Filed 1/26/23 Kelly v. Kelly CA1/1

NOT TO BE PUBLISHED IN OFFICIAL REPORTS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 This opinion has not been certified for publication or 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

FIRST APPELLATE DISTRICT

DIVISION ONE

THOMAS P. KELLY III,

Cross-complainant and

Respondent,

v.

JOHN A. KELLY,

Cross-defendant and

Appellant.

 A164293

 (Sonoma County

 Super. Ct. No. SCV-267688)

John A. Kelly (John) appeals from an order denying his special motion 

to strike Thomas P. Kelly III’s (Thomas) cross-complaint pursuant to Code of 

Civil Procedure1 section 425.16 (the anti-SLAPP2 statute). John contends the 

trial court erred in ruling that the anti-SLAPP statute did not apply to 

Thomas’s cross-claims for breach of fiduciary duty and fraud. We conclude 

John met his burden to show that Thomas’s cross-claim for fraud arose, in 

part, from protected litigation activity and Thomas did not meet his burden 

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.’ ” (Baral v. Schnitt (2016) 1 Cal.5th 376, 381, fn. 1 (Baral).)
2

to show a probability of prevailing as to that cross-claim. Accordingly, we 

will affirm in part and reverse in part the trial court’s order. 

I. BACKGROUND

As John notes in his opening brief, this is a family trust dispute 

involving a family filled with lawyers.3 We discuss only those facts relevant 

to the issues on appeal. 

A. The Family Trust and Underlying Malpractice Action

John and Thomas’s father, Thomas P. Kelly, Jr. (decedent), was a 

lawyer in Santa Rosa. In 1999, decedent established his revocable trust, the 

Thomas P. Kelly, Jr. Trust—1999 (Trust). His wife, Joyce, is the sole 

beneficiary of the Trust during her lifetime, and the couple’s three children, 

Thomas, John, and Heather, each of whom are lawyers, are the remainder 

beneficiaries of the Trust. 

Decedent died on February 24, 2020. Upon his death, decedent’s 

brother, William B. Kelly (William), became trustee of decedent’s Trust. 

When he died, decedent held a legal malpractice insurance policy through 

Lawyers’ Mutual Insurance Company (Lawyers’ Mutual) with a $1.5 million

aggregate policy limit. 

About a month before decedent died, Thomas contacted Lawyers’ 

Mutual by e-mail to inform the company of a potential malpractice claim 

against decedent by three of his former clients.4 Thomas forwarded his e3 For this reason, we refer to most individuals involved by their first 

name. We intend no disrespect. 

4 The parties disagree as to Thomas’s status during the period 

February to July 2020. John contends Thomas was acting as attorney to 

William in his role as trustee of the Trust during that time. In his 

declaration in support of his opposition to the anti-SLAPP motion, Thomas 

stated that he “never accepted any fees for work as an attorney from the 
3

mail to Hugh Rice Kelly (Hugh) and James Tynan Kelly (James), both also 

brothers of decedent, who are lawyers in Texas.5 Lawyers’ Mutual responded 

by letter to confirm receipt of the information about the potential malpractice 

claim.

6 

About a month after decedent died, Thomas informed Lawyers’ Mutual 

by letter and e-mail that his father had died. His e-mail requested “the 

closing of [decedent’s] account and related malpractice policy.” Thomas 

copied William, Hugh, and James on the e-mail. The next day, Hugh sent a 

response stating: “Tom, could this have any effect on malpractice claims 

brought against the estate? Obviously malpractice coverage needs to remain 

in place until limitations runs against potential malpractice plaintiffs. [¶] I 

feel sure you have this covered, but because the issue is so important I would 

like to double check. [¶] I also assume you have your own malpractice 

coverage.” Later the same day, James e-mailed Thomas, Hugh, and William

to “second Hugh’s comment,” advising that Thomas retain “malpractice 

insurance in place pending [William’s] qualification as executor & or trustee,” 

and suggesting he “send an email countermanding this email.” 

Thomas responded via e-mail to Hugh and copied William and James. 

In his e-mail, Thomas wrote: “Claims-made policy. All known claims were 

submitted in writing in January and acknowledged. [¶] Unknown claims are 

covered as policy was in force at the time of the insured event. Full policy 

attached, but pages out of order.” James replied to Thomas’s e-mail and 

Trust,” and “no retainer agreement [was] executed . . . .” At oral argument in 

the trial court, Thomas asserted he was only “attempting to help” William. 

5 Hugh was the successor trustee to William under the terms of the 

Trust. 

6 The former clients did not bring a malpractice claim. 
4

copied William and Hugh. James expressed concern about the insurance 

coverage and requested Thomas’s “fully reasoned legal memorandum & 

supporting case & statutory law in support.” Alternatively, he “strongly 

recommend[ed]” that Thomas rescind his notice of cancellation, let William 

pay the premium, and let William and his lawyers “sort the matter out.” 

Thomas responded: “He will need to contact them and tell them. Section 6.7 

allows policy accrual to successor.”

