Olson v. Doe

IN THE SUPREME COURT OF
CALIFORNIA

CURTIS OLSON,
Cross-complainant and Appellant,
v.
JANE DOE,
Cross-defendant and Respondent.

S258498

Second Appellate District, Division Eight
B286105

Los Angeles County Superior Court
SC126806

January 13, 2022

Justice Liu authored the opinion of the Court, in which Chief
Justice Cantil-Sakauye and Justices Corrigan, Kruger,
Groban, Jenkins, and Moor* concurred.

*
Associate Justice of the Court of Appeal, Second Appellate
District, Division Five, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.
 OLSON v. DOE
S258498

Opinion of the Court by Liu, J.

Code of Civil Procedure section 527.6 provides a
specialized procedure for a petitioner who has suffered
harassment within the meaning of the statute to expeditiously
seek a limited judicial remedy — injunctive relief to prevent
threatened future harm. (All undesignated statutory references
are to the Code of Civil Procedure.) A petitioner who also desires
retrospective relief in connection with the same underlying
conduct, such as tort damages, must do so separately.
Cross-defendant Jane Doe and cross-complainant Curtis
Olson each own units in the same condominium building. Doe
sought a civil harassment restraining order against Olson
pursuant to section 527.6. As a result of court-ordered
mediation, the parties agreed “not to contact or communicate
with one another or guests accompanying them, except in
writing and/or as required by law,” to “go[] their respective
directions away from one another” if “the parties encounter each
other in a public place or in common areas near their
residences,” and “not to disparage one another.”
The question here is whether the nondisparagement
clause in the parties’ mediation agreement potentially applies to
and thereby limits Doe’s ability to bring a subsequent unlimited
civil lawsuit against Olson seeking damages. Doe later filed
such a lawsuit; Olson cross-complained for breach of contract
and specific performance, arguing that Doe’s suit violated the

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Opinion of the Court by Liu, J.

nondisparagement clause; and Doe moved to strike Olson’s
cross-complaint under the anti-SLAPP statute. We hold that
the mediation agreement as a whole and the specific context in
which it was reached — a section 527.6 proceeding — preclude
Olson’s broad reading of the nondisparagement clause.
Accordingly, Olson has failed to show the requisite “minimal
merit” on a critical element of his breach of contract claim —
Doe’s obligation under the agreement to refrain from making
disparaging statements in litigation — and thus cannot defeat
Doe’s anti-SLAPP motion. (Navellier v. Sletten (2002) 29
Cal.4th 82, 94 (Navellier).)
I.
Doe and Olson met in 2002 and worked together to acquire
and preserve a historic apartment building. Olson acquired the
building, converted the apartments into eight condominium
units, and ultimately became the owner and part-time resident
of one of the units. Olson served as the president of the
building’s homeowners association (HOA) board from 2013 to
January 2016, and Doe resided in one of the condominium units.
In December 2016, Doe filed an unlimited civil lawsuit
against Olson and various other defendants, including other
residents of the building, the HOA, and the property
management company. Through the complaint, Doe seeks
damages for a variety of claims, including sexual battery,
assault, and discrimination based on perceived ethnicity,
religion, and marital status. The complaint alleges multiple
romantic advances over a long period of time by Olson toward
Doe, which Doe rejected, followed by “a pattern of retaliatory
events” by Olson, friends and associates of Olson (some of whom
resided in the building after purchasing units from Olson), and

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Opinion of the Court by Liu, J.

the HOA. Doe ultimately moved out of the building for a period
from 2009 to 2013.
The complaint further alleges that in May 2015, after Doe
had resumed living in her unit, Olson invited her to meet with
him in order to “ ‘bury the hatchet,’ ” and after socializing in the
courtyard of the building, Doe accompanied Olson to his
condominium unit to watch a short video on the internet that he
was having difficulty loading. According to the complaint, Doe
was sitting on a sofa in Olson’s unit when Olson “forced himself
on top of” her and “started touching her face, hair, and breasts
and tried to kiss” her before she was able to struggle free and
leave. After this incident, Doe alleges, Olson confronted her in
the courtyard visibly upset, and over the ensuing months Olson
and his associates continued to harass and stalk her by, for
example, “peeping, filming, videotaping, and/or photographing
[Doe] and her guests,” including through the bedroom and
bathroom windows of her condominium unit, which prompted
Doe to file police reports.
The events described in the complaint initially prompted
Doe to seek a civil harassment restraining order against Olson
pursuant to section 527.6 in October 2015. Her request included
allegations of sexual battery, peeping, harassment, and threats
to Doe’s life and property, and it sought both personal conduct
and stay-away orders against Olson. The court granted Doe’s
request for a personal conduct order against Olson and issued a
temporary restraining order, but the court denied Doe’s request
for a stay-away order in advance of a hearing.
Olson opposed Doe’s request for a civil harassment
restraining order, “vehemently deny[ing] th[e] allegations” in
her request and asserting that the HOA “and its vendors have

