Filed 8/22/22 Urick v. Greenspoon Marder CA2/5
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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA
SECOND APPELLATE DISTRICT
DIVISION FIVE
DANA URICK et al., B313277
Plaintiffs and Respondents, (Los Angeles County
Super. Ct. No. 20STCV49933)
v.
GREENSPOON MARDER LLP et
al.,
Defendants and Appellants.
APPEAL from an order of the Superior Court of Los
Angeles, Maureen Duffy-Lewis, Judge. Affirmed.
Greenspoon Marder, John H. Pelzer and Germain D. Labat
for Defendants and Appellants.
Ulwelling Law, James K. Ulwelling and Lauren E. Saint
for Plaintiffs and Respondents.
_______________________________
Former trustee Dana Urick brought an action individually
and as guardian ad litem for her son Trentyn M. Urick-Stasa
against her former attorneys, James H. Turken and the law firm
Greenspoon Marder LLP (collectively Greenspoon).1 The
complaint contained causes of action for professional negligence,
breach of contract, and interference with prospective economic
advantage based on allegations that the legal services provided
by Greenspoon to Dana as trustee resulted in her removal as
trustee and the potential disinheritance of Dana and Trentyn as
beneficiaries. Greenspoon filed a special motion to strike under
Code of Civil Procedure section 425.16 (the anti-SLAPP statute),
which the trial court denied.2
On appeal from the order denying the anti-SLAPP motion,
Greenspoon contends the claims are based on speech and
litigation activities taken on behalf of the trustee, which are
protected by the anti-SLAPP statute because the attorneys owed
no duty to Dana as an individual or to the beneficiaries of the
trust. We conclude the wrongful conduct alleged in the complaint
is the breach of duties owed to Dana as a client, which resulted in
damages to her personally, and the breach of duties owed to Dana
and Trentyn as third-party beneficiaries, by providing legal
advice and services below the standard of care. A breach of
professional duties arising from an attorney-client relationship is
not protected conduct under the anti-SLAPP statute, even when
1 Because multiple parties share the last name Urick, they
will be referred to by their first names for ease of reference.
2 SLAPP is an acronym for “Strategic Lawsuits Against
Public Participation.” (Equilon Enterprises v. Consumer Cause,
Inc. (2002) 29 Cal.4th 53, 57, fn. 1.) All further statutory
references are to the Code of Civil Procedure unless otherwise
stated.
2
it is related to speech and petitioning activity. Because the
alleged conduct is not protected, we do not reach the second step
of the anti-SLAPP analysis to determine whether the claims have
minimal merit, including whether Greenspoon owed duties to
Dana or Trentyn under the circumstances of this case. Therefore,
we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
Summary of Background Facts 3
Allyne L. Urick created the Allyne L. Urick Trust in 2013,
which she fully restated in 2014. (Urick 1, supra, 15 Cal.App.5th
at pp.1186–1187.) The trust provided upon Allyne’s death for
annuity payments over a specified period of time to her son Willis
E. Urick III, her daughter Dana, and her grandson Trentyn. The
remainder was to be distributed to Phillips Academy Andover.
The trust’s primary asset was an apartment building held in a
joint venture with Lucien Seifert. When Allyne passed away in
2015, Dana was appointed as the successor trustee.
Dana engaged a law firm which filed a petition on February
16, 2016, to reform the trust. The attorney caption and the
attorney signature block did not specify whether the attorneys
represented Dana individually, in her capacity as trustee, or
3 On its own motion, the court takes judicial notice of the
record and the published opinion in Urick v. Urick (2017) 15
Cal.App.5th 1182 (Urick 1), as well as the unpublished opinions
in Urick v. Boykin (March 23, 2020, B295773), Urick v. Elkins
Kalt Weintraub Reuben Gartside, LLP (November 18, 2021,
B310056), and Urick v. Lewitt (May 23, 2022, B312238).
