What is the test for a claim for damages for breach of section 3.8 of the settlement agreement?

actual, present controversy between the parties regarding the scope and enforceability of section 3.8 of the settlement agreement." (Id. at p. 1307.) The court noted: "While appellant's protected speech activities may have alerted the City that an actual controversy existed regarding the legality of section 3.8, the speech itself does not constitute the controversy." (Id. at p. 1308.) In contrast, here, appellant did not assert a declaratory relief action and the causes of action were based on protected activity. (Cf. Vivian v. Labrucherie (2013) 214 Cal.App.4th 267, 274 [where plaintiff's claim was not for declaratory relief to determine the disputed meaning of the settlement agreement, but for damages based on defendant's having allegedly breached the agreement by making statements to sheriff's internal affairs investigator and in family court papers, action was "'based on'" protected activity and comes within the scope of 425.16].)