Opinion
NOT TO BE PUBLISHED
San Francisco City & County Super. Ct. No. 468006
Margulies, J.
Plaintiff SF Wharf Enterprises, Inc. (SF Cigar) operated a cigar store in retail space leased from defendant W.W. Wharf GL, Inc. (Wharf GL). When SF Cigar’s lease expired and the parties were unable to agree on a further lease, Wharf GL filed an unlawful detainer action. In an effort to resolve that action, SF Cigar’s attorney sent a letter to Wharf GL’s counsel suggesting that the parties follow a specific process of negotiation that would permit SF Cigar to accept a lease proposed earlier by Wharf GL if no other arrangements could be concluded.
The parties thereafter executed a stipulated judgment granting possession to Wharf GL. The stipulated judgment recognized that the parties would conduct further negotiations with respect to a new lease, but it did not mention SF Cigar’s proposed process or the earlier lease offer and gave Wharf GL complete discretion in accepting any new lease. Notwithstanding these terms, SF Cigar’s counsel transmitted the stipulated judgment to Wharf GL’s attorney under a cover letter that purported to require the attorney to hold the stipulated judgment pursuant to the proposed process. When further negotiations proved fruitless, SF Cigar notified Wharf GL that it accepted the terms of the earlier proposed lease.
Disregarding SF Cigar’s claim to have accepted the proposed lease, Wharf GL sought and obtained entry of the stipulated judgment. After an unsuccessful appeal of that judgment, SF Cigar brought an action against Wharf GL and its attorney, alleging that the attorney had breached the terms of an escrow by seeking entry of the stipulated judgment. Wharf GL filed a special motion to strike under the anti-SLAPP statute (Code Civ. Proc., § 425.16.), arguing that the propriety of its conduct in seeking entry of the judgment had been decided conclusively in the prior litigation and the conduct was, in any event, privileged. The trial court granted the motion and dismissed SF Cigar’s action. We affirm.
In “anti-SLAPP,” the common name for the statute, “SLAPP” stands for “strategic lawsuit against public participation.” (Briggs v. Eden Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1109, fn. 1.)
All further statutory references are to the Code of Civil Procedure unless otherwise indicated.
I. BACKGROUND
SF Cigar filed a complaint for breach of fiduciary duty against Wharf GL and Jeffrey Lowenthal, an attorney representing Wharf GL. The complaint alleged, in general terms, that SF Cigar operated a cigar shop in a retail space leased from Wharf GL. When the parties could not agree on a renewed lease of the property, Wharf GL filed an unlawful detainer action against SF Cigar. During negotiations to resolve the action, SF Cigar’s counsel proposed an eight-step process for agreeing on the terms of a new lease. As part of that process, SF Cigar provided to Lowenthal a stipulation for judgment of possession of the property in the event a new lease was not signed. The stipulation was accompanied by a letter declaring that the stipulation was given to Lowenthal in trust, according to the terms of the eight-step process. When the parties were unable to agree on a new lease, SF Cigar notified Wharf GL that it would accept the terms of a lease that had been proposed by Wharf GL several months earlier (the proposed lease). SF Cigar alleges that despite its timely acceptance of the proposed lease, Lowenthal, in breach of the terms of the trust, “caused [Wharf GL] to obtain entry of judgment based upon [SF Cigar’s] stipulation.” The complaint sought damages and other relief.
In response to SF Cigar’s complaint, Wharf GL filed a special motion to strike under the anti-SLAPP statute, section 425.16. The evidence submitted in connection with this motion demonstrates that, at the time the original lease expired, SF Cigar claimed to have exercised an option to renew the lease, a claim disputed by Wharf GL. For that reason, SF Cigar refused to execute the proposed lease when it was first offered. On August 14, 2006, five weeks after the filing of Wharf GL’s unlawful detainer action, Douglas Applegate, an attorney representing SF Cigar, sent Lowenthal a letter containing an eight-step “proposal for resolving the [unlawful detainer action]” that sought to resuscitate the proposed lease. Under Applegate’s proposal, SF Cigar was to be given an opportunity to suggest “modest revisions” to the proposed lease and meet with Wharf GL to discuss them. Following the meeting, the proposed lease, as modified by any suggested revisions accepted by Wharf GL, “will either become the parties’ new lease, or [SF Cigar] will vacate the premises. Specifically, [SF Cigar] will have 2 business days after [Wharf GL] fax[es] me notice of [Wharf GL’s] decisions... to either accept the [proposed] lease or vacate the premises by September 30, 2006.” In return, SF Cigar was to make a “[p]ayment for litigation forebearance” of $20,000 and to “stipulate to a judgment for possession that can be entered by ex parte application on October 2, 2006.”
