Monster Energy Company v. Schechter

IN THE SUPREME COURT OF

CALIFORNIA

MONSTER ENERGY COMPANY,

Plaintiff and Respondent,

v.

BRUCE L. SCHECHTER et al.,

Defendants and Appellants.

S251392

Fourth Appellate District, Division Two

E066267

Riverside County Superior Court

RIC1511553

July 11, 2019

Justice Corrigan authored the opinion of the Court, in which

Chief Justice Cantil-Sakauye and Justices Chin, Liu, Cuéllar,

Kruger, and Groban concurred.

MONSTER ENERGY CO. v. SCHECHTER

S251392

Opinion of the Court by Corrigan, J.

Here the parties to a tort action agreed to settle their

lawsuit. Their agreement was reduced to writing and included

several provisions purporting to impose confidentiality

obligations on the parties and their counsel. All parties signed

the agreement and their lawyers signed under a notation that

they approved the written agreement as to form and content.

Counsel allegedly violated the agreement by making

public statements about the settlement and were sued, inter

alia, for breach of contract. Counsel urged they were not

personally bound by the confidentiality provisions and moved

to dismiss the suit under the anti-SLAPP1 statutes. As to the

cause of action at issue here, the trial court denied counsels’

motion. The Court of Appeal reversed that ruling, concluding

the notation meant only that counsel recommended their

clients sign the document. We conclude the notation does not

preclude a factual finding that counsel both recommended their

clients sign the document and intended to be bound by its

provisions.

1

“ ‘SLAPP’ is an acronym for ‘strategic lawsuit against

public participation.’ ” (Baral v. Schnitt (2016) 1 Cal.5th 376,

381, fn. 1 (Baral), citing Equilon Enterprises v. Consumer

Cause, Inc. (2002) 29 Cal.4th 53, 57.)

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Opinion of the Court by Corrigan, J.

I. BACKGROUND

In 2012, Wendy Crossland and Richard Fournier sued

Monster Energy Company (“Monster Energy”) for products

liability and wrongful death following the death of their

daughter. (Hereafter “the Crossland suit.”) Bruce L.

Schechter and his firm R. Rex Parris Law Firm represented

Crossland and Fournier.2 In 2015, the parties entered into a

confidential settlement agreement. The agreement stated that

it was made “on the behalf of the settling Parties, individually,

as well as on the behalf of their, without limitation, respective

beneficiaries, trustees, principals, attorneys, officers, directors,

shareholders, employers, employees, parent company(ies),

affiliated company(ies), subcontractors, members, partners,

subsidiaries, insurers, predecessors, successors-in-interest, and

assigns.”3 (Emphasis added.) The agreement included a

confidentiality clause: “The Parties understand and

acknowledge that all of the terms, conditions and details of this

Settlement Agreement including its existence are to remain

confidential. Plaintiffs and their counsel agree that they will

keep completely confidential all of the terms and contents of

2

Crossland and Fournier were also represented by

attorney Michael E. Blumenfield of Miles & Stockbridge P.C.

3

A section entitled “Binding Agreement” stated: “The

Parties acknowledge that this Settlement Agreement, inclusive

of the releases contained herein, was the product of good faith

negotiations, is final, and wholly binding upon them, as well as

inure to the benefit of the Released Parties, inclusive of, but

not limited to, their respective successors, devisees, executors,

administrators, affiliates, representatives, insurers, spouse,

dependents, successors, heirs, issue, assigns, officers, directors,

partners, agents, subcontractors, attorneys, employers, and

employees.”

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Opinion of the Court by Corrigan, J.

