Filed 11/16/17; Certified for Publication 12/7/17 (order attached)

IN THE COURT OF APPEAL OF THE STATE OF 

CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

OPTIONAL CAPITAL, INC.,

Plaintiff and Appellant,

v.

AKIN GUMP STRAUSS, HAUER 

& FELD LLP et al.,

Defendants and Respondents.

 B275274

 (Los Angeles County

 Super. Ct. No. BC474472)

APPEAL from orders of the Superior Court of Los 

Angeles County, Teresa Sanchez-Gordon, Judge. Affirmed.

Rogari Law Corporation, Ralph Rogari; Law Offices of 

Mary Lee and Mary Lee for Plaintiff and Appellant.
2

McDermott, Will & Emery, Gordon A. Greenberg and 

Charles Edward Weir for Defendant and Respondent Akin 

Gump, Strauss, Hauer & Feld LLP.

Lewis Brisbois Bisgaard & Smith, Raul L. Martinez, 

Kenneth C. Feldman and Larissa G. Nefulda for Defendants 

and Respondents Parker Shumaker Mills LLP, David Parker 

and William Mills.

——————————

Optional Capital, Inc. (Optional or Plaintiff) sued 

various entities and individuals, including DAS Corporation 

(DAS) and its counsel—Akin Gump Straus Hauer & Feld 

LLP (Akin) and Parker Shumaker Mills LLP, David Parker 

and William Mills (collectively, Parker) (collectively with 

Akin, Defendants)—for conversion and fraudulent transfer. 

Plaintiff sought to recover from Defendants on theories of 

vicarious liability (conspiracy and aiding and abetting).

In response, Defendants, pursuant to section 425.16 of 

the Code of Civil Procedure,1 filed special motions to strike 

all claims asserted against them—so-called anti-SLAPP 

motions.2 In their motions, Defendants argued that their 

respective representations of DAS were protected petitioning 

activity under the anti-SLAPP statute and that Plaintiff 

 

1 All further statutory references are to the Code of 

Civil Procedure unless otherwise indicated.

2 SLAPP is an acronym for “strategic lawsuit against 

public participation.” (Equilon Enterprises v. Consumer 

Cause, Inc. (2002) 29 Cal.4th 53, 57.)
3

could not show a probability of prevailing on any of its 

claims due, among other things, to the litigation privilege. 

The trial court eventually granted Defendants’ motions.

On appeal, Plaintiff argues that Defendants’ alleged 

misconduct is not protected activity under the anti-SLAPP 

statute and, even if it were, Plaintiff presented the trial 

court with sufficient evidence to establish a probability of 

prevailing on the merits of its claims. In addition, Plaintiff 

argues that our decision in a prior appeal involving DAS’s 

anti-SLAPP motion (Optional v. DAS Corp. (2014) 222 

Cal.App.4th 1388 (Optional I)) is “the law of the case” and, 

as a result, Defendants’ reliance on the litigation privilege is 

unavailing. We disagree with Plaintiff on each point and, 

accordingly, affirm.

BACKGROUND3

Plaintiff is a Korean venture capital firm, whose 

investors included DAS. (Optional I, supra, 222 Cal.App.4th 

at pp. 1392–1393.) In 2001, according to Plaintiff, DAS and 

certain individuals (the Kim parties) conspired to and did 

 

3 As we noted in our earlier opinion, “[t]his case 

involves an extremely tangled thicket of legal proceedings in 

both state and federal court, as well as Switzerland.” 

(Optional I, supra, 222 Cal.App.4th at p. 1392.) Since we 

have discussed that tangled thicket in some detail 

previously, (see id. at pp. 1392–1395), and since the parties 

are familiar with the various proceedings, we will set forth 

only as much background as is relevant to the disposition of 

this appeal.
4

take control of Optional, converting more than $35 million of 

Optional’s funds. (Ibid.) The Kim parties created a 

California corporation, Alexandria Investments, Inc. 

(Alexandria), and then transferred the money 

misappropriated from Plaintiff into bank accounts in the 

name of Alexandria at United Commercial Bank in Rowland 

Heights, California. (Ibid.)

I. The underlying lawsuits

A. THE STATE COURT ACTION

In May 2003, DAS sued the Kim parties and others in 

California state court (the state court action), alleging, 

among other things, fraud, breach of contract, and breach of 

fiduciary duty. (Optional I, supra, 222 Cal.App.4th at 

pp. 1392–1393.) As part of the state court action, DAS 

alleged that the Kim parties had transferred the funds 

looted from Plaintiff into the United States. Later in 2003, 

after DAS had inaugurated the state court action, 

Alexandria transferred more than $15 million of Plaintiff’s 

converted money to a bank account at Credit Suisse in 

Geneva, Switzerland. (Ibid.)

B. THE FEDERAL FORFEITURE ACTION

Beginning in 2004, the United States Government, 

based on the conduct of the Kim parties in running Optional, 

commenced a series of forfeiture proceedings in California 

federal district court that were later consolidated into one 

proceeding (the federal forfeiture action). (Optional I, supra, 

222 Cal.App.4th at pp. 1393–1394 & fn. 3.) “At the request 

of the United States government, the Swiss government 
5

froze the Credit Suisse account . . . . Both Optional and DAS 

were claimants in the forfeiture action arising out of the Kim 

parties’ looting of Optional, and both Optional and DAS filed 

claims to the various assets, including the monies in the 

Credit Suisse account.” (Id. at p. 1394.) Beginning in 2005, 

Parker represented DAS in the federal forfeiture action.

In March 2007, the United States District Court 

granted the Kim parties’ summary judgment motion against 

the United States government in the federal forfeiture 

action, a decision the Ninth Circuit affirmed in 2008, thereby 

extinguishing the United States government’s forfeiture 

claim and the government freeze on the Credit Suisse 

account. (Optional I, supra, 222 Cal.App.4th at p. 1394.) 

In October 2009, the federal district court granted 

summary judgment in favor of the Kim parties on all 

remaining properties, resulting in the dismissal of DAS’s 

and Plaintiff’s claims. Both DAS and Plaintiff appealed. 

C. PLAINTIFF’S FEDERAL COURT ACTION

In 2004, Plaintiff filed a lawsuit in federal district 

court in California against the Kim parties and Alexandria 

seeking damages for fraud and conversion based on the 

looting of Optional (Plaintiff’s federal court action). 

