Alexander Graham-Sult v. Nicholas Clainos

FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ALEXANDER GRAHAM-SULT; DAVID No. 11-16779

GRAHAM,

Plaintiffs-Appellants, D.C. No.

4:10-cv-04877-

v. CW

NICHOLAS P. CLAINOS; RICHARD L.

GREENE; LINDA MCCALL; GREENE

RADOVSKY MALONEY SHARE &

HENNIGH LLP, a limited liability

partnership; BILL GRAHAM

ARCHIVES LLC, DBA Wolfgang’s

Vault; NORTON LLC, a limited

liability company; WILLIAM E.

SAGAN,

Defendants-Appellees.

ALEXANDER GRAHAM-SULT; DAVID No. 12-15892

GRAHAM,

Plaintiffs-Appellants, D.C. No.

4:10-cv-04877-

v. CW

NICHOLAS P. CLAINOS; RICHARD L.

GREENE; LINDA MCCALL; GREENE OPINION

RADOVSKY MALONEY SHARE &

HENNIGH LLP, a limited liability

partnership; BILL GRAHAM

2 GRAHAM-SULT V. CLAINOS

ARCHIVES LLC, DBA Wolfgang’s

Vault; NORTON LLC, a limited

liability company; WILLIAM E.

SAGAN,

Defendants-Appellees.

Appeal from the United States District Court

for the Northern District of California

Claudia Wilken, Chief District Judge, Presiding

Argued and Submitted

April 18, 2013—San Francisco, California

Filed December 27, 2013

Before: Alfred T. Goodwin, Diarmuid F. O’Scannlain,

and N. Randy Smith, Circuit Judges.

Opinion by Judge N.R. Smith

GRAHAM-SULT V. CLAINOS 3

SUMMARY*

Anti-SLAPP Statute / California Law

The panel affirmed in part and reversed in part the district

court’s judgment in an action brought by the sons of the late

concert promoter Bill Graham, alleging that they were

entitled to pro rata distributions of certain property owned by

Graham’s estate.

The panel reversed in part the district court’s disposition

of a special motion to strike under California’s anti-SLAPP

statute, holding that the district court erred in dismissing the

plaintiffs’ claims for conversion, unjust enrichment, and

breach of fiduciary duty against Nicholas Clainos, the

executor of Graham’s estate.

The panel held that plaintiffs sufficiently alleged claims

for conversion, copyright infringement, and declaratory relief

against William Sagan, Norton LLC and Bill Graham

Archives, LLC (“BGA Defendants”), and that the district

court therefore erred in dismissing these claims.

Concerning the underlying awards of attorneys’ fees, the

panel vacated the post-motion-to-strike fee award to Clainos,

as well as the post-motion-to-dismiss fee award of the BGA

Defendants.

The panel affirmed the district court’s decision in all other

respects.

*

This summary constitutes no part of the opinion of the court. It has

been prepared by court staff for the convenience of the reader.

4 GRAHAM-SULT V. CLAINOS

COUNSEL

James J. Brosnahan (argued) and Kevin A. Calia, Morrison &

Foerster, San Francisco, California; Therese Y. Cannata,

Carolyn A. Johnston and Rachel L. Kent, Cannata, Ching &

O’Toole, San Francisco, California, for Plaintiffs-Appellants.

Nancy L. Tompkins (argued), James M. Wagstaffe and Ivo

Labar, Kerr & Wagstaffe, San Francisco, California, for

Defendant-Appellee Nicholas P. Clainos.

Jerome B. Falk, Jr. (argued) and Jonathan W. Hughes, Arnold

& Porter, San Francisco, California; Ronald E. Mallen and

Cassidy E. Chivers, Hinshaw & Culbertson, San Francisco,

California, for Defendants-Appellees Richard L. Greene,

Linda McCall, and Greene Radovsky Maloney Share &

Hennigh LLP.

Thomas Patrick Lane (argued) and Michael S. Elkin, Winston

& Strawn, New York, New York; Erin R. Ranahan and Drew

A. Robertson, Winston & Strawn, Los Angeles, California,

for Defendants-Appellees Bill Graham Archives LLC DBA

Wolfgang’s Vault, Norton LLC, and William Sagan.

OPINION

N.R. SMITH, Circuit Judge:

Plaintiffs Alexander Graham-Sult and David Graham

appeal the district court’s disposition of: (1) a motion to

dismiss; (2) a special motion to strike under California’s anti-

SLAPP statute; and (3) related attorney’s fees awards.

GRAHAM-SULT V. CLAINOS 5

We affirm the disposition of the motion to strike in part

and reverse in part. Striking Plaintiffs’ conversion and unjust

enrichment claims against Nicholas Clainos was erroneous,

because: (a) taking possession of personal property, (b)

preparing and executing an assignment of intellectual

property following a probate court’s final order, and (c)

receiving consideration for stock sold after a probate court

entered its final order, are not protected activities.

Striking Plaintiffs’ breach of fiduciary duty claim against

Clainos was also erroneous. Even though the conduct

underlying this claim was protected activity, nothing in this

record suggests Plaintiffs will not be successful on the merits

when pursuing Clainos’s alleged (a) self-dealing, (b) failure

to exercise due care in handling probate estate assets, and (c)

secret transfer of intellectual property to an entity defendant

purchased.

We then turn to the district court’s disposition of a motion

to dismiss certain claims against William Sagan, Norton LLC,

and Bill Graham Archives, LLC (collectively, the “BGA

Defendants”). We conclude that Plaintiffs sufficiently

alleged claims for conversion, copyright infringement, and

declaratory relief against the BGA Defendants, and that

dismissing those claims was erroneous.

Consistent with these conclusions, we consider the

underlying awards of attorney’s fees. We vacate the post-

motion-to-strike fee award to Clainos, as well as the post-

motion-to-dismiss fee award to the BGA Defendants.

In all other respects, the district court’s decision is

affirmed.

6 GRAHAM-SULT V. CLAINOS

FACTS & PROCEDURAL HISTORY

I. Background

The late Bill Graham (“Graham”) successfully promoted

rock and roll concerts in the San Francisco Bay Area and

internationally. Graham died testate in 1991 when the

helicopter (in which he was riding) crashed into a utility

tower. Graham’s will created individual trusts for his sons,

Alexander Graham-Sult (“Alex”) and David Graham

(“David”), who were 14 and 23 years old respectively at the

time of Graham’s death. The will appointed Graham’s friend

and business partner, Nicholas Clainos, as the trustee of those

trusts and the executor of the estate.1 Richard Greene, through

his law firm, provided Clainos legal counsel in his capacity

as both executor of the estate and trustee of the trusts.

II. Procedural History

Graham’s substantial estate was in probate for several

years, but, on August 8, 1995, the probate court entered its

final order of distribution. On October 27, 2010, Alex and

David filed the instant lawsuit against: (1) Clainos; (2) the

BGA Defendants; and (3) Greene and related individuals and

entities, including Greene Radovsky Maloney Share &

Hennigh LLP (Greene’s law firm), and Linda McCall

(another attorney with Greene’s firm) (collectively, the

“Greene Defendants”).

Plaintiffs claim that at the time of Graham’s death, his

estate owned: (1) intellectual property (copyrights to posters

1

The will also appointed Harold Furst as co-executor, but he apparently

“declined to act.”

GRAHAM-SULT V. CLAINOS 7

registered in Bill Graham’s name and the trademark for the

name “The Fillmore”), (2) ten “scrapbooks” containing

posters, and (3) 100 complete series of original posters.2

Plaintiffs claim they were entitled to pro rata distributions of

this property, and brought twelve causes of action, including

claims for fraud, concealment, breach of fiduciary duty,

conversion, and unjust enrichment.

III. The Property at Issue

At the time of his death, Graham owned all the shares of

Bill Graham Enterprises, Inc. (“BGE”). Therefore, these

shares became assets of the estate.

Graham also had registered the copyrights to many

posters used by BGE and the trademark “The Fillmore”

(collectively, the “intellectual property”) in his own name.

Therefore, in the course of Greene’s work on the Graham

estate, he investigated whether this intellectual property

belonged to the estate or to BGE. During the investigation, on

December 9, 1991, Greene met with one of BGE’s key

employees, Steve Welkom, and one of BGE’s Vice

Presidents, Jerry Pompili. At this meeting, Greene learned

that “(1) Pompili had filed copyrights for most posters and

the Fillmore trademark in the name of William Graham, (2)

BGE paid for all application and registration fees, [and] (3)

BGE received all revenues from the sales and licensing of the

intellectual property.” Based on these facts, Greene formed

2

In their complaint, Plaintiffs inconsistently refer to these assets

collectively as the “Archives.” Plaintiffs also make different allegations

with respect to each of these categories of assets. For clarity, we refer to

each category of assets individually, rather than collectively.

8 GRAHAM-SULT V. CLAINOS

“the legal opinion that BGE owned the intellectual property

registered in the name of William Graham.”

A. Sale of BGE

In 1992, when Clainos began negotiating the sale of BGE

on behalf of the Graham estate, BGE’s key employees

threatened to leave if they were not given the opportunity to

purchase the company. According to Clainos, losing the key

employees would cause BGE’s value to drop significantly.

With the probate court’s encouragement, Clainos structured

a sale to the key employees. In 1993, when Clainos filed a

Petition for Confirmation of Sale, two beneficiaries objected

to the sale. Consequently, Clainos petitioned the court to

distribute the BGE shares to the Graham estate beneficiaries.

On January 25, 1994, the probate court granted this petition.

After this distribution of shares, the beneficiaries sold

their shares in BGE to the key employees. To consummate

the transaction, a new entity, Bill Graham Presents, Inc.

