Christie CA2/ 6

Filed 10/16/14 Christie CA2/ 6
NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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 This opinion has not been certified for publication or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 SIX

DANITA CHRISTIE, 2d Civil No. B253247
(Super. Ct. No. 56-2013-440433-CU-FR-
Plaintiff and Appellant, VTA)
(Ventura County)
v.

MARK A. LESTER, et al.,

Defendants and Respondents.

Danita Christie, proceeding in propria persona, appeals from an order granting
special motions to strike her complaint pursuant to the anti-SLAPP statute, Code of Civil
Procedure section 425.16.1 As defendants, the complaint named two law firms (Jones &
Lester, LLP; Renshaw and Associates, APLC) and the firms' members: James G. Jones,
Mark A. Lester, Steven J. Renshaw, and Christine Renshaw. Defendants are hereafter
collectively referred to as respondents. Appellant concedes that her claims arose from
constitutionally protected activity. She contends that the trial court erred in granting
the anti-SLAPP motions because she demonstrated a probability of prevailing on the merits.
We disagree and affirm.
Background
Appellant and Paulette Kimball (Paulette) were sisters. Paulette died in January
2012. They were beneficiaries of their parents' trust: the Schwarz Family Trust (Trust). The

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Unless otherwise stated, all statutory references are to the Code of Civil Procedure.
Trust instrument was signed in California in 1991. It provided that the Trust "shall be
governed by the laws of California."
Appellant's and Paulette's father died in 1999. Their mother, Mary Schwarz (Mary),
became sole trustee. In 2005 Mary amended the Trust, "naming [appellant] beneficiary of
all trust property with her wish that [appellant] provide for Paulette during Paulette's
lifetime." The amendment named appellant as the sole successor trustee. Appellant resided
in San Diego.
Paulette resided in Montana. In March 2007, when Mary was 91 years old, she
moved from California to Montana to live with Paulette. In December 2007 Mary signed a
will naming Paulette as her sole heir. In January 2008 Mary signed a grant deed removing
her California residence from the Trust and conveying it to herself. "On February 28, 2008,
Mary was certified as 'incompetent' by her Montana physician." In June and July 2008 a
Montana court appointed Paulette as Mary's temporary guardian. It appointed Bitterroot
Payee Services, Inc., as her temporary conservator.
In June 2008 in Ventura County, appellant filed an action against Paulette seeking to
annul the deed by which Mary had conveyed her California residence from the Trust to
herself. The complaint alleged that Paulette had "fraudulently induced Mary to remove the
[residence] from the trust weeks before Mary was declared incompetent by her doctor."
Appellant represented herself until May 2009, when she retained respondent Steven
Renshaw (Renshaw). Paulette retained respondent Jones & Lester. In 2012 the Ventura
County court entered judgment in Paulette's favor.
In November 2008 the Montana court issued an order in which it concluded: "The
narrow question of title to the [California] Property is a local cause, over which the
California Superior Court has exclusive jurisdiction." "Otherwise," the court continued,
Montana "has exclusive jurisdiction over all of the assets of [Mary], including the
[California] property." The court reasoned: "The Montana District Court has exercised its
powers to protect Mary's property through the [appointment of a] temporary conservator,
Bitterroot Payee Services, Inc. [Citation.] As such, the court has invoked its 'exclusive
jurisdiction to determine how the estate of the protected person . . . shall be managed,

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expended, or distributed to or for the use of the protected person or any of [her] dependents.'
[Citation.]" The court ordered appellant to "deliver to the temporary conservator . . . all
monies and funds of Mary Schwarz or the Schwarz Family Trust over which [appellant] has
exerted any power or control, direct or indirect."
Mary died in December 2008. "Paulette claimed Mary's California residence under
the will." Pursuant to the 2005 amendment of the Trust, appellant became the sole
successor trustee.
In July 2009 Jones & Lester, acting as Paulette's counsel, filed in Ventura County a
petition relating to the Trust. The petition sought (1) the removal of appellant as trustee, (2)
damages for appellant's breach of trust, (3) an order requiring appellant to deliver to the
Trust $129,000 that she had removed from a California account that belonged to Mary, and
(4) an accounting of appellant's use of the $129,000. According to appellant, the $129,000
and the California residence were Mary's "only assets."
As Exhibit E to Paulette's petition, counsel attached the November 2008 Montana
court order. The same order was attached as Exhibit E to Paulette's " 'First Supplemental
Petition' " filed in October 2010. The First Supplemental Petition requested that the Ventura
County court "determine the construction of the terms of the [Trust instrument] with respect
to the interest of Paulette Kimball therein." Renshaw represented appellant in all
proceedings pertaining to Paulette's petition.
In July 2012 the Ventura County court stayed the proceedings on Paulette's petition.
The court ordered that, except for the dispute concerning title to Mary's California
residence, "[j]urisdiction for determination of any and all disputes regarding the assets of the
[Trust] and/or the actions of [appellant] as Successor Trustee . . . shall remain in [the]
Montana [court] pursuant to the" November 2008 Montana court order.
On March 28, 2013, the Montana court authorized the Ventura County court to
"exercise jurisdiction over all of Mary A. Schwarz's assets . . . located in the State of
California," including assets of the Trust.
In August 2013 appellant, acting in propria persona, filed the instant action against
respondents. The complaint consisted of two causes of action: deceit and conspiracy to