(Optional I, supra, 222 Cal.App.4th at p. 1394.) 

In 2008, the jury returned a verdict in Plaintiff’s

federal court action, finding that the Kim parties and 

Alexandria converted approximately $15.5 million from 

Optional. (Optional I, supra, 222 Cal.App.4th at p. 1394.) 
6

The federal district court, however, subsequently vacated the 

jury award, extinguishing Plaintiff’s judgment lien. (Ibid.) 

D. DAS’S CRIMINAL ACTION IN SWITZERLAND

In April 2007, after the Kim parties won their 

summary judgment motion against the United States 

government in the federal forfeiture action, DAS instituted 

criminal proceedings in Switzerland against Alexandria, 

thereby obtaining a second freeze on the Credit Suisse funds 

(DAS Freeze). (Optional I, supra, 222 Cal.App.4th at 

p. 1394.) “Although it was aware of the DAS Freeze on the 

funds, Optional did not take any action on its own in 

Switzerland to freeze the funds.” (Ibid.)

E. A CONFLUENCE OF EVENTS IN 2010-2011

During the period 2010-2011, a number of events 

occurred in rapid succession in the underlying proceedings 

that would give rise to Plaintiff’s claims below.

In November 2010, the parties to the state court action, 

through private mediation, reached a confidential 

settlement. (Optional I, supra, 222 Cal.App.4th at p. 1395.) 

At the time of the settlement, Akin represented DAS. 

In December 2010, funds became available to fund the 

settlement in the state court action. Shortly after the 

parties to the state court action had settled their dispute, the 

Swiss investigating magistrate was informed of the 

settlement. (Optional I, supra, 222 Cal.App.4th at p. 1395.) 

At a hearing in February 2011, “with DAS and Alexandria 

present, the Swiss government lifted the DAS Freeze and 
7

the funds on deposit at Credit Suisse were released to DAS. 

Optional did not participate in these proceedings.” (Ibid.)

Also, in December 2010, the Ninth Circuit reversed 

and reinstated both DAS’s and Plaintiff’s claims in the 

federal forfeiture action. One month later, in January 2011, 

the Ninth Circuit reinstated Plaintiff’s recovery on its 

conversion claim. (Optional I, supra, 222 Cal.App.4th at 

p. 1395.) 

In May 2011, with its restored judgment against the 

Kim parties, Plaintiff sought a contempt order against DAS 

and its counsel (attorneys from both Parker and Akin), 

arguing, among other things, that the settlement in the state 

court action was “designed to thwart [the federal district 

court’s] jurisdiction and deprive Optional of its opportunity 

to pursue its claims” on the funds in the Credit Suisse 

account. Plaintiff asked the federal district court to order 

the return of the funds from Credit Suisse account.

In June 2011, the federal district court denied 

Plaintiff’s requests. While the district court recognized that 

DAS’s conduct had, in effect, “bypassed [its] in rem

jurisdiction over the Credit Suisse accounts,” neither DAS 

nor its counsel violated any court order. In fact, “DAS 

obtained the relief it sought from a legitimate authority that 

had both jurisdiction and actual control over the [Credit 

Suisse] accounts.” 

In November 2011, the district court, over Plaintiff’s 

objection, dismissed DAS from the federal forfeiture action.
8

II. Plaintiffs’ claims against Defendants

On December 1, 2011, Plaintiff filed its initial 

complaint in the action below. Plaintiff alleged that DAS, 

Defendants, and various other individuals and entities, 

including the United States government, “agreed on a 

common plan . . . to fraudulently transfer 13 million dollars 

from the Credit Suisse Bank account to DAS and thereby 

hinder, delay or defraud OPTIONAL in recovering that 

property.” Although Plaintiff did not provide any details 

about the formation and operation of the alleged conspiracy, 

it alleged that the DAS Freeze was a result of the conspiracy 

and that Parker had made misleading representations to the 

federal district court and to the Ninth Circuit.

Plaintiff’s initial complaint spurred a number of antiSLAPP motions from various defendants. DAS filed the first 

of these motions on March 27, 2012. On April 4, 2012, the 

same day that Akin filed its anti-SLAPP motion, Plaintiff 

voluntarily dismissed Akin from the case. On April 12, 2012, 

Plaintiff and Parker stipulated that Parker could defer filing 

its anti-SLAPP motion until after an appeal was decided on 

the then-pending anti-SLAPP motions. 

The trial court granted DAS’s anti-SLAPP motion and 

Plaintiff appealed. (Optional I, supra, 222 Cal.App.4th 

at pp. 1396–1397.) In an opinion dated January 15, 2014, 

we reversed, holding that “DAS’s conduct in obtaining money 

from Alexandria’s Credit Suisse account did not constitute 

protected activity under section 425.16, Optional has 

established a reasonable probability of prevailing on the 
9

merits because it can trace the funds the Kim parties 

wrongfully took from Optional to the funds in Alexandria’s 

account, and the litigation privilege does not bar Optional’s 

claims.” (Id. at p. 1397.)

In March 2014, following our decision in Optional I,

supra, 222 Cal.App.4th 1388, Plaintiff filed its first amended 

complaint (FAC), the operative complaint for purposes of 

this appeal. The FAC, besides adding a third cause of action 

for violation of Penal Code section 496, added little in the 

way of detail with respect to the alleged conspiracy. The 

only significant additional factual averment with regard to 

the conspiracy was that the “agreement originated with 

United States attorneys in the Justice Department” and 

“had the approval of the president of the United States,” 

with the goal being a “new trade agreement between the 

United States and South Korea.”

III. Defendants’ anti-SLAPP motions

On May 28, 2014, Parker filed its anti-SLAPP motion. 

In its motion, Parker stressed that it was counsel of record 

for DAS in the federal forfeiture action and, as a result, it 

had nothing to do with the settlement in the state court 

action or with the Swiss proceedings connected with the DAS 

Freeze or with the transfer of funds from the Credit Suisse 

account to DAS. Moreover, as DAS’s counsel in the federal 

forfeiture action, Parker argued that its actions were 

protected activity under the anti-SLAPP statute and that 

Plaintiff could not show a probability of prevailing on any of 

its claims due to, among other things, the litigation 
10

privilege. Parker’s motion was supported by, inter alia, a 

declaration from one of the Parker attorneys who 

represented DAS in the federal forfeiture action.