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Opinion of the Court by Liu, J.

had a well-documented history of problems with [Doe] in
connection with her use and residency” at the building,
including her continued use of a basement storage unit. At a
hearing on December 10, 2015, the court ordered the parties to
mediation supervised by a volunteer mediator from the
California Academy of Mediation Professionals (CAMP). The
parties then entered into single-page “Mediation” and
“Mediation/Confidentiality” agreements that same day.
Pursuant to the mediation agreement, Doe’s request for a
civil harassment restraining order was dismissed without
prejudice, and the parties agreed to resolve their dispute in
pertinent part as follows: “(1) [Olson] denies each and every
allegation made by [Doe] in the dispute. (2) This agreement is
made voluntarily by mutual agreement of the parties, and
nothing contained herein is to be construed as an admission of
any wrongdoing of the parties. (3) The parties agree not to
contact or communicate with one another or guests
accompanying them, except in writing and/or as required by law.
(4) Should the parties encounter each other in a public place or
in common areas near their residences, they shall seek to honor
this agreement by going their respective directions away from
one another. (5) The parties agree not to disparage one another.
(6) The term of this agreement shall be three (3) years.”
According to Doe’s civil complaint, harassment by the
HOA board and other associates of Olson continued even after
the mediation agreement was reached, including a demand by
the HOA board in May 2016 that Doe pay a percentage of the
legal fees incurred by Olson in connection with opposing the civil
harassment restraining order. In August 2016, Doe filed an
administrative complaint with the United States Department of
Housing and Urban Development (HUD), naming Olson and the

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Opinion of the Court by Liu, J.

HOA as respondents and alleging discrimination based on sex
and gender. The administrative complaint was referred to the
California Department of Fair Employment and Housing
(DFEH) for investigation. In the administrative complaint, Doe
claimed “discrimination based on sex and gender,” alleging that
Olson “stalked her,” “subjected her to unwanted sexual
comments and touching,” took “pictures of [her] while she [wa]s
in the bathroom and in her bedroom,” and “used his position as
board president to direct the maintenance man to install
cameras in [her] unit,” and that “as a result of the restraining
order [Olson and the HOA] tied in a portion of the attorney fees
to her home” such that “[i]f the balance[] is not paid in full a 10%
monthly fee is added to the unpaid balance and they are able to
foreclose on [her] property.”
Doe subsequently filed a civil complaint against Olson and
the other defendants seeking damages. In May 2017, Olson filed
a cross-complaint against Doe for breach of contract damages
and specific performance. The cross-complaint alleges that Doe
breached the mediation agreement’s nondisparagement clause
by filing her administrative complaint and her civil complaint
for damages, and it requests contract damages and an order for
specific performance requiring Doe “to withdraw and dismiss all
claims in this case, the HUD Complaint, and the DFEH
Complaint against Olson or that otherwise disparage Olson.”
Doe moved to strike Olson’s cross-complaint under the
anti-SLAPP statute, asserting that it was “retaliatory litigation”
and “an attempt to chill Doe’s exercise of her rights of free
speech under the United States or California Constitution . . .
and right to petition the courts and the executive branch for
redress of grievances.” (See § 425.16, subds. (b)(1), (e)(1) &
(e)(4).) Doe argued that Olson could not establish a probability

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of prevailing because “[t]here was an exception clause that
expressly preserves Doe’s right to sue and no release of all
claims executed by Doe and Doe’s Complaint and reports to
HUD and DFEH are absolute [sic] privileged under California
Civil Code § 47.” Olson opposed the motion, arguing that the
parties “agreed not to disparage one another for three years,”
that Doe breached that agreement by filing the administrative
and civil complaints, and that “having contractually obligated
herself not to disparage Olson, Doe is not entitled to th[e]
protections” of the anti-SLAPP statute.
The trial court granted Doe’s special motion to strike, and
Olson appealed. The Court of Appeal affirmed in part and
reversed in part. With respect to Doe’s administrative
complaint, the Court of Appeal agreed with the trial court and
viewed Vivian v. Labrucherie (2013) 214 Cal.App.4th 267 as
dispositive, concluding that applying the litigation privilege was
necessary to promote full and candid disclosure to a public
agency whose purpose is to protect the public from illegal
activity and thus absolved Doe of any liability. With respect to
Doe’s civil complaint, however, the Court of Appeal disagreed
with the trial court, concluding that the public policy underlying
the litigation privilege did not support its application to Doe’s
complaint. The Court of Appeal further concluded that Olson
had demonstrated the minimal merit needed to pass the second
prong of the anti-SLAPP inquiry with respect to his breach of
contract claim for damages but had failed to do so with respect
to his claim for specific performance. We granted review to
decide under what circumstances the litigation privilege of Civil
Code section 47, subdivision (b) applies to contract claims, and
whether an agreement following mediation between the parties
in an action for a civil harassment restraining order, in which