On March 30, 2020, a representative of Lawyers’ Mutual responded to 

Thomas’s letter by e-mail. The e-mail stated Lawyers’ Mutual was 

“processing cancellation of his E&O coverage, effective 2/24/2020” and 

attached an “Extended Reporting Period Endorsement (a.k.a., tail) quote . . . 

for [his] review and use.” The e-mail gave instructions for steps to follow to 

purchase tail coverage. Thomas forwarded the e-mail to William, Hugh, and 

James, and wrote: “[T]he malpractice carrier offered tail coverage outlined 

below. [¶] This should address your concerns about the policy. I have not 

responded as [William] should handle this directly.” Thomas sent a second email stating: “[T]he policy apparently terminates upon the death of the 

insured with tail coverage available per the prior e-mail.” James responded:

“Ok. That is good to know.” 

In May 2020, William commenced proceedings in probate court in 

Sonoma County to probate decedent’s will and appoint William as personal 

representative. William was represented in the probate matter by Joseph 

Piasta. 

About two months later, in July 2020, Piasta wrote to Thomas’s 

counsel7 that he had received notice of a potential malpractice claim against 

decedent by a former client, Oak Grove Construction Co., Inc. (Oak Grove). 

7 Thomas was represented by Edward Bernard at the time. 
5

Piasta attached a letter from Oak Grove’s attorney outlining allegations of 

professional negligence against decedent related to his representation of Oak 

Grove in a lawsuit in Marin County. Thomas sent a copy of the e-mail and 

attached letter regarding Oak Grove’s claim to Lawyers’ Mutual, receipt of 

which the insurance company acknowledged. The next month, John replaced 

Piasta as counsel for William. 

In late November 2020, counsel for Oak Grove filed creditors’ claims by 

Oak Grove and its owner in an amount “estimated to exceed one million 

dollars” in decedent’s probate matter. The next month, Thomas sent an email to Lawyers’ Mutual requesting an update as to the current status of the 

potential claim by Oak Grove. Lawyers’ Mutual did not respond. 

A short while later, John, as counsel for William, sent a letter to 

Attorney Wayne Littlefield, counsel for Lawyers’ Mutual. In the letter, John 

told Littlefield to direct any inquiries about the Oak Grove claim to him. He 

also wrote: “I recommend that if [Thomas] contacts you further, you direct 

him to me.”

In January 2021, Oak Grove, filed a complaint against William, as 

trustee of the Trust, and Joyce, Thomas, John, and Heather, as beneficiaries, 

alleging causes of action for legal malpractice, breach of contract, and breach 

of fiduciary duty for alleged legal malpractice by decedent. A couple of weeks 

later, Thomas called Littlefield concerning Oak Grove’s claim. In their phone 

conversation, Littlefield told Thomas that tail coverage had not been 

purchased for decedent’s malpractice policy and the Oak Grove claim was 

denied by Lawyers’ Mutual as a result. Thomas sent a follow-up e-mail to 

Littlefield, requesting that Littlefield send the “correspondence denying the 

claim so I can see what happened.” He further stated: “It appears that 
6

[William] elected not to purchase the tail coverage hence the denial of the 

claim.” Littlefield did not respond to the e-mail. 

The following month, Thomas spoke by phone with Oak Grove’s 

counsel, Nathaniel Lipanovich. During this conversation, Lipanovich 

revealed that John had sent him correspondence from Littlefield, counsel for 

Lawyers’ Mutual, denying coverage for Oak Grove’s claim. When Thomas 

asked Lipanovich to send him a copy of the coverage denial letter, Lipanovich 

refused, saying that John sent him the letter “on the explicit condition . . . 

that it not be disclosed to [Thomas].” Thomas followed up with an e-mail

repeating his request for a copy of the coverage denial letter. Thomas wrote 

to Lipanovich that John and William were “deliberately withholding that 

letter from [him]” and noted “[t]he document is not subject to any privilege.” 

Thomas further wrote: “I understand you had some form of agreement with 

[John] not to release it, but given that you have initiated a lawsuit in this 

matter, I do not see how that is enforceable under these conditions.” On 

March 16, 2021, Thomas received a copy of the coverage denial letter from 

Lawyers’ Mutual in response to his discovery request in the Oak Grove 

matter. 

B. The Cross-complaint and Anti-SLAPP Motion

On March 22, 2021, Thomas filed the verified cross-complaint at issue 

in this appeal, asserting causes of action for breach of fiduciary duty and 

fraud against William and John.8 Thomas alleged that William, as trustee of 

the Trust, had a fiduciary duty to administer the Trust with care, and that 

John, as counsel for William, had an affirmative fiduciary duty to keep the 

beneficiaries of the Trust reasonably informed of the Trust and its 

8 In June 2021, the parties settled the Oak Grove litigation and 

dismissed the action with prejudice. 
7

administration pursuant to Probate Code section 16060. Thomas alleged that 

William breached his fiduciary duty by failing to secure tail coverage for the 

Trust against potential malpractice claims, subjecting the Trust to Oak 

Grove’s claim, and John breached his fiduciary duty by failing to inform 

Thomas of the status of the Oak Grove claim. The cross-complaint further 

alleged that John actively concealed the status of the Oak Grove claim by 

instructing Lawyers’ Mutual, through Littlefield, not to discuss the matter 

with Thomas and by instructing Lipanovich not to release the insurance 

denial letter from Lawyer’s Mutual. 

The fraud cross-claim was based on similar allegations, but 

additionally alleged that John (and William) never informed Thomas about

and sought to conceal from him the failure to secure malpractice coverage 

through the tail quote. Thomas further specifically alleged that John (and 

William) “actively concealed, and intended to conceal, their breach of 

fiduciary duty by falsely claiming in the March 18, 2021 email” that

(1) Thomas cancelled the malpractice insurance policy, (2) Thomas declined 

tail coverage, (3) they (John and William) had previously requested 

malpractice insurance information from Thomas, and (4) they (John and 

William) had previously alleged a malpractice claim against Thomas. 