this Settlement Agreement, and the negotiations leading

thereto, and will not publicize or disclose the amounts,

conditions, terms, or contents of this Settlement Agreement in

any manner . . . . [¶] Specifically, and without limitation,

Plaintiffs and their counsel of record, individually and on

behalf of themselves and their principals, partners, agents,

attorneys, servants, representatives, parents, spouse,

dependents, issue, heirs, insurers, predecessors, successors-in-

interest and assigns agree and covenant, absolutely and

without limitation, to not publicly disclose to any person or

entity, including, but not limited to, newspapers, magazines,

television, fliers, documentaries, brochures, Lawyers &

Settlements, VerdictSearch (or the like), billboards, radio,

newsletters, and/or the Internet” certain facts related to the

settlement. (Emphasis added.) The agreement continued that

“[i]n regard to any communication concerning the settlement of

this Action, the Parties and their attorneys and each of them

hereby agree that neither shall make any statement about the

Action, each other party or Defendants’ products in relation to

this Action, in the media, including but not limited to print,

television, radio or Internet,” and any comment “shall be

limited to the following, or words to their effect: ‘This matter

has been resolved.’ ” (Emphasis added.) The agreement also

contained other provisions referring to attorneys for the parties

in the Crossland suit.4 The agreement was signed by the

4

The provisions included: (1) a release and discharge of

the parties and their attorneys from claims arising from the

suit, except that “[n]othing herein, however, shall be deemed a

limitation of any kind, release, and or discharge on, or

prohibition of Plaintiffs’ attorneys’ prosecution of any current

or future claims against the Released Parties not arising out of

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Opinion of the Court by Corrigan, J.

parties. The parties’ attorneys, including Schechter, signed

under the preprinted notation “APPROVED AS TO FORM

AND CONTENT.”

Shortly after the settlement, an article appeared on the

website “LawyersandSettlements.com” entitled “ ‘Substantial

Dollars’ for Family in Monster Energy Drink Wrongful Death

Suit.” The article, written by Brenda Craig, attributed several

quotes to Schechter. According to the article, “Schechter’s

most recent case resulted in ‘substantial dollars’ for the family

of a 14-year-old that went to the mall with girlfriends in the

summer of 2011, drank two Monster Energy drinks and died of

cardiac arrest. [¶] Schechter can’t reveal the exact amount

because he says, ‘Monster wants the amount to be sealed.’ ”

The article describes how Schechter has filed three additional

suits against Monster Energy and quotes his statements that

he believes its products are unsafe. The article concluded with

a link and a phone number for “Monster Energy Drink Injury

Legal Help.” Craig attested to the accuracy of Schechter’s

statements quoted in the article.

Monster Energy sued defendants Schechter and R. Rex

Parris Law Firm, alleging four causes of action: breach of

contract; breach of the implied covenant of good faith; unjust

the Incident in any jurisdiction and venue”; and (2) a non-

disparagement clause applicable to the parties but which did

not limit “Plaintiffs’ attorneys’ ability to disparage (within the

confines of the law) Defendants or Defendants’ products in

connection with other current or future litigation against the

Released Parties in any jurisdiction and venue” or “Plaintiffs’

attorneys’ prosecution of other current or future litigation

against the Released Parties in any jurisdiction and venue.”

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Opinion of the Court by Corrigan, J.

enrichment; and promissory estoppel. Defendants filed a

special motion to strike the complaint (Code Civ. Proc.,

§ 425.16), arguing the suit implicated Schechter’s

constitutional free speech rights. The court denied the motion

as to the breach of contract claim but granted it as to the other

causes of action. The court found “the settlement clearly

contemplates counsel as being subject to the agreement” and

noted that “Schechter signed the agreement.” The court

concluded that the “suggestion that [Schechter] is not a party

to the contract merely because he approved it as to form and

content only is beyond reason.” The Court of Appeal reversed

the trial court’s denial of the anti-SLAPP motion as to the

breach of contract claim. (See Monster Energy Co. v. Schechter

(2018) 26 Cal.App.5th 54.)

II. DISCUSSION

A. Legal Background

“Code of Civil Procedure section 425.16 sets out a

procedure for striking complaints in harassing lawsuits that

are commonly known as SLAPP suits . . . which are brought to

challenge the exercise of constitutionally protected free speech

rights.” (Kibler v. Northern Inyo County Local Hospital Dist.

(2006) 39 Cal.4th 192, 196.) A cause of action arising from a

person’s act in furtherance of the “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 claim will prevail. (Code Civ. Proc., § 425.16, subd. (b)(1).)

“The anti-SLAPP statute does not insulate defendants

from any liability for claims arising from the protected rights of

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Opinion of the Court by Corrigan, J.

petition or speech. It only provides a procedure for weeding

out, at an early stage, meritless claims arising from protected

activity. Resolution of an anti-SLAPP motion involves two

steps. First, the defendant must establish that the challenged

claim arises from activity protected by section 425.16.

