Marriage of Irvin CA2/7

Filed 9/21/21 Marriage of Irvin CA2/7
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

In re Marriage of KAREN IRVIN B306295
and MARC IRVIN.
(Los Angeles County
Super. Ct. No. PD059501)
KAREN IRVIN,

Respondent,

v.

MARC IRVIN,

Appellant.

APPEAL from an order of the Superior Court of Los
Angeles County, Helen Zukin, Judge. Reversed and remanded
with directions.
Law Offices of Bruce A. Moss and Bruce A. Moss; Ferguson
Case Orr Paterson LLP and Wendy C. Lascher for Appellant.
 Law Offices of William W. Oxley and William W. Oxley;
Jeff Lewis Law, Jeffrey Lewis and Sean C. Rotstan for
Respondent.
_______________________

Marc Irvin1 appeals from an order granting Karen Irvin’s
special motion to strike (Code Civ. Proc., § 425.16; anti-SLAPP
statute)2 Marc’s claim for breach of fiduciary duty asserted
against Karen pursuant to Family Code section 1101.3 Marc
asserted that Karen schemed with her mother Mari Jo Carter to
impair Marc’s interest in a community property commercial
building. As alleged, Mari Jo filed a civil lawsuit against Marc
and Karen claiming she had loaned them the money to buy the
building and demanding repayment with interest. Then, on the
eve of trial, Mari Jo dismissed Marc from the lawsuit and
immediately entered into a settlement with Karen in which
Karen stipulated to a money judgment in favor of Mary Jo that
Mari Jo could collect against the community property.
On appeal, Marc contends the family court erred in finding
that his claim arose from protected activity within the meaning of
Code of Civil Procedure section 425.16, subdivision (e), and that
Marc could not establish a probability of prevailing on the merits

1 To avoid confusion, we refer to Marc Irvin and Karen Irvin
by their first names. We also refer to Karen’s parents Mari Jo
Carter and Marvin Carter (now deceased) by their first names.
2 “‘“SLAPP” is an acronym for “strategic lawsuit against
public participation.”’” (Monster Energy Co. v. Schechter (2019)
7 Cal.5th 781, 786, fn. 1.)
3 All further undesignated statutory references are to the
Family Code.

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because Karen’s conduct involved a privileged communication
under Civil Code section 47, subdivision (b). We agree that
Karen’s alleged breach of her fiduciary duties by settling
litigation with her mother in a manner designed to prevent Marc
from protecting his community property interests was
fundamentally noncommunicative and therefore was not shielded
by the litigation privilege. Therefore, even if Marc’s claim arose
from protected activity, because he met his burden to show
probability of prevailing on the merits of his claim, we reverse the
family court order granting Karen’s special motion to strike.

FACTUAL AND PROCEDURAL BACKGROUND

A. The Marital Dissolution
Karen and Marc married in 1989 and separated in late
2014. On February 10, 2015 Karen filed a petition for dissolution
of the marriage. In June 2016 a dispute arose between Karen
and Marc as to whether $600,000 that Karen’s mother Mari Jo
and Karen’s since-deceased father Marvin had given to Karen
and Marc in 2003 to purchase a commercial building located on
Centre Pointe Parkway in Santa Clarita (Centre Pointe) was a
loan (Karen’s position) or a gift (Marc’s position). On June 15,
2018 the family court4 entered a judgment of dissolution and
made orders for the division and disposition of the marital
property. The court reserved jurisdiction over all issues
concerning Centre Pointe pending the outcome of a lawsuit filed
by Mari Jo relating to the property. (Mari Jo Carter v. Marc

4 Judge Laura A. Seigle presided over the trial and entered
the judgment of dissolution and property orders.

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Irvin et al. (Super. Ct. L.A. County, No. BC654402) (the Carter
action).)

B. The Carter Action and Stipulated Judgment
Mari Jo filed the Carter action on March 17, 2017,
asserting causes of action against Marc and Karen for breach of
contract, restitution, common counts for money lent and account
stated, specific performance and injunctive relief, as well as a
cause of action against Marc for declaratory relief. Mari Jo
alleged that in 2003 she and Marvin loaned Marc and Karen
$600,000 to buy Centre Pointe. The parties reached an oral
agreement that Marc and Karen would use the money as a down
payment to purchase and build out the property, which would
generate income, and Marc and Karen would pay the Carters
$2,000 per month beginning in January 2005 as interest-only
payments on the loan. The parties subsequently agreed that if
Marc and Karen missed a payment or made a partial payment,
the unpaid amount would be added to the principal to be repaid
upon a sale or refinancing of Centre Pointe. From January 2005
through the filing of the lawsuit in 2017, Marc and Karen made
$165,500 in interest payments, and they missed $126,500 in
payments.
Mari Jo sought damages of $726,500 (the $600,000 loan
principal plus the $126,500 in unpaid interest). She also sought
an injunction requiring Marc and Karen to repay the loan with
interest “at the time of the closing on the purchase and sale of the
Centre Point [p]roperty.”
On June 1, 2017 Marc filed a verified answer to Mari Jo’s
complaint denying her allegation there was an oral agreement
and alleging the Carters had gifted him and Karen the $600,000.

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Marc also asserted 29 affirmative defenses, including the statute
of frauds. On September 11, 2017 Karen, representing herself,
filed a verified answer admitting the factual allegations of the
complaint, including the terms of the alleged oral loan
agreement, and admitting Mari Jo was entitled to $726,500.5
Karen asserted, “Marc Irvin, and only Marc Irvin, failed and
refused to do those things alleged [in the complaint],” and Marc’s
conduct was “wrongful and unlawful” and “will cause unjust
enrichment to him at [Mari Jo’s] detriment.” Karen denied she
breached any agreement or Mari Jo was harmed by her conduct.
Karen asserted eight affirmative defenses, including the statute
of frauds, and sought an offset for any judgment in the marital
dissolution action.
Trial was set for Monday, December 10, 2018.6 On the
afternoon of Thursday, December 6, Mari Jo’s attorney informed
Joseph McGinley, Marc’s lawyer in the Carter action, that Mari
Jo was dismissing Marc from the action and would proceed
against Karen only. McGinley gave notice to Karen and to Mari
Jo’s attorney on Friday morning that Marc would appear ex parte
on Monday, December 10 to request to intervene in the Carter
action. In a declaration supporting the application, McGinley
stated, “Throughout this matter, [Karen] has not aggressively or

5 On our own motion we take judicial notice of the following
documents filed in the Carter action: (1) Karen’s answer, filed on
September 11, 2017; (2) the trial court’s December 10, 2018
minute order denying Marc’s ex parte application to intervene
and approving the stipulated judgment; and (3) the signed
judgment form filed on December 10, 2018. (Evid. Code, §§ 452,
subd. (d), 459.)
6 Judge Terry A. Green presided over the Carter action.