Apparently Wharf GL did not accede to Applegate’s proposal, for two weeks later Applegate sent a second letter proposing three options. One of them was a second invitation to pursue the August 14 proposal, while the other two suggested changes to the proposed lease. Applegate’s letter agreed to modify the August 14 proposal by incorporating a revision purportedly raised by Lowenthal—that SF Cigar “would stipulate now to a judgment for possession, which you would agree not to file or enforce unless the process broke down and no agreement was reached on the terms for a new lease.” On September 1, Lowenthal sent Applegate an e-mail attaching a draft stipulation for entry of judgment. The e-mail did not expressly acknowledge Applegate’s letters but merely asked for Applegate’s “comments ASAP” because Lowenthal was “getting a lot of pressure from our client to close this matter out.” The record does not contain a copy of the draft stipulation enclosed with Lowenthal’s e-mail, and there is no other evidence regarding any negotiation of the terms of the stipulated judgment.
Ten days after Lowenthal’s e-mail, on September 11, SF Cigar executed a stipulated entry of judgment and paid a $20,000 forebearance fee. Applegate’s cover letter to Lowenthal transmitting the executed stipulation stated that it was being sent “to [Lowenthal] to hold in trust until at least October 1, 2006, pursuant to the provisions set forth in my earlier letters of August 14 and August 29, 2006, as well as our discussions. As set forth in those letters, we will endeavor to quickly reach mutual agreement on proposed modifications to the terms of the lease previously proposed by [Wharf GL]....”
The settlement conditions proposed by Applegate’s various letters are not found in the text of the executed stipulation. The document, entitled “Stipulation for Entry of Judgment in the Event of Default and Order,” stated that “[SF Cigar] acknowledges and agrees that judgment may be entered” in favor of Wharf GL, terminating the parties’ lease, giving possession to Wharf GL, and imposing specified damages. Regarding the parties’ negotiations, the stipulation provided, “[SF Cigar’s] and [Wharf GL’s] representatives shall [meet] in person on or before September 15, 2006 to discuss [SF Cigar’s] proposal to lease the Premises. [SF Cigar] may provide [Wharf GL] with a written proposal prior to the meeting. [Wharf GL] is under no obligation to accept [SF Cigar’s] proposal or otherwise negotiate with [SF Cigar]. [Wharf GL] may act in its sole and absolute discretion owing no duty to [SF Cigar] whatsoever other than to meet in person.” The subsequent paragraph stated that Wharf GL agreed “that it will not cause judgment to be entered against [SF Cigar] provided and expressly on the following conditions,” which were payment of the forebearance fee and delivery of the vacated premises prior to October 1. Unless those two conditions were fulfilled, the stipulation permitted Wharf GL “after giving [SF Cigar] five (5) days written notice, to have judgment entered against [SF Cigar] ex parte at [Wharf GL’s] option for possession of the Premises and all amounts remaining unpaid....” Beyond the requirement to meet with SF Cigar, the stipulation imposed no obligations on Wharf GL and placed no substantive conditions on entry of judgment after October 1 if SF Cigar had not vacated the property.
Following delivery of the stipulation, the parties met to discuss a new lease on September 27. The next day, Lowenthal sent SF Cigar’s counsel a letter stating that Wharf GL had “considered [SF Cigar’s] proposal” and “decided not to accept it” and asking SF Cigar to vacate. On September 30, Applegate sent Lowenthal a letter purporting to accept the proposed lease. In a responsive letter, Lowenthal contended “there is no lease offer open for your client to accept” and reaffirmed the request to vacate.
