A172149_20250822

Filed 8/22/25 Black Diamond Paver Stones etc. v. Hirsch Closson, APLC CA 1/5

NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

FIRST APPELLATE DISTRICT

DIVISION FIVE

Plaintiff Black Diamond Paver Stones & Landscape, Inc. (Black Diamond) appeals an order granting the special motion to strike filed by defendant Hirsch Closson, APLC (Hirsch Closson), a law firm, under the anti-SLAPP (strategic lawsuit against public participation) statute. (Code Civ. Proc., § 425.16.)¹ Hirsch Closson filed a lawsuit on behalf of its clients against Black Diamond for faulty landscaping work. Black Diamond then filed the underlying complaint for breach of contract against Hirsch Closson, alleging that it breached their settlement agreement from a different case with a different client of Hirsch Closson by failing to provide Black Diamond “with the agreed upon pre-filing notice and an opportunity to mediate the complaints alleged in the lawsuit.” The trial court dismissed Black Diamond’s complaint in its entirety under the anti-SLAPP statute.

In granting the anti-SLAPP motion, the trial court held that Black Diamond sued Hirsch Closson for protected litigation activity and that Black Diamond did not demonstrate the requisite minimal merit to proceed on its claim for breach of contract. We agree and affirm.

I. BACKGROUND²

Hirsch Closson previously represented the plaintiffs in Roth v. Black Diamond Paver Stones & Landscape, Inc. (Super. Ct. Contra Costa County, 2023, No. MSC20‑01336). The parties in that case entered into a settlement agreement in June 2023. As part of the settlement, Hirsch Closson entered into a separate written settlement agreement with Black Diamond (settlement agreement). That agreement provided that in the event Hirsch Closson “is retained by other future Black Diamond Claimant(s), [it] agrees to notify Black Diamond . . . of the claim prior to filing suit” and that “[u]pon receipt of such notice, one day of mediation shall be scheduled before the Hon. Stephen Austin (ret.) at Black Diamond’s expense.” The agreement also included an exception to the prefiling notification requirement: “[A] complaint may be filed to prevent the running of a statute of limitations, said complaint may be cursory in nature, and that mediation as set forth may go forward.”

In October 2023, Hirsch Closson filed a new lawsuit on behalf of different clients against Black Diamond: Apatoff v. Black Diamond Paver Stones & Landscape, Inc. (Super. Ct. Napa County, No. 23-CV-001378) (Apatoff). That lawsuit, among other things, alleged causes of action for negligent construction, fraud, and disgorgement. Hirsch Closson did not provide notice to Black Diamond before filing the lawsuit, pursuant to the settlement agreement, because Hirsch Closson believed that the disgorgement cause of action “might be running up against the [one-year] statute of limitations.” Hirsch Closson did, however, send Black Diamond’s counsel a copy of the lawsuit and indicated that its clients were willing to mediate. Two unsuccessful mediations with retired Judge Austin took place in March and June 2024. In May 2024—in between the two mediations—Black Diamond filed its answer to the lawsuit.

In June 2024, Black Diamond filed the underlying complaint for breach of contract against Hirsch Closson. The complaint alleged that Hirsch Closson breached the settlement agreement “by failing to provide [Black Diamond] with the agreed upon pre-filing notice and an opportunity to mediate the complaints alleged in the [Apatoff] lawsuit.” The complaint further alleged that as a result of the breach, Black Diamond was damaged because it “hired consultants and attorneys and paid for litigation costs . . . to represent it in the Apatoff matter” and spent time and money “responding to inquiries by the [Contractors State] License Board.”

Hirsch Closson filed an anti-SLAPP motion in response, contending that Black Diamond’s complaint was predicated on the filing of the Apatoff action “in a manner allegedly contrary to the terms of a settlement agreement,” which is protected activity under the anti-SLAPP statute’s first prong. Hirsch Closson further argued that under the second prong of the anti-SLAPP analysis, Black Diamond cannot show a probability of prevailing because its alleged damages were entirely speculative. In its opposition, Black Diamond countered that Hirsch Closson’s violation of the settlement agreement did not constitute protected activity. Black Diamond further argued that the Apatoff complaint was not “ ‘cursory in nature’ ” as required by the settlement agreement and that its damages were ascertainable because “it was required to engage the services of counsel and consulting experts” as a result of Hirsch Closson’s breach. Finally, Black Diamond argued that Hirsch Closson waived its anti-SLAPP protections by validly contracting not to speak or petition.