(“BGP”), was formed; BGP then acquired all of the BGE

shares from the beneficiaries. As part of the transaction,

Plaintiffs also obtained a right of first refusal to the

“Archives”3 BGE held. Accordingly, if BGE or the Archives

were ever sold, Plaintiffs retained the right to purchase them.

(Because this transaction occurred after the shares had been

distributed from the estate, the probate court did not approve

the terms of the sale.) After the sale, Clainos held a thirteen

3

The agreement containing the right of first refusal defined the Archives

as “[A]ll posters, handbills, tickets, photographs, slides, videos, audiotapes

and other archival material produced or obtained prior to October 25, 1991

in connection with the activities of any of the BGP Companies prior to

October 25, 1991.”

GRAHAM-SULT V. CLAINOS 9

percent (13%) stake in BGP, Alex and David each held a ten

percent (10%) stake, and the key employees held the

remaining shares.

B. Preparation of the Assignment of Intellectual

Property

On August 31, 1995, three weeks after the probate court

had entered its final order, an attorney representing BGE

wrote to Greene to ask if Greene “[c]ould please clarify. . .

how the transfer / assignment of copyrights and trademarks

was handled in the sale of [BGE] to the key employees?”

After receiving the letter, Greene’s firm prepared an

Assignment, with the stated purpose of “confirm[ing] BGE’s

ownership of [the intellectual property].” The Assignment

provided in pertinent part that “Assignor hereby assigns,

transfers and conveys to BGE (‘Assignee’) any and all right,

title and interest of the Decedent in any and all copyrights,

tradenames, trademarks and servicemarks claimed by or

registered in the name of the Decedent.” The Assignment was

backdated to August 1, 1995—seven days before the probate

court entered its final order of distribution.4 Clainos executed

this Assignment in his capacity as executor of Graham’s

estate and sent it to BGE on September 1, 1995. On July 29,

1996, BGE recorded the Assignment in the United States

Copyright Office.

4

The Assignment provides that it was “executed as of August 1, 1995,

by NICHOLAS P. CLAINOS, as Executor of the Will of William

Graham,” but it is clear that the Assignment was not signed on that date.

On the Assignment’s second page, the Notary Public’s certification states

that Clainos signed the document on August 31, 1995.

10 GRAHAM-SULT V. CLAINOS

C. Transfers to the BGA Defendants

The BGA Defendants came to own part of the disputed

property through a sequence of transactions following the

close of the Graham estate. In 1997, SFX Entertainment, Inc.

(“SFX”) acquired BGP.5 Plaintiffs were represented by

attorney Philip Feldman (“Feldman”) during this sale. Prior

to closing this transaction, Greene sent Feldman a copy of

Section 3.18 of the sales agreement, which addressed the sale

of intellectual property. The parties do not dispute that

Feldman received this letter.

Section 3.18 provided that “Schedule 3.18 attached hereto

contains, to each Selling Shareholder’s Knowledge, a true and

complete list of all . . . trademarks . . . copyrights . . . owned

or used by [BGP] or material to the conduct of [BGP]’s

business.” Schedule 3.18, in turn, included a copy of the

Assignment and the Copyright office registration. Although

Section 3.18 incorporated Schedule 3.18 by reference, Greene

did not attach a copy of Schedule 3.18 or the Assignment to

the letter he sent Feldman.

Clear Channel Communications then bought SFX. Clear

Channel transferred most of the archives (except for a few

unspecified items and the “Fillmore” trademark) to Bill

Graham Archives LLC. In 2002, defendant Norton, LLC

(owned and controlled by defendant Sagan) purchased BGA

from Clear Channel. Allegedly, Clainos, as a paid consultant

to BGA, “conducted significant research and interviews

5

The sale activated Plaintiffs’ right of first refusal to purchase the

archives, but they declined to exercise it. Instead, they received

$6,785.720 each for their shares in BGP.

GRAHAM-SULT V. CLAINOS 11

concerning the Archives, tracing the history and confirming

what Sagan was actually purchasing.”

D. Plaintiffs’ Investigation and Subsequent Actions

In late 2008, Plaintiffs discovered fifty boxes of

documents at BGE’s former headquarters. When Plaintiffs

reviewed those documents in February 2009, they discovered

the Assignment. Suspicious, David and Alex proceeded to

investigate the extent of their father’s intellectual property

registrations. Their research led them to the United States

Copyright Office, where they discovered that Graham had

“over 300 poster copyrights” registered in his name at the

time of his death. Through further research, they discovered

that the trademark for “The Fillmore” had also been

registered to their father.

In January 2010, nearly one year later, David and Alex

discovered that Sagan and / or BGA had possession of ten of

Graham’s allegedly personal scrapbooks. That same year,

they brought the instant lawsuit.

DISCUSSION

I. Anti-SLAPP

California’s anti-SLAPP statute authorizes defendants to

file a “special motion to strike” any “cause of action against

a person arising from any act of that person in furtherance of

the person’s right of petition or free speech under the United

States Constitution . . . in connection with a public issue.”

Cal. Civ. Proc. Code § 425.16(b)(1) (emphasis added). Acts

in furtherance of the right of petition include “any written or

oral statement or writing made in connection with an issue

12 GRAHAM-SULT V. CLAINOS

under consideration or review by a . . . judicial body.” Id.

§ 425.16(e)(2). An anti-SLAPP motion is available to

defendants in federal court. See Thomas v. Fry’s Elecs., Inc.,

400 F.3d 1206, 1206-07 (9th Cir. 2005) (per curiam).

We review the district court’s grant of a special motion to

strike de novo. Vess v. Ciba-Geigy Corp. USA, 317 F.3d

1097, 1102 (9th Cir. 2003). We conduct this review in two

steps. Preliminarily, we ask whether the defendant showed

that the plaintiff’s causes of action “arise[] from an act in

furtherance of the defendant’s rights of petition or free

speech.” Mindys Cosmetics, Inc. v. Dakar, 611 F.3d 590, 595

(9th Cir. 2010) (internal quotation marks omitted); see Hylton

v. Frank E. Rogozienski, Inc., 99 Cal. Rptr. 3d 805, 809

(Ct. App. 2009). If the defendant makes that showing, then

we ask whether the plaintiff can show that it has “a

reasonable probability of prevailing in its claims for those

claims to survive dismissal.” Mindys, 611 F.3d at 598

(internal quotation marks omitted). We address each prong in

turn.

A. Arising from Protected Activity

The district court concluded that all of Plaintiffs’ claims

against Clainos and the Greene Defendants arise from

protected activity, because the “gravamen” of all causes of

action involved Clainos’s performance of his duties as the

executor of Graham’s estate. We disagree with the district

court’s characterization of Plaintiffs’ complaint. Close

scrutiny demonstrates that Plaintiffs’ causes of action arise

from different types of conduct, requiring a more-

particularized analysis under the anti-SLAPP statute.

GRAHAM-SULT V. CLAINOS 13

For purposes of the anti-SLAPP statute, a cause of action

“arises from” conduct that it is “based on.” Copenbarger v.

Morris Cerullo World Evangelism, 156 Cal. Rptr. 3d 70,

74–75 (Ct. App. 2013). Thus, we first ask what activities

form the basis for each of Plaintiffs’ causes of action. We

then ask whether those activities are “protected,” bringing the

cause of action within the scope of the anti-SLAPP statute.

See Wallace v. McCubbin, 128 Cal. Rptr. 3d 205, 218

(Ct. App. 2011). “Where a cause of action is based on both

protected activity and unprotected activity, it is subject to [the

anti-SLAPP statute] unless the protected conduct is merely

incidental to the unprotected conduct.” Id. (emphasis added)

(internal quotation marks omitted). Protected activity is not

“merely incidental” to unprotected activity if the alleged

activity “underl[ies] the cause of action.” Salma v. Capon,

74 Cal. Rptr. 3d 873, 884 (Ct. App. 2008).

Reviewing Plaintiffs’ complaint under this standard, we

conclude that only six of Plaintiffs’ causes of action arise

from protected activity. Because the remaining causes of

action do not arise from protected activity, they were not

properly subject to the special motion to strike.

1. First and Second Causes of Action: Breach of

Fiduciary Duty vs. Clainos, and Aiding and

Abetting Breach vs. the Greene Defendants

Four general categories of Clainos’s activities form the

basis of Plaintiffs’ First Cause of Action for breach of

fiduciary duty against Clainos: (1) making misleading

statements to Plaintiffs, (2) concealing information from

Plaintiffs, (3) engaging in self-dealing in the Assignment and

on other unspecified occasions, and (4) negligently

characterizing, valuing, and distributing assets of Graham’s

14 GRAHAM-SULT V. CLAINOS

estate. Plaintiffs then allege in their Second Cause of Action

that the Greene Defendants aided and abetted Clainos’s

breach of fiduciary duty by: (1) making statements to, and

concealing information from, Plaintiffs; (2) misstating

information in filings in probate court and with the IRS and

concealing information from the probate court; and (3)

preparing the Assignment and assisting Clainos in self-

dealing.

Protected activity under the anti-SLAPP statute includes

“writing[s] made in connection with an issue under

consideration or review by a . . . judicial body.” Cal. Civ.

Proc. Code § 425.16(e)(2). Thus, Clainos’s activity is

protected to the extent it involved making representations to

the probate court, or preparing documents for filing in court.

See Cabral v. Martins, 99 Cal. Rptr. 3d 394, 404 (Ct. App.

2009) (“Case law establishes that communications that are

intimately intertwined with, and preparatory to, the filing of

judicial proceedings qualify as petitioning activity for the

purpose of the anti-SLAPP statute.”). Clainos’s activity is

also protected activity to the extent it involves statements

made to the Plaintiffs, who had “some interest” in the probate

proceedings. Fremont Reorg. Corp. v. Faigin, 131 Cal. Rptr.

