent a claimed special relationship between the parties and the parties 3 Deflrmimz 201‘: Mi Qwalym: Laww.“ m:nmv, .a'. um L15 Law M waemun I‘m Mt Mtcmvs: E‘ Gufiag'uu, i9 BASSs SOLH HUEE amur.‘ 3: page Z p. Cusc- Namo, Ghoznmnad 5!."er r 5pm., 23,54 Aétmtfmyng Case Nurnbw HCVSMIJE'J are merely joint, t(n'Lfcasot's. indemnity will he disallowed. .-1mcricun Can Co. v. City & Comuy of Sun Frcmcism. {12)021 202 (Ell. ADD. 2d 520: Pivrm' 1r. 'l'urm'r. (1962) 205 (ful. ADD. 2d 26-71. Nor can 1’)cl'cncl;mt seek equitable indunmily nr cnntribuxitm i'm- dunmgus: caused by the breach of its own contract. Stop Loss Ins. Brokers, Inc. v. Brown (Q ’Iblund 51"la'dr7m'tl Group (2006‘) 1413 Cal.Appleh 1036, 10:1 l- 10-14. Additionally. .lf)eiimd:ml mmnm sue I'nr crquimlflc- indemnifi "anion based 0n the theory that: Plaintiff negligently perlbrmcd her contract. ILL. 10412-1043; BI‘UC :‘chltitccrs I’lamm-s, Inc. (r. ["orcum I’A'Iuc/a’)’ (."(msIruc-Ihm. Inc. (2004) l i?) (‘z\l..~'\PP"”h 8‘18- Additiunnll}: "lul pursun may nut ordinarily n-(fuvm' m lm'l Fur tho: breach of duties that merely restate cumrm'luul uhllgmmns." Aux z; .S'upvrim' (Tour: (H'ilz’irzm L_mn (701111).) (2000) 2‘1 (Talslth (527 (H3. "(‘(mduct amounting Io a breach ul'mmmmrl hmzonws wrtious only when it also violates a duty independent of the contract arising from principles. of Lon Izm'. [Citation] “"An omission t0 perform a contract obligatitm is never a Lon. unless that: umission is also :111 omission Ufa legal duty.“ |Citation.J" Erh'.('lz. U. flvlcrn‘ezes (1999) 2.] (.“:.11.-1Lh 543. '35]. Since indemnity lies only in tort. the cause ul'uctinn is prohibited by the common law economic loss rule‘ which provides that ”appreciable. nunspoculntive. present injury is an essential element Ufa tort cause ul‘actiun." Ans. supra. 2.4! (Yul. {llh at (3M5 (without nmnil'c-st damage. cross-complainuntr did noL Imvo negligence claim). Since Plaintiff's (hummus haw,- nul been determined. Defendant's damages arc speculmi\-'e. Finally, James from our office has bow trying m secure (latos for am curly mediation. 'l‘he previously pmvidod dates of mediutm"s schedule 21m no longer n 'ailable. except. for 20 December 2019. 1f Defendant. is still amemahlo Lu nwdiuticm. please 1m us know immediately 0r tho (late will be lost. Please lot u.~ know. by [“1'1day. if I )ui'vndum will Vuluzmu'ily withdraw Détli-ndzmt's (Iross-umm)l:1int. Also. please call us soon as pussiblc. if [)ul'onclnm will mediate thc case on 20 December 2019. ll‘you have any udt'litionnl questions 01' cum-orns. regarding; any aspect 03' the case. please call or email. Thank you. Cordially, L.A\¥g()l“l“l(f‘l§ ()l’ JONA'I‘HAX l). WIN'I‘ICRS O_v 1‘61' l) a1 4H; 1‘ .m ,l n hulam n'nd \ I Gholamirad, Maryam, v. Bella Vista Apartments Case Number: 18CV340085 Attachment to Plaintiff Maryam Gholamirad’s Motion to Strike Defendant Bella Vista Apartment’s Answer: Exhibit 2 JONATHAN DANIEL WINTERS ATTORNEY AT LAW TEL (562) 497-04722750 B LLFLOWER LEV E-MA!L:Mnbers@Mnterslaw.com E SUITE ‘O?OU ARD FAX (562)497-0474 LONG BEACH. CALIFORNIA 90815 12 December 2019 Bx electronic gnd U.S. First Calls mail: Ms. Qwalyne Lawson, Attorney at Law Ms. Lisa M. Stevenson, Attorney at Law Mr. Michael E, Gallagher, Jr., Attorney at Law BASSI EDLIN HUIE &BLUM 500 Washington Street Suite 700 San Francisco, California 94111 qlawson@behblaw.com lstevenson@behblaw.com mgallagher@behblaw.com RE: Case Name: Gholamirad, Maryam, v. Bella Vista Apartments Case Number: 180V340085 Dear Counsel: This letter is a follow up to our good faith “meet and confer," phone conversation on 3 December 2019 and your letter dated 6 December 2019. Your arguments are disingenuous, by now claiming to be the victim of your own untimely filed Cross-complaint. Since you refuse to voluntarily withdraw the Cross-complaint. Plaintiff should not be faulted for enforcing the California Code of Civil Procedure requirements. While Courts may routinely grant leave to file a Cross-complaint, such does not automatically follow in this case. As explained in the last letter, Plaintiff will argue against the inappropriateness of indemnity as a cross-claim, in the context of this case. Notwithstanding Defendant Bella Vista Apartments. has in essence. asserted the same claims of the Cross-complaint, as Affirmative Defenses in its Answer (Affirmative Defenses 24 and 27). As such, its asserted rights are protected without the need to litigation the appropriateness or timeless of the Cross-complaint. Additionally, since Defendant Bella Vista Apartments is duplicating it Affirmative Defenses as an additional Cross-complaint, the Cross-complaint is imprOper. Claims that add nothing to the [Cross-] Complaint by way of fact or theory of recovery are improper. Shoemaker v. Myers, (1990) 52 Cal. 3d 1, 24; Award Metals, Inc. u. Superior Court (Hernandez) (1991), 228 Cal.App.3d 1128, 1134. Furthermore. thank you for the clarification, regarding the filing and / or the purpose of the Cross- complaint. You contend that Defendant Bella Vista Apartments' Cross-Complaint is based on Plaintiff’s tort claim of the Complaint. As such. Cross complainant’s claims arose solely from the underlying action, seeking indemnity for all potential liability in the underlying action. Absent the underlying action, Defendant Belia Vista Apartments’ Cross-complaint for indemnity claims have no basis. The Cross-complaint seeks indemnification. through Plaintiff paying for Defendant. Bella Vista Apartments‘ defense and reimburse of attorney fees/ cost, derived from BASSIL, EDLIN, HUIE & 12 December 2019 Ms. Qwalyne Lawson Attorney at taw M: Lisa M. Stevenson. Attomey ax Law Mr. Michael E. Gallagher. J" Anomey at Law BASSI EDLIN HUIE &8LUM Pas: 2 Case Name: Gholamirad Mayan: v. aella Vista Apartment: Case Numben 18CV340085 BLUM, LLP. Since Defendant’s claim for indemnity arises from the same facts of the Complaint, the Cross-complaint arises from the conduct in furtherance of the litigation. Takhar v. People ex rel. Feather River Air Quality Management Dist., (290187) 27 Cal. 5th 15, 28. Even if the Cross-complaint did does not arise from the underlying action, the Cross-complaint arises from protected activity of safeguarding tenant’s rights. It also is protected activity 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." Cal. Code of Civ. Proc., § 425.16(e)(4); also see, Navellier u. Sletten. (2002) 29 Cal.4“' 82, 92. Such requirement is satisfied if the [cross-l complaint “potentially impairs the right of free speech." Beilenson u. Superior Court (1996) 44 Cal.App.4th 944, 950; see also, Baral v. Schnitt (2016) l Cal.5th 376; Park v. Board of Trustees, (2017) 2 Cal.5th 1057. Furthermore, the filing and prosecution of lawsuits is a protective activity. Takhar v. People, ex rel. Feather River Air Quality Management Dist. (2018) 27 Cal.App.5‘h 15, 27-28. Consequently, Defendant Bella Vista Apartments’ Cross-complaint should be stricken as it “potentially impairs the right of free speech." Beilenson u. Superior Court, (1996) 44 Cal.App.4th 944, 950. The Courts have interpreted broadly speech which is of “public interest" regardless of whether or not it takes place in a traditional petitioning or public forum. Upon such a showing the [Cross-] Complaint will be stricken unless [Cross-complainant] can establish ‘a probability that the [cross-complainant] will prevail on the claim.’ Simpson Strong-Tie Co., Inc. v. Gore (2010) 49 Cal.4th 12. 21. With the Cross-complaint devoid of specific facts, Cross- complainant's allegations are tentative at best. Cross-defendant’s acts are described summarily, based on conclusions. rather than facts. Defendant Bella Vista Apartments further cannot prevail on its Cross-complaint's claims, because the “Early Termination Option” and paragraph 43. are unenforceable as substantively (the unfairness of the contract’s terms) and procedurally (unfair fashion in which the contract was imposed) unconscionable. To require a tenant to live in unhabitable conditions, for the duration of the Option. determinately affected the tenant's health, is Oppressive. “The overreaching unconscionability question is whether an agreement is imposed in such an unfair fashion and so unfair one-sided that it should not be enforced." 