On August 5, 2014, Akin, which Plaintiffs had brought 

back into the lawsuit, filed a second anti-SLAPP motion. 

Akin argued that Plaintiff’s claims against it in the FAC 

were premised on Akin’s provision of legal services to DAS in 

the state court action including the negotiated settlement of 

that action, actions which were protected by the anti-SLAPP 

statute and the litigation privilege, among other things. 

Although Akin’s motion was not supported by a declaration 

from any of its attorneys who represented DAS in the state 

court action, Akin submitted court records from that case 

establishing that it was counsel of record for DAS in the 

state court action at or around the time of the settlement. 

Parker and Akin joined in each other’s motions.

IV. Plaintiffs’ oppositions

Plaintiff opposed both motions. In opposition to 

Defendants’ motions, Plaintiff argued that, based on our 

holding in Optional I, supra, 222 Cal.App.4th 1388, 

Defendants’ respective representations of DAS were not 

protected petitioning activity under the anti-SLAPP statute.

Plaintiff, in other words, argued that Defendants were 

vicariously liable for DAS’s misconduct.

Consistent with its law of the case argument, Plaintiff 

relied on evidence that concerned its claims against DAS. 

For example, in the lone declaration filed in support of 

Plaintiff’s oppositions, the evidentiary focus is on 
11

establishing Plaintiff’s right to the funds in the Credit Suisse 

account, not on identifying Defendants’ conduct in support of 

the alleged conspiracy. To the extent that Plaintiff identified 

any specific acts of alleged misconduct by the Defendants, it 

was limited to certain purported omissions and 

misrepresentations by Defendants in the federal forfeiture 

action. More specifically, Plaintiff submitted an order from 

the district court in the federal forfeiture action denying 

Plaintiff’s contempt motion against DAS and its attorneys. 

Although the district court denied Plaintiff’s motion, it 

expressed some dismay with respect to the conduct of 

Defendants, especially in regard to their arguably belated 

disclosure of the state court settlement and the transfer of 

funds from the Credit Suisse account to DAS: “While a 

finding of contempt cannot be supported . . . , the events 

described above and counsel’s explanations . . . give the 

Court some pause as to counsel’s judgment and credibility. 

Specifically, the Court views with some skepticism [Parker’s] 

disclaiming any meaningful knowledge of the settlement 

[citations] and [Akin’s] suggestion that the removal of 14 

billion won from the Credit Suisse accounts is of no 

consequence to this Court’s in rem

jurisdiction . . . . [¶] . . . [T]hat the DAS-Kim settlement 

contains a confidentiality clause is not an adequate 

explanation for any counsel’s failure to disclose the existence 

of the settlement. . . . The Court should not have to ferret 

out information so crucial to case 

management . . . . [¶] . . . Most attorneys practicing before 
12

this Court are forthright and assist the Court in the 

objective we all strive for—the speedy and efficient provision 

of justice [Citation.] The conduct of counsel for DAS and the 

Kims, described herein, was, regrettably, lacking such 

cooperation.” 

On January 27, 2015, the trial court granted both of 

Defendants’ motions. However, based on certain comments 

made during the hearing on the motions, the judge was 

subsequently disqualified. As a result, the ruling in favor of 

the Defendants was vacated without prejudice to the parties 

re-litigating the motions.

In February 2016, after the case had been reassigned 

to a different judge, the Defendants rescheduled their 

motions. The Defendants also sought leave to file 

supplemental briefs addressing new case law. The new 

judge granted Defendants’ request and granted Plaintiff the 

opportunity to fully brief its opposition to the motions to 

address the new authorities relied upon by Defendants.

In its supplemental oppositions, Plaintiff continued to 

argue, based on our prior holding, that because DAS’s 

conduct was not protected under the anti-SLAPP statute 

neither was Defendants’ conduct. And, as before, Plaintiff’s 

evidence was devoted primarily to reproving its successful 

conversion claim in the federal court action and thereby its 

right to the funds in the Credit Suisse account. However, 

Plaintiff also augmented its prior evidentiary submissions 

about Defendants’ purported failure to timely disclose to the 

district court overseeing the federal forfeiture action the 
13

state court settlement and resulting transfer of funds to 

DAS. For example, in addition to the district court’s order 

denying the contempt motions, Plaintiff included excerpts 

from a transcript of a hearing before the district court at 

which attorneys for both Defendants appeared, various 

orders by the district court taking issue with “DAS’s silence” 

with respect to the status of the Credit Suisse account, and 

responsive filings by DAS.

In April 2016, the trial court granted Defendants’ 

motion, observing to Plaintiff, “You might allege all these 

things [conspiracy, etc.], but where is the evidence?” 

Plaintiff timely appealed from both orders.

DISCUSSION

I. Optional I, supra, 222 Cal.App.4th 1388 is not the 

“law of the case” for purposes of this appeal

Plaintiff contends on appeal, as it did below, that 

Optional I, supra, 222 Cal.App.4th 1388 is the “law of the 

case.” Consequently, as a preliminary matter, we need to 

address what effect, if any, our prior decision in Optional I

has on the outcome of this appeal. 

“ ‘The law of the case doctrine states that when, in 

deciding an appeal, an appellate court “states in its opinion a 

principle or rule of law necessary to the decision, that 

principle or rule becomes the law of the case and must be 

adhered to throughout its subsequent progress, both in the 

lower court and upon subsequent appeal.” ’ ” (Quackenbush 

v. Superior Court (2000) 79 Cal.App.4th 867, 874.) The 

doctrine applies to a rule of law necessarily decided in an 
14

appellate decision and determines “ ‘the rights of the same 

parties in any subsequent retrial or appeal in the same

case.’ ” (Nally v. Grace Community Church (1988) 47 Cal.3d 

278, 301, italics added; Morohoshi v. Pacific Home (2004) 34 

Cal.4th 482, 491 [doctrine applies to “same parties”].) “The 

‘law of the case’ doctrine . . . precludes a party from 

obtaining appellate review of the same issue more than once 

in a single action.” (Katz v. Los Gatos–Saratoga Joint Union 

High School Dist. (2004) 117 Cal.App.4th 47, 62, italics 

added; People v. Boyer (2006) 38 Cal.4th 412, 441 [doctrine 

applies to “ ‘an already decided issue in the same case’ ”].)