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otherwise challenged the claims of [Mari Jo] . . . . Instead,
[Karen] has fully supported all of the claims of her . . . mother in
direct opposition to the interests of [Marc], who is currently a
nonparty as a result of his recent dismissal by [Mari Jo].”
McGinley argued that Marc’s dismissal would result in
irreparable harm to Marc because Mari Jo had “dismissed the
only defendant who was challenging [her] claims, with the
intention of obtaining a large uncontested verdict in her favor
that [Karen] and [Mari Jo] will ultimately seek to have enforced
against the community assets of [Marc] and [Karen] in the
separate family law matter. This will only impose financial harm
upon [Marc], as [Mari Jo] will return funds to her daughter . . . so
that [Karen] sustains no harm, and so [Karen] can prevent
[Marc] from his rightful share of the community property estate.”
On Friday, December 7, 2018 Mari Jo lodged a stipulation
of judgment signed by Karen and agreeing to entry of a $650,000
judgment in favor of Mari Jo. On Monday, December 10, the trial
court (Judge Green) denied Marc’s ex parte application to
intervene, signed the stipulated judgment, and entered judgment
for Mari Jo against Karen for $650,000. McGinley declared that
he received no advance notice of Karen and Mari Jo’s settlement
until he arrived for the hearing on Marc’s application.7

7 In McGinley’s declaration filed in support of Marc’s section
1101 request, McGinley stated the trial court “denied our [e]x
[p]arte [a]pplication, because the [s]ubject [a]ction was now over.”
However, the trial court’s minute order states the court read and
heard argument on the ex parte application; the minute order
does not state the grounds on which the court denied the
application.

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C. Marc’s Section 1101 Request for Order
On February 15, 2019 Marc filed a request for order in the
family court seeking a finding that Karen had breached her
fiduciary duty to Marc pursuant to Family Code section 1101,
subdivision (a)8 (the section 1101 claim). Marc alleged that
Karen breached her fiduciary duties to him with respect to their
community property by “entering into [a] stipulated judgment
with [her] mother on the eve of trial in the civil litigation case
when [Marc] was ready, willing and able to litigate trial against
[Karen’s] mother that resulted in a judgment against [Karen] and
that can be enforced by her mother as to community property
assets . . . .” (Capitalization omitted.) Marc alleged Karen
engaged in the following “series of transactions”: “(1) [b]eing
aware of the [e]x [p]arte application by [Marc] giving notice to
[Karen] to intervene in the civil action after Mari Jo dismissed
[Marc]; (2) [e]ntering into a stipulated judgment of $650,000
where Mari Jo was the plaintiff and [Karen] was the defendant;
(3) [a]lerting [Marc] that she wants to sell Centre Pointe so that
Mari Jo could levy against this community property asset in the
amount of $650,000; and [4] causing liability to the community
unnecessarily in the amount of $650,000.”
In a declaration supporting his section 1101 claim, Marc
averred, “But for the stipulated judgment executed by [Karen]
that affected the community’s interest and created liability to the
community by way of a judgment, I would have tried the case and

8 Section 1101, subdivision (a), provides for a remedy against
a spouse who breaches his or her fiduciary duty to the claimant
spouse where the breach “results in impairment to the claimant
spouse’s present undivided one-half interest in the community
estate.”

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it would have resulted in a defense verdict with nothing owing to
Mari Jo, as opposed to the now owing $650,000. . . . [¶] [Karen]
knew that I did not want to settle with Mari Jo and wanted to try
the case. . . . [¶] [Karen] obviously wanted to settle with her
mother against my wishes. Otherwise, she would have let me
know her intentions prior to the time that she entered into the
stipulated judgment. Yet, she never contacted me nor McGinley
in that regard.”9 Marc declared that after obtaining the
stipulated judgment, Karen informed Marc she wanted to proceed
with the sale of Centre Pointe. On January 7, 2019, Mari Jo filed
an abstract of judgment, which Marc contends was a prelude to
collecting $650,000 from the sale of Centre Pointe.10 Marc opined
the existing equity in Centre Pointe was around $650,000;
accordingly, Marc requested $650,000 in damages plus attorneys’
fees.11

9 Marc presented his section 1101 claim as a request for
order on the family court’s standard form, with an attached
memorandum and declaration from Marc. McGinley also
submitted a declaration describing the proceedings and attaching
deposition transcripts, discovery, and submissions from the
Carter action. Both Marc’s and McGinley’s declarations were
incorporated into Marc’s opposition to Karen’s special motion to
strike, and we discuss the relevant evidence below.
10 There is no evidence in the record that Centre Pointe was
sold or that Mari Jo collected on the judgment prior to April 3,
2020, when the family court granted Karen’s special motion to
strike.
11 Because Marc only seeks 50 percent of the value of the
impaired asset, it appears he would only be entitled to
approximately $325,000. We not reach the question of the

8
D. Karen’s Special Motion To Strike
On March 12, 2019 Karen filed a special motion to strike
Marc’s section 1101 claim under Code of Civil Procedure section
425.16. Karen argued Marc’s section 1101 claim alleged
protected activity under the anti-SLAPP statute because the
claim was based on Karen’s settlement of the Carter action, and
“[a]ll of Karen’s actions are protected by the litigation privilege
and no matter how categorized by Marc, consist of protected
activity.”
Karen further argued that even if the litigation privilege
did not apply, Marc would be unable to demonstrate a probability
of prevailing on the merits of his section 1101 claim because the
community benefited from her settlement, in that the stipulated
judgment ($650,000) was less than the amount Mari Jo was due
($726,500); thus, “Karen and Marc saved $76,500.00 in interest
payments.” Karen argued she “acted reasonably and justifiably
in settling the suit because Marc’s pleadings, discovery responses
and the documentary evidence all demonstrate the validity of the
debt owed to Karen’s mom.” She also asserted Marc’s dismissal
benefited Marc because his separate property could not be used to
satisfy Mari Jo’s judgment.
In support of her motion to strike, Karen submitted a
declaration and documentary evidence showing the Carters
transmitted $600,000 to Karen and Marc in several installments
in 2003. Karen stated that she and Marvin agreed Karen would
pay interest on the loan at a 4 percent annual rate beginning in
January 2005, and that the principal would be repaid either upon

appropriate amount of Marc’s claim for purposes of the special
motion to strike.

