Filed 8/22/22 Urick v. Greenspoon Marder CA2/5

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IN THE COURT OF APPEAL OF THE STATE OF CALIFORNIA

SECOND APPELLATE DISTRICT

DIVISION FIVE

DANA URICK et al.,

Plaintiffs and Respondents,

v.

GREENSPOON MARDER LLP et 

al.,

Defendants and Appellants.

 B313277

 (Los Angeles County

 Super. Ct. No. 20STCV49933)

APPEAL from an order of the Superior Court of Los 

Angeles, Maureen Duffy-Lewis, Judge. Affirmed.

Greenspoon Marder, John H. Pelzer and Germain D. Labat

for Defendants and Appellants. 

Ulwelling Law, James K. Ulwelling and Lauren E. Saint 

for Plaintiffs and Respondents. 

_______________________________

Former trustee Dana Urick brought an action individually

and as guardian ad litem for her son Trentyn M. Urick-Stasa 
2

against her former attorneys, James H. Turken and the law firm 

Greenspoon Marder LLP (collectively Greenspoon).

1 The 

complaint contained causes of action for professional negligence, 

breach of contract, and interference with prospective economic 

advantage based on allegations that the legal services provided 

by Greenspoon to Dana as trustee resulted in her removal as 

trustee and the potential disinheritance of Dana and Trentyn as 

beneficiaries. Greenspoon filed a special motion to strike under 

Code of Civil Procedure section 425.16 (the anti-SLAPP statute), 

which the trial court denied.

2

On appeal from the order denying the anti-SLAPP motion, 

Greenspoon contends the claims are based on speech and 

litigation activities taken on behalf of the trustee, which are 

protected by the anti-SLAPP statute because the attorneys owed 

no duty to Dana as an individual or to the beneficiaries of the 

trust. We conclude the wrongful conduct alleged in the complaint 

is the breach of duties owed to Dana as a client, which resulted in 

damages to her personally, and the breach of duties owed to Dana

and Trentyn as third-party beneficiaries, by providing legal 

advice and services below the standard of care. A breach of 

professional duties arising from an attorney-client relationship is

not protected conduct under the anti-SLAPP statute, even when 

1 Because multiple parties share the last name Urick, they 

will be referred to by their first names for ease of reference.

2 SLAPP is an acronym for “Strategic Lawsuits Against 

Public Participation.” (Equilon Enterprises v. Consumer Cause, 

Inc. (2002) 29 Cal.4th 53, 57, fn. 1.) All further statutory 

references are to the Code of Civil Procedure unless otherwise 

stated.
3

it is related to speech and petitioning activity. Because the

alleged conduct is not protected, we do not reach the second step 

of the anti-SLAPP analysis to determine whether the claims have 

minimal merit, including whether Greenspoon owed duties to 

Dana or Trentyn under the circumstances of this case. Therefore, 

we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

Summary of Background Facts3

Allyne L. Urick created the Allyne L. Urick Trust in 2013, 

which she fully restated in 2014. (Urick 1, supra, 15 Cal.App.5th 

at pp.1186–1187.) The trust provided upon Allyne’s death for 

annuity payments over a specified period of time to her son Willis 

E. Urick III, her daughter Dana, and her grandson Trentyn. The 

remainder was to be distributed to Phillips Academy Andover. 

The trust’s primary asset was an apartment building held in a 

joint venture with Lucien Seifert. When Allyne passed away in 

2015, Dana was appointed as the successor trustee. 

Dana engaged a law firm which filed a petition on February 

16, 2016, to reform the trust. The attorney caption and the 

attorney signature block did not specify whether the attorneys

represented Dana individually, in her capacity as trustee, or 

3 On its own motion, the court takes judicial notice of the 

record and the published opinion in Urick v. Urick (2017) 15 

Cal.App.5th 1182 (Urick 1), as well as the unpublished opinions 

in Urick v. Boykin (March 23, 2020, B295773), Urick v. Elkins 

Kalt Weintraub Reuben Gartside, LLP (November 18, 2021, 

B310056), and Urick v. Lewitt (May 23, 2022, B312238).
4

both. The body of the petition stated the petitioner was “Dana 

Urick, Trustee of The Allyne L. Urick Trust.” Dana signed a 

verification of the petition which did not state whether she was 

signing the verification individually, as trustee, or both. The 

proposed reformation eliminated Willis’s interest in the trust and 

substantially reduced the likelihood that Phillips Academy would 

receive any assets from the trust. Although the proposed 

reformation benefited Trentyn, he did not expressly file or join in 

the petition.