0T0, L.L.C. u. Kho, (2019) 8 Cal. 5th 111, 123. The “Early Termination Option" allows landlord to act with impunity. leaving tenant no option but to endure inhabitable conditions or pay an extorted amount, to leave early. Additionally, the Cross-complaint explicitly seeks Plaintiff to fund Defendant Bella Vista Apartments' own litigation AND impair Plaintiffs pursuit of her litigation. (THI 26, 33 and 38). The claims specifically seeks payment of costs of litigation and fees incurred solely of derived from BASSI, EDLIN. HUIE & BLUM. LLP. By seeking to have Plaintiff defend and pay Defendant Bella Vista Apartments’ defense costs and pay any judgment rendered against her by any judgment against Defendant, Defendant asserts the “paradigmatic example of a ‘head I win, tails you lose’ proposition [that] embodies a high degree of substantive unconscionabilicy. Lennar Homes of California v. Stephens, (2014) 232 Cal.AppA‘h 673, 693. Furthermore, unconscionability defenses have been recognized where the indemnitee "often have the superior bargaining power and may use this power unfairly to shift to another a disproportionate share of the financial consequent of its 12 Decembet 2019 Ms. Qwaiynu lawsmp Mmmvy A! Law Ms Lisa M. Stevenson, iuwnwy Jr Law Mr Mafia?! E. Gallagher. Jr, Azzom'c;.~ a: Lav; BASS! EDUN 'réUlE E(BLUM gs p49" 5 Cdsr Narm- CJ‘J.‘ N.H'fin ' own legal fault." (,‘mu'fbrd r. H'muiu'r .s'lzt‘clr/ Mfg. 1m: (2008) +1 Cal. ‘1‘“ 51-}. 552. Here, Defendant Bella Vista .-‘\purmnmt,s refused u) rectify mold causes. that it was put on notice at the time Plainm'f moved in. Rather than clean the apzn'mwnt's conditions that. existed at the time of Plaintiffs move m and than exzum'lnméd by the.- time. after Defendant wz. s placed on notice 0f the conditions. Defendum requires a payment 0f nearly 35.00000 before Plaintiff can move out, ofan uninhabitable dwelling. when Defendant caused the conditiuns. Consequently. if Defendant Bella Yum .’\partmcms docs not withdraw the Cross-complaint, Plaintiff is left with no z-xhornativc but w file Motions tu Strike rho ('ross-complaim. Please re-consideryour position. as tho cusc could very well ht;- mutcd into prolonged litigation. Previously. in conversations with Mr. \-\'it')lm-s. your office proposed a plan 0f Iimited discovery, wherein tho parties: would use vzu'ly .-\|l<~rn:rulive Dispute Rusnlut‘itm resources to try to settle the case. without incurring needless :md :ulclitmnul {imv :md custs. l'10\\'cver. since that Limo. Defendum has prupoundcd zm cxm'lwimt‘ud zmmunt “f(liscuvory for u rclzzltivcly simple case. has not coopormmi in chonsing :1 mediation dutv zmd filed :m :ulclilinnnl late Answer, that clearly taunts a litigatiw ngspmlsu. Please let us know. by m) lntm' than Mnndny. 1(5 December 2019, “Defendant will voluntarily withdraw Defendant's Cross-cmnpluim. H'yuu have :my addiLional questions 0r concerns, regarding any aspect 0f the cusp. please ~11” m' email. 'l‘hank you :md the very best to your, your firm and family. fur 21 wonderful Holiday Season. r" Cm'clizgi‘ly, LAW fLH’FICE 0F JUNA'I‘I'MN l). WINTERS Aim \ . R. Spci glen For Jonah] am D. Winters. ‘ , . . .. Attorncv fm' Plamtfll. Marya m: (Hmlam i rml Gholamirad, Maryam, v. Bella Vista Apartments Case Number: 18CV340085 Attachment to Plaintiff Maryam Gholamirad’s Motion t0 Strike Defendant Bella Vista Apartment’s Answer: Exhibit 3 Filed 12/9/1 9 CERTIFIED FOR PUBLICATION IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA SECOND APPELLATE DISTRICT DIVISION FOUR LONG BEACH UNIFIED SCHOOL DISTRICT. Cross-complainant and . Appellant, V. MARGARET WILLIAMS, LLC, Cross-defendant and Respondent. B290069 (Los Angeles County Super. Ct. N0. NC060’708) APPEAL from orders of the Superior Court of Los Angeles County, Dudley W. Gray, II, Judge. Affirmed. Christen Hsu Sipes, Scott J. Sterling and Joshua D. Watts; Bassi, Edlin, Huie & Blum, Fred M. Blum, Michael E. Gallagher, Tiffany Wells-Fox, Lisa Stevenson, J. Kyle Gaines and Barry D. Bryan for Cross-complainant and Appellant. Schonbrun, Seplow, Harris & Hoffman and Wilmer J. Harris for Cross-defendant and Respondent. INTRODUCTION Long Beach Unified School District (the District) appeals from the dismissal of its cross-complaint under Code 0f Civil Procedure section 425. 16, commonly known as the anti-SLAPP statute. (See Wilson v. Cable News Network, Inc. (2019) 7 Ca1.5th 871, 880 (Wilson).) In 2006, the District entered into a contract with respondent Margaret Williams, LLC (Williams LLC), Which had been formed by Margaret Williams that year for the purpose of working for the District. According to Williams, the District required her t0 form a business entity to enter the contract, Which was a standardized form agreement With terms she could not negotiate. For nearly a decade, Williams worked full-time for the District, through her LLC, on construction management and environmental compliance, including work under the District’s agreement With a state agency to clean up material at a school construction site contaminated With arsenic. After a dispute arose between Williams and the District about alleged Violations of the cleanup agreement, Williams was diagnosed with arsenic poisoning, and the District terminated Williams LLC’s then-current contract, Which included an indemnity provision.1 Williams and her LLC filed a lawsuit against the District (the Underlying Action). Each plaintiff brought claims alleging the termination was retaliatory, and Williams brought claims alleging the District unlawfully caused her arsenic poisoning. The District invoked the indemnity provision to demand that Williams LLC defend and indemnify the District in the Underlying Action. After Williams LLC refused to defend the District against the LLC’s own and Williams’s claims, the District filed a cross- complaint alleging, inter alia, that this refusal breached the contract. Williams LLC filed an anti-SLAPP motion t0 strike the cross-complaint, arguing, inter alia, that the District could not prevail 0n its cross-claims because the indemnity provision is unconscionable. The trial court granted the motion and struck the District’s cross-complaint. 1 . . ‘ In an 1ndemn1ty contract, ‘one engages to save another from a legal consequence of the conduct of one 0f the parties, or of some other person.” (Civ. Code, § 2772; see also Rossmoor Sanitation, Inc. v. Pylon, Inc. (1975) 13 Ca1.3d 622, 628 [“Indemnity may be defined as the obligation resting 0n one party to make good a loss or damage another party has incurred”].) Unless an indemnity contract provides otherwise, “[t]he person indemnifying is bound, on request of the person indemnified, to defend actions or proceedings brought against the latter in respect to the matters embraced by the indemnity . . . .” (Civ. Code, § 2778, subd. (4).) On appeal, the District contends the trial court erred in striking its cross-complaint under the anti-SLAPP statute. In the alternative, it contends the trial court erred in denying the District leave to include nine additional pages in its brief Opposing the anti-SLAPP motion. Finding n0 error, we affirm. If enforced as the District requested, the indemnity provision would require Williams LLC t0 fund the District’s defense against the very litigation the LLC and Williams brought against the District. The District’s cross-complaint therefore arose from that litigation or the LLC’s refusal to sabotage it -- each 0f Which is protected by the anti-SLAPP statute. Moreover, the District sought to require the LLC not only to fund the District’s defense, but also to reimburse the District for any award secured by Williams or the LLC falling within the provision’s broad scope. Such a bar to meaningful recovery embodies a high degree of substantive unconscionability, sufficient -- when combined with the procedural unconscionability shown through Williams LLC’s unrebutted evidence of adhesion, oppression, and surprise -- t0 establish that the indemnity provision is unconscionable. We limit the provision t0 avoid an unconscionable result, rendering it inapplicable to claims brought by Williams