The March 18, 2021 e-mail is attached as an exhibit to the crosscomplaint. The e-mail is from John to Thomas; Lipanovich is copied. In the 

e-mail, John requested that Thomas stop communicating with William, who 

was represented by John’s firm, and noted that decedent’s estate was not a 

party to the Oak Grove action. John then wrote: “The mix-up in your 

correspondence is consistent with your past practice of mishandling matters

relating to our late father’s affairs, particularly your cancelling his 

malpractice insurance policy and declining tail coverage under the same. It 
8

is the trustee’s position that you are liable to the trust for your act of 

malpractice, and we request again you provide us with your malpractice 

insurance information so that we may submit a claim and have counsel begin 

a defense of this action.” 

Below this message is a “Forwarded message” that Thomas sent to 

William, Hugh, and James the day before. In that e-mail, which bears the 

subject line, “SCV-267688 Oak Grove vs Kelly—correspondence,” Thomas 

said he was writing “in regard to the pending litigation against the trust 

bearing case name Oak Grove Construction Company Inc. vs. Kelly” and a 

Sonoma County probate case. Thomas stated that John “is barred from 

representing the estate in this case” and asserted that “[t]here is an 

unavoidable conflict of interest given [John’s] role as co-defendant and 

beneficiary.” Thomas urged William, Hugh, and James “to seek competent 

counsel to represent the estate and prevent a default [in the Oak Grove 

malpractice matter] immediately.” 

John filed a special motion to strike the cross-complaint pursuant to 

section 425.16 (the anti-SLAPP motion). John asserted that Thomas’s crossclaims against him all arose from his representation of William in connection 

with the Oak Grove malpractice claim, as all of his alleged statements were 

“clearly made in anticipation of or in connection with this litigation, and 

concerned issues in the litigation, and were directed to persons having some 

interest in the litigation, and are therefore protected under section 425.16.” 

John also argued Thomas could not demonstrate a probability of prevailing 

on his claims because the undisputed evidence showed his statements were 

true, Thomas did not rely on them, John did not actively participate in the 

failure to procure malpractice coverage or personally benefit from his 

representation of William, the cross-claims were barred by the litigation 
9

privilege, and Thomas did not suffer any damages because the Oak Grove 

litigation had settled and their mother, Joyce, paid the settlement out of her 

own funds so the Trust was not harmed. 

Thomas opposed the motion, arguing that John could not demonstrate 

the cross-claims arose out of protected activity because they arose solely from 

the conduct of John and William in attempting to conceal the status of the 

Oak Grove case from Thomas and fabricate a malpractice claim against him

and were independent of the claims in the Oak Grove case. Thomas also 

argued he had demonstrated his cross-claims had “at least minimal merit.” 

The trial court denied the anti-SLAPP motion, concluding John failed 

to meet his burden to show Thomas’s causes of action arose from protected 

activity. The court rejected John’s argument that his alleged conduct was 

protected as litigation activity in connection with his representation of 

William in the Oak Grove matter. The court explained: “Although 

[Thomas’s] causes of action are based in part on communications, and more 

specifically false communications or concealment, these are only tangentially 

related to the malpractice litigation. They are alleged communications or 

non-communications to Trust beneficiaries under the duty to inform trust 

beneficiaries about a trust. They only related to issues or events in litigation 

and as a basis for Thomas’s cross-complaint, they are not statements made 

in, or related to, litigation or litigation activity. In this cross-complaint, 

Thomas complains of this conduct solely as breach of trustee duties to 

beneficiaries. Similarly, the failure to ensure adequate malpracticeinsurance coverage is not even speech activity and has no relation to the 
10

malpractice litigation aside from exposing the trust to liability for that 

litigation.”9 

John timely appealed the trial court’s order denying his anti-SLAPP 

motion.

10

II. DISCUSSION

John contends the trial court erred by denying his special motion to 

strike the cross-complaint under the anti-SLAPP statute. 

A. The Anti-SLAPP Motion

1. Governing Law

The anti-SLAPP statute authorizes a special motion to strike meritless 

claims early in the litigation if the claims “aris[e] 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); Monster Energy Co. v. Schecter (2019) 

7 Cal.5th 781, 788 (Monster Energy).) “ ‘Resolution of an anti-SLAPP motion 

involves two steps. First, the defendant must establish that the challenged 

claim arises from activity protected by section 425.16. [Citation.] If the 

defendant makes the required showing, the burden shifts to the plaintiff to 

9 The trial court noted that Thomas alleged sufficient facts to set forth 

a prima facie case for each cause of action in his cross-complaint, but 

submitted no actual evidence with his opposition papers. Because it found 

John had failed to meet his burden to show the claims arose from protected 

activity, the trial court deemed that failure “unimportant here,” but noted 

that if it had found the claims arose from protected activity, Thomas “would 

then have the burden of providing evidence supporting the probability of 

success.” 