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they agree not to disparage one another, can lead to liability for
statements made in a later unlimited civil lawsuit arising from
the same alleged misconduct.
II.
The parties’ dispute centers on the construction of their
mediation agreement, which was reached within the context of
a civil harassment restraining order proceeding. (§ 527.6.) We
begin with some background on this specialized civil procedure.
The Legislature enacted section 527.6 in 1978 in order “to
protect the individual’s right to pursue safety, happiness and
privacy as guaranteed by the California Constitution.” (Stats.
1978, ch. 1307, § 1, p. 4294; see Cal. Const., art. I, § 1.) The
provision was intended to “ ‘establish an expedited procedure for
enjoining acts of “harassment” ’ ” in order “ ‘to provide quick
relief to harassed persons.’ ” (Smith v. Silvey (1983) 149
Cal.App.3d 400, 405 (Smith).) In the Legislature’s view,
“procedures under [then-]existing law” — namely “a tort action
based either on invasion of privacy or on intentional infliction of
emotional distress” — were “inadequate to remedy the mental
and emotional distress suffered by a person,” and “[t]he length
of time it takes to obtain an injunction in many cases is too long.”
(Sen. Com. on Judiciary, Analysis of Assem. Bill No. 3093 (1977–
1978 Reg. Sess.) as amended June 19, 1978, pp. 1–2.) Section
527.6, subdivision (a)(1) enables a victim of “harassment” to
“seek a temporary restraining order and an order after hearing
prohibiting harassment.” In its current form, section 527.6
provides “for the issuance of a temporary restraining order
without notice . . . on the same day that the petition is submitted
to the court” (§ 527.6, subd. (e)) and generally requires the court
to hold a hearing on the petition within 21 days (id., subd. (g)).

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“If the judge finds by clear and convincing evidence that
unlawful harassment exists, an order shall issue prohibiting the
harassment.” (Id., subd. (i).)
Thus, “section 527.6 provides a quick, simple and
truncated procedure . . . and was drafted with the expectation
that victims often would seek relief without the benefit of a
lawyer.” (Yost v. Forestiere (2020) 51 Cal.App.5th 509, 520
(Yost).) To that end, section 527.6 from its inception has
required the Judicial Council to develop forms for use in these
proceedings (Stats. 1978, ch. 1307, § 2, subd. (k), p. 4296; see
§ 527.6, subd. (x)(1)), and current law requires that “[t]he
petition and response forms . . . be simple and concise, and their
use by parties in actions brought pursuant to [section 527.6] is
mandatory” (§ 527.6, subd. (x)(1)).
Section 527.6 has also made clear since its inception that
utilizing this specialized civil procedure does not “preclude a
plaintiff’s right to utilize other existing civil remedies.” (Stats.
1978, ch. 1307, § 2, subd. (j), p. 4296; see § 527.6, subd. (w).)
“The quick, injunctive relief provided by section 527.6 ‘lies only
to prevent threatened injury’ — that is, future wrongs” — and
“is not intended to punish the restrained party for past acts of
harassment.” (Yost, supra, 51 Cal.App.5th at p. 520, quoting
Scripps Health v. Marin (1999) 72 Cal.App.4th 324, 332.)
III.
With this statutory context in mind, we consider the
subject of Doe’s special motion to strike Olson’s cross-complaint:
whether Doe’s civil lawsuit violated the nondisparagement
clause in the parties’ mediation agreement arising from Doe’s
section 527.6 action seeking a temporary restraining order. (See
§ 425.16.) The question is whether such a nondisparagement

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clause applies to statements made in a later unlimited civil
lawsuit arising from the same alleged misconduct.
A.
Pursuant to section 425.16, a party may file a special
motion to strike a cause of action or particular claims underlying
a cause of action that arise from activity protected by the anti-
SLAPP statute. The moving party “must establish that the
challenged claim arises from activity protected by section
425.16”; if the moving party does so, “the burden shifts” to the
nonmoving party “to demonstrate the merit of the claim by
establishing a probability of success.” (Baral v. Schnitt (2016) 1
Cal.5th 376, 384 (Baral); see § 425.16, subd. (b)(1).) Before the
trial court and on appeal, Olson conceded that Doe’s
administrative and civil complaints — the conduct that gave
rise to Olson’s actions for breach of contract and specific
performance — constitute petitioning activity protected by
section 425.16. Thus, the only issue before us is whether Olson
has shown a probability of success. In that regard, we address
only the breach of contract claim that Olson raised in the Court
of Appeal: that Doe breached their agreement, not by suing him
under his own name, but by filing the administrative and civil
complaints against him. The Court of Appeal held that Olson
“failed to prove the requisite minimal merit” for his claim for
specific performance and affirmed that portion of the trial
court’s order, and Olson did not seek review. (Doe v. Olson (Aug.
30, 2019, B286105) [nonpub. opn.].)
To succeed in opposing a special motion to strike, the
nonmoving party must “demonstrate both that the claim is
legally sufficient and that there is sufficient evidence to
establish a prima facie case with respect to the claim.” (Taus v.