3d 478, 489 (Ct. App. 2011) (“A statement is ‘in connection

with’ an issue under consideration by a court in a judicial

proceeding . . . if it relates to a substantive issue in the

proceeding and is directed to a person having some interest in

the proceeding.”). However, as we discuss below, Clainos’s

activity related to executing the Assignment is unprotected

conduct that, itself, does not implicate the right to petition.

Allegations of both protected and unprotected activity

make the First Cause of Action a mixed cause of action.

However, the protected activity is not “merely incidental” to

GRAHAM-SULT V. CLAINOS 15

the unprotected activity. Wallace, 128 Cal. Rptr. 3d at 218

(internal quotation marks omitted). Rather, protected activity

“underl[ies]” Plaintiffs’ breach of fiduciary duty claim here.

Salma, 74 Cal. Rptr. 3d at 884. Plaintiffs could make out a

legally sufficient breach of fiduciary duty claim, based solely

on their allegations related to protected activity. Mosier v. S.

Cal. Physicans Ins. Exch., 74 Cal. Rptr. 2d 550, 565 (Ct. App.

1998) (“The elements of a cause of action for breach of

fiduciary duty are: (1) the existence of a fiduciary duty; (2)

the breach of that duty; and (3) damage proximately caused

by that breach.”). Accordingly, Clainos has satisfied his

burden of showing Plaintiffs’ First Cause of Action arises

from protected activity.

For substantially the same reasons, the Greene

Defendants’ statements to the probate court and to Plaintiffs

about the subject matter of the probate proceedings are

protected activities. See Cabral, 99 Cal. Rptr. 3d at 404;

Fremont, 131 Cal. Rptr. 3d at 489. These actions underlie the

Second Cause of Action for aiding and abetting. See Casey v.

U.S. Bank, 26 Cal. Rptr. 3d 401, 405 (Ct. App. 2005) (stating

elements of cause of action for aiding and abetting breach of

fiduciary duty); see also Salma, 74 Cal. Rptr. 3d at 884.

Thus, even if the preparation of the Assignment and assisting

Clainos in self-dealing are not protected, Plaintiffs’ Second

Cause of Action as a whole arises from protected activity

under the rule governing mixed causes of action.

2. Third Cause of Action: Breach of Trust vs.

Clainos

In their Third Cause of Action for breach of trust,

Plaintiffs allege that Clainos breached duties he owed them

as trustee of their testamentary trusts, not as executor of the

16 GRAHAM-SULT V. CLAINOS

Graham estate. Plaintiffs allege Clainos breached these duties

in his “characterization, valuation and distribution of assets,”

and that the trusts received reduced distribution as a result.

However, these activities were all preparatory to probate

court filings, or required the probate court’s approval.

Accordingly, Plaintiffs’ Third Cause of Action arises from

protected activity. See Cabral, 99 Cal. Rptr. 3d at 404.

3. Fourth Cause of Action: Conversion vs.

Clainos, the Greene Defendants & the BGA

Defendants

Plaintiffs’ Fourth Cause of Action asserts that Clainos, the

Greene Defendants, and the BGA Defendants converted items

of intellectual property (“The Fillmore” trademark and

various copyrights), and personal property (poster scrapbooks

and 100 sets of original posters). The district court held that

this cause of action, like the rest of Plaintiffs’ complaint,

arises from Clainos’s and the Greene Defendants’ protected

activity. We disagree.

a. Clainos

Plaintiffs allege that Clainos converted personal property

when he “took possession” of it. Additionally, Clainos

allegedly concealed the existence of the personal property and

may have moved it from Graham’s personal warehouse to a

warehouse BGE owned.

Generally, taking possession of personal property is not

a protected activity, because it is conduct, not a written or

oral statement. See Cal. Civ. Proc. Code § 425.16(e)(2). This

conduct underlies Plaintiffs’ conversion claim against

Clainos. See Hartford Fin. Corp. v. Burns, 158 Cal. Rptr.

GRAHAM-SULT V. CLAINOS 17

169, 172 (Ct. App. 1979) (“The elements of a conversion

cause of action are (1) plaintiffs’ ownership or [r]ight to

possession of the property at the time of the conversion; (2)

defendants’ conversion by a wrongful act or disposition of

plaintiffs’ property rights; and (3) damages.”) (emphasis

added) (quoting Baldwin v. Marina City Props., Inc., 145 Cal.

Rptr. 406, 416 (Ct. App. 1978)). Plaintiffs’ allegation that

Clainos “took possession” of the estate’s personal property

constitutes a “wrongful act” that would substantiate the

second element of Plaintiffs’ conversion claim. Thus,

Plaintiffs’ claim that Clainos converted personal property

from the Graham Estate does not arise from protected

activity.6

Plaintiffs also allege that Clainos converted intellectual

property by preparing and executing the Assignment in 1995.

According to Plaintiffs, Clainos executed the Assignment on

August 31, 1995, but backdated the assignment to August 1,

1995, seven days before the probate court entered its final

order of distribution. To the extent Plaintiffs’ Fourth Cause of

Action against Clainos arises from that Assignment, it does

not arise from protected activity.

Clainos did not execute the Assignment in connection

with any issues under consideration by a judicial body, for

two reasons. See Cal. Civ. Proc. Code § 425.16(e)(2). First,

the probate court never approved the sale of BGE, let alone

6

We are aware that the conversion claim also rests on Clainos’s alleged

concealment of the existence or location of Graham’s personal property,

but those allegations do not change our conclusion. Assuming

“concealment” of such information is protected activity, see Kupiec v. Am.

Int’l Adjustment Co., 1 Cal. Rptr. 2d 371, 374 (Ct. App. 1991), that

conduct is merely incidental to Plaintiffs’ allegations of unprotected

conduct.

18 GRAHAM-SULT V. CLAINOS

its underlying tangible and intangible assets. The initial sale

of BGE to its key employees occurred outside of probate

proceedings, after the shares of BGE had been distributed out

of the estate. Thus, the transfer of intellectual property

through the Assignment occurred wholly outside the probate

court’s supervision.

Second, no California cases hold that activities

undertaken after a judicial body has finished considering

relevant issues are “in connection with” an issue under

consideration. California courts have recognized that conduct

can be protected by the anti-SLAPP statute, even though no

issue is yet under consideration by a judicial body at the time

the defendant engages in the conduct. For example, serving

a notice terminating a tenancy is protected activity, if giving

such notice is a “legal prerequisite” for filing a lawsuit.

Birkner v. Lam, 67 Cal. Rptr. 3d 190, 195 (Ct. App. 2007).

Protection also extends to the act of revising a will before it

has been filed in probate court, and the act of filing it in court.

Cabral, 99 Cal. Rptr. 3d at 404. However, these

circumstances are limited to conduct that occurs “in

connection with or in preparation of litigation.” Kolar v.

Donahue, McIntosh & Hammerton, 52 Cal. Rptr. 3d 712, 716

(Ct. App. 2006).7

7

Protecting out-of-court conduct that precedes the filing of the lawsuit

is consistent with the purpose of the anti-SLAPP statute to eliminate

litigation that chills the exercise of the right to petition. See Cal. Civ. Proc.

Code § 425.16(a). Logically, an individual’s right to petition could be

substantially compromised if he could not fully prepare to petition because

such conduct could result in liability. However, conduct undertaken after

petitioning has ended does not present the same risk; any conduct

undertaken at that time would have no effect on the earlier petitioning

activity, unless it could be shown that the risk of future liability for post-

GRAHAM-SULT V. CLAINOS 19

When Clainos executed the Assignment, the probate court

did not have any other issues to consider regarding the

distribution of the estate’s assets. See Cal. Prob. Code

§ 11641 (“When an order settling a final account and for final

distribution is entered, the personal representative may

immediately distribute the property in the estate to the

persons entitled to distribution, without further notice or

proceedings.”); id. § 11753(a) (discharging personal

representative upon “[d]istribution in compliance with the

court order”). As the probate court had already issued its final

order of distribution, the Assignment was not prepared in

anticipation of the resolution of any issues by a judicial

body.8

Clainos contends that, even if preparing and executing the

Assignment is not protected activity, it is merely incidental to

the other conduct alleged, and falls under the ambit of “seeing

Graham’s Estate through probate, and ensuring that

[Plaintiffs] received their just share of it.” However, the

execution of the Assignment alone underlies the conversion

claim against Clainos. Plaintiffs cannot avoid the legal effect

petitioning activity was foreseeable at the time the defendant petitioned.

Defendants have not made that showing here.

8

Greene argues that the Assignment satisfies the “in connection with”

requirement, because, at the time of the assignment, “the probate

proceeding had not ended . . . and Clainos retained his role and authority

as executor to effect the distribution in accordance with the Probate

Court’s order.” This is beside the point; issues related to the distribution

of assets of the estate were no longer under consideration by the probate

court. It had resolved those issues when it entered its final order of

distribution. Thus, even though the final order did not formally “close” the

probate proceedings, see Cal. Prob. Code §§11641, 11753(a), the

consideration of issues by the probate court had terminated by the time it

was executed.

20 GRAHAM-SULT V. CLAINOS

of that activity by casting it together with other activities

which would not result in liability. Further, Clainos does not

directly address the significance of the fact that the

Assignment occurred after the probate court was no longer

considering issues related to the distribution of the Graham

estate.

b. The Greene Defendants

Plaintiffs also seek to hold the Greene Defendants liable

for aiding and abetting Clainos’s conversion and conspiring

with him to convert Graham’s property. This derivative claim

arises from the Greene Defendants’ alleged: (1) falsifying

probate court filings, (2) concealing information from

plaintiffs and the probate court, (3) making false statements

to plaintiffs and the probate court, and (4) assisting with the

preparation of the Assignment.

Plaintiffs’ claim against the Greene Defendants arises

from protected activity to the extent it is based on statements

the Greene Defendants made to them and to the probate court.