9
refinancing or sale of the property. Karen averred she and Marc
made monthly interest payments of $2,00012 to Marvin until
2009, when as a result of the economic downturn, Karen and
Marvin modified the agreement so that if a payment could not be
made or made in full, the missed payment would be added to the
principal. As of the date of her declaration, Karen had paid her
parents $211,500 on the loan, leaving a balance of missed
interest payments of $126,500, which, if added to the principal,
“made me indebted to my mother in the amount of $726,500.00.”
Karen submitted a bill of particulars that Mari Jo had filed in the
Carter action summarizing the monthly payments made from
2005 to 2017. Mari Jo signed a verification that the listed
amounts were true or she believed the amounts to be true. Karen
submitted a summary of income and expenses for Centre Pointe
showing she wrote periodic $2,000 monthly checks to Mari Jo
during 2014 and 2015.13 Karen stated she received a settlement
offer from Mari Jo’s attorney on December 5, 2018, and she
stipulated to entry of judgment because she believed the
settlement was in the best interests of herself, Marc, and the
community. Karen believed “my mother was really entitled to
the full amount she was seeking,” and if the parties had had

12 The $2,000 in monthly interest payments is the amount
owed on a $600,000 interest-only loan bearing an annual
percentage rate of 4 percent.
13 Karen stated in her declaration that after the separation,
Marc made handwritten notes acknowledging that the $600,000
principal was owed to Mari Jo, and she attached those notes to
her declaration. However, the notes are not in the portion of her
declaration included in the record on appeal.

10
proceeded to trial, Mari Jo would have obtained a judgment of
$726,500, not $650,000.
In his opposition Marc conceded Karen’s family had
provided $600,000 toward the purchase of Centre Pointe, but the
money was a gift, and his parents also gave the couple money to
develop Centre Pointe. Karen did not present any evidence in the
Carter action showing the existence of a written loan agreement
or the terms alleged by Mari Jo, and Marc testified in his
deposition that the payments Karen made to her parents over the
years were “sporadic” and intended to provide Mari Jo with
spending cash roughly commensurate with the net income
generated by Centre Pointe. Karen never discussed with Marc
the idea that the payments equaled 4 percent annual interest on
the loan principal, and Karen told Marc at one point that her
parents were doing fine and did not need extra money. In
addition, Marc and Karen applied to refinance their mortgage on
Centre Pointe in 2009, and although Karen was a licensed real
estate broker, she did not disclose on the application a loan from
the Carters on the property.
McGinley stated in his declaration that when the loan
application was shown at Marc’s deposition in the Carter action,
Karen blurted out, “well, we wouldn’t have gotten the loan,” and
she told McGinley there was no need to include the loan in the
refinancing application because it was not listed on the original
loan application. Marc submitted excerpts from Karen’s
deposition in which she inconsistently testified that she told the
loan officer about the loan, but the loan officer filled out the
application and she presumed “they didn’t care” about the family
loan because “[t]hey asked me questions and they said that they
weren’t going to include it for the same reason [the original

11
lender] didn’t include it, and it seemed reasonable to me to leave
it off. . . . [¶] Since we weren’t making payments at that time
and there was no definitive maturity date.” McGinley declared
that Marc was prepared to prove in the Carter trial that after the
separation, Mari Jo repaid Karen amounts roughly equivalent to
the interest payments Karen had made to her, and he attached
bank records showing Mari Jo had on multiple occasions
endorsed over to Karen the putative interest payment checks
from Karen and Marc’s operating account, which Karen then
deposited into her personal account.
After several rounds of additional briefing and a hearing,
the family court14 on November 15, 2019 issued a detailed order
denying Karen’s special motion to strike. The court concluded
Karen’s alleged conduct did “not fall within the ambit of [Code of
Civil Procedure] § 425.16 or Civ. Code § 47(b) protected activity.”
The court reasoned, “the essence of [Karen’s] alleged activity is
that of colluding with her mother to transfer $650,000 from
community assets, controlled by [Karen], to her mother in a
secret agreement without informing [Marc],” and “the alleged
conduct could have occurred without the existence of litigation.”
The court further found Marc had made a “minimal showing of
likelihood of success” on his claim because “a reasonable trier of
fact could conclude that [Karen] intentionally breached her
fiduciary duty under Family Code [section] 1011 by colluding
with her mother to settle her mother’s claim causing a detriment
to the community property assets of $650,000 of which [Marc]
had a one half interest.”

14 Judge Helen Zukin presided over the family court
proceedings on Marc’s section 1101 claim and Karen’s special
motion to strike.