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Loftus (2007) 40 Cal.4th 683, 714.) “[C]laims with the requisite
minimal merit may proceed.” (Navellier, supra, 29 Cal.4th at
p. 94.) The moving party prevails by “defeat[ing]” the “claim as
a matter of law” (Baral, supra, 1 Cal.5th at p. 385) in “a
summary-judgment-like procedure” (Taus, at p. 714).
As relevant here, we recognized in Navellier that the anti-
SLAPP statute can apply to a breach of contract claim, but the
statute “preserves appropriate remedies for breaches of
contracts involving speech” since “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 that contract.” (Navellier, supra, 29
Cal.4th at p. 94.) An essential element of Olson’s breach of
contract action is showing that Doe breached the mediation
agreement. (E.g., Oasis West Realty, LLC v. Goldman (2011)
51 Cal.4th 811, 821 [setting forth elements of breach of contract
claim].) In light of the language of the nondisparagement
clause, the mediation agreement as a whole, and the broader
context in which the agreement was negotiated, we hold that the
nondisparagement clause does not apply to statements made by
Doe in the litigation context. Thus, Olson has failed to make a
prima facie showing on this element sufficient to overcome Doe’s
special motion to strike.
The language of the nondisparagement clause is simple:
“The parties agree not to disparage one another.” Read in
isolation, this language is vague as to its scope and conceivably
could be understood to sweep broadly as Olson suggests. Yet a
few reasons suggest that such a reading — i.e., one that
prevents Doe from making any allegations potentially
disparaging against Olson in future litigation — is foreclosed as
a matter of law. (See People v. Doolin (2009) 45 Cal.4th 390,

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413, fn. 17 (Doolin) [“[w]here . . . the meaning of [the] agreement
does not turn on the credibility of extrinsic evidence,
interpretation is a question of law”].)
First, the nondisparagement clause must be understood in
connection with the mediation agreement as a whole. (See
Doolin, supra, 45 Cal.4th at p. 413, fn. 17 [“Our interpretation
of the agreement is guided by the basic principle that ‘[a]ny
contract must be construed as a whole, with the various
individual provisions interpreted together so as to give effect to
all, if reasonably possible or practicable.’ ”].) It is one of only six
numbered terms of the one-page agreement, and only three of
those constitute the substantive terms intended to directly
govern the prospective conduct of the parties. Apart from the
nondisparagement clause, Doe and Olson agreed “not to contact
or communicate with one another or guests accompanying them,
except in writing and/or as required by law,” and “to honor this
agreement by going their respective directions away from one
another” if “the parties encounter each other in a public place or
in common areas near their residences.” The purpose and
primary focus of the mediation agreement is self-evident from
the agreement as a whole: to set forth mutually agreeable
parameters to govern the parties’ potential future physical
interactions with one other, including encounters rendered
unavoidable by the fact that both owned condominium units in
the same building.
The terms of Doe and Olson’s agreement were
handwritten. The mediator had apparently run out of the
standard-issue, typed mediation agreements used at the
courthouse. But the substantive terms contained in Doe and
Olson’s agreement nonetheless share substantial similarity
with those contained in the version provided by the clerk in

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response to a request for the “standard mediation agreement.”
The standard agreement provides: “The parties agree not to
communicate with each other directly or through persons acting
on their behalf . . . .” Further, although the standard agreement
does not anticipate parties sharing a residential building, it
says: “The parties agree to stay away from each other and their
respective property, including but not limited to, their
residences, places of employment, and personal property,” and
“[s]hould the parties encounter each other in a public place, they
agree to continue going in their respective directions away from
one another.”
The standard-issue mediation agreement also has a
nondisparagement clause of sorts. It provides that the “parties
agree to not gossip about each other to anyone. The parties
further agree to not comment . . . about each other to non-
governmental 3rd parties unless specifically requested to do so.
If they are asked to comment, they shall refer to each other
using neutral terms and shall not use negative words or
disparage one another.” By specifically exempting
“governmental 3rd parties” from its ambit, the form makes clear
that such agreements are intended to prevent interpersonal
third party “gossip” and rumor-spreading, not official filings
with legal authorities. The similarities between Doe and Olson’s
agreement and the standard-issue form suggest that the parties
did not intend something out of the ordinary with their
agreement. The standard-issue form, moreover, makes clear
that the typical nondisparagement clause is not intended to
apply to litigation conduct.
Absent from either Doe and Olson’s agreement or the
standard mediation agreement are terms providing any release
from liability or waiver of claims. Olson seeks a broad reading

