Theodore v. Danning, Gill, Diamond & Kollitz CA2/7

Filed 6/24/21 Theodore v. Danning, Gill, Diamond & Kollitz CA2/7

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions

not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion

has not been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

MICHAEL THEODORE, B291700

Plaintiff and Appellant, (Los Angeles County

Super. Ct. No. BC680011)

v.

DANNING, GILL, DIAMOND &

KOLLITZ, et al.

Defendants and Respondents.

APPEAL from a judgment of the Superior Court of Los

Angeles County, Gregory W. Alarcon, Judge. Affirmed.

Steven Zelig, WLA Legal Services, Inc. for Plaintiff and

Appellant.

Law Offices of Thomas J. Weiss and Thomas J. Weiss; Lyle

Mink for Defendants and Respondents.

_______________________

INTRODUCTION

Kyle Madison, his former wife Marjan Madison,1 and

Michael Theodore formed a limited liability company to operate a

rental property in Mexico. After financial disputes arose, Kyle

filed an action against Theodore alleging breach of fiduciary duty

and fraud, among other claims. The trial court appointed a

referee pursuant to Code of Civil Procedure section 6392 to

conduct an accounting and a liquidator pursuant to the

Corporations Code to wind up the company’s affairs. After

several years of hard-fought litigation, Theodore filed this action

against the Madisons, their counsel, the referee, the liquidator,

and the liquidator’s counsel alleging they wrongfully excluded

Theodore’s counsel from their communications during the

prosecution of Kyle’s action and unlawfully “teamed up” against

Theodore.

The referee, the Madisons, and the Madisons’ counsel filed

special motions to strike under Code of Civil Procedure section

425.16. Ruling that the referee’s and the Madisons’

communications and litigation conduct were protected activities

and that Theodore failed to demonstrate a probability of

prevailing on his claims, the trial court granted the motions.

Theodore argues that, because the referee and the Madisons

engaged in “criminal misconduct,” section 425.16 does not apply.

According to Theodore, even if the activities of the referee and the

Madisons were protected under section 425.16, he made a

1 We refer to the Madisons by their first names and

collectively as the “Madisons.”

2 Undesignated statutory references are to the Code of Civil

Procedure.

2

sufficient prima facie showing of merit. Theodore also argues

that the litigation privilege is not a bar to his claims because it

does not apply to criminal misconduct, noncommunicative

conduct, or conspiracy and aiding and abetting. We affirm.

FACTUAL AND PROCEDURAL HISTORY

A. The Dissolution Action

1. Casa W, LLC

In 2005, Kyle, who is an attorney, Marjan, and Theodore

purchased a house in Cabo San Lucas, Mexico and formed a

limited liability company, Casa W, LLC (Casa W), to operate the

property as a rental business. Theodore was the managing

member of Casa W. Theodore owned another limited liability

company, Casa Theodore, LLC, that owned the adjacent property

known as Casa Theodore. Theodore was the only member of

Casa Theodore, LLC.

2. Complaint and Cross-complaint

After the parties could not resolve disputes regarding

Casa W’s finances, on April 15, 2011, by his counsel Lyle R. Mink,

Kyle filed an action against Theodore and Casa W alleging eight

causes of action for breach of the contract, breach of fiduciary

duty, breach of the covenant of good faith and fair dealing, fraud,

dissolution of Casa W, appointment of receiver, an accounting,

and preliminary and permanent injunctions in aid of receiver.3

Kyle alleged that Theodore had engaged in “abuse of authority,

self-dealing and pervasive fraud” as the managing member of

Casa W. Kyle alleged that, despite repeated requests over the

3 At Kyle’s request, the trial court later added Marjan as a

plaintiff.

3

years, Theodore never provided any records of rental income,

expenses, and other costs for Casa W. Nor, Kyle alleged, did

Theodore furnish any records documenting his disbursements,

expenditures, and loans on behalf of Casa W. On April 13, 2012,

by their counsel, Daniel J. Spielfogel, Theodore and Casa W filed

a cross-complaint against the Madisons alleging five causes of

action for declaratory relief, breach of contract, breach of

fiduciary duty, breach of the covenant of good faith and fair

dealing, and fraud. On January 24, 2013, the trial court4

appointed Pamela Wax-Semus, a certified fraud examiner, as an

expert under Evidence Code section 730 to analyze the financial

transactions of Casa W and Casa Theodore, LLC.

3. Trial

After approximately 15 days of trial, in an October 22, 2015

statement of decision, the trial court5 ruled that Theodore

breached his fiduciary duties to the Madisons because “he cut the

Madisons out of the operation of the business with no authority

to do so and did not share the profits with them, thus, acting

against the interests of the Madisons.” The trial court further

ruled, “[G]iven that it was and is not possible for the members of

[Casa W] (vs. Theodore alone) to carry out the business of [Casa

W] according to the terms of the Operating Agreement because

[Theodore] has essentially shut out the Madisons, [Casa W] must

be dissolved.” The trial court found, “Wax-Semus’ work

exceedingly credible, reliable, and instructive.” The trial court

added, “[Wax-Semus] performed an unbelievable amount of work

[in] this case. In fact, she was the only expert in this case that

4 Judge Frederick C. Shaller

5 Judge Samantha P. Jessner

4

performed the item-by-item analysis that [the trial court]

anticipated. As a result, the parties’ experts . . . relied heavily on

the work that she performed.” The trial court further found,

“Wax-Semus did exactly what a certified fraud examiner is

supposed to do—she followed the evidence in order to arrive at

her conclusions.”

4. Referee and Liquidator

By order dated March 4, 2016, in accordance with section

639, subdivision (a)(2), the trial court appointed Wax-Semus as a

referee to conduct an accounting. The trial court ordered Wax-

Semus to “prepare a detailed accounting of all receipts and

disbursements, which includes an analysis of source documents

(e.g., bank statements and canceled checks) and a detailed

analysis of the financial accounting records of [Casa W],

including but not limited to general ledgers, cash receipts

journals, disbursement journals, and general/adjustment

journal[s] from January 1, 2005 to date.” The trial court ordered

Casa W to pay for Wax-Semus’s services. The trial court further

ordered, “If there are insufficient funds in the [Casa W] bank

account to pay her bill, the parties may seek a further order of

court to decide the appropriate course of action at that time.”

In another order dated March 4, 2016,6 the trial court

dissolved Casa W effective October 22, 2015 pursuant to

Corporations Code section 17707.03, subdivisions (a) and (b). The

trial court appointed Richard C. Diamond the “Court-Appointed

6 We take judicial notice of this order, the orders dated

August 1, 2016, August 16, 2016, August 22, 2016, and December

13, 2017, and the judgment entered on January 22, 2021. (See

Evid. Code, § 451, subd. (a).)

5

Liquidator of [Casa W]” to “wind up” Casa W’s affairs. The order

provided, “Diamond has the authority to take or not take any

action incident to dissolution, including without limitation the

authority to bind [Casa W] to new or additional liabilities.

Diamond may sell, transfer, pledge, or otherwise dispose of [Casa

W’s] assets on such terms and for such consideration as he, in his

sole discretion, deems reasonable, accept as payment for the

assets either cash or obligations of the purchaser, pay all debts

and obligations of [Casa W], and generally take or not take such

actions as may be necessary and reasonable to completely wind

up the business of [Casa W].” The order further stated,

“Diamond shall have the sole authority to employ and discharge

persons whose services for or on behalf of [Casa W] may or may

not be reasonably necessary in connection with the winding up

process, including but not limited to attorneys, accountants,

brokers, and other professionals.” The order also provided,

“Under Corporations Code section 17707.04(c), Diamond shall be

entitled to reasonable compensation from [Casa W] to wind up

the affairs of the [Casa W].” The order stated, “If there are

insufficient funds in [Casa W] bank account(s) to pay expenses

associated with the winding up process, including but not limited

to costs associated with the sale of [the rental property], the

parties may seek a further order of court to decide the

appropriate course of action at that time.”

In March 2016, Diamond hired his law firm, Danning, Gill,

Diamond & Kollitz, LLP (Danning Gill), to act as the liquidator’s

general counsel. On August 1, 2016, the trial court ordered

Theodore to pay $166,211.87 to Diamond. The trial court also

ordered the Madisons and Theodore to “each pay one-half of all of

the bills of Ms. Pamela Wax-Semus.”

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5. The Conversion Action

On July 13, 2016, Mink filed on behalf of the Madisons an

action in the Los Angeles Superior Court against Theodore’s

counsel, Spielfogel, and Theodore’s accounting expert, Thomas E.

Pastore. Based on allegations that Theodore paid Spielfogel and

Pastore “monies from bank accounts that contained the

undistributed [Casa W] funds due the Madisons” and that

Spielfogel and Pastore “wrongly assumed control” over the funds

and “applied them” to their own personal use, the complaint

asserted causes of action for conversion. The Madisons attached

payment schedules prepared by Wax-Semus to their complaint

6. Disqualification of Referee

On February 14, 2017, based on Wax-Semus’s “legion of

unauthorized ex parte communications” with Kyle, Mink, and

Diamond, Theodore filed a motion to disqualify Wax-Semus,

vacate the court’s October 22, 2015 statement of decision, require

Wax-Semus to return to Theodore all fees he paid to Wax-Semus,

and enter terminating sanctions against the Madisons. On

March 24, 2017, after finding that “Wax Semus had a duty to

avoid ex parte communications and promptly notify parties of the

substance of ex parte communications to provide the parties with

an opportunity to respond,” the trial court disqualified Wax-

Semus as a referee.

The trial court found that “there is overwhelming evidence

that Wax Semus has consistently violated her duty to refrain

from engaging in ex parte communications in her capacity as a

referee in this action.” The trial court explained, “Wax-Semus

has been exposed to a barrage of disparaging comments from

attorney Mink toward both Defendant Theodore and his counsel.

For example, Mink called Theodore ‘dishonest’ prior to phase one

7

of trial in this matter . . . and a ‘thief’ who Mink guesses has

‘already cheated the IRS out of plenty’ on May 12, 2016. . . . Wax

Semus failed to notify defense counsel of these disparaging

comments and personal attacks. [¶] Additionally, on May 13,

2016, the date of a Final Status Conference in this action, Wax

Semus provided [Diamond] with information regarding why he

‘and Mr. Theodore have different income numbers for 2015.’

While Wax Semus copied Mink on the email, she failed to copy

[Theodore’s] counsel. As if that wasn’t bad enough, she ended the

email as follows: ‘I hope this helps. Good luck.’ . . . Additionally,

in complete disregard of duties, on July 5, 2016, Wax Semus

provided ‘schedules/documents you may be able to use at the

hearing on Thursday’ to Mink and [Diamond]. . . . Again,

[Theodore and Casa W] were not copied on this communication.”

The trial court further found, “By far the most troubling conduct

by Wax Semus occurred on June 9, 2016 when she provided a

separate report to Mink at his sole request that later formed the

basis for a lawsuit Madison filed against Spielfogel and

[Theodore’s] forensic accountant, Pastore.”

In rejecting Theodore’s request to vacate the

October 22, 2015 statement of decision, the trial court found:

“Each of the e-mails that [Theodore] claims show that Wax-

Semus was biased, engaging in unauthorized ex parte

communications and lacking in credibility were admitted in the

phase one trial and considered by the court.” The trial court

ruled, “[Theodore] was given a full opportunity to present

evidence of the potential bias of Wax-Semus, Wax-Semus’s

report, and her conclusions in the first phase of trial. . . . [W]hile

there is direct evidence of attorney Mink disparaging Defendant

Theodore and his attorney to Wax-Semus prior to phase one of

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trial, there is no evidence that Wax-Semus entertained that same

bias or adopted Mink’s unprofessional opinion of Theodore and

Spielfogel.” Therefore, the court found that Theodore’s “due

process rights were adequately protected” at trial. The trial court

added that Theodore’s “attempts to get out from under an

adverse ruling are disingenuous and transparent.”

The trial court also denied Theodore’s request that Wax-

Semus return all funds paid by Theodore because “Theodore’s

arguments are properly considered at the conclusion of this

action (assuming there is a conclusion) pursuant to Evid. Code

§ 731.” As to Wax-Semus’s invoices for her services as a referee,

the trial court found, “[I]t was not clear that Theodore has paid

any of her bills since she was appointed as referee (especially

given that he rarely seems to pay anyone’s bills even when faced

with the prospect of imprisonment).” After finding the conduct of

Kyle and Mink “deeply troubling,” the trial court commented, “As

to the ex parte communications that are before the court, it is

difficult to ignore the extent to which Mink and Mr. Madison

treated Wax Semus essentially as a member of their litigation

team, the most obvious example being their request that she

prepare a schedule enabling them to sue Spielfogel and Pastore

in a separate action.”

