• A Demand for Private Contractual Arbitration Does Not Arise from Protected Activity Subject to Anti-SLAPP Motion
  • June 2, 2009 | Author: Danielle A. Arteaga
  • Law Firm: Archer Norris A Professional Law Corporation - Walnut Creek Office
  • On April 17, 2009, the California Court of Appeal for the Fourth Appellate District, Division Three, issued its opinion in Century 21 Chamberlain & Associates v. Haberman, 09 C.D.O.S. 4609.

    Century 21 filed an action against Haberman and Pacific West Association of Realtors (PWAR), arising from the sale of Haberman’s house. Century 21 asserted two causes of action: (1) account stated, arising from Haberman’s failure to pay on a loan secured by a deed of trust; and (2) declaratory relief, arising from Haberman and PWAR’s insistence that the parties arbitrate Century 21’s claims.

    In response to Century 21’s complaint, Haberman filed an anti-SLAPP motion to strike the complaint, arguing that Century 21’s causes of action arose from Haberman’s constitutionally protected activity. The trial court denied Haberman’s motion, and the Court of Appeal affirmed.

    The Court found that Century 21’s cause of action for account stated could not arise from protected activity, because it necessarily arose from Haberman’s failure to repay the loan as agreed. It also found that the cause of action for declaratory relief did not arise from protected activity. Although the cause of action arose from Haberman’s arbitration demand – arguably an exercise of free speech – the arbitration demand itself did not fit any of the four categories of protected activity enumerated in Code of Civil Procedure section 425.16. Private arbitration is not a judicial proceeding, but an alternative to it. It is also not an “official proceeding authorized by law”, because it is not subject to administrative mandate nor is it required by statute.  Finally, a demand for private arbitration is neither a public issue nor an issue of public interest.

    As the Court noted, “It would be anomalous if the anti-SLAPP statute could be used to strike a declaratory relief cause of action seeking to avoid arbitration. Generally, the court must determine whether a dispute is subject to contractual arbitration, unless the parties clearly and unmistakably agree otherwise. [Citations.] It would provide cold comfort to parties resisting arbitration to recognize their right to a judicial determination of arbitrability, yet strike their means for obtaining that determination before arbitration.”