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commit deceit. Appellant alleged that respondents had "concealed from the Ventura Court"
the November 2008 Montana court order that "asserted [Montana's] exclusive and continued
jurisdiction over the . . . Trust." It was not until March 10, 2012, that appellant "learned of
the legal implications" of the Montana order. She personally informed the Ventura County
court of the Montana order, after which the court "abated the trust action until such time as
Montana divested itself of jurisdiction." As a result of respondents' "unethical concealment
of Montana's exclusive jurisdiction from the Ventura County court," appellant incurred
damages "in having to defend herself for four years" in the action commenced by the filing
of Paulette's petition in July 2009. "All [respondents] had a duty as officers of the court to
disclose material facts to the court which they had reason to believe might affect the court's
jurisdiction." Moreover, respondents "intentionally and willfully concealed" the
"implications" of the Montana court order from appellant. Respondents "deliberately and
willfully intended to deceive the Ventura Court and [appellant] by concealing the Montana
jurisdiction." Appellant sought general damages of $750,000 plus exemplary damages.
Anti-Slapp Statute
" 'SLAPP' is an acronym for 'strategic lawsuit against public participation.'
[Citation.]" (Oasis West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 815, fn. 1.) "A
SLAPP suit . . . seeks to chill or punish a party's exercise of constitutional rights to free
speech and to petition the government for redress of grievances. [Citation.] The Legislature
enacted Code of Civil Procedure section 425.16—known as the anti-SLAPP statute—to
provide a procedural remedy to dispose of lawsuits that are brought to chill the valid
exercise of constitutional rights. [Citation.]" (Rusheen v. Cohen (2006) 37 Cal.4th 1048,
1055-1056.)
"A defendant opposing a SLAPP claim may bring a special motion to strike any
cause of action 'arising from any act of that person in furtherance of the person's right of
petition or free speech under the United States Constitution or California Constitution in
connection with a public issue.' (§ 425.16, subd. (b)(1).)" (Coretronic Corp. v. Cozen
O'Connor (2011) 192 Cal.App.4th 1381, 1387.) "An anti-SLAPP motion involves a two-
step [or two-prong] process." (Id., at p. 1387.) First, "[t]he defendant has the burden of

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making a prima facie showing that one or more causes of action arise from an act in
furtherance of the constitutional right of petition or free speech in connection with a public
issue. [Citation.] . . . The motion must be denied if the required prima facie showing is not
made by the moving defendant. [Citation.]" (Id., at p. 1388.)
If the trial court determines that the defendant has made the prima facie showing
required in the first step of the anti-SLAPP analysis, it proceeds to the second step, which is
to determine " 'whether the plaintiff has demonstrated a probability of prevailing on the
claim.' [Citation.] 'Only a cause of action that satisfies both prongs of the anti-SLAPP
statute—i.e., that arises from protected speech or petitioning and lacks even minimal
merit—is a SLAPP, subject to being stricken under the statute.' [Citation.]" (Oasis West
Realty, LLC v. Goldman, supra, 51 Cal.4th at p. 820.)
"In the second step . . . , 'the plaintiff must show . . . there is admissible evidence that,
if credited, would be sufficient to sustain a favorable judgment.' [Citation.] 'The plaintiff
may not rely solely on its complaint, even if verified; instead, its proof must be made upon
competent admissible evidence.' [Citation.]" (City of Costa Mesa v. D'Alessio Investments,
LLC (2013) 214 Cal.App.4th 358, 376; see also Rusheen v. Cohen, supra, 37 Cal.4th at p.
1056 ["the plaintiff 'must demonstrate that the complaint is both legally sufficient and
supported by a sufficient prima facie showing of facts to sustain a favorable judgment if the
evidence submitted by the plaintiff is credited' "].)
Standard of Review
"If the trial court's decision is correct on any theory applicable to the case, we affirm
the order regardless of the correctness of the grounds on which the lower court reached its
conclusion. [Citation.] . . . [In the first step of the anti-SLAPP analysis,] we independently
determine whether the challenged cause of action arose from the defendant's exercise of the
constitutional right of petition or free speech . . . ." (Robles v. Chalilpoyil (2010) 181
Cal.App.4th 566, 573.)
The second step of the anti-SLAPP analysis is also subject to our independent
review. (Oviedo v. Windsor Twelve Properties, LLC (2012) 212 Cal.App.4th 97, 109.) "We
consider 'the pleadings, and supporting and opposing affidavits upon which the liability or

