Filed 7/16/21 Mende v. Balter CA2/7

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION SEVEN

ROGER MENDE,

 Plaintiff and Respondent,

v.

JONI BALTER,

 Defendant and Appellant.

 B303860

 (Los Angeles County

 Super. Ct. No. BC715117)

APPEAL from an order of the Superior Court of Los 

Angeles County, Brenda J. Penny, Judge. Reversed and 

remanded with directions.

Schindler Eyrich, John F. Eyrich for Defendant and 

Appellant. 

No appearance for Plaintiff and Respondent.

_______________________
2

INTRODUCTION

Joni Balter appeals the order denying her special motion to 

strike (Code of Civ. Proc.,

1 § 425.16) a first amended complaint 

filed by Roger Mende. Balter argues the trial court erred in 

denying her motion because Mende’s first amended complaint 

arises from activity protected by section 425.16, namely a probate 

lawsuit Balter filed to settle her deceased sister’s estate and 

Balter’s statements and conduct as special administrator of the 

estate. Balter also argues the litigation privilege bars Mende’s 

causes of action and Mende therefore cannot show a probability 

of prevailing on his claims. We reverse. 

FACTUAL AND PROCEDURAL HISTORY

Balter’s sister Margie Balter died of cancer in October

2017.2 Mende alleges Margie was his “life partner of almost 

twenty-five years.” Since Margie’s death, Balter and Mende have 

been adverse in at least three lawsuits: a probate action, an 

unlawful detainer action, and this civil action. 

A. The Probate Case

Balter filed a probate petition in Los Angeles Superior 

Court on January 19, 2018. The petition sought to admit 

Margie’s June 7, 2016 will to probate and Balter’s appointment 

as special administrator of Margie’s estate. Balter alleged 

Margie’s June 7, 2016 will left Margie’s Los Angeles 

condominium to Balter and Mende. On April 3, 2018 the court 

1 Unless otherwise designated all statutory references are to 

the Code of Civil Procedure.

2 For clarity, we refer to Margie Balter by her first name and 

Joni Balter by her last name.
3

appointed Balter special administrator of the estate with 

authority “to marshal [Margie’s] bank accounts, to pay any estate 

obligations, and to deal with tax issues, if any.”

Mende filed a competing probate petition in pro per on 

April 16, 2018 seeking to admit a will dated October 8, 2017 to 

probate. Mende contended the October 8, 2017 will left Margie’s 

condominium to Mende alone. 

On July 31, 2018 the court expanded Balter’s authority as 

special administrator to include the “additional powers” to “take 

title to and maintain possession of” Margie’s condominium, and 

to “handle the month to month tenancy of the Estate’s 

condominium . . . with Roger Mende.” The order further 

provided: “Roger Mende is to pay the fair rental value in a timely 

manner in a month to month tenancy if he is to reside in the 

condominium of the decedent. If Roger Mende fails to pay as 

agreed upon with the Special Administrator, then the Special 

Administrator may take any necessary actions to protect the 

estate.” 

B. The Civil Case

After Balter and Mende filed their competing probate 

petitions, Mende filed this civil action in pro per against Balter 

on July 25, 2018. Mende filed the operative first amended 

complaint on October 18, 2018. In his prefatory allegations in the 

first amended complaint, Mende alleges that before Margie’s 

death Balter harassed and intimidated Margie about her career 

choices and business projects, her cancer treatments, and her 
4

diet. Mende also alleges Balter did not help Margie care for 

Balter’s and Margie’s elderly parents.3 

Mende alleges causes of action against Balter for 

negligence, misrepresentation, fraud, conspiracy, harassment, 

intentional infliction of emotional distress, “defamation of 

character and slander,” interference with contract, interference 

with prospective economic advantage, breach of the covenant of 

quiet enjoyment, and quiet title. Mende alleges Balter was 

negligent in her conduct as special administrator of Margie’s 

estate, including by carelessly closing Margie’s bank accounts 

and collecting paperwork from Margie’s condominium; failing to 

make a claim on the estate’s behalf against a deceased friend’s 

estate; failing to transfer the condominium’s grant deed to 

Mende; improperly filing the June 7, 2016 will in the probate 

case; failing to locate the alleged October 8, 2017 will; and 

generally handling her special administrator duties poorly. 