Wharf GL thereafter filed an ex parte application for entry of judgment on the basis of the stipulation, after giving the required notice to SF Cigar. The motion argued simply that SF Cigar had executed the stipulation, that Wharf GL had fulfilled its obligation to meet with SF Cigar, that no new lease was agreed to, and that SF Cigar had failed to vacate. In opposition, SF Cigar argued (1) the stipulation was defectively executed; (2) the stipulation “is legally void, because it was expressly delivered to [Lowenthal] to hold ‘in trust’ as part of a settlement offer,” which was rejected by Wharf GL; and (3) the stipulated judgment was entered into through inadvertence or mistake of fact. In a declaration accompanying the opposition, Applegate explained the circumstances leading to the stipulated judgment, contending that Lowenthal said “that [Wharf GL] was amenable to the settlement approach I had outlined” but insisted on the stipulation of judgment in the event the settlement approach “did not result in a new lease being formed.” When Wharf GL rejected SF Cigar’s proposals, SF Cigar believed it had two days to accept the proposed lease and timely accepted. Despite this explanation, judgment of possession was entered by the trial court on October 11, on the basis of the stipulated judgment.
SF Cigar then filed a motion to vacate the judgment. The motion augmented the evidence described above with a declaration from SF Cigar’s principal, Joseph Abuzaid, who stated that when he executed the stipulated judgment, he believed that he would have the option of executing the proposed lease, even if Wharf GL rejected his proposed changes, and that “the stipulation was only to have any effect if I decided not to accept [the proposed lease].” Based on this, SF Cigar argued (1) the terms of the stipulation should have been interpreted in light of the attorneys’ correspondence to incorporate the eight-step settlement process; and (2) any failure of the stipulated judgment to incorporate the eight-step process resulted from “mistake, inadvertence, surprise, or excusable neglect,” thereby justifying relief from the judgment. (Code Civ. Proc., § 473, subd. (b).) In opposition, Wharf GL argued the extrinsic evidence could not be considered under the parol evidence rule. The trial court denied the motion to vacate the judgment, refusing to consider the extrinsic evidence because, in offering it, SF Cigar was attempting to “vary the terms, the plain terms” of the stipulation, rather than clarify an ambiguity.
SF Cigar appealed the entry of judgment to the appellate division of the superior court, which affirmed the trial court’s decision. Division Three of this court denied a petition to transfer the case to the Court of Appeal under California Rules of Court, rule 8.1008.
Based on the foregoing evidence, Wharf GL’s anti-SLAPP motion asserted that Lowenthal’s conduct was protected by the anti-SLAPP statute because it occurred in connection with pending litigation, Wharf GL had acted within its rights in seeking entry of judgment on the stipulation, and the propriety of this conduct had been litigated and resolved against SF Cigar in the unlawful detainer action. In response, SF Cigar argued Lowenthal had waived the protection of the anti-SLAPP statute, his conduct breached the terms of the trust, and SF Cigar was not provided an adequate opportunity to litigate the merits of its arguments in the original proceeding. The trial court granted the special motion to strike, concluding that SF Cigar’s claims were covered by the anti-SLAPP statute and SF Cigar was not likely to prevail because Lowenthal’s activities were privileged under Civil Code section 47 and the propriety of his conduct had been litigated and resolved in the unlawful detainer proceedings. SF Cigar appeals this dismissal.
II. DISCUSSION
Section 425.16 was intended as “a mechanism for screening out... at an early stage” meritless lawsuits brought for the purpose of discouraging constitutionally protected expressive activity. (Benasra v. Mitchell Silberberg & Knupp LLP (2004) 123 Cal.App.4th 1179, 1184; § 425.16, subd. (a).) To this end, the anti-SLAPP statute requires the court to dismiss a covered action pursuant to a “special motion to strike” unless the plaintiff is able to demonstrate a probability of success on the merits. (§ 425.16, subd. (b)(1).) Accordingly, a special motion to strike is subject to a two-step analysis, in which the court asks, first, whether the defendant has made the threshold showing that the challenged cause of action “aris[es] from any act... in furtherance of the person’s right of petition or free speech... ” (ibid.), as that concept is defined by the statute, and, if so, whether the plaintiff can demonstrate a likelihood of success on the claim. (Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th 728, 733.)
Review of an order granting or denying a motion to strike under section 425.16 is de novo. “We consider ‘the pleadings, and supporting and opposing affidavits... upon which the liability or defense is based.’ [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.’ [Citation.]” (Soukup v. Law Offices of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.) We may affirm the ruling of the trial court “on any proper basis presented by the record, whether or not relied upon by the trial court.” (Cates v. California Gambling Control Com. (2007) 154 Cal.App.4th 1302, 1312.)