10 John also purports to appeal from the trial court’s denial of attorney 

fees in connection with his motion to vacate entry of default pursuant to 

section 473, subdivisions (b) and (c). We address briefly below why that issue 

is not appealable. 
11

demonstrate the merit of the claim by establishing a probability of success.’ ” 

(Monster Energy, at p. 788.) If the plaintiff makes a showing of “ ‘ “minimal 

merit,” ’ ” the claim may proceed. (Ibid.) 

We review de novo the grant or denial of an anti-SLAPP motion. 

(Monster Energy, supra, 7 Cal.5th at p. 788.) 

2. Protected Activity (First Prong) 

John first asserts the trial court erred in ruling that Thomas’s crossclaims do not arise from protected activity under the first prong of the antiSLAPP inquiry.

“A claim arises from protected activity when that activity underlies or 

forms the basis for the claim.” (Park v. Board of Trustees of California State 

University (2017) 2 Cal.5th 1057, 1062 (Park).) “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.’ [Citation.] . . . [T]he focus 

is on determining what ‘the defendant’s activity [is] that gives rise to his or 

her asserted liability—and whether that activity constitutes protected speech 

or petitioning.’ ” (Id. at p. 1063.) In the first step of the anti-SLAPP analysis, 

“courts are to ‘consider the elements of the challenged claim and what actions 

by the defendant supply those elements and consequently form the basis for 

liability.’ [Citation.] The defendant’s burden is to identify what acts each 

challenged claim rests on and to show how those acts are protected under a 

statutorily defined category of protected activity.” (Bonni v. St. Joseph 

Health System (2021) 11 Cal.5th 995, 1009.) “We review the parties’ 

pleadings, declarations, and other supporting documents at this stage of the 

analysis only ‘to determine what conduct is actually being challenged, not to 

determine whether the conduct is actionable.’ ” (Castleman v. Sagaser (2013) 

216 Cal.App.4th 481, 491.) 
12

At times, a challenged cause of action may arise from both protected 

and unprotected activity, i.e., a “ ‘mixed cause of action.’ ” (Baral, supra,

1 Cal.5th at p. 381.) “When relief is sought based on allegations of both 

protected and unprotected activity, the unprotected activity is disregarded [at 

the first step of the anti-SLAPP analysis]. If the court determines that relief 

is sought based on allegations arising from activity protected by the statute, 

the second step is reached. There, the burden shifts to the plaintiff to 

demonstrate that each challenged claim based on protected activity is legally 

sufficient and factually substantiated.” (Id. at p. 396.) 

Here, Thomas alleges that John violated his fiduciary duty to Thomas 

as a beneficiary of the Trust under Probate Code section 16060 by failing to 

inform him about and actively concealing the status of the Oak Grove

malpractice claim and William’s failure to secure tail coverage. His fraud 

claim is based on those same allegations as well as on allegations that John 

made false representations about alleged malpractice by Thomas in the 

March 18, 2021 e-mail. 

The elements of a breach of fiduciary duty claim are (1) the existence of 

a fiduciary duty, (2) breach of that duty, and (3) damage proximately caused 

by the breach. (Stanley v. Richmond (1995) 35 Cal.App.4th 1070, 1086.) The 

elements of a fraud claim are (1) a misrepresentation (false representation, 

concealment, or nondisclosure); (2) knowledge of falsity; (3) intent to induce 

reliance; (4) justifiable reliance; and (5) resulting damage. (Hoffman v. 

162 North Wolfe LLC (2014) 228 Cal.App.4th 1178, 1185–1186.) 

According to the allegations of the cross-complaint, the following acts 

by Thomas formed the basis of both his fraud and breach of fiduciary duty 

cross-claims: (1) John’s failure to inform Thomas about the status of the Oak 

Grove malpractice claim, (2) John’s failure to tell Thomas that William failed 
13

to secure tail coverage, (3) John’s instruction to Littlefield not to discuss the 

Oak Grove malpractice claim with Thomas, and (4) John’s instruction to 

Lipanovich not to share the coverage denial letter from Lawyers’ Mutual with 

Thomas. Thomas’s fraud cross-claim also asserts that John made four 

knowingly false statements in his March 18, 2021 e-mail to Thomas, with 

intent to conceal his breach of fiduciary duty: (1) that Thomas canceled 

decedent’s malpractice policy; (2) that Thomas declined tail coverage; (3) that 

John and William previously requested malpractice insurance information 

from Thomas; and (4) that John and William previously alleged a malpractice 

claim against Thomas. 

A cross-defendant meets his or her burden of showing the activity 

underlying cross-complainant’s claim was itself an act of petitioning or free 

speech “ ‘by demonstrating that the act underlying the plaintiff’s cause fits 

one of the categories spelled out in section 425.16, subdivision (e).’ ” (City of 

Cotati v. Cashman (2002) 29 Cal.4th 69, 78.) John contends all of Thomas’s 

cross-claims arise from protected activity under the plain language of 

section 425.16, subdivisions (e)(1) and (2). Under section 425.16, 

subdivision (e)(1), protected activity includes “ ‘any written or oral statement 

or writing made before a . . . judicial proceeding,’ ” and under 

subdivision (e)(2), it includes “ ‘any written or oral statement or writing made 

in connection with an issue under consideration or review by a . . . judicial 

body.’ ” John asserts that because all of his alleged conduct consisted of oral 

and written statements and other “ ‘communicative acts’ ” resulting from his 

representation of William in connection with anticipated or pending 

litigation, the trial court should have concluded he met the first prong of the 

anti-SLAPP analysis. 
14

We disagree. First, as to the conduct underlying both the breach of 

fiduciary duty and fraud cross-claims—specifically, John’s failure to inform 

Thomas about the denial of the Oak Grove malpractice claim and absence of

tail coverage and John’s instructions to Littlefield and Lipanovich not to 

share information with Thomas regarding the denial of the Oak Grove 

malpractice claim by Lawyers’ Mutual—we agree with the trial court those 

claims do not arise from protected activity because they are only tangentially 

related to the malpractice litigation.