In his misrepresentation, fraud, and conspiracy causes of 

action, Mende alleges Balter misrepresented to Mende her 

special administrator status, duties, and authority, and falsely 

told Mende she had unsuccessfully searched Margie’s 

condominium for the alleged October 8, 2017 will. Mende alleges 

Balter harassed and inflicted emotional distress on him by 

“failing to properly and exhaustively search for Margie’s final will 

and thereafter submitting an old will to the court,” telling him 

the condominium would be sold, exaggerating the scope of her

special administrator authority, “misrepresenting or hiding to

[sic] the court the status of certain accounts,” “handl[ing] the 

3 Mende named a second defendant (Abby Rich) in the first 

amended complaint. Mende dismissed the first amended 

complaint against Rich on May 2, 2019. 
5

estate in such a way as to create chaos and difficulties,” and 

using her special administrator position to treat Mende badly. 

Mende alleges Balter defamed him by telling Mende’s 

unidentified “friends and associates” that Mende “was an insane 

squatter and impossible to deal with,” and “could never afford to 

stay in the [c]ondo, or ever make sufficient money to do so.” 

Mende also alleges Balter made rude comments about his 

business acumen. 

Mende alleges Balter interfered with alleged contracts

between Margie and Mende to produce films and to permit 

Mende to remain in the condominium by telling Mende he could 

not use the condominium for film production, telling Mende he 

must move out of the condominium, “giving [Mende] thirty day[s’] 

notice to vacate” the condominium, and taking other actions 

related to selling the condominium. Mende alleges these same 

statements and conduct also constituted interference with 

prospective economic advantage and interfered with Mende’s 

quiet enjoyment of the condominium. 

Mende alleges a quiet title cause of action based on his 

contentions the June 7, 2016 will is invalid; Margie left him the 

condominium in the alleged October 8, 2017 will; Balter 

“mistakenly or fraudulently filed th[e] old will with the probate 

court”; Balter did not “properly list[ ] [Mende’s] joint-tenancy as 

part of the probate proceeding”; and Balter “beg[a]n making 

moves” indicating she intended to file an unlawful detainer action 

against Mende, and said “in open court (probate) that it is her 

intention to file unlaw[ful] detainer against” Mende. Mende 

alleges he “properly filed Margie’s final will with the probate 

court,” and because Margie and Mende allegedly held the 

condominium “as joint tenants[,] the property should have passed 
6

to [Mende] upon Margie’s death and is not subject to the 

authority of [the] [p]robate [court].” 

Mende seeks $2.25 million in damages on his negligence 

cause of action, $1.5 million on his conspiracy cause of action, and

$1.25 million on each of his causes of action for

misrepresentation, fraud, harassment, intentional infliction of 

emotional distress, defamation, interference with contract, 

interference with prospective economic advantage, and breach of 

the covenant of quiet enjoyment. Mende also seeks a judgment 

that he owns the condominium “in fee simple.” 

C. The Unlawful Detainer Case

On October 29, 2018, shortly after Mende filed his first 

amended complaint in the civil action, Balter, in her capacity as 

special administrator of Margie’s estate, filed an unlawful 

detainer action against Mende seeking to evict him from the 

condominium. The unlawful detainer complaint alleged Mende 

had been served with a 30-day notice to quit on September 19, 

2018, and that Balter had not charged Mende rent for more than 

three months. On January 18, 2019 the trial court overruled 

Mende’s demurrer to the unlawful detainer complaint.4

D. Balter Files a Demurrer and a Special Motion To Strike in 

the Civil Case

On December 4, 2018 Balter filed a demurrer to Mende’s

first amended complaint, followed on December 24, 2018 by a 

special motion to strike the first amended complaint pursuant to 

4 Mende appealed the trial court’s order overruling his 

demurrer to Balter’s unlawful detainer complaint. On June 18, 

2020 this court dismissed Mende’s appeal for failure to file an 

opening brief. 
7

section 425.16. Balter argued in her special motion to strike that

each of Mende’s causes of action arose from acts in furtherance of 

Balter’s rights of petition and free speech within the meaning of 

section 425.16, specifically Balter’s statements and conduct in 

connection with the probate case. Balter further argued the 

litigation privilege in Civil Code section 47, subdivision (b), 

barred Mende’s causes of action, and Mende therefore could not 

establish a probability of prevailing on his claims. Balter sought 

judicial notice of several documents and orders filed in the 

probate case. 