12
 Karen filed a motion for reconsideration, asserting the
court erred in finding that the anti-SLAPP statute did not apply
to Marc’s section 1101 claim; her conduct was protected by the
litigation privilege; and the court’s factual findings concerning
Karen’s payments were contrary to the family court’s approval of
Karen’s accounting in which she characterized the payments as
interest. The family court denied Karen’s motion on the grounds
she failed to set forth new law, facts, or circumstances, but on its
own motion and “upon further reflection,” the court reconsidered
its prior order.
In a 13-page tentative decision, which the family court
adopted as its final order on April 3, 2020, the court held that
Code of Civil Procedure section 425.16 applied to Marc’s section
1101 claim because his allegations involved Karen’s activity “in
pleadings, statements and writings ‘in connection with’
litigation,” and Marc did not show that Karen’s conduct was
illegal. Considering the merits of Marc’s claim, the court again
concluded Marc presented prima facie evidence that Karen
breached her fiduciary duty to him by colluding with Mari Jo to
settle the Carter action to cause detriment to community
property. Nonetheless, the court found Marc did not have a
reasonable chance of prevailing on the section 1101 claim because
Karen’s alleged conduct “falls squarely within the litigation
privilege” because her “settlement communications and the
signing of the settlement agreement were made in a judicial
proceeding in which she was a litigant [and] [h]er conduct was
intended to achieve the objective of resolving the Centre Pointe
property dispute with her mother . . . .” Absent evidence of illegal
conduct, the court found the litigation privilege applied
regardless of collusion. Concluding the anti-SLAPP statute

13
applied and the litigation privilege immunized Karen’s conduct,
the court granted Karen’s special motion to strike.
Marc timely appealed.

DISCUSSION

A. Special Motions To Strike
“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 the United States Constitution or the 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.” (Code Civ. Proc., § 425.16,
subd. (b)(1); see Wilson v. Cable News Network, Inc. (2019)
7 Cal.5th 871, 884 (Wilson).) An “‘act in furtherance of the
person’s right of petition or free speech’” includes, in relevant
part, “any written or oral statement or writing made before a
legislative, executive, or judicial proceeding, or any other official
proceeding authorized by law” (Code Civ. Proc., § 425.16,
subd. (e)(1)) and “any written or oral statement or writing made
in connection with an issue under consideration or review by a
legislative, executive, or judicial body, or any other official
proceeding authorized by law” (id., subd. (e)(2)). (See Rusheen v.
Cohen (2006) 37 Cal.4th 1048, 1056 (Rusheen) [“‘Any act’ includes
communicative conduct such as the filing, funding, and
prosecution of a civil action.”].)
“Courts ‘have adopted a fairly expansive view of what
constitutes litigation-related activities within the scope of [Code
of Civil Procedure] section 425.16.’” (O&C Creditors Group, LLC

14
v. Stephens & Stephens XII, LLC (2019) 42 Cal.App.5th 546, 566
(O&C Creditors).) “A settlement agreement executed in the
context of active litigation is ‘made in connection with an issue
under consideration or review by a . . . judicial body.’” (Ibid.;
accord, Seltzer v. Barnes (2010) 182 Cal.App.4th 953, 963
[“[S]ettlement negotiations are an exercise of the right to petition
and statements made as part of such negotiations are in
connection with the underlying lawsuit for purposes of section
425.16, subdivision (e)(2).”]; see Navellier v. Sletten (2002)
29 Cal.4th 82, 90 [negotiation and execution of a litigation release
involved activities within Code Civ. Proc., § 425.16, subd. (e)(2)].)
Analysis of a special motion to strike involves a two-step
process. (Bonni v. St. Joseph Health System (2021) 11 Cal.5th
995, 1009 (Bonni); accord, Wilson, supra, 7 Cal.5th at p. 884.)
“First, the defendant must establish that the challenged claim
arises from activity protected by [Code of Civil Procedure] section
425.16. [Citation.] If the defendant makes the required showing,
the burden shifts to the plaintiff to demonstrate the merit of the
claim by establishing a probability of success.” (Baral v. Schnitt
(2016) 1 Cal.5th 376, 384-385 (Baral); accord, Bonni, at p. 1009.)
“‘“Only a cause of action that satisfies both prongs of the anti-
SLAPP statute . . . is a SLAPP, subject to being stricken under
the statute.”’” (Barry v. State Bar of California (2017) 2 Cal.5th
318, 321; accord, Towner v. County of Ventura (2021)
63 Cal.App.5th 761, 769.) Thus, reviewing courts have
occasionally bypassed the first-prong analysis where the plaintiff
has satisfied its burden on the second prong. (See, e.g., Oasis
West Realty, LLC v. Goldman (2011) 51 Cal.4th 811, 820 [“[W]e
will proceed in these particular circumstances directly to the
second prong, inasmuch as we have readily found that [plaintiff]

15
has demonstrated a probability of prevailing on its claims.”];
Grewal v. Jammu (2011) 191 Cal.App.4th 977, 988-989
[“We . . . determine only step two: whether plaintiff met the
burden imposed on him. And easily conclude that he did.”].)
As to the first step of the analysis, “[a] claim arises from
protected activity when that activity underlies or forms the basis
for the claim.” (Park v. Board of Trustees of California State
University (2017) 2 Cal.5th 1057, 1062 (Park); accord, City of
Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) “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.” (Navellier v. Sletten, supra,
29 Cal.4th at p. 92; accord, Baral, supra, 1 Cal.5th at p. 393; see
Peregrine Funding, Inc. v. Sheppard Mullin Richter & Hampton
LLP (2005) 133 Cal.App.4th 658, 671 [“Because conduct that is
alleged to be a breach of duty . . . may also fall within the class of
constitutionally protected speech or petitioning activity, a court
considering a special motion to strike must examine the allegedly
wrongful conduct itself, without particular heed to the form of
action within which it has been framed.”].) “[I]n 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
p. 1063; accord, Bonni, supra, 11 Cal.5th at p. 1009.) “The
defendant’s burden is to identify what acts each challenged claim
rests on and to show how those acts are protected under a
statutorily defined category of protected activity.” (Bonni, at
p. 1009.)

