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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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.”
6
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
8
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
11
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.”
12
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
14
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.)
15
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.
16
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
18
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