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of the nondisparagement clause, one that would effectively serve
the purpose of those missing terms. Yet we must tread carefully
in such circumstances. “ ‘Release, indemnity and similar
exculpatory provisions are binding on the signatories and
enforceable so long as they are . . . “clear, explicit and
comprehensible in each [of their] essential details. Such an
agreement, read as a whole, must clearly notify the prospective
releasor or indemnitor of the effect of signing the agreement.” ’ ”
(Skrbina v. Fleming Companies (1996) 45 Cal.App.4th 1353,
1368, quoting Powers v. Superior Court (1987) 196 Cal.App.3d
318, 320.) Moreover, according to the terms of the agreement,
Doe’s section 527.6 petition was dismissed “without prejudice,”
in clear contemplation of the potential for further section 527.6
proceedings. A broad reading of the nondisparagement clause
would render a dismissal without prejudice meaningless if Doe
could be liable for breach of the mediation agreement were she
to exercise her right to seek further section 527.6 relief against
Olson or against any other party where the underlying factual
allegations touch on Olson. Olson concedes that the mediation
agreement does not limit Doe’s ability to file a renewed petition
for a restraining order against him; he agrees that Doe would
not face contract damages for doing so. But he provides no
reason to believe the parties intended to permit Doe to make
disparaging remarks in one kind of litigation (a subsequent
petition for a restraining order) but not in other litigation
seeking a different type of relief.
The parties’ agreements further suggest that they
contemplated the possibility of future litigation outside of
section 527.6 proceedings. The “Mediation/Confidentiality
Agreement” between Doe and Olson says that “each party . . .
understands and acknowledges that evidence presented during

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this mediation may be verified outside of the mediation process
and used as evidence in subsequent legal proceedings.” (Italics
added.) The mediation agreement itself also specifically
provides, immediately above the signature line, that “this
written settlement may be disclosed in a court of law. Upon
disclosure, this agreement may be admitted as evidence and/or
enforced as determined to be appropriate by the court.” Thus,
the parties’ agreements as a whole counsel against an expansive
reading of the nondisparagement clause.
Second, the mediation agreement is inextricably linked to
the broader context in which it was negotiated — i.e., in a
proceeding for a civil harassment restraining order. This
context is critical. (See Civ. Code, § 1647 [“A contract may be
explained by reference to the circumstances under which it was
made, and the matter to which it relates.”]; id., § 1648
[“However broad may be the terms of a contract, it extends only
to those things concerning which it appears that the parties
intended to contract.”].) Such a proceeding is statutorily
designed to narrowly focus on interpersonal conflict. Its
purpose, when warranted by the circumstances, is to prevent
threatened future injury through a resulting “order enjoining a
party from harassing, intimidating, molesting, attacking,
striking, stalking, threatening, sexually assaulting, battering,
abusing, telephoning, including, but not limited to, making
annoying telephone calls, as described in Section 653m of the
Penal Code, destroying personal property, contacting, either
directly or indirectly, by mail or otherwise, or coming within a
specified distance of, or disturbing the peace of, the petitioner.”
(§ 527.6, subd. (b)(6)(A).)
The narrow focus of these proceedings is communicated to
petitioners through instructions issued by the Judicial Council.

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Judicial Council form CH-100-INFO explains that the purpose
of a civil harassment restraining order is to “protect people from
harassment.” The instructions explain that in a civil
harassment case, the court can “order a person to . . . [¶] [n]ot
harass or threaten you[,] [¶] [n]ot contact or go near you, and [¶]
[n]ot have a gun.” But the court cannot, among other things,
“[o]rder a person to pay money that he or she owes you.”
That the petitioner in a section 527.6 proceeding has no
ability to seek, and the court has no authority to order, redress
of past wrongs through damages or otherwise does not mean
that a petitioner waives the right to separately seek such other
remedies merely by utilizing this specialized statutory
procedure for imminent injunctive relief. To the contrary, the
statute expressly provides that “a petitioner” is “not preclude[d]
from using other existing civil remedies.” (§ 527.6, subd. (w).)
“Section 527.6 was passed to supplement the existing common
law torts of invasion of privacy and intentional infliction of
emotional distress by providing quick relief to harassment
victims threatened with great or irreparable injury,” not to
supplant those complementary remedies. (Grant v. Clampitt
(1997) 56 Cal.App.4th 586, 591, italics added.)
“Compromise agreements are, of course, ‘governed by the
legal principles applicable to contracts generally’ . . . [and]
‘regulate and settle only such matters and differences as appear
clearly to be comprehended in them by the intention of the
parties and the necessary consequences thereof, and do not
extend to matters which the parties never intended to include
therein, although existing at the time.’ ” (Folsom v. Butte
County Assn. of Governments (1982) 32 Cal.3d 668, 677.) We
have applied this principle in a somewhat analogous context
where we considered the meaning of the standard language used