[Citation.] If the defendant makes the required showing, the

burden shifts to the plaintiff to demonstrate the merit of the

claim by establishing a probability of success. We have

described this second step as a ‘summary-judgment-like

procedure.’ [Citation.] The court does not weigh evidence or

resolve conflicting factual claims. Its inquiry is limited to

whether the plaintiff has stated a legally sufficient claim and

made a prima facie factual showing sufficient to sustain a

favorable judgment. It accepts the plaintiff’s evidence as true,

and evaluates the defendant’s showing only to determine if it

defeats the plaintiff’s claim as a matter of law. [Citation.]

‘[C]laims with the requisite minimal merit may proceed.’ ”

(Baral, supra, 1 Cal.5th at pp. 384-385, fn. omitted.) The grant

or denial of an anti-SLAPP motion is reviewed de novo. (Park

v. Board of Trustees of California State University (2017) 2

Cal.5th 1057, 1067.) As to the second step, a plaintiff seeking

to demonstrate the merit of the claim “may not rely solely on

its complaint, even if verified; instead, its proof must be made

upon competent admissible evidence.” (San Diegans for Open

Government v. San Diego State University Research

Foundation (2017) 13 Cal.App.5th 76, 95; see Grenier v.

Taylor (2015) 234 Cal.App.4th 471, 480; City of Costa Mesa v.

D’Alessio Investments, LLC (2013) 214 Cal.App.4th 358, 376;

Paiva v. Nichols (2008) 168 Cal.App.4th 1007, 1017.)

It is undisputed that defendants met their first-step

showing. The issue here is whether Monster Energy

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sufficiently established a probability of prevailing on its breach

of contract claim. That claim, in turn, hinges on whether

defendants were bound by the confidentiality provisions of the

Crossland settlement. “A settlement agreement is a contract,

and the legal principles which apply to contracts generally

apply to settlement contracts. [Citation.] An essential element

of any contract is ‘consent.’ [Citations.] The ‘consent’ must be

‘mutual.’ [Citations.] ‘Consent is not mutual, unless the

parties all agree upon the same thing in the same sense.’ (Civ.

Code, § 1580; see also Civ. Code, § 1636 . . . .)” (Weddington

Productions, Inc. v. Flick (1998) 60 Cal.App.4th 793, 810-811;

see Civ. Code, § 1550 [essential elements of a contract].) “ ‘The

existence of mutual consent is determined by objective rather

than subjective criteria, the test being what the outward

manifestations of consent would lead a reasonable person to

believe. [Citation.] Accordingly, the primary focus in

determining the existence of mutual consent is upon the acts of

the parties involved.’ ” (T.M. Cobb Co. v. Superior Court (1984)

36 Cal.3d 273, 282; see Civ. Code, § 1565 [essentials of

consent].)

There is no question that the language of the settlement

agreement generally, and the confidentiality provisions in

particular, purported to encompass not only the Crossland

parties but also their respective counsel. Further, counsel

could consent to be bound by the agreement’s provisions, and,

ordinarily, “[i]n the absence of fraud, mistake, or another

vitiating factor, a signature on a written contract is an

objective manifestation of assent to the terms set forth there.”

(Rodriguez v. Oto (2013) 212 Cal.App.4th 1020, 1027.)

Defendants argue that Schechter’s signature on the settlement

agreement did not manifest his consent to be bound by its

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provisions because he signed under the notation “APPROVED

AS TO FORM AND CONTENT.” They urge his signature

conveyed only that defendants were approving the agreement

for their clients’ signatures. The Court of Appeal agreed,

relying on two cases construing similar notations: Freedman v.

Brutzkus (2010) 182 Cal.App.4th 1065 (Freedman) and RSUI

Indem. Co. v. Bacon (Neb. 2011) 810 N.W.2d 666 (RSUI).