3
both. The body of the petition stated the petitioner was “Dana
Urick, Trustee of The Allyne L. Urick Trust.” Dana signed a
verification of the petition which did not state whether she was
signing the verification individually, as trustee, or both. The
proposed reformation eliminated Willis’s interest in the trust and
substantially reduced the likelihood that Phillips Academy would
receive any assets from the trust. Although the proposed
reformation benefited Trentyn, he did not expressly file or join in
the petition.
In May 2016, Willis filed a petition for instructions as to
whether the reformation petition violated the no contest clause of
the trust, as well as a petition to remove and surcharge Dana as
trustee (collectively the trust proceedings). In response to the no
contest petition, Dana, as trustee, filed an anti-SLAPP motion,
which the trial court granted. Willis filed an appeal.
In October 2017, this appellate court reversed the order
denying the anti-SLAPP motion in the trust proceedings. (Urick
1, supra, 15 Cal.App.5th p. 1186.) We concluded the no contest
petition was based on protected litigation activity, but Willis had
demonstrated the minimal merit necessary to proceed if the trier
of fact credited his evidence. Although Dana provided conflicting
evidence from which the trier of fact could find that she filed the
reformation petition in her capacity as a trustee, that the petition
was based on allegations of mistake, and that Dana had a
reasonable basis to believe the petition would be reformed as
proposed, Dana’s evidence did not conclusively establish these
facts as a matter of law, and therefore, the anti-SLAPP motion
had to be denied. (Urick 1, supra, 15 Cal.App.5th at pp. 1196–
1198.)
4
Dana, as trustee, initiated procedures to buy out Seifert’s
interest in the apartment building, but the purchase was not
completed. In November 2017, attorney Mark Boykin, who had
drafted Allyne’s estate plan, filed a lawsuit on behalf of Seifert
against Dana as trustee. Dana engaged a second law firm to file
a cross-complaint on her behalf as trustee against Seifert
(collectively the Seifert litigation).
In November or December 2017, Dana, as trustee, retained
a third law firm, Elkins Kalt Weintraub Reuben Gartside, LLP,
to provide guidance and legal representation in matters related
to trust administration and litigation concerning the trust,
including the trust proceedings and the Seifert litigation.
In May 2018, the second law firm filed an amended petition
for reformation on behalf of Dana, and a second amended petition
for reformation was filed in July 2018.
In October 2018, Dana retained Greenspoon to represent
her in her capacity as trustee and provide guidance about
fulfilling her fiduciary duties. She clarified in an email that
Greenspoon was representing her as trustee only, because she
had not been sued individually in the Seifert litigation. Although
she had been sued individually in the trust proceedings, she had
individual counsel for those matters already. She agreed that
Greenspoon should be associated in on all matters. She did not
anticipate significant work in the trust proceedings until the
following year, however, and preferred to wait until Greenspoon
had an estate attorney in house.
In February 2019, Elkins Kalt terminated its association as
co-counsel for Dana, as trustee, in the Seifert litigation, leaving
Greenspoon as counsel for the trustee. In May 2019, attorney
Lawrence Lebowsky was appointed guardian ad litem for
5
Trentyn in the trust proceedings only. That same month, Dana,
as trustee, substituted Greenspoon for Elkins Kalt in the trust
proceedings.
Dana withdrew her second amended petition for
reformation in July 2019, on the first day of trial. On January
23, 2020, the probate court granted Willis’s request in the trust
proceedings to suspend Dana as trustee. The court appointed
interim successor trustees from ConservaTrust Fiduciary
Services, Inc. Dana was ordered, individually and as the former
trustee, to provide all necessary information to the interim
successor trustees. Greenspoon had appeared for Dana in her
capacity as trustee, another set of attorneys appeared for Dana in
her individual capacity, and Lebowsky appeared as guardian ad
litem for Trentyn.
Allegations of the Complaint
On December 31, 2020, Dana filed a complaint on behalf of
herself individually and as guardian ad litem for Trentyn against
Greenspoon for professional negligence, breach of contract, and
interference with prospective economic advantage.