Mende argued in opposition that Balter had not provided 

him proper notice of the special motion to strike. Mende 

acknowledged that “some of [Balter’s] speech, actions and conduct 

. . . may be protected under free speech and petition before a 

judicial body,” but “the majority of [Balter’s] conduct, actions and 

statements are so outrageous that they fall outside the 

protections of free speech and petition before the court.” Mende 

argued his allegations showed a probability he would prevail on 

the merits of his claims. Mende sought judicial notice of various

documents and declarations filed in the probate case together 

with their attached exhibits, which included correspondence, 

medical records, and a photograph of a human foot. 

Mende filed a supplemental opposition to the special 

motion to strike on February 4, 2019. Mende argued the motion 

was untimely, and Balter’s statements and conduct did not 

constitute protected activity. Balter filed her reply in support of 

the special motion to strike on February 5, 2019. 
8

E. The Superior Court Deems the Civil Case and the Unlawful 

Detainer Case Related to the Probate Case

On February 5, 2019, the same day Balter filed her reply in 

support of the special motion to strike, the superior court5 issued 

an order deeming the civil case and the unlawful detainer case

related to the probate case pursuant to California Rules of Court, 

rule 3.300. The court ordered the civil case and the unlawful 

detainer case reassigned to the judge presiding over the probate 

case,

6 and vacated all existing hearing dates in the civil and

unlawful detainer cases, including the hearing on Balter’s special 

motion to strike.

F. The First Hearing on the Special Motion To Strike

On April 2, 2019, Mende filed a second supplemental 

opposition to Balter’s special motion to strike. Mende again 

argued Balter had not provided proper notice of the motion, and 

further argued Balter had attempted to exploit Mende’s medical 

conditions to gain a litigation advantage. 

The court held a hearing on the demurrer and the special 

motion to strike on July 25, 2019. The court issued an oral 

tentative ruling denying the special motion to strike on the 

ground that Balter “failed to satisfy her burden in showing that 

the [first amended] complaint and its causes of action arise from 

protected activity.” After hearing argument, the court continued 

the hearing on the demurrer and the special motion to strike to

October 22, 2019. 

5 Judge Samantha Jessner. 

6 Judge Brenda J. Penny. 
9

On September 10, 2019 the court on its own motion ordered 

supplemental briefing on the special motion to strike. The court 

ordered Balter to submit a supplemental brief “identifying with 

citations to the complaint the protected conduct,” and ordered 

Mende to respond to Balter’s supplemental brief. Balter’s 

September 25, 2019 supplemental brief identified numerous

paragraphs of the first amended complaint that Balter contended 

constituted protected activity.7

On October 17, 2019 Mende responded to Balter’s

supplemental brief. Mende argued the first amended complaint 

did not arise from protected activity because Balter’s statements 

and conduct predated Balter’s appointment as special 

administrator, Balter’s statements and conduct were “so 

outrageous” they could not be protected activity, and Mende had 

sufficiently pleaded his causes of action which showed a

probability of prevailing on them. 

G. The Ruling in the Probate Case

A court trial in the probate case occurred over three days 

between May and July 2019. On October 22, 2019 the court 

issued a statement of decision granting Balter’s petition to admit 

Margie’s June 7, 2016 will to probate, and denying with prejudice 

Mende’s petition to admit the October 8, 2017 will to probate.8 

7 Balter also stated in her supplemental brief that at some 

unspecified earlier time Mende had vacated the condominium. 