7. Trial Court Recusal and Discharge of Liquidator

On March 27, 2017, “upon reflection,” the trial court7

recused itself, explaining “that further proceedings in this case

should proceed before another judicial officer unencumbered” by

the opinions formed from “the nature and extent of ex parte

communications that plaintiff Kyle Madison and his attorney,

7 Judge Samantha P. Jessner

9

Lyle Mink, had with Pamela Wax-Semus after the court

appointed her as a referee in this case.” Because of the recusal,

by order dated August 16, 2017, the trial court8 declared a

mistrial because the same judge was not available to complete

the trial. On August 22, 2017, “in furtherance of this Court

having declared a mistrial in this action,” the trial court entered

an order discharging Diamond.

On December 13, 2017, the trial court entered an order

approving “on a final basis” $918,009.77 in fees and costs for

Diamond and Danning Gill. After deducting prior payments, the

December 13, 2017 order required Casa W, the Madisons, and

Theodore to jointly and severally pay Diamond and Danning Gill

$797,879.95. The trial court retained “jurisdiction over any

disputes or other matter involving” Diamond and any

professionals he retained. The order provided it was “enforceable

as a money judgment” in favor of Diamond and against Casa W,

Theodore, and the Madisons.

After a retrial, on January 22, 2021, the trial court entered

a judgment of $3,928,300 against Theodore and in favor of the

Madisons. The judgment provided that the Madisons’ attorney

fees would be determined by separate motion.

B. This Action

On October 13, 2017, Theodore filed this action in the Los

Angeles Superior Court against the Madisons, Mink,9 Wax-

Semus, Diamond, and Danning Gill (defendants).

8 Judge Gregory W. Alarcon

9 Theodore also named Lyle R. Mink, A Law Corporation.

10

1. Communications with Fraud Examiner/Referee

In a 160-page first amended complaint filed on January 18,

2018, Theodore alleged that, before the court appointed Wax-

Semus as an Evidence Code section 730 expert, Wax-Semus

represented that she “would and could be fair, impartial and

would conduct [herself] in accordance with the rules and bylaws

of the ‘Association of Certified Fraud Examiner.’” However,

according to Theodore, Wax-Semus later “conceded that she had

no intent of complying with this promise” and “severely violated

virtually every standard of the Association of Certified Fraud

Examiners.” Theodore further alleged that the Madisons and

Mink “aided, abetted and encouraged” Wax-Semus “in defrauding

and breaching fiduciary duties owed” to Theodore “by engaging in

a large number of ex parte communications of both a substantive

and strategic nature” with Wax-Semus.

Based on the “rampant” and “pervasive” ex parte

communications among Wax-Semus, Kyle, and Mink, Wax-

Semus “covertly stepped out of her role as neutral and impartial

court appointed expert, and into the role as advocate and expert

witness for the [Madisons] and [Mink] and charged [Theodore] for

her time helping the [Madisons] and [Mink], and otherwise acting

as part of their litigation team.” Theodore alleged that Wax-

Semus’s “inappropriate and illegal conduct included litigation

strategies and approaches to be used by the [Madisons] and

[Mink] against [Theodore] and doing so without alerting

[Theodore].” Theodore further alleged that Wax-Semus “[f]alsely

billed” Theodore for services that were “provided” to the

Madisons and Mink and that Wax-Semus procured “substantial

amounts of funds from [Theodore] under the false and fraudulent

pretense that she was acting as [a] neutral and impartial arm of

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the court.” Theodore alleged that Wax-Semus “procured under

false pretenses” $124,000 in payments from Theodore.

Theodore further alleged that, as a direct result of Wax-

Semus’s “skewed and corrupt testimony,” in March 2016 the trial

court “expanded” the role of Wax-Semus by appointing her as a

“referee.” Because this appointment “[w]as an arm of the court, it

was even more important that Wax-Semus comply with ethical

standards imposed on a judge . . . to avoid ex parte

communications at all costs.” Theodore also alleged that, after

her appointment as a referee in March 2016, Wax-Semus

“continued to engage in illegal ex parte communications of a

strategic and substantive nature with” Mink, Kyle, Diamond, and

Danning Gill.

Theodore further alleged that, “in an unprecedented

example of malice,” based on accounting schedules that Wax-

Semus prepared, on July 13, 2016, Mink filed on behalf of the

Madisons an action in the Los Angeles Superior Court against

Spielfogel and Pastore. Mink and the Madisons “filed the suit to

interfere with Spielfogel’s representation of [Theodore], and to

upset Pastore so that he would bow out as [Theodore’s] forensic

expert.” According to Theodore, the Madisons and Mink “falsely

and without any basis” alleged that “Pastore and Spielfogel had

engaged in conversion, and had engaged in acts justifying

punitive damages per Civil Code section 3294.” Theodore alleged

that, although Theodore “paid in substantial part for the time

[Wax-Semus] spent in creating the schedules used against [him],”

Theodore “never authorized” Wax-Semus “to generate these

schedules.”

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2. Communications with Liquidator and His Counsel

Theodore also alleged that, “as a direct result of the corrupt

testimony of [Wax-Semus], the trial court appointed Diamond” to

liquidate Casa W. Theodore alleged that Diamond “had no intent

of properly managing [Casa W],” that Diamond’s “‘intent [was] to

immediately hire a lawyer associated with [Danning Gill] in

order to inflate billing,” and that Diamond’s intent was to follow

his and Danning Gill’s “established business practice” to

“generate bills that were as high as possible.” Theodore alleged

that, Diamond and Danning Gill, like Wax-Semus, “illegally

‘team[ed]’ up” with the Madisons and Mink and “engage[d] in

illicit ex parte communications.” Theodore alleged that between

March 4, 2016 and August 1, 2016 Diamond “engaged in more

than 270 ex parte communications” with the Madisons and Mink.

Before presenting a “sampling” of the ex parte communications

involving Diamond, the first amended complaint described “four

categories of illicit ex parte communications: (1) Ex parte

communications sent to [Diamond and Danning Gill] in which

Mink severely disparages Theodore and Spielfogel; (2) Ex parte

communications in which Kyle and Mink direct and instruct

Diamond and Wax-Semus as to how to conduct themselves, and

dispatch Diamond as the investigative envoy of the Madisons and

Mink; (3) Ex parte communications where Mink strategized with

Diamond in favor of the Madisons and against Theodore, and, (4)

Miscellaneous ex parte communications.”

For example, the complaint quoted emails from Mink to

Diamond in which Mink stated that Theodore “does not tell the

truth,” that he “bribes people,” and that he was “deceitful.” The

first amended complaint further alleged that in ex parte

communications Mink told Diamond that Diamond “needs to take

13

over the property immediately,” that “you need to be more

decisive about such things,” and that “as to the discrepancy

(Diamond) found in the rents . . . I’m going in next week for an

OSC re contempt against Theodore.” Theodore further alleged

that Kyle sent a “very lengthy e-mail to [Diamond], in which

[Kyle] instructed [Diamond] to investigate at least 15 different

issues when he was in Cabo.” In furtherance of the “fraudulent

and illegal scheme,” Theodore alleged that Diamond and Danning

Gill submitted “fraudulent, excessive, and exaggerated” bills for

their services to Theodore.

3. 23 Causes of Action

In the first amended complaint, based on the

communications among the defendants, Theodore asserted a first

cause of action for “fraud in the inducement and performance”

against Wax-Semus and the Madisons and Mink “who aided and

abetted and conspired with [Wax-Semus]”; a second cause of

action for “negligent misrepresentation” against Wax-Semus; a

third cause of action for breach of fiduciary duty against Wax-

Semus and the Madisons and Mink “who aided and abetted

[Wax-Semus]”; a fourth cause of action for “constructive fraud”

against Wax-Semus and the Madisons and Mink “who aided and

abetted and conspired with [Wax-Semus]”; a fifth cause of action

for “statutory violations” (Pen. Code, §§ 484, 496) against Wax-

Semus and the Madisons and Mink “who aided and abetted and

conspired with [Wax-Semus]”; a sixth cause of action for

negligence against Wax-Semus; a seventh cause of action for

breach of contract against Wax-Semus; an eighth cause of action

for “intentional interference with contract” against Wax-Semus

as to Theodore’s contract with the Madisons; a ninth cause of

action for “breach of fiduciary duty” against Diamond and

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Danning Gill “aided and abetted by and in conspiracy with” the

Madisons and Mink; a tenth cause of action for “constructive

fraud” against Diamond and Danning Gill “aided and abetted by

and in conspiracy with” the Madisons and Mink; an eleventh

cause of action for “statutory violations” (Pen. Code §§ 484, 496)

against Diamond and Danning Gill “aided and abetted by and in

conspiracy with” the Madisons and Mink; a twelfth cause of

action for “conversion” against Diamond and Danning Gill; a

thirteenth cause of action for “negligence” against Diamond and

Danning Gill; a fourteenth cause of action for “breach of contract”

against Diamond and Danning Gill; a fifteenth cause of action for

“intentional interference with contract” against Danning Gill; a

sixteenth cause of action for “breach of fiduciary duty” against

the Madisons “aided and abetted by and in conspiracy with” Wax-

Semus, Diamond, Danning Gill, and Mink; a seventeenth cause of

action for “constructive fraud” against the Madisons “aided and

abetted by and in conspiracy with” Wax-Semus, Diamond,

Danning Gill, and Mink; an eighteenth cause of action for “breach

of contract” against the Madisons; a nineteenth cause of action

for “interference with contract” against the Madisons and Mink; a

twentieth cause of action for “wrongful appointment and

manipulation of liquidator” against the Madisons; a twenty-first

cause of action for “defamation/false light” against the Madisons;

a twenty-second cause of action for “fraud” against Diamond,

Danning Gill, Mink, and the Madisons; and a twenty-third cause

of action for “statutory violation (civil RICO)” against Diamond

and Danning Gill “aided and abetted by and in conspiracy with”

Mink and the Madisons. The twenty-third cause of action was for

violation of the Racketeer Influenced and Corrupt Organizations

Act (RICO; 18 U.S.C. § 1961 et seq.)

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C. Special Motions To Strike

1. Mink

Mink argued that the 12 causes of action alleged against

him “arise from and directly relate to [Mink’s] actions and

communications in his capacity as attorney for the plaintiffs” in

the dissolution and conversion actions. Accordingly, “each such

cause of action is based on conduct described in section 425.16”

because “[s]tatements made in litigation, are protected activity.”

Citing Flatley v. Mauro (2006) 39 Cal.4th 299 (Flatley), Mink

further argued “that [Theodore] cannot contend that mere

assertions and allegations that communications are criminal

removes them from qualifying as protected activity under the

anti-SLAPP statute.” According to Mink, “the question of

whether litigation communications are criminal arises only when

the court turns to step 2, and inquires whether the claims based

on protected conduct are supported by evidence sufficient to

establish criminality.”

Relying on Bergstein v. Strook & Strook & Lavan LLP

(2015) 236 Cal.App.4th 793 (Bergstein), Mink argued, “[Theodore]

cannot show probability of success on any of his claims because of

the scope of the litigation privilege under section 47 of the Civil

Code. That privilege is absolute, except for malicious prosecution

claims, which are not and cannot be part of the complaint

herein.” Concerning Theodore’s RICO cause of action, Mink

argued that it was not only “based on the same litigation-related

communications which are the basis of the other claims,” but also

that Theodore failed to allege the required predicate acts and the

pattern of racketeering activity.

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2. The Madisons

In the Madisons’ special motion to strike the 15 causes of

action asserted against them, the Madisons repeated Mink’s

arguments that “[s]tatements made in litigation or in connection

with litigation, are protected activity,” that Theodore “cannot

contend that mere assertions and allegations that

communications are criminal removes them from qualifying as

protected activity,” and that Theodore “cannot show a probability

of success on any of his claims because of the scope of the

litigation privilege under section 47 of the Civil Code.” The

Madisons added, “All of the causes of action against the

[Madisons] arise from and directly relate to [Kyle’s] actions and

communications in his capacity as attorney for the plaintiffs in

the [dissolution and conversion actions]. . . . With respect to

[Marjan], the ‘theory’ of her liability is entirely one of vicarious

liability for the litigation-related communications of Mink and

[Kyle].”