In May 2016, Willis filed a petition for instructions as to 

whether the reformation petition violated the no contest clause of 

the trust, as well as a petition to remove and surcharge Dana as 

trustee (collectively the trust proceedings). In response to the no 

contest petition, Dana, as trustee, filed an anti-SLAPP motion, 

which the trial court granted. Willis filed an appeal. 

In October 2017, this appellate court reversed the order 

denying the anti-SLAPP motion in the trust proceedings. (Urick 

1, supra, 15 Cal.App.5th p. 1186.) We concluded the no contest 

petition was based on protected litigation activity, but Willis had 

demonstrated the minimal merit necessary to proceed if the trier 

of fact credited his evidence. Although Dana provided conflicting 

evidence from which the trier of fact could find that she filed the 

reformation petition in her capacity as a trustee, that the petition 

was based on allegations of mistake, and that Dana had a 

reasonable basis to believe the petition would be reformed as 

proposed, Dana’s evidence did not conclusively establish these 

facts as a matter of law, and therefore, the anti-SLAPP motion 

had to be denied. (Urick 1, supra, 15 Cal.App.5th at pp. 1196–

1198.)
5

Dana, as trustee, initiated procedures to buy out Seifert’s 

interest in the apartment building, but the purchase was not 

completed. In November 2017, attorney Mark Boykin, who had 

drafted Allyne’s estate plan, filed a lawsuit on behalf of Seifert

against Dana as trustee. Dana engaged a second law firm to file

a cross-complaint on her behalf as trustee against Seifert

(collectively the Seifert litigation).

In November or December 2017, Dana, as trustee, retained

a third law firm, Elkins Kalt Weintraub Reuben Gartside, LLP,

to provide guidance and legal representation in matters related

to trust administration and litigation concerning the trust, 

including the trust proceedings and the Seifert litigation.

In May 2018, the second law firm filed an amended petition 

for reformation on behalf of Dana, and a second amended petition 

for reformation was filed in July 2018. 

In October 2018, Dana retained Greenspoon to represent 

her in her capacity as trustee and provide guidance about 

fulfilling her fiduciary duties. She clarified in an email that 

Greenspoon was representing her as trustee only, because she 

had not been sued individually in the Seifert litigation. Although 

she had been sued individually in the trust proceedings, she had 

individual counsel for those matters already. She agreed that 

Greenspoon should be associated in on all matters. She did not 

anticipate significant work in the trust proceedings until the 

following year, however, and preferred to wait until Greenspoon 

had an estate attorney in house.

In February 2019, Elkins Kalt terminated its association as 

co-counsel for Dana, as trustee, in the Seifert litigation, leaving 

Greenspoon as counsel for the trustee. In May 2019, attorney 

Lawrence Lebowsky was appointed guardian ad litem for 
6

Trentyn in the trust proceedings only. That same month, Dana, 

as trustee, substituted Greenspoon for Elkins Kalt in the trust 

proceedings. 

Dana withdrew her second amended petition for 

reformation in July 2019, on the first day of trial. On January 

23, 2020, the probate court granted Willis’s request in the trust 

proceedings to suspend Dana as trustee. The court appointed 

interim successor trustees from ConservaTrust Fiduciary 

Services, Inc. Dana was ordered, individually and as the former 

trustee, to provide all necessary information to the interim 

successor trustees. Greenspoon had appeared for Dana in her 

capacity as trustee, another set of attorneys appeared for Dana in 

her individual capacity, and Lebowsky appeared as guardian ad 

litem for Trentyn.

Allegations of the Complaint

On December 31, 2020, Dana filed a complaint on behalf of 

herself individually and as guardian ad litem for Trentyn against 

Greenspoon for professional negligence, breach of contract, and 

interference with prospective economic advantage. 