See Cabral, 99 Cal. Rptr. 3d at 404; Fremont, 131 Cal. Rptr.

3d at 489. However, Plaintiffs also base their claim for

conversion of the intellectual property on unprotected

activity: the Greene Defendants’ “assisting with the

preparation of the Assignment.” Inclusion of this unprotected

activity makes Plaintiffs’ conversion claim against the Greene

Defendants a mixed cause of action.

Even though mixed, this cause of action arises from

protected activity, because protected activity “underl[ies]” the

claim. Salma, 74 Cal. Rptr. 3d at 884. The Greene

Defendants’ preparation of probate court filings and

representations to the Plaintiffs were protected activity. These

GRAHAM-SULT V. CLAINOS 21

activities could have constituted independent acts of aiding

and abetting Clainos’s conversion. See Fiol v. Doellstedt,

58 Cal. Rptr. 2d 308, 312 (Ct. App. 1996). Thus, this conduct

is not merely incidental to the unprotected activity of

preparing the Assignment. Therefore, the cause of action as

a whole arises from protected activity.

4. Fifth Cause of Action (Deceit—Intentional

Misrepresentation) & Sixth Cause of Action

(Deceit—Negligent Misrepresentation) vs.

Clainos & the Greene Defendants

Plaintiffs’ Fifth and Sixth Causes of Action also arise

from protected activity. Plaintiffs base these claims on

allegations that Clainos and the Greene Defendants

intentionally and negligently misrepresented numerous facts

about the Graham estate and the probate proceedings to the

Plaintiffs. Statements made to persons with an interest in a

court proceeding are categorically protected activity under the

anti-SLAPP statute. Fremont, 131 Cal. Rptr. 3d at 489.

5. Seventh Cause of Action: Fraud / Concealment

vs. Clainos and the Greene Defendants

Plaintiffs’ Seventh Cause of Action against Clainos and

the Greene Defendants for actual fraud and / or concealment

under California Civil Code § 1572 also arises from protected

activity. In this cause of action, Plaintiffs primarily fault

Clainos and the Greene Defendants for not disclosing the

Graham estate’s alleged interest in the intellectual property,

scrapbooks, or poster series. This amounts to an allegation

that Clainos and the Greene Defendants failed to disclose

important information regarding the assets of the estate, while

the probate court was considering how those assets should be

22 GRAHAM-SULT V. CLAINOS

distributed. As previously stated, communicating about the

subject matter of litigation to a person with an interest in the

litigation is a protected activity. Fremont, 131 Cal. Rptr. 3d

at 489. For purposes of this analysis, it makes no difference

that Plaintiffs include allegations of omissions, rather than

only affirmative misrepresentations. See Navellier v. Sletten,

131 Cal. Rptr. 2d 201, 206 (Ct. App. 2003) (“The [litigation]

privilege informs interpretation of the ‘arising from’ prong of

the anti-SLAPP statute . . . .”); see also Kupiec v. Am. Int’l

Adjustment Co., 1 Cal. Rptr. 2d 371, 374 (Ct. App. 1991)

(holding that concealment is privileged activity).

6. Eighth Cause of Action: Promissory Estoppel

vs. Clainos

Plaintiffs’ Eighth Cause of Action alleges that Clainos is

liable for promissory estoppel. Plaintiffs allege that, “in his

capacity as executor of the estate . . . [Clainos] promised

plaintiffs that all of Bill Graham’s scrapbooks would be given

to plaintiffs.” Plaintiffs further assert that Clainos made this

promise “[a]s part of the distribution of the assets of the

Estate.” This allegation plainly underlies Plaintiffs’

promissory estoppel claim. See Aceves v. U.S. Bank, 120 Cal.

Rptr. 3d 507, 514 (Ct. App. 2011) (stating elements of

promissory estoppel cause of action).

Because Clainos made this statement to parties with an

interest in the litigation about the subject matter of the

probate proceedings (the distribution of assets), we conclude

under Fremont that this cause of action arises from protected

activity. 131 Cal. Rptr. 3d at 489.

Plaintiffs’ argument that their promissory estoppel claim

does not arise from protected activity, because it is not based

GRAHAM-SULT V. CLAINOS 23

on communications in probate court itself, is irrelevant.

California does not limit “protected activity” to only

communications directed to an adjudicative body. Rather, the

statements only need to be made “in connection with an issue

under consideration” by such a body. Cal. Civ. Proc. Code

§ 425.16(e)(2). Clainos’s alleged promise relating to the

distribution of the estate assets fits within this class of

conduct.

7. Ninth Cause of Action: Unjust Enrichment vs.

Clainos

Finally, Plaintiffs’ Ninth Cause of Action does not arise

from protected activity. Plaintiffs allege that “Clainos

misappropriated and converted [assets] of the Estate for

purposes of reselling them for his own personal enrichment.”

Further, Plaintiffs allege that Clainos received $9.125 million

for his shares in BGP when SFX purchased the business in

1997, including a signing bonus. These activities do not

implicate statements or writings Clainos made to the probate

court or to the Plaintiffs.

Clainos does not specifically argue on appeal that this

cause of action arises from protected activity. Presumably he

would characterize it as protected, because it arises from his

activities as executor of the estate. However, as discussed

above, that fact alone does not make a cause of action

protected (especially this one, which alleges entirely

unprotected activity).

B. Reasonable Probability of Prevailing

When a defendant bringing an anti-SLAPP motion has

shown that a cause of action arises from protected activity,

24 GRAHAM-SULT V. CLAINOS

the plaintiff then must demonstrate “a reasonable probability

of prevailing in its claims for those claims to survive

dismissal.” Mindys, 611 F.3d at 598 (internal quotation marks

omitted). “Reasonable probability in the anti-SLAPP statute

[means] . . . . only a minimum level of legal sufficiency and

triability.” Id. (internal quotation marks omitted). To

determine whether the plaintiff has made this showing, the

court “consider[s] the pleadings, and supporting and opposing

affidavits stating the facts upon which the liability or defense

is based.” Cal. Civ. Proc. Code § 425.16(b)(2). Accordingly,

Plaintiffs meet their burden if “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.” Mindys, 611 F.3d at

599 (internal quotation marks omitted).

Here, the district court did not analyze Plaintiffs’

reasonable probability of prevailing by evaluating whether

they had provided sufficient prima facie evidence of the legal

sufficiency of any of their claims. Instead, the court held that

Plaintiffs could not prevail on any claim, in the face of three

substantive defenses: (i) the litigation privilege, (ii) the statute

of limitations, and (iii) res judicata. Thus, the issue on appeal

is whether the Plaintiffs have made a sufficient showing to

overcome those defenses as to each of its stricken causes of

action. See Flatley v. Mauro, 139 P.3d 2, 17 (Cal. 2006)

(noting that plaintiff opposing an anti-SLAPP motion must

overcome the substantive defense of the litigation privilege

“to demonstrate a probability of prevailing”).

1. Litigation Privilege

California’s litigation privilege applies to any

communication “(1) made in judicial or quasi-judicial

GRAHAM-SULT V. CLAINOS 25

proceedings; (2) by litigants or other participants authorized

by law; (3) to achieve the objects of the litigation; and (4) that

ha[s] some connection or logical relation to the action.”

Mansell v. Otto, 133 Cal. Rptr. 2d 276, 280 (Ct. App. 2003).

The privilege “immunizes defendants from virtually any tort

liability (including claims for fraud), with the sole exception

of causes of action for malicious prosecution.” Olsen v.

Harbison, 119 Cal. Rptr. 3d 460, 467 (Ct. App. 2010). Thus,

“[t]he litigation privilege . . . present[s] a substantive defense

a plaintiff must overcome to demonstrate a probability of

prevailing.” Flatley, 139 P.3d at 17.

a. Clainos

The district court determined that the litigation privilege

defeated Plaintiffs’ claims against Clainos to the extent they

were “based on statements Clainos made in the probate

proceedings.”9 We agree, because Clainos’s statements were

(1) made in a judicial proceeding, (2) by the executor (a

participant authorized by law), (3) to achieve the distribution

of the estate’s assets, and (4) a central part of the estate’s

administration. See Kupiec, 1 Cal. Rptr. 2d at 374.

We reject Plaintiffs’ arguments that: (1) applying the

litigation privilege to Clainos’s conduct produces an

“irreconcilable conflict” with state laws, and (2) the litigation

privilege should not apply to fiduciaries.

9

The litigation privilege also bars Plaintiffs’ claims to the extent they

are based on probate-related statements Clainos made to Plaintiffs.

Rodriguez v. Panayiotou, 314 F.3d 979, 988 (9th Cir. 2002) (“The

California courts have applied the privilege quite expansively.”).

26 GRAHAM-SULT V. CLAINOS

First, Plaintiffs do not cite any cases holding that applying

the litigation privilege to Clainos’s statements in the probate

proceedings would create an impermissible conflict with state

law. Action Apartment Ass'n v. City of Santa Monica,

163 P.3d 89 (Cal. 2007), which they do cite, is

distinguishable. Action Apartment acknowledged numerous

state statutes that had abrogated the litigation privilege by

authorizing sanctions for types of speech that would

otherwise fall within the privilege. Id. at 98–99. For example,

perjury statutes criminalize statements made under oath, Cal.

Penal Code § 118(a); many such statements likely fall within

the litigation privilege’s scope. In actions under such statutes,

courts have jettisoned the privilege, because applying it

would cause “irreconcilable conflicts between the privilege

and other co-equal state laws.” Action Apartment, 163 P.3d at

99.

Plaintiffs do not assert any claims under such statutes.

They cite the perjury statute, but the instant litigation is not a

criminal prosecution for perjury. They also cite probate

statutes, which impose a variety of duties on the executor.