A. Protected Conduct
SF Cigar first contends that the trial court erred in concluding this action is subject to the anti-SLAPP statute.
Section 425.16, subdivision (e) defines an “ ‘act in furtherance of a person’s right of petition or free speech’ ” to include, among other activities: “(1) any written or oral statement or writing made before a legislative, executive, or judicial proceeding, or any other official proceeding authorized by law; [or] (2) any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive, or judicial body, or any other official proceeding authorized by law.” The definition includes “statements or writings made in connection with litigation in the civil courts.” (Healy v. Tuscany Hills Landscape & Recreation Corp. (2006) 137 Cal.App.4th 1, 5.) As a result, “ ‘a party’s litigation-related activities constitute “act[s] in furtherance of a person’s right of petition or free speech.” ’ ” (Freeman v. Schack (2007) 154 Cal.App.4th 719, 729.) Litigation-related claims are therefore subject to the anti-SLAPP statute as long as they “ ‘arise[] from’ ” litigation activity. (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537.)
Pursuant to this principle, it has been held that claims based upon an opposing party’s conduct in securing a litigation settlement are subject to the anti-SLAPP statute. (E.g., Navellier v. Sletten (2002) 29 Cal.4th 82, 89–90; Navarro v. IHOP Properties, Inc. (2005) 134 Cal.App.4th 834, 841–842; Dowling v. Zimmerman (2001) 85 Cal.App.4th 1400, 1420.) The plaintiff in Dowling, for example, was a landlord who had filed a series of unsuccessful unlawful detainer actions against his tenants. In response to the third such action, the defendant, the tenants’ attorney, negotiated a stipulated judgment. (Id. at pp. 1406–1407.) The landlord thereafter sued the tenants’ attorney for defamation and other claims based on the attorney’s actions in the course of settling the unlawful detainer litigation. (Id. at pp. 1408–1409.) The court found the lawsuit subject to the anti-SLAPP statute because “all four of the tort causes of action alleged against [the attorney] in [the plaintiff’s] complaint arose from her acts of negotiating a stipulated settlement of a pending unlawful detainer action against the [tenants], and of writing and publishing [a settlement] letter, while she was acting in her capacity as pro bono counsel for the [tenants].” (Dowling, at p. 1420.)
SF Cigar’s claim is based upon Lowenthal’s filing of a motion for entry of the stipulated judgment, following his negotiation of the terms of that judgment. The claim is therefore covered by the anti-SLAPP statute on the authority of the cases cited above.
SF Cigar contends that “[w]here an attorney breaches his assumed duties to the adverse party as an escrow holder, he is not engaged in protected conduct.” None of the cases on which SF Cigar relies, however, supports this claim, or even concerns an attorney breaching a duty to an adverse party. Rather, each of them is based on an alleged breach of duty by an attorney to his or her own client. (E.g., Freeman v. Shack, supra, 154 Cal.App.4th at p. 732; Kolar v. Donahue, McIntosh & Hammerton, supra, 145 Cal.App.4th at p. 1535; Benasra v. Mitchell Silberberg & Knupp LLP, supra, 123 Cal.App.4th at p. 1182.) As recognized in Kolar, an action by a party against his or her own attorney poses substantially less risk of discouraging protected activity than a lawsuit against opposing counsel and is therefore properly outside the anti-SLAPP statute: “A malpractice claim focusing on an attorney’s incompetent handling of a previous lawsuit does not have the chilling effect on advocacy found in malicious prosecution, libel, and other claims typically covered by the anti-SLAPP statute. In a malpractice suit, the client is not suing because the attorney petitioned on his or her behalf, but because the attorney did not competently represent the client’s interests while doing so. Instead of chilling the petitioning activity, the threat of malpractice encourages the attorney to petition competently and zealously. This is vastly different from a third party suing an attorney for petitioning activity, which clearly could have a chilling effect.” (Kolar, at p. 1540.)
SF Cigar also seems to suggest that claims against an opposing party’s counsel are outside the anti-SLAPP statute if based on contract, rather than tort, theories. Regardless of the legal theory, claims against opposing counsel risk the chilling effect the anti-SLAPP statute was intended to address. Further, the statute’s coverage is not defined by the legal theory of a claim. Rather, as discussed above, a claim is covered if it “arises from” litigation activity. Plainly, Lowenthal’s conduct with respect to the stipulated judgment, which forms the basis for SF Cigar’s claim, was litigation activity.