11 Although the anti-SLAPP statute 

provides broad protection for litigation-related activities, “it does not follow 

that any claims associated with those activities are subject to the anti-SLAPP 

statute.” (Kolar v. Donahue, McIntosh & Hammerton (2006) 145 Cal.App.4th 

1532, 1537; Hylton v. Frank E. Rogozienski, Inc. (2009) 177 Cal.App.4th 1264, 

11 Nor do we agree with John that his alleged conduct arose from the 

underlying probate matters. First, as Thomas correctly notes, John has 

forfeited this argument by failing to raise it in the trial court. (Fedunikak v. 

California Coastal Com. (2007) 148 Cal.App.4th 1346, 1381.) In any event, 

even if he had not forfeited the argument, John has not shown his alleged 

concealment of information about the Oak Grove malpractice claim arose 

from the probate matters, which according to John’s own briefing and 

evidence concerned only the probate of decedent’s will, appointment of 

William as a personal representative, and a Heggstad petition to have his 

assets transferred from decedent’s estate to the Trust. (See Estate of 

Heggstad (1993) 16 Cal.App.4th 943.) Indeed, in the December 2020 letter to 

Littlefield, John wrote: “I am [William’s] . . . . attorney as the named 

executor for [decedent’s estate], although there are no estate proceedings 

underway aside for the already-granted Heggstad petition.” Likewise, the 

fact that Oak Grove filed a creditor’s claim in one of the probate matters in 

November 2020 does not change the analysis. The claim, which entirely 

concerned decedent’s alleged malpractice, at most potentially subjected the 

Trust assets to a judgment in the Oak Grove matter, but is collateral to the 

issue of whether John is liable for breach of fiduciary duty to Thomas as a 

beneficiary of the Trust for failing to disclose information about the denial of 

the malpractice claim and lack of tail coverage. 
15

1275 [client’s action against his or her attorney, whether it is pleaded as a 

claim for malpractice, breach of fiduciary duty, or any other theory of 

recovery is not subject to the anti-SLAPP statute just because some 

allegations refer to attorney’s action representing client]; California Back 

Specialists Medical Group v. Rand (2008) 160 Cal.App.4th 1032, 1037 [“Not 

all attorney conduct in connection with litigation, or in the course of 

representing clients, is protected by section 425.16.”].) 

Here, the activity underlying the cross-claims was John’s effort to 

conceal the denial of the malpractice claim and absence of tail coverage from 

Thomas in breach of an alleged fiduciary duty to Thomas as a beneficiary of 

the Trust, not John’s acts as an attorney in representing his client, William, 

in connection with the Oak Grove action. (See, e.g., Wittenberg v. Bornstein 

(2020) 50 Cal.App.5th 303, 314 [attorney’s acts of representing clients with 

interests adverse to his former client and using confidential information in 

new representation arose from alleged breach of fiduciary duties and 

professional obligations, not litigation conduct, which was merely incidental 

to unprotected conduct]; Gaynor v. Bulen (2018) 19 Cal.App.5th 864, 879–880 

[although alleged breach of fiduciary duty may have been carried out by 

protected activity of filing probate petitions, those litigation activities only 

provided evidence of alleged breach of fiduciary duty but did not form basis of 

trust beneficiaries’ claim]; Park, supra, 2 Cal.5th at p. 1068 [comments made 

in protected communications supplied evidence of discriminatory animus but 

statements themselves were not basis for liability]; Department of Fair 

Employment & Housing v. 1105 Alta Loma Road Apartments, LLC (2007) 

154 Cal.App.4th 1273, 1284–1285 [letters, e-mail, and filing of unlawful 

detainer actions constituted evidence of alleged disability discrimination but 

were not the acts on which complaint was based].) 
16

“[A] claim is not subject to a motion to strike simply because it . . . was 

. . . communicated by means of speech or petitioning activity. Rather, a claim 

may be struck only if the speech or petitioning activity itself is the wrong 

complained of, and not just evidence of liability or a step leading to some 

different act for which liability is asserted.” (Park, supra, 2 Cal.5th at 

p. 1060.) The statements by John in his letter to Littlefield and phone calls 

with Lipanovich and Littlefield, while conveyed orally and in writing by John 

as attorney for William, were not themselves the basis of Thomas’s crossclaims. Rather, the statements provide evidence of John’s alleged 

concealment in derogation of a statutory duty to keep beneficiaries informed 

about the Trust. Likewise, the failure to disclose information about denial of 

the malpractice claim and failure to obtain tail coverage, although occurring 

during John’s representation of William, concern his alleged breach of duty to 

Thomas as a beneficiary, not John’s actions in representing William, or the 

substantive issues in either the Oak Grove litigation or the probate matters. 

