Filed 3/17/22 The Law Offices of Paul N. Philips v. Rudich CA2/3

NOT TO BE PUBLISHED IN THE OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not 

certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not 

been certified for publication or ordered published for purposes of rule 8.1115.

IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION THREE

THE LAW OFFICES OF 

PAUL N. PHILIPS, A

Professional Law Corporation,

Plaintiff and Respondent,

v.

DAVID P. RUDICH et al.,

Defendants and Appellants.

 B305942

 (Los Angeles County

 Super. Ct.

 No. 19SMCV00655)

APPEAL from an order of the Superior Court of Los Angeles 

County, Elaine W. Mandel, Judge. Affirmed.

Law Offices of Philip Kaufler and Philip Kaufler for 

Defendants and Appellants.

Law Offices of Paul N. Philips, Paul N. Philips and 

Samantha E. Mirabello for Plaintiff and Respondent.

——————————
2

The Law Offices of Paul N. Philips, A Professional Law 

Corporation (Philips APLC) sued David P. Rudich and the Law 

Office of David Rudich (collectively Rudich) for declaratory relief 

and defamation per se. Rudich moved to specially strike the 

defamation per se cause of action under Code of Civil Procedure

section 425.16 (anti-SLAPP statute).

1 The trial court denied the 

motion, finding Rudich failed to establish the defamation per se

allegations were based on protected activity. Rudich contends the 

trial court erred because his statements were subject to the 

litigation privilege. We disagree and affirm.

BACKGROUND

I. The Underlying Litigation and Fee Dispute

In 2013, Rudich introduced a high-profile client to Philips 

APLC to represent the client in a music copyright infringement

case. Pursuant to a written agreement, Rudich and Philips APLC 

agreed to share legal fees earned from the litigation. After Philips

APLC achieved a favorable result and substantial fee award, 

Rudich and Philips APLC disagreed over Rudich’s share of the fees. 

Rudich claimed he was entitled to 50 percent of the total fee award,

while Philips APLC claimed Rudich was entitled to an amount 

proportionate to the number of hours worked. 

When Philips APLC refused to pay Rudich the disputed share 

of legal fees, Rudich allegedly made disparaging remarks about 

Philips APLC to the high-profile client involved in the litigation,

and to Philips APLC’s former clients and other professionals in the 

1 Subsequent undesignated statutory references are to the 

Code of Civil Procedure. “SLAPP” is an acronym for strategic

lawsuit against public participation. (Briggs v. Eden Council for 

Hope & Opportunity (1999) 19 Cal.4th 1106, 1109 & fn. 1.)
3

entertainment industry. Rudich allegedly said: (1) Philips APLC

holds, takes, converts, and wrongfully retains clients’ funds; 

(2) Philips APLC’s business model includes ignoring and being 

purposely inattentive to clients; and (3) Philips APLC’s principal

was fired from his former law firm for being inattentive to clients.2

Philips APLC sued Rudich for declaratory relief to resolve the 

fee dispute and for defamation per se for the subsequent statements 

to the high-profile client, Philips APLC’s current, former, and 

potential client pool, and industry professionals. 

II. Rudich’s Motion to Strike

Rudich filed a special motion to strike the defamation per se 

cause of action under section 425.16, asserting the alleged 

statements were subject to the litigation privilege. In support of the 

motion, Rudich declared he had referred over 10 clients to Paul N. 

Philips (Philips) individually and each time he was told Philips 

would pay him 50 percent of all fees he derived from the litigation. 

Rudich denied telling the high-profile client or any other person 

that Philips APLC or Philips wrongfully retained client funds, 

2 At the request of Philips APLC, the first amended complaint 

was filed under seal in the trial court, but no request to seal was 

filed in this court. We note both sides recite in their trial court 

briefs and appellate briefs the content of the alleged defamatory 

statements, all of which was redacted in the publicly accessible 

version of the first amended complaint. We also note Philips APLC 

identifies the high-profile client’s case information in its opening 

brief. Though redacted in the trial court, we would be unable to 

review the issues on appeal without reciting the alleged defamatory 

statements in our opinion. In all other respects, we have 

endeavored to refer only generally to redacted allegations. 
4

ignored their clients, or that Philips was fired from a law firm for 

being inattentive to clients. 

In opposition, Philips APLC submitted the declarations of 

Philips and Robert Elliott Clarke. Philips declared he learned in 

April 2019 Rudich had begun a smear campaign against him and 

his firm. He sent Rudich a cease and desist letter that garnered no 

response. Philips later learned Rudich continued to defame him 

and his law firm to the high-profile client, other former clients, and 

lawyers and professionals in Los Angeles, Beverly Hills, West 

Hollywood and entertainment communities, prompting the first 

amended complaint’s cause of action for defamation per se. 

