Respondent, a bar owner, filed a cross-complaint against appellant, a disabled person, and his attorney for, inter alia, breach of a settlement agreement. Appellant filed a special motion to strike pursuant to Code Civ. Proc., § 425.16. The Los Angeles County Superior Court, California, denied the special motion to strike and awarded respondent $21,506.25 in attorney fees against appellant and his attorney. Appellant sought review.
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The court concluded that appellant’s special motion to strike was properly denied as to respondent’s breach of contract claim. When appellant released all existing causes of action against respondent, he promised not to sue a second time for past harms. When appellant filed a second lawsuit alleging noncompliance with the Americans with Disabilities Act (ADA), he breached the settlement agreement by pursuing a released claim. Under Civ. Code, § 55, appellant could have asserted a claim in the first lawsuit to force respondent to make her parking lot ADA compliant because, at the time, he was confined to a wheelchair and a potentially aggrieved person. The primary right at stake was appellant’s right to be provided with a van-accessible handicap parking space. He was denied that right whenever respondent’s parking lot was not ADA compliant. In other words, appellant had ongoing harm at the time he filed the first lawsuit and signed the release. He could not, at that time, freely drive to respondent’s bar and park there. This was sufficient harm under § 55. And it was the same harm that was at issue in the second lawsuit.
The order denying appellant’s special motion to strike was affirmed with respect to respondent’s breach of contract cause of action and reversed with respect to respondent’s fraud and abuse of process causes of action. The award of attorney fees against appellant and his attorney was also reversed.