The preliminary facts of the complaint alleged that Dana, 

in her capacity as trustee, met with and retained Greenspoon in 

October 2018 to provide legal services. An attorney-client 

relationship was entered into that was partly oral, partly implied, 

and partly in writing. Greenspoon provided legal services to 

Dana as trustee, or negligently failed to do so, with respect to the 

trust proceedings. Greenspoon knew Dana and Trentyn were 

beneficiaries of the trust. Greenspoon agreed to competently 

provide legal services to Dana as trustee with respect to her 
7

involvement in the trust proceedings. The parties intended that 

Greenspoon would competently advise Dana of her fiduciary 

obligations as trustee and that Greenspoon’s representation 

would benefit the beneficiaries of the trust, including Dana and 

Trentyn.

A. Dana’s Professional Negligence Count

In the first count for professional negligence, Dana alleged 

Greenspoon failed to exercise the degree of skill necessary and 

fell below the standard of care for attorneys in the community 

based on the following conduct: (1) Greenspoon failed to advise 

Dana of the risks of continuing to pursue a petition for 

reformation of the trust to her interests as trustee and to her and 

Trentyn’s interests as beneficiaries; (2) Greenspoon failed to 

advise Dana that her communications with Greenspoon would be 

disclosed to a successor trustee if Dana were suspended or 

removed, causing disclosure of information that she would not 

have disclosed if she had been so advised; (3) Greenspoon failed 

to advise Dana of her fiduciary duties as trustee, and acted on 

her behalf, including pursuing a petition for reformation, in a 

manner that may be held to have violated her fiduciary duties 

and disinherit her; (4) Greenspoon’s conduct with respect to the 

Seifert litigation resulted in a less lucrative settlement than if 

Greenspoon acted competently, leading other trust beneficiaries 

to seek a surcharge against Dana; (5) Greenspoon charged fees 

for legal work that may not have benefitted the trust, leading to a 

potential surcharge against Dana; and (6) Greenspoon pursued 

litigation that led to the probate court’s order suspending and 

removing Dana as trustee.
8

As counsel for Dana as trustee, Greenspoon owed her a 

duty of care, both as trustee and individually, that required 

Greenspoon to exercise the knowledge, skill, and ability

ordinarily exercised by similarly situated lawyers. They 

negligently acted, and failed to act, as set forth above. It was 

foreseeable that failing to exercise ordinary care while 

discharging their legal services would cause Dana and Trentyn to 

suffer harm. Furthermore, Greenspoon was aware that their 

competent performance in providing legal services to Dana would 

benefit all of the beneficiaries. Their competent services were the 

motivation for Dana as trustee to enter into the agreement for

Greenspoon to provide legal services to her while she was 

fulfilling her obligations as trustee.

Dana anticipates she will incur attorney fees and other 

damages as a result of Greenspoon’s actions. Dana’s damages 

include her suspension and removal as trustee, costing her 

hundreds of thousands of dollars per year in lost trustee fees. In 

addition, her damages include her potential disinheritance if the 

reformation petition is found to have triggered the no contest 

clause of the trust, and surcharge for fees paid to Greenspoon by 

the trust as well as other beneficiaries’ attorney fees and costs to 

respond to Greenspoon’s filings on behalf of Dana as trustee. The 

amount of damages that Dana has suffered as a result of 

Greenspoon’s actions and inactions is believed to be in excess of 

$7.5 million.

B. Trentyn’s Professional Negligence Count

The second count of the complaint alleged professional 

negligence against Greenspoon on behalf of Trentyn. Greenspoon 
9

and Dana, as trustee, intended Greenspoon’s representation to 

benefit the beneficiaries. Greenspoon owed a duty to protect 

Trentyn’s interests as a beneficiary, but failed to exercise the 

degree of skill necessary and fell below the standard of care for 

attorneys in the community.

Trentyn was a third-party beneficiary of Greenspoon’s 

contract with Dana as trustee. As a result, Greenspoon owed 

Trentyn a duty of care that required Greenspoon to exercise the 

knowledge, skill, and ability ordinarily exercised by other 

similarly situated lawyers. Greenspoon negligently acted, and 

failed to act, breaching their duty of care to Trentyn. Specifically, 

Greenspoon’s pursuit of the reformation petition on behalf of 

Dana as trustee is the basis of a pending petition to disinherit 

Trentyn.