However, unlike the statutes discussed in Action Apartment,

none of those probate statutes authorize criminal or civil

action against the executor based on the statements made in

court. See 163 P.3d at 98; see also Oei v. N. Star Capital

Acquisitions, LLC, 486 F. Supp. 2d 1089, 1100–01 (C.D. Cal.

2006) (holding that statute proscribing abusive debt-

collection practices not subject to litigation privilege). Thus,

Plaintiffs have not shown that applying the privilege to

Clainos’s statements would result in an “irreconcilable

conflict” between the privilege and California state law.

Plaintiffs then argue that, because the litigation privilege

does not apply to malpractice claims asserted against

GRAHAM-SULT V. CLAINOS 27

attorneys by their clients, it should not apply to Plaintiffs’

claims against Clainos. According to Plaintiffs, Clainos (like

an attorney representing his client) acted as a representative

of the beneficiaries in his capacity as executor, and therefore

he should be similarly deprived of the litigation privilege

here. Even if this premise is correct, California has not

eliminated the privilege for such claims. California has

exempted malpractice claims asserted by clients against both

their attorneys and expert witnesses. See Kolar, 52 Cal. Rptr.

3d at 718–19. But here, Plaintiffs do not assert a malpractice

claim and have not cited any cases that pierce the litigation

privilege for claims by beneficiaries against executors.

b. The Greene Defendants

The litigation privilege also bars Plaintiffs’ claims against

the Greene Defendants to the extent they are based on certain

types of conduct. In California, any statement made in a

“judicial proceeding” or “any other official proceeding

authorized by law” is privileged. Cal. Civ. Code § 47(b). This

privilege extends to statements made outside of judicial

proceedings. In Chang v. Lederman, 90 Cal. Rptr. 3d 758

(Ct. App. 2009), the court held that the privilege

encompassed a letter sent by a lawyer, who was representing

a trustee, to the occupant of a residence owned by the trust.

90 Cal. Rptr. 3d at 774–75. The letter was privileged, even

though probate proceedings had not yet been initiated. Id. at

763, 775. Similarly, in Steiner v. Eikerling, 226 Cal. Rptr.

694 (Ct. App. 1986), the court held that the privilege

encompassed both the filing of a forged will in probate court

and the act of preparing the will. 226 Cal. Rptr. at 696.

Given its broad scope, the litigation privilege protects the

Greene Defendants from liability based on (1) filings made in

28 GRAHAM-SULT V. CLAINOS

the probate court; and (2) statements made to (and

information concealed from) both Plaintiffs and the probate

court related to the probating of the estate.

2. Statute of Limitations

No one disputes that the statute of limitations, which is

four years at most, bars all of Plaintiffs’ claims in the absence

of an applicable tolling doctrine. See generally Cal. Civ. Proc.

Code § 338 (three-year statute of limitations applicable to

variety of civil claims, including fraud); David Welch Co. v.

Erskine & Tulley, 250 Cal. Rptr. 339, 344 (Ct. App. 1988)

(holding four-year statute of limitations applies to breach of

fiduciary duty claims). Rather, the parties disagree over

whether the statute of limitations was tolled because Clainos

was Plaintiffs’ fiduciary. The district court held that: (1)

Plaintiffs had notice of the facts giving rise to their claims

based on the intellectual property and the scrapbooks; (2) the

notice triggered the statute of limitations; and (3) as a result,

the statute had run prior to suit. We disagree.

“In cases involving fraud . . . the statute commences to

run when the plaintiff discovers he has a cause of action or,

through the use of reasonable diligence, should have

discovered it.” Bennett v. Hibernia Bank, 305 P.2d 20, 32

(Cal. 1956). However, “the same degree of diligence is not

required where a fiduciary relationship exists between the

parties at the time the alleged acts of negligence occur.” Elec.

Equip. Express, Inc. v. Donald H. Seiler & Co., 176 Cal.

Rptr. 239, 252 (Ct. App. 1981). Regardless, Plaintiffs have “a

duty to investigate even where a fiduciary relationship exists

when [they have] notice of facts sufficient to arouse the

suspicions of a reasonable man.” Id. (internal quotation marks

omitted).

GRAHAM-SULT V. CLAINOS 29

In this case, the parties do not dispute that, as the executor

of the Graham estate and trustee of Plaintiffs’ testamentary

trusts, Clainos owed Plaintiffs a fiduciary duty. See Estate of

Sanders, 710 P.2d 232, 237 (Cal. 1985) (executor owes

fiduciary duty to estate beneficiaries). Thus, even though

Plaintiffs had some duty to investigate the facts surrounding

the distribution of assets from their father’s estate, that duty

was limited, because they were “entitled to rely on the

statements and advice provided by the fiduciary.” Eisenbaum

v. W. Energy Res., Inc., 267 Cal. Rptr. 5, 11 (Ct. App. 1990)

(internal quotation marks omitted); see Hobbs v. Bateman

Eichler, Hill Richards, Inc., 210 Cal. Rptr. 387, 404 (Ct. App.

1985). Plaintiffs’ duty to investigate differs with respect to

their claims regarding the intellectual and personal property.

a. Intellectual Property

Defendants contend that the statute of limitations has run

on Plaintiffs’ claims, to the extent they are based on the

intellectual property, because Plaintiffs had notice of their

interest in the intellectual property. The district court agreed,

concluding that: (a) Plaintiffs had notice of the Assignment

in 1997, because their attorney had received a copy of an

agreement that referenced it; and (b) Plaintiffs had notice that

their father had copyrights registered in his name at an earlier

time. We reject these conclusions

First, Plaintiffs were not put on notice of the Assignment

in 1997. The district court relied on the fact that Richard

Greene sent Feldman—then David and Alex’s lawyer—a

copy of the portion of the sale agreement, which outlined the

30 GRAHAM-SULT V. CLAINOS

transfer of intellectual property in the sale of BGP to SFX.10

That provision incorporated by reference a “Schedule 3.18,”

to which the Assignment was attached. However, neither

Schedule 3.18 nor the Assignment accompanied the copy of

Section 3.18 that Greene sent to Feldman. The district court

concluded that the incorporation of Schedule 3.18 by

reference should have put Feldman (and by extension, Alex

and David) on notice of the facts surrounding the transfer of

intellectual property Plaintiffs now claim is fraudulent. But

we take a different view.

Because Clainos was Plaintiffs’ fiduciary, Plaintiffs were

entitled to rely on the “statements and advice” he gave them.

Eisenbaum, 267 Cal. Rptr. at 11 (internal quotation marks

omitted). Thus, when he told them that the inventories and

accountings filed with the probate court were complete, they

were entitled to believe him. They did not have a duty to

investigate facts surrounding the sale of BGE to the key

employees or subsequent transactions, to the extent the facts

they knew were consistent with what Clainos had told them.

The reference to Schedule 3.18 in Section 3.18 of the SFX

sale agreement was not sufficient to arouse the suspicions of

a reasonable person, because BGP’s sale of some intellectual

property assets was entirely consistent with what Clainos had

told Plaintiffs to that point. Only actual knowledge of the

Assignment would have aroused Plaintiffs’ suspicions that

10

Plaintiffs’ argument that they should not be charged with notice of the

Assignment in 1997, because whether Feldman actually received Schedule

3.18 is a disputed fact is irrelevant. Defendants do not claim that Feldman

received Schedule 3.18. The relevant, undisputed fact is that Feldman

received a copy of Section 3.18 of the SFX Sale Agreement, which

incorporated Schedule 3.18 by reference. Because Greene did not send

Feldman a copy of Schedule 3.18, the issue is whether the language of

Section 3.18 put Plaintiffs on notice.

GRAHAM-SULT V. CLAINOS 31

something was amiss, because the Assignment was dated well

after the actual sale to the key employees and implied that the

estate could have had a direct interest in some items of

intellectual property at one time. However, Greene sent

neither Schedule 3.18 nor the Assignment to Feldman with

Section 3.18. Therefore, we cannot say that Feldman’s receipt

of Section 3.18 made Plaintiffs “aware of facts which would

make a reasonably prudent person suspicious.” Hobbs,

210 Cal. Rptr. at 404 (emphasis omitted). Receiving Section

3.18 may have triggered Plaintiffs’ duty to read,11 but it did

not give rise to the duty to investigate for purposes of the

statute of limitations. See id. As a result, Plaintiffs are not

charged with knowledge of the Assignment until they

discovered it in 2009.

Second, we are not convinced that the copyright symbols

on Graham’s posters put Plaintiffs on notice that their father

“may have registered intellectual property in his name.”

Whether Plaintiffs saw the copyright symbols on their

father’s posters appears to be a disputed question of fact.12

11

The district court cited cases dealing with the duty to read in contract

law. Madden v. Kaiser Found. Hosps., 552 P.2d 1178, 1185 (Cal. 1976)

(“[O]ne who assents to a contract is bound by its provisions and cannot

complain of unfamiliarity with the language of the instrument.”).

However, the issue here is not whether a party is bound by a term in a

contract they signed without having read the term. The issue is whether

Feldman read anything that would have contradicted the representations

Clainos made to Plaintiffs regarding the estate assets, thereby putting him

on notice that Clainos may have been misrepresenting the facts.

12

Plaintiffs submitted the declarations of Jacques Fabert (David’s then-

trustee) and Feldman, who stated that Clainos led them to believe that the

Archives (here, including the intellectual property) belonged to BGE.

Fabert further stated he had no reason to believe that Graham had

intellectual property registered in his name prior to 2009. Clainos

32 GRAHAM-SULT V. CLAINOS

However, even if Plaintiffs saw the copyright symbols on

their father’s posters, the issue is whether those symbols

would have put Plaintiffs on notice of facts indicating that

Clainos had misrepresented that BGE owned the Archives.