8 On October 10, 2019 the trial court issued its proposed 

statement of decision in the probate case, a copy of which is in the 

appellate record. Pursuant to Evidence Code section 452, 

subdivision (d), and section 459, subdivision (a), we take judicial 

notice of the trial court’s October 22, 2019 final statement of 

decision.
10

The court found “no credible evidence to support a finding 

that the [October 8, 2017] will is admissible to probate.” The 

court concluded Margie had not signed the alleged October 8, 

2017 will, Margie’s signature on the October 8, 2017 will had 

been “created ‘by pigment from a printer,’” and the October 8, 

2017 will was unwitnessed. The court found Balter’s testimony 

about her receipt of the June 7, 2016 will “truthful and credible,” 

and Mende’s testimony that Margie “wanted him to have the 

condo” not credible. The court found Mende’s trial testimony

“inconsistent, self-serving, evasive, contradictory and not 

believable.”9

H. The Second Hearing on the Special Motion To Strike and 

the Trial Court’s Ruling

At the October 22, 2019 hearing on the demurrer and the 

special motion to strike, the trial court issued an oral tentative 

ruling granting in part Balter’s special motion to strike:

“[Balter] largely fails to satisfy her burden in 

showing the [first amended] complaint and causes of 

action arise from protected activity. At most, the 

subject causes of action appear to be mixed in the 

causes of action containing allegations of both 

protected and unprotected activity. [Balter’s] actions 

as special administrator do not automatically fall 

under the category of protected activity.

“Moreover, much of the alleged conduct 

occurred before [Balter] even petitioned the court. 

9 Mende appealed the trial court’s order admitting Margie’s 

June 7, 2016 will to probate. On September 9, 2020 this court 

dismissed Mende’s appeal for failure to file an opening brief. 
11

The liability of this conduct is also largely based on 

actions taken, not communications, and [Balter] has 

not shown sufficient anticipation of litigation.

“However, in her supplement, [Balter] does 

identify certain activity that would qualify as 

protected activity. Specifically, [Balter’s] actions in 

court such as filing petitions for probate would be 

protected activity. [Mende] has failed to show 

minimal merit regarding the portions of causes of 

action based on liability for such action in light of the 

litigation privilege.

“Accordingly, the court strikes the subject 

complaint causes of action insofar as they are based 

upon liability for communications or actions taken in 

court in these proceedings. Specifically, the court 

strikes these portions identified in [Balter’s] 

supplement[:] [¶] Paragraph 85 [in] its entirety. 

Paragraph 135, page 30, lines 3 through 6. 

Paragraph 163 in its entirety. Paragraph 172, page 

37, lines 2 to 5. Paragraph 220, page 48, lines 23 and 

24. And paragraph 236 in its entirety. [¶] The 

motion is otherwise denied.” 

After hearing argument, the court took the demurrer and the 

special motion to strike under submission. 

On November 21, 2019 the trial court issued its order 

denying Balter’s special motion strike, finding that Balter “failed

to carry her burden to make [a] prima facie showing that 

[Mende’s] claims arise from protected activity.”10 The trial court 

10 The trial court did not rule on either Balter’s or Mende’s

request for judicial notice.
12

sustained with leave to amend Balter’s demurrer to Mende’s 

causes of action for negligence, conspiracy, interference with 

prospective economic advantage, and breach of the covenant of

quiet enjoyment. The court overruled the demurrer to the other 

causes of action. 

Balter timely appealed the order denying her special 

motion to strike.

DISCUSSION

A. Applicable Law and Standard of Review

Section 425.16, subdivision (b)(1), provides, “A cause of 

action against a person arising from any act of that person in 

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

the United States Constitution or the California Constitution in 

connection with a public issue shall be subject to a special motion 

to strike, unless the court determines that the plaintiff has 

established that there is a probability that the plaintiff will 

prevail on the claim.” 

In ruling on a motion under section 425.16, the trial court 

engages in a 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 claim by establishing a probability 

of success.” (Baral v. Schnitt (2016) 1 Cal.5th 376, 384 (Baral); 

accord, Park v. Board of Trustees of California State University

(2017) 2 Cal.5th 1057, 1061 (Park).) “Only a cause of action that 

satisfies both prongs of the anti-SLAPP statute—i.e., that arises 

from protected speech or petitioning and lacks even minimal 
13

merit—is a SLAPP, subject to being stricken under the statute.”11

(Navellier v. Sletten (2002) 29 Cal.4th 82, 89 (Navellier), italics 

omitted.)