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 “[A] claim is not subject to a motion to strike simply
because it contests an action or decision that was arrived at
following speech or petitioning activity, or that was thereafter
communicated by means of speech or petitioning activity.
Rather, a claim may be struck only if the speech or petitioning
activity itself is the wrong complained of, and not just evidence of
liability or a step leading to some different act for which liability
is asserted.” (Park, supra, 2 Cal.5th at p. 1060; accord, Wilson,
supra, 7 Cal.5th at p. 884.) “Assertions that are ‘merely
incidental’ or ‘collateral’ are not subject to [Code of Civil
Procedure] section 425.16. [Citations.] Allegations of protected
activity that merely provide context, without supporting a claim
for recovery, cannot be stricken under the anti-SLAPP statute.”
(Baral, supra, 1 Cal.5th at p. 394; see Aguilar v. Goldstein (2012)
207 Cal.App.4th 1152, 1160 [“‘If the mention of protected activity
is “only incidental to a cause of action based essentially on
nonprotected activity,” then the anti-SLAPP statute does not
apply.’”].)
“As to the second step, a plaintiff seeking to demonstrate
the merit of the claim ‘may not rely solely on its complaint, even
if verified; instead, its proof must be made upon competent
admissible evidence.’” (Monster Energy Co. v. Schechter (2019)
7 Cal.5th 781, 788 (Monster Energy); Code Civ. Proc., § 425.16,
subd. (b)(2) [“In making its determination, the court shall
consider the pleadings, and supporting and opposing affidavits
stating the facts upon which the liability or defense is based.”].)
“‘We have described this second step as a “summary-judgment-
like procedure.” [Citation.] 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

17
made a prima facie factual showing sufficient to sustain a
favorable judgment. It accepts the plaintiff’s evidence as true,
and evaluates the defendant’s showing only to determine if it
defeats the plaintiff’s claim as a matter of law.’” (Monster
Energy, at p. 788.) Similarly, “[w]hen evaluating an affirmative
defense in connection with the second prong of the analysis of an
anti-SLAPP motion, the court, following the summary-judgment-
like rubric, generally should consider whether the defendant’s
evidence in support of an affirmative defense is sufficient, and if
so, whether the plaintiff has introduced contrary evidence, which,
if accepted, would negate the defense.”15 (Bentley Reserve LP v.
Papaliolios (2013) 218 Cal.App.4th 418, 434.)

15 As the Court of Appeal in Dickinson v. Cosby (2017)
17 Cal.App.5th 655, 683 observed, appellate courts have reached
different conclusions as to which party bears the burden of proof
of an affirmative defense in the anti-SLAPP context. In Peregrine
Funding, Inc. v. Sheppard Mullin Richter & Hampton LLP,
supra, 133 Cal.App.4th at page 676, the court held that “although
[Code of Civil Procedure] section 425.16 places on the plaintiff the
burden of substantiating its claims, a defendant that advances an
affirmative defense to such claims properly bears the burden of
proof on the defense.” However, in Feldman v. 1100 Park Lane
Associates (2008) 160 Cal.App.4th 1467, 1485, the court
characterized the litigation privilege under Civil Code section 47,
subdivision (b) as “‘a substantive defense a plaintiff must
overcome to demonstrate a probability of prevailing.’” We do not
reach this issue here, as the applicability of the litigation
privilege turns on undisputed facts demonstrated in both parties’
submissions. (See Dickinson, at p. 683 [“What is important is
that, regardless of the burden of proof, the court must determine
whether plaintiff can establish a prima facie case of prevailing, or
whether defendant has defeated plaintiff’s evidence as a matter
of law.”].)

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 We review de novo the grant or denial of a special motion to
strike, “evaluating the context and content of the asserted
activity.” (Wilson, supra, 7 Cal.5th at pp. 884-885; accord, Park,
supra, 2 Cal.5th at p. 1067.) “We exercise independent judgment
in determining whether, based on our own review of the record,
the challenged claims arise from protected activity. [Citations.]
In addition to the pleadings, we may consider affidavits
concerning the facts upon which liability is based.” (Park, at
p. 1067.)

B. We Do Not Reach Whether Marc’s Section 1101 Claim
Arises from Protected Activity
Section 721, subdivision (b), provides in relevant part that
“spouses are subject to the general rules governing fiduciary
relationships that control the actions of persons occupying
confidential relations with each other. This confidential
relationship imposes a duty of the highest good faith and fair
dealing on each spouse, and neither shall take any unfair
advantage of the other.” Section 1100 provides further that
“[e]ach spouse shall act with respect to the other spouse in the
management and control of the community assets and liabilities
in accordance with the general rules governing fiduciary
relationships which control the actions of persons having
relationships of personal confidence as specified in [s]ection 721,
until such time as the assets and liabilities have been divided by
the parties or by a court. This duty includes the obligation to
make full disclosure to the other spouse of all material facts and
information regarding the existence, characterization, and
valuation of all assets in which the community has or may have

19
an interest and debts for which the community is or may be
liable . . . .” (§ 1100, subd. (e).)
Section 1101, subdivision (a), establishes a claim for
damages for breach of a spouse’s fiduciary duty: “A spouse has a
claim against the other spouse for any breach of the fiduciary
duty that results in impairment to the claimant spouse’s present
undivided one-half interest in the community estate, including,
but not limited to, a single transaction or a pattern or series of
transactions, which transaction or transactions have caused or
will cause a detrimental impact to the claimant spouse’s
undivided one-half interest in the community estate.”
Section 1101, subdivisions (g) and (h), provide as remedies that
the claimant spouse may recover 50 percent of the undisclosed or
transferred asset, or 100 percent of the asset in cases of malice,
oppression, or fraud.
Marc’s section 1101 claim alleges Karen caused the
community to be liable for $650,000 by entering into the
stipulated judgment with Mari Jo on the eve of trial after Marc
gave notice he intended to move ex parte to intervene back into
the Carter action, even though Marc was ready to defend against
Mari Jo’s claims. Karen’s alleged intent in settling the lawsuit in
this manner was to secure a claim to the equity in Centre Pointe,
but it was Karen’s settlement-related conduct that constituted
the primary vehicle by which she achieved this result. Thus,
arguably, Karen’s settlement-related “activity itself is the wrong
complained of, and not just evidence of liability or a step leading
to some different act for which liability is asserted.” (Park, supra,
2 Cal.5th at p. 1060; accord, Wilson, supra, 7 Cal.5th at p. 884.)
Further, it is well-settled that negotiation and execution of a
settlement agreement are petitioning activities under Code of