3. Wax-Semus

To strike the 11 causes of action asserted against her, Wax-

Semus argued, “All of the factual allegations in [Theodore’s]

complaint describe Ms. Wax-Semus acting in her capacity as

either the court-appointed Evidence Code § 730 expert, or as the

court-appointed Code of Civil Procedure § 639(a)(2) referee.

There are no factual allegations plead against Ms. Wax-Semus

other than in those two capacities.” Because her “alleged conduct

consists of statements or actions in connection with a judicial

proceeding[ ], or in connection with an issue under consideration

or review by a judicial proceeding[ ],” Wax-Semus maintained

that she established protected activity under section 425.16,

subdivision (e)(1) and (2).

17

Wax-Semus further argued the “litigation privilege is a

substantive defense that [Theodore] simply cannot overcome”

because Theodore’s claims “arise from the discharge of her duties

as the court-appointed expert under Evidence Code § 730,”

“[e]ach and every communication complained of by [Theodore]

was made in the course of [the dissolution action], a judicial

proceeding,” and the “communications were allegedly made to

further the [Madisons’s] goals and objectives in [the dissolution

action].” Wax-Semus also argued that Theodore’s claims were

barred because she “enjoy[ed] quasi-judicial immunity as both

the court-appointed referee under Code of Civil Procedure

§ 639(a)(2) and as the court-appointed expert under Evidence

Code § 730.” Finally, Wax-Semus stated in a declaration, “I have

had no dealings with Plaintiff Michael Theodore whatsoever in

any capacity other than as the court-appointed expert witness

under Evidence Code § 730 and other than as the court-appointed

referee under Code of Civil Procedure § 639(a)(2) in [the

dissolution action].”

4. Theodore’s Oppositions

a. Wax-Semus

In opposition to Wax-Semus’s special motion to strike,

Theodore argued that “the court cannot grant the anti-SLAPP

motion as to any cause of action” because “each cause of action

asserted against Wax-Semus contains provable allegations that

Wax-Semus engaged in criminal misconduct.” According to

Theodore, he did not “have to get to the merits of [his] causes of

action” because, under Flatley, supra, 39 Cal.4th 299, “if illegality

is demonstrated . . . then the anti-SLAPP statute is not available

to the defendant.” Theodore contended, “Wax-Semus’s conduct

and procurement of substantial funds from Theodore under false

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and fraudulent pretenses, constituted a criminal offense per

[Penal Code] sections 484 and 496 and hence is not subject to the

litigation privilege or to protection under section 425.16.”

Theodore further argued, “[I]t is clear that Wax-Semus

severely violated her duties as an officer of the court and engaged

in a conspiracy with the Madisons, Mink, and Diamond, resulting

in a very significant damage to Theodore.” Theodore added that

“engaging in conspiracy is an independent, non-communicative

act which is not subject to the litigation privilege.” Theodore also

argued that the “wrongful taking of money is not protected

activity. Since this is central to [Theodore’s] claim against Wax-

Semus, the court must deny this motion.” Because “Wax-Semus

stepped out of her proper role as an independent expert, and into

the role of being part of Madisons’s litigation team,” Theodore

argued Wax-Semus “cannot rely on quasi-judicial immunity.”

Without specifying the evidence that supported the elements of

the causes of action asserted against Wax-Semus or citing legal

authorities that established the legal sufficiency of these causes

of action, Theodore concluded that he demonstrated “his prima

facie case as to [the] causes of action asserted against Wax-

Semus.”

b. Mink

Theodore also argued that “every cause of action

asserted against Mink includes provable allegations of criminal

conduct, . . . accordingly the court cannot grant this motion as to

any cause of action.” Theodore further argued, “Section 6128 of

the [Business and Professions] Code makes it a misdemeanor for

Mink to engage in any deceit or collusion with the intent to

deceive the court or a party. Here, Mink severely disparaged

Theodore, calling him every ‘name in the book,’ and accusing him

19

in so many different ways of being a criminal.” Theodore

continued, “Especially in light of the very high volume of emails,

a reasonable trier of fact could conclude that this constituted

collusive and deceitful conduct designed to deceive a person and

the court.” Theodore maintained that “Mink’s conduct in aiding

and abetting both Wax-Semus and Diamond in procuring

substantial funds from Theodore under false and fraudulent

pretenses, constituted a criminal offense per [Penal Code]

Sections 484 and 496 and hence is not subject to the litigation

privilege or to protection under section 425.16.” According to

Theodore, “[B]ecause section 425.16 does not apply to criminal

misconduct, the court does not even have to go to the second step

of the analysis.”

Theodore also argued that the litigation privilege did not

apply because “Mink’s conduct and communication was not

designed to achieve the legitimate objects of the litigation.” In

summary fashion without identifying evidence in relation to the

elements of the causes of action or establishing the legal

sufficiency of the causes of action, Theodore concluded that he

demonstrated “his prima facie case” as to the causes of action

asserted against Mink. For example, regarding the tenth cause

of action against Mink for aiding and abetting Diamond’s and

Danning Gill’s “constructive fraud,” Theodore asserted, “[T]here

is a mountain of evidence by which the trier of fact can conclude

that Mink aided and abetted constructive fraud by Diamond.”

c. The Madisons

After pointing out the “acts and omissions of Mink . . . are

imputable to the Madisons,” Theodore argued, “Kyle himself

personally engaged in many direct communications with Wax-

Semus/Diamond, issued directive[s] to them and was effectively

20

copied on all emails between Mink, Wax-Semus, Diamond and

[Danning Gill].” Theodore added that “engaging in conspiracy is

an independent, non-communicative act which is not subject to

the litigation privilege.” Theodore then repeated his argument

that because “every cause of action asserted against the Madisons

. . . includes provable allegations of criminal conduct,” the “court

cannot grant this motion as to any cause of action.” Theodore

further argued that, based on the “severe nature of the highly

disparaging comments Kyle and Mink made about Theodore in

emails,” Theodore has a probability of prevailing on all causes of

action. Theodore repeated his conclusory arguments that he

demonstrated “his prima facie case” as to all causes of action

asserted against the Madisons. Theodore did not identify the

evidence that supported the elements of the causes of action or

established their legal sufficiency.

d. Spielfogel Declaration

In support of Theodore’s oppositions to the three special

motions to strike, Spielfogel filed a 123-page declaration. In his

declaration, Spielfogel summarized and quoted from the

“pervasive ex parte communications” among Kyle, Mink, and

Wax-Semus. According to Spielfogel, he attached to his

declaration “true and correct copies of: (1) examples of emails

and other documentation evidencing unethical and inappropriate

ex parte communications of a substantive nature of which I was

not informed; (2) examples of numerous instances where Mr.

Mink, Mr. Madison and Ms. Wax-Semus made inappropriate and

prejudicial comments about Mr. Theodore of which I was not

informed and not given the opportunity to rebut; (3) examples of

numerous instances where Ms. Wax-Semus assisted Mr. Madison

and Mr. Mink in the prosecution of their case against Mr.

21

Theodore; (4) examples of numerous instances where Mr.

Madison and Mr. Mink directed Ms. Wax-Semus to do or not do

certain things and her acceptance of the directives; (5) examples

of instances where Ms. Wax-Semus assisted Mr. and Mrs.

Madison and Mr. Mink in developing alleged evidence to support

their maliciously prosecuted lawsuit against Mr. Pastore and

[Spielfogel]; (6) examples of other instances of completely

inappropriate conduct.” Spielfogel also attached to his

declaration Wax-Semus’s and Mink’s invoices for services

performed in the dissolution action.

For example, Spielfogel referenced an email Kyle sent Wax-

Semus and Mink on November 12, 2014 in which Kyle stated:

“Hi Pamela: You indicated that Mr. Theodore has provided you

with 7,000 pages of expense documents for both Casa W and Casa

Theodore, which he has failed to produce to [Mink] or myself. Do

you believe that the documents produced are within the scope of

your assignment? If you do not, please inquire with Mr.

Theodore or his counsel why they believe it to be relevant to your

task. We look forward to your response. Thank you.” Regarding

this email and the other emails Spielfogel quoted regarding Wax-

Semus, Spielfogel stated: “I did not consent to this significant ex

parte communication, especially one going to substantive issues

and to the scope of Ms. Wax-Semus’s assignment. . . . The above

and other facts and documents referenced in this declaration

demonstrate that she was at the beck and call of Mr. Mink and

Mr. Madison and that she accepted directives from one of the

parties in the matter in which she was appointed. Ms. Wax-

Semus never alerted me to the high volume of substantive ex

parte communications, loaded with evidentiary and prejudicial

22

matter. Ms. Wax-Semus clearly stepped out of her proper role as

a neutral arm of the Court.”

Spielfogel further stated that on January 8, 2015

“Mr. Mink outrageously direct[ed] Ms. Wax-Semus as follows:

‘Please correct your conclusion and omit the recommendation

that disregards Judge Mackey’s deadline. In other words, just

assume that the documents you have are the only ones you are

going to get.’” Spielfogel further stated: “Ms. Wax-Semus’s bill

for services allegedly rendered in May of 2015 contained

numerous entries demonstrating her alliance with [the Madisons]

and that she had become an expert for [the Madisons], including,

but not limited to: (1) ‘reviewing transcripts;’ (2) ‘preparing for

rebuttal testimony;’ and (3) ‘assisting on preparation for trial.’ . . .

I did not give her any transcripts to review. I did not ask her to

assist in preparation for trial. I did not ask her to ‘prepare for

rebuttal testimony.’ This is powerful evidence that she had

abandoned the role of neutral and independent expert and

became part of [the Madisons’s] team.”

Spielfogel also pointed out that, after Diamond’s

appointment as liquidator in March 2016, the ex parte

communications among Mink, Kyle, and Wax-Semus now

included Diamond or Danning Gill. Spielfogel attached

Diamond’s and Danning Gill’s billing statements to his

declaration. Spielfogel also attached to his declaration numerous

email communications among Diamond, Danning Gill, Wax-

Semus, Kyle, or Mink. For example, Spielfogel quoted an email

Mink sent to Diamond and Danning Gill on March 26, 2016 in

which Mink stated: “I would take no comfort in getting the keys

to the house from Theodore-The-Thief. [¶] Knowing him the way

we do, it would not surprise us if he had the keys duplicated and

23

was renting out the house as he was looking you in the eye and

telling you that he was not. That’s why you not only need to fine

tune your bullshit meter, you also need boots on the ground to see

what’s really happening with the house. Needless to say those

boots cannot belong to someone who knows Theodore and is

somehow loyal to him or can be bribed.” Regarding this email

and the other emails Spielfogel quoted that Diamond and/or

Dunning Gill sent or received, Spielfogel stated: “At the time

that this email was transmitted, I did not know of, or consent to,

said ex parte communication. I certainly never consented to Mr.

Mink or Mr. Madison instructing Mr. Diamond how to do his job.

I was not given the opportunity to respond to this

communication.”

Spielfogel also set forth an April 5, 2016 email Mink sent to

Diamond, Kyle and Danning Gill in which Mink stated, “Richard:

In view of our discussion, it looks like I will need your declaration

to get the judge to expand the accounts you have access to?”

Spielfogel also quoted an April 9, 2016 email from Mink to

Danning Gill in which Mink stated: “Aaron: Please try to

include a reference to Panama in the declaration if it’s admissible

and not awkward. That is, when Richard tried to reach

Theodore, he found out he was in Panama. Where did that come

from? Hearsay?” Spielfogel further quoted an email from Mink

to Diamond and Danning Gill dated April 17, 2016. In this email,

Mink stated: “Richard: Here is a very rough draft of (1) an

application to amend the March 4 order, and (2) the proposed

order. Please give me your comments tomorrow or at your

earliest convenience. Also, please give me your proposed changes

for your declaration, based on what you received from Theodore

on Friday.” Spielfogel also quoted an email dated June 17, 2016

24

sent from Wax-Semus to Diamond, Danning Gill, and Mink.

Wax-Semus stated: “Gentlemen: Please subpoena a newly

discovered bank account. Bank of America account number

80002147115 held in the name of Casa Theodore Inc. I have also

attached evidence that Mr. Theodore has deposited [Casa W]

income into his personal bank account in August of 2014. After I

complete by review of the documents received today, I know I will

require additional subpoenas.”

e. Theodore Declaration

In a declaration submitted in opposition to the special

motions to strike, Theodore stated: “I have paid to Ms. Wax-

Semus $124,933.72. Because Ms. Wax-Semus has been removed

and disqualified, the entirety of this expenditure has been

wasted. Moreover, it is very upsetting to me that as it turns out I

have been forced to fund Wax-Semus’ role as part of [Madisons’]

litigation team. In particular, I think it is outrageous that I

personally funded at least one half of Wax-Semus’[s] time in

generating schedules that were later used to sue Mr. Spielfogel

and Mr. Pastore.” Theodore further stated, “I personally have

paid $193,347.87 to [Diamond] and [Danning Gill]. This does not

include additional amounts that [Diamond] took from [Casa W].”