The preliminary facts of the complaint alleged that Dana,
in her capacity as trustee, met with and retained Greenspoon in
October 2018 to provide legal services. An attorney-client
relationship was entered into that was partly oral, partly implied,
and partly in writing. Greenspoon provided legal services to
Dana as trustee, or negligently failed to do so, with respect to the
trust proceedings. Greenspoon knew Dana and Trentyn were
beneficiaries of the trust. Greenspoon agreed to competently
provide legal services to Dana as trustee with respect to her
6
involvement in the trust proceedings. The parties intended that
Greenspoon would competently advise Dana of her fiduciary
obligations as trustee and that Greenspoon’s representation
would benefit the beneficiaries of the trust, including Dana and
Trentyn.
A. Dana’s Professional Negligence Count
In the first count for professional negligence, Dana alleged
Greenspoon failed to exercise the degree of skill necessary and
fell below the standard of care for attorneys in the community
based on the following conduct: (1) Greenspoon failed to advise
Dana of the risks of continuing to pursue a petition for
reformation of the trust to her interests as trustee and to her and
Trentyn’s interests as beneficiaries; (2) Greenspoon failed to
advise Dana that her communications with Greenspoon would be
disclosed to a successor trustee if Dana were suspended or
removed, causing disclosure of information that she would not
have disclosed if she had been so advised; (3) Greenspoon failed
to advise Dana of her fiduciary duties as trustee, and acted on
her behalf, including pursuing a petition for reformation, in a
manner that may be held to have violated her fiduciary duties
and disinherit her; (4) Greenspoon’s conduct with respect to the
Seifert litigation resulted in a less lucrative settlement than if
Greenspoon acted competently, leading other trust beneficiaries
to seek a surcharge against Dana; (5) Greenspoon charged fees
for legal work that may not have benefitted the trust, leading to a
potential surcharge against Dana; and (6) Greenspoon pursued
litigation that led to the probate court’s order suspending and
removing Dana as trustee.
7
As counsel for Dana as trustee, Greenspoon owed her a
duty of care, both as trustee and individually, that required
Greenspoon to exercise the knowledge, skill, and ability
ordinarily exercised by similarly situated lawyers. They
negligently acted, and failed to act, as set forth above. It was
foreseeable that failing to exercise ordinary care while
discharging their legal services would cause Dana and Trentyn to
suffer harm. Furthermore, Greenspoon was aware that their
competent performance in providing legal services to Dana would
benefit all of the beneficiaries. Their competent services were the
motivation for Dana as trustee to enter into the agreement for
Greenspoon to provide legal services to her while she was
fulfilling her obligations as trustee.
Dana anticipates she will incur attorney fees and other
damages as a result of Greenspoon’s actions. Dana’s damages
include her suspension and removal as trustee, costing her
hundreds of thousands of dollars per year in lost trustee fees. In
addition, her damages include her potential disinheritance if the
reformation petition is found to have triggered the no contest
clause of the trust, and surcharge for fees paid to Greenspoon by
the trust as well as other beneficiaries’ attorney fees and costs to
respond to Greenspoon’s filings on behalf of Dana as trustee. The
amount of damages that Dana has suffered as a result of
Greenspoon’s actions and inactions is believed to be in excess of
$7.5 million.
B. Trentyn’s Professional Negligence Count
The second count of the complaint alleged professional
negligence against Greenspoon on behalf of Trentyn. Greenspoon
8
and Dana, as trustee, intended Greenspoon’s representation to
benefit the beneficiaries. Greenspoon owed a duty to protect
Trentyn’s interests as a beneficiary, but failed to exercise the
degree of skill necessary and fell below the standard of care for
attorneys in the community.
Trentyn was a third-party beneficiary of Greenspoon’s
contract with Dana as trustee. As a result, Greenspoon owed
Trentyn a duty of care that required Greenspoon to exercise the
knowledge, skill, and ability ordinarily exercised by other
similarly situated lawyers. Greenspoon negligently acted, and
failed to act, breaching their duty of care to Trentyn. Specifically,
Greenspoon’s pursuit of the reformation petition on behalf of
Dana as trustee is the basis of a pending petition to disinherit
Trentyn.
