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NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS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has not been certified for publication or ordered published for purposes of rule 8.1115.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

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.

_______________________

MICHAEL THEODORE,

 Plaintiff and Appellant,

v.

DANNING, GILL, DIAMOND & 

KOLLITZ, et al.

 Defendants and Respondents.

 B291700

 (Los Angeles County

 Super. Ct. No. BC680011)
2

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.
3

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.
4

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
5

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 WaxSemus 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).)
6

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.” 
7

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 WaxSemus 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 
8

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 WaxSemus 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 
9

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 WaxSemus 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
10

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 WaxSemus, Diamond, and Danning Gill (defendants). 

8 Judge Gregory W. Alarcon

9 Theodore also named Lyle R. Mink, A Law Corporation. 
11

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 WaxSemus 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, WaxSemus “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 WaxSemus’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 
12

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 WaxSemus’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 WaxSemus 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.” 
13

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 
14

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 WaxSemus 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 WaxSemus 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 
15

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” WaxSemus, 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.)
16

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. 
17

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, WaxSemus 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). 
18

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 
19

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 WaxSemus, 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 WaxSemus.” 

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 
20

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 WaxSemus/Diamond, issued directive[s] to them and was effectively 
21

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. 
22

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 WaxSemus 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 WaxSemus, 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. WaxSemus never alerted me to the high volume of substantive ex 

parte communications, loaded with evidentiary and prejudicial 
23

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, WaxSemus, 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 
24

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 
25

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. WaxSemus $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 
26

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 litigationrelated 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.” WaxSemus 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.” WaxSemus 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 
27

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. 
28

[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 
29

functioning within court-authorized jurisdiction, as a courtappointed 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.)
30

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 
31

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,
32

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.
33

protect not only the litigants, but also their attorneys’ litigationrelated 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 
34

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 antiSLAPP 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 
35

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 
36

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.
37

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 noncommunicative 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 
38

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.) 
39

or collusion or consents to deceit or collusion with intent to 

deceive a court or a party.” 

Throughout his opening brief, Theodore asserts that WaxSemus, 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.)
40

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 
41

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.”
42

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.
43

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 
44

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?”
45

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. . . . [¶] 
46

[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 
47

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 
48

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 
49

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
50

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 WaxSemus 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.
51

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 WaxSemus in this cause of action.
52

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 WaxSemus 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 
53

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 
54

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 
55

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 
56

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. 
57

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 
58

‘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 
59

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 “noncommunicative” 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 
60

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 quasijudicial immunity to judges, commissioners, referees, courtappointed 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’”].)
61

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 quasijudicial 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. 
62

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.