Hobbs, 210 Cal. Rptr. at 404. The fact that the posters bore

the copyright symbol of Bill Graham is not inconsistent with

Clainos’s alleged representations to Plaintiffs. BGE, which

Bill Graham owned entirely at the time of his death, used the

posters in its concert promotion business. Under these

circumstances, a reasonable person, seeing the copyrighted

posters, would not necessarily conclude that Clainos’s

statement to the Plaintiffs that BGE owned the Archives was

a misrepresentation. Rather, a reasonable person could

logically conclude that, even if Bill Graham created the

posters initially, he had subsequently transferred them to

BGE, which now used them as part of its business operations.

Moreover, a copyright symbol itself does not indicate that the

work on which it appears is protected by a registered

copyright.13 Thus, even if Plaintiffs had viewed the copyright

symbols on some of their father’s posters, such viewing

would not have triggered their duty to investigate Clainos’s

representations regarding ownership of the estate’s assets.

submitted a declaration contradicting Plaintiffs’ evidence, citing numerous

opportunities Plaintiffs had to view the copyright-symbol-bearing posters.

Given these opportunities, Clainos concludes that “[i]t is inconceivable

that Plaintiffs never saw posters bearing the ‘© Bill Graham’ notice” and

that Plaintiffs do not deny this in their declaration.

13

Here, for example, David Graham’s mother inscribed the copyright

notices on the posters herself.

GRAHAM-SULT V. CLAINOS 33

b. Personal Property

The district court also erred by holding that the statute of

limitations barred Plaintiffs’ claims to the extent they are

based on the disputed personal property. The district court

concluded that Plaintiffs were on notice that “they should

investigate the nature of Bill Graham’s personal holdings,”

because Plaintiffs were “responsible for identifying the

personal property of their father to which they were entitled.”

On appeal, Plaintiffs assert that Clainos controlled their

access to Graham’s personal property, that he did not give

them full access to all of his memorabilia, and that they never

had reason to know that they were not given full access to all

of his scrapbooks.

Whether Plaintiffs in fact had access to all of Graham’s

archives, and what Clainos and the Greene Defendants told

Plaintiffs about the archives they did have access to, appears

to be a factual dispute. Creating a mere dispute of fact is not

sufficient to prevail on a motion to strike. See Peregrine

Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP,

35 Cal. Rptr. 3d 31, 43 (Ct. App. 2005). Rather, “the evidence

submitted by the plaintiff [must be] credited” when ruling on

a motion to strike. Id. (internal quotation marks omitted).

Thus, the district court erred by holding that the statute of

limitations bars Plaintiffs’ claims to the extent they are based

on the disputed personal property.

c. Conclusion

In sum, Plaintiffs produced evidence that could overcome

the statute of limitations defense. We reverse and remand so

that the district court can evaluate whether Plaintiffs have

made a sufficient showing to establish a prima facie cause of

34 GRAHAM-SULT V. CLAINOS

action to the extent their claims are not barred by other

defenses.

3. Res judicata

We also disagree with the district court’s conclusion that

res judicata barred Plaintiffs’ claims to the extent they were

based on the disputed scrapbooks. Plaintiffs made a sufficient

showing to overcome this substantive defense.

California’s Probate Code provides that the final order of

the probate court generally discharges the personal

representative from all claims by heirs “based upon any act or

omission directly authorized, approved, or confirmed in the

judgment or order.” Cal. Prob. Code § 7250(a). However, the

final order does not have this effect if the order is “obtained

by fraud or conspiracy or by misrepresentation contained in

the petition or account or in the judgment as to any material

fact.” Id. § 7250(c).

Here, Plaintiffs’ allegations of Clainos’s fraud were

sufficient to overcome Clainos’s substantive res judicata

defense. “Fraudulent concealment of assets by an

administrator . . . constitutes extrinsic fraud,” which will

preclude a probate court’s final order from having res judicata

effect. E. & J. Gallo Winery v. Gallo Cattle Co., 967 F.2d

1280, 1287 (9th Cir. 1992); see Lazzarone v. Bank of Am.,

226 Cal. Rptr. 855, 864 (Ct. App. 1986). Plaintiffs’

Complaint alleges that Clainos promised that they would

receive all the scrapbooks, and they thought they had received

them, but that Clainos controlled their access to the

scrapbooks. Thus, Plaintiffs allege that Clainos concealed the

existence of ten scrapbooks. In declarations, Plaintiffs further

state their belief that Clainos did not provide them with full

GRAHAM-SULT V. CLAINOS 35

access to the archives, or a full inventory of them. Thus,

Plaintiffs have shown that their claims regarding the

scrapbooks are not entirely without merit by operation of res

judicata. See Mindys, 611 F.3d at 599.

4. Business Judgment Rule

Finally, we reject Clainos’s argument that the business

judgment rule protects him from liability for all of his actions

as executor of the Graham estate. In the probate context, the

business judgment rule provides that “an executor or

administrator is not liable for any decreases in the value of

estate assets on account of his acts or omissions done in good

faith and without negligence.” Estate of Beach, 542 P.2d 994,

1004 (Cal. 1975). Here, the same allegations Plaintiffs can

rely on to overcome the statute of limitations and res judicata

are also sufficient to show that Clainos lacked good faith, at

least for purposes of overcoming the business judgment rule

defense here.

C. Conclusion14

Because we disagree with the district court’s analysis of

the substantive defenses, in this section we analyze the

implications of that conclusion on each of Plaintiffs’ claims

against Clainos and the Greene Defendants.

14

Plaintiffs argue, for the first time on reply, that the district court erred

by granting Clainos’s and the Greene Defendants’ motions to strike,

without giving them an opportunity to amend their complaint. The

argument is waived. See Nisqually Indian Tribe v. Gregoire, 623 F.3d

923, 928 n.6 (9th Cir. 2010) (noting argument not presented in opening

brief on appeal is waived).

36 GRAHAM-SULT V. CLAINOS

1. First Cause of Action: Breach of Fiduciary

Duty vs. Clainos

We reverse the district court’s decision to strike

Plaintiffs’ First Cause of Action. While we agree with the

district court that the litigation privilege bars this claim based

on statements Plaintiffs made to the probate court or to the

Plaintiffs themselves, Plaintiffs also allege that Clainos

breached his fiduciary duty by engaging in activities that the

litigation privilege does not protect.15 Thus, we remand for

the district court to determine whether Plaintiffs can make an

adequate showing to survive a motion to strike on the

remainder of the claim.

2. Second Cause of Action: Aiding & Abetting

Breach of Fiduciary Duty vs. The Greene

Defendants

We affirm the district court’s decision to strike Plaintiffs’

Second Cause of Action. The district court held that the

general three-year statute of limitations, California Civil

Procedure Code § 338(d), barred Plaintiffs’ claims against the

Greene Defendants. As discussed above, that limitations

period was tolled due to Clainos’s fiduciary relationship with

Plaintiffs. However, Greene relies on a different statute of

15

These include allegations that Clainos breached his fiduciary duty by

“engaging in repeated acts of self dealing,” “engineering a sale of BGE to

himself and other key employees while secretly transferring the

Copyrights and ‘The Fillmore’ trademark to BGE,” and “failing to use due

care in characterizing, valuing and distributing the assets of the Bill

Graham Estate.”

GRAHAM-SULT V. CLAINOS 37

limitations, which is not subject to the fiduciary-tolling rule.16

California Civil Procedure Code § 340.6(a) bars “[a]n action

against an attorney for a wrongful act or omission, other than

for actual fraud, arising in the performance of professional

services . . . four years from the date of the wrongful act or

omission.” Plaintiffs’ whole claim that the Greene Defendants

aided and abetted Clainos’s breach of fiduciary duty arises

from the Greene Defendants’ performance of professional

services representing Clainos in his role as executor. The

“actual fraud” exception to § 340.6(a) does not apply to this

claim, because Plaintiffs’ Second Cause of Action only

alleges that the Greene Defendants aided and abetted a breach

of fiduciary duty—not that they committed actual fraud.

Accordingly, Plaintiffs do not have a reasonable probability

of prevailing against the Greene Defendants on their Second

Cause of Action.

3. Third Cause of Action: Breach of Trust vs.

Clainos

We affirm the district court’s decision to strike Plaintiffs’

Third Cause of Action. This claim arises from Clainos’s

characterization, valuation, and proposed distribution of

assets, which were all related to filings made with the probate

court. Accordingly, it is barred by the litigation privilege.

16

The Greene Defendants did not raise this statute of limitations defense

in their motions or replies in the district court. However, Plaintiffs have

not argued that the Greene Defendants waived this argument, and have

therefore waived the opportunity to object on that ground. See Norwood

v. Vance, 591 F.3d 1062, 1068 (9th Cir. 2009) (“It is well-established that

a party can waive waiver implicitly by failing to assert it.” (internal

quotation marks omitted)).

38 GRAHAM-SULT V. CLAINOS

Moreover, “[t]he principal purpose of [the litigation

privilege] is to afford litigants and witnesses . . . the utmost

freedom of access to the courts without fear of being harassed

subsequently by derivative tort actions.” Rodriguez, 314 F.3d

at 988 (alterations in original) (internal quotation marks

omitted). Applying the privilege to Clainos’s activities here

is consistent with this purpose, because it ensures he could

submit to the court a distribution plan that best effectuates the

wishes of the decedent, free from the risk of collateral

litigation by beneficiaries in the potentially contentious

context of probate.

4. Fifth Cause of Action (Deceit—Intentional

Misrepresentation); Sixth Cause of Action

(Deceit—Negligent Misrepresentation) vs.

Clainos and the Greene Defendants; Seventh

Cause of Action: Fraud & Concealment vs.

Clainos & the Greene Defendants; Eighth

Cause of Action: Promissory Estoppel vs.