The trial court granted Hirsch Closson’s anti-SLAPP motion. The court held that “[s]ince Black Diamond has sued Hirsch Closson for litigating claims that were allegedly prohibited by contract, the first prong of the anti-SLAPP statute is met.” As to the second prong, the court concluded that Black Diamond had “not demonstrated the minimal merit required to proceed” on its breach of contract claim because the settlement agreement did not require that a complaint filed to preserve the statute of limitations be cursory in nature. According to the court, Black Diamond also provided no evidence of damages because it failed “to show that with pre-suit notice and an opportunity for early mediation, Black Diamond would have achieved a different and better outcome on its litigation expenses, including that the case would have settled pre-suit.” Lastly, the court held that because Black Diamond had not demonstrated a probability of prevailing, “it also does not meet its burden to show that Hirsch Closson waived its right to file the Apatoff complaint.”

Judgment was entered in favor of Hirsch Closson. Black Diamond timely appealed.

II. DISCUSSION

1. Anti-SLAPP Law and Standard of Review

The anti-SLAPP statute provides that “[a] cause of action against a person arising from any act of that person in furtherance of the person’s right of petition or free speech under the United States Constitution or the California Constitution in connection with a public issue shall be subject to a special motion to strike, unless the court determines that the plaintiff has established that there is a probability that the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).)

Courts engage in a two-step process when deciding an anti-SLAPP motion. First, the moving defendant must show that the challenged claim arises from “activity protected by section 425.16.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384.) If the defendant makes that showing, then the burden shifts to the plaintiff to demonstrate a probability of prevailing—i.e., that “its claims have at least ‘minimal merit.’ ” (Park v. Board of Trustees of California State University (2017) 2 Cal.5th 1057, 1061.) Specifically, the plaintiff “must demonstrate that the complaint is both legally sufficient and supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the evidence submitted by the plaintiff is credited.” (Matson v. Dvorak (1995) 40 Cal.App.4th 539, 548 (Matson).)

We review de novo the denial of an anti-SLAPP motion. (Flatley v. Mauro (2006) 39 Cal.4th 299, 325.) Like the trial court, “we consider ‘the pleadings, and supporting and opposing affidavits stating the facts upon which the liability or defense is based.’ [Citation.] However, we do not weigh credibility or compare the weight of the evidence. [Citation.] Rather, we accept as true evidence favorable to the plaintiff, determine whether the plaintiff has made a prima facie showing of facts necessary to establish its claim at trial, and evaluate the defendant’s evidence only to determine whether it defeats that submitted by the plaintiff as a matter of law.” (Tichinin v. City of Morgan Hill (2009) 177 Cal.App.4th 1049, 1061.)

2. Prong 1

Black Diamond argues that the trial court erred in concluding that its complaint arose from an act in furtherance of the right to petition. We disagree. The gravamen of Black Diamond’s breach of contract claim was Hirsch Closson’s filing of the Apatoff lawsuit without providing notice, which is protected speech activity.

Section 425.16, subdivision (e) identifies four protected activities. As relevant here, subdivision (e)(1) protects “any written or oral statement or writing made before a . . . judicial proceeding” (§ 425.16, subd. (e)(1)) and subdivision (e)(2) protects “any written or oral statement or writing made in connection with an issue under consideration or review by a . . . judicial body” (§ 425.16, subd. (e)(2)).

“[T]he mere fact that an action was filed after protected activity took place does not mean the action arose from that activity for the purposes of the anti-SLAPP statute. [Citation.] Moreover, that a cause of action arguably may have been ‘triggered’ by protected activity does not entail that it is one arising from such. [Citation.] In the anti-SLAPP context, the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity,” regardless of the form of the plaintiff’s cause of action. (Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier).) Further, “[t]he anti-SLAPP statute’s definitional focus is not the form of the plaintiff’s cause of action but, rather, the defendant’s activity that gives rise to his or her asserted liability—and whether that activity constitutes protected speech or petitioning.” (Id. at p. 92.)

Black Diamond contends that the gravamen of its complaint is Hirsch Closson’s breach of the settlement agreement and that “[t]he Apatoffs’ right of petition or right of free speech” is not at issue. First, our high court has made clear that “conduct alleged to constitute breach of contract may also come within constitutionally protected speech or petitioning.” (Navellier, supra, 29 Cal.4th at p. 92.) Second, “[u]nder the plain language of section 425.16, subdivisions (e)(1) and (2), as well as case law interpreting those provisions, all communicative acts performed by attorneys as part of their representation of a client in a judicial proceeding . . . are per se protected as petitioning activity by the anti-SLAPP statute.” (Cabral v. Martins (2009) 177 Cal.App.4th 471, 479–480.) Thus, as to prong 1, it makes no difference that the Apatoffs are not parties to the settlement agreement or Black Diamond’s underlying complaint against Hirsch Closson.