Greenspoon was aware that their competent performance, 

by providing legal services to Dana as trustee, would benefit the 

beneficiaries, motivating Dana to enter into the retainer 

agreement. As a result of Greenspoon’s negligence, Trentyn has 

suffered and will further suffer significant damages. The amount 

of damages that Trentyn has suffered as a result of Greenspoon’s 

actions and inactions is believed to be in excess of $7.5 million.

C. Dana and Trentyn’s Breach of Contract Count

Dana and Trentyn brought a count for breach of contract 

alleging Dana entered into a contract with Greenspoon in 

October 2018, which is partly in writing and partly oral, for

Greenspoon to act as her counsel with regard to various issues 

related to the trust. If not express, then it was implied that 

Greenspoon would act in the best interests of the beneficiaries of 
10

the trust. As a result, Dana and Trentyn are third-party 

beneficiaries of any contract Dana entered into, individually or as 

trustee, with Greenspoon. Greenspoon breached the contract by 

negligently pursuing the trust proceedings that are the subject of 

petitions to disinherit Dana and Trentyn. The amount of 

damages that Dana and Trentyn suffered as a result of 

Greenspoon’s breach of the contract was also in excess of $7.5 

million.

D. Dana and Trentyn’s Count for Interference with 

Prospective Economic Advantage

Dana and Trentyn also alleged a count for interference 

with prospective economic advantage. Greenspoon was aware 

Dana and Trentyn were beneficiaries and would benefit 

financially from trust distributions for years. They knew Dana 

was trustee, and Trentyn would have an opportunity to act as 

trustee in the future. Greenspoon was aware their failure to 

competently represent Dana as trustee could cause economic 

harm to Dana and Trentyn. Dana individually and Trentyn were 

third-party beneficiaries of Dana’s contract as trustee for legal 

services. Greenspoon was retained by Dana as trustee to advise 

her on fulfilling her fiduciary duties so she could continue serving 

as trustee and not face surcharge liability.

Due to Greenspoon’s negligence and breach of contract, 

Dana has been suspended as trustee and faces petitions to be 

removed as trustee, to surcharge her, and to disinherit her and 

Trentyn. Dana’s removal as trustee will cause her to lose the 

right to appoint Trentyn as successor trustee. Greenspoon’s 

actions resulted in Dana and Trentyn losing the financial 
11

benefits which would have flowed to them as trustees and may 

result in the lost of their financial benefits as beneficiaries. The

same monetary damages were alleged as in previous counts. 

In addition, the complaint sought a determination of the 

reasonable value of Greenspoon’s services and return of all 

payments in excess of the reasonable value of those services, 

costs and attorney fees as permitted.

Anti-SLAPP Motion and Supporting Evidence

On March 24, 2021, Greenspoon filed a special motion to 

strike the complaint. Greenspoon argued that Dana engaged 

their firm in her capacity as trustee; the complaint did not allege

that Dana or Trentyn engaged the firm for individual 

representation. All of the alleged wrongful conduct arose from 

legal advice to Dana as trustee and from actions taken in the 

trust proceedings, which was protected petitioning activity within

the meaning of the anti-SLAPP statute. In addition, the 

litigation privilege barred the claims, and Greenspoon could not 

meaningfully defend itself without breaching the attorney-client 

privilege now held by the successor trustee. 

In support of the anti-SLAPP motion, Greenspoon filed the 

declaration of attorney Jayesh Patel. Patel stated that 

Greenspoon represented Dana in her capacity as trustee in 

connection with the Seifert litigation (Lucien Seifert v. Dana 

Urick, Successor Trustee, Urick Family Distribution Trust, LASC 

Case No. LC106538, consolidated with Dana Urick v. Lucien 

Seifert, LASC Case No. BC687263), the related case The Allyne L. 

Urick Trust v. Mark Boykin, LASC Case No. BC696459, and the 
12

trust proceedings (In re Allyne L. Urick Trust, LASC Case No. 

BP171001). 

Dana is a licensed, practicing California attorney. As 

trustee, she confirmed the limited scope of Greenspoon’s 

representation in her email to the firm. Greenspoon had 

represented Dana in her capacity as trustee only, not in her 

individual capacity, and as litigation counsel only. Greenspoon 

appeared at hearings, attended depositions, and filed papers in 

the state cases. At hearings and depositions Dana appeared 

individually through separate counsel or did not attend the 

hearing in her individual capacity at all.