Clarke declared Rudich introduced him to Philips in 2013 to 

handle a case for his late father. After losing touch with Philips, 

Clarke called Rudich in July or August of 2017 to inquire about his 

father’s case. Clarke declared Rudich said he did not know about 

the case, but that Clarke should check with Philips because his 

office had been stealing money from clients for years and probably 

had all his father’s money. Clarke then called Philips, who assured 

him his father’s case had been handled appropriately and recovery 

from his case had been properly distributed. 

The court denied the motion to strike, finding, Rudich did “not 

provide specific allegations as to how such representations relate to 

or are necessary to prepare for anticipated litigation. That the 

parties were involved in a dispute over fees does not, on its own, 

render any and all representation[s] made by [Rudich] about 
5

[Philips APLC] protected petitioning activity. [Rudich] fail[ed] to 

establish the allegations are based on protected activity.” 

Rudich timely appealed.

3 

DISCUSSION

I. Overview

The anti-SLAPP statute provides a procedure for the early 

dismissal of what are commonly known as SLAPP suits—litigation 

of a harassing nature, brought to challenge the exercise of protected 

free speech rights. (Fahlen v. Sutter Central Valley Hospitals (2014) 

58 Cal.4th 655, 665, fn. 3.) “The anti-SLAPP statute does not 

insulate defendants from any liability for claims arising from the 

protected rights of petition or speech. It only 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.)

Pursuant to section 425.16, subdivision (b)(1), a litigant may move 

to strike a “cause of action against a person arising from any act of 

that person in furtherance of the person’s right of petition or free 

speech under the United States . . . or . . . California Constitution in 

connection with a public issue.”

We review an order granting or denying a special motion to 

strike de novo. (Oasis West Realty, LLC v. Goldman (2011) 

51 Cal.4th 811, 820.) In evaluating an anti-SLAPP motion, we first 

determine whether the moving defendant has made a threshold 

showing that the challenged action arises from protected activity, 

i.e., activity in furtherance of the rights of petition or free speech. 

(Rusheen v. Cohen (2006) 37 Cal.4th 1048, 1056; § 425.16, subd. (e).) 

3 An order denying an anti-SLAPP motion is appealable. 

(§§ 425.16, subd. (i), 904.1, subd. (a)(13).)
6

If the defendant makes that threshold showing, the burden shifts to 

the plaintiff to demonstrate a probability of success on the merits. 

(Oasis West Realty, LLC v. Goldman, supra, 51 Cal.4th at pp. 819–

820.) 

We consider the pleadings and supporting and opposing 

affidavits stating the facts upon which the liability or defense is 

based. (§ 425.16, subd. (b)(2); see Navellier v. Sletten (2002) 

29 Cal.4th 82, 89.) We examine the complaint in a fair and 

commonsense manner, and we broadly construe the anti-SLAPP 

statute. (See § 425.16, subd. (b)(2).) “[W]e neither ‘weigh credibility 

[nor] compare the weight of the evidence.’ ” (Soukup v. Law Offices 

of Herbert Hafif (2006) 39 Cal.4th 260, 269, fn. 3.)

II. The Defamation Per Se Cause of Action Does Not Arise From

Protected Activity

Section 425.16, subdivision (e) identifies the categories of 

conduct protected under the anti-SLAPP statute that may support a 

motion to strike. As relevant here, the anti-SLAPP statute defines 

acts in furtherance of the constitutional right to petition to include 

“any written or oral statement or writing made in connection with 

an issue under consideration or review by a . . . judicial body.” 

(§ 425.16, subd. (e)(2).) 

Rudich contends the alleged defamatory statements are 

protected by the absolute litigation privilege in Civil Code 

section 47. Rudich seems to assume a statement subject to the 

litigation privilege automatically qualifies as protected activity 

under the anti-SLAPP statute. Rudich is mistaken. 

While there is a relationship between the litigation privilege 

statute and the anti-SLAPP statute, they do not serve the same 

purposes. (Flatley v. Mauro (2006) 39 Cal.4th 299, 323–324.) “The 

litigation privilege embodied in Civil Code section 47, 
7

subdivision (b) serves broad goals of guaranteeing access to the 

judicial process, promoting the zealous representation by counsel of 

their clients, and reinforcing the traditional function of the trial as 

the engine for the determination of truth. Applying the litigation 

privilege to some forms of unlawful litigation-related activity may 

advance those broad goals notwithstanding the ‘occasional unfair 

result’ in an individual case.” (Id. at p. 324.) 