5. Replies

Mink argued, “First [Theodore] cites no case in which a

lawyer’s communications with a court-appointed expert was held

to be outside the anti-SLAPP statute or the litigation privilege.

Second [Theodore] cites no case in which such conduct was held

to be criminal.” Mink argued that Theodore “may not avoid the

litigation privilege by charactering Mink’s conduct as criminal or

a conspiracy” because “the gravamen of [Theodore’s] claim

25

against [the Madisons] is based solely on their communicative

conduct in ongoing litigation.” In their reply, the Madisons

pointed out Theodore’s argument that “the Madisons are

vicariously liable for Mink’s communication because they are his

client” was “unsupported by law or logic.” According to the

Madisons, there was no authority for the proposition “that a

client is vicariously liable for her attorney’s alleged torts or

alleged ‘criminal conduct.’” The Madisons also argued that

Theodore “provide[d] no evidence that any of the utterances

complained of were criminal.” The Madisons further argued that

Theodore’s attempt to relabel certain of the causes of action as

breaches of a ‘“duty arising out of the partnership’ . . . doesn’t

work” because each cause of action “rests on the same litigation-

related conduct that is the gist of the pleading as a whole.”

In her reply, Wax-Semus argued that she engaged in

protected activities because “the conduct complained of by

[Theodore] does not as a matter of law constitute a crime.” Wax-

Semus added, “While the [trial court’s] findings of the court were

sufficient to disqualify [Wax-Semus] as both the court appointed

§639 referee and the court appointed §730 expert, those facts are

not sufficient for a preliminary finding that [Wax-Semus]

engaged in criminal activity.” Wax-Semus continued, “[T]he

court may have found that she failed to abide by the standards

imposed upon judicial officers, but did not find that her conduct

was beyond judicial function. As such, her conduct is immune

from liability as she was performing a quasi-judicial act.” Wax-

Semus further argued, “[E]ven assuming that [Wax-Semus] has

become the Madisons’ expert, which is not conceded, she is still

protected from liability under the litigation privilege” because

“under the litigation privilege, an adverse expert witness is

26

immune from liability for statements made in the court of the

litigation.”

D. Trial Court Rulings

The trial court granted the three special motions to strike.

In granting Mink’s special motion to strike the first amended

complaint, by order dated May 30, 2018, the trial court ruled that

the causes of action alleged against Mink arose from Mink’s

“conduct as a lawyer in [the dissolution action]” and were based

on Mink’s communications “with Wax-Semus regarding

testimony in [the dissolution action]” and “with Diamond

regarding liquidation and management of the subject property in

[the dissolution action].” Because Mink’s communications with

Wax-Semus and Diamond concerned “an issue under

consideration or review by a judicial body,” Mink’s activities were

protected under section 425.16, subdivision (e)(2). As to Theodore

demonstrating a probability of prevailing on his claims, the trial

court ruled, “[Theodore] does not demonstrate that the [first

amended complaint] is legally sufficient. [Theodore] does not

proceed through each cause of action and demonstrate that each

essential element is pled in the Complaint. [Theodore] does not

identify the elements in Penal Code sections 127, 133, 135, 484,

and 496, or in Business and Professions Code section 6128, or for

a RICO claim. Nor does [Theodore] identify the elements for

aiding and abetting breach of fiduciary duty, conspiracy to

defraud, constructive fraud, negligent misrepresentation, or

conspiring to defraud.”

The trial court further ruled, “[Theodore] offers no facts

supporting the causes of actions in the opposition. [Theodore’s]

statements are conclusory. Stating ‘there is a mountain of

evidence’ is insufficient to establish any elements of the claims.

27

[Theodore’s] ‘Factual Statement’ section in [his] opposition does

not provide sufficient facts for each element or tie any floating

quote to an element of a cause of action. Further, the

compendium of exhibits submitted appears to only show that

Mink engaged in numerous ex parte communications with the

third party neutral fraud examiner and liquidator. It is not clear,

and would be a great leap to infer, that Mink aided and abetted

or colluded with them to procure funds from [Theodore] under

false pretenses, to defraud [Theodore], to breach their fiduciary

duty to [Theodore], to interfere with their contract with

[Theodore], to constructively defraud [Theodore], or for negligent

misrepresentation.” The trial court concluded, “Accordingly,

[Theodore] has not met his burden to demonstrate a probability

of prevailing on its claims.”

In the order dated June 6, 2018 granting Wax-Semus’s

motion, the trial court ruled, “As for step one of the SLAPP

analysis, the Court concludes that the SLAPP statute applies,

including because moving party does not admit acting sufficiently

illegally, and the evidence does not conclusively show it, as

distinguished from disputes in the evidence. [¶] The SLAPP

statute is inapposite to illegal speech, which means that the

moving party concedes that its conduct was criminal, or that the

evidence conclusively establishes it. . . . As for step two, the Court

determines that judicial immunity, and the litigation privilege,

are conclusively shown, without any applicable, and competently

evidenced, exceptions. [¶] Specifically, [Theodore’s] allegations

and evidence of communications amounting to ethics violations of

ex parte communications and bias, and the conduct of overbilling

that [Theodore] essentially calls false pretenses, nevertheless

were associated with dealing with [Wax-Semus] while

28

functioning within court-authorized jurisdiction, as a court-

appointed expert or referee, and involving inseparable

communications in furtherance of litigation, such that immunity

and the privilege apply.”

Without setting forth its reasoning, by order dated May 31,

2018, the trial court granted the Madisons’ special motion to

strike. On June 15, 2018, the trial court sustained Diamond’s

and Danning Gill’s demurrers to the first amended complaint

without leave to amend and granted their motions to strike. On

July 13, 2018, the trial court awarded Mink and the Madisons

$23,212.50 in attorney fees and, on July 30, 2018, the trial court

awarded Wax-Semus $31,980 in attorney fees and costs. On

October 4, 2018, the trial court entered judgments against

Theodore in favor of Mink, the Madisons, and Wax-Semus.

In early 2020, Diamond and Danning Gill, on the one hand,

and the Madisons and Theodore, on the other hand, settled their

claims regarding the funds owing to Diamond and Danning Gill.

By order dated May 19, 2020, this court dismissed Theodore’s

appeal (B294219) based on the judgment dated October 4, 2018

dismissing Theodore’s claims against Diamond and Danning Gill.

Theodore timely appealed.

DISCUSSION

A. Section 425.16: The Anti-SLAPP Statute 10

“‘Section 425.16 provides, inter alia, that “[a] 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

10 SLAPP is an acronym for “strategic lawsuit against public

participation.” (Oasis West Realty, LLC v. Goldman (2011) 51

Cal.4th 811, 815, fn. 1.)

29

the United States or California Constitution in connection with a

public issue shall be subject to a special motion to strike, unless

the court determines that the plaintiff has established that there

is a probability that the plaintiff will prevail on the claim.””’

(Newport Harbor Ventures, LLC v. Morris Cerullo World

Evangelism (2018) 4 Cal.5th 637, 642 (Newport Harbor); accord,

Sweetwater Union High School Dist. v. Gilbane Building Co.

(2019) 6 Cal.5th 931, 938 (Sweetwater).) “Section 425.16

‘provides a procedure for weeding out, at an early stage, meritless

claims arising from protected activity.’ [Citation.] ‘The

Legislature enacted section 425.16 to prevent and deter “lawsuits

[referred to as SLAPPs] brought primarily to chill the valid

exercise of the constitutional rights of freedom of speech and

petition for the redress of grievances.” [Citation.] Because these

meritless lawsuits seek to deplete “the defendant’s energy” and

drain “his or her resources” [citation], the Legislature sought “‘to

prevent SLAPPs by ending them early and without great cost to

the SLAPP target’” [citation]. Section 425.16 therefore

establishes a procedure where the trial court evaluates the merits

of the lawsuit using a summary-judgment-like procedure at an

early stage of the litigation. [Citation.] In doing so, section

425.16 seeks to limit the costs of defending against such a

lawsuit.’” (Newport Harbor, at p. 642.)

Courts evaluate a special motion to strike under section

425.16 “through a two-step process. Initially, the moving

defendant bears the burden of establishing that the challenged

allegations or claims ‘aris[e] from’ protected activity in which the

defendant has engaged.” (Park v. Board of Trustees of California

State University (2017) 2 Cal.5th 1057, 1061 (Park); see Baral v.

Schnitt (2016) 1 Cal.5th 376, 384 (Baral). “A claim arises from

30

protected activity when that activity underlies or forms the basis

for the claim. [Citations.] Critically, ‘the defendant’s act

underlying the plaintiff’s cause of action must itself have been an

act in furtherance of the right of petition or free speech.’

[Citations.] . . . ‘The only means specified in section 425.16 by

which a moving defendant can satisfy the [‘‘arising from’’]

requirement is to demonstrate that the defendant’s conduct by

which plaintiff claims to have been injured falls within one of the

four categories described in subdivision (e). . . .’ [Citation.] In

short, in ruling on an anti-SLAPP motion, courts should consider

the elements of the challenged claim and what actions by the

defendant supply those elements and consequently form the basis

for liability.” (Park, at pp. 1062-1063.) “If the defendant carries

its burden, the plaintiff must then demonstrate its claims have at

least ‘minimal merit.’” (Id. at p. 1061; accord, Baral, at p. 384.)

We review a trial court’s ruling on a special motion to

strike under section 425.16 de novo. (Park, supra, 2 Cal.5th at

p. 1067; accord, Sweetwater, supra, 6 Cal.5th at p. 940; see Moss

Bros. Toy, Inc. v. Ruiz (2018) 27 Cal.App.5th 424, 433 [“we

exercise our independent judgment in determining whether the

challenged claim arises from protected activity”].) We consider

“‘the pleadings, and supporting and opposing affidavits stating

the facts upon which the liability or defense is based.’” (§ 425.16,

subd. (b)(2); see Sweetwater, at p. 941; Park, at p. 1067; Equilon

Enterprises v. Consumer Cause, Inc. (2002) 29 Cal.4th 53, 67;

Moss Bros. Toy, Inc., at p. 433.) “We do not, however, weigh the

evidence, but accept plaintiff’s submissions as true and consider

only whether any contrary evidence from the defendant

establishes its entitlement to prevail as a matter of law.” (Park,

31

at p. 1067; accord, Soukup v. Law Offices of Herbert Hafif (2006)

39 Cal.4th 260, 269, fn. 3.)11

B. The Complaint Arises From Protected Activity

Section 425.16, subdivision (e), expressly defines an “‘act in

furtherance of a person’s right of petition’” to include “any

written or oral statement or writing made before a . . . judicial

proceeding, or any other official proceeding authorized by law”

and “any written or oral statement or writing made in connection

with an issue under consideration or review by a . . . judicial

body.” (§ 425.16, subd. (e)(1), (2); see Newport Harbor, supra,

4 Cal.5th at p. 642.) “‘Any act’ includes communicative conduct

such as the filing, funding, and prosecution of a civil action

[citation],” including “qualifying acts committed by attorneys in

representing clients in litigation.” (Rusheen v. Cohen (2006)

37 Cal.4th 1048, 1056; see Coretronic Corp. v. Cozen O’Connor

(2011) 192 Cal.App.4th 1381, 1388 [“[t]he anti-SLAPP statutes

11 Relying on Newport Harbor, supra, 4 Cal.5th 637, Theodore

argues that the three special motions to strike were not timely

filed. However, Wax-Semus, the Madisons, and Mink promptly

filed their motions shortly after Theodore filed the complaint and

first amended complaint. In Newport Harbor, the California

Supreme Court held: “[A]s the trial court noted when it exercised

its discretion to deny a late filing, much litigation, including

discovery, had already been conducted for two years before the

anti-SLAPP motion brought it to a halt. It is far too late for the

anti-SLAPP statute to fulfill its purpose of resolving the case

promptly and inexpensively. ‘An anti-SLAPP motion is not a

vehicle for a defendant to obtain a dismissal of claims in the

middle of litigation; it is a procedural device to prevent costly,

unmeritorious litigation at the initiation of the lawsuit.’” (Id. at

p. 645.) Here, there was no such delay or discovery taken.

32

protect not only the litigants, but also their attorneys’ litigation-

related statements”].)