Furthermore, Greenspoon did not appear on behalf of 

Trentyn in any capacity. At all times while Greenspoon provided 

services to Dana as trustee, Trentyn had separate counsel and a 

court-appointed guardian ad litem other than Dana to represent 

his interests.

Opposition to Anti-SLAPP Motion and Supporting 

Evidence

In April 2021, Dana and Trentyn filed their opposition to 

the anti-SLAPP motion. They argued that actions based on 

professional negligence were not subject to the anti-SLAPP 

statute, even when the alleged negligence arose in the context of 

petitioning activity. Whether Greenspoon owed professional 

duties to Dana and Trentyn was an issue related to the merits of 

the claim that was not relevant to the first prong of the antiSLAPP statute. Similarly, in the event Dana is surcharged for 

Greenspoon’s negligent conduct, her claim is similar to an 

indemnity action that is not based on protected activity. 
13

Dana and Trentyn further argued that even if the antiSLAPP statute applied, they could establish a prima facie case 

that Greenspoon owed duties to Dana and Trentyn individually. 

In addition, Greenspoon owed duties to them as third-party 

beneficiaries of the retainer agreement. Their allegations of 

negligent interference with prospective advantage was based on 

the same duties. Moreover, basic maxims of jurisprudence 

required that Greenspoon be held accountable. The litigation 

privilege does not apply to legal malpractice actions, they argued, 

and the successor trustee had not prevented Greenspoon from 

presenting a defense by asserting the attorney-client privilege.

In support of the opposition, Dana submitted her 

declaration as to the following facts. In October 2018, 

Greenspoon began providing legal representation to her as 

trustee in matters related to administration of the trust and trust 

litigation. She retained the firm to provide guidance on how to 

fulfill her fiduciary duties as trustee for the benefit of the 

beneficiaries. Attorney Turken conducted himself in a manner 

that voluntarily extended Greenspoon’s professional duties to her 

personally and to Trentyn. Turken provided options about the 

implications of his advice and strategies to her as trustee on her 

and Trentyn’s interests as beneficiaries, although many of these 

opinions proved to be erroneous. Turken’s actions have been 

cited by Willis and Philips Academy as further grounds to 

disinherit Dana and Trentyn as beneficiaries.

Dana retained Greenspoon to advise her about her 

potential personal liability as trustee, on which they did advise 

her, but failed to do adequately. She had a reasonable belief that 

if Greenspoon’s advice and actions could negatively impact the 

beneficiaries’ interests or her personal interests in continuing to 
14

serve as trustee, they would advise her and take actions to 

mitigate these risks, which they did not.

Greenspoon’s breach of duties to Dana and Trentyn, in 

Dana’s capacity as trustee and in their individual capacities, 

caused damages in the form of attorney fees opposing petitions in 

probate court that seek to surcharge her personally for the 

attorney fees paid by the trust and costs incurred by Willis and 

Philips Academy, to remove her, and to disinherit Dana and 

Trentyn based partly on actions taken by, and on the advice of, 

Greenspoon. 

Specifically, Greenspoon pursued the Seifert litigation on 

Dana’s behalf as trustee. In January 2020, the probate court 

ruled the Seifert litigation breached Dana’s fiduciary duties as 

trustee for which she is now potentially personally liable for 

surcharge. 

Greenspoon prepared and filed an accounting on Dana’s 

behalf as trustee. Willis and Philips Academy had challenged the 

accounting, asserting that payments made on behalf of Trentyn 

for his education and as compensation for Dana’s services as 

trustee breached her duties as trustee. Greenspoon was aware of 

the payments but never informed Dana that the payments could 

be improper in her capacity as trustee.

Greenspoon also pursued reformation of the trust on her 

behalf as trustee which they abandoned on the day of trial. Fees 

paid to Greenspoon in connection with the reformation 

proceedings are now the subject of a surcharge petition. In 

January 2020, the probate court ruled the amended petition for 

reformation which Greenspoon pursued on behalf of Dana as 

trustee, likely constituted a conflict of interest and was the basis 

for her suspension as trustee.
15

The attorneys never informed Dana that her 

communications could be discoverable by a successor trustee, 

which resulted in disclosure of sensitive information that she 

would not have provided in a discoverable manner had she been 

appropriately advised. They also failed to adequately advise her 

of the nature and scope of her fiduciary duties as trustee 

generally, and with regard to specific actions they took on her 

behalf as trustee. They failed to strategize, assess, or recommend 

alternatives to pursuing the Seifert litigation and the reformation 

petition. Attorney Turken advised her to refuse to answer 

deposition questions concerning communications with prior 

counsel by asserting the attorney-client privilege, potentially 

eliminating her ability to assert the defense of good faith reliance 

on the advice of counsel in the proceedings to surcharge and 

disinherit her.