Because these claims arose out of an alleged breach of fiduciary duty only 

incidentally connected with litigation activity, the trial court properly denied 

the anti-SLAPP motion as to those allegations.12 

12 We find John’s reliance on Seltzer v. Barnes (2010) 182 Cal.App.4th 

953; Bergstein v. Stroock & Stroock & Lavan LLP (2015) 236 Cal.App.4th 

793; Cabral v. Martins (2009) 177 Cal.App.4th 471; Contreras v. Dowling

(2016) 5 Cal.App.5th 394; and Finton Construction, Inc. v. Bidna & Keys, 

APLC (2015) 238 Cal.App.4th 200 unavailing. In each of those cases, unlike 

here, communicative conduct by attorneys in anticipation of or during 

litigation was the alleged injury-producing conduct that formed the basis of 

the claim. (Seltzer, at p. 963 [settlement negotiations]; Bergstein, at p. 811 

[alleged tortious activity centered in defendant’s role as counsel including 

devising and implementing legal strategy, instituting litigation, and drafting 

and exchanging pleadings]; Cabral, at p. 479 [allegations arose from attorney 

revisions to estate plan, attempt to implement estate plan through probate 

proceedings, and defense of respondents in litigation]; Contreras, at p. 411 
17

John further contends the trial court erred because he did not owe a 

duty of disclosure to Thomas under Probate Code section 16060, as that duty 

applies only to the trustee, not the trustee’s attorney. John’s argument, 

however, pertains to the merits of Thomas’s claim, an issue we do not 

consider at the first stage of the anti-SLAPP analysis.

13 (Coretronic Corp. v. 

Cozen O’Connor (2011) 192 Cal.App.4th 1381, 1388 [“Arguments about the 

merits of the claims are irrelevant to the first step of the anti-SLAPP 

analysis.”]; Sprengel v. Zbylut (2015) 241 Cal.App.4th 140, 156 [arguments 

regarding absence of attorney-client relationship improperly conflated first 

and second prongs of anti-SLAPP test; “ ‘sole inquiry’ under the first prong of 

the test is whether the plaintiff’s claims arise from protected speech or 

petitioning activity”].) 

Nor have we concluded that the alleged activity is unprotected merely 

because Thomas alleged it was unlawful. “[A]t the first step of the antiSLAPP analysis, we routinely . . . examine[] the conduct of defendants 

without relying on whatever improper motive the plaintiff alleged.” (Wilson 

v. Cable News Network, Inc. (2019) 7 Cal.5th 871, 888 [only question at first 

stage is whether defendant has made out a prima facie case that activity 

[attorney’s acts consisted of advice to clients and writing a letter to opposing 

counsel]; Finton, at p. 210 [retention of computer hard drive obtained from 

client in litigation].) 

13 In any event, as the trial court expressly noted in its ruling, a trust 

beneficiary may bring a proceeding against a third party (including an 

attorney) who actively participates in or knowingly benefits from a trustee’s 

breach of trust. (See, e.g., Cortese v. Sherwood (2018) 26 Cal.App.5th 445, 

455 [“California law recognizes an attorney can be liable for participating in a 

trustee’s breach of fiduciary duty to a beneficiary”]; Pierce v. Lyman (1991) 

1 Cal.App.4th 1093, 1102–1106 [beneficiary may bring cause of action against 

attorney for trustee for active participation in trustee’s breach of fiduciary 

duty].) 
18

underlying plaintiff’s claims is statutorily protected, not whether its acts 

were ultimately lawful]; Navellier v. Sletten (2002) 29 Cal.4th 82, 92 [nothing 

in the anti-SLAPP statute categorically excludes any particular type of action 

from its operation].) Here, denial of the anti-SLAPP motion was proper not 

because Thomas alleged John’s conduct was fraudulent or illegal, but because 

the alleged conduct was not in furtherance of John’s free speech or 

petitioning rights. 

We find a different analysis applies, however, with respect to the 

allegations of fraud regarding the March 18, 2021 e-mail.

14 Written 

statements made by an attorney in connection with an issue under 

consideration by a judicial body is petitioning activity protected by the antiSLAPP statute. (§ 425.16, subd. (e)(2).) “An attorney’s communication with 

opposing counsel on behalf of a client regarding pending litigation directly 

implicates the right to petition and thus is subject to a special motion to 

strike.” (GeneThera, Inc. v. Troy & Gould Professional Corp. (2009) 

171 Cal.App.4th 901, 908.)

We conclude John met his burden to show the alleged fraudulent 

statements in his March 18, 2021 e-mail were protected activity within the 

meaning of section 425.16, subdivision (e)(2). The March 18 e-mail was 

John’s response to a communication from Thomas about John’s 

representation of William in the pending Oak Grove litigation. The e-mail

was a direct response to Thomas’s accusations that John had a conflict of 

interest in the Oak Grove litigation and was sent by John as counsel for 

William as trustee. Moreover, the alleged false representations regarding 

Thomas’s alleged malpractice and request for his malpractice insurance 

14 We observe the trial court did not discuss the March 18, 2021 e-mail

in its order denying the anti-SLAPP motion. 
19

carrier information were made in connection with John’s statement in the 

same e-mail that they were seeking to obtain a defense in the Oak Grove 

litigation. 