The anti-SLAPP statute is “not concerned with securing for 

litigants freedom of access to the judicial process.” (Flatley v. 

Mauro, supra, 39 Cal.4th at p. 324.) Rather, the purpose of the 

anti-SLAPP statute is to protect the valid exercise of constitutional 

rights of free speech and petition from the abuse of judicial process, 

“by allowing a defendant to bring a motion to strike any action that 

arises from any activity by the defendant in furtherance of those 

rights.” (Ibid.) 

Nevertheless, because the two statutes are related, courts 

“have looked to the litigation privilege as an aid in construing the 

scope of section 425.16, subdivision (e)(1) and (2) with respect to the 

first step of the two-step anti-SLAPP inquiry.” (Flatley v. Mauro,

supra, 39 Cal.4th at pp. 322–323; Bel Air Internet, LLC v. Morales

(2018) 20 Cal.App.5th 924, 941, fn. 6.)

“The statute does not accord anti-SLAPP protection to suits 

arising from any act having any connection, however remote, with 

an official proceeding. The statements or writings in question must 

occur in connection with ‘an issue under consideration or review’ in 

the proceeding.” (Paul v. Friedman (2002) 95 Cal.App.4th 853, 

866.) “[I]t is insufficient to assert that the acts alleged were ‘in 

connection with’ an official proceeding. There must be a connection 

with an issue under review in that proceeding.” (Id. at p. 867.) A

“lawyer’s attempt to inject an issue into a proceeding does not 
8

render the issue relevant, nor can the attempted injection of an 

irrelevant matter transform it into an issue ‘under consideration or 

review’ in the proceeding. By definition, irrelevant matters have no 

tendency in reason to prove or disprove any disputed fact of 

consequence to the determination of a matter, and are specifically 

excluded from consideration. Irrelevant matters thus are not 

‘under consideration or review’ in an official proceeding.” (Id. at 

pp. 867–868, fn. omitted.) 

We acknowledge communications preparatory to or in 

anticipation of the bringing of an action or other official proceeding 

are within the scope of conduct protected under section 425.16 and 

under Civil Code section 47, subdivision (b). (Briggs v. Eden 

Council for Hope & Opportunity, supra, 19 Cal.4th at p. 1115; 

Neville v. Chudacoff (2008) 160 Cal.App.4th 1255, 1268.) However, 

the “requirement to show that litigation is seriously contemplated 

ensures that prelitigation communications are actually connected to 

litigation and that their protection therefore furthers the antiSLAPP statute’s purpose of early dismissal of meritless lawsuits 

that arise from protected petitioning activity.” (Bel Air Internet, 

LLC v. Morales, supra, 20 Cal.App.5th at p. 941.) Thus, under 

section 425.16, which protects conduct including “ ‘any written or 

oral statement or writing made in connection with an issue under 

consideration or review by a . . . judicial body,’ ” a statement has 

sufficient “ ‘connection’ ” with anticipated litigation if the person 

making the statement is engaged in a serious effort to encourage or 

counsel litigation by another. (Id. at p. 943.)

Rudich has not sufficiently connected the alleged defamatory 

statements to this litigation or to anticipated litigation. Rudich 

argues without evidentiary support the alleged defamatory 

statements were protected activity because they were part of a 
9

preparatory investigation in anticipation of the instant fee dispute 

and because he made them to the client in the underlying copyright 

litigation. This contention is not contained in the first amended 

complaint or in the declarations. The gravamen of the defamation 

per se cause of action is that Rudich retaliated against Philips 

APLC by making defamatory statements to the high-profile client, 

former clients, and other industry professionals, that Philip APLC 

misappropriated client funds, and that Philips APLC and its 

principal were inattentive to clients. While Rudich points out the 

statements were alleged to have been made to the client whose fees 

are in dispute in the instant action, Rudich fails to address the 

others. Even if we were to accept Rudich’s argument absent 

allegations or evidence that he contacted the former clients and 

industry professionals to gather probative information from 

potential witnesses, he has not explained how the alleged 

defamatory statements were relevant to the present litigation.

Rudich declared he referred several clients to Philips APLC in 

the past, but glaringly absent are facts describing how those former 

clients or industry professionals, or the subject matter of the alleged 

statements, were connected to this case or an issue under 

consideration in any other proceeding. Without more, Rudich’s 

alleged defamatory statements appear wholly unconnected to the 

instant action and thus do not meet the threshold showing of 

protected activity under the first prong of our anti-SLAPP analysis. 