The law of the case doctrine does not apply here 

because our prior decision involved different parties and 

different issues. The core issue in Optional I, supra, 222 

Cal.App.4th 1388 was whether “DAS’s conduct in obtaining 

money from Alexandria’s Credit Suisse 

account . . . constitute[d] protected activity under section 

425.16.” (Optional I, at p. 1397, italics added.) We were not 

concerned with Defendants’ conduct, because they were not 

parties to the appeal. In fact, at the time Plaintiff filed its 

appeal in Optional I, Plaintiff had dismissed Akin from the 

case and had stipulated with Parker that its anti-SLAPP 

motion could be deferred until after Plaintiff’s appeal had 

been resolved.

In short, Plaintiff is incorrect. The law of the case 

doctrine is not applicable to this appeal, as the parties and 

the issues are not the same as those in Optional I, supra, 

222 Cal.App.4th 1388. 
15

II. The anti-SLAPP statute and applicable legal 

principles

A. SECTION 425.16

“A SLAPP is a civil lawsuit that is aimed at preventing 

citizens from exercising their political rights or punishing 

those who have done so. ‘ “While SLAPP suits masquerade 

as ordinary lawsuits such as defamation and interference 

with prospective economic advantage, they are generally 

meritless suits brought primarily to chill the exercise of free 

speech or petition rights by the threat of severe economic 

sanctions against the defendant, and not to vindicate a 

legally cognizable right.” ’ ” (Simpson Strong-Tie Co., Inc. v. 

Gore (2010) 49 Cal.4th 12, 21 (Simpson).)

“In 1992, out of concern over ‘a disturbing increase’ in 

these types of lawsuits, the Legislature enacted 

section 425.16, the anti-SLAPP statute. (§ 425.16, subd. (a).) 

The statute authorized the filing of a special motion to strike 

to expedite the early dismissal of these unmeritorious 

claims. (§ 425.16, subds. (b)(1), (f).) To encourage ‘continued 

participation in matters of public significance’ and to ensure 

‘that this participation should not be chilled through abuse 

of the judicial process,’ the Legislature expressly provided 

that the anti-SLAPP statute ‘shall be construed broadly.’ 

(§ 425.16, subd. (a).)” (Simpson, supra, 49 Cal.4th at p. 21.)

The anti-SLAPP statute “provides a procedure for 

weeding out, at an early stage, meritless claims arising from 

protected activity.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 

384 (Baral).) The statute applies to “cause[s] of action 
16

against a person arising from any act of that person in 

furtherance of the person’s right of petition or free speech

under the United States Constitution or the California 

Constitution in connection with a public issue.” (§ 425.16, 

subd. (b)(1), italics added.) As used in the statutory scheme, 

an “ ‘act in furtherance of a person’s right of petition or free 

speech under the United States or California Constitution in 

connection with a public issue’ includes: (1) any written or 

oral statement or writing made before a legislative, 

executive, or judicial proceeding, or any other official 

proceeding authorized by law, (2) any written or oral 

statement or writing made in connection with an issue under 

consideration or review by a legislative, executive, or judicial 

body, or any other official proceeding authorized by law, 

(3) any written or oral statement or writing made in a place 

open to the public or a public forum in connection with an 

issue of public interest, or (4) any other conduct in 

furtherance of the exercise of the constitutional right of 

petition or the constitutional right of free speech in 

connection with a public issue or an issue of public interest.” 

(§ 425.16, subd. (e).)

B. EVALUATING ANTI-SLAPP MOTIONS

In ruling on a motion under section 425.16, the trial 

court engages in what is now a familiar two-step process. 

“First, the defendant must establish that the challenged 

claim arises from activity protected by section 425.16. 

[Citation.] If the defendant makes the required showing, the 

burden shifts to the plaintiff to demonstrate the merit of the 
17

claim by establishing a probability of success.” (Baral, 

supra, 1 Cal.5th at p. 384.)

1. Step one: “arising from” protected activity

The moving party’s burden at step one is to show “the 

challenged cause of action arises from protected activity.” 

(Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056.) “[T]he 

statutory phrase ‘cause of action . . . arising from’ means 

simply that 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. [Citation.] In the antiSLAPP context, the critical point is whether the plaintiff’s 

cause of action itself was based on an act in furtherance of 

the defendant’s right of petition or free speech. [Citations.] 

‘A defendant meets this burden by demonstrating that the 

act underlying the plaintiff’s cause [of action] fits one of the 

categories spelled out in section 425.16, subdivision (e).’ ” 

(City of Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) 

In other words, “it is not enough to establish that the 

action was filed in response to or in retaliation for a party’s 

exercise of the right to petition. [Citations.] Rather, the 

claim must be based on the protected petitioning activity.” 

(Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 

Cal.App.4th 793, 804 (Bergstein).) “[I]f the defendant does 

not meet its burden on the first step, the court should deny 

the motion and need not address the second step.” 

(Tuszynska v. Cunningham (2011) 199 Cal.App.4th 257, 

266.)
18

a. The principal thrust/ gravamen analysis

In determining whether a cause of action is based on 

protected activity, we “examine the principal thrust or 

gravamen of a plaintiff’s cause of action to determine 

whether the anti-SLAPP statute applies.” (Ramona Unified 

School Dist. v. Tsiknas (2005) 135 Cal.App.4th 510, 519–

520.)4 “We assess the principal thrust by identifying ‘[t]he 

allegedly wrongful and injury-producing conduct . . . that 

provides the foundation for the claim.’ ” (Hylton v. Frank E. 

Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 1272, italics 

added.)

In determining “whether the challenged claims arise 

from acts in furtherance of the defendants’ right of free 

speech or right of petition under one of the categories set 

forth in section 425.16, subdivision (e). . . . ‘[w]e examine the 

principal thrust or gravamen of a plaintiff’s cause of action 

to determine whether the anti-SLAPP statute applies.’ ”

(Finton Construction, Inc. v. Bidna & Keys, APLC (2015) 238 

Cal.App.4th 200, 209 (Finton Construction).) The “gravamen 

is defined by the acts on which liability is based, not some 

philosophical thrust or legal essence of the cause of action.” 