Black Diamond next argues that unlike cases such as Vivian v. Labrucherie (2013) 214 Cal.App.4th 267, 273 (Vivian), which held that the breach of a settlement agreement was based on protected activity, its settlement agreement with Hirsch Closson “does not bar the assertion of any claim.” Black Diamond points to the carve-out provision which allows for the pre-notice filing of a lawsuit “under exigent circumstances.” But the first prong does not ask whether an agreement bars or limits certain claims. Rather, “the critical consideration is whether the cause of action is based on the defendant’s protected free speech or petitioning activity.” (Navellier, supra, 29 Cal.4th at p. 89.)

Here, Black Diamond’s breach of contract claim is based on Hirsch Closson’s filing of a lawsuit against it. The underlying complaint alleges that Hirsch Closson breached the settlement agreement “by failing to provide . . . pre-filing notice and an opportunity to mediate.” But under the terms of the agreement, Hirsch Closson could only commit a breach by “ ‘filing suit’ ” “ ‘prior to’ ” “ ‘notify[ing] Black Diamond . . . of the claim.’ ” Indeed, Hirsch Closson’s failure to provide notice of its clients’ claims to Black Diamond could only become a breach of the settlement agreement when Hirsch Closson filed a lawsuit. Thus, Hirsch Closson’s filing of the Apatoff lawsuit—an activity undoubtedly protected by the anti-SLAPP statute—is the basis for the underlying complaint.

Black Diamond’s affidavit confirms this. The declaration of Black Diamond’s president claims as damages the costs of hiring an attorney and a consultant to assist Black Diamond in preparing “response[s] to the Apatoff [c]omplaint.” According to its president, Black Diamond would not have incurred these costs if the complaint had been cursory as agreed upon in the settlement agreement. Because no response to a lawsuit is necessary until a complaint has been filed, Black Diamond’s underlying complaint is necessarily based on the protected activity of filing the Apatoff complaint, and not just the failure to provide prefiling notice.

Vivian is therefore instructive. In that case, the plaintiff sought damages for the defendant’s breach of a settlement agreement. (Vivian, supra, 214 Cal.App.4th at p. 274.) This court concluded that the “[p]laintiff seeks to impose liability on [the defendant] for having made her statements to the internal affairs investigators and in her family court papers” in violation of the parties’ settlement agreement. (Ibid.) “Because [the] plaintiff is seeking to impose liability on [the defendant] for having engaged in this protected activity, the action is ‘based on’ that activity and comes within the scope of section 425.16.” (Ibid.) Similarly, Black Diamond seeks to impose liability on Hirsch Closson for filing a noncursory complaint, which is protected activity under the first prong of the anti-SLAPP statute.

3. Prong 2

Black Diamond next contends that the trial court erred in concluding that it had not established a probability of prevailing on its breach of contract claim. We again disagree.

1. Waiver

As a threshold matter, Black Diamond argues that under the second prong, the trial court should have determined whether Hirsch Closson waived its anti-SLAPP protections before it reached the merits of the breach of contract claim. We find no waiver. Although “a defendant who in fact has validly contracted not to speak or petition has in effect ‘waived’ the right to the anti-SLAPP statute’s protection in the event he or she later breaches the contract” (Navellier, supra, 29 Cal.4th at p. 94), that did not occur here.

As Black Diamond concedes, “nobody is bound by the [settlement agreement] to not speak or not petition, rather the attorneys are bound to pause before moving forward.” And as an exception to this agreement to “pause,” the parties agreed that “a complaint may be filed to prevent the running of a statute of limitations” and that “said complaint may be cursory in nature.” Hirsch Closson attempted to avail itself of this exception by filing the Apatoff complaint in order to preserve the statute of limitations on its disgorgement cause of action. If Hirsch Closson properly invoked that exception in filing the complaint, then it did not waive its anti-SLAPP protections.

2. Contract Interpretation

Turning to the merits, Black Diamond first contends that Hirsch Closson’s failure to provide prefiling notice was “a clear violation of the [settlement agreement].” But it ignores the exception in the settlement agreement allowing Hirsch Closson to file a complaint without providing notice in order to avoid the running of the statute of limitations. It also ignores Hirsch Closson’s declaration averring that it filed the Apatoff complaint pursuant to this exception. Black Diamond’s first argument therefore lacks minimal merit.