Even if the court considers Rudich is alleged to have contacted the 

high-profile client, the contact alone does not satisfy a connection to 

this or any anticipated litigation.

Rudich’s reliance on Malin v. Singer (2013) 217 Cal.App.4th 

1283 (Malin), Cayley v. Nunn (1987) 190 Cal.App.3d 300 (Cayley), 

and Dickens v. Provident Life & Accident Ins. Co (2004) 
10

117 Cal.App.4th 705 (Dickens) is unavailing. Each of these cases 

involved statements directly connected to pending litigation or 

official proceedings. 

In Malin, an attorney sent a demand letter and a draft 

complaint on behalf of his client to the plaintiff. The letter 

threatened to disclose salacious personal information about the 

plaintiff if the plaintiff did not agree to settle the claim. (Malin,

supra, 217 Cal.App.4th at p. 1288.) The plaintiff sued the attorney 

for civil extortion and the attorney moved to strike the complaint as 

a SLAPP suit, arguing the statements in the demand letter and 

draft complaint were made in contemplation of litigation. (Id. at 

pp. 1288–1290.) The trial court denied the motion, but the 

appellate court reversed, finding the attorney’s allegations were 

logically connected to a litigation that was seriously contemplated 

in good faith when the letter was sent. (Id. at pp. 1301–1302.)

Unlike in Malin, here Rudich has not shown how the alleged 

defamatory statements to former Philips APLC clients and industry 

professionals were related to any litigation that was being seriously 

contemplated by Rudich in good faith. 

Cayley is not an anti-SLAPP case. There, defendants applied 

to the city council for a height variance which their neighbor 

plaintiffs opposed. (Cayley, supra, 190 Cal.App.3d at p. 302.) 

Defendants responded by circulating a petition around their 

neighborhood to support the variance application. (Ibid.) While 

circulating the petition, defendants told neighbors plaintiffs had 

illegally installed a listening device to defendants’ phone lines. 

(Ibid.) Plaintiffs sued defendants for slander and defendants moved 

for summary judgment, arguing the statements were subject to the 

litigation privilege. The court found the alleged statements were 

made in the process of marshalling evidence for the purpose of 
11

achieving the defendants’ goal of getting the variance at the city 

council meeting and therefore privileged. (Id. at p. 304.) 

In Dickens, supra, 117 Cal.App.4th at page 707, an insurer 

investigated its insured for fraud and reported its findings to law 

enforcement, which resulted in a fraud indictment. A jury 

acquitted the insured of all charges, and the insured sued the 

insurer for malicious prosecution, claiming it presented false 

information to law enforcement to initiate the prosecution. (Ibid.) 

The insured brought an anti-SLAPP motion to strike the malicious 

prosecution cause of action. (Ibid.) The court held the insurer’s 

statements to law enforcement were subject to the litigation 

privilege, because the statements constituted reports about a 

possible violation of law that were preparatory to commencing an 

official proceeding authorized by law. (Id. at p. 714.)

Neither Cayley nor Dickens supports Rudich’s contention the

alleged defamatory statements were subject to the litigation 

privilege or were protected activity under the anti-SLAPP statute. 

Unlike Cayley, there is no evidence the alleged statements were 

made in the process of marshalling evidence for an official 

proceeding. Only in his reply brief on appeal does Rudich argue his 

contacts with Philips APLC’s former clients and other industry 

professionals were an attempt to reach out to potential witnesses. 

Even so, Rudich has not explained how the alleged defamatory 

statements that Philips APLC stole from clients or was inattentive 

to clients has any bearing on the fee dispute. Further, unlike in

Dickens, Rudich has not shown how telling former Philips APLC 

clients and industry professionals Philips APLC misappropriates 

client funds and is inattentive to clients was in furtherance of the

objects of this litigation or preparatory to commencing an official 

proceeding. 
12

Rudich has not met his initial burden to show the alleged 

defamatory statements were protected activity under the antiSLAPP statute. As such, we do not address the second prong of 

whether Philips APLC’s defamation per se cause of action is likely 

to succeed on the merits.

DISPOSITION

The order is affirmed. Law Offices of Paul N. Philips, A 

Professional Law Corporation is awarded its costs on appeal. 

NOT TO BE PUBLISHED.

KNILL, J.*

We concur:

LAVIN, Acting P. J.

EGERTON, J. 

* Judge of the Orange County Superior Court, assigned by the 

Chief Justice pursuant to article VI, section 6 of the California 

Constitution.