Greenspoon was aware that their competent performance,
by providing legal services to Dana as trustee, would benefit the
beneficiaries, motivating Dana to enter into the retainer
agreement. As a result of Greenspoon’s negligence, Trentyn has
suffered and will further suffer significant damages. The amount
of damages that Trentyn has suffered as a result of Greenspoon’s
actions and inactions is believed to be in excess of $7.5 million.
C. Dana and Trentyn’s Breach of Contract Count
Dana and Trentyn brought a count for breach of contract
alleging Dana entered into a contract with Greenspoon in
October 2018, which is partly in writing and partly oral, for
Greenspoon to act as her counsel with regard to various issues
related to the trust. If not express, then it was implied that
Greenspoon would act in the best interests of the beneficiaries of
9
the trust. As a result, Dana and Trentyn are third-party
beneficiaries of any contract Dana entered into, individually or as
trustee, with Greenspoon. Greenspoon breached the contract by
negligently pursuing the trust proceedings that are the subject of
petitions to disinherit Dana and Trentyn. The amount of
damages that Dana and Trentyn suffered as a result of
Greenspoon’s breach of the contract was also in excess of $7.5
million.
D. Dana and Trentyn’s Count for Interference with
Prospective Economic Advantage
Dana and Trentyn also alleged a count for interference
with prospective economic advantage. Greenspoon was aware
Dana and Trentyn were beneficiaries and would benefit
financially from trust distributions for years. They knew Dana
was trustee, and Trentyn would have an opportunity to act as
trustee in the future. Greenspoon was aware their failure to
competently represent Dana as trustee could cause economic
harm to Dana and Trentyn. Dana individually and Trentyn were
third-party beneficiaries of Dana’s contract as trustee for legal
services. Greenspoon was retained by Dana as trustee to advise
her on fulfilling her fiduciary duties so she could continue serving
as trustee and not face surcharge liability.
Due to Greenspoon’s negligence and breach of contract,
Dana has been suspended as trustee and faces petitions to be
removed as trustee, to surcharge her, and to disinherit her and
Trentyn. Dana’s removal as trustee will cause her to lose the
right to appoint Trentyn as successor trustee. Greenspoon’s
actions resulted in Dana and Trentyn losing the financial
10
benefits which would have flowed to them as trustees and may
result in the lost of their financial benefits as beneficiaries. The
same monetary damages were alleged as in previous counts.
In addition, the complaint sought a determination of the
reasonable value of Greenspoon’s services and return of all
payments in excess of the reasonable value of those services,
costs and attorney fees as permitted.
Anti-SLAPP Motion and Supporting Evidence
On March 24, 2021, Greenspoon filed a special motion to
strike the complaint. Greenspoon argued that Dana engaged
their firm in her capacity as trustee; the complaint did not allege
that Dana or Trentyn engaged the firm for individual
representation. All of the alleged wrongful conduct arose from
legal advice to Dana as trustee and from actions taken in the
trust proceedings, which was protected petitioning activity within
the meaning of the anti-SLAPP statute. In addition, the
litigation privilege barred the claims, and Greenspoon could not
meaningfully defend itself without breaching the attorney-client
privilege now held by the successor trustee.
In support of the anti-SLAPP motion, Greenspoon filed the
declaration of attorney Jayesh Patel. Patel stated that
Greenspoon represented Dana in her capacity as trustee in
connection with the Seifert litigation (Lucien Seifert v. Dana
Urick, Successor Trustee, Urick Family Distribution Trust, LASC
Case No. LC106538, consolidated with Dana Urick v. Lucien
Seifert, LASC Case No. BC687263), the related case The Allyne L.
Urick Trust v. Mark Boykin, LASC Case No. BC696459, and the
11
trust proceedings (In re Allyne L. Urick Trust, LASC Case No.
BP171001).