In addition, Dana and Trentyn provided copies of several 

pleadings and orders from litigation related to the trust. They 

submitted Willis’s petition seeking to remove Dana as trustee, 

surcharge her for breach of trust, obtain reimbursement of 

attorney fees and costs paid by the trust, and compel an 

accounting. Willis sought to surcharge Dana for attorney fees 

expended by the trust for unnecessary litigation that resulted in 

undue expense to the trust while she was trustee. Dana and 

Trentyn also filed a copy of Willis’s objections to Greenspoon’s 

petition for payment of attorney fees and costs. Among other 

arguments, Willis argued that Greenspoon’s representation was 

ineffective and of no benefit to the trust. 
16

Reply and Trial Court Ruling

Greenspoon filed a reply arguing Dana and Trentyn 

conceded that the attorneys were hired exclusively as counsel for 

the trustee, and as a result, Greenspoon owed no duty to the 

beneficiaries, including the former trustee, because it would be a 

conflict of interest. Dana and Trentyn had separate counsel 

representing their individual interests, and the litigation matters 

in which Greenspoon represented the trustee were filed by other 

lawyers prior to Greenspoon’s engagement. Dana and Trentyn

had not pled causation or injury, because their damages were 

speculative. Lastly, the current trustee had not waived the 

attorney-client privilege to allow Greenspoon to refute the claims.

A hearing on the anti-SLAPP motion was held on April 22, 

2021. The court took the matter under submission, and issued an 

order later that day denying the anti-SLAPP motion on the 

ground that Greenspoon had not shown the causes of action arose 

from protected activities. Greenspoon filed a timely notice of 

appeal from the order. 

DISCUSSION

Standard of Review and Statutory Scheme

The Legislature enacted the anti-SLAPP statute to protect 

defendants from meritless lawsuits brought primarily to 

discourage the defendants from exercising their constitutional 

rights to speak and petition on matters of public significance.

(§ 425.16, subd. (a); Bonni v. St. Joseph Health System (2021) 11 

Cal.5th 995, 1008–1009 (Bonni).) To accomplish this purpose, the 
17

statute authorizes a special motion 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 Constitution or the California Constitution in 

connection with a public issue . . . unless the court determines 

that the plaintiff has established that there is a probability that 

the plaintiff will prevail on the claim.” (§ 425.16, subd. (b)(1).)

“‘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.]’”

(Monster Energy Co. v. Schechter (2019) 7 Cal.5th 781, 788 

(Monster).) In this first step, the court determines the conduct 

that the challenged claim arises from and whether that conduct 

is protected activity under the statute. (Mission Beverage Co. v. 

Pabst Brewing Co., LLC (2017) 15 Cal.App.5th 686, 698.) The 

court considers what conduct of the defendant satisfies the

elements of the claim that form the basis for liability. 

(Bonni, supra, 11 Cal.5th at p. 1009.) “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. [Citation.]” (Ibid; Baral v. Schnitt (2016) 1 

Cal.5th 376, 396 [“At the first step, the moving defendant bears 

the burden of identifying all allegations of protected activity, and 

the claims for relief supported by them”].)

“‘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. We have described this 

second step as a “summary-judgment-like procedure.” [Citation.] 

The court does not weigh evidence or resolve conflicting factual 

claims. Its inquiry is limited to whether the plaintiff has stated a 
18

legally sufficient claim and made a prima facie factual showing 

sufficient to sustain a favorable judgment. It accepts the 

plaintiff’s evidence as true, and evaluates the defendant’s 

showing only to determine if it defeats the plaintiff’s claim as a 

matter of law. [Citation.] “[C]laims with the requisite minimal 

merit may proceed.”’ [Citation.] The grant or denial of an antiSLAPP motion is reviewed de novo. [Citation.]” (Monster, 

supra, 7 Cal.5th at p. 788.)