LLC and claims brought by Williams. As a result of this limitation, the District fails to show error in the dismissal of the District’s breach of contract and declaratory relief claims. The District further fails t0 show error in the dismissal 0f its other cross-claims, 0r in the denial of its application for leave to file an oversized opposition brief. PROCEEDINGS BELOW A. Williams LLC’s History with the District Williams formed Williams LLC in 2006. The same year, Williams LLC entered into a contract to work for the District, as a consultant, on construction management and environmental compliance. In a declaration submitted by her LLC in support 0f its anti-SLAPP motion, Williams stated that she formed her LLC as a requirement for working for the District: “In order to work With the District, I was directed by the Executive Facilities Planning Manager t0 form a corporation or partnership. This was the only way I could work for the District: I could not enter into a contract with the District as an individual.” Further, the District presented the contract “on a ‘you either sign or you don’t work’ basis,” and Williams was “unable to negotiate the terms.” The terms were standardized; the contract was “a standard form contract given to all contractors before they were allowed to perform any work for the District.” The District has not submitted evidence that the terms of the contract were negotiable. Nor has it submitted evidence that Williams LLC was formed for any purpose other than to meet the District’s requirements for Williams t0 work for it. Williams worked full-time for the District, through her LLC, for nearly a decade, during Which she signed a new contract between her LLC and the District in 2013. Williams’s duties included overseeing environmental compliance at a construction site for a school, the Newcomb Academy (Academy). According t0 her declaration, Pinner Construction (Pinner) -- the District’s general contractor at the Academy site -- illegally brought contaminated material onto the site in October 2013. Williams directed Linik Corporation (Linik) -- the District’s construction supervisor at the site -- to remove the contaminated material, but Linik ignored her. Through the following year, Williams attempted to resolve the problem by discussing it with two District administrators, one of whom directed Williams t0 oversee the site’s cleanup. In January 2015, the District and the California Department 0f Toxic Substances Control (DTSC) entered into a cleanup agreement requiring the District t0 remove potentially hazardous material at the site. The District designated Williams as its project manager for the cleanup agreement. Later that year, the District gave control over the Academy site project (and all other projects affiliated with Linik) to District employee Les Leahy and consultant Jerry Vincent. According to Williams, Leahy and Vincent deliberately interfered with her efforts to prevent continued mishandling 0f the contaminated material. As a result, while she was at the site between June 1 and 4, 2015, she came into contact with arsenic. In a declaration of his own, Leahy characterized the dispute between Williams and Pinner as a “clash of personalities” that impaired communication. On June 3, 2015, concerned with the “aggressive manner” in Which Williams communicated her concerns, he told Williams t0 direct all communications to Pinner through himself or Vincent. The next day (June 4), Williams cancelled a meeting with Vincent and announced that she would n0 longer work on projects associated with Pinner or Linik. She also sent a letter to District administrators, alleging that Leahy had “completely neutralized” her on the Newcomb Academy project, that her access to her District email account and a facilities server had been disabled, and that Leahy had refused to explain these events. She interpreted these actions as constructive termination, explaining, “[M]y ability to do my job has been completely eliminated by these actions, and the ability t0 run my business impacted. I cannot even contact my own company staff Without getting on the server and accessing my emails. I have worked in the District for almost 10 years and everything is on that computer, as it would be if I were a staff member in the District, including important records for my company.” Further alleging that the District had rebuffed her repeated attempts to discuss these matters, she stated that she would not allow Williams LLC employees to return to work until the District clarified its recent actions. She and Williams LLC’S employees did not return t0 work. Three days later (June 7), Williams sent a report to DTSC, asking for help in ensuring the District’s compliance with the cleanup agreement and preventing danger at the Academy site. Two days later (June 9), the District sent Williams LLC a letter terminating its contract based on its employees’ failure to return to work. Soon thereafter (around June 12), Williams was rushed t0 a hospital due to sudden illness and diagnosed With arsenic poisoning, Which she claims has caused her permanent neurological damage and chronic pain. According to Williams, she had worked full-time on District projects in the near-decade between her formation 0f her LLC and the District’s termination 0f its contract. As of December 2017, When she executed her declaration, her LLC had been a party to only one other contract -- a contract With another school district for an “immaterial” profit. Her LLC did not plan to form any other contracts. In his declaration, Leahy alleged -- on information and belief -- that Williams “and/or” her LLC had worked for two other school districts before working for the District. The District submitted no other evidence of Williams or her LLC working for anyone but the District. B. The Underlying Action and Tenders of Defense Williams and her LLC brought the Underlying Action.2 In their operative complaint, Williams and her LLC jointly asserted a cause 0f action for retaliation under Government 2 Williams and her LLC also filed a related case against Pinner, Linik, and a subcontractor, which has been consolidated with the case against the District. Code section 12653, alleging the District terminated Williams LLC’s contract in retaliation for the efforts by Williams and her LLC to stop Pinner and Linik from Violating environmental requirements. Williams LLC separately brought causes of action for breach 0f contract and breach of the covenant of good faith and fair dealing -- both similarly premised on the District’s termination of the contract. Williams separately brought causes of action for negligence (premises liability), negligent infliction of emotional distress, and intentional infliction of emotional distress -- all premised on the District’s wrongfully causing Williams’s arsenic poisoning. Williams LLC’s 2013 contract with the District included an indemnity provision reading, in relevant part, as follows: “1. T0 the fullest extent permitted by law, [Williams LLC] agrees to indemnify, and hold DISTRICT entirely harmless from all liability arising out of: “[11] . - - [1]] “b. General Liabilitv: Liability for damages for (1) death 0r bodily injury to a person; (2) injury to, loss or theft of property; (3) any failure or alleged failure to comply With any provision of law or (4) any other loss, damage 0r expense arising under either (1), (2), or (3) above, sustained by [Williams LLC] or the DISTRICT, 0r any person, firm or corporation employed by [Williams LLC] or the DISTRICT upon 0r in connection with the PROJECT, except for liability resulting from the sole or active negligence, or willful misconduct 0f the DISTRICT, its officers, employees, agents or independent consultants who are directly employed by the DISTRICT;[3] “[11] o . - [Tl] “d. [Williams LLC], at its own expense, cost, and risk, shall defend any and all claims, actions, suits, or other proceedings, arising out of Article VIII, Paragraphs 1 (a) and (b) above, that may be brought 0r instituted against the DISTRICT, its officers, agents 0r employees, on any such Claim or liability, and shall pay or satisfy any judgment that may be rendered against the DISTRICT, its officers, agents 0r employees in any action, suit or other proceedings as a result thereof.” The contract separately provided, “If either PARTY [viz., the District or Williams LLC] becomes involved in litigation arising out of this AGREEMENT or the performance thereof, each PARTY shall bear its own 3 The contract defined the “PROJECT” as “project management and planning consulting services for the Facilities Development and Planning Branch . . . .” 