20
Civil Procedure section 425.16. (Navellier v. Sletten, supra,
29 Cal.4th at p. 90 [fraud claims based on defendant’s negotiation
and execution of release fell within scope of anti-SLAPP statute];
O&C Creditors, supra, 42 Cal.App.5th at p. 566 [“A settlement
agreement executed in the context of active litigation is ‘made in
connection with an issue under consideration or review by a . . .
judicial body.’”]; Seltzer v. Barnes, supra, 182 Cal.App.4th at
p. 963 [settlement negotiations fall within scope of anti-SLAPP
statute].)
Marc responds that his claim is based on Karen’s
“concocting and carrying out a scheme” to deprive Marc of his
community interest in Centre Pointe, a scheme that could have
been consummated by other means. Relying on the Supreme
Court’s decision in Park, supra, 2 Cal.5th 1057, Marc implicitly
argues Karen’s settlement-related conduct is not the violation at
the heart of his section 1101 claim, but instead “evidence of
liability or a step leading to some different act for which liability
is asserted.” (Park, supra, 2 Cal.5th at p. 1060.) In Park, the
Supreme Court held that a university professor’s claim under the
Fair Employment and Housing Act (Gov. Code, § 12900 et seq.)
alleging the university denied him tenure on the basis of his
national origin did not arise from the university’s protected
communications leading up to and following the tenure decision.
(Park, at p. 1061.) The court concluded the elements of the
professor’s discrimination claim “depend not on the grievance
proceeding, any statements, or any specific evaluations of him in
the tenure process, but only on the denial of tenure itself and
whether the motive for that action was impermissible. The
tenure decision may have been communicated orally or in
writing, but that communication does not convert [professor’s]

21
suit to one arising from such speech. . . . Plaintiff could have
omitted allegations regarding communicative acts or filing a
grievance and still state the same claims.’” (Id. at p. 1068.)
Unlike in Park, however, it is not clear how Marc could have
stated a section 1101 claim without alleging the basis for his
claim—that Karen entered the collusive settlement without
Marc’s knowledge or consent.
We need not decide if Marc’s claim arises from protected
activity because “‘“[o]nly a cause of action that satisfies both
prongs of the anti-SLAPP statute . . . is a SLAPP, subject to being
stricken under the statute.”’” (Barry v. State Bar of California,
supra, 2 Cal.5th at p. 321; see Oasis West Realty, LLC v.
Goldman, supra, 51 Cal.4th at p. 820.) As discussed below, Marc
has demonstrated a probability of succeeding on the merits of his
section 1101 claim, and accordingly, the family court erred in
sustaining Karen’s special motion to strike.

C. Marc Demonstrated a Probability of Success on the Merits
of His Claim
1. Marc made a prima facie showing Karen breached her
fiduciary duties under the Family Code
Assuming Marc’s section 1101 claim arose from Karen’s
protected activity, Marc bore the burden to make “a prima facie
factual showing sufficient to sustain a favorable judgment” on his
claim to defeat Karen’s special motion to strike. (Monster Energy,
supra, 7 Cal.5th at p. 788.) Although the family court ultimately
granted Karen’s motion to strike on the basis of the litigation
privilege, it found that “given the evidence submitted herein, a
reasonable trier of fact could conclude that [Karen] intentionally
breached her fiduciary duty under Family Code [section] 1101 by

22
colluding with her mother to settle her mother’s claim causing a
detriment to the community property assets . . . .” We agree
Marc made a prima facie showing of Karen’s breach of her
fiduciary duty.
From the outset of the Carter action, Karen did not
challenge Mari Jo’s claims. In her verified answer, Karen
admitted she and Marc had an oral interest-bearing loan
agreement with her parents on the precise terms alleged by Mari
Jo and that Marc breached the agreement by rebuffing Mari Jo’s
demand for repayment of the $600,000 principal and $126,500 in
interest. Marc actively defended the case from the filing of his
answer to the eve of trial, asserting that Karen’s parents
provided a gift of $600,000 to Karen and Marc for the purchase of
Centre Pointe. As Marc and McGinley stated in their
declarations, Marc was ready for trial and did not want to settle
with Mari Jo for nearly 90 cents on the dollar. Yet Mari Jo
dismissed Marc on the Thursday afternoon before the Monday
trial date, and shortly after McGinley gave notice on Friday
morning of his intent to seek an ex parte order the following
Monday allowing Marc to intervene back into the Carter action,
Karen and Mari Jo executed and filed the stipulated judgment for
nearly the full amount of Mari Jo’s claim.16 Marc declared Karen

16 Marc’s dismissal from the Carter action also prevented him
from appealing from the judgment. (See BRE DDR BR
Whittwood CA LLC v. Farmers & Merchants Bank of Long Beach
(2017) 14 Cal.App.5th 992, 998, fn. 3 [“Only a party aggrieved by
the judgment has standing to appeal.”]; Code Civ. Proc., § 902
[“Any party aggrieved may appeal in the cases prescribed in this
title.”]; see also County of Alameda v. Carleson (1971) 5 Cal.3d
730, 736 [“one who is denied the right to intervene in an action
ordinarily may not appeal from a judgment subsequently entered

23
announced her desire to proceed with the sale of Centre Pointe
upon the conclusion of the Carter action, and Mari Jo recorded an
abstract of judgment, supporting Marc’s assertion Mari Jo
intended to collect the judgment by levying against the proceeds
from the sale. Marc also produced copies of cashed checks
written after the couple’s separation that purportedly were to pay
Mari Jo interest but were endorsed to Karen and deposited in her
bank account.
In support of her special motion to strike, Karen declared
that she and Marvin agreed the $600,000 amount was an
interest-bearing loan, and she submitted evidence of payments,
albeit sporadic and variable, to Mari Jo and Marvin. But as
discussed, we do not weigh evidence or resolve conflicting factual
claims in deciding whether a plaintiff has made a prima facie
claim as part of the second step of the anti-SLAPP analysis.
(Monster Energy, supra, 7 Cal.5th at p. 788.) And regardless of
whether Marc had a successful defense of the Carter action, Marc
made a showing that Karen engaged in conduct inconsistent with
the “duty of the highest good faith and fair dealing on each
spouse [that] neither shall take any unfair advantage of the
other” (§ 721, subd. (b)), and further, that “in the management
and control of the community assets and liabilities” Karen failed
to “make full disclosure . . . of all material facts and information
regarding the existence, characterization, and valuation of all

in the case”].) However, Marc could have appealed from the order
denying his request to intervene, and he could alternatively have
“‘become a party of record and obtain a right to appeal by moving
to vacate the judgment or order pursuant to section 663.’”
(Marsh v. Mountain Zephyr, Inc. (1996) 43 Cal.App.4th 289, 295;
County of Alameda, at p. 736.)