In the trial court and on appeal, Thomas contends the March 18 e-mail

cannot be protected activity, because discovery responses provided by 

William demonstrate John’s activity was unauthorized by his client. Thomas 

served a special interrogatory on William seeking “all facts supporting YOUR 

claim against [Thomas] for legal malpractice as stated by JOHN KELLY in 

that e-mail of March 18, 2021 which is attached to the CROSS-COMPLAINT 

and marked as Exhibit DD.” After objecting that the special interrogatory 

called for a legal conclusion, expert opinion, attorney-client privileged 

information, work product, and that the phrase “ ‘claim’ ” is vague and 

ambiguous, William responded to the interrogatory by stating in relevant 

part: “I did not authorize John Kelly to threaten legal malpractice against 

Thomas P. Kelly, III, but believe any such contention would be based on the 

following . . . .” The response goes on to describe Thomas’s role in advising 

William and helping him manage the “wind-up” of decedent’s law practice. 

Thomas contends this discovery response shows that John never had 

authorization from William to assert a malpractice claim against Thomas, 

and argues under Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1062 (Rusheen), 

that John’s unauthorized statement in the March 18, 2021 e-mail cannot be 

protected activity. 

Thomas’s argument is unavailing. In Rusheen, our Supreme Court 

held that the trial court properly granted an anti-SLAPP motion on an abuse 

of process claim arising from the plaintiff-attorney’s execution of a default 

judgment procured through the filing of allegedly false declarations of 

service. (Rusheen, supra, 37 Cal.4th at p. 1065.) The gravamen of the action 
20

in Rusheen was the procurement of the judgment based on the allegedly 

perjured declarations of service, and because the declarations were 

communications “ ‘(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,’ ” they were subject to the litigation privilege, precluding the crossclaim for abuse of process. (Id. at p. 1062.) 

It appears Thomas relies on Rusheen to argue the e-mail cannot be 

protected conduct because it was “unauthorized.” It is not clear what William 

meant in his discovery response by his statement that he did not “authorize 

John Kelly to threaten malpractice” (italics added), but he does not deny John 

Kelly was representing him as trustee of the Trust in writing the March 18, 

2021 e-mail, nor does the discovery response indicate the content of the email was unauthorized. Based on our review of the pleadings and the 

evidence, the March 18 e-mail was a written communication from John as 

attorney for William made during the course of litigation related to obtaining 

a defense of the pending Oak Grove litigation, and thus falls within protected 

activity under section 425.16, subdivision (e)(2). 

We likewise reject Thomas’s argument that John’s activity is not 

protected because it was fraudulent. As noted above, we generally disregard 

the alleged motives of the cross-defendant at the first step of the anti-SLAPP 

analysis. (Wilson v. Cable News Network, Inc., supra, 7 Cal.5th at p. 888.) 

Moreover, in making this argument, Thomas relies on cases that did not 

involve the anti-SLAPP statute. Finally, while it is true that a special motion 

to strike cannot be used by a defendant whose allegedly protected activity 

was illegal, the illegality exception applies only if the defendant’s activity is 

“illegal as a matter of law,” because either the defendant concedes the point 
21

or the evidence provided “conclusively establishes” illegality. (Flatley v. 

Mauro (2006) 39 Cal.4th 299, 320.) That is not the case here. 

This communication constituted protected activity, and accordingly, 

the burden shifted to Thomas to demonstrate a probability of prevailing on 

his fraud claim based on the March 18, 2021 e-mail. 

3. Probability of Prevailing (Second Prong)

The trial court ruled that Thomas’s cross-complaint did not arise from 

constitutionally protected speech or petitioning activity, and accordingly, did 

not reach the second step of the anti-SLAPP analysis. Because our review of 

the issue is de novo and the parties have fully briefed the issue, however, we 

will address whether Thomas has shown a probability of prevailing in the 

interest of judicial economy. (See, e.g., Santa Clara Waste Water Co. v. 

County of Ventura Environmental Health Division (2017) 17 Cal.App.5th 

1082, 1091.)

When deciding whether the plaintiff has met the second-step burden on 

an anti-SLAPP motion, we proceed as we do on a summary judgment motion. 

(Baral, supra, 1 Cal.5th at p. 384.) We consider the pleadings and determine 

whether the cross-complainant’s evidence, accepted as true, and the 

inferences reasonably drawn from that evidence are sufficient to sustain a 

judgment in favor of the cross-complainant. (Id. at pp. 384–385.) We 

consider the cross-defendant’s evidence only to determine whether it defeats 

the challenged claim as a matter of law. (Id. at p. 385.) 

John advances multiple arguments that Thomas’s cross-claim for fraud 

lacks minimal merit, but because we find one of them dispositive, we need 

not address the others. As noted above, Thomas’s cross-complaint alleges 

damages based on John’s (and William’s) actions subjecting the assets of the 

Trust to the Oak Grove claim. However, it is undisputed that the Oak Grove 
22

litigation has been dismissed with prejudice after the parties settled and that 

no portion of the settlement was paid “directly or indirectly” from the Trust. 

Accordingly, Thomas cannot show that he suffered any harm as a result of 

the alleged failure to inform him about the status of the Oak Grove litigation 

or the failure to obtain tail coverage. In his respondent’s brief, Thomas does 

not assert he sustained any damages, nor has he presented any admissible 

evidence that he did so. Accordingly, his cross-claim for fraud based on the 

March 18, 2021 e-mail fails. 

In sum, to the extent Thomas’s cross-claims are based on conduct other 

than the March 18, 2021 e-mail, the claims do not arise from activity 

protected by the anti-SLAPP statute and are not subject to being stricken 

under the statute regardless of his probability of prevailing on the claims. 