10 litigation costs and expenses, including reasonable attorney’s fees.” The District sent Williams LLC a letter quoting the indemnity provision and demanding that it “uphold its obligations to defend and indemnify the District with regard to all . . . liability of any kind arising out of Plaintiffs’ lawsuit . . . .” In a similar letter sent after Williams and her LLC amended their complaint, the District again demanded that Williams LLC “uphold its obligations to defend (and ultimately indemnify) the District With regard to all . . . liability 0f any kind arising out 0f Plaintiffs’ lawsuit . . . .” Williams LLC did not respond to these tenders of defense. Its counsel informed the District’s counsel, during proceedings in the Underlying Action, that Williams LLC would not be defending the District. C. The Cross-Complaint and Anti-SLAPP Motion The District filed a cross-complaint against Williams LLC. It asserted causes of action for: (1) breach of contract, alleging Williams LLC breached the 2013 contract by failing t0 accept the District’s tenders of defense and indemnity; (2) declaratory relief, seeking declarations that Williams LLC was required, under the contract 0r otherwise, to defend the District against the claims in the Underlying Action and t0 indemnify the District for any liability resulting “from any and all claims, damages, and losses at issue in [the] Action”; (3) equitable indemnity, seeking to hold Williams LLC liable for the District’s costs of defense and any liability imposed 11 on the District “as a result of any recovery by any party” in the action; and (4) “apportionment of fault,” seeking to limit the District’s liability, if any, 0n the ground that Williams LLC itself had been negligent. Williams LLC filed an anti-SLAPP motion, asking the trial court t0 strike the District’s cross-complaint in its entirety. It argued that the District’s claims arose from protected activity, viz., the Underlying Action. It further argued that requiring Williams LLC to fund the District’s defense would impair its ability to pursue its claims, and that the District’s requested relief would have the effect 0f “stifling [Williams LLC’s] right to petition by pricing it out 0f the litigation market . . . .” Finally, it argued that the District had not shown a reasonable probability of prevailing 0n its cross-claims because: (1) the claims in the Underlying Action fell Within the indemnity provision’s exception for liability resulting from sole or active negligence or willful misconduct; (2) the indemnity provision would be unconscionable if applied in the manner the District sought; and (3) if applied in that manner, the provision would be an invalid exculpatory clause affecting the public interest. The District opposed the motion (after the court denied the District’s application for leave t0 include an additional nine pages in its opposition brief). It argued that its cross- claims did not arise from the Underlying Action, but instead from Williams LLC’s refusal to defend and indemnify the District. It further argued that the anti-SLAPP statute did not protect this refusal. Finally, it argued that it had shown 12 a probability of prevailing on its cross-claims because: (1) the indemnity provision potentially covered any liability that might be imposed on the claims in the Underlying Action; and (2) the indemnity provision was enforceable. At the hearing on the motion, the court announced its understanding that the District’s cross-complaint sought indemnity for all potential liability in the Underlying Action, stating, “[I]f I read it correctly it essentially says regardless of how plaintiff prevails or fails to prevail on the main complaint, that no monies will be paid because she has agreed to indemnify everyone in this case.” The District’s counsel characterized the cross-complaint differently (in a manner contrary to its language), asserting that the cross- claims sought defense and indemnity only With respect to Williams’s claims against the District, not her LLC’s: “This case is no different than any construction contractor dispute . . . Where the owner . . . contracts With a contractor . . . t0 indemnify it against claims that are brought by [the contractor’s] employees, in this case Margaret Williams. . . . What’s important is that the District . . . [is] seeking indemnity and it’s seeking a defense only With regard t0 the claims brought by the employee of the contractor that the District contracted with.“ He argued the District’s cross- 4 The District’s counsel repeated this mischaracterization of the cross-complaint twice more, asserting, “[O]ur cross-complaint seeks indemnity for Ms. Williams’ personal injury claims and her (Fn. is continued on the next page.) 13 claims arose from Williams LLC’s “refusal to accept the tender of defense and indemnity,” which was not protected because “that is a contractual dispute that’s not in support of their petition or [speech] rights.” He further argued the District had demonstrated a probability of prevailing by showing that the indemnity provision potentially covered Williams’s claims. The court granted the motion, announcing (Without elaboration) its findings that the cross- complaint arose from protected activity and that the District had failed to demonstrate a probability of prevailing. The District timely appealed from the order granting the anti-SLAPP motion. It also appealed from the order denying its application to include nine additional pages in its opposition brief. DISCUSSION The District contends the trial court erred by striking the District’s cross-complaint under the anti-SLAPP statute. We review de novo a trial court’s decision on an anti-SLAPP motion. (Monster Energy Co. U. Schechter (2019) 7 Cal.5th 781, 788.) Our Supreme Court has summarized the two-step analysis required by the anti-SLAPP statute as follows: “At the first step, the moving defendant bears the burden of identifying all allegations 0f protected activity, and the claims for relief supported by them. . . . If the court retaliation claim. It doesn’t have anything to d0 with [Williams LLC’s] breach of contract claim.” 14 determines that relief is sought based 0n allegations arising from activity protected by the statute, the second step is reached. There, the burden shifts to the plaintiff to demonstrate that each challenged claim based on protected activity is legally sufficient and factually substantiated. . . . If [the plaintiff fails to satisfy this burden], the claim is stricken.” (Baral v. Schnitt (2016) 1 Ca1.5th 376, 396 (Baral).) A. The District’s Cross-Claims Arose from Protected Activity “At the first step of the [anti-SLAPP] analysis, the defendant must make two related showings. Comparing its statements and conduct against the statute, it must demonstrate activity qualifying for protection. [Citation] And comparing that protected activity against the complaint, it must also demonstrate that the activity supplies one 0r more elements of a plaintiff’s claims.” (Wilson, supra, 7 Cal.5th at p. 887.) Protected activity includes the filing and prosecution 0f lawsuits. (Takhar v. People ex rel. Feather River Air Quality Management Dist. (2018) 2’7 Ca1.App.5th 15, 27-28 (Takhar).) It further includes “conduct in furtherance of the exercise 0f the constitutional right of petition or the constitutional right of free speech in connection with a public issue 0r an issue 0f public interest.” (Code Civ. Proc., § 425.16, subd. (e)(4).) We agree with Williams LLC that the District’s cross- claims arose from the Underlying Action, Which is protected activity. We find Lennar Homes of California, Inc. v. Stephens (2014) 232 Cal.App.4th 673 (Lennar