Cases construing the anti-SLAPP statute hold that “a

statement is ‘in connection with’ litigation under section 425.16,

subdivision (e)(2), if it relates to the substantive issues in the

litigation and is directed to persons having some interest in the

litigation.” (Neville v. Chudacoff (2008) 160 Cal.App.4th 1255,

1266, 1270; accord, Briggs v. Eden Council for Hope &

Opportunity (1999) 19 Cal.4th 1106, 1115; Crossroads Investors,

L.P. v. Federal National Mortgage Assn. (2017) 13 Cal.App.5th

757, 779; Bergstein, supra, 236 Cal.App.4th at pp. 803-804.) In

fact, courts have adopted “a fairly expansive view of what

constitutes litigation-related activities within the scope of section

425.16.” (Kashian v. Harriman (2002) 98 Cal.App.4th 892, 908;

see Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238

Cal.App.4th 200, 210 [‘“all communicative acts performed by

attorneys as part of their representation of a client in a judicial

proceeding or other petitioning context are per se protected as

petitioning activity by the anti-SLAPP statute’”]; Kolar v.

Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532,

1537 [“protection for petitioning activities applies not only to the

filing of lawsuits, but extends to conduct that relates to such

litigation, including statements made in connection with . . .

litigation”].)

In Bergstein, supra, 236 Cal.App.4th 793, the plaintiffs

sued lawyers who represented their adversaries in litigation

concerning various financial transactions. The plaintiffs asserted

that the lawyers engaged in tortious conduct when they “‘solicited

and received . . . confidential, privileged, and/or proprietary

information’” from plaintiffs’ former attorney and “used that

33

information ‘in devising the legal strategy to be employed’ in the

litigation against plaintiffs.” (Id. at p. 797.) Effectively serving

as plaintiffs’ general counsel, “[the former attorney] was

intimately familiar with and had access to plaintiffs’ confidential,

privileged and proprietary information, including core operating

and financial documents, electronic records and other records,

and was the custodian of critical documents related to plaintiffs.”

(Id. at p. 798.) The plaintiffs alleged that the former attorney

“‘worked hand-in-hand’” with the defendant lawyers preparing

and orchestrating legal proceedings against plaintiffs using the

privileged and confidential information. (Id. at pp. 800-801) The

lawyers “attempted to hide their conduct” involving the plaintiffs’

former attorney by channeling the email communications

through an intermediary. (Id. at p. 801.)

The trial court granted the defendant-lawyers’ special

motion to strike under the anti-SLAPP statute, concluding that

the complaint arose from protected activity. (Bergstein, supra,

236 Cal.App.4th at p. 797.) The plaintiffs appealed, contending

that the attorneys were not being sued for “any written or oral

statement they made in a judicial proceeding,” but rather for the

“unprotected conduct of aiding and abetting” the former

attorney’s breach of fiduciary duties to plaintiffs, for “interfering”

with the plaintiffs’ former attorney’s “contractual obligation” to

maintain confidential information, and for interfering with

plaintiffs’ “prospective economic advantage.” (Id. at p. 811.)

Affirming the trial court, the court explained that the anti-

SLAPP statute’s definitional focus “‘is not the form of the

plaintiff’s cause of action but, rather, the defendant’s activity that

gives rise to his or her asserted liability—and whether that

activity constitutes protected speech or petitioning.’” (Ibid.) The

34

court examined “‘the specific acts of wrongdoing’ alleged, ‘without

particular heed to the form of action within which it has been

framed.’” (Ibid.) Plaintiffs alleged causes of action against

defendants based on their use of known confidential and

privileged information to prosecute their litigation attack. The

court pointed out, [¶] “Plainly, ‘aiding and abetting the breach of

[plaintiffs’ former attorney’s] fiduciary duties’ and ‘interfering

with [that attorney’s] contractual obligation to [plaintiffs] to

maintain their confidences’ are the causes of action plaintiffs

assert, not the ‘specific acts of alleged wrongdoing’ that give rise

to those causes of action.” (Ibid.) The court held, “Almost all of

the ‘specific acts of alleged wrongdoing’ in the complaint [were]

litigation activities.” (Ibid.) Holding that “it is precisely

defendants’ advocacy on behalf of their clients in . . . litigation

that forms the basis for all of plaintiffs’ causes of action,” the

court concluded, “Defendants’ litigation activities are at the core

of plaintiffs’ claims. Clearly those claims arise from protected

activity within the meaning of the anti-SLAPP statute.” (Id. at

pp. 811, 813.)

Here, based on what he described as “rampant,”

“pervasive,” and “illegal ex parte communications of a strategic

and substantive nature” among defendants, Theodore filed this

action challenging the manner in which the Evidence Code

section 730 expert/referee and the court-appointed liquidator, as

well as opposing parties and their counsel, conducted themselves

in the dissolution action. Theodore asserted that defendants

wrongfully excluded Theodore from their litigation

communications, “teamed up” to prosecute the dissolution action

against him, and disparaged Theodore in their communications.

To plead his claims, Theodore used email communications among

35

defendants.12 Theodore’s claims would not exist in the absence of

the communications. The communications were transmitted

among persons having an interest in the dissolution action, and

they solely concerned subjects at issue in the action. The actions

that defendants took as a result of these communications, such as

revising pleadings, requesting subpoenas and documents,

reviewing document productions, making arguments in court and

otherwise prosecuting the dissolution action, were protected

petitioning activities. Mink’s alleged malicious filing of the

conversion action against Spielfogel and Pastore was also

protected petitioning activity.13

Theodore’s claims were thus entirely premised on

defendants’ litigation-related communications and activities.

Accordingly, the trial court correctly concluded that Theodore’s

claims “‘arise from’” and were “‘based’” on protected activity in

connection with pending judicial matters. (See Navellier v.

Sletten (2002) 29 Cal.4th 82, 89-90 [action alleging

“misrepresentations and omission” in connection with the

12 In his opposition to the special motions to strike, Spielfogel

also quoted the emails at length in his declaration and attached

300 pages of these communications.

13 Theodore alleged further petitioning activity in connection

with the dissolution action. He asserted that Wax-Semus,

Diamond, and Danning Gill submitted excessive bills for their

work in the dissolution action. In rejecting Theodore’s claim that

Wax-Semus forfeit her fees, the trial court ruled Theodore could

assert his objections at the conclusion of dissolution action

pursuant to Evidence Code section 731. After the trial court

rejected Theodore’s objections to Diamond’s and Danning Gill’s

fees and ordered Theodore and the Madisons to pay them, the

parties settled their claims regarding the fees.

36

execution of a release, the wrongful filing of a counterclaim

containing the released claims, and false arguments in court

about the released claims “falls squarely within the ambit of the

anti-SLAPP statute ‘arising from’ prong”]; Optional Capital, Inc.

v. Akin Gump Strauss, Hauer & Feld LLP (2017) 18 Cal.App.5th

95, 114-115 [“Plaintiff’s claims against Defendants [are] based on

protected activity, namely Defendants’ representation of [their

client] in litigation (the state court action and the federal

forfeiture action)”]; JSJ Limited Partnership v. Mehrban (2012)

205 Cal.App.4th 1512, 1521 [“[f]iling a lawsuit is an act in

furtherance of the constitutional right of petition, regardless of

whether it has merit”]; Booker v. Rountree (2007) 155 Cal.App.4th

1366, 1370 [“[T]here is no doubt the cross-complaint arises out

the underlying litigation, so it is subject to the anti-SLAPP

statute. [T]he claim is misconduct in the underlying litigation”];

see also Jarrow Formulas, Inc. v. LaMarche (2003) 31 Cal.4th

728, 741 [malicious prosecution action by its very nature arises

out of defendant’s constitutionally protected petitioning activity

(the underlying lawsuit)].)

Theodore does not challenge that his claims were based on

defendants’ communications and litigation conduct.14 Rather,

14 Citing Optional Capital, Inc. v. DAS Corp. (2014) 222

Cal.App.4th 1388 (Optional Capital), Theodore suggests that “[a]

conspiracy and a course of conduct are independent non-

communicative acts not within the purview of [Civil Code] § 47 or

Section 425.16.” Theodore also suggests, citing Greco v. Greco

(2016) 2 Cal.App.5th 810, that the “wrongful taking of money is

not protected activity.” However, neither Optional Capital nor

Greco supports Theodore’s broad assertions. In Optional Capital,

the court held that a conspiracy “to assert dominion and control

over the funds in which [plaintiff] has a judgment lien and

37

Theodore argues, “Because § 425.16 does not apply to criminal

conduct, the Trial Court did not even have to go the second step

of the analysis.” Theodore contends that Wax-Semus, Diamond,

and Danning Gill violated Penal Code section 484. According to

Theodore, “PC Section 484 makes it a crime to procure money or

property under false pretenses,” and “the procurement of money,

including money paid consensually, violates section 484.”

Because section 484 “is linked to [Penal Code] section 496 which

specifies that anyone who aides the perpetrator of the theft is

also liable,” the Madisons and Mink also committed crimes.

Theodore further argues that the lawyer-defendants—Kyle,

Mink, Diamond, and Danning Gill—“specifically violated

[Business and Professions Code] section 6128, to the effect that

an attorney was guilty of a misdemeanor if he engages in deceit

transfer of those funds out of [plaintiff’s] reach in violation of

rights as a judgment creditor” alleged “an independent,

noncommunicative, wrongful act.” (Optional Capital, at p. 1405.)

The court held that the complaint “seek[ing] to recover monies

looted” from plaintiff did not arise from litigation. (Id. at pp.

1400-1401.) In Greco, the court held that the gravamen of the

plaintiff’s claims was “the alleged wrongful taking [of money]

from the trust and estates.” (Id. at p. 815.) The conduct was not

protected activity because plaintiff’s “claim for recovery was not

based on the wrongful act of pursuing meritless or wasteful

litigation, but on taking trust and estate funds.” (Id. at p. 823.)

Here, Wax-Semus’s and Diamond’s payments were part of the

dissolution action because the trial court approved the payments.

Further, “labels” such as “conspiracy” and “aided and abetted”

have little relevance in determining whether activity is protected

under section 425.16. (Contreras v. Dowling (2016) 5 Cal.App.5th

394, 410.)

38

or collusion or consents to deceit or collusion with intent to

deceive a court or a party.”

Throughout his opening brief, Theodore asserts that Wax-

Semus, Mink, and the Madisons “violated criminal statutes.” He

maintains that the Spielfogel declaration and its attachments

establish the criminal conduct. While it is true that a special

motion to strike cannot be used by a defendant whose allegedly

protected activity was illegal (Flatley, supra, 39 Cal.4th at

p. 320), Theodore’s illegality arguments do not assist him. In

Flatley, the California Supreme Court held “where a defendant

brings a motion to strike under section 425.16 based on a claim

that the plaintiff’s action arises from activity by the defendant in

furtherance of the defendant’s exercise of protected speech or

petition rights, but either the defendant concedes, or the evidence

conclusively establishes, that the assertedly protected speech or

petition activity was illegal as a matter of law, the defendant is

precluded from using the anti-SLAPP statute to strike the

plaintiff’s action.” 15 (Ibid.) This is because a defendant whose

15 In Flatley, the plaintiff, a well-known entertainer, filed an

action against an attorney, alleging causes of action for civil

extortion, intentional infliction of emotional distress and

wrongful interference with economic advantage. The plaintiff’s

causes of action were based on a letter from the lawyer

threatening to make public a rape allegation unless the plaintiff

paid a “‘settlement of $100,000,000.00.’” (Flatley, supra, 39

Cal.4th at pp. 305-308.) The defendant lawyer admitted writing

letters and making calls to the plaintiff and his attorneys. The

Supreme Court concluded that “based on the specific and extreme

circumstances of the case,” the defendant’s conduct therein,

which amounted to “criminal extortion as a matter of law,” was

not entitled to the protection of the anti-SLAPP statute. (Id. at

p. 332, fn. 16.)

39

assertedly protected activity is “illegal as a matter of law” is “not

protected by constitutional guarantees of free speech and

petition.” (Id. at p. 317.) Illegal in this context “refers to criminal

conduct; merely violating a statute is not sufficient . . . .” (Aron v.

WIB Holdings (2018) 21 Cal.App.5th 1069, 1083; Collier v. Harris

(2015) 240 Cal.App.4th 41, 55; Mendoza v. ADP Screening &

Selection Services, Inc. (2010) 182 Cal.App.4th 1644, 1654.)