In Freedman, two companies, Teddi and CAI, entered

into a licensing agreement. During negotiations, attorney

Freedman represented Teddi while attorney Brutzkus

represented CAI. Because Freedman had performed legal

services for CAI in the past, CAI agreed to waive any conflict of

interest. The licensing agreement explicitly stated that

Freedman represented only Teddi’s interests. In addition to

the parties, the attorneys signed the licensing agreement with

the notation, “ ‘Approved as to Form and Content.’ ”

(Freedman, supra, 182 Cal.App.4th at p. 1068.) A dispute

arose and CAI sued Teddi, leading to the latter’s bankruptcy.

CAI also sued Freedman, alleging Freedman had represented

CAI during negotiations and that he made statements assuring

CAI that Teddi would fulfill its obligations. In the course of

this suit, Brutzkus testified at a deposition that CAI and its

owner “were relying on Freedman in connection with the

transaction on the basis of their ‘ “long standing professional

relationship,” ’ ” and Brutzkus “did not tell Freedman or

anyone else representing Teddi about that reliance on

Freedman, or that the conflict waiver provisions in the

agreement were inaccurate.” (Ibid.)

Freedman then sued Brutzkus, alleging tort claims.

Freedman asserted that “in approving the agreement, ‘as to

form and content,’ Brutzkus made an actionable representation

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. . . as to the accuracy of the agreement” that he knew was

false because the agreement included an inaccurate conflict of

interest waiver. (Freedman, supra, 182 Cal.App.4th at p.

1068.) The trial court granted Brutzkus’s demurrer and the

Court of Appeal affirmed, reasoning that “the only reasonable

meaning to be given to a recital that counsel approves the

agreement as to form and content, is that the attorney, in so

stating, asserts that he or she is the attorney for his or her

particular party, and that the document is in the proper form

and embodies the deal that was made between the parties.”

(Id. at p. 1070.) Freedman approved the trial court’s

characterization of the phrase as showing “that counsel has

read the agreement, that the recital formalizes counsel’s

involvement as attorney to one of the parties, . . . the recital

adds solemnity to the contract’s formation,” and “Brutzkus

gave this approval to his client.” (Ibid.) Freedman concluded

“that Brutzkus’s signature approving the document as to form

and content was not an actionable representation” to opposing

counsel. (Ibid.)

The Nebraska Supreme Court in RSUI applied similar

reasoning with respect to a breach of contract claim. Ronald

Bacon was injured while working on a construction site. He

sued Kiewit Construction, the general contractor, and Ridgetop

Holdings, the parent company of the subcontractor that

employed him. Kiewit and Bacon settled. The settlement

agreement included a provision that, in the event Bacon settles

with Ridgetop, “BACON and his attorneys” agree to pay Kiewit

a specified percentage of the settlement. (RSUI, supra, 810

N.W.2d at p. 670.) The attorneys for both parties signed the

agreement under the notation, “ ‘Agreed to in Form &

Substance.’ ” (Ibid.) Bacon subsequently settled with Ridgetop

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but refused to pay anything to Kiewit. Kiewit’s insurers sued

Bacon and his attorneys for breach of contract and obtained a

judgment. (Id. at p. 671.)

RSUI reversed the judgment as to Bacon’s attorneys,

concluding they had no personal liability. Although

acknowledging “the general rule that an agent, acting for a

disclosed principal, is not liable for the principal’s contract,”

the court observed that “an agent can become personally liable

if ‘the agent purports to bind himself or herself, or has

otherwise bound himself or herself, to performance of the

contract.’ ” (RSUI, supra, 810 N.W.2d at p. 671.) The court

held the attorneys did not so bind themselves. The signature

“under the legend ‘Agreed to in Form & Substance’

demonstrates only that he was Bacon’s attorney[5] and that ‘the

document [was] in the proper form and embodie[d] the deal

that was made between the parties.’ Nothing about the

signature indicates or implies an intent to incur personal

liability on the contract. Indeed, Kiewit’s attorney signed an

identical signature block even though no contractual language

could be construed to impose a personal obligation on Kiewit’s

attorney. In addition, the contractual language relied upon by

[the insurers] is ambiguous, but at most governs the manner

by which payment under the contract was to be made, not the

parties which were to be liable for such payment.” (Id. at p.

672, fn. omitted.)

The Court of Appeal here initially noted “that the

confidentiality provisions of the settlement agreement did at

least purport to bind the Attorneys.” (Monster Energy Co. v.