B. Likelihood of Prevailing
SF Cigar also contends that the trial court erred in concluding that it failed to demonstrate it was likely to prevail on its claim.
“ ‘In order to establish a probability of prevailing on the claim [citation], 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 judgment if the evidence submitted by the plaintiff is credited.” [Citations.] In deciding the question of potential merit, the trial court considers the pleadings and evidentiary submissions of both the plaintiff and the defendant [citation]; though the court does not weigh the credibility or comparative probative strength of competing evidence, it should grant the motion if, as a matter of law, the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.’ ” (Vargas v. City of Salinas (2009) 46 Cal.4th 1, 19–20.)
SF Cigar argues that its complaint states a viable claim for breach of “a unilateral escrow contract.” A “unilateral escrow contract,” however, is a contradiction in terms. “ ‘An escrow involves the deposit of documents and/or money with a third party to be delivered on the occurrence of some condition.’ [Citations.] An escrow holder is an agent and fiduciary of the parties to the escrow. [Citations.] The agency created by the escrow is limited—limited to the obligation of the escrow holder to carry out the instructions of each of the parties to the escrow. [Citations.] If the escrow holder fails to carry out an instruction it has contracted to perform, the injured party has a cause of action for breach of contract. [Citation.] [¶] In delimiting the scope of an escrow holder’s fiduciary duties, then, we start from the principle that ‘[a]n escrow holder must comply strictly with the instructions of the parties. [Citations.]’ [Citation.]... Absent clear evidence of fraud, an escrow holder’s obligations are limited to compliance with the parties’ instructions. [Citations.]” (Summit Financial Holdings, Ltd. v. Continental Lawyers Title Co. (2002) 27 Cal.4th 705, 711 (Summit Financial).) An attorney who undertakes to hold property, as Lowenthal did, assumes a fiduciary duty to the parties to carry out the terms of what is effectively an escrow. (Johnstone v. State Bar (1966) 64 Cal.2d 153, 155–156; Virtanen v. O’Connell (2006) 140 Cal.App.4th 688, 697; Wasmann v. Seidenberg (1988) 202 Cal.App.3d 752, 756.)
Necessarily, “ ‘the instructions of the parties’ ” referred to in Summit Financial includes only instructions to which the parties have mutually agreed or that are consistent with the parties’ agreement governing the escrow. In both cases relied upon by SF Cigar, for example, the parties entrusted property to an attorney in furtherance of a bilateral agreement previously executed by the parties. (Virtanen v. O’Connell, supra, 140 Cal.App.4th at p. 694; Wasmann v. Seidenberg, supra, 202 Cal.App.3d at p. 756.) It is this mutual agreement governing the escrow that defines the escrow-holder’s duties. While the individual parties may give instructions to the escrow-holder, the escrow-holder is not required to comply with any and every such instruction. Rather, the holder must comply with instructions only to the extent they are consistent with the agreement governing the escrow. Indeed, complying with instructions of a party that are inconsistent with that agreement could easily constitute a breach of the escrow-holder’s duty to the other escrow party.
Accordingly, Applegate’s cover letter to Lowenthal instructing him to hold the stipulated judgment under the terms of the eight-step process did not, standing alone, impose that obligation. Rather, Lowenthal was required to comply with Applegate’s “unilateral” instructions regarding disposition of the stipulated judgment only to the extent those instructions were consistent with the parties’ agreement governing use of the stipulated judgment. In other words, Lowenthal was required to hold the stipulated judgment under the terms of the eight-step process only if the parties had agreed to follow that process, notwithstanding Applegate’s instructions in the cover letter.
To determine Lowenthal’s duties as escrow-holder, we must therefore determine the terms of the parties’ agreement. The evidence shows that Applegate initiated an attempt to settle the pending unlawful detainer action by sending two letters in August proposing an eight-step process that included the execution of the stipulated judgment. Although Applegate implied in a declaration that Lowenthal orally agreed to that process on behalf of Wharf GL, the documentary evidence suggests otherwise. Whatever general support for the process Lowenthal may have voiced to Applegate, Wharf GL submitted a counteroffer in the form of the stipulated judgment that makes no reference to Applegate’s proposed process. Instead of acknowledging the eight-step process, the stipulated judgment required Wharf GL merely to meet with SF Cigar. It further permitted entry of the stipulated judgment if, in the free exercise of its discretion, Wharf GL chose not to enter into a new lease with SF Cigar. No reference was made to the lease proposed by Wharf GL several months earlier.