(Wallace v. McCubbin (2011) 196 Cal.App.4th 1169, 1190.) 

In other words, “for anti-SLAPP purposes [the] gravamen [of 

 

4 Gravamen is generally understood to mean “the 

substantial point or essence of a claim, grievance or 

complaint.” (Black’s Law Dict. (10th ed. 2014) p. 817, col. 1; 

Garner, Dict. of Modern Legal Usage (2d ed. 1995) p. 391 

[“the point of a complaint or grievance”].)
19

plaintiff’s cause of action] is defined by the acts on which 

liability is based.” (Ibid., italics added.) 

Consequently, “[i]n deciding whether the ‘arising from’ 

requirement is met, a court considers ‘the pleadings, and 

supporting and opposing affidavits stating the facts upon 

which the liability or defense is based.’ (§ 425.16, subd. (b).)” 

(City of Cotati v. Cashman, supra, 29 Cal.4th at p. 79.) 

Thus, we are “not limited to examining the allegations of the 

complaint alone but rather consider the pleadings and the 

factual material submitted in connection with the special 

motion to strike.” (Contreras v. Dowling (2016) 5 

Cal.App.5th 394, 408 (Contreras); see Karnazes v. Ares

(2016) 244 Cal.App.4th 344, 353 [considering pleadings plus 

declaration and emails for step one]; Navellier v. Sletten

(2002) 29 Cal.4th 82, 90 (Navellier) [examining “relevant 

documents” to find acts complained of fall within antiSLAPP statute].)5

 

5 In the wake of Baral, supra, 1 Cal.5th 376, one court 

has rejected the principal thrust or gravamen analysis. 

(Sheley v. Harrop (2017) 9 Cal.App.5th 1147, 1170 (Sheley).) 

We are not convinced, however, that Sheley’s rejection is 

well-taken for at least two reasons. 

First, Sheley’s wholesale rejection of the principal 

thrust or gravamen analysis is based largely on an 

extrapolation from Baral, supra, 1 Cal.5th 376. (Sheley, 

supra, 9 Cal.App.5th 1147.) In Baral, our highest court 

disapproved a number of cases that used the “primary right 

theory” to determine whether a cause of action is based on 

protected activity. (Baral, at pp. 394–395.) Baral explained 
20

 

that the primary rights theory has a “ ‘fairly narrow field of 

application. It is invoked most often when a plaintiff 

attempts to divide a primary right and enforce it in two 

suits.’ ” (Id. at p. 395.) In addition, “the primary right 

theory is notoriously uncertain in [its] application.” (Ibid.) 

Based on Baral’s rejection of the primary rights theory, 

Sheley rejected the principal thrust/gravamen analysis. 

(Sheley, at p. 1170.) Baral, however, (as Sheley concedes) did 

not address, let alone disapprove, the principal thrust or 

gravamen analysis. (See id. at p. 1170.) 

Second, Sheley’s rejection appears to be based, in part, 

on an overbroad reading of Baral, supra, 1 Cal.5th 376. 

(Sheley, supra, 9 Cal.App.5th 1147.) In Baral, our Supreme 

Court simply held that a special motion to strike can reach 

distinct claims within pleaded counts, thereby disapproving 

the so-called Mann rule that only entire causes of action can 

be stricken (Mann v. Quality Old Time Service, Inc. (2004) 

120 Cal.App.4th 90). (See Baral, at p. 396 & fn. 11.) But 

Baral did not say that a special motion to strike must always 

be limited to challenges within a pleaded count. Rather, 

Baral adopted a permissive approach: “the Legislature’s 

choice of the term ‘motion to strike’ reflects the 

understanding that an anti-SLAPP motion, like a 

conventional motion to strike, may be used to attack parts of 

a count as pleaded.” (Id. at p. 393, italics added.) In other 

words, a special motion to strike, like a conventional motion 

to strike may be used to attack an entire pleading, such as a 

complaint, and various subparts of a pleading, such as a 

cause of action or pleaded count, as well as component 

paragraphs, words or phrases. Critically, in this case, 

Defendants did not move to strike certain subparts of 

Plaintiffs’ complaint. Instead, they expressly moved to 
21

b. The defendant’s burden

A defendant’s burden on the first prong is not an 

onerous one. A defendant need only make a prima facie 

showing that plaintiff’s claims arise from defendant’s 

constitutionally protected free speech or petition rights. (See 

(Governor Gray Davis Com. v. American Taxpayers Alliance

(2002) 102 Cal.App.4th 449, 456.) “ ‘The Legislature did not 

intend that in order to invoke the special motion to strike 

the defendant must first establish [his or] her actions are 

constitutionally protected under the First Amendment as a 

matter of law.’ [Citation.] ‘Instead, under the statutory 

scheme, a court must generally presume the validity of the 

claimed constitutional right in the first step of the antiSLAPP analysis, and then permit the parties to address the 

issue in the second step of the analysis, if necessary. 

[Citation.] Otherwise, the second step would become 

superfluous in almost every case, resulting in an improper 

shifting of the burdens.’ ” (Id. at p. 458, italics added.)

2. Step two: probability of prevailing

“If the defendant makes the required showing, the 

burden shifts to the plaintiff to demonstrate the merit of the 

claim by establishing a probability of success.” (Baral, 

supra, 1 Cal.5th at p. 384.) The plaintiff must do so with 

admissible evidence. (Kreeger v. Wanland (2006) 141 

Cal.App.4th 826, 831.) “We decide this step of the analysis 

 

strike Plaintiffs’ entire complaint and all claims asserted 

against them.
22

‘on consideration of “the pleadings and supporting and 

opposing affidavits stating the facts upon which the liability 

or defense is based.” (§ 425.16, subd. (b).) Looking at those 

affidavits, “[w]e do not weigh credibility, nor do we evaluate 

the weight of the evidence. Instead, we accept as true all 

evidence favorable to the plaintiff.” ’ ” (Burrill v. Nair (2013) 

217 Cal.App.4th 357, 378–379, disapproved in part in Baral, 

at p. 396, fn. 11.) 