Dana is a licensed, practicing California attorney. As
trustee, she confirmed the limited scope of Greenspoon’s
representation in her email to the firm. Greenspoon had
represented Dana in her capacity as trustee only, not in her
individual capacity, and as litigation counsel only. Greenspoon
appeared at hearings, attended depositions, and filed papers in
the state cases. At hearings and depositions Dana appeared
individually through separate counsel or did not attend the
hearing in her individual capacity at all.
Furthermore, Greenspoon did not appear on behalf of
Trentyn in any capacity. At all times while Greenspoon provided
services to Dana as trustee, Trentyn had separate counsel and a
court-appointed guardian ad litem other than Dana to represent
his interests.
Opposition to Anti-SLAPP Motion and Supporting
Evidence
In April 2021, Dana and Trentyn filed their opposition to
the anti-SLAPP motion. They argued that actions based on
professional negligence were not subject to the anti-SLAPP
statute, even when the alleged negligence arose in the context of
petitioning activity. Whether Greenspoon owed professional
duties to Dana and Trentyn was an issue related to the merits of
the claim that was not relevant to the first prong of the anti-
SLAPP statute. Similarly, in the event Dana is surcharged for
Greenspoon’s negligent conduct, her claim is similar to an
indemnity action that is not based on protected activity.
12
Dana and Trentyn further argued that even if the anti-
SLAPP statute applied, they could establish a prima facie case
that Greenspoon owed duties to Dana and Trentyn individually.
In addition, Greenspoon owed duties to them as third-party
beneficiaries of the retainer agreement. Their allegations of
negligent interference with prospective advantage was based on
the same duties. Moreover, basic maxims of jurisprudence
required that Greenspoon be held accountable. The litigation
privilege does not apply to legal malpractice actions, they argued,
and the successor trustee had not prevented Greenspoon from
presenting a defense by asserting the attorney-client privilege.
In support of the opposition, Dana submitted her
declaration as to the following facts. In October 2018,
Greenspoon began providing legal representation to her as
trustee in matters related to administration of the trust and trust
litigation. She retained the firm to provide guidance on how to
fulfill her fiduciary duties as trustee for the benefit of the
beneficiaries. Attorney Turken conducted himself in a manner
that voluntarily extended Greenspoon’s professional duties to her
personally and to Trentyn. Turken provided options about the
implications of his advice and strategies to her as trustee on her
and Trentyn’s interests as beneficiaries, although many of these
opinions proved to be erroneous. Turken’s actions have been
cited by Willis and Philips Academy as further grounds to
disinherit Dana and Trentyn as beneficiaries.
Dana retained Greenspoon to advise her about her
potential personal liability as trustee, on which they did advise
her, but failed to do adequately. She had a reasonable belief that
if Greenspoon’s advice and actions could negatively impact the
beneficiaries’ interests or her personal interests in continuing to
13
serve as trustee, they would advise her and take actions to
mitigate these risks, which they did not.
Greenspoon’s breach of duties to Dana and Trentyn, in
Dana’s capacity as trustee and in their individual capacities,
caused damages in the form of attorney fees opposing petitions in
probate court that seek to surcharge her personally for the
attorney fees paid by the trust and costs incurred by Willis and
Philips Academy, to remove her, and to disinherit Dana and
Trentyn based partly on actions taken by, and on the advice of,
Greenspoon.
Specifically, Greenspoon pursued the Seifert litigation on
Dana’s behalf as trustee. In January 2020, the probate court
ruled the Seifert litigation breached Dana’s fiduciary duties as
trustee for which she is now potentially personally liable for
surcharge.
Greenspoon prepared and filed an accounting on Dana’s
behalf as trustee. Willis and Philips Academy had challenged the
accounting, asserting that payments made on behalf of Trentyn
for his education and as compensation for Dana’s services as
trustee breached her duties as trustee. Greenspoon was aware of
the payments but never informed Dana that the payments could
be improper in her capacity as trustee.
Greenspoon also pursued reformation of the trust on her
behalf as trustee which they abandoned on the day of trial. Fees
paid to Greenspoon in connection with the reformation
proceedings are now the subject of a surcharge petition. In
January 2020, the probate court ruled the amended petition for
reformation which Greenspoon pursued on behalf of Dana as
trustee, likely constituted a conflict of interest and was the basis
for her suspension as trustee.