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to release claims and causes of action in workers’ compensation
settlements. (See Claxton v. Waters (2004) 34 Cal.4th 367.)
Despite the broad language of the release at issue in Claxton —
“ ‘releas[ing] and forever discharg[ing] said employer and
insurance carrier from all claims and causes of action, whether
now known or ascertained, or which may hereafter arise or
develop as a result of said injury’ ” — we held that it “releases
only those claims that are within the scope of the workers’
compensation system, and does not apply to claims asserted in
separate civil actions.” (Claxton, at pp. 371, 376.) We construed
this language in light of the statutory context governing
workers’ compensation — in particular, the statute focuses
narrowly on eligible employee injuries where it provides the
exclusive remedy; some claims based on conduct contrary to
fundamental public policy are not subject to the scheme’s
exclusivity provisions; and other claims are not compensable or
cognizable under the scheme at all and must be pursued
separately. (Id. at pp. 372–374.) We also noted the goal of
“quickly provid[ing] benefits” to “injured workers,” the “informal
rules of pleading [that] apply to such proceedings,” and the fact
that “workers may be represented by individuals other than
attorneys.” (Id. at p. 373.)
Similar reasoning applies here. As noted, a petitioner
seeking a civil harassment restraining order and a court
reviewing such a request are confined by the limited nature of
section 527.6 proceedings. Tort and other actions seeking
retrospective relief by way of damages for the conduct
underlying a petition are not cognizable. It is clear from the
statute and legislative history that section 527.6 proceedings
are not intended to provide a forum for a global resolution of a
petitioner’s potential claims related to the underlying conduct

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at issue. Rather, section 527.6 provides “ ‘an expedited
procedure . . . to provide quick relief to harassed persons’ ”
(Smith, supra, 149 Cal.App.3d at p. 405), not to the exclusion of
a petitioner’s right to seek other relief through traditional civil
litigation and at a much slower pace (see § 527.6, subd. (w)).
Like the workers’ compensation scheme in Claxton, section
527.6 procedures are relatively informal, proceeding by “simple
and concise” forms that parties are required to use (§ 527.6,
subd. (x)(1)) and “with the expectation that victims often . . .
seek relief without the benefit of a lawyer,” as was the case here
with Doe proceeding in propia persona (Yost, supra, 51
Cal.App.5th at p. 521).
Moreover, the specific procedures governing the mediation
process for section 527.6 proceedings seem uniquely unsuited to
expanding a section 527.6 mediation beyond the statute’s
narrow focus. The parties were referred to mediation on the day
of the trial court hearing on Doe’s petition. As amici curiae note,
such mediations “are conducted only by court appointed
specially trained mediators,” “only on the court’s premises,” and
agreements “must be agreed to and signed the same day, by the
close of the courthouse day, which is usually about 4:30 p.m.” If
the parties fail to reach an agreement, an evidentiary hearing
on the section 527.6 petition typically begins the following day.
These procedures appear tailored to the narrow focus and
expedited nature of section 527.6 proceedings; expanding the
mediation to consider additional issues would run counter to the
statutory purpose of “ ‘provid[ing] quick relief to harassed
persons.’ ” (Smith, supra, 149 Cal.App.3d at p. 405.) This
counsels skepticism toward reading an agreement reached
through such a process to have far-reaching implications beyond
the section 527.6 context.

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Opinion of the Court by Liu, J.

Finally, it is undisputed that Doe’s administrative and
civil complaints constitute petitioning activity protected by
section 425.16 and article I, section 3 of the California
Constitution. (See Briggs v. Eden Council for Hope &
Opportunity (1999) 19 Cal.4th 1106, 1115 [“ ‘petitioning activity
involves lobbying the government, suing, [and] testifying’ ” and
“ ‘ “[t]he constitutional right to petition . . . includes the basic act
of filing litigation or otherwise seeking administrative
action” ’ ”].) Although the right to petition is somewhat
differently situated from the right to a jury trial under article I,
section 16 of the California Constitution (see Code Civ. Proc.,
§ 631; Grafton Partners v. Superior Court (2005) 36 Cal.4th 944),
the fact that Olson’s broad construction of the
nondisparagement clause in the mediation agreement would
impair Doe’s exercise of constitutional rights remains an
important consideration. (Janus v. American Federation of
State, County & Mun. Employees, Council 31 (2018) 585 U.S. __,
__ [138 S.Ct. 2448, 2486] [waiver of 1st Amend. rights “cannot
be presumed” and, “to be effective, . . . must be freely given and
shown by ‘clear and compelling’ evidence”].)
In sum, the mediation agreement as a whole, the statutory
context in which it was negotiated, and the fact that it
implicates constitutionally protected petitioning activity lead us
to conclude that the nondisparagement clause does not apply to
the circumstances here. Under the reading Olson urges, the
clause would seem to constrain Doe’s ability to further avail
herself of the very protections provided by section 527.6,
including filing another petition or utilizing the “other existing
civil remedies” that the statute expressly preserves. (§ 527.6,
subd. (w).) Under Olson’s interpretation of the agreement, the
nondisparagement clause would even apply to statements the