By executing the stipulated judgment, SF Cigar’s principal created a written contract. (Behniwal v. Mix (2005) 133 Cal.App.4th 1027, 1037; Panagotacos v. Bank of America (1998) 60 Cal.App.4th 851, 855–856.) Because that contract, the stipulated judgment, makes no reference to the eight-step process, that process was not a part of the contract. Further, as a matter of elementary contract law, because Applegate’s cover letter transmitting the stipulated judgment to Lowenthal was not executed by both parties, it did not constitute an amendment of the terms of the stipulated judgment to incorporate the eight-step process. (Civ. Code, § 1698; Sutherland v. Barclays American/Mortgage Corp. (1997) 53 Cal.App.4th 299, 312, fn. 8.)
Nor could SF Cigar use Applegate’s correspondence and testimony to prove that Lowenthal agreed to the eight-step process on behalf of Wharf GL, since, as the lower courts held, that evidence is inadmissible under the parol evidence rule. SF Cigar’s claim that it had the right to accept the proposed lease is inconsistent with the terms of the stipulated judgment, which allowed Wharf GL to reject any new lease at its own discretion. Use of the Applegate correspondence and testimony to prove an obligation requiring Wharf GL to accept the proposed lease would not have “explained” the terms of the stipulated judgment, as SF Cigar contends. Rather, it would have given them an interpretation at odds with their plain meaning. Under the parol evidence rule, extrinsic evidence cannot be used for that purpose. (E.g., Casa Herrera, Inc. v. Beydoun (2004) 32 Cal.4th 336, 343 [the parol evidence rule “ ‘generally prohibits the introduction of any extrinsic evidence, whether oral or written, to vary, alter or add to the terms of an integrated written instrument’ ”].)
Accordingly, Lowenthal’s ex parte motion for entry of the stipulated judgment was consistent with the parties’ agreement and did not constitute a breach of his duties as escrow-holder. The special motion to strike was properly granted, since there is no likelihood that SF Cigar would have been able to prove its claim that Lowenthal breached a duty to SF Cigar. (E.g., Money Store Investment Corp. v. Southern Cal. Bank (2002) 98 Cal.App.4th 722, 731 [there is no cause of action against an escrow-holder who has complied with the escrow agreement].)
SF Cigar contends that whether Lowenthal breached his duty “is a matter of fact which cannot be resolved on the special motion to strike or on demurrer.” A special motion to strike and a demurrer, however, are subject to different evidentiary standards. While a plaintiff responding to a demurrer may stand on the allegations of the complaint, a party responding to a special motion to strike is required to make a “ ‘ “prima facie showing of facts to sustain a favorable judgment.” ’ ” (Vargas v. City of Salinas, supra, 46 Cal.4th at pp. 19–20.) Although the court cannot weigh the credibility or comparative probative strength of competing evidence in evaluating this prima facie showing, it must grant the special motion if “ ‘the defendant’s evidence supporting the motion defeats the plaintiff’s attempt to establish evidentiary support for the claim.’ ” (Ibid.) For the reasons discussed above, it is clear on the basis of the evidence submitted by the parties that Lowenthal did not breach their agreement, which was embodied in the stipulated judgment. Because it is unnecessary to “ ‘weigh the credibility or comparative probative strength of competing evidence’ ” (id. at p. 20) to reach this conclusion, the issue of breach does not present a “matter of fact” that precludes grant of the special motion.
Because we affirm on these grounds, it is unnecessary for us to address Wharf GL’s contentions that Civil Code section 47 creates a privilege for contract, as well as tort claims and that SF Cigar was given a full and fair opportunity to litigate its claim in the ex parte hearing conducted in the unlawful detainer action.
III. DISPOSITION
The judgment of the trial court is affirmed.
We concur: Marchiano, P.J., Graham, J.
Retired judge of the Marin County Superior Court assigned by the Chief Justice pursuant to article VI, section 6 of the California Constitution.