5

Only one of Bacon’s attorneys signed the agreement.

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Schechter, supra, 26 Cal.App.5th at p. 65.) However, the court

concluded defendant counsel were not bound by the agreement.

It first reasoned that counsel were not identified as parties to

the agreement and the parties could not bind them without

their consent. (Id. at pp. 66-67.) Second, relying on Freedman

and RSUI, the court reasoned that Schechter’s signature on

the agreement did not express an intent to be bound: “[T]he

language in the settlement agreement purporting to impose

obligations on the Attorneys was a nullity, unless and until the

Attorneys consented to it. And while Freedman is not precisely

on point, it does stand for the proposition that an attorney’s

signature under words such as ‘approved as to form and

content’ means only that the document has the attorney’s

professional thumbs-up. It follows that it does not objectively

manifest the attorney’s intent to be bound.” (Id. at p. 69.)

While acknowledging that “confidentiality is often a material

term of a settlement agreement” and a party may not be

inclined to settle if opposing counsel “is free to blab about it,”

the court suggested “[i]t seems easy enough, however, to draft

a settlement agreement that explicitly makes the attorneys

parties (even if only to the confidentiality provision) and

explicitly requires them to sign as such.” (Ibid.)

B. The Significance Of “Approved As To Form And

Content”

In light of the procedural posture here, the issue we

address is a narrow one. As noted, at the second anti-SLAPP

step, “ ‘a plaintiff responding to an anti-SLAPP motion must

“ ‘state[] and substantiate[] a legally sufficient claim.’ ”

[Citation.] Put another way, 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

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judgment if the evidence submitted by the plaintiff is

credited.” ’ [Citation.] ‘. . . However, we neither “weigh

credibility [nor] compare the weight of the evidence. Rather,

[we] accept as true the evidence favorable to the plaintiff

[citation] and evaluate the defendant’s evidence only to

determine if it has defeated that submitted by the plaintiff as a

matter of law.” ’ ” (Oasis West Realty, LLC v. Goldman (2011)

51 Cal.4th 811, 820 (Oasis West).)

We agree with Freedman’s characterization of what the

notation “approved as to form and content” means. The

notation affirms that counsel has read the document, it

embodies the parties’ agreement, and counsel perceives no

impediment to his client signing it. (Freedman, supra, 182

Cal.App.4th at p. 1070; cf. In re Marriage of Hasso (1991) 229

Cal.App.3d 1174, 1181.) A similar understanding of this

phrase is reflected in case law regarding orders signed by the

court and approved as to form and content by the parties’

attorneys. (See, e.g., Wagner v. Wagner (2008) 162 Cal.App.4th

249, 254; In re Marriage of Walters (1990) 220 Cal.App.3d

1062, 1069; In re Blaze (1969) 271 Cal.App.2d 210, 213-217.)

Thus, there appears a general consensus that “approved as to

form and content” has a fixed meaning understood by the legal

community, and we do not suggest otherwise.

This does not end our inquiry, however. The legal

question is whether counsel’s signature approving an

agreement as to form and content for his clients’ signature

precludes, as a matter of law, a finding that he also intended to

be bound by the agreement. If, as in Freedman, the agreement

contains no provision purporting to bind counsel or otherwise

impose any obligation on him, the question is easily answered.

(See Freedman, supra, 182 Cal.App.4th at pp. 1068-1069.) In

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that circumstance, counsel’s signature that he approved the

agreement as to form and content could only mean he is

approving it for his client’s signature.

But that will not always be the case. An attorney’s

signature on an agreement containing substantive provisions

imposing duties on counsel may reflect an intent to be bound

even though counsel also approves the document for his client’s

signature. RSUI is, of course, not binding on this court, but its

reasoning is instructive in this regard. (See Episcopal Church

Cases (2009) 45 Cal.4th 467, 490.) Concluding that counsel

there did not assume personal liability, the RSUI court did not

rely solely on the signature notation. Instead, it examined the

substance of the provisions at issue and reasoned that, at most,

the agreement “governs the manner by which payment under

the contract was to be made, not the parties which were to be

liable for such payment.” (RSUI, supra, 810 N.W.2d at p. 672.)