This second step has been described as a “ ‘summaryjudgment-like procedure.’ ” (Baral, supra, 1 Cal.5th at 

p. 384.) A court’s second step “inquiry is limited to whether 

the [opposing party] has stated a legally sufficient claim and 

made a prima facie factual showing sufficient to sustain a 

favorable judgment. [The court] . . . evaluates the 

defendant’s showing only to determine if it defeats the 

plaintiff’s claim as a matter of law.” (Id. at pp. 384–385.) 

“Only a [claim] that satisfies both prongs of the anti-SLAPP 

statute—i.e., that arises from protected speech or petitioning 

and lacks even minimal merit—is a SLAPP, subject to being 

stricken under the statute.” (Navellier, supra, 29 Cal.4th at 

p. 89.)

C. STANDARD OF REVIEW

“On appeal, we review the trial court’s decision de 

novo, engaging in the same two-step process to determine, as 

a matter of law, whether the defendant met its initial 

burden of showing the action is a SLAPP, and if so, whether 

the plaintiff met its evidentiary burden on the second step.” 
23

(Tuszynska v. Cunningham, supra, 199 Cal.App.4th at 

pp. 266–267.)

III. The gravamen of Plaintiffs’ claims6 is protected 

activity

It is well established that the protection of the antiSLAPP statute extends to lawyers and law firms engaged in 

litigation-related activity. As our Supreme Court explained, 

“ ‘Any act’ ” under section 425.16, subdivision (b)(1) “includes 

communicative conduct such as the filing, funding, and 

prosecution of a civil action. [Citation.] This includes 

qualifying acts committed by attorneys in representing 

clients in litigation.” (Rusheen v. Cohen, supra, 37 Cal.4th at 

p. 1056.) 

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.) “ ‘Under the plain language of 

section 425.16, subdivisions (e)(1) and (2), as well as the case 

law interpreting those provisions, 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 antiSLAPP statute.’ ” (Finton Construction, supra, 238 

Cal.App.4th at p. 210, italics added.) Cases construing the 

 

6 To avoid confusion, our high court in Baral, supra, 1 

Cal.5th 376 referred to “the proper subject of a special 

motion to strike as a ‘claim’ ” instead of a “ ‘cause of action.’ ” 

(Id. at p. 382.) Accordingly, we do the same here.
24

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.) 

Consequently, because settlement negotiations are regarded 

as an exercise of the right to petition, communications 

during such negotiations are regarded as having been made 

in connection with the underlying lawsuit for purposes of 

section 425.16, subdivision (e)(2). (See Seltzer v. Barnes

(2010) 182 Cal.App.4th 953, 963–964.) The protection of the 

anti-SLAPP statute applies “even against allegations of 

fraudulent promises made during the settlement process.” 

(Suarez v. Trigg Laboratories, Inc. (2016) 3 Cal.App.5th 118, 

123.)

As we observed previously, “conduct is not 

automatically protected merely because it is related to 

pending litigation; the conduct must arise from the 

litigation.” (Optional I, supra, 222 Cal.App.4th at p. 1400.) 

Paul v. Friedman (2002) 95 Cal.App.4th 853 (Paul) is 

illustrative. In that case, a securities broker alleged that an 

attorney, in litigating a prior arbitration proceeding, 

conducted an intrusive investigation into the broker’s 

personal life and disclosed details of the broker’s life that 

were not relevant to issues in the arbitration proceedings. 

(Id. at pp. 857–858.) The Paul court found that the 

attorney’s conduct was not protected activity within 

section 425.16 because the communication must occur in 
25

connection with an issue under consideration or review in 

the proceeding. Thus, while the attorney’s investigative 

conduct may have been “ ‘in connection with’ 

a[] . . . proceeding,” it was not “[in] connection with an issue 

under review in that proceeding,” and therefore was not 

protected activity. (Id. at p. 867.) 

Here, in contrast to Paul, supra, 95 Cal.App.4th 853, 

Defendants’ conduct at issue—as established by Plaintiff’s 

pleading and the factual material submitted by the parties 

in connection with the anti-SLAPP motions—arose directly 

out of the litigation in which they were respectively 

representing DAS. Under Plaintiff’s theory of the case, there 

would not have been any transfer of funds from the Credit 

Suisse account to DAS but for Akin’s work in negotiating a 

settlement of the state court action and but for Parker’s 

alleged failure to timely disclose the settlement to the 

federal district court. In fact, Plaintiff even relies on in-court

statements by Akin lawyers as evidence of a conspiracy with 

the Kim parties.

In short, the gravamen of Plaintiff’s claims against 

Defendants is based on protected activity, namely 

Defendants’ representation of DAS in litigation (the state 

court action and the federal forfeiture action).7 Accordingly, 

 

7 Plaintiff, relying on Flatley v. Mauro (2006) 39 

Cal.4th 299 (Flatley), argues that while Defendants’ motions 

may apply to its conversion and fraudulent transfer claims, 

the anti-SLAPP statute does not protect conduct that is 

illegal; as a result, its third cause of action for violation of 
26

we hold that Defendants made a prima facie showing that 

Plaintiff’s claims arise from Defendants’ constitutionally 

protected petition rights.

 

Penal Code section 496 is immune to Defendants’ special 

motions to strike. Plaintiff’s reliance on Flatley is misplaced. 

In Flatley, the defendant lawyer admitted writing letters 

and making calls to the plaintiff and his attorneys that, 

when taken together, threatened to accuse the plaintiff of a 

variety of crimes and disgrace him in the public media 

unless he paid a large sum of money. (Id. at pp. 306–307, 

fn. 4, 328–329.) Our Supreme Court held that where “the 

defendant concedes, or the evidence conclusively establishes, 

that the assertedly protected speech or petition activity was 

illegal as a matter of law,” such activity will not support an 

anti-SLAPP motion. (Id. at p. 320.) However, 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.” (Id. at p. 316.) A long line of 

cases have concluded in the wake of Flatley that its 

exception for illegal conduct is a “very narrow” one, one that 

applies “only ‘where either the defendant concedes the 

illegality of its conduct or the illegality is conclusively shown 

by the evidence.’ [Citation.]” (Finton Construction, supra, 

238 Cal.App.4th at 210.) Here, in contrast to Flatley, neither 

Defendant has conceded that its actions were illegal. 