Homes) persuasive. There, three homebuyers (including a husband and wife) bought homes from a developer, executing purchase agreements that required the homebuyers to indemnify and defend the developer from any costs and liabilities arising out of the homebuyers’ own claims for violation 0f disclosure requirements. (Id. at pp. 677-678.) Two of the homebuyers (but not the wife) brought nondisclosure claims against the developer in a federal class action, Which was dismissed without any finding of liability. (Id. at p. 678.) The developer then brought a contractual indemnity suit against all three homebuyers, seeking to recover its defense costs incurred in the federal action. (Ibid.) The homebuyers filed an anti-SLAPP motion, which the trial court granted. (Id. at p. 679.) The Court of Appeal affirmed, holding that the developer’s indemnity claim arose from protected activity, Viz., the federal action in which it incurred the costs to be indemnified and Without Which the indemnity claim would have no basis. (Id. at pp. 680-68535 5 . . . . . The Dlstrlct mlscharacterlzes Lennar Homes, assertmg the court did not address whether the developer’s indemnity claim arose from protected activity. Although the deveIOper did not challenge the first-prong showing made by two of the homebuyers, it did challenge the showing made by the third (the wife, who was not a plaintiff in the federal action). (Lennar Homes, supra, 232 Ca1.App.4th at p. 680.) Thus, the court’s conclusion that “all three defendants adequately showed that [the (Fn. is continued on the next page.) 16 Here, the District’s cross-claims for defense and indemnity likewise would have n0 basis Without the Underlying Action in Which it seeks to be defended and indemnified. (See Takhar, supra, 27 Ca1.App.5th at pp. 30-32 [declaratory relief claim, Which alleged government was wasting resources in civil enforcement action and “other conduct incidental to the filing of that action,” arose from that action, Without which there would have been n0 controversy].)6 deveIOper’s] claim against them [arose] from protected activity” was essential to its resolution of the dispute. (Id. at p. 685.) 6 . . .We fmd Lennar Homes and Takhar more persuaswe on thls point than the cases on which the District relies. In State Farm General Ins. Co. v. Majorino (2002) 99 Cal.App.4th 974, an insurer brought a declaratory relief action against the parties in an underlying lawsuit, seeking a declaration that the insurer had no duty to defend and indemnify the underlying defendants (its insureds). (Id. at p. 9’76.) The underlying plaintiffs filed an anti- SLAPP motion in the insurer’s action, which the trial court denied. (Ibid. at p. 976.) The Court of Appeal affirmed, holding that the declaratory relief action did not arise from the underlying action, but instead from “the tender of defense and the terms of an insurance policy . . . .” (Id. at p. 977.) The court observed that the anti-SLAPP statute did not apply “merely because the declaratory relief action followed the filing of [the underlying] personal injury case.” (Majorino, supra, at p. 977.) But the underlying action did more than precede the declaratory relief action -- as the court acknowledged, it also “frame[d] the scope of coverage under the [insurance] policy.” (Ibid.) The scope of that coverage was the subject of the controversy the declaratory relief action sought t0 resolve. (Id. at p. 976.) The court did not address what supplied the controversy. (Fn. is continued 0n the next page.) 17 Even had we found that the District’s cross-claims did not arise from the Underlying Action, we would find they arose from protected activity. The District’s own position is that its cross-claims arose from Williams LLC’s refusal to defend and indemnify the District in the Underlying Action. This refusal was protected conduct in furtherance of petitioning in connection With an issue 0f public interest. (See Code Civ. Proc., § 425.16, subd. (e)(4).) A refusal to fund the defense of one’s own litigation -- and the defense of a co-plaintiff’s claims arising from the same facts -- is conduct in furtherance of the litigation. (See Takhar, supra, 27 Cal.App.5th at p. 28 [litigation funding decisions are protected petitioning activity]; cf. Blue v. Office of Inspector General (2018) 23 Cal.App.5th 138, 152-153 [state agency’s refusals of interviewees’ requests for representation were protected decisions about manner of conducting investigation].) Further, the Underlying Action is connected with an issue of public interest. Its allegations concern an environmental hazard at a construction site for a public We find City ofAlhambra v. D’Ausilio (2011) 193 Ca1.App.4th 1301 inapposite. There, as another panel of the same court noted in a later case, the controversy underlying the declaratory relief action “did not involve the filing of a lawsuit that resulted in the [asserted] breach . . . .” (Mundy v. Lenc (2012) 203 Ca1.App.4th 1401, 1409, citing City ofAlhambra v. D’Ausilio, supra, at pp. 1307-1308.) Here, the controversy involves just that; the filing of the Underlying Action resulted in Williams LLC’S asserted duty, and breach thereof, to defend and indemnify the District in that action. 18 school, violations of the state’s requirements for remedying that hazard, and a public school district’s punishment of resistance to those Violations. (See Hecimovich v. Encinal School Parent Teacher Organization (2012) 203 Cal.App.4th 450, 465-468 (Hecimovich) [safety of children in after-school sports and suitability 0f volunteer coach were issues 0f public interest]; Ludwig v. Superior Court (1995) 37 Cal.App.4th 8, 15 [development of a mall, “with potential environmental effects such as increased traffic and impaction 0n natural drainage, was clearly a matter of public interest”]; cf. BRV, Inc. v. Superior Court (2006) 143 Ca1.App.4th 742, 757-760 [granting writ petition under Public Records Act t0 require school district’s board of education to release report analyzing allegations of superintendent’s misconduct; superintendent’s privacy interest, though significant, was “far outweighed” by public interest in evaluating board’s response to alleged misconduct] .) None of the cases on Which the District relies persuade us that Williams LLC’s refusal to defend and indemnify the District was unprotected. The District cites Ericsson GE Mobile Communications, Inc. v. C.S.I. Telecommunications Engineers (1996) 49 Ca1.App.4th 1591, 1601-1602, for the proposition that “acts relating t0 the formation or performance of contractual obligations are not in furtherance of the right of free speech.” But our Supreme Court, clarifying that “conduct alleged to constitute breach 0f contract may also come within constitutionally protected 19 speech or petitioning,” has disapproved Ericsson to the extent it suggested otherwise. (Navellier v. Sletten (2002) 29 Cal.4th 82, 92.) The other cases on which the District relies are distinguishable, as neither concerned a refusal to engage in conduct that would impair one’s pursuit of one’s own litigation. (See Area 51 Productions, Inc. v. City of Alameda (2018) 20 Cal.App.5th 581, 596 [anti-SLAPP statute did not protect city’s reneging on commitment t0 license property for private events]; Kajima Engineering and Construction, Inc. v. City of L08 Angeles (2002) 95 Ca1.App.4th 921, 930 [anti-SLAPP statute did not protect acts seeking to secure and work on construction contract].) In sum, the District’s cross-claims arose from protected activity, viz., the filing 0f the Underlying Action. Even had we found they arose from Williams LLC’s refusal t0 defend and indemnify the District in the Underlying Action, as the District contends, we would conclude the cross-claims arose from protected activity because that refusal was protected. B. The District Failed to Meet Its Burden to Show a Probability of Prevailing on Its Cross-Claims At the second anti-SLAPP step, the plaintiff bears the burden of demonstrating a probability of prevailing on each claim arising from protected activity. (Baral, supra, 1 Ca1.5th at p. 384.) Under the “‘summary-judgment-like procedure’” applicable at this step, the court “does not weigh evidence or resolve conflicting factual claims.” (Ibid.) Where the defendant raises an affirmative defense in its anti- 20 SLAPP motion, “the court, following the summary-judgment- like rubric, generally should consider Whether the defendant’s evidence in support of an affirmative defense is sufficient, and if so, whether the plaintiff has introduced contrary evidence, Which, if accepted, would negate the defense.” (Bently Reserve LP v. Papaliolios (2013) 218 Cal.App.4th 418, 434; see also Flatley v. Mauro (2006) 39 Ca1.4th 299, 323 [at second step, litigation privilege may present defense that plaintiff “must overcome”].) Here, Williams LLC raised an affirmative defense in its anti-SLAPP motion, arguing that the District could not prevail on its cross-claims because the indemnity provision is unconscionable. “The overarching unconscionability question is whether an agreement is imposed in such an unfair fashion and s0 unfairly one-sided that it should not be enforced.” (0T0, L.L.C. v. Kho (2019) 8 Cal.5th 111, 123 (0T0).) Both procedural unconscionability (the unfair fashion in which the contract was imposed) and substantive unconscionability (the unfairness of the contract’s terms) must be shown -- but a high showing of one may compensate for a relatively 10w showing of the other. (Id. at pp. 125- 126.) “‘The ultimate issue in every case is Whether the terms of the contract are sufficiently unfair, in View 0f all relevant circumstances, that a court should withhold enforcement.”’ (Id. at p. 126, quoting Sanchez v. Valencia Holding Co., LLC (2015) 61 Ca1.4th 899, 912 (Sanchez).) 21 1. Substantive Unconscionability “Substantive unconscionability examines the fairness of a contract’s terms.” (OTO, supra, 8 Cal.5th at p. 129.) The analysis ensures that a contract does not impose terms that are unreasonably favorable t0 the more powerful party. (Ibid.) Such terms may include “terms that undermine the nondrafting party’s reasonable expectations.” (Id. at pp. 129-130.) The analysis “must be sensitive t0 context,” including the contract’s commercial setting and purpose. (Id. at p. 136.) We agree With Williams LLC that the facts here are similar to those in Lennar Homes. There, as noted, an indemnity provision purported to require homebuyers to defend and indemnify a developer from any costs and liabilities arising out of the homebuyers’ own claims against the developer for nondisclosure. (Lennar Homes, supra, 232 Cal.App.4th at pp. 677-678.) “In other words, on its face, the indemnity provision preclude[d] any possibility that a buyer Who ha[d] a meritorious claim of fraud falling within the scope of the indemnity clause could be made whole; any judgment obtained would be payable by the buyer, not [the developer], and in addition the buyer would be responsible for [the developer’s] attorney fees and costs, Win or lose.” (Id. at p. 691.) Because the provision “purport[ed] to bar any possibility of meaningful recovery for claims falling Within its scope, regardless of merit,” the court found a high degree 0f substantive unconscionability. (Id. at p. 693.) 22 Here, the indemnity provision drafted by the District similarly purports t0 preclude any possibility of Williams LLC obtaining meaningful recovery on a broad category of meritorious claims. The provision requires Williams LLC to indemnify the District for all liability for specified types of damage sustained by Williams LLC itself as a result of the District’s conduct, subject only to an exception for liability based on sole or active negligence or willful misconduct. Where the District injures Williams LLC through garden- variety negligence (or other non-Willful misconduct) and is not 100 percent liable, Williams LLC cannot meaningfully recover: either it fails to establish liability, but must pay the District’s defense costs (as damages for failing to actively defend the District), or it establishes liability, but must pay both the District’s defense costs and the very judgment it won against the District. This “paradigmatic example of a “‘heads I win, tails you lose’” proposition” embodies a high degree of substantive unconscionability. (Lennar Homes, supra, 232 Ca1.App.4th at p. 693.) The indemnity provision is equally unfair in purporting to require Williams LLC to defend and pay meritorious claims brought by Williams. Unrebutted evidence indicates that Williams LLC first contracted with the District for the . purpose of allowing Williams t0 work for the District -- indeed, that Williams LLC came into existence for that purpose. Williams LLC could reasonably expect that in entering contracts to allow Williams to work for the District, it would not be depriving Williams of any possibility of being 23 made whole by the District (rather than by her own LLC) for the District’s share of injuries jointly caused by its garden- variety negligence (or other non-Willful misconduct). In this context, to which we must be sensitive, the indemnity provision undermines Williams LLC’s reasonable expectations as the nondrafting party, and is therefore substantively unconscionable. (See 0T0, supra, 8 Ca1.5th at pp. 129-130, 136.) Contrary to the District’s contention, the existence of a limitation on the indemnity provision’s coverage -- its exclusion of liability for sole or active negligence or willful misconduct -- does not materially distinguish Lennar Homes. There, the indemnity provision’s coverage was limited to liability “‘for nondisclosure 0r incomplete disclosure of the general disclosure items and items separately disclosed to [the homebuyers] in writing . . . .”’ (Lennar Homes, supra, 232 Cal.App.4th at p. 678.) Despite this limitation on the provision’s scope, the court found a high degree of substantive unconscionability because the provision barred meaningful recovery on meritorious claims within that defined scope. (See id. at p. 691 [provision precluded possibility of homebuyer being made whole on claim of “fraud falling Within the scope of the indemnity clause”], id. at p. 693 [same regarding damages “from fraud . . . With respect to disclosures”].) Here, the indemnity provision similarly bars meaningful recovery on meritorious claims within its scope. Its effect on those claims is not mitigated by its exclusion of other claims. 24 Indeed, as a practical matter, the indemnity provision here is a more potent bar to recovery than the provision in Lennar Homes. There, the indemnity provision was effectively moot with respect to liability; the underlying litigation had already ended (pending appeal) Without any finding of liability, and the developer had conceded the provision would have been unenforceable if the homebuyers had established liability Within the provision’s scope. (See Lennar Homes, supra, 232 Cal.App.4th at pp. 678, 691.) Here, the District’s demand for Williams LLC t0 pay any judgment rendered against the District is far from moot. Indeed, the District asserts that Williams herself was negligent in failing to avoid being poisoned, and argues that her alleged negligence -- along With her allegations against third parties and other facts in the record -- show that her injuries “Will never be due to the ‘sole 0r active negligence, 0r willful misconduct of the District.“ 7 The District asserts the trial court failed to apply the holding of Crawford v. Weather Shield Mfg, Inc. (2008) 44 Ca1.4th 541 (Crawford), but identifies no relevant holding of that case. In Crawford, neither the anti-SLAPP statute, nor first- party indemnity, nor unconscionability were at issue. (See Crawford, supra, at p. 568.) Far from discouraging unconscionability defenses in future cases, our Supreme Court observed that in noninsurance indemnity contracts, the indemnitee “may often have the superior bargaining power, and . . . may use this power unfairly to shift to another a disproportionate share of the financial consequences of its own legal fault.” (Id. at p. 552.) 