We review de novo an order granting or denying a special 

motion to strike under section 425.16 (Wilson v. Cable News 

Network (2019) 7 Cal.5th 871, 884 (Wilson); Sweetwater Union 

High School Dist. v. Gilbane Building Co. (2019) 6 Cal.5th 931, 

940 (Sweetwater); Park, supra, 2 Cal.5th at p. 1067), considering 

the parties’ pleadings and affidavits describing the facts on which 

liability or defenses are predicated. (§ 425.16, subd. (b)(2); see 

Navellier, supra, 29 Cal.4th at p. 89.) 

B. The Trial Court Erred in Denying Balter’s Special Motion 

To Strike

1. Mende’s causes of action arise from protected activity

Pursuant to section 425.16, subdivision (e), 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, [and] (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.” 

Filing a lawsuit is an act in furtherance of the 

constitutional right of petition, regardless of whether it has 

merit. (Trapp v. Naiman (2013) 218 Cal.App.4th 113, 120; see 

also Newport Harbor Offices & Marina LLC v. Morris Cerullo 

11 SLAPP is an acronym for “strategic lawsuit against public 

participation.” (Park, supra, 2 Cal.5th at p. 1060.)
14

World Evangelism (2018) 23 Cal.App.5th 28, 45 [“An unlawful 

detainer action and service of notices legally required to file an 

unlawful detainer action are protected activity within the 

meaning of section 425.16.”].) Balter’s filing of the probate and 

unlawful detainer cases, and her service on Mende of a 30-day 

notice to quit as a necessary precursor to the unlawful detainer 

case, are activities protected by section 425.16. 

Balter’s statements and conduct in connection with the 

probate case are also protected activities. Section 425.16 is 

“‘construed broadly’” (Briggs v. Eden Council for Hope & 

Opportunity (1999) 19 Cal.4th 1106, 1119 (Briggs)), and 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 (Kashian); 

see § 425.16, subd. (a).) “[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; accord, Briggs, at pp. 1114-

1115; Bergstein v. Strook & Strook & Lavan LLP (2015) 236 

Cal.App.4th 793, 803-804 (Bergstein); Kolar v. Donahue, 

McIntosh & Hammerton (2006) 145 Cal.App.4th 1532, 1537

(Kolar) [“protection for petitioning activities applies not only to 

the filing of lawsuits, but extends to conduct that relates to such 

litigation, including statements made in connection with or in 

preparation of litigation”].)

Balter’s alleged statements and conduct after Margie’s 

death related to Margie’s will and estate and to Balter’s position 

as special administrator of the estate. The alleged statements 

and conduct concerned subjects at issue in the probate case, 
15

including the competing wills filed by Balter and Mende, the 

ownership and disposal of Margie’s condominium, and Balter’s 

management of Margie’s bank accounts, documents, and business 

affairs in her capacity as the estate’s court-appointed special 

administrator. Further, Mende alleges Balter directed her 

statements and conduct at Mende, who plainly had an interest in 

the probate case, the outcome of which would determine whether

Mende owned Margie’s condominium alone or jointly with Balter. 

Balter’s alleged statements and conduct regarding the probate 

case are protected activities under section 425.16.12 

Mende’s causes of action arise from Balter’s protected 

activity. “A claim arises from protected activity when that 

activity underlies or forms the basis for the claim.” (Park, supra, 

2 Cal.5th at pp. 1062-1063.) Thus, “[t]he defendant’s first-step 

burden is to identify the activity each challenged claim rests on 

12 Balter filed the probate case three months after Margie’s 

death, and the court shortly thereafter appointed Balter special 

administrator. Mende argued in the trial court that Balter’s 

alleged statements and conduct could not constitute protected 

activities because they predated her appointment as special 

administrator. Mende does not identify specific dates on which 

Balter’s alleged statements and conduct occurred. It is clear from 

the allegations, however, that the statements and conduct on 

which Mende bases his causes of action occurred after Margie 

died. “‘[C]ommunications preparatory to or in anticipation of the 

bringing of an action or other official proceeding’” are protected 

by section 425.16. (Briggs, supra, 19 Cal.4th at p. 1115; see also 

Kolar, supra, 145 Cal.App.4th at p. 1537.) Even if some of 

Balter’s alleged statements and conduct occurred in the three 

months between Margie’s death and Balter’s filing of the probate 

case, they were clearly in anticipation of the contemplated 

probate lawsuit. 
16

and demonstrate that that activity is protected by the antiSLAPP statute. 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.’” (Wilson, supra, 7 Cal.5th at p. 884; 

accord, Park, at p. 1060.)