Clainos

We affirm the district court’s decision to strike Plaintiffs’

Fifth, Sixth, Seventh, and Eighth causes of action. These

claims are based on alleged “communications with some

relation to judicial proceedings,” and therefore fall within the

litigation privilege.17 Rubin v. Green, 847 P.2d 1044, 1047

(Cal. 1993) (emphasis added) (internal quotation marks

omitted). As such, these communications are “absolutely

17

Even causes of action based on alleged concealment of information,

rather than affirmative communications, are protected by the litigation

privilege. See Kupiec, 1 Cal. Rptr. 2d at 374.

GRAHAM-SULT V. CLAINOS 39

immune from tort liability,” id., and Plaintiffs cannot show

that they have a probability of succeeding on these claims.18

II. Motion to Dismiss

Plaintiffs also challenge the district court’s dismissal with

prejudice of their claims against the BGA Defendants for (1)

conversion, (2) promissory estoppel, (3) unjust enrichment,

(4) copyright infringement, and (5) declaratory relief. We

affirm in part and reverse in part.19

A. Standard of Review

We review the district court’s grant of a motion to dismiss

de novo. Caldwell v. Enstrom Helicopter Corp., 230 F.3d

1155, 1156 (9th Cir. 2000). Dismissal without leave to amend

is reviewed for abuse of discretion. See OSU Student Alliance

v. Ray, 699 F.3d 1053, 1079 (9th Cir. 2012).

B. Analysis

“To survive a motion to dismiss, a complaint must contain

sufficient factual matter, accepted as true, to state a claim to

18

We need not address the second prong of the anti-SLAPP analysis for

Plaintiffs’ Fourth or Ninth causes of action, because these causes of action

do not arise from protected activity. Hylton, 99 Cal. Rptr. 3d at 809.

19

We reject the BGA Defendants’ argument that the statute of

limitations bars all of the Plaintiffs’ claims. Plaintiffs alleged that Clainos

was their fiduciary and that they relied on his representations regarding the

content, value, and distribution of the estate assets. The existence of this

fiduciary relationship relieved Plaintiffs of the duty to investigate the facts

(including those that gave rise to their claims against the BGA

Defendants), tolling the statute of limitations.

40 GRAHAM-SULT V. CLAINOS

relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (internal quotation marks omitted).

“Although for the purposes of a motion to dismiss we must

take all of the factual allegations in the complaint as true, we

are not bound to accept as true a legal conclusion couched as

a factual allegation.” Id. (quoting Bell Atl. Corp. v. Twombly,

550 U.S. 544, 555 (2007)) (internal quotation marks omitted).

Even when dismissal of a complaint might be warranted,

Federal Rule of Civil Procedure 15(a) authorizes parties to

amend their complaint “with . . . the court’s leave.” Fed. R.

Civ. P. 15(a)(2).

1. Fourth Cause of Action: Conversion

We reverse the district court’s dismissal of Plaintiffs’

claim that the BGA Defendants converted the copyrights,

trademark, and scrapbooks in or around 2002.20 To establish

their claim for conversion at trial, Plaintiffs would be

required to prove, first of all, ownership or a right to possess

the converted property. See Fremont Indem. Co. v. Fremont

Gen. Corp., 55 Cal. Rptr. 3d 621, 638 (Ct. App. 2007) (“The

basic elements of [conversion] are (1) the plaintiff’s

ownership or right to possession of personal property; (2) the

defendant’s disposition of the property in a manner that is

inconsistent with the plaintiff’s property rights; and (3)

resulting damages.”). Here, the district court concluded that

Plaintiffs’ allegations did not show that they were entitled to

ownership or possession of either asset as of the date the

BGA Defendants took possession of the property, and that

20

Plaintiffs also allege that the BGA Defendants took possession of the

converted “personal property.” However, the only specific personal

property Plaintiffs mention is the scrapbooks; Plaintiffs do not make

specific allegations about the disputed poster series.

GRAHAM-SULT V. CLAINOS 41

Plaintiffs failed to plead facts showing that the BGA

Defendants engaged in wrongdoing.

We disagree. Plaintiffs alleged the following facts

surrounding the initial transfer of the intellectual property

from the Graham estate to BGE: (1) the posters were

Graham’s personal project, and he only permitted his

businesses to use the designs; (2) Graham had registered

copyrights in his own name, confirming his intent that they be

his personal property; (3) as Graham’s personal property,

these items became part of his estate; and (4) as beneficiaries

of the Graham estate, Plaintiffs were entitled to a pro rata

share of the intellectual property and personal property as of

the date of the probate court’s orders of distribution. Taking

these allegations as true, Iqbal, 556 U.S. at 678, it is plausible

that Plaintiffs were entitled to a share of the disputed

intellectual and personal property as of 2002 when the BGA

Defendants took possession of it.

The district court also held that, on the second element of

their conversion claim, Plaintiffs failed to allege facts

suggesting that the BGA Defendants engaged in wrongdoing.

We also disagree with this conclusion. Under California law,

a plaintiff must only allege that the defendant assumed

“control or ownership over the property” or “applied the

property to his own use” to plead this element of a conversion

claim. Oakdale Vill. Grp. v. Fong, 50 Cal. Rptr. 2d 810, 812

(Ct. App. 1996) (noting that “[c]onversion is . . . a strict

liability tort”).21 Plaintiffs’ allegation that the BGA

21

The BGA Defendants could assert a defense as an innocent purchaser.

See CRS Recovery, Inc. v. Laxton, 600 F.3d 1138, 1145 (9th Cir. 2010).

However, they did not raise it in their motion to dismiss or on appeal.

Additionally, Plaintiffs alleged in their complaint that Sagan knew of the

42 GRAHAM-SULT V. CLAINOS

Defendants “took possession of a portion of [the] converted

intellectual and personal property” in 2002 satisfies this

requirement. Accordingly, the district court erred by

dismissing this claim.22

2. Eighth Cause of Action: Promissory Estoppel

We affirm the district court’s dismissal of Plaintiffs’

Eighth Cause of Action against the BGA Defendants. Four

elements comprise a promissory estoppel claim: (1) a

promise, (2) reasonable and (3) foreseeable reliance by the

promisee, and (4) injury to the promisee. U.S. Ecology, Inc.

v. State, 28 Cal. Rptr. 3d 894, 905 (Ct. App. 2005). Plaintiffs

did not allege that the BGA Defendants had made any

promise to them.23 Because Plaintiffs have not argued that

prior fraudulent transfers of the Copyrights and the scrapbooks. Taken as

true, Iqbal, 556 U.S. at 678, that allegation defeats the BGA Defendants’

innocent purchaser defense. See Laxton, 600 F.3d at 1145 (“As a general

rule, an innocent purchaser for value and without actual . . . notice that his

or her vendor has secured the goods by a fraudulent purchase is not liable

for conversion.”) (emphasis added) (internal quotation marks omitted).

22

The district court did not analyze the damages element of the

conversion claim, and the parties do not dispute it on appeal. Nevertheless,

Plaintiffs have pleaded sufficient facts to support that element.

23

Plaintiffs do allege that Clainos (assisted by the Greene firm)

promised to deliver all of Graham’s scrapbooks to them. Thus, by

asserting a promissory estoppel claim against the BGA Defendants,

Plaintiffs seek to enforce a promise made to them (the promisees) by

Clainos (the promisor) against the BGA Defendants (a third party to the

promise). Currently this is not a cognizable claim under California law.

The authorities Plaintiffs cite are unpersuasive. Burgess v. California

Mutual Building & Loan Ass’n, 290 P. 1029 (Cal. 1930), involved the

enforcement of a promise against a promisor by a third-party to the

promise, and is therefore distinguishable from this case. 290 P. at

GRAHAM-SULT V. CLAINOS 43

they could provide evidence of such a promise, the district

court had the discretion to dismiss this claim without leave to

amend.

3. Tenth Cause of Action: Unjust Enrichment

We also affirm the district court’s dismissal of Plaintiffs’

Tenth Cause of Action for “unjust enrichment” against the

BGA Defendants. Defendants argue that “unjust enrichment”

is not a cause of action in California, and Plaintiffs do not

dispute this. See, e.g., Durell v. Sharp Healthcare, 108 Cal.

Rptr. 3d 682, 699 (Ct. App. 2010) (“There is no cause of

action in California for unjust enrichment.”) (internal

quotation marks omitted). Plaintiffs’ Tenth Cause of Action

therefore fails to state a claim, and the district court properly

dismissed it without leave to amend.24 See UMG Recordings,

Inc. v. Shelter Capital Partners LLC, 718 F.3d 1006, 1014

(9th Cir. 2013).

4. Eleventh Cause of Action: Copyright

Infringement

We reverse the district court’s dismissal of Plaintiffs’

copyright infringement claim. The district court dismissed

this claim, because it concluded that the Assignment

1031–32. Likewise, we will not read the general principle “where one of

two innocent persons must suffer by the act of a third, he by whose

negligence it happened, must be the sufferer,” Powers v. Pac. Diesel

Engine Co., 274 P. 512, 514 (Cal. 1929) (quoting Cal. Civ. Code § 3543)

(internal quotation marks omitted), to give rise to a new cause of action.

24

Even were “unjust enrichment” a viable cause of action, the BGA

Defendants paid considerable value for the intellectual property. Plaintiffs

therefore would not be able to adequately plead such a claim.

44 GRAHAM-SULT V. CLAINOS

effectively transferred ownership of the Copyrights from the

Graham estate to BGE and then to the BGA Defendants

through the transactions that followed. However, as discussed

above, see supra Part II.B.1, Plaintiffs pleaded enough facts

to show that the Assignment was not effective, and that they

therefore had a legitimate claim to the Copyrights when the

BGA Defendants obtained them. Accordingly, we reverse the

district court’s dismissal of this claim. Because we reverse

the district court’s dismissal of this claim, we also vacate the

fee award to the BGA Defendants.