24
[community assets] . . . and debts for which the community is or
may be liable.” (§ 1100, subd. (e)). In short, Marc demonstrated
sufficient merit to his claim through competent, admissible
evidence to survive a special motion to strike. (Monster Energy,
at p. 788.)

2. The litigation privilege does not bar Marc’s
section 1101 claim
Marc contends the family court erred in finding the
litigation privilege applied to his section 1101 claim, arguing
Karen’s alleged conduct was not communicative, and the
litigation privilege “does not exempt a spouse from the
consequences of a breach of fiduciary duty.” He also argues that
“[a]pplying the litigation privilege to Karen’s scheme to
misappropriate the Centre Pointe property would make Family
Code sections 721 and [1101] meaningless.” We agree that under
the circumstances here, Karen’s breaches of fiduciary duty were
substantially noncommunicative and thus not shielded by the
litigation privilege.
Civil Code section 47 provides in relevant part, “A
privileged publication or broadcast is one made: [¶] . . . [¶] (b)
[i]n any . . . judicial proceeding, [or] . . . in any other official
proceeding authorized by law. . . .” (Civ. Code, § 47, subd. (b).)
“‘The principal purpose of [the litigation privilege] is to afford
litigants . . . the utmost freedom of access to the courts without
fear of being harassed subsequently by derivative actions.’”
(Action Apartment Assn., Inc. v. City of Santa Monica (2007)
41 Cal.4th 1232, 1241; accord, Trinity Risk Management, LLC v.
Simplified Labor Staffing Solutions, Inc. (2021) 59 Cal.App.5th
995, 1006.) The privilege “‘applies to any communication (1)

25
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.’” (Rusheen, supra, 37 Cal.4th at p. 1057;
accord, Trinity Risk Management, at pp. 1006-1007.) The
privilege is “not limited to statements made during a trial or
other proceedings, but may extend to steps taken prior thereto, or
afterwards.” (Rusheen, at p. 1057; Trinity Risk Management, at
p. 1007.) The privilege has “an expansive reach,” and the only
exception in tort law is a claim for malicious prosecution. (Rubin
v. Green (1993) 4 Cal.4th 1187, 1194.) The privilege exists “‘not
because we desire to protect the shady practitioner, but because
we do not want the honest one to have to be concerned with
[subsequent derivative] actions.’ [Citation.] . . . Thus, the
‘salutary policy reasons for an absolute [litigation] privilege
supersede individual litigants’ interests in recovering damages
for injurious publications made during the course of judicial
proceedings.’” (Rusheen, at p. 1064.)
However, “[b]ecause the litigation privilege protects only
publications and communications, a ‘threshold issue in
determining the applicability’ of the privilege is whether the
defendant’s conduct was communicative or noncommunicative.
[Citation.] The distinction between communicative and
noncommunicative conduct hinges on the gravamen of the action.
[Citations.] That is, the key in determining whether the privilege
applies is whether the injury allegedly resulted from an act that
was communicative in its essential nature.” (Rusheen, supra,
37 Cal.4th at p. 1058; accord, Aghaian v. Minassian (2020)
59 Cal.App.5th 447, 457 (Aghaian).) “The ‘[p]leadings and
process in a case are generally viewed as privileged

26
communications.’” (Rusheen, at p. 1058 [litigation privilege
applies to abuse of process claim alleging filing of perjurious
testimony or declarations]; accord, Chen v. Berenjian (2019)
33 Cal.App.5th 811, 820-821 (Chen) [acts of filing sham complaint
and agreeing to stipulated judgment were communicative, but
gravamen of fraudulent transfer claim effectuated through the
sham settlement was not].)
The central allegation of Marc’s section 1101 claim is that
Karen subjected the community estate to a $650,000 judgment in
favor of Mari Jo by secretly executing a settlement with Mari Jo
before Marc could request to intervene back into the Carter action
to defend the case. Had Marc instead alleged Karen entered a
settlement that impaired community property based on her bona
fide but incorrect belief the case was indefensible, his claim
would arise solely from a communicative act—Karen’s entry into
a settlement agreement. But this is not the gravamen of Marc’s
claim. Rather, as Marc argued in the family court, his claim was
based on Karen’s use of the Carter litigation as a vehicle to
impair Marc’s community property interest in Centre Pointe by
having Marc dismissed from the action knowing he intended to
defend the case at trial, then entering into an eleventh-hour
settlement and stipulated judgment that gave Mari Jo a
judgment enforceable against Centre Pointe for essentially all its
value, in a manner calculated to deny Marc of a meaningful
opportunity to protect his interest. (See § 721, subd. (b) [Karen
owed fiduciary duty to Marc as her spouse “of the highest good
faith and fair dealing”], § 1100, subd. (e) [Karen owed Marc with
respect to “management and control of the community assets” a
duty “to make full disclosure . . . of all material facts and
information” regarding community assets and liabilities].) Thus,

27
the gravamen of Marc’s claim was Karen’s noncommunicative
conduct in coordinating with Mari Jo, a nominally adverse party,
to impair Marc’s community property interest, even though part
of the scheme involved entry of the settlement, a communicative
act.
Marc relies on the Court of Appeal decisions in Chen,
supra, 33 Cal.App.5th at page 815 and Aghaian, supra,
59 Cal.App.5th at page 458, in which the courts concluded the
litigation privilege does not immunize schemes that use a
litigation settlement to effectuate asset transfers in violation of
the Uniform Voidable Transactions Act (Civ. Code, § 3439 et seq.;
UVTA). In Chen, a judgment creditor who had obtained
judgments for more than $90,000 in undelivered electronics filed
a claim under the UVTA against the judgment debtor and the
debtor’s brother alleging the debtor and his brother agreed the
brother would file a lawsuit against the debtor, obtain a default
judgment, and enter a lien against the debtor’s assets. (Chen, at
p. 815.) The brother filed the lawsuit based on false allegations
and entered a stipulated judgment with the debtor for
approximately $200,000; the brother later levied on two stereo
speakers held by the debtor, and the debtor transferred other
assets to his brother, all to defeat the creditor’s claims. (Id. at
pp. 815-816.) The Court of Appeal concluded the litigation
privilege did not protect the conduct of the debtor and his brother
because “the acts causing injury to [the creditor] were the
agreement to defraud him and the transfer of the [property] from
[the creditor to his brother] by means of executing on [the
brother’s] judgment.” (Id. at p. 821.) Further, “[t]he acts of filing
the sham complaint and agreeing to the stipulated judgment,
though communicative in nature, were not the gravamen of [the