Furthermore, if “a factual dispute exists about the legitimacy of

the defendant’s conduct, it cannot be resolved within the first

step [of the anti-SLAPP analysis] but must be raised by the

plaintiff in connection with the plaintiff’s burden to show a

probability of prevailing on the merits.” (Flatley, at p. 316;

see Gerbosi v. Gaims, Weil, West & Epstein, LLP (2011) 193

Cal.App.4th 435, 446 [“[w]e understand Flatley to stand for this

proposition: when a defendant’s assertedly protected activity

may or may not be criminal activity, the defendant may invoke

the anti-SLAPP statute unless the activity is criminal as a

matter of law”].)

Court after court has recognized that the Flatley exception

is a “narrow” one to be applied only when the defendant concedes

the illegality or the evidence “conclusively establishes” illegality

“as a matter of law.” (Optional Capital, Inc. v. Akin Gump

Strauss Haver & Feld LLP, supra, 18 Cal.App.5th at p. 115, fn. 7

[“[a] long line of cases have concluded in the wake of Flatley that

its exception for illegal conduct is a ‘very narrow’ one”]; Bergstein,

supra, 236 Cal.App.4th at p. 806 [“case authorities after Flatley

have found the Flatley rule applies only to criminal conduct, not

to conduct that is illegal because in violation of statute or

common law”]; Zucchet v. Galardi (2014) 229 Cal.App.4th 1466,

1478 [“the exception for illegal activity is very narrow and

40

applies only in undisputed cases of illegality”]; Cross v. Cooper

(2011) 197 Cal.App.4th 357, 384, 386 [characterizing the Flatley

circumstances as “narrow” and also concluding this was not “one

of those rare cases in which there is uncontroverted and

uncontested evidence that establishes the crime as a matter of

law”].)

Defendants did not concede the alleged illegality, and

Theodore’s evidence of criminal conduct is far from conclusive

that defendants’ litigation-related activities were illegal. Indeed,

rather than point to a concession of illegality or show illegal

conduct as a matter of law, Theodore repeatedly conceded in the

trial court that “each cause of action” contained “provable

allegations” of criminal conduct.16 For example, Theodore argues

16 In Towner v. County of Ventura (2021) 63 Cal.App.5th 761

this court held that plaintiff “carried his burden to show the

alleged conduct of the County defendants underlying his third

and fifth causes of action was illegal as a matter of law under

Flatley because it constituted a willful omission to perform a

public duty enjoined by law (Gov. Code, § 1222), and was

therefore not protected activity under the anti-SLAPP statute.”

(Towner, at p. 774.) In Towner, defendants chose not to factually

contest the alleged illegality and conceded they willfully did not

follow the requirements of Government Code section 1222.

Instead, defendants in Towner asserted a legal argument; they

were not obligated to comply with their public duty because they

qualified for a statutory exception. (Id. at p. 767-768.) In holding

that the conduct “was illegal as a matter of law,” we rejected

defendants’ reliance on the “limited exception.” (Id. at p. 770-

774.) In contrast, here the illegality of defendants’ conduct does

not turn on a legal question of statutory interpretation. To the

contrary, Theodore argued that defendants’ criminal conduct was

factually “provable.”

41

that the attorney-defendants violated Business and Professions

Code section 6128, which provides: “Every attorney is guilty of a

misdemeanor who either: [¶] (a) Is guilty of any deceit or

collusion, or consents to any deceit or collusion, with intent to

deceive the court or any party . . . .” However, excluding

Spielfogel from litigation communications does not establish

illegality as a matter of law. (Flatley, supra, 39 Cal.4th at p. 320;

see Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 965 [factually

disputed allegation of attorney fraud under Bus. & Prof. Code,

§ 6128 insufficient to meet Flatley standard of illegality].)

Among other things, Theodore has not presented evidence

that the attorney-defendants acted with an “intent to deceive.”17

Based on the content of their communications, it is reasonable to

infer that the attorney-defendants believed that Theodore was

withholding information concerning Casa W and that he likely

had misappropriated Casa W funds.18 The communications

reveal an effort to locate documents and funds and advance the

dissolution action. While Mink’s and Kyle’s failure to include

Spielfogel on their communications with Wax-Semus and

Diamond was “deeply troubling” to the trial court, Theodore has

17 Based on a remark that Mink made at Diamond’s

deposition in the dissolution action, Theodore states that “Mink

admitted he was receiving a 10% kickback from amounts paid to

Diamond.” As Mink explained in a declaration, he made a

“facetious remark”—“Less my 10 percent.” Diamond testified

that he was not paying Mink anything, and there is no evidence

of any payments.

18 There is a $3.9 million judgment against Theodore based on

the trial court’s finding that Theodore breached his fiduciary duty

owing to the Madisons.

42

not conclusively established criminal conduct. (See Fremont

Reorganizing Corp. v. Faigin (2011) 198 Cal.App.4th 1153, 1169

[anti-SLAPP statute not inapplicable because attorney’s

unethical conduct did not rise to “criminal conduct”]; Cabral v.

Martins (2009) 177 Cal.App.4th 471, 477 [litigation conduct by

attorneys allegedly in violation of statutes authorizing treble

damages for assisting in the evasion of child support obligations

was not “illegal” within the meaning of the rule from Flatley];

Birkner v. Lam (2007) 156 Cal.App.4th 275, 285 [“‘[c]onduct that

would otherwise come within the scope of the anti-SLAPP statute

does not lose its coverage . . . simply because it is alleged to have

been unlawful or unethical’”].)

Nor has Theodore conclusively established criminal conduct

under Penal Code sections 484 and 496. Section 484, subdivision

(a), provides, “Every person . . . who shall knowingly and

designedly, by any false or fraudulent representation or pretense,

defraud any other person of money, labor or real or personal

property . . . is guilty of theft.” (See People v. Gomez (2008) 43

Cal.4th 249, 255, fn. 4 [“[i]n 1927, the crimes of theft by larceny,

embezzlement, and false pretenses were consolidated in section

484”].) Given that the trial court appointed Wax-Semus and

Diamond and ordered Theodore and the Madisons to make

payments to them, Theodore has not conclusively established the

crime of theft based on these court-ordered payments. Also,

Theodore has not conclusively established that Mink and the

Madisons received “stolen property” in violation of Penal Code

section 496, subdivision (a). “In order to establish the

commission of the crime of receiving stolen property on a theory

of a larcenous taking, it must be established by substantial

evidence (1) that the particular property was stolen, (2) that the

43

accused received, concealed or withheld it from the owner thereof,

and (3) that the accused knew that the property was stolen.”

(People v. Moses (1990) 217 Cal.App.3d 1245, 1250.) Among other

things, Theodore has not identified the “stolen property” that

Mink and the Madisons allegedly received. (See Switzer v. Wood

(2019) 35 Cal.App.5th 116, 127 [“[a] violation of section 496(a)

may, by its own terms, relate to property that has been ‘stolen’ or

‘that has been obtained in any manner constituting theft or

extortion’”].)19

While Mink’s and Kyle’s tactics in the dissolution action

leave a lot to be desired, they were protected activity under

section 425.16. (See Summerfield v. Randolph (2011) 201

Cal.App.4th 127, 136 [allegedly false affidavits filed in support of

litigation constitute protected activity]; Haight Ashbury Free

Clinics, Inc. v. Happening House Ventures (2010) 184 Cal.App.4th

1539, 1549 [“whether or not a defendant’s statements were false

does not determine whether they constitute protected activity for

purposes of the SLAPP statute” because the statute “pertains to

‘any written or oral statement or writing made in connection with

an issue under consideration or review by a judicial body’”].)

19 The California Supreme Court granted review in Siry

Investment, L.P. v. Farkhndehpour, S262081, on May 8, 2020,

and asked the parties to brief and argue issues including: “May a

trial court award treble damages and attorney fees under Penal

Code section 496, subdivision (c), in a case involving the

fraudulent diversion of business funds rather than trafficking in

stolen goods?”

44

C. Theodore Failed To Demonstrate a Probability of

Prevailing on His Claims

1. Theodore Failed To Establish That His Claims Were

Legally Sufficient and Supported by a Sufficient

Prima Facie Showing of Facts

If the defendant makes a prima facie showing that the

plaintiff’s claims arises from constitutionally protected

petitioning or free speech activity, then the burden shifts to

plaintiff to establish, with admissible evidence, a “probability” of

prevailing on the claims challenged by the anti-SLAPP motion.

(See § 425.16, subd. (b); Sweetwater, supra, 6 Cal.5th at p. 940;

Baral, supra, 1 Cal.5th at p. 384.) At step two, the burden is on

the plaintiff to show that it has “stated and substantiated a

legally sufficient claim.” (Briggs v. Eden Council for Hope &

Opportunity, supra, 19 Cal.4th at p. 1123; accord, Rosenthal v.

Great Western Fin. Securities Corp. (1996) 14 Cal.4th 394, 412.)

“The court does not weigh evidence or resolve conflicting factual

claims. Its inquiry is limited to whether the plaintiff has stated a

legally sufficient claim and made a prima facie factual showing

sufficient to sustain a favorable judgment.” (Baral, supra, 1

Cal.5th at pp. 384-385; accord, Wilson v. Parker, Covert &

Chidester (2002) 28 Cal.4th 811, 821.) Accordingly, as explained

in Baral, the second step of the analysis under section 425.16

requires a plaintiff to separately establish a probability of

prevailing on each distinct claim for relief: “[T]he plaintiff must

make the requisite showing as to each challenged claim that is

based on allegations of protected activity.” (Baral, at p. 392.)

In granting the special motions to strike, the trial court

found, “[Theodore] does not demonstrate the [first amended

complaint] is legally sufficient. [Theodore] . . . does not

demonstrate that each essential element is pled. . . . [¶]

45

[Theodore] offers no facts supporting the causes of action. . . .

Stating ‘there is a mountain of evidence’ is insufficient to

establish any elements of the claims.” In the trial court,

Theodore’s conclusory approach to legal sufficiency and his

“mountain of evidence” argument failed to make the required

showing. Here, Theodore continues in the same deficient

conclusory fashion, without citation to pertinent legal authority

or a discussion of the elements of his claims, arguing that he

established their legal sufficiency. His argument that the

evidence is “overwhelming,” with citation to virtually the entire

record, is not a prima facie showing of merit. Theodore has thus

not carried his burden to demonstrate a probability of prevailing

on his claims. (See Baral, supra, 1 Cal.5th at pp. 384-385 [the

court’s inquiry “is limited to whether the plaintiff has stated a

legally sufficient claim and made a prima facie factual showing

sufficient to sustain a favorable judgment”].)

For example, regarding the first and second causes of

action against Wax-Semus for fraud and negligent

misrepresentation, Theodore states: “The essence of these counts

is that Wax-Semus, in conspiracy with, and aided and abetted by,

Mink and Kyle engaged in rampant acts of misconduct designed

to procure funds from Theodore under false pretenses. . . . [¶]

Wax-Semus was supposed to be an independent agent of the

court. Instead, as [the trial court] found, Wax-Semus was not

independent, but became a part of the Madisons’ litigation team.

Adding insult to injury, Theodore lost over $124,000, as a result

of the conspiracy and severe misconduct by Wax-Semus, Mink

and Kyle.” Theodore then cites to several hundred pages of the

record, including all the attachments to the Spielfogel

46

declaration. Theodore’s complaint is little help in attempting to

identify the elements of these claims.

Among other deficiencies, Theodore has not set forth the

alleged misrepresentations to support these claims with the

required specificity. (See Tenet Healthsystem Desert, Inc. v. Blue

Cross of California (2016) 245 Cal.App.4th 821, 837-838 [“[f]raud

must be pleaded specifically with facts showing how, when,

where, to whom, and by what means representations are

tendered; general and conclusory allegations do not suffice”];

Daniels v. Select Portfolio Servicing, Inc. (2016) 246 Cal.App.4th

1150, 1167 [“[c]auses of action for intentional and negligent

misrepresentation sound in fraud and, therefore, each element

must be pleaded with specificity”].) By citing to virtually the

entire record for factual support as he did in the trial court,

Theodore fails to make a prima facie factual showing in support

of the claims sufficient to sustain a judgment. Therefore,

Theodore did not carry his burden to show a probability of

success on the merits. Theodore makes the same deficient

showing regarding his claim that Mink and the Madisons aided

and abetted Wax-Semus in connection with these causes of

action. Similarly, Theodore fails to make the requisite showing

regarding the twenty-second cause of action against Mink and

the Madisons for aiding and abetting Diamond’s alleged fraud.