In making its determination, the court considers the 

pleadings and the evidence submitted in connection with the 

proceeding to provide the facts supporting the liability or defense.

(§ 425.16, subd. (b)(2).)

Relationship Between the Parties

Greenspoon contends that all of the claims in the complaint 

arise from speech and petitioning activities taken on behalf of 

Dana as trustee. The conduct is protected under the anti-SLAPP 

statute, they argue, because they did not owe a duty to Dana or 

Trentyn as individuals. This contention, however, improperly 

conflates the first step of the anti-SLAPP analysis as to whether 

a claim is based on protected activity with the second step 

considering the merits of the claim. Because the wrongful 

conduct alleged in the complaint is not protected under the antiSLAPP statute, we do not reach the second step of the analysis.

The anti-SLAPP statute may protect speech and petitioning 

activities taken on behalf of another party (Briggs v. Eden 

Council for Hope & Opportunity (1999) 19 Cal.4th 1106, 1116; 

Pech v. Doniger (2022) 75 Cal.App.5th 443, 462), but this

protection does not extend to clients’ claims based on their own 
19

attorneys’ speech and petitioning activities on behalf of the 

clients (PrediWave Corp. v. Simpson Thatcher & Bartlett LLP

(2009) 179 Cal.App.4th 1204, 1227–1228 (PrediWave)). Clients’ 

claims based on their attorneys’ speech and petitioning activities

are generally not brought to deter their attorneys from speech 

and petitioning conduct on their behalf, but rather to object to the 

quality of the attorneys’ performance. (PrediWave, supra, 179 

Cal.App.4th at pp. 1227–1228.)

“[T]he mere fact that an action was filed after protected 

activity took place does not mean the action arose from that 

activity for the purposes of the anti-SLAPP statute. [Citation.]” 

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

protected activity that are incidental and merely provide context 

rather than an element of the claim cannot be stricken under the 

anti-SLAPP statute. (Bonni, supra, 11 Cal.5th at p. 1012.) 

When specific acts of alleged wrongdoing by an attorney do 

not involve protected activity, whether the claim is labeled 

professional negligence, breach of contract, or breach of fiduciary 

duty, the anti-SLAPP statute does not apply. For example, an 

attorney’s representation of a client which constitutes a conflict of 

interest as to another client is not protected activity under the 

anti-SLAPP statute. (PrediWave, supra, 179 Cal.App.4th at pp.

1226–1227 [defendant attorneys simultaneously represented two 

clients with an irreconcilable conflict of interest]; Freeman v. 

Schack (2007) 154 Cal.App.4th 719, 732–733 [defendant 

attorneys violated fiduciary duties by representing a new client 

with interests adverse to former client].) Dispensing false legal 

advice to induce payment of attorney fees is not protected 

activity. (Hylton v. Frank E. Rogozienski, Inc. (2009) 177 

Cal.App.4th 1264, 1274.) Failing to comply with statutory and 
20

court-ordered obligations to serve discovery responses is not 

protected activity under the anti-SLAPP statute. (Jespersen v. 

Zubiate-Beauchamp (2003) 114 Cal.App.4th 624, 631–632.)

In PrediWave, the court summarized several anti-SLAPP 

cases against former attorneys and concluded: “In determining 

the applicability of the anti-SLAPP statute, we think a 

distinction must be drawn between (1) clients’ causes of action 

against attorneys based upon the attorneys’ acts on behalf of 

those clients, (2) clients’ causes of action against attorneys based 

upon statements or conduct solely on behalf of different clients, 

and (3) non-clients’ causes of action against attorneys. In the 

first class, the alleged speech and petitioning activity was carried 

out by attorneys on behalf of the plaintiffs in the lawsuits now 

being attacked as SLAPP’s, although the attorneys may have 

allegedly acted incompetently or in violation of Professional Rules 

of Conduct. The causes of action in this first class categorically 

are not being brought ‘primarily to chill the valid exercise of the 

constitutional rights of freedom of speech and petition . . . .’

(§ 425.16, subd. (a).)” (PrediWave, supra, 179 Cal.App.4th at p.

1227.)