25 2. Procedural Unconscionability Courts analyzing procedural unconscionability begin by determining Whether the contract is adhesive, meaning the contract is standardized (generally on a preprinted form) and offered by the party With superior bargaining power on a take-it-or-leave-it basis. (0T0, supra, 8 Cal.5th at p. 126, citing Baltazar v. Forever 21, Inc. (2016) 62 Ca1.4th 1237, 1245 (Baltazar).) A finding that the contract is adhesive is “sufficient t0 establish some degree of procedural unconscionability.” (Sanchez, supra, 61 Cal.4th at p. 915; see also Baltazar, supra, at p. 1244 [ordinary contracts of adhesion contain degree of procedural unconscionability and danger of oppression even without notable surprise].) A higher degree of procedural unconscionability may be established through an additional showing of oppression or surprise. (See 0T0, supra, 8 Cal.5th at p. 126; Baltazar, supra, 62 Cal.4th at p. 1245.) Oppression involves lack 0f negotiation and meaningful choice. (See 0T0, at p. 126; see also id at p. 127 [complaining party need not show unsuccessful attempt t0 negotiate].) “‘The circumstances relevant to establishing oppression include . . . the amount and type of pressure exerted on the party to sign the proposed contract . . . and the length and complexity of the challenged provision . . . .”’ (Id. at pp. 126-127, quoting Grand Prospect Partners, L.P. v. Ross Dress for Less, Inc. (2015) 232 Cal.App.4th 1332, 1348.) Relevant pressure may include the economic pressure 0n an employee to accept a contractual provision as a condition of keeping a job; as this 26 pressure may be substantial, courts must be particularly attuned to the danger of oppression in the “posthiring” setting. (0T0, at p. 127; see also Grand Prospect Partners, L.P. v. Ross Dress for Less, Inc., supra, at p. 1348, fn. 10 [relevant pressure may be generated by market conditions or other circumstances surrounding the contract’s formation].) Surprise may be found where “the agreement appears to have been drafted With an aim to thwart, rather than promote, understanding,” undermining the nondrafting party’s informed consent. (0T0, at p. 129.) An agreement may thwart understanding by hiding the challenged provision, 0r by using language -- for example, complex sentences filled with legal jargon -- rendering the substance of the challenged provision opaque. (See id. at p. 128.) Once again, Lennar Homes is instructive. There, the court declined to find a particularly high degree 0f procedural unconscionability, citing several factors -- the indemnity provision appeared on the same page as the homebuyers’ signatures, and the homebuyers produced no evidence that they were unaware of the provision, that they were particularly unsophisticated, that similarly priced housing was unavailable in the region, 0r that they attempted to reject the indemnity provision. (Lennar Homes, supra, 232 Ca1.App.4th at pp. 689-690.) Nevertheless, the court found a sufficient degree of procedural unconscionability to invalidate the provision When joined With the high degree of substantive unconscionability also found by the court. (Id. at pp. 688, 27 690, 693.) The court found the provision procedurally unconscionable because the contract was adhesive (as the developer conceded), the developer’s bargaining power exceeded that of the homebuyers, the indemnity provision was a small part of a prolix form, and the homebuyers’ meaningful alternatives were limited by the fact that the homes they bought from the developer were not “truly interchangeable” With homes they might have bought from others. (Id. at pp. 688-690.) Here, Williams LLC has produced unrebutted evidence 0f a moderate degree of procedural unconscionability. First, Williams LLC’s evidence establishes that the 2013 contract was adhesive. According to Williams’s declaration, her LLC’s initial contract With the District was a standard form contract presented by the District on a take-it-or-leave-it basis. Further, Williams was unable to negotiate the contract’s terms, or to enter the contract herself rather than complying with the District’s requirement to form a business entity. This evidence establishes the District’s superior bargaining power. The District has submitted no contrary evidence. Nor has it submitted any evidence that the formation of this initial contract materially differed from the formation of the 2018 contract. Thus, contrary t0 the District’s contention, we need not weigh competing evidence to conclude the 2013 contract was adhesive. (Cf. Hecimovich, supra, 203 Cal.App.4th at pp. 471-472 [plaintiff failed to meet second-step burden on defamation claim, even assuming plaintiff made sufficient showing on claim’s 28 elements, Where defendants produced evidence that allegedly defamatory statements were privileged and plaintiff failed t0 produce contrary evidence].) Second, Williams LLC’s evidence establishes some degree of oppression beyond that inherent in a contract of adhesion. (See Sanchez, supra, 61 Ca1.4th at p. 915.) According to Williams’s declaration, she created her LLC for the purpose of working for the District, and it worked for the District exclusively (aside from one minor contract With another school district) for nearly a decade. Thus, we infer that in the “posthiring” setting in Which Williams LLC entered the 2013 contract, it experienced substantial economic pressure to accept the contract as the District had drafted it. (Cf. 0T0, supra, 8 Cal.5th at p. 127 [“Employees who have worked in a job for a substantial length of time have likely come t0 rely 0n the benefits of employment. For many, the sudden loss of a job may create major disruptions, including abrupt income reduction and an unplanned reentry into the job market”].) Although the District asserts that Williams LLC could have found comparable work elsewhere, it has produced n0 competent evidence to support that assertions Moreover, work opportunities are not truly 8 Even if we could infer the existence of comparable work Opportunities from Leahy’s allegation that Williams “and/or” Williams LLC worked for two other school districts before working for the District, that allegation was inadmissible because it was based only on information and belief. (5 Witkin, Cal. (Fn. is continued 0n the next page.) 29 interchangeable. (Cf. Lennar Homes, supra, 232 Cal.App.4th at p. 689 [homebuyers lacked meaningful choice because homes are considered unique, unlike truly interchangeable goods and services].) Finally, the language drafted by the District establishes some degree 0f surprise (or an additional degree of oppression). (See 0T0, supra, 8 Cal.5th at pp. 126-128 [finding surprise Where challenged provision’s language rendered its substance opaque, and separately noting that “complexity of the challenged provision” may be relevant to establishing oppression].) In a provision separate from the indemnity clause, the contract requires each party to bear its own costs (including attorney’s fees) in any litigation “arising out of this AGREEMENT or the performance thereof . . . .” This category of litigation includes Williams LLC’s claims against the District for terminating the contract -- indeed, the District tendered its defense of those claims on the ground that they “arise solely from performance of work under the Contract . . . .” The District cannot be required to bear its defense costs while also being entitled t0 a defense from Williams LLC. (See Crawford, supra, 44 Ca1.4th at pp. 554-558 & fn. 6 [indemnitee entitled to defense is Procedure (5th ed. 2008) Pleading, § 1035, p. 467 [“Affidavits on information and belief are inadequate t0 establish a probability of prevailing on the claim under [the anti-SLAPP statute] and are permitted only when the facts to be established are incapable of positive averment”], citing Evans v. Unkow (1995) 38 Ca1.App.4th 1490, 1498.) 