Regarding the eighth cause of action against Wax-Semus

for interference with the contract between Theodore and the

Madisons, Theodore states, “Wax-Semus promised to be neutral

and ethical. Even if she did not so contract, she was required to

be neutral and ethical by operation of law.” Theodore refers to

the same several hundred pages of the record. Theodore’s

conclusory statements, without legal citations, thus fail to

47

demonstrate a legally sufficient claim against Wax-Semus.

Theodore has not explained how Wax-Semus could have

interfered with the Casa W agreement given that Wax-Semus

only became involved after the trial court appointed her to

conduct a forensic accounting analysis in the dissolution action.

Theodore makes similar conclusory statements and references

regarding the nineteenth cause of action against Mink and the

Madisons for interfering with Theodore’s alleged contracts with

Wax-Semus and Diamond. Theodore provides no legal authority

supporting the viability of these claims or any discussion of

evidence. Theodore does not identify his alleged contracts with

Diamond and Wax-Semus.20

20 In his twenty-first cause of action against the Madisons for

“defamation/false light,” Theodore alleged that Kyle engaged in

“defamation per se” of Theodore “and placed him in false light by

falsely advising a prominent property management firm that

[Theodore] had misappropriated funds, and had engaged in other

corrupt and unethical acts.” Theodore repeats this allegation in

his opening brief without any more specificity concerning what

Kyle allegedly communicated, the date of the communication, or

the recipients of the communication. Theodore failed to establish

the legal sufficiency of this cause of action. (See Ellenberger v.

Espinosa (1994) 30 Cal.App.4th 943, 951 [“plaintiff's complaint is

defective because it ‘“‘does not allege either the specific words or

the substance of [the] statements . . . but instead merely alleges

the conclusions of the pleader that statements were made which

‘intimated and suggested’ that plaintiff had done certain

wrongful things’””]; see also Smith v. Maldonado (1999) 72

Cal.App.4th 637, 646 [“[i]n all cases of alleged defamation,

whether libel or slander, the truth of the offensive statements or

communication is a complete defense against civil liability,

regardless of bad faith or malicious purpose”].) Nor did Theodore

48

Regarding the ninth and tenth causes of action against

Mink for aiding and abetting Diamond’s breach of fiduciary duty

and constructive fraud, Theodore states: “[He] presented

substantial evidence by which the trier of fact could conclude that

Mink aided and abetted breaches of fiduciary duty and

constructive fraud by Diamond.” However, in addition to his

failure to identify relevant legal authority, Theodore does not

explain how he can state a legally sufficient claim for breach of

fiduciary duty against a court-appointed liquidator. (See Howard

v. Drapkin (1990) 222 Cal.App.3d 843, 858-859 [quasi-judicial

immunity afforded to “court-appointed persons (such as . . .

receivers)”].) The trial court appointed Diamond with broad

authority “to wind up all [Casa W] affairs” “in his sole discretion”

and approved Diamond’s fees after rejecting Theodore’s

objections. Theodore also did not identify a “confidential

relationship” that could support Diamond’s fiduciary duty. (See

GAB Business Services, Inc. v. Lindsey & Newsom Claim

Services, Inc. (2000) 83 Cal.App.4th 409, 417 [“[a] fiduciary duty

is undertaken by agreement when one person enters into a

confidential relationship with another . . . a confidential

relationship arises ‘where a confidence is reposed by one person

in the integrity of another, and . . . the party in whom the

confidence is reposed, . . . voluntarily accepts or assumes to

accept the confidence”’].)21 Nor has Theodore adequately

make any prima facie factual showing regarding this cause of

action.

21 Traditional examples of fiduciary relationships in the

commercial context include trustee/beneficiary, directors and

majority shareholders of a corporation, business partners, joint

venturers, and agent/principal. (See, e.g., Evangelho v. Presoto

49

supported a legally sufficient claim for constructive fraud against

Diamond. (See Michel v. Moore & Associates, Inc. (2007) 156

Cal.App.4th 756, 762 [““‘[c]onstructive fraud is a unique species

of fraud applicable only to a fiduciary or confidential

relationship”’”].)22

(1998) 67 Cal.App.4th 615, 621 [trustee and beneficiary]; Jones v.

H.F. Ahmanson & Co. (1969) 1 Cal.3d 93, 108-109 [controlling

shareholder of corporation]; April Enterprises, Inc. v. KTTV

(1983) 147 Cal.App.3d 805, 818-819 [joint venturers]; Michelson

v. Hamada (1994) 29 Cal.App.4th 1566, 1580 [agent/principal].)

22 With regard to the sixteenth and seventeenth causes of

action for breach of fiduciary duty and constructive fraud against

the Madisons, Theodore argues, “The Madisons were Theodore’s

partners and as such owed Theodore a fiduciary duty. . . . Mink

was the agent of the Madisons. . . . The Madisons, individually,

and aided and abetted by Mink, breached [their] fiduciary duty

owed to Theodore.” As with the other breach of fiduciary duty

and constructive fraud causes of action, Theodore fails to

demonstrate legal sufficiency and cites to voluminous parts of the

record. While the Madisons and Theodore were members of Casa

W before the trial court dissolved it, Theodore does not explain

how a fiduciary duty among them would govern their conduct as

adversaries in litigation. Theodore makes similar deficient

showings in support of the sixteenth cause of action against Wax-

Semus and Mink for aiding and abetting the Madisons’ alleged

breach of fiduciary duty and the seventeenth cause of action

against Mink for aiding and abetting the Madisons’ breach of

fiduciary duty and constructive fraud. Theodore’s eighteenth

cause of action against the Madisons for breach of the contract is

also legally insufficient. Theodore fails to explain how the

Madisons’ prosecution of the dissolution action against him was a

breach of a contract.

50

Regarding the twentieth cause of action “for wrongful

appointment of the liquidator” asserted against the Madisons,

after referring to a prior part of his opening brief,23 Theodore

asserts, “Diamond owed a fiduciary obligation to Theodore. The

Madisons and Mink engaged in rampant misconduct, including

transmitting highly disparaging and inaccurate ex parte

communications and directing Diamond to do things to help the

Madisons prosecute their claims against Theodore.” Theodore

again does not demonstrate the basis for Diamond’s fiduciary

duty or how Diamond’s alleged fiduciary duty supports this

claim. Theodore does not explain why his concerns about

Diamond’s conduct as the liquidator, which the trial court

rejected in the dissolution action, can form the basis for claims

against the Madisons and Mink in this action. As with his other

causes of action, Theodore does not cite any legal authority to

support this cause of action and generally cites to hundreds of

record pages as evidence.

As to the twenty-third cause of action for RICO violations

alleged against Diamond and Danning Gill aided and abetted by

Mink and the Madisons,24 after citing to virtually the entire

23 The referenced part of Theodore’s opening brief states: “If

the receivership was unnecessary and wrongfully obtained,

liability for the expenses and fees is properly placed upon the

party who caused the unnecessary and wrongful appointment[]”.

See, Smith v. Hill (1965) 237 Cal.App.2d 374, 387, Stanton v.

Pratt (1941) 18 Cal.2d 599, 603 and Lewis v. Hall (1918) 38

Cal.App.329, 336.”

24 Although the heading for this cause of action does not

mention Wax-Semus, Theodore included allegations against Wax-

Semus in this cause of action.

51

record, Theodore contends, “Theodore proved that Mink provided

substantial support and assistance to both Wax-Semus and

Diamond, in generating false bills and thereby aided and abetted

them relative to their respective RICO violations.” Regarding the

Madisons, Theodore adds: “Theodore alleged in the [first

amended complaint] that Diamond and [Danning Gill] (which is a

separate entity from Diamond) had for decades engaged in a

nefarious scheme to pilfer proceeds of disputed ‘estates’ as a

receiver, a bankruptcy trustee and/or a liquidator and that

Diamond/[Danning Gill] had acted with Mink on other legal cases

where Diamond would be appointed as Receiver, bankruptcy

trustee or liquidator. . . .[¶] Theodore proved that the Madisons

and Mink provided substantial support and assistance to Wax-

Semus and Diamond in generating false bills, and thereby aided

and abetted them relative to their respective RICO violations.”

The RICO statutes allow individuals to file suit and recover

treble damages against individuals who, through a “pattern of

racketeering activity,” acquire an interest in, or conduct the

business of, an enterprise engaged in interstate or foreign

commerce. (18 U.S.C. §§ 1962(b), 1962(c), 1964(d).) Section

1962(c) prohibits conducting the affairs of an enterprise engaged

in interstate or foreign commerce through a pattern of

racketeering activities. To state a RICO claim under section

1962(c), a plaintiff must allege: “(1) conduct (2) of an enterprise

(3) through a pattern (iv) of racketeering activity” and (v) injury

in the plaintiffs’ business or property by the conduct constituting

the violation. (Sedima, S.P.R.L. v. Imrex Co., Inc. (1985) 473 U.S.

479, 496; Sanford v. MemberWorks, Inc., (9th Cir. 2010) 625 F.3d

550, 557, 559.) ‘“The touchstone of [Section 1962(c)] is that each

individual defendant must be shown to have personally

52

participated in a pattern of racketeering activity.’” (Committee to

Protect Our Agric. Water v. Occidental Oil and Gas Corp. (E.D.

Cal. 2017) 235 F.Supp.3d 1132, 1172 (Committee to Protect).)

Proper pleading of a pattern of racketeering activity

requires the plaintiff to allege at least two predicate acts that are

interrelated by distinguishing characteristics and amount to or

pose a threat of continued criminal activity. (Charles J. Vacanti,

M.D., Inc. v. State Comp. Ins. Fund (2001) 24 Cal.4th 800, 826;

accord, Turner v. Cook (9th Cir. 2004) 362 F.3d 1219, 1229;

Committee to Protect, supra, 235 F.Supp.3d at p. 1177.)

Conclusory allegations of two predicate acts are legally

insufficient to properly plead a pattern of racketeering activity.

(Rosenthal v. Vogt (1991) 229 Cal.App.3d 69, 77; accord, Schreiber

Distributing v. Serv-Well Furniture Co. (9th Cir. 1986) 806 F.2d

1393, 1401.)

The RICO statute defines “enterprise” to include “any

individual, partnership, corporation, association, or other legal

entity, and any union or group of individuals associated in fact

although not a legal entity.” (18 U.S.C. § 1961(4).) To show an

association-in-fact enterprise, plaintiff must plead three

elements. First, plaintiffs must plead a common purpose.

(Eclectic Props. E., LLC v. Marcus & Millichap Co. (9th Cir. 2014)

751 F.3d 990, 997 (Eclectic Props. E.); Odom v. Microsoft Corp.

(9th Cir. 2007) 486 F.3d 541, 552.) To show a common purpose,

plaintiff must allege that the group engaged in enterprise

conduct distinct from their own affairs. Second, plaintiff must

plead an ongoing structure or organization to the enterprise,

which may be either formal or informal. (United States v.

Turkette (1981) 452 U.S. 576, 583; Eclectic Props. E., at p. 997;

Ellis v. J.P. Morgan Chase & Co. (N.D. Cal. 2013) 950 F.Supp.2d

53

1062, 1089.) Third, plaintiff must plead that the enterprise had

the longevity necessary to accomplish its purpose. (Eclectic

Props. E., at p. 997; Odom v. Microsoft, at p. 552.) Finally,

plaintiff must allege facts indicating that the alleged associates

in the enterprise, over time, “function[ed] as a continuing unit.”

(United States v. Turkette, at p. 583.)

In his opening brief, Theodore’s only mention of the

defendants in connection with the elements required for a RICO

violation is: “Per 18 USC § 1961(4), Diamond, [Danning Gill] and

Wax-Semus engaged in an ‘enterprise’ defined as ‘any individual,

partnership, corporation, association or other legal entity, and

any union or group of individuals associated in fact although not

a legal entity.’ Hence, said Respondents clearly qualify as an

enterprise.” Likewise, in his complaint, Theodore did not even

begin to adequately plead the required “enterprise.” Theodore

concluded that Wax-Semus and Diamond “engaged in an

enterprise of great longevity” without any supporting facts.

Theodore also fails to identify any predicate acts. Theodore’s

complaint stated that Diamond and Danning Gill “engaged in

literally tens if not hundreds of activities constituting

racketeering activities per RICO,” but did not identify any.

Theodore failed to establish that he plead a legally sufficient

RICO cause of action. He also failed to make the required prima

facie factual showing.25

25 In Premier Medical Management Systems, Inc. v. California

Ins. Guarantee Assn. (2006) 136 Cal.App.4th 464, the court

reversed a trial court’s denial of an anti-SLAPP motion

challenging a complaint that included a cause of action alleging

RICO violations and thereby struck the RICO cause of action.