5. Twelfth Cause of Action: Declaratory

Judgment

Finally, we reverse the district court’s dismissal of

Plaintiffs’ Twelfth Cause of Action for a declaratory

judgment against the BGA Defendants. The district court

incorrectly concluded that Plaintiffs “ha[d] not alleged facts

showing that there is an actual case or controversy.” See Am.

States Ins. Co. v. Kearns, 15 F.3d 142, 143 (9th Cir. 1994).

As discussed above, the issue of the validity of the

Assignment and who has a current right to own the

intellectual property is a disputed issue of fact and law.

Accordingly, this case presents an actual controversy, and the

district court erred by dismissing it for lack of that

prerequisite.25

25

We acknowledge that, typically, the district court has the discretion to

dismiss or entertain a declaratory judgment action. But, here, the district

court did not dismiss Plaintiffs’ declaratory judgment claim as an exercise

of its discretion. Rather, it concluded, as a matter of law, that this case

lacked the pre-requisite of a “case or controversy.” However, on remand,

the district court may exercise its discretion to determine whether to

entertain the declaratory judgment action.

GRAHAM-SULT V. CLAINOS 45

6. Conclusion

We affirm in part and reverse in part the district court’s

grant of the BGA Defendants’ motion to dismiss. Because we

reverse the dismissal of the copyright infringement claim, we

address below the district court’s award of attorney’s fees

under 17 U.S.C. § 505.

III. Attorney’s Fees

Under the anti-SLAPP statute’s fee-shifting provision, the

district court awarded Clainos and the Greene Defendants

attorney’s fees for prevailing on the motion to strike.

Likewise, the district court awarded fees to the BGA

Defendants under the Copyright Act’s fee-shifting provision.

Plaintiffs appeal these attorney’s fee awards, and Clainos and

the Greene Defendants challenge the amounts awarded.

A. Anti-SLAPP

After prevailing on the anti-SLAPP motion, Clainos

requested $133,431.50, and the Greene Defendants requested

$260,506.50. The district court awarded Clainos $126,431.50,

plus fees for the reply, and awarded the Greene Defendants

$240,506.00 plus “reasonable fees on fees.” Both Clainos and

the Greene Defendants appealed their reduced fee awards.

Because we reverse the district court’s grant of Clainos’s

motion to strike, we must also vacate his award of attorney’s

fees. See Paul for Council v. Hanyecz, 102 Cal. Rptr. 2d 864,

872 (Ct. App. 2001) (“Because we have determined

defendants should not have prevailed on their motion to

strike, it follows that they are not entitled to the fees and costs

the trial court awarded them.”), disapproved of on other

46 GRAHAM-SULT V. CLAINOS

grounds by Equilon Enters. v. Consumer Cause, Inc., 52 P.3d

685 (Cal. 2002). However, because we affirm the grant of the

motion to strike as to the Greene Defendants, we address

Plaintiffs’ specific challenges to the fee award.

1. Standard of Review

State law governs attorney’s fees awards based on state

fee-shifting laws, like California’s anti-SLAPP statute. See

Northon v. Rule, 637 F.3d 937, 938 (9th Cir. 2011). Under

California law, therefore, we review the district court’s award

of attorney’s fees under the anti-SLAPP statute for abuse of

discretion. Nichols v. City of Taft, 66 Cal. Rptr. 3d 680, 684

(Ct. App. 2007). “A trial court’s exercise of discretion

concerning an award of attorney fees will not be reversed

unless there is a manifest abuse of discretion.” Id. “[R]eversal

is appropriate where [1] there is no reasonable basis for the

ruling or [2] the trial court has applied the wrong test or

standard in reaching its result.” Id. at 685 (internal quotation

marks omitted).

2. Analysis

Plaintiffs first argue that the fees awarded to the Greene

Defendants are unreasonable, because the award is much

greater than the fees that courts have awarded to successful

anti-SLAPP defendants in some other cases. That discrepancy

does not make the district court’s award unreasonable or a

product of applying the wrong standard. See Premier Med.

Mgmt. Sys., Inc. v. Cal. Ins. Guarantee Ass’n, 77 Cal. Rptr.

3d 695, 703 (Ct. App. 2008) (rejecting 50 hour figure as an

upper limit for the hours allowed an anti-SLAPP motion).

Defining what is reasonable by reference to other cases would

violate the principle that “each fee application under [the anti-

GRAHAM-SULT V. CLAINOS 47

SLAPP statute] must be assessed on its own merits . . . taking

into account what is reasonable under the circumstances.” Id.

Such an approach would also “conflict with application of the

deferential abuse of discretion standard [we must] apply on

appeal.” Id. Thus, the solitary fact that the fee awarded in this

case is higher than that awarded in other cases does not make

it an abuse of discretion.26

Next, Plaintiffs argue that the district court awarded an

unreasonable fee, because it granted fees for hours that the

Greene Defendants’ lawyers expended that were not

exclusively in pursuit of the anti-SLAPP motion. These hours

included time lawyers spent on the motion to dismiss, reply,

other filings, document review, and preparing initial

disclosures. Citing Christian Research v. Alnor, 81 Cal. Rptr.

3d 866 (Ct. App. 2008), Plaintiffs argue that, by awarding

fees for these hours, the district court failed to apply the

general rule that “the anti-SLAPP statute’s fee provision

applies only to the motion to strike, and not to the entire

action.” 81 Cal. Rptr. 3d at 874 (internal quotation marks

omitted). The district court did not abuse its discretion by

awarding fees for these activities.

At the outset, the entire action against the Greene

Defendants was subject to the motion to strike; no causes of

action against them survived it. Thus, the rule Plaintiffs cite

from Christian Research does not control the outcome here.

26

Plaintiffs cite Christian Research Institute v. Alnor, 81 Cal. Rptr. 3d

866 (Ct. App. 2008) numerous times. This case does not control our

analysis. In Christian Research, the court addressed the question of

whether the district court abused its discretion by making certain

reductions to the fee award. Id. at 873. This appeal raises a different

question: whether the district court abused its discretion by not making

reductions.

48 GRAHAM-SULT V. CLAINOS

Further, the anti-SLAPP statute is “intended to

compensate a defendant for the expense of responding to a

SLAPP suit. To this end, the provision is broadly construed

so as to effectuate the legislative purpose of reimbursing the

prevailing defendant for expenses incurred in extracting

herself from a baseless lawsuit.” Wanland v. Law Offices of

Mastagni, Holstedt & Chiurazzi, 45 Cal. Rptr. 3d 633, 637

(Ct. App. 2006) (citation omitted) (internal quotation marks

omitted). Here, the Greene Defendants incurred the expenses

Plaintiffs dispute in responding to a lawsuit the district court

found to be baseless. Accordingly, the district court’s

decision to award fees other than those exclusively incurred

in responding to the anti-SLAPP motion was not an abuse of

discretion.

Plaintiffs base their remaining arguments on speculation

and inferences. Thus, they question the credibility of the

declaration the Greene Defendants filed, which states that

only $15,000 was spent on work unrelated to the anti-SLAPP

motion. Plaintiffs state that this number “simply cannot be

true,” because the BGA Defendants, who filed only a motion

to dismiss, claimed $134,243.25 for that motion alone.

Plaintiffs then hypothesize about how many hours the Greene

Defendants’ lawyers actually spent on work not exclusively

related to the anti-SLAPP motion.

Plaintiffs also rely on speculation and inferences to

contest the fee award to the extent it is based on the

participation of the Howard Rice law firm (now Arnold &

Porter). Plaintiffs argue that it was unnecessary for Greene to

retain Howard Rice, because that firm did not provide any

benefit and caused duplicative work. However, the district

court directly considered this issue, and concluded that

Howard Rice’s participation was reasonable. The court also

GRAHAM-SULT V. CLAINOS 49

determined that the Greene Defendants gave a reasonable

justification for hiring two firms. Namely, Greene had a long-

standing relationship with Jerome Falk, the Howard Rice

lawyer initially hired to work on the matter. Falk was also

“familiar with many aspects of the estate probate and

administration,” because he had previously defended Clainos

in litigation related to the administration of the Graham

estate. Additionally, Ronald Mallen, the non-Howard Rice

attorney retained by Greene’s insurer, “welcomed the skills

that [Falk] and his firm would bring to the defense of [the

instant litigation].”

We reject Plaintiffs’ arguments. Even where they present

a possible alternative way of viewing the evidence of the

hours the attorneys claimed, they do not make the district

court’s view unreasonable. Accordingly, they do not show

that the district court abused its discretion.

B. Motion to Dismiss

After prevailing on their motion to dismiss, the BGA

Defendants requested $177,366.75 in attorney’s fees,

including $43,123.50 for work on the fee petition, under

17 U.S.C. § 505. The BGA Defendants also requested

$3,819.95 in costs. The district court awarded $134,243.25 in

fees and all requested costs.

On appeal, we need not address Plaintiffs’ specific

challenges to the fee award. Because we reverse the dismissal

of the copyright infringement claim, we also vacate the

district court’s award of attorney’s fees under 17 U.S.C.

§ 505.

50 GRAHAM-SULT V. CLAINOS

CONCLUSION

We affirm in part, and reverse in part. We AFFIRM the

district court’s grant of the Greene Defendants’ special

motion to strike and also AFFIRM their fee award. However,

we AFFIRM in part, and REVERSE in part the district

court’s grant of Clainos’s motion to strike. Accordingly, we

VACATE Clainos’s fee award. Further, we AFFIRM in

part, and REVERSE in part the district court’s grant of the

BGA Defendants’ motion to dismiss. We also therefore

VACATE the BGA Defendants’ fee award. The parties shall

bear their own costs on appeal.

AFFIRMED in part, REVERSED in part, and

REMANDED.