Thus, counsel’s signature that he approved the agreement as to

form and content did not reflect his intent to be personally

obligated to indemnify an opposing party if his client refused to

perform as the agreement required.

Here, a factfinder considering all the circumstances could

reasonably conclude Schechter agreed to be bound. (See

discussion post.) The confidentiality provisions are not only

extensive but repeatedly refer both to the parties and their

counsel. The agreement stated “Plaintiffs and their counsel

agree that they will keep completely confidential all of the

terms and contents of this Settlement Agreement, and the

negotiations leading thereto, and will not publicize or disclose

the amounts, conditions, terms, or contents of this Settlement

Agreement in any manner,” and “without limitation, Plaintiffs

and their counsel of record . . . agree and covenant, absolutely

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and without limitation, to not publicly disclose to any person or

entity” facts related to the settlement, specifically identifying

“Lawyers & Settlements” as an entity to whom counsel should

not disclose such facts. (Emphasis added.) The agreement also

required “the Parties and their attorneys” not to “make any

statement about the Action, each other party or Defendants’

products in relation to this Action, in the media,” and any

comment “shall be limited to the following, or words to their

effect: ‘This matter has been resolved.’ ” (Emphasis added.)

These extensive provisions regarding the specific conduct

of counsel stand in stark contrast to RSUI, where the

agreement only referenced counsel with respect to the

mechanics of payment under the parties’ agreement. Further,

RSUI involved a different procedural posture. The RSUI court

reversed the grant of summary judgment against the attorneys

after the trial court concluded the attorneys were liable under

the contract as a matter of law. By contrast, the trial court

here denied defendants’ anti-SLAPP motion, rejecting their

claim that they were not liable as a matter of law. It bears

emphasis that a plaintiff’s burden at the second anti-SLAPP

step is a low one, requiring only a showing that a cause of

action has at least “minimal merit within the meaning of the

anti-SLAPP statute.” (Oasis West, supra, 51 Cal.4th at p. 825.)

Our conclusion also recognizes the role that

confidentiality plays in facilitating settlement agreements.

“The privacy of a settlement is generally understood and

accepted in our legal system, which favors settlement and

therefore supports attendant needs for confidentiality.”

(Hinshaw, Winkler, Draa, Marsh & Still v. Superior Court

(1996) 51 Cal.App.4th 233, 241.) Routine public disclosure of

private settlement terms would “chill the parties’ ability in

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many cases to settle the action before trial. Such a result runs

contrary to the strong public policy of this state favoring

settlement of actions.” (Board of Trustees of California State

University v. Superior Court (2005) 132 Cal.App.4th 889, 899.)

There is little doubt here that “[c]onfidentiality was an

important term of that settlement” (Jalali v. Root (2003) 109

Cal.App.4th 1768, 1784), and the agreement goes to great

lengths to ensure that virtually nothing would be publicly said

about the case other than that it had been resolved. Indeed,

Schechter acknowledged in a deposition that “Monster would

not settle the case if the party did not agree to keeping it

confidential.” As noted, the agreement stated it was “the

product of good faith negotiations.” (Ante, at p. 2, fn. 3.)

Excluding counsel from the scope of the confidentiality clause

would risk undermining an important term of the agreement.6

Defendants argue they could not be found to be bound by

the settlement because they were not identified as parties to

the agreement. It is true the agreement does not include

counsel in its definition of “Party.” However, that label does

not answer the question of whether Schechter, by signing an

agreement that included provisions purporting to bind him

individually, manifested his intent to be so bound. It is the

substance of the agreement that determines his status as a

party to the contract, as opposed to a party to the lawsuit. The

agreement clearly refers to others beside the Crossland parties.

6

During the pendency of the anti-SLAPP proceedings,

none of the parties have argued that enforcement of the

confidentiality provisions here is contrary to public policy (see,

e.g., Cariveau v. Halferty (2000) 83 Cal.App.4th 126, 130-137),

and we do not address the question.