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Opinion of the Court by Liu, J.

parties make in litigation involving third parties or about
conduct occurring after Doe and Olson entered into the
agreement. We see no indication that the parties understood
the nondisparagement clause to sweep so broadly. Olson’s
reliance on the bare text of the clause, devoid of context and
without more, is insufficient to proceed on a breach of contract
claim in the face of an anti-SLAPP motion.
We are not confronted with factual circumstances that
might make the anti-SLAPP question more difficult, such as
conduct that falls somewhere between direct communication
between the parties as contemplated by the mediation
agreement and subsequent litigation. For example, this case
does not concern whether the nondisparagement clause might
apply to a concerted, hostile media campaign by one party
against the other. We have no occasion here to address such a
scenario. Olson has failed to show “the requisite minimal merit”
to “proceed” on his breach of contract claim. (Navellier, supra,
29 Cal.4th at p. 94.)
B.
Olson argues that Doe may “try to prove her tort causes of
action” but “cannot shoot and miss without facing the penalty of
contract damages.” First, Olson analogizes the Court of
Appeal’s holding to the statutory provisions governing family
law proceedings and custody determinations in the face of one
parent’s potentially false accusations of sexual abuse by the
other. According to Olson, such family law provisions
demonstrate “another context where the Legislature has
recognized the incentive to make false accusations can be so
great as to overwhelm the motivation for veracity.” But the
analogy does not hold. We are not confronted with how to apply

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Opinion of the Court by Liu, J.

a highly reticulated statutory scheme reflecting the
Legislature’s sensitive policy judgments. This case turns on an
ordinary question of contract interpretation that the Legislature
likely did not contemplate when enacting section 527.6 or the
anti-SLAPP statute.
Next, Olson contends that the answer to the question
before us is “simple because the Court of Appeal’s holding does
not bar Doe’s claims but allows Olson to plead and prove his.”
Olson’s argument is that “the non-disparagement clause in the
mediated agreement does not operate to ‘bar’ Doe’s ‘unlimited
civil lawsuit’ ” because Doe can still proceed with her claims, just
with the specter of breach of contract liability hanging over her
head. This fails to respond to the substance of the question at
hand. Whether the claim is that Doe cannot file suit or that she
may be subject to damages liability for doing so is materially the
same for purposes of assessing whether the nondisparagement
clause applies to statements made in connection with
subsequent litigation.
In Olson’s view, even if Doe prevailed on her sexual
battery claim, he could also prevail on his breach of contract
claim and seek damages for economic injury based on
reputational harm to offset any damages he owed her. Such an
interpretation could require Doe to pay Olson after having
successfully proven her case if his damages exceed those
awarded to her. There are strong public policy reasons to refrain
from such an interpretation. Not long after the mediation
agreement in this case was signed, the Legislature clarified that
a provision within a settlement agreement that prevents the
disclosure of factual information related to sexual assault or
harassment is prohibited. (Code Civ. Proc. § 1001, subd. (a)(1),
(2); see Assem. Com. on Judiciary, Analysis of Sen. Bill No. 820

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Opinion of the Court by Liu, J.

(2017–2018 Reg. Sess.) as amended June 20, 2018, pp. 3–4
[expressing concerns with confidentiality provisions in
settlement agreements in cases involving sexual harassment
and assault].) While Olson’s interpretation of the clause would
not prohibit Doe from revealing factual information, the specter
of liability would clearly disincentivize it.
Olson is correct, of course, that generally speaking a party
can “validly contract[] not to speak or petition” and thereby
“ ‘waive[]’ the right to the anti-SLAPP statute’s protection in the
event he or she later breaches that contract.” (Navellier, supra,
29 Cal.4th at p. 94.) But the circumstances here are
meaningfully different from what we have confronted in other
cases.
In Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, a
tort settlement “included several provisions purporting to
impose confidentiality obligations on the parties and their
counsel,” and counsel signed the agreement “under a notation
that they approved [it] as to form and content.” (Id. at p. 785.)
Monster Energy subsequently sued counsel, alleging that public
statements about the settlement constituted breach of the
agreement. We held that Monster Energy had met its burden of
showing the “minimal merit” needed to proceed on the breach of
contract claim “[i]n light of the nature and extent of provisions
in the agreement here purporting to bind counsel, and the other
properly submitted evidence.” (Id. at p. 796.) We specifically
looked to the agreement’s “numerous references to counsel as
one whose keeping of confidentiality is assured,” which
“reflect[ed] an expectation that the confidentiality provisions
would apply to counsel as well.” (Ibid.) Thus, we found it
“reasonable to argue that counsel’s signature on the document
evinced an understanding of the agreement’s terms and a