14
The attorneys never informed Dana that her
communications could be discoverable by a successor trustee,
which resulted in disclosure of sensitive information that she
would not have provided in a discoverable manner had she been
appropriately advised. They also failed to adequately advise her
of the nature and scope of her fiduciary duties as trustee
generally, and with regard to specific actions they took on her
behalf as trustee. They failed to strategize, assess, or recommend
alternatives to pursuing the Seifert litigation and the reformation
petition. Attorney Turken advised her to refuse to answer
deposition questions concerning communications with prior
counsel by asserting the attorney-client privilege, potentially
eliminating her ability to assert the defense of good faith reliance
on the advice of counsel in the proceedings to surcharge and
disinherit her.
In addition, Dana and Trentyn provided copies of several
pleadings and orders from litigation related to the trust. They
submitted Willis’s petition seeking to remove Dana as trustee,
surcharge her for breach of trust, obtain reimbursement of
attorney fees and costs paid by the trust, and compel an
accounting. Willis sought to surcharge Dana for attorney fees
expended by the trust for unnecessary litigation that resulted in
undue expense to the trust while she was trustee. Dana and
Trentyn also filed a copy of Willis’s objections to Greenspoon’s
petition for payment of attorney fees and costs. Among other
arguments, Willis argued that Greenspoon’s representation was
ineffective and of no benefit to the trust.
15
Reply and Trial Court Ruling
Greenspoon filed a reply arguing Dana and Trentyn
conceded that the attorneys were hired exclusively as counsel for
the trustee, and as a result, Greenspoon owed no duty to the
beneficiaries, including the former trustee, because it would be a
conflict of interest. Dana and Trentyn had separate counsel
representing their individual interests, and the litigation matters
in which Greenspoon represented the trustee were filed by other
lawyers prior to Greenspoon’s engagement. Dana and Trentyn
had not pled causation or injury, because their damages were
speculative. Lastly, the current trustee had not waived the
attorney-client privilege to allow Greenspoon to refute the claims.
A hearing on the anti-SLAPP motion was held on April 22,
2021. The court took the matter under submission, and issued an
order later that day denying the anti-SLAPP motion on the
ground that Greenspoon had not shown the causes of action arose
from protected activities. Greenspoon filed a timely notice of
appeal from the order.
DISCUSSION
Standard of Review and Statutory Scheme
The Legislature enacted the anti-SLAPP statute to protect
defendants from meritless lawsuits brought primarily to
discourage the defendants from exercising their constitutional
rights to speak and petition on matters of public significance.
(§ 425.16, subd. (a); Bonni v. St. Joseph Health System (2021) 11
Cal.5th 995, 1008–1009 (Bonni).) To accomplish this purpose, the
16
statute authorizes a special motion 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 . . . unless the court determines
that the plaintiff has established that there is a probability that
the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).)
“‘Resolution of an anti-SLAPP motion involves two steps.
First, the defendant must establish that the challenged claim
arises from activity protected by section 425.16. [Citation.]’”
(Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788
(Monster).) In this first step, the court determines the conduct
that the challenged claim arises from and whether that conduct
is protected activity under the statute. (Mission Beverage Co. v.
Pabst Brewing Co., LLC (2017) 15 Cal.App.5th 686, 698.) The
court considers what conduct of the defendant satisfies the
elements of the claim that form the basis for liability.
(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. [Citation.]” (Ibid; Baral v. Schnitt (2016) 1
Cal.5th 376, 396 [“At the first step, the moving defendant bears
the burden of identifying all allegations of protected activity, and
the claims for relief supported by them”].)
“‘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. 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
17
legally sufficient claim and 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. [Citation.] “[C]laims with the requisite minimal
merit may proceed.”’ [Citation.] The grant or denial of an anti-
SLAPP motion is reviewed de novo. [Citation.]” (Monster,
supra, 7 Cal.5th at p. 788.)