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(Cf. Sharp Image Gaming, Inc. v. Shingle Springs Band of

Miwok Indians (2017) 15 Cal.App.5th 391, 439 [contractual

labels not controlling]; Vons Companies, Inc. v. United States

Fire Ins. Co. (2000) 78 Cal.App.4th 52, 62 [same].)7

7

Defendants assert, without citation to the record, “[t]here

is no evidence that Attorney Schechter even negotiated the

Settlement Agreement,” suggesting that the agreement was

negotiated by a different firm. Even if we were to accept that

assertion, it does not assist Schechter. Regardless of whether

he personally negotiated the settlement, an attorney

representing the Crossland plaintiffs negotiated the settlement

on their behalf. Schechter thereafter read and signed the

document. Our reasoning regarding the significance of his

signature, pertaining to the language of the agreement itself,

remains unchanged.

Defendants also argue that plaintiff “presented no

evidence of any objective outward manifestation of the

Attorneys’ consent to be bound by the confidentiality provisions

of the Settlement Agreement communicated to Monster

Energy.” This argument is premised on defendants’ position

that Schechter’s signature could not convey an intent to be

bound by the document he signed, which included provisions

specifically applicable to counsel. As the premise does not

hold, the argument necessarily fails. Similarly lacking merit is

defendants’ contention that the agreement violates the statute

of frauds because it was not “subscribed by” Schechter as a

party. (Civ. Code, § 1624, subd. (a).) As discussed, one may

reasonably conclude that Schechter’s signature evinced his

intent to be bound, thus rendering the agreement “subscribed

by” him. (Cf. In re Marriage of Benson (2005) 36 Cal.4th 1096,

1108.)

The observations we make here relate only to an analysis

of the SLAPP question and a plaintiff’s low burden at the

second step. We do not express any opinion as to the facts that

may ultimately be adduced at trial. Nor by our rejection of

defendant’s legal argument in this regard do we intend to

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We conclude that an attorney’s signature on a document

with a notation that it is approved as to form and content does

not, as a matter of law, preclude a factual finding that the

attorney intended to be bound by the document’s terms. The

intent question requires an examination of the agreement as a

whole, including substantive provisions referring to counsel.

Ultimately, that question would be resolved by the trier of

fact.8

C. Consideration Of Evidence At The Second Anti-

SLAPP Step

Monster Energy argues the Court of Appeal “ignored”

evidence supportive of its position, including Schechter’s

statement to reporter Craig that he could not reveal the

amount of the settlement because “Monster wants the amount

to be sealed,” and his deposition testimony explaining his

signature. Monster contends this evidence showed Schechter

was aware that he was bound by the confidentiality provisions.

Defendants counter that the evidence was irrelevant to

establish an intent to be bound, arguing Schechter was merely

manifesting his ethical obligation to maintain client

confidences.

foreclose any defenses or inferences defendant may argue at

trial.

8

We do not suggest that counsel’s signature on a

settlement agreement approving it as to form and content will

always create a triable issue of fact with respect to counsel’s

intent to be bound by that agreement. A court may find as a

matter of law that counsel could not have so intended under

the circumstances where, for example, no substantive

provisions imposed obligations on counsel, as was the case in

Freedman.

17

MONSTER ENERGY CO. v. SCHECHTER

Opinion of the Court by Corrigan, J.

As discussed, at the second anti-SLAPP step, a court

“does not weigh the credibility or comparative probative

strength of competing evidence.” (Taus v. Loftus (2007) 40

Cal.4th 683, 714.) It “accepts the plaintiff’s evidence as true,

and evaluates the defendant’s showing only to determine if it

defeats the plaintiff’s claim as a matter of law.” (Baral, supra,

1 Cal.5th at p. 385.) “[W]e resolve conflicts and inferences in

the record in favor of plaintiff.” (Armin v. Riverside

Community Hospital (2016) 5 Cal.App.5th 810, 815.) However,

speculative inferences not supported by the evidence proffered

need not be considered. (See Kashian v. Harriman (2002) 98

Cal.App.4th 892, 931.)

Monster Energy is correct that properly submitted

admissible evidence should be considered, and a court

evaluating a probability of success should draw any non-

speculative inferences favorable to the plaintiff. (Sweetwater

Union High School Dist. v. Gilbane Building Co. (2019)

6 Cal.5th 931, 949; see Code Civ. Proc., § 425.16, subd. (b)(2).)

Here, the Court of Appeal had no occasion to consider the cited

evidence in light of its erroneous legal conclusion that a

signature with a notation that counsel approved the agreement

as to form and content precluded an inference that counsel also

intended to be bound by its terms. We review de novo the

probability of success and consider the evidence below.