30 entitled to defense costs as damages for breach 0f duty t0 defend].) In light of the seemingly straightforward language requiring each party to bear its own costs and fees in any litigation between them arising out of the performance of the contract, Williams LLC reasonably could have been surprised by the District’s demands for a defense of Williams LLC’s contract claims against the Districtg Williams LLC’S unrebutted evidence of adhesion, oppression, and surprise establishes a moderate degree of procedural unconscionability. This degree is sufficient, When combined With the high degree of substantive 9 In the District’s tenders of defense, it identified both Williams and her LLC as the plaintiffs in the Underlying Action and demanded defense and indemnity with regard t0 “all damages, claims, loss and/or liability of any kind arising out 0f Plaintiffs’ lawsuit . . . .” In its cross-complaint, it alleged that Williams LLC owed the District indemnity from “any and all claims, damages, and losses at issue in this Action, as more [fully] set forth in the [Underlying] Complaint . . . .” Thus, at the hearing on the anti-SLAPP motion, the trial court accurately characterized the cross-complaint as seeking indemnity on a1] claims in the Underlying Action; the District’s counsel mischaracterized it by asserting that it did not seek indemnity on Williams LLC’s claims. In its opening brief on appeal, the District’s counsel again mischaracterized the cross~complaint by suggesting it could not be read to seek indemnification from Williams LLC 0n its own claims. At oral argument, the District’s new counsel deferred t0 the language of the tenders and agreed that they and the cross-complaint sought defense and indemnity on all claims in the Underlying Action. 31 unconscionability we have found, to render the indemnity provision unconscionable. In sum, the terms of the contract are sufficiently unfair, in view of all relevant circumstances, that we should withhold enforcement. (See 0T0, supra, 8 Ca1.5th at p. 126.) 3. Conclusion The District failed to show a probability of overcoming Williams LLC’s defense that the indemnity provision is unconscionable. We exercise our discretion to limit the application of the indemnity provision to avoid an unconscionable result. (See Civ. Code, § 1670.5, subd. (a) [court finding clause unconscionable has discretion to “refuse to enforce the contract,” “enforce the remainder 0f the contract without the unconscionable clause,” or “limit the application of any unconscionable clause as to avoid any unconscionable result”].) Specifically, we limit the application of the indemnity provision by rendering it inapplicable to claims brought by Williams LLC and claims brought by Williams. This limitation avoids the unconscionable result of Williams LLC being required to defend or indemnify the District against its own claims or Williams’s claims, including the claims in the Underlying . 10 Actlon. 10 . . . . . .We express no op1n10n whether the 1ndemn1ty prov1smn may be enforced to require Williams LLC to defend and (Fn. is continued 0n the next page.) 32 As a result of this limitation on the indemnity provision, the District failed to show a probability of prevailing on its breach of contract and declaratory relief claims, each 0f which sought t0 apply the provision t0 the Underlying Action. (See South Sutter, LLC v. LJ Sutter Partners, L.P. (2011) 193 Cal.App.4th 634, 670-673 [trial court properly granted anti-SLAPP motion to strike declaratory relief claim, where no substantial evidence supported declaration interpreting contract in plaintiff’s favor; mere existence of controversy was insufficient].) The District has presented no argument on its probability of prevailing 0n its equitable indemnity claim. The District has therefore forfeited any such argument. (See Wall Street Network, Ltd. v. New York Times Co. (2008) 164 Ca1.App.4th 117 1, 1177 [“Generally, appellants forfeit or abandon contentions of error regarding the dismissal of a cause of action by failing to raise or address the contentions in their briefs on appeal”].) Similarly, the District has neither argued the merits of its purported cause of action for “apportionment of fault,” nor replied t0 Williams LLC’s contention that “apportionment of fault is not truly a separate cause 0f action, but rather an affirmative defense to plaintiff’s complaint.” The District has therefore forfeited any argument that “apportionment of fault” is a cause of action on Which it could prevail. (Cf. indemnify the District against a claim brought by a party other than Williams LLC or Williams. 33 Barry v. State Bar 0f California (2017) 2 Ca1.5th 318, 826 [plaintiff may fail to demonstrate probability of prevailing “because the court lacks the power t0 entertain the claims in the first p1ace”].) Because the District failed to meet its burden to show a probability of prevailing on its cross-claims, Which arose from protected activity, the trial court properly struck the cross-complaint under the anti-SLAPP statute. C. The District Is Not Entitled to Rehearing in the Trial Court The District contends this matter should be remanded t0 the trial court With instructions to rehear the anti-SLAPP motion after the District files a longer opposition brief, arguing the court abused its discretion in denying the District leave to include an additional nine pages. The District concedes it could not find any published authority reviewing the denial of such leave. The District falls far short of showing error, and farther short 0f showing prejudice. The District’s briefs on this appeal -- in which we review the trial court’s decision de novo -- span 100 pages. Nothing in them suggests that an extra nine pages below would have made a difference. 34 DISPOSITION The trial court’s orders are affirmed. Williams LLC is awarded its costs on appeal. CERTIFIED FOR PUBLICATION MANELLA, P. J. We concur: COLLINS, J. CURREY, J. 35 LAW OFFICES OF JONATHAN D. WINTERS 2750 Bellflower Boulevard, Suite 101 Long Beach, California 90815-1143 +1 S62 497 0472 (OQNOUT-hOON-k MMNNNNNNNAAAAAAAAAA mVOmAwNAOOQVOm#MN-¥O PROOF OF SERVICE I am employed in the County of Los Angeles, State of California; I am over the age of 18 and not a party to the Within action; my business address is 2750 Bellflower Boulevard, Suite 101, Long Beach, California 90815. On, 31 December 2019, I served the foregoing document(s) described as: Plaintiff Maryam Gholamirad’s Motion to Strike Defendant Bella Vista Apartment’s Cross-complaint as: 1. Untimely; or alternatively; 2. redundant of the 34 Affirmative Defenses; and / or 3. a Strategic Lawsuit Against Public Participation (Cal. Code of Civ. Proc., §425.16'),° Memorandum of Points and Authorities, Declaration of R. Spelger and Exhibits, in support thereof Said document was served on interested parties in this action addressed as follows by placing a true copy thereof, enclosed in a sealed envelope, and addressed to: Ms. Qwalyne Lawson, Attorney at Law Ms. Lisa M. Stevenson, Attorney at Law Mr. Michael E, Gallagher, Jr., Attorney at Law BASSI EDLIN HUIE &BLUM 500 Washington Street Suite 700 San Francisco, California 94111 qlawson@behblaw.com 1stevenson@behblaw.com mgallagher@behblaw.com 213 652 1992 (facsimile transmission) [X] BY MAIL (CCP §1013(a)&(b)): I am “readily familiar” With the firm’s practice of collection and processing correspondence for mailing. Under that practice, it would be deposited with the U.S. Postal Service on that same day with postage thereon fully prepaid at Los Angeles, California in the ordinary course of business. [X] BY ELECTRONIC SERVICE: I transmitted a PDF version of this document(s) by electronic mail to the addressee(s) identified above using email address(es) indicated. [ ] BY FACSIMILE: Pursuant t0 CCP §1013(e) and (f) and CRC Rule 2008, I caused the above stated document by facsimile from the facsimile machine 0fLaw -1 3- Plaintiff’s Motion to Strike untimely filed Cross-complaint LAW OFFICES 01“ jONA’l’l-IAN D. WINTERS Z750 Bellflower Boulevard, Suilc 101 Long Beach, California 90815-1143 +1 562 497 0472 O(OQVmO‘l-hOJN-K NNNNNNNNNA-LAAAAA-x-LA membOON-‘OOWme-waA Office of Jonathan D. Winters whose facsimile number is (562) 497-0474 to the addressee(s) at the facsimile number(s) as stated above. The facsimile machine used complies with CRC Rule 2003(3). Pursuant t0 CRC Rule 2008(e) the transmission be facsimile was reported as complete and without error. I declare under penalty 0f perjury under the laws of the State 0f California that the foregoing is true and correct. Executed on 31 December 2019, in Long Beach, California. R. Spelger -14- Plaintiff‘s Motion to Strike untimely filed Cross-complaint