Although the PrediWave formulation is generally useful, it 

does not apply neatly in all cases. (See, i.e., Wittenberg v. 

Bornstein (2020) 50 Cal.App.5th 303, 314–315 [attorney’s conduct 

was not “‘solely’” on behalf of different clients, because former 

client’s interests were implicated].) Not every cause of action by 

a nonclient related to an attorney’s speech and petitioning 

activity is subject to the anti-SLAPP statute. (See Chodos v. Cole

(2012) 210 Cal.App.4th 692, 703–704 [claim by attorney against 

other attorneys for equitable indemnity was not distinguishable 

from client’s claim against attorney for malpractice].) In certain 
21

circumstances, courts have found an attorney liable to a nonclient 

for professional negligence based on the attorney’s legal services. 

(See Chang v. Lederman (2009) 172 Cal.App.4th 67, 76–84 [estate 

planning attorneys have a duty of care to expressly named 

beneficiaries in a will or trust to exercise ordinary skill and care 

to properly effectuate the bequests in the testamentary 

document].)

On appeal, Greenspoon’s sole basis for concluding that the 

conduct alleged in the complaint is subject to the anti-SLAPP 

statute is their assertion that the attorneys did not represent 

Dana and Trentyn in their individual capacities. For the 

purposes of this appeal, Greenspoon implicitly concedes the 

conduct alleged in the complaint is not subject to the anti-SLAPP 

statute if the attorneys in fact had duties to Dana or Trentyn as

alleged in the complaint. However, Greenspoon’s argument 

improperly mixes the first and second prongs of the anti-SLAPP 

analysis. (See Sprengel v. Zbylut (2015) 241 Cal.App.4th 140, 

155–157 (Sprengel) [“arguments regarding the absence of an 

attorney-client relationship with Sprengel improperly conflate 

the first and second prongs of the Section 425.16 test”].)

“‘The sole inquiry’ under the first prong of the test is 

whether the plaintiff’s claims arise from protected speech or 

petitioning activity. [Citation.] In making this determination, 

‘[w]e do not consider the veracity of [the plaintiff’s] allegations’ 

[citation] nor do we consider ‘[m]erits based arguments.’ 

(Freeman[ v. Schack (2007) 154 Cal.App.4th 719,] 733

[(Freeman)] [‘[m]erits based arguments have no place in our 

threshold analysis of whether plaintiffs’ causes of action arise 

from protected activity’]; see Coretronic[ Corp. v. Cozen O’Connor

(2011) 192 Cal.App.4th 1381,] 1388 [‘[a]rguments about the 
22

merits of the claims are irrelevant to the first step of the antiSLAPP analysis’]). If the defendant demonstrates the plaintiff’s 

claims do arise from protected activity, we then review the 

potential merits of the plaintiff’s claims in the second step of the 

analysis. (Episcopal Church Cases (2009) 45 Cal.4th 467, 477 

[‘“If the court finds [the defendant has satisfied the first prong], it 

then must consider whether the plaintiff has demonstrated a 

probability of prevailing on the claim”’].) However, ‘[w]here 

[defendant] cannot meet his threshold showing, the fact he 

“might be able to otherwise prevail on the merits under the 

‘probability’ step is irrelevant.”’ (Freeman, supra, 154 Cal.App.4th 

at p. 733.)” (Sprengel, supra, 241 Cal.App.4th at pp.156–157.)

Whether Greenspoon actually shared an attorney-client 

relationship with Dana which allows her to recover damages that 

she suffered personally as a result of Greenspoon’s legal advice 

and services to her as trustee, and whether Greenspoon actually 

had duties to Dana and Trentyn as third-party beneficiaries of 

Greenspoon’s legal services to the trustee, relates to the merits of

the claims and is therefore not relevant to the first step of the 

anti-SLAPP analysis. Greenspoon may eventually prevail by 

proving the absence of any duty to Dana or Trentyn, but that 

does not affect the substance of their claims that Greenspoon’s 

conduct breached duties to them, which is not protected activity. 

The anti-SLAPP motion was properly denied.
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DISPOSITION

The order denying the anti-SLAPP motion is affirmed. 

Respondents Dana Urick and Trentyn M. Urick-Stasa are 

awarded their costs on appeal.

MOOR, J.

We concur:

BAKER, Acting P. J.

KIM, J.