Black Diamond next argues that the exception is inapplicable because it only allowed Hirsch Closson to file a cursory complaint, not a 43-page complaint with 19 causes of action. According to Black Diamond, the term “may” as used in the exception should be interpreted as mandatory as opposed to permissive. We are unpersuaded. Under well-established principles of contract interpretation, the court must “ascertain the mutual intent of the parties solely from the written contract so long as possible. [Citation.] The court considers the contract as a whole and interprets the language in context, rather than in isolation. [Citation.] And where the language is clear and explicit, and does not involve an absurdity, the plain meaning governs.” (West Pueblo Partners, LLC v. Stone Brewing Co., LLC (2023) 90 Cal.App.5th 1179, 1185.) Further, unless otherwise indicated, “[t]he words of a contract are to be understood in their ordinary and popular sense.” (Civ. Code, § 1644.)

Here, the language in the settlement agreement stating that the complaint “may be cursory” plainly means that Hirsch Closson could, but was not required to, file a cursory complaint to prevent the running of a statute of limitations. (Italics added.) Nothing in the agreement suggests otherwise. Indeed, if the parties intended to exclude the filing of a noncursory complaint altogether, they could have easily selected the words “shall” or “must” instead of “may” or added the word “only” after “may.” As the controlling language of the settlement agreement is clear and explicit, we need not look outside that agreement to ascertain the parties’ intent.

Black Diamond counters that interpreting “may” as permissive “creates a surplusage” and that it is “plainly illogical for the interpretation of the phrase” to mean that Hirsch Closson could file either a cursory or a noncursory complaint. We find no such surplusage or absurdity. The exception allows for the filing of a complaint where a statute of limitations on a cause of action is soon expiring. It makes sense, then, that Hirsch Closson would want the option of filing a cursory complaint if it was running short on time or did not want to incur the costs of preparing a lengthier complaint if mediation was moving forward, as provided for under the settlement agreement. Black Diamond has therefore failed to show that Hirsch Closson breached the agreement by filing a noncursory complaint in the Apatoff action.

3. Damages

Lastly, Black Diamond argues that the trial court erred in concluding that it had failed to demonstrate it incurred any damages as a result of the alleged breach—“a necessary element of” its breach of contract claim. (Monster, LLC v. Superior Court (2017) 12 Cal.App.5th 1214, 1227, fn. 4.) We disagree and find this to be additional grounds for affirming the trial court’s finding as to prong two.

“ ‘An essential element of a claim for breach of contract are damages resulting from the breach. [Citation.] Causation of damages in contract cases requires that the damages be proximately caused by the defendant’s breach.’ ” (Troyk v. Farmers Group, Inc. (2009) 171 Cal.App.4th 1305, 1352.)

Here, Black Diamond does not show that any of its alleged damages were caused by Hirsch Closson’s alleged breach of the settlement agreement.

First, Black Diamond contends that it incurred unnecessary litigation and consultant costs because Hirsch Closson failed “to provide . . . pre-filing notice and an opportunity to mediate the complaints” before retired Judge Austin. But Black Diamond ignores that two unsuccessful mediations did in fact take place before retired Judge Austin shortly after the Apatoff action was filed. Because Black Diamond has not shown that it would have achieved a better outcome had an earlier, prelawsuit mediation occurred, it cannot show that Hirsch Closson’s failure to provide prefiling notice caused it to incur any costs that it would not have incurred anyways.

Second, Black Diamond contends that it suffered damages because of the non-cursory nature of the Apatoff complaint. According to Black Diamond, the detailed nature of the allegations in that complaint forced it to hire consultants and attorneys to respond to the complaint.³ But Black Diamond cannot establish that the noncursory nature of the Apatoff complaint caused any of its alleged damages. Even if Hirsch Closson had initially filed a more cursory complaint, nothing prevented it from amending its complaint to include more allegations once the mediations proved unsuccessful. Indeed, by filing a more detailed complaint in the first place, Hirsch Closson presumably believed that it was necessary to do so. Thus, Black Diamond has not shown that the noncursory nature of the Apatoff complaint caused it to incur any unnecessary costs. Black Diamond therefore has failed to establish any damages as a result of the breach.

Because we find that Black Diamond failed to demonstrate breach of the settlement agreement or damages, we need not consider Hirsch Closson’s additional arguments. Thus, we do not consider whether Black Diamond’s breach of contract claim is barred by the litigation privilege or whether a law firm, as part of the settlement of its clients’ claims in one matter, may agree to terms that impact its representation of other clients.

III. DISPOSITION

The judgment is affirmed.

CHOU, J.

We concur.

JACKSON, P. J.

BURNS, J.

A172149/ Black Diamond v. Hirsch Closson