28
creditor’s] fraudulent transfer cause of action. . . . [The brother’s]
levy was the allegedly voidable transfer producing the injury and
was, therefore, the gravamen of the cause of action for fraudulent
conveyance.” (Ibid.)
In Aghaian, supra, 59 Cal.App.5th at page 452, the
plaintiffs filed claims under the UVTA alleging that the
defendant Shahen and his wife of over 50 years, with the
assistance of their son, “‘concocted’ a ‘scheme . . . to hinder, delay
or defraud Shahen’s creditors, particularly [p]laintiffs, by putting
[Shahen and his wife’s] two houses . . . into [the wife’s] name
only, and thereby making it more difficult for [p]laintiffs to levy
on them.’” To accomplish this scheme, Shahen and his wife filed
a fraudulent petition for marital dissolution (they never
separated), and with their son acting as Shahen’s guardian ad
litem, stipulated to a judgment in the dissolution action
allocating ownership of the houses to the wife and any obligation
to pay a judgment in plaintiffs’ pending lawsuit to Shahen. (Id.
at pp. 452-453.) The Court of Appeal concluded that the
gravamen of plaintiffs’ allegations was that Shahen and his wife,
with their son’s aid, “used the dissolution judgment to authorize
and justify Shahen’s transfer of the . . . properties to [his wife].
As in Chen, it is the transfer of the property, not the sham
judicial proceedings used to provide legal cover for the transfer,
that constitutes the gravamen of the action.” (Aghaian, at
p. 458.) So too in this case, the gravamen of Marc’s section 1101
claim is that Karen’s settlement with Mari Jo was a sham vehicle
designed to impair Marc’s community property interest in Centre
Pointe.17

17 We recognize there is some tension between our holding as
to the second prong that the gravamen of Marc’s claim is

29
 Karen contends the facts of this case are more akin to those
of Rusheen, supra, 37 Cal.4th 1048, than Chen or Aghaian. In
Rusheen, the defendant alleged in a cross-complaint against the
plaintiff’s attorney that the attorney committed an abuse of
process by filing false declarations of service to obtain and
execute on a default judgment against the defendant. (Id. at
pp. 1053-1054.) The trial court granted the attorney’s special
motion to strike, which the Court of Appeal reversed. (Id. at
pp. 1054-1055.) The Supreme Court held the Court of Appeal
erred in concluding as to the second prong of the anti-SLAPP
analysis that the litigation privilege did not apply, explaining,
“[S]ince a party may not be liable for submitting false testimony
or evidence in the course of judicial proceedings which are used to
obtain a judgment, the party should likewise be immune from
abuse of process claims for subsequent acts necessary to enforce
it. . . . Thus, where the gravamen of the complaint is a privileged
communication (i.e., allegedly perjured declarations of service)
the privilege extends to necessarily related noncommunicative
acts (i.e., act of levying).” (Id. at p. 1062)

noncommunicative conduct by Karen, and Karen’s argument as
to the first prong that Marc’s claim arises from her settlement-
related conduct. But as the Supreme Court held in Flatley v.
Mauro (2006) 39 Cal.4th 299, 322, “the litigation privilege and
the anti-SLAPP statute are substantively different statutes that
serve quite different purposes.” As Flatley explained, “The
former enshrines a substantive rule of law that grants absolute
immunity from tort liability for communications made in relation
to judicial proceedings [citation]; the latter is a procedural device
for screening out meritless claims.” (Id. at p. 324.)

30
 Rusheen is distinguishable. There, the Court of Appeal
concluded the gravamen of the cross-complaint was a conspiracy
to enforce the judgment (a noncommunicative act) that had been
obtained by use of perjured declarations of service. (Rusheen,
supra, 37 Cal.4th at pp. 1061-1062.) But the operative cross-
complaint had abandoned a conspiracy claim, leaving only the
filing of the perjured declarations of service as the allegedly
wrongful conduct. (Id. at p. 1062.) Thus, as the Supreme Court
concluded, the gravamen of the action was the procurement of the
judgment based on the perjured declarations, a communicative
act, with the levying on the judgment being a “necessarily related
noncommunicative act[].” (Ibid.) By contrast, like the transfers
in Aghaian and Chen, Marc’s claims were based on Karen’s
scheme to expropriate Marc’s community interest in Centre
Pointe, a noncommunicative act, although the vehicle used to
achieve the transfer of Marc’s interest was communicative (the
eleventh-hour collusive settlement). As the Court of Appeal
explained in Chen, “Levying on property as part of a scheme to
defeat a creditor’s rights in violation of the UVTA is not
communicative conduct; therefore, extending the litigation
privilege to such conduct advances none of the privilege’s
purposes.” (Chen, supra, 33 Cal.App.5th at p. 822.) Section 1101,
like the UVTA, focuses on a spouse’s conduct to deprive the other
spouse of his or her share in community property, regardless of
the means employed to achieve it. (See §1101, subd. (a)
[authorizing a “claim against the other spouse for any breach of
the fiduciary duty that results in impairment to the claimant
spouse’s . . . interest in the community estate”].) Thus, Marc
stated a prima facie claim under section 1101, regardless of the
particular means Karen employed to impair Marc’s interest.

31
 DISPOSITION

The family court order granting Karen’s special motion to
strike is reversed. The cause is remanded to the family court
with directions to enter an order denying the motion. Marc is to
recover his costs on appeal.

FEUER, J.
We concur:

SEGAL, J., Acting P.J.

IBARRA, J.*

* Judge of the Santa Clara County Superior Court, assigned
by the Chief Justice pursuant to article VI, section 6 of the
California Constitution.

32