But to the extent the fraud cross-claim is based on the representations made 

in the March 18 e-mail, it does arise from protected activity. Because 

Thomas has failed to show a probability of prevailing on that claim, it must 

be stricken from the cross-complaint.15

B. Amended Request for Judicial Notice and Second Motion to 

Augment Record

John filed an amended request for judicial notice asking us to notice 

the register of actions in each of the probate matters initiated by William, 

Thomas’s verified petition to remove William as trustee of the Trust and for 

an accounting, and William’s petition for approval of adjustment between 

principal and income. We deny the amended request for judicial notice as the 

documents were not before the trial court in ruling on the motion and are not 

15 The allegations that must be stricken from the cross-complaint are 

the following: the entirety of paragraphs 69–74, the last sentence of 

paragraph 78, and the entirety of paragraphs 112–115. Exhibit DD (the 

March 18, 2021 e-mail) must also be stricken. 
23

necessary to our resolution of this appeal. (See, e.g., Save Lafayette Trees v. 

East Bay Regional Park Dist. (2021) 66 Cal.App.5th 21, 29, fn. 2 [denying 

request for judicial notice of additional documents not necessary to resolution 

of appeal]; People v. Preslie (1977) 70 Cal.App.3d 486, 493 (Preslie) [generally, 

court should not take judicial notice of matter that has not been considered 

by trial court in first instance].) 

John also filed a second motion16 to augment the record one day after 

he filed the reply brief in this matter. We deny the request because it is 

untimely. (Ct. App., First Dist., Local Rules, rule 4(c), Augmentations of the 

Record [“Any motion filed in this court to augment a record shall be 

submitted on the earliest date practicable. Appellants should file any such 

request in one motion filed no later than 30 days after the record has been 

filed in this court . . . . Thereafter, motions to augment will be considered only 

upon a showing of good cause.”]; Preslie, supra, 70 Cal.App.3d at p. 492

[“requests for augmentation made after a reasonable time has expired from 

receiving the record on appeal . . . will be denied absent a strong showing of 

unusual or unavoidable circumstances giving rise to the delay”].) In any 

event, the material John seeks to add to the record relates to the trial court’s 

denial of attorney fees on his motion to vacate default, which for reasons we 

discuss below, we do not consider. 

C. Attorney Fees on Motion to Vacate Default

John also purports to appeal from the trial court’s July 15, 2021 order 

granting his motion to vacate a default but denying his request for attorney 

fees and sanctions. John contends the trial court erred in denying attorney 

fees and sanctions because the undisputed facts show Thomas violated his 

16 We granted the first motion to augment the record filed with the 

opening brief. 
24

ethical duties in seeking to have the default entered while John had informed 

Thomas he was out of state attending their uncle’s funeral. John asserts the 

order is appealable as “a collateral order unconnected to the outcome of the 

anti-SLAPP appeal or the judgment that will be entered later based on the 

outcome of this case,” and his request for attorney fees and sanctions is “ ‘too 

independent of the cause itself to require that appellate consideration be 

deferred until the whole case is adjudicated.’ ” 

We need not address whether the trial court erred in denying fees 

because we conclude the order is not appealable. The existence of an 

appealable order is a prerequisite to appellate jurisdiction. (Olson v. Cory 

(1983) 35 Cal.3d 390, 398.) 

“ ‘To qualify as appealable under the collateral order doctrine, the 

interlocutory order must (1) be a final determination (2) of a collateral matter 

(3) and direct the payment of money or performance of an act.’ ” (Sanchez v. 

Westlake Services, LLC (2022) 73 Cal.App.5th 1100, 1107–1108 [collecting 

cases]; see Dr. V Productions, Inc. v. Rey (2021) 68 Cal.App.5th 793, 797 

[“[t]he modern formulation” of the collateral order doctrine “makes no

mention of an order denying the payment of money or refusing to require 

performance of an act”]; Sese v. Wells Fargo Bank, N.A. (2016) 2 Cal.App.5th 

710, 716 [order denying interim attorney fees was not appealable as collateral 

order].)17 The trial court’s order denying John’s request for attorney fees and 

17 John cites Muller v. Fresno Community Hospital & Medical Center 

(2009) 172 Cal.App.4th 887, as supporting the appealability of an order 

denying sanctions but that case represents a minority view. (Eisenberg et al., 

Cal. Practice Guide: Civil Appeals and Writs (The Rutter Group 2022) 

¶¶ 2:79–2:80.) Moreover, in Muller, unlike here, the appellate court 

concluded that the order denying sanctions for alleged misconduct during a 

second trial likely would not be reviewable after the appellate court 
25

sanctions does not direct payment of money or performance of an act and,

accordingly, is not separately appealable. 

III. DISPOSITION

The order denying the anti-SLAPP motion is reversed and the matter is 

remanded to the trial court with directions to enter a new order granting the 

motion in part, by striking the portions of the cross-complaint alleging fraud 

based on the March 18, 2021 e-mail (see fn. 15, ante), and otherwise denying 

the motion. The parties shall bear their own costs on appeal.

MARGULIES, J.

WE CONCUR:

HUMES, P. J.

BANKE, J.

remanded for a third trial. (Muller, at pp. 904–905.) Because no such 

considerations pertain here, we find Muller distinguishable.