Balter’s probate petition and her statements and conduct 

as the special administrator of Margie’s estate underlie each of 

Mende’s causes of action. Mende’s negligence, misrepresentation, 

fraud, conspiracy, harassment, intentional infliction of emotional 

distress, and quiet title causes of action premise Balter’s alleged 

liability on her filing of the June 7, 2016 will in the probate 

case—the will that left Margie’s condominium to Mende and 

Balter together rather than to Mende alone. Mende also alleges 

Balter acted negligently as the estate’s special administrator, 

including in her handling of the estate’s bank accounts and 

paperwork—duties specifically authorized by the court’s April 3, 

2018 order appointing Balter as special administrator. Mende’s 

negligence, harassment, intentional infliction of emotional 

distress, defamation, interference with contract, interference 

with prospective economic advantage, breach of the covenant of 

quiet enjoyment, and quiet title causes of action each allege 

Balter is liable based on her statements and conduct related to 

her management of the condominium in her role as the estate’s

special administrator. Mende’s interference with contract, 

interference with prospective economic advantage, breach of the

covenant of quiet enjoyment, and quiet title causes of action also 

allege as additional grounds for liability Balter’s statements and 

conduct related to the unlawful detainer case Balter filed to evict 

Mende from the condominium, including Balter’s service on 
17

Mende of a 30-day notice to quit and her statements in the 

probate case that she intended to file an unlawful detainer action 

against Mende. 

In sum, Mende sought in the civil case to impose liability 

on Balter for filing the probate case, for Balter’s efforts in the 

probate case to admit the June 7, 2016 will to probate, and for 

Balter’s management of Margie’s estate as the court-appointed 

special administrator. The trial court erred in concluding Balter 

had not demonstrated Mende’s causes of action arose from 

protected activity. 

2. The litigation privilege bars Mende’s causes of action 

Because the trial court concluded Balter failed to satisfy 

the first step of the section 425.16 analysis, the court did not 

reach the question of whether Mende showed a probability he

would prevail on his claims. We may nevertheless address that 

question as it is subject to independent review. (Roberts v. Los 

Angeles County Bar Assn. (2003) 105 Cal.App.4th 604, 615-616.)

If the defendant makes a prima facie showing that the 

plaintiff’s claims arise from constitutionally protected petitioning 

or free speech activity, the burden shifts to the plaintiff to 

establish, with admissible evidence, a probability of prevailing on 

the causes of action challenged by the anti-SLAPP motion. 

(§ 425.16, subd. (b); Sweetwater, supra, 6 Cal.5th at p. 940; Baral, 

supra, 1 Cal.5th at p. 384.) At the second step, the burden is on 

the plaintiff to show that he has “stated and substantiated a 

legally sufficient claim.” (Briggs, supra, 19 Cal.4th at p. 1123.) 

“The court does not weigh the evidence or resolve conflicting 

factual claims. Its inquiry is limited to whether the plaintiff has 

stated a legally sufficient claim and made a prima facie factual 

showing sufficient to sustain a favorable judgment.” (Baral, at 
18

pp. 384-385.) The second step of the section 425.16 analysis 

requires a plaintiff to establish separately a probability of 

prevailing on each distinct claim for relief: “[T]he plaintiff must 

make the requisite showing as to each challenged claim that is 

based on allegations of protected activity.” (Id. at p. 392.)

The litigation privilege in Civil Code section 47 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 (Silberg).) Prelitigation 

statements are protected under Civil Code section 47 when they 

are made in connection with a proposed litigation that is 

“contemplated in good faith and under serious consideration.” 

(Action Apartment Assn. v. City of Santa Monica (2007) 

41 Cal.4th 1232, 1251 (Action Apartment); see Briggs, supra, 

19 Cal.4th at p. 1115 [“‘communications preparatory to or in 

anticipation of the bringing of an action or other official 

proceeding are within the protection of the litigation privilege of 

Civil Code section 47, subdivision (b)’”]; Kenne v. Stennis (2014) 

230 Cal.App.4th 953, 965 [“[b]ecause Civil Code section 47, 

subdivision (b)[,] protects any statements or writings that have 

‘some relation’ to a lawsuit, communications made both during 

and in anticipation of litigation are covered by the statute”].)