Moreover, the evidence presented in connection with the 

motions does not conclusively establish that Defendants’ 

conduct was illegal as a matter of law. Accordingly, Flatley

does not put Plaintiff’s third cause of action beyond the reach 

of Defendants’ anti-SLAPP motions.
27

IV. Plaintiff did not show a probability of prevailing 

on its claims

Defendants contend that Plaintiff cannot show a 

probability of success because its claims are barred by the 

litigation privilege of Civil Code section 47, which provides: 

“A privileged publication or broadcast is one made: 

[¶] . . . [¶] (b) In any . . . (2) judicial proceeding.” The 

litigation privilege is “relevant to the second step in the antiSLAPP analysis in that it may present a substantive defense 

a plaintiff must overcome to demonstrate a probability of 

prevailing.” (Flatley, supra, 39 Cal.4th at p. 323.) “A 

plaintiff cannot establish a probability of prevailing if the 

litigation privilege precludes a defendant’s liability on the

claims.” (Bergstein, supra, 236 Cal.App.4th at p. 814.)

A. THE LITIGATION PRIVILEGE

“The principal purpose of the Civil Code section 47 

litigation privilege ‘ “is to afford litigants and witnesses 

[citation] the utmost freedom of access to the courts without 

fear of being harassed subsequently by derivative tort 

actions. [Citations.]” [Citation.] The privilege promotes 

effective judicial proceedings by encouraging “ ‘open 

channels of communication and the presentation of 

evidence’ ” without the external threat of liability. 

[Citation.] The litigation privilege “further promotes the 

effectiveness of judicial proceedings by encouraging 

attorneys to zealously protect their clients’ interests.” 

[Citation.] “Finally, in immunizing participants from 

liability for torts arising from communications made during 
28

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.” ’ ” 

(Seltzer v. Barnes, supra, 182 Cal.App.4th at pp. 969–970.) 

“ ‘ “Although originally enacted with reference to defamation 

actions alone [citation], the privilege has been extended to 

any communication, whether or not it is a publication, and to 

all torts other than malicious prosecution. [Citations.] Thus, 

the privilege has been applied to suits for fraud [citations], 

negligence and negligent misrepresentation [citation], and 

interference with contract.” ’ ” (Id. at p. 970, italics added.)

The litigation 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 (1990) 50 Cal.3d 205, 212.) The privilege is 

“absolute in nature, applying ‘to all publications, irrespective 

of their maliciousness.’ ” (Action Apartment Assn., Inc. v. 

City of Santa Monica (2007) 41 Cal.4th 1232, 1241).) “ ‘Any 

doubt about whether the privilege applies is resolved in 

favor of applying it.’ ” (Finton Construction, supra, 238 

Cal.App.4th at p. 212.) “ ‘Many cases have explained that 

[Civil Code] section 47[, subdivision] (b) encompasses not 

only testimony in court and statements made in pleadings, 

but also statements made prior to the filing of a lawsuit, 
29

whether in preparation for anticipated litigation or to 

investigate the feasibility of filing a lawsuit.’ ” (Bergstein, 

supra, 236 Cal.App.4th at p. 814.)

The scope of the litigation privilege is illustrated by a 

trio of relatively recent cases: Bergstein, supra, 236 

Cal.App.4th 793; Finton Construction, supra, 238 

Cal.App.4th 200; and Contreras, supra, 5 Cal.App.5th 394.

In Bergstein, supra, 236 Cal.App.4th 793, the plaintiffs 

sued lawyers who represented their adversaries in litigation 

over various financial transactions. Plaintiffs asserted that 

the lawyers engaged in tortious conduct when they 

“ ‘solicited and received . . . confidential, privileged, and/or 

proprietary information’ ” from one of plaintiffs’ former 

attorneys and “used that information ‘in devising the legal 

strategy to be employed’ in the litigation against plaintiffs.” 

(Id. at p. 797.) The attorneys filed a special motion to strike 

under the anti-SLAPP statute, and the trial court granted 

the motion, concluding that the complaint arose from 

protected activity. (Id. at p. 797.) Plaintiffs appealed, 

contending that the attorneys were not being sued for 

written or oral statements made in a judicial proceeding, but 

rather for the unprotected conduct of aiding and abetting the 

former attorney’s breach of fiduciary duties. (Id. at p. 811.) 

The Court of Appeal disagreed and affirmed. It explained 

that the anti-SLAPP statute’s definitional focus “ ‘is not the 

form of the plaintiff's cause of action but, rather, the 

defendant’s activity that gives rise to his or her asserted 

liability—and whether that activity constitutes protected 
30

speech or petitioning.’ ” (Id. at p. 811.) Thus, the court 

examines “ ‘the specific acts of wrongdoing’ alleged, ‘without 

particular heed to the form of action within which it has 

been framed.’ ” (Ibid.) In Bergstein, “[a]lmost all of the 

‘specific acts of alleged wrongdoing’ in the complaint [were] 

litigation activities.” (Ibid.) In fact, the Court of Appeal 

noted that the plaintiffs did “not identify any of defendants’ 

conduct that was not a communication made in a judicial 

proceeding . . . to achieve the objects of the litigation. Simply 

claiming that ‘aiding and abetting Tregub’s breach of 

fiduciary duty and facilitating Tregub’s breach of contract’ is 

‘non-communicative conduct’ does not make it so.” (Id. at 

p. 815.)

In Finton Construction, supra, 238 Cal.App.4th 200, a 

home builder sued a law firm for conversion, alleging that 

the lawyers had received a stolen hard drive during the 

course of a lawsuit in which the builder was a defendant. 

The trial court granted the lawyers’ anti-SLAPP motion and 

the builder appealed. (Id. at p. 204.) The Court of Appeal 

affirmed, holding that the litigation privilege applied to 

defendants’ actions in receiving and retaining the hard drive 

until it was turned over pursuant to the court’s order in the 

underlying case. (Id. at pp. 212–213.) In reaching its 

decision, the Court of Appeal noted that “[w]ithout the 

litigation privilege, attorneys would simply be unable to do 

their jobs properly. No attorney can litigate a trade secret 

case without examining the disputed materials to determine 
31

if they constitute trade secrets or even contain any relevant 

data at all.” (Id. at p. 212.)