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defense is based.' [Citation.] However, we neither 'weigh credibility [nor] compare the
weight of the evidence. Rather, [we] accept as true the evidence favorable to the plaintiff
[citation] and evaluate the defendant's evidence only to determine if it has defeated that
submitted by the plaintiff as a matter of law.' [Citation.]" (Soukup v. Law Offices of
Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)
First Prong of Anti-SLAPP Analysis
In her reply brief, appellant "concedes that Respondents meet the first prong of
[section] 425.16." Appellant explains: "Respondents argue correctly that choosing to
remain silent is a component of 'free speech.' [Citation.] Respondents' silence is protected
by [section] 425.16; they have the right to choose not to speak and that choice is protected
by the anti-SLAPP statute. . . . [T]he cause of action for deceit arose from respondents' 'free
speech' by remaining silent on the Montana jurisdiction." We accept appellant's concession.
Respondents satisfied the requirements of the first prong of the anti-SLAPP statute
because they made a prima facie showing that their alleged failure to disclose the November
2008 Montana court order to the Ventura County court was protected litigation activity. "
'A cause of action "arising from" defendant's litigation activity may appropriately be the
subject of a section 425.16 motion to strike.' [Citation.] 'Any act' [in furtherance of a
person's right of petition or free speech] includes communicative conduct such as the filing,
funding, and prosecution of a civil action. [Citation.] This includes qualifying acts
committed by attorneys in representing clients in litigation. [Citations.]" (Rusheen v.
Cohen, supra, 37 Cal.4th at p. 1056.) "[S]ince '[t]he filing of lawsuits is an aspect of the
First Amendment right of petition' [citation], a claim based on actions taken in connection
with litigation fall[s] 'squarely within the ambit of the anti-SLAPP statute's "arising from"
prong. (§ 425.16, subd. (b)(1).)' [Citation.]" (Kurz v. Syrus Systems, LLC (2013) 221
Cal.App.4th 748, 759.) "[C]ourts have adopted 'a fairly expansive view of what constitutes
litigation-related activities within the scope of section 425.16.' [Citation.]" (Kolar v.
Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537.)
It is of no consequence that the litigation activity in question involved an alleged
nondisclosure to the court instead of an affirmative act of communication. "It is, of course,

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well established that the constitutional right of free speech includes the right not to speak.
[Citations.]" (Kronemyer v. Internet Movie Data Base, Inc. (2007) 150 Cal.App.4th 941,
947; see also Glickman v. Wileman Bros. & Elliott, Inc. (1997) 521 U.S. 457, 481 [117 S.Ct.
2130, 138 L.Ed.2d 585] [" 'the First Amendment guarantees "freedom of speech," a term
necessarily comprising the decision of both what to say and what not to say' "].)
Furthermore, the protected activity of "the prosecution of a civil action" (Rusheen v. Cohen,
supra, 37 Cal.4th at p. 1056) necessarily entails both the disclosure and nondisclosure of
information to the court. An attorney is not required to disclose everything concerning the
case.
Second Prong of Anti-SLAPP Analysis
"Since [respondents'] motion[s] satisfied the first prong of the anti-SLAPP statute,
the burden shifted to [appellant] to demonstrate the probability of prevailing on [her causes
of action for deceit and conspiracy to deceive] and thereby establish that
the second prong of the anti-SLAPP statute has not been satisfied. [Citation.]" (Kurz v.
Syrus Systems, LLC (2013) 221 Cal.App.4th 748, 760.) " '[T]he elements of an action for
fraud and deceit based on concealment are: (1) the defendant must have concealed or
suppressed a material fact, (2) the defendant must have been under a duty to disclose the
fact to the plaintiff, (3) the defendant must have intentionally concealed or suppressed the
fact with the intent to defraud the plaintiff, (4) the plaintiff must have been unaware of the
fact and would not have acted as he did if he had known of the concealed or suppressed fact,
and (5) as a result of the concealment or suppression of the fact, the plaintiff must have
sustained damage.' [Citations.]" (Moncada v. West Coast Quartz Corp. (2013) 221
Cal.App.4th 768, 775.)
Appellant failed to carry her burden of demonstrating a probability of prevailing on
the merits. She did not show that respondents had a duty to disclose the Montana court
order to the Ventura County court. The order was arguably not material to Paulette's
petition. The Montana court declared that it had "exclusive jurisdiction over all of the assets
of the incapacitated person Mary Schwarz." Its exclusive jurisdiction arose because it had
"exercised its powers to protect Mary's property through the [appointment of a] temporary