“A threshold issue in determining if the litigation privilege 

applies is whether the alleged injury arises from a 

communicative act or noncommunicative conduct.” (Action 

Apartment, supra, 41 Cal.4th at p. 1248.) “The distinction 

between communicative and noncommunicative conduct hinges 

on the gravamen of the action. [Citations.] That is, the key in 
19

determining whether the privilege applies is whether the injury 

allegedly resulted from an act that was communicative in its 

essential nature.” (Rusheen v. Cohen (2006) 37 Cal.4th 1048, 

1058.) “[I]f the gravamen of the action is communicative, the 

litigation privilege extends to noncommunicative acts that are 

necessarily related to the communicative conduct.” (Id. at 

p. 1065.) “[T]he filing of a legal action . . . by its very nature is a 

communicative act.” (Action Apartment, at p. 1249; see ibid. [“We 

contemplate no communication that is more clearly protected by 

the litigation privilege than the filing of a legal action.”].) 

“The principal purpose of [Civil Code] section 

47[, subdivision (b),] is to afford litigants . . . the utmost freedom 

of access to the courts without fear of being harassed 

subsequently by derivative tort actions.” (Silberg, supra,

50 Cal.3d at p. 213; accord, Healy v. Tuscany Hills Landscape & 

Recreation Corp. (2006) 137 Cal.App.4th 1, 5.) “The litigation 

privilege is absolute; it applies, if at all, regardless whether the 

communication was made with malice or the intent to harm. 

[Citation.] . . . [¶] If there is no dispute as to the operative facts, 

the applicability of the litigation privilege is a question of law. 

[Citation.] Any doubt whether the privilege applies is resolved in 

favor of applying it.” (Kashian, supra, 98 Cal.App.4th at p. 913.)

Mende’s causes of action against Balter are based on 

Balter’s filing of the probate and unlawful detainer lawsuits, her 

alleged statements and conduct in those lawsuits, and her alleged 

statements and conduct in anticipation of filing those lawsuits. 

Statements and conduct regarding Margie’s will and Balter’s 

management of Margie’s estate as the estate’s special 

administrator logically relate to the object of the lawsuits—

settling Margie’s estate, including disposing of Margie’s
20

condominium. The litigation privilege thus provides a 

substantive defense to Mende’s causes of action and bars the 

claims. (See Adams v. Superior Court (1992) 2 Cal.App.4th 521, 

529 [litigation privilege bars cause of action “provided that there 

is some reasonable connection between the act claimed to be 

privileged and the legitimate objects of the lawsuit in which the 

act took place”].) Mende cannot meet his burden under the 

second step of the section 425.16 analysis of demonstrating a 

probability of prevailing on his claims. (Flatley v. Mauro (2006) 

39 Cal.4th 299, 323 [litigation privilege “may present a 

substantive defense a plaintiff must overcome to demonstrate a 

probability of prevailing”]; Bergstein, supra, 236 Cal.App.4th at 

p. 814 [“‘A plaintiff cannot establish a probability of prevailing [in 

responding to a special motion to strike] if the litigation privilege 

precludes the defendant’s liability on the claim.’”].)13 

13 Because we conclude Mende’s causes of action are barred 

by Civil Code section 47, we need not consider whether Mende 

demonstrated a probability of prevailing on his causes of action 

based on an analysis of the elements of the claims.
21

DISPOSITION

The order denying Balter’s special motion to strike is

reversed. The case is remanded to the trial court with directions 

to vacate the order denying Balter’s special motion to strike, to

enter a new order granting the special motion to strike, and to 

conduct proceedings as appropriate to determine costs and 

reasonable attorneys’ fees, including attorneys’ fees on appeal, to 

be awarded to Balter. (§ 425.16, subd. (c)(1).) Balter shall also 

recover her costs on appeal. 

McCORMICK, J.

We concur:

SEGAL, Acting P. J.

FEUER, J.

 Judge of the Orange County Superior Court, assigned by 

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

California Constitution.