In Contreras, supra, 5 Cal.App.5th 394, the plaintiff, a 

tenant, accused an attorney, Dowling, of repeatedly aiding 

and abetting his landlord-clients entering her apartment 

illegally. In addressing the litigation privilege, the court 

rejected the tenant’s argument that the litigation privilege 

did not apply because she was suing Dowling for conspiracy 

and aiding and abetting his clients’ illegal entries into the 

apartment. Citing Bergstein, supra, 236 Cal.App.4th 793, 

the court explained that the sole focus was on Dowling’s 

conduct, not that of his clients. “Simply claiming that 

Dowling’s alleged conspiring or aiding and abetting ‘is “noncommunicative conduct” does not make it so.’ ” (Id. at 

p. 416.) The Court of Appeal went on to state that it would 

not “infer Dowling’s concurrence in his clients’ acts from the 

mere existence of their attorney-client relationship,” because 

such an inference would have a “chilling effect on attorneys 

if their communicative acts can be placed outside the 

protection of section 425.16 by the unadorned allegation that 

they conspired in their clients’ torts.” (Id. at p. 418.) 

B. THE LITIGATION PRIVILEGE DEFEATS PLAINTIFF’S 

CLAIMS

Here, Defendants met their burden of showing that the 

litigation privilege applies because the communicative 

conduct at issue—as established by the pleadings and 

documents submitted in connection with motions—was made 

in judicial or quasi-judicial proceedings (i.e., the state court 
32

action, the federal forfeiture action, and the private 

mediation in the state court action) by attorneys for DAS to 

achieve the object of the proceedings and had some 

connection or logical relation to the action. As with the 

plaintiffs in Bergstein, supra, 236 Cal.App.4th 793, Plaintiff 

failed to identify any nonlitigation-related conduct by either 

Akin or Parker. Consequently, the litigation privilege 

applies to bar Plaintiff’s claims against Defendants.

Plaintiff argues that, while all of the specific conduct at 

issue may have occurred in connection with judicial or quasijudicial proceedings, a jury could infer Defendants’ 

participation in an illegal conspiracy to convert Plaintiff’s 

funds in the Credit Suisse account. For example, Plaintiff 

places considerable weight on the fact that while Parker 

learned of the state court settlement in November 2010 it 

did not disclose the settlement and the resulting transfer to 

DAS to the federal district court until several month later. 

According to Plaintiff, “an unbiased fact-finder could 

reasonably infer from Parker’s conduct, relationship, interest 

and activities that once it learned of the plan [to transfer the 

funds from the Credit Suisse account to DAS], it not only 

tacitly consented and acquiesced in it but aided DAS and the 

Kims in the concealment of the transfer of the funds from 

Optional.” 

Plaintiff’s argument is unpersuasive. As noted above, 

the court’s analysis under the second step is a “ ‘summaryjudgment-like procedure.’ ” (Baral, supra, 1 Cal.5th at 

p. 384.) Summary judgment may be based on an inference 
33

where it is the only plausible inference that may be drawn 

from undisputed facts; but “evidence which is equivocal or 

from which conflicting inferences may be drawn is 

insufficient.” (Anderson v. Metalclad Insulation Corp. (1999) 

72 Cal.App.4th 284, 297.) Here, any number of inferences 

may be drawn from the fact that DAS did not immediately 

advise the federal district court of the transfer, including the 

fact that it was, as the district court subsequently concluded, 

under no legal obligation to do so. We join with the court in 

Contreras, supra, 5 Cal.App.5th at page 418, in expressing 

grave concern about inferring an attorney-client conspiracy 

from the mere existence of an attorney-client relationship.

In short, “ ‘[a]n anti-SLAPP motion is an evidentiary 

motion.’ ” (Contreras, supra, 5 Cal.App.5th at p. 405.) To 

successfully defend against a special motion under section 

425.16, Plaintiff was required to state and substantiate its 

claims with a prima facie showing of facts. (Navellier, supra, 

29 Cal.4th at pp. 88–89 & 93.) “The prima facie showing of 

merit must be made with evidence that is admissible at trial. 

[Citation.] Unverified allegations in the pleadings or 

averments made on information and belief cannot make the 

showing.” (Salma v. Capon (2008) 161 Cal.App.4th 1275, 

1289.) Plaintiff failed to meet its evidentiary burden. It 

relied on unverified allegations, averments made on 

information and belief, and, most critically, on evidence 

concerning only Defendants’ litigation-related 
34

communicative conduct—evidence that was, at best, 

equivocal—in proving up Plaintiff’s claims.8

Since the litigation privilege defeats Plaintiff’s claims

as a matter of law, we affirm the judgment below.9

 

8 The litigation privilege applies not only to Plaintiff’s 

claims for conversion and fraudulent transfer, but also to 

Plaintiff’s third cause of action, violation of Penal Code 

section 496, because the gravamen of Plaintiff’s claim 

against Defendants is based solely on their communicative 

conduct in ongoing litigation. (See Ribas v. Clark (1985) 38 

Cal.3d 355, 364–365; Kimmel v. Goland (1990) 51 Cal.3d 

202, 210–211; Rubin v. Green (1993) 4 Cal.4th 1187, 1193–

1194, 1196.) “[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.” (Kashian v. Harriman, supra, 98 

Cal.App.4th at p. 920.) As our 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 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.)

9 In light of our holding with respect to the 

applicability and effect of the litigation privilege, we decline 

to address Defendants’ other arguments for why Plaintiff 

could not show a probability of prevailing.
35

DISPOSITION

The orders are affirmed. The parties are to bear their 

own costs on appeal.

JOHNSON, J.

We concur:

CHANEY, Acting P. J.

LUI, J.
Filed 12/7/17

CERTIFIED FOR PUBLICATION

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION ONE

OPTIONAL CAPITAL, INC.,

Plaintiff and Appellant,

v.

AKIN GUMP STRAUSS, HAUER & 

FELD LLP et al.,

Defendants and Respondents.

 B275274

 (Los Angeles County

 Super. Ct. No. BC474472)

 CERTIFICATION AND

 ORDER FOR PUBLICATION

The opinion in the above-entitled matter filed 

November 16, 2017, was not certified for publication in the 

Official Reports. For good cause it now appears that the opinion 

should be published in the Official Reports and it is so ordered.

CHANEY, Acting P. J. JOHNSON, J. LUI, J.