In making its determination, the court considers the
pleadings and the evidence submitted in connection with the
proceeding to provide the facts supporting the liability or defense.
(§ 425.16, subd. (b)(2).)
Relationship Between the Parties
Greenspoon contends that all of the claims in the complaint
arise from speech and petitioning activities taken on behalf of
Dana as trustee. The conduct is protected under the anti-SLAPP
statute, they argue, because they did not owe a duty to Dana or
Trentyn as individuals. This contention, however, improperly
conflates the first step of the anti-SLAPP analysis as to whether
a claim is based on protected activity with the second step
considering the merits of the claim. Because the wrongful
conduct alleged in the complaint is not protected under the anti-
SLAPP statute, we do not reach the second step of the analysis.
The anti-SLAPP statute may protect speech and petitioning
activities taken on behalf of another party (Briggs v. Eden
Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1116;
Pech v. Doniger (2022) 75 Cal.App.5th 443, 462), but this
protection does not extend to clients’ claims based on their own
18
attorneys’ speech and petitioning activities on behalf of the
clients (PrediWave Corp. v. Simpson Thatcher & Bartlett LLP
(2009) 179 Cal.App.4th 1204, 1227–1228 (PrediWave)). Clients’
claims based on their attorneys’ speech and petitioning activities
are generally not brought to deter their attorneys from speech
and petitioning conduct on their behalf, but rather to object to the
quality of the attorneys’ performance. (PrediWave, supra, 179
Cal.App.4th at pp. 1227–1228.)
“[T]he mere fact that an action was filed after protected
activity took place does not mean the action arose from that
activity for the purposes of the anti-SLAPP statute. [Citation.]”
(Navellier v. Sletten (2002) 29 Cal.4th 82, 89.) Allegations of
protected activity that are incidental and merely provide context
rather than an element of the claim cannot be stricken under the
anti-SLAPP statute. (Bonni, supra, 11 Cal.5th at p. 1012.)
When specific acts of alleged wrongdoing by an attorney do
not involve protected activity, whether the claim is labeled
professional negligence, breach of contract, or breach of fiduciary
duty, the anti-SLAPP statute does not apply. For example, an
attorney’s representation of a client which constitutes a conflict of
interest as to another client is not protected activity under the
anti-SLAPP statute. (PrediWave, supra, 179 Cal.App.4th at pp.
1226–1227 [defendant attorneys simultaneously represented two
clients with an irreconcilable conflict of interest]; Freeman v.
Schack (2007) 154 Cal.App.4th 719, 732–733 [defendant
attorneys violated fiduciary duties by representing a new client
with interests adverse to former client].) Dispensing false legal
advice to induce payment of attorney fees is not protected
activity. (Hylton v. Frank E. Rogozienski, Inc. (2009) 177
Cal.App.4th 1264, 1274.) Failing to comply with statutory and
19
court-ordered obligations to serve discovery responses is not
protected activity under the anti-SLAPP statute. (Jespersen v.
Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 631–632.)
In PrediWave, the court summarized several anti-SLAPP
cases against former attorneys and concluded: “In determining
the applicability of the anti-SLAPP statute, we think a
distinction must be drawn between (1) clients’ causes of action
against attorneys based upon the attorneys’ acts on behalf of
those clients, (2) clients’ causes of action against attorneys based
upon statements or conduct solely on behalf of different clients,
and (3) non-clients’ causes of action against attorneys. In the
first class, the alleged speech and petitioning activity was carried
out by attorneys on behalf of the plaintiffs in the lawsuits now
being attacked as SLAPP’s, although the attorneys may have
allegedly acted incompetently or in violation of Professional Rules
of Conduct. The causes of action in this first class categorically
are not being brought ‘primarily to chill the valid exercise of the
constitutional rights of freedom of speech and petition . . . .’
(§ 425.16, subd. (a).)” (PrediWave, supra, 179 Cal.App.4th at p.
1227.)
Although the PrediWave formulation is generally useful, it
does not apply neatly in all cases. (See, i.e., Wittenberg v.