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conservator." The Montana court did not declare that it had exclusive jurisdiction over the
interpretation of the Trust instrument and the administration of the Trust after Mary's death.
Under California law, "a conservatorship terminates as a matter of law upon the death of the
conservatee. [Citations.]" (Quiroz v. Seventh Ave. Center (2006) 140 Cal.App.4th 1256,
1269.) California had a clear interest in adjudicating the petition because it concerned a
trust that was created in California, subject to California law, and administered by a trustee
who resided in California. In addition, the $129,000 at issue in Paulette's petition had been
deposited in a California account in Mary's name.
In any event, there was no concealment of the Montana court order, which was
attached as an exhibit to Paulette's petition. The petition put the Ventura County court on
notice of the Montana court's ruling that, except for the issue of title to Mary's California
residence, Montana "has exclusive jurisdiction over all of the assets of the incapacitated
person Mary Schwarz."
Appellant was aware of the Montana order before Paulette filed her petition. At the
hearing on the motions to strike, appellant told the court, "I knew there was a Montana order
because it had come to me, but I didn't know that it could possibly stay the California
action." Respondent Jones & Lester had no duty to disclose the possibility of a stay to
appellant because they represented her adversary and, therefore, did not owe her a fiduciary
duty.2 " 'Although material facts are known to one party and not the other, failure to
disclose them is ordinarily not actionable fraud unless there is some fiduciary relationship

2
We question whether counsel's concealment of the possibility of a stay can constitute the
"concealment of a material fact" element of deceit. Such concealment is arguably the
concealment of a nonactionable opinion. As a general rule, "an action for fraud must be
based on a statement of fact, not opinion, and . . . statements as to future actions by
some third party [e.g., the court's granting a stay] are deemed nonactionable opinions.
[Citations.]" (Hinesley v. Oakshade Town Center (2005) 135 Cal.App.4th 289, 295.) In her
opening brief, appellant alleges that respondents "knew that if Judge Reiser [the California
trial judge] learned that Montana was actively litigating the same trust before him, he would
likely . . . stay the action on which they were collecting fees." (Bold omitted.) Because the
parties do not discuss the nonactionable opinion versus material fact issue, we do not
consider it.

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giving rise to a duty to disclose.' [Citation.]" (Nussbaum v. Weeks (1989) 214 Cal.App.3d
1589, 1599.)
Renshaw, as appellant's counsel, owed her a fiduciary duty. There is no evidence
that Renshaw "intentionally concealed or suppressed the [possibility of a stay] with the
intent to defraud" appellant. (Moncada v. West Coast Quartz Corp., supra, 221 Cal.App.4th
at p. 775.) Nor is there any evidence that, as a result of the alleged concealment, appellant
sustained damage. On March 28, 2013, the Montana court authorized the Ventura County
court to proceed with Paulette's petition insofar as it concerned Mary's and the Trust's assets
located in California. Thus, appellant would have been required to defend against the
petition and incur legal expenses even if Renshaw had disclosed to appellant the
"implications" of the Montana order.3

Disposition
The judgment is affirmed. Respondents shall recover their costs on appeal.
NOT TO BE PUBLISHED.

YEGAN, J.
We concur:

GILBERT, P.J.

PERREN, J.

3
We need not consider Renshaw's argument that appellant "has no standing to bring this
action." We also need not consider Jones & Lester's argument that its acts fall within the
"litigation privilege." We note "that acts falling within the anti-SLAPP statute because of
their connection with judicial proceedings [do not] inevitably fall within
the litigation privilege." (Navellier v. Sletten (2003) 106 Cal.App.4th 763, 770.)
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 Rebecca Riley, Judge

Superior Court County of Ventura

______________________________

Danita Christie, in pro per, Appellant.

Jones & Lester; Mark A Lester and Greg May, for Respondents.

Steven J. Renshaw; Renshaw & Associates, for Respondent.

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