(Id. at pp. 470, 480.) Without reaching whether the litigation

54

In sum, for all the causes of action in his complaint,

Theodore fails to show that they are legally sufficient or that

there is sufficient evidence to establish a prima facie case.26

privilege of Civil Code section 47, subdivision (b), barred

plaintiffs’ RICO claims, the Premier Medical court held that the

Noerr-Pennington doctrine precluded plaintiffs’ claims. (Id. at p.

478; see Sosa v. DIRECTV, Inc. (9th Cir. 2006) 437 F.3d 923,

930–933, 942 [Noerr-Pennington doctrine barred RICO claim

based on “prelitigation demand to settle legal claims” because the

“doctrine requires that, to the extent possible, we construe

federal statutes so as to avoid burdens on activity arguably

within the scope of the Petition Clause of the First

Amendment”].) The Noerr-Pennington doctrine is based on the

right to petition the government under the First Amendment to

the United States Constitution. It originated in cases

interpreting the federal antitrust laws to exclude liability for

concerted action in connection with petitioning the government.

(See Eastern R. Pres. Conf. v. Noerr Motor Frgt., Inc. (1961) 365

U.S. 127, 136; United Mine Workers v. Pennington (1965) 381

U.S. 657, 670.) This immunity was later applied to “situations

where groups ‘use . . . courts to advocate their causes and points

of view respecting resolution of their business and economic

interests vis-à-vis their competitors.’” (BE & K Constr. Co. v.

NLRB (2002) 536 U.S. 516, 525.) In Ludwig v. Superior Court

(1995) 37 Cal.App.4th 8, the court explained: “Obviously, ‘“the

principle of constitutional law that bars litigation arising from

injuries received as a consequence of First Amendment

petitioning activity [should be applied], regardless of the

underlying cause of action asserted by the plaintiffs.” [Citation.]

“[T]o hold otherwise would effectively chill the defendants’ First

Amendment rights.’”” (Id. at p. 21, fn. 17.)

26 As stated, Theodore fails to cite any relevant legal

authority to support the causes of action based on Penal Code

sections 484 and 496. He also fails to make a prima facie factual

55

Accordingly, Theodore failed to carry his burden to demonstrate a

probability of prevailing on his claims. (See Taus v. Loftus (2007)

40 Cal.4th 683, 714 [claim based on protected activity is “stricken

if the plaintiff is unable to demonstrate both that the claim is

legally sufficient and that there is sufficient evidence to establish

a prima facie case with respect to the claim”]; Contreras v.

Dowling, supra, 5 Cal.App.5th at p. 405 [“‘[a]n anti-SLAPP

motion is an evidentiary motion’”].)

2. Theodore’s Claims Are Barred by the Litigation

Privilege

Mink and the Madisons contend that, even if Theodore had

supported his claims, Theodore cannot show a probability of

success because his claims are barred by the litigation privilege

in Civil Code section 47. Section 47, subdivision (b)(2), creates an

absolute litigation privilege, barring all tort claims other than for

malicious prosecution based on statements or other

communications made in a judicial proceeding. (Flatley, supra,

39 Cal.4th at p. 322; Hagberg v. California Federal Bank (2004)

32 Cal.4th 350, 360, superseded by in part by statute as stated in

Tuomela v. Waldorf-Astoria Grand Wailea Hotel (D. Haw. Jan.

22, 2021, No. 20-00117 JMS-RT) 2021 U.S. Dist. LEXIS 12634, at

*13.) “The principal purpose of [Civil Code] section 47[,

subdivision (b),] is to afford litigants . . . the utmost freedom of

access to the courts without fear of being harassed subsequently

by derivative tort actions.” (Silberg v. Anderson (1990) 50 Cal.3d

205, 213.) The privilege also “promotes the effectiveness of

showing. Therefore, Theodore failed to show a probability of

success regarding the fifth and eleventh causes of action for

violation of Penal Code sections 484 and 496.

56

judicial proceedings by encouraging attorneys to zealously protect

their clients’ interests.” (Id. at p. 214.) “Finally, in immunizing

participants from liability for torts arising from communications

made during judicial proceedings, the law places upon litigants

the burden of exposing during trial the bias of witnesses and the

falsity of evidence, thereby enhancing the finality of judgments

and avoiding an unending roundelay of litigation, an evil far

worse than an occasional unfair result.” (Ibid.; accord, Flatley, at

p. 322.) “To further these purposes, the privilege has been

broadly applied.” (Jacob B. v. County of Shasta (2007) 40 Cal.4th

948, 955.)

“The usual formulation [of the litigation] privilege [is that]

the privilege applies to any communication (1) made in judicial or

quasi-judicial proceedings; (2) by litigants or other participants

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

(4) that have some connection or logical relation to the action.”

(Silberg v. Anderson, supra, 50 Cal.3d at p. 212; see Adams v.

Superior Court (1992) 2 Cal.App.4th 521, 529 [litigation privilege

bars cause of action “provided that there is some reasonable

connection between the act claimed to be privileged and the

legitimate objects of the lawsuit in which that act took place”].)

“The litigation privilege is absolute; it applies, if at all, regardless

whether the communication was made with malice or the intent

to harm. [Citation.] . . . [¶] If there is no dispute as to the

operative facts, the applicability of the litigation privilege is a

question of law. [Citation.] Any doubt about whether the

privilege applies is resolved in favor of applying it.” (Kashian,

supra, 98 Cal.App.4th at p. 913; see Kenne v. Stennis (2014) 230

Cal.App.4th 953, 965 [“[b]ecause Civil Code section 47,

subdivision (b) protects any statements or writings that have

57

‘some relation’ to a lawsuit, communications made both during

and in anticipation of litigation are covered by the statute”].)

Moreover, “‘communications made in connection with

litigation do not necessarily fall outside the privilege merely

because they are, or are alleged to be, fraudulent, perjurious,

unethical, or even illegal’ assuming they are logically related to

litigation.” (Blanchard v. DIRECTV, Inc. (2004) 123 Cal.App.4th

903, 921; accord, Kashian, supra, 98 Cal.App.4th at p. 920; see

Jacob B. v. County of Shasta, supra, 40 Cal.4th at p. 956 [“the

privilege extends even to civil actions based on perjury”]; Flatley,

supra, 39 Cal.4th at p. 322 [“[t]he litigation privilege has been

applied in ‘numerous cases’ involving ‘fraudulent communication

or perjured testimony’”]; Finton Construction, Inc., v. Bidna &

Keys, APLC, supra, 238 Cal.App.4th at pp. 212-213 [the litigation

privilege applied to defendant law firm’s actions in receiving and

retaining an alleged stolen hard drive during a lawsuit until it

was turned over pursuant to the court’s order in the underlying

case]; Contreras v. Dowling, supra, 5 Cal.App.5th at p. 416 [the

court rejected the tenant’s argument that the litigation privilege

did not apply because tenant was suing landlord’s lawyer for

conspiracy and aiding and abetting his clients’ illegal entries into

the apartment]; Home Ins. Co. v. Zurich Ins. Co. (2002) 96

Cal.App.4th 17, 20, 22–26 [litigation privilege applied to

attorney’s misrepresentation of available insurance policy limits

to induce the settlement of a lawsuit].)

As the California Supreme Court has recognized, where a

privileged communication by an attorney rises to the level of

criminal conduct, “other remedies aside from a derivative suit for

compensation will exist,” including “criminal prosecution under

Business and Professions Code, section 6128[,] and State Bar

58

disciplinary proceedings for violation of Business and Professions

Code, section 6068, subdivision (d).” (Silberg v. Anderson, supra,

50 Cal.3d at pp. 218-219, fn. omitted.)

“‘A plaintiff cannot establish a probability of prevailing [in

responding to a motion pursuant to section 425.16] if the

litigation privilege precludes the defendant’s liability on the

claim.’” (Bergstein, supra, 236 Cal.App.4th at p. 814; accord,

Fremont Reorganizing Corp. v. Faigin, supra, 98 Cal.App.4th at

p. 1172; see Flatley, supra, 39 Cal.4th at p. 323 [litigation

privilege may present a substantive defense the plaintiff must

overcome to demonstrate a probability of prevailing].)

Theodore’s claims against defendants are based on their

communicative conduct in a judicial proceeding to achieve the

objects of the litigation. As in Bergstein, supra, 236 Cal.App.4th

793, Theodore fails to identify any of defendants’ conduct that

was not a communication in a judicial proceeding. Theodore’s

contention that “aiding and abetting,” “participating in

conspiracy,” and “wrongfully taking money” are “non-

communicative” conduct is unpersuasive. Aside from failing to

provide record citations for the “non-communicative” conduct,

Theodore’s complaint demonstrates otherwise because it

extensively alleged communicative activity throughout. (Id. at

p. 815 [“[s]imply claiming that ‘aiding and abetting [plaintiffs’

former attorney’s] breach of fiduciary duty and facilitating [that

attorney’s] breach of contract’ is ‘non-communicative conduct’

does not make it so”].) As the trial court correctly pointed out,

Theodore’s “allegations and evidence of communications” involved

“inseparable communications in furtherance of litigation.” Even

if defendants communicated improperly, the litigation privilege

applies to bar Theodore’s claims. (Kashian, supra, 98

59

Cal.App.4th at p. 920 [“[c]ommunications made in connection

with litigation do not necessarily fall outside the privilege simply

because they are, or are alleged to be, fraudulent, perjurious,

unethical, or even illegal”].)27

Theodore’s reliance on Action Apartment Assn., Inc. v. City

of Santa Monica (2007) 41 Cal.4th 1232, Banuelos v. LA

Investment, LLC (2013) 219 Cal.App.4th 323, and Kimmel v.

Goland (1990) 51 Cal.3d 202 is misplaced. In Action Apartment

Assn., Inc., the California Supreme Court observed that the

27 Wax-Semus’s status as an Evidence Code section 730

expert witness and a section 639 referee also precludes

Theodore’s claims against her because she has quasi-judicial

immunity. (Howard v. Drapkin, supra, 222 Cal.App.3d at

pp. 858-859 [“the justification for giving judicial and quasi-

judicial immunity to judges, commissioners, referees, court-

appointed persons (such as psychologists, guardians ad litem and

receivers), and nonappointed persons (such as those who prepare

probation reports and handle child abuse cases) applies with

equal force to these neutral persons who attempt to resolve

disputes.”]; see Laborde v. Aronson (2001) 92 Cal.App.4th 459,

463-464 disapproved on another ground in Musaelian v. Adams

(2009) 45 Cal.4th 512 [litigation privilege bars father’s claims

against Evidence Code section 730 evaluator in prior custody

proceeding]; Gootee v. Lightner (1990) 224 Cal.App.3d 587, 591

[father’s claims against psychologist jointly retained to provide

custody recommendations barred by litigation privilege]; see also

Soliz v. Williams (1999) 74 Cal.App.4th 577, 589, 591 [judicial

immunity “depends on whether [the judicial officer] engaged in

the exercise of a judicial function, even if he [or she] acted in

excess of his [or her] jurisdiction” because immunity exists for

“‘judicial actions; those relating to a function normally performed

by a judge and where the parties understood they were dealing

with the judge in his [or her] official capacity’”].)

60

litigation privilege did not apply to the “prosecutions” of certain

crimes. (Id. at p. 1246.) In Banuelos, the court held that a cause

of action for retaliatory eviction under Civil Code section 1942.5

is not barred by the litigation privilege because the “Legislature

presumably would not have included these protections in section

1942.5 if it intended that they be nullified by the litigation

privilege.” (Id. at pp. 325, 336.) In Kimmel, the California

Supreme Court held, although the litigation privilege “precludes

recovery for tortiously inflicted injury resulting from publications

or broadcasts made during the course of judicial and quasi-

judicial proceedings,” the “noncommunicative acts—the illegal

recording of confidential telephone conversations—for the

purpose of gathering evidence to be used in future litigation” was

not privileged. (Id. at p. 205.) The Court pointed out that the

recorded-party sought “statutory damages under Penal Code

section 637.2 not for injuries arising from the broadcast and

publication of private conversations, but from the recording of

them.” (Id. at p. 212.) None of these cases assists Theodore.

There was no criminal prosecution, retaliatory eviction claim, or

alleged unlawful recording.

61

DISPOSITION

The judgments are affirmed. Mink and the Madisons shall

recover their costs on appeal.

DILLON, J.

We concur:

PERLUSS, P. J.

SEGAL, J.



Judge of the Los Angeles Superior Court, assigned by the

Chief Justice pursuant to article VI, section 6 of the California

Constitution.

62