Bornstein (2020) 50 Cal.App.5th 303, 314–315 [attorney’s conduct
was not “‘solely’” on behalf of different clients, because former
client’s interests were implicated].) Not every cause of action by
a nonclient related to an attorney’s speech and petitioning
activity is subject to the anti-SLAPP statute. (See Chodos v. Cole
(2012) 210 Cal.App.4th 692, 703–704 [claim by attorney against
other attorneys for equitable indemnity was not distinguishable
from client’s claim against attorney for malpractice].) In certain
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circumstances, courts have found an attorney liable to a nonclient
for professional negligence based on the attorney’s legal services.
(See Chang v. Lederman (2009) 172 Cal.App.4th 67, 76–84 [estate
planning attorneys have a duty of care to expressly named
beneficiaries in a will or trust to exercise ordinary skill and care
to properly effectuate the bequests in the testamentary
document].)
On appeal, Greenspoon’s sole basis for concluding that the
conduct alleged in the complaint is subject to the anti-SLAPP
statute is their assertion that the attorneys did not represent
Dana and Trentyn in their individual capacities. For the
purposes of this appeal, Greenspoon implicitly concedes the
conduct alleged in the complaint is not subject to the anti-SLAPP
statute if the attorneys in fact had duties to Dana or Trentyn as
alleged in the complaint. However, Greenspoon’s argument
improperly mixes the first and second prongs of the anti-SLAPP
analysis. (See Sprengel v. Zbylut (2015) 241 Cal.App.4th 140,
155–157 (Sprengel) [“arguments regarding the absence of an
attorney-client relationship with Sprengel improperly conflate
the first and second prongs of the Section 425.16 test”].)
“‘The sole inquiry’ under the first prong of the test is
whether the plaintiff’s claims arise from protected speech or
petitioning activity. [Citation.] In making this determination,
‘[w]e do not consider the veracity of [the plaintiff’s] allegations’
[citation] nor do we consider ‘[m]erits based arguments.’
(Freeman[ v. Schack (2007) 154 Cal.App.4th 719,] 733
[(Freeman)] [‘[m]erits based arguments have no place in our
threshold analysis of whether plaintiffs’ causes of action arise
from protected activity’]; see Coretronic[ Corp. v. Cozen O’Connor
(2011) 192 Cal.App.4th 1381,] 1388 [‘[a]rguments about the
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merits of the claims are irrelevant to the first step of the anti-
SLAPP analysis’]). If the defendant demonstrates the plaintiff’s
claims do arise from protected activity, we then review the
potential merits of the plaintiff’s claims in the second step of the
analysis. (Episcopal Church Cases (2009) 45 Cal.4th 467, 477
[‘“If the court finds [the defendant has satisfied the first prong], it
then must consider whether the plaintiff has demonstrated a
probability of prevailing on the claim”’].) However, ‘[w]here
[defendant] cannot meet his threshold showing, the fact he
“might be able to otherwise prevail on the merits under the
‘probability’ step is irrelevant.”’ (Freeman, supra, 154 Cal.App.4th
at p. 733.)” (Sprengel, supra, 241 Cal.App.4th at pp.156–157.)
Whether Greenspoon actually shared an attorney-client
relationship with Dana which allows her to recover damages that
she suffered personally as a result of Greenspoon’s legal advice
and services to her as trustee, and whether Greenspoon actually
had duties to Dana and Trentyn as third-party beneficiaries of
Greenspoon’s legal services to the trustee, relates to the merits of
the claims and is therefore not relevant to the first step of the
anti-SLAPP analysis. Greenspoon may eventually prevail by
proving the absence of any duty to Dana or Trentyn, but that
does not affect the substance of their claims that Greenspoon’s
conduct breached duties to them, which is not protected activity.
The anti-SLAPP motion was properly denied.
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DISPOSITION
The order denying the anti-SLAPP motion is affirmed.
Respondents Dana Urick and Trentyn M. Urick-Stasa are
awarded their costs on appeal.
MOOR, J.
We concur:
BAKER, Acting P. J.
KIM, J.
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