(Sweetwater, at p. 940.)

D. Plaintiff Has Sufficiently Shown A Probability Of

Prevailing

On this record, plaintiff has shown a probability of

success sufficient to defeat defendant’s claim the suit lacks

even minimal merit. “The Legislature’s inclusion of a merits

prong to the statutory SLAPP definition . . . preserves

18

MONSTER ENERGY CO. v. SCHECHTER

Opinion of the Court by Corrigan, J.

appropriate remedies for breaches of contracts involving

speech by ensuring that claims with the requisite minimal

merit may proceed. [Citations.] Indeed, as the statute is

designed and as we have construed it, 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 v.

Sletten (2002) 29 Cal.4th 82, 94.)

Here, the settlement agreement makes numerous

references to counsel as one whose keeping of confidentiality is

assured. The wording can be understood to reflect an

expectation that the confidentiality provisions would apply to

counsel as well.9 Given this backdrop, it is reasonable to argue

that counsel’s signature on the document evinced an

understanding of the agreement’s terms and a willingness to

be bound by the terms that explicitly referred to him, which, in

turn, would appear consistent with the expectations of the

parties and their counsel. This understanding is also

supported by Schechter’s statement to reporter Craig that he

could not divulge the settlement amount because “ ‘Monster

wants the amount to be sealed,’ ” which, when viewed in the

light most favorable to plaintiff, could be interpreted as a tacit

acknowledgement that he was bound by the confidentiality

provisions. Further, assuming the confidentiality provisions

applied to him, sufficient evidence was presented that

Schechter violated them by making public comments about the

9

We have no occasion to decide if any terms of the

settlement agreement apply to entities other than the parties

and their respective counsel.

19

MONSTER ENERGY CO. v. SCHECHTER

Opinion of the Court by Corrigan, J.

settlement to a reporter from LawyersandSettlements.com. In

light of the nature and extent of provisions in the agreement

here purporting to bind counsel, and the other properly

submitted evidence, Monster Energy has met its burden of

showing its breach of contract claim has “minimal merit”

sufficient to defeat an anti-SLAPP motion. (Oasis West, supra,

51 Cal.4th at p. 825.)

III. DISPOSITION

The judgment of the Court of Appeal is reversed.

CORRIGAN, J.

We Concur:

CANTIL-SAKAUYE, C. J.

CHIN, J.

LIU, J.

CUÉLLAR, J.

KRUGER, J.

GROBAN, J.

20

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

Name of Opinion Monster Energy Company v. Schechter

__________________________________________________________________________________

Unpublished Opinion

Original Appeal

Original Proceeding

Review Granted XXX 26 Cal.App.5th 54

Rehearing Granted

__________________________________________________________________________________

Opinion No. S251392

Date Filed: July 11, 2019

__________________________________________________________________________________

Court: Superior

County: Riverside

Judge: Daniel A. Ottolia

__________________________________________________________________________________

Counsel:

Bremer Whyte Brown & O’Meara, Keith G. Bremer, Jeremy S. Johnson, Benjamin L. Price; Grignon Law

Firm, Margaret M. Grignon and Anne M. Grignon for Defendants and Appellants.

Shook, Hardy & Bacon, Frank C. Rothrock, Gabriel S. Spooner and Victoria P. McLaughlin for Plaintiff

and Respondent.

Murchison & Cumming, Edmund G. Farrell, III; Walsh Pizzi O’Reilly Falanga, Peter J. Pizzi and

Katherine M. Romano for International Association of Defense Counsel as Amicus Curiae on behalf of

Plaintiff and Respondent.

Counsel who argued in Supreme Court (not intended for publication with opinion):

Margaret M. Grignon

Grignon Law Firm

6621 East Pacific Coast Highway, Suite 200

Long Beach, CA 90803

(562) 285-3171

Frank C. Rothrock

Shook, Hardy & Bacon

5 Park Plaza, Suite 1600

Irvine, CA 92614-2546

(949) 475-1500