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Opinion of the Court by Liu, J.

willingness to be bound by the terms that explicitly referred to
him.” (Ibid.)
Whereas the agreement as a whole, together with
extrinsic evidence, supported the breach of contract claim in
Monster Energy, Olson relies solely on the text of the
nondisparagement clause. Going beyond that isolated language,
as we must, to consider the mediation agreement as a whole and
the context in which it was negotiated undermines Olson’s
showing on a critical element of his claim: Doe had no obligation
under the contract to refrain from making disparaging
statements in litigation. Olson thus cannot defeat Doe’s anti-
SLAPP motion.
C.
We also granted review to decide under what
circumstances the litigation privilege of Civil Code section 47,
subdivision (b) applies to contract claims. Because we conclude
that Olson has not demonstrated a probability of success
necessary to overcome Doe’s anti-SLAPP motion, we need not
and do not reach the question whether the litigation privilege
also poses a barrier to Olson’s claims. (See Flatley v. Mauro
(2006) 39 Cal.4th 299, 323 [“The litigation privilege is also
relevant to the second step in the anti-SLAPP analysis in that
it may present a substantive defense a plaintiff must overcome
to demonstrate a probability of prevailing.”].) We note only that
the approach we have taken here — carefully construing a
clause that would effectively waive claims — is similar to the
approach of courts that have assessed the application of the
privilege in the context of a contract said to have waived it. (See
O’Brien & Gere Eng’rs. v. City of Salisbury (Md. 2016) 135 A.3d
473, 489–491.)

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Opinion of the Court by Liu, J.

CONCLUSION
We reverse the judgment of the Court of Appeal insofar as
it reversed the trial court’s order granting Doe’s special motion
to strike the breach of contract cause of action with respect to
statements in Doe’s civil complaint. We remand the matter for
further proceedings consistent with this opinion.

LIU, J.

We Concur:
CANTIL-SAKAUYE, C. J.
CORRIGAN, J.
KRUGER, J.
GROBAN, J.
JENKINS, J.
MOOR, J.*

*
Associate Justice of the Court of Appeal, Second Appellate
District, Division Five, assigned by the Chief Justice pursuant
to article VI, section 6 of the California Constitution.

23
See next page for addresses and telephone numbers for counsel who
argued in Supreme Court.

Name of Opinion Olson v. Doe
__________________________________________________________

Procedural Posture (see XX below)
Original Appeal
Original Proceeding
Review Granted (published)
Review Granted (unpublished) XX NP opn. filed 8/30/19 – 2d Dist.,
Div. 8
Rehearing Granted
__________________________________________________________

Opinion No. S258498
Date Filed: January 13, 2022
__________________________________________________________

Court: Superior
County: Los Angeles
Judge: Craig D. Karlan
__________________________________________________________

Counsel:

Buchalter, Robert M. Dato, Eric Michael Kennedy, Robert Collings
Little and Paul Augusto Alarcón for Cross-complainant and Appellant.

Martinez Business & Immigration Law Group, Gloria P. Martinez-
Senftner; Keiter Appellate Law, Mitchell Keiter; Sidley Austin, David
R. Carpenter, Collin P. Wedel, Andrew B. Talai, Joel L. Richert, Paula
C. Salazar; Bryan Cave Leighton Paisner, Jean-Claude André, Anne
Redcross Beehler and Kristy Anne Murphy for Cross-defendant and
Respondent.

Goodwin Procter, Neel Chatterjee, Alexis S. Coll-Very, Stella Padilla,
Megan D. Bettles; Arati Vasan, Janani Ramachandran, Jennafer
Dorfman Wagner, Erin C. Smith; and Amy C. Poyer for Family
Violence Appellate Project and California Women’s Law Center as
Amici Curiae on behalf of Cross-defendant and Respondent.
Law Offices of Aimee J. Zeltzer and Aimee Zeltzer for John K. Mitchell
and Dr. Jack R. Goetz as Amici Curiae on behalf of Cross-defendant
and Respondent.
Counsel who argued in Supreme Court (not intended for
publication with opinion):

Eric Michael Kennedy
Buchalter
1000 Wilshire Boulevard, Suite 1500
Los Angeles, CA 90017
(213) 891-5051

Jean-Claude André
Bryan Cave Leighton Paisner LLP
120 Broadway, Suite 300
